Social media apps on the screen of an electronic device

CALIFORNIA’S SOCIAL MEDIA TRANSPARENCY LAW

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Disclosure Obligations, Hate Speech & AG Reports

Legislators across the United States have been grappling with how to regulate social media companies. In Texas, the 5th Circuit upheld a law limiting how social media platforms can moderate content.[1] In Florida, a brief was filed asking the U.S. Supreme Court to reverse the 11th Circuit’s decision to strike down a law preventing how social media platforms can moderate users.[2] Now, with Governor Newsom signing AB 587 into law, California joins the legislative efforts.

Effective January 1, 2024, AB 587 imposes new disclosure and reporting obligations on companies operating social media platforms. A social media platform falls under the law if:

  • The company operating the platform generated at least one hundred million in gross revenue during the preceding calendar year;[3]
  • The platform is a “public or semipublic internet-based service or application”[4] with users “in California;”[5]
  • A substantial function of the platform is to connect users to allow them to “interact socially” with each other in the platform;[6] and
  • Users can:
    • construct “public or semipublic” profiles for the purpose of signing in and using the platform;[7]
    • populate a list of other users with whom they share a social connection within the platform;[8] and
    • post content viewable by other users.[9]

In addition, the law does not apply to services or applications for which user interactions are limited to direct messages, commercial transactions, or consumer reviews of products, sellers, services, events, or places, or any combination thereof.[10]

Disclosure Obligations

A covered social media platform must disclose to users the existence and contents of the platform’s terms of service.[11] In addition, the terms of service must disclose:

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THE CALIFORNIA AGE-APPROPRIATE DESIGN CODE

California Privacy Law , ,

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***Update: On September 15, 2022, Governor Newsom signed AB 2273, establishing the California Age-Appropriate Design Code Act.

Who It Covers, What It Requires & How It Compares to the UK

Effective July 1, 2024, the California Age-Appropriate Design Code imposes obligations on businesses[1] that provide an “online service, product, or feature” that is “likely to be accessed by children.”[2] Children are defined as California residents[3] “who are under 18 years of age.”[4] The law provides factors for whether an online service, product, or feature (S/P/F) is “likely to be accessed” by California residents under the age of 18:[5]

  • It is directed to children as defined by COPPA.[6]
  • It is determined, based on competent and reliable evidence regarding audience composition, to be routinely accessed by a significant number of children, or it is substantially similar to an online S/P/F that meets this factor.
  • It displays advertisements marketed to children.
  • It has design elements known to be of interest to children, including games, cartoons, music, and celebrities who appeal to children.
  • Based on internal research, a significant amount of the audience is children.

An online S/P/F is defined by what it is not, and the definition notably exempts the “delivery or use of a physical product.”[7] This exemption diverts from the UK version of the law, which covers “connected toys and devices.”[8]

Compared to the UK’s Common-Sense Approach

The US version of the law provides no guidance on what it means for a “significant number of children” to “routinely access[]” the online S/P/F. However, the law makes clear in its legislative findings that covered businesses may look to guidance and innovation in response to the UK version when developing US-covered online S/P/F.[9]

ICO states that the term “likely to be accessed by” is purposefully broad, covering “services that children [are] using in reality,” not just those services specifically targeting children.[10] However, ICO recognizes that the term is not so broad as to “cover all services that children could possibly access.”[11] The key difference is whether it is “more probable than not” that an online S/P/F will be accessed by children, and businesses should take a “common sense approach to this question.”[12]

To illustrate this point:

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Map of the United States - State Privacy Laws

And Then There Were Five…

California Privacy Law, CCPA, Colorado Privacy Act, CPRA, CTDPA, Privacy Law, UCPA, VCDPA , , , , ,

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Just last summer, in July of 2021, Colorado joined California and Virginia, and became the third U.S. state with a comprehensive consumer privacy law. The Colorado Privacy Act is set to take effect in July 2023.

Hot on its heels, and within just two months of each other, first Utah in March of 2022, now Connecticut in May of 2022, passed privacy bills which will become effective in 2023.

So far, California remains the only state which allows for a private right of action in connection with its privacy bill. For more information, please see our comparison of the current U.S. state consumer privacy laws below.

For our unofficial redline of the CPRA, click here.

Follow these links for the official text of the CPRA, CPA, CTDPA, UCPA, and VCDPA.

To view and download a PDF version of this chart, click here.

Image of virginia state and shield. Virginia has a new data privacy law.

Virginia Governor Signs Comprehensive Data Privacy Law

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Following hot on the footsteps of the California Privacy Rights Act, Virginia Gov. Ralph Northam (D) signed the Consumer Data Protection Act on Tuesday, making Virginia the second state in the U.S. to pass a comprehensive data privacy law. Below, please see our comparison of the the California Consumer Privacy Act and the Virginia Consumer Data Protection Act.

CCPA-VCDPA ChartDownload
California Consumer Privacy Act
(CCPA)		California Privacy Rights Act
(CPRA)		Virginia Consumer Data Protection Act
(VCDPA)
Date of effectJanuary 1, 2020January 1, 2023January 1, 2023
Law applies toA “business” that meets at least one threshold below:
• Generates over $25M in annual gross revenue;
• Handles the records of at least 50,000 California consumers; or
• Generates over 50% in annual revenue from sales of consumer data		Same as CCPA, except the threshold for handling records of California consumers increases from 50,000 to 100,000.Applies to businesses that
• Handles the records of at least 100,000 Virginia consumers; or
• Handles the records of at least 25,000 Virginia consumers and derives over 50% in gross revenue from sales of consumer data

Definition of personal data		Any information that could be associated or linked with a particular consumer or household.Same as CCPA, except that there is a reasonableness element:
Any information that could be reasonably associated or linked with a particular consumer or household.		Limited to particular consumers.
“Any information that is linked or reasonably linkable to an identified or identifiable natural person”
Definition of sensitive personal dataDoes not define sensitive personal data.Defines sensitive personal data to include:
• Social security number
• Driver’s license
number
• Account log-in, debit,
or credit card number in combination with password or PIN
• Precise geolocation
• Racial/ethnic origins
• Religious or
philosophical beliefs
• Union membership
• Contents of e-mails or
texts to others
• Genetic/biometric
data
• Health information
• Sex life/sexual
orientation data		Defines sensitive personal data to include:
• Racial/ethnic origins
• Religious beliefs
• Mental or physical
health diagnosis
• Sexual orientation
• Citizenship/
immigration status
• Genetic/biometric
data
• Children’s data
• Precise geolocation
Consumer rights• Access
• Deletion
• Non-Discrimination
• Opt-out of:
o Sale of personal data		Same as CCPA, with the addition of rights to:
• Correct personal information
• Limit the use of
sensitive personal information		• Access
• Correction
• Deletion
• Port
• Opt-out of:
o Targeted advertising
o Sale of personal data
o Profiling in furtherance of decisions that produce legal effects
Data Privacy Impact AssessmentsNo requirement to conduct or document.No requirement to conduct or document.Controllers must conduct and document data protection assessments for the following activities:
• Targeted advertising
• Sale of personal data
• Profiling
• Sensitive data
• Catch-all: any data that presents a “heightened risk of harm to consumers.”
Data Protection AuthorityCalifornia Office of the Attorney General$10 million allocated per year to the California Privacy Protection Agency (CPPA).
Primary enforcement and rulemaking abilities shift from the California Attorney General to the CPPA.		Virginia Office of the Attorney General
Cure Provision30 days to cure upon written notice of a violation by the California Attorney General’s office.Ability to cure removed from CPRA.30 days to cure upon written notice of a violation by Virginia Attorney General’s office.
EnforcementAdministrative fines ranging from $2,500 per violation to $7,500 for intentional violations.Administrative fines of $7,500 now includes intentional violations and children’s data violations.Administrative fines of $7,500 per violation.
Private Right of ActionConsumers have a private right of action for the unauthorized disclosure of nonencrypted and nonredacted personal information.Same as CCPA.Consumers do NOT have a private right of action.
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Reasonable Security: Implementing Appropriate Safeguards in the Remote Workplace

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In 2020, with large portions of the global workforce abruptly sent home indefinitely, IT departments nationwide scurried to equip workers of unprepared companies to work remotely.

This presented an issue. Many businesses, particularly small businesses, barely have the minimum network defenses set up to prevent hacks and attacks in the centralized office. When suddenly everyone must become their own IT manager at home, there are even greater variances between secure practices, enforcement, and accountability.

“Reasonable Security” Requirements under CCPA/CPRA and Other Laws

Under the California Consumer Privacy Act (CCPA), the implementation of “reasonable security” is a defense against a consumer’s private right of action to sue for data breach. A consumer who suffers an unauthorized exfiltration, theft, or disclosure of personal information can only seek redress if (1) the personal information was not encrypted or redacted, or (2) the business otherwise failed its duty to implement reasonable security. See Cal. Civ. Code § 1798.150.

Theoretically, this means that a business that has implemented security measures—but nevertheless suffers a breach—may be insulated from liability if the security measures could be considered reasonable measures to protect data. Therefore, while reasonable security is not technically an affirmative obligation under the CCPA, the reduced risk of consumer liability made reasonable security a de facto requirement.

However, under the recently passed California Privacy Rights Act (CPRA), the implementation of reasonable security is now an affirmative obligation. Under revised Cal. Civ. Code § 1798.100, any business that collects a consumer’s personal information shall implement reasonable security procedures and practices to protect personal information. See our CPRA unofficial redlines.

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