By Kevin Boyle and Alex Stout
On Wednesday, the Attorney General of California released a new privacy guide, titled Making Your Privacy Practices Public. The guide doesn’t purport to be a restatement of California law (or other law) and expressly disclaims that, but it does present what the AG’s office views as a best practice approach to crafting privacy disclosure materials while covering some unique California requirements. It also highlights recent revisions to California’s online privacy law (known as “CalOPPA”) that require companies to address online tracking by describing how their website responds to Do Not Track (DNT) requests. All in, it presents a handy checklist and is very likely a gentle (and helpful) reminder that the office will be on the lookout for those who have yet to come into compliance with the new requirements.
While the guide lays out many useful recommendations, its underlying theme is a call for enhancing the readability of policies. Responding to research that shows that most web users do not read or understand privacy policies, the guide encourages writing in plain English, avoiding jargon, and structuring the policy with clear headings, short sentences, and a simple layout. This good advice may seem obvious, but one need not surf the web long to find examples of enforcement cases targeting brands that missed that mark. Iterative, overly legalistic privacy policies are not only hard for consumers to understand (and thus ineffective disclosures), but they also challenge companies to ensure that they are accurate, comprehensive, and fully implemented. As a result, companies wind up violating their own privacy policies, often because of internal resistance to maintaining the policy as a living document, as new products, data uses or sharing practices arise in the ordinary course of business. We highlighted many examples of enforcement cases that had their roots in outdated privacy policies or drafting errors in a joint International Association of Privacy Professionals webinar presented with Joanne McNabb of the Director of Privacy Education and Policy, Privacy Enforcement and Protection Unit, California Department of Justice. The webinar here and the slides are available here.