California Minor Eraser Law and Prohibitions on Certain Advertising and Marketing Activities Aimed at Minors Effective January 1, 2015

The California Online Privacy Protection Act of 2003 (CalOPPA) remains the only law in the nation that requires a privacy policy for all commercial websites, online services, and online or mobile applications. Effective January 1, 2015, a new amendment to CalOPPA, “Privacy Rights for California Minors in the Digital World,” commonly called the “Minor Eraser Law,” will require operators to delete any user-generated content or information submitted by a minor who is a registered user upon the minor’s request. A “minor” is defined as a person under the age of 18 who resides in California. The operator must provide clear instructions on how the minor may remove the content/information, or alternatively, if the operator prefers, how the minor may request the operator to complete the removal. The removal requirements apply unless the content/information was posted by a third party, the content/information is required to be retained by the operator under state or federal law, or the content/information is anonymized by the operator, such that the minor cannot be individually identified.

There are a number of issues presented by the Minor Eraser Law that an operator will need to address prior to the effective date, including:

• The statute states that a request for removal must be made by a minor. Will the operator honor requests from an adult for removal of content/information posted when he/she was a minor? Will a parent have the right to request removal of content/information on behalf of his/her minor child? If so, how should the operator verify the parent’s identity?
• Will an operator require age and residency verification from a minor if such Personal Information is not submitted or retained during the user’s registration process? What type of verification will be necessary? If the operator uses an online form to process such requests, how will the operator comply with the federal Children’s Online Privacy Protection Act if such requests come from children under the age of 13?
• If the minor’s content/information was incorporated into other content, such as a news story or online blog, is the operator required to take down the additional content as well? What First Amendment issues does this policy raise?

We recommend that an operator’s privacy policy be updated to reflect the removal and verification processes adopted to comply with the new California requirements.

The amendment also prohibits the advertising and marketing through a website, online service, or online or mobile application targeted to minors of certain adult-oriented products and services that minors cannot legally purchase or use, such as alcohol, aerosol containers/spray paint, etching cream, firearms, ammunition, lottery tickets/shares, fireworks, tanning beds, dietary supplement products, and permanent tattoos. These prohibitions are similar to the Child Protection Registries in Michigan and Utah. Operators of general audience websites and online services or applications that have actual knowledge that minors are registered as users are also subject to the advertising prohibitions. “Actual knowledge” can be obtained by the collection of a user’s date of birth, or the user’s submission of other age identifying information, such as grade or the name of school. Additionally, the operator may not knowingly use, disclose, compile, or allow a third party to use, disclose, or compile the Personal Information of a minor with actual knowledge that the Personal Information will be used to market or advertise prohibited products or services to the minor. This prohibition includes serving online behavioral advertising. An operator will be deemed to be in compliance with the law if the operator takes reasonable actions in good faith designed to avoid the marketing or advertising of prohibited products or services to minors.

If you have any questions about CalOPPA and other new laws and guidelines or other privacy or data security requirements, or would like assistance in complying with the new law or updating your privacy policy, please contact S. Jenell Trigg (strigg@lermansenter.com) at 202.416.1090, or any other attorney in our office.