As we previously posted, Rep. Jackie Speier (D-CA) introduced federal do-not-track legislation in February. California State Senator Alan Lowenthal announced at a press conference earlier this week that he is backing a similar bill in the California legislature, with the support of Consumer Watchdog and other public advocacy groups.
SB 761, as amended, directs the California attorney general to adopt regulations requiring companies that collect online data to allow consumers to opt out of the collection or use of their personal information – including online tracking. The attorney general would also be authorized to include an access requirement so that consumers could access personal information collected about them. The attorney general would be authorized to exempt from the requirements of SB 761 commonly accepted practices such as providing a requested service, fulfilling basic business functions, or complying with legal requirements. Rep. Speier’s proposed federal legislation would likewise require an opt-out for online data collection or use, although the rulemaking would be conducted by the Federal Trade Commission.
One key difference in the California bill, however, is the enforcement mechanism. Rep. Speier’s H.R. 564 contemplates enforcement by the FTC and state attorneys general but does not include a private right of action. SB 761, by contrast, allows for civil actions against companies that willfully fail to comply with the regulations, with minimum damages of $100 and the possibility of punitive damages. The California bill, and the civil action provision in particular, have already drawn criticism from industry trade groups (see, e.g., here and here).
We are monitoring both H.R. 564 and SB 761 closely.