California Legislature Proposes Modifications to CCPA for Children Under 18

On January 29 the California legislature introduced the California Children’s Data Privacy Act (AB 1949) in what appears to be the first bill proposed to amend the California Consumer Privacy Act (CCPA) since passage of ballot initiative Prop 24 in 2020. Despite being passed as a ballot initiative by California voters, Section 25 of Prop 24 allows the legislature to amend the CCPA, provided that the amendments “are consistent with and further the purpose and intent of [the CCPA].” In short, the proposed amendments would increase the age to require affirmative consent to “share” or “sell” (as defined in the CCPA) personal information of children from 16 years old up to 18 while keeping the requirement that the consent come from a child under 13’s parent or guardian.

However, the proposed bills, if passed, would also remove the requirement that businesses have actual knowledge that the child was below age and instead impose more of a strict liability standard on businesses when they process the personal information of children. It would also expand the requirement to obtain affirmative consent for children under 18 to the collection and use of sensitive personal information for purposes not explicitly enumerated under the CCPA; the CCPA does not currently require any form of consent for the collection and use of sensitive personal information from children.

“In a digital age where the vulnerabilities of young users are continually exploited, we cannot afford to let our laws lag behind – our children deserve complete assurance that their online experience will be safeguarded from invasive practices,” said Assemblymember Buffy Wicks, D-Oakland. “With AB 1949 we have a critical opportunity to build on the important work we’ve already done with the CCPA by expanding protections for ALL youth under 18. This bill is a crucial step in our work to close the gaps in our privacy laws that have allowed tech giants to exploit and monetize our kids’ sensitive data with impunity.”

The proposed bill also requires that the California Privacy Protection Agency (CPPA) seek public participation and adopt regulations to establish technical specifications for opt-out signals for children. While the CPPA previously approved the Global Privacy Control signal for general opt-out of “sale” or “sharing” of personal information and the use of sensitive information for non-enumerated purposes, the bill would require an extension of this or a similar signal to specify the age group of the user. It would also require that the CPPA issue regulations regarding age verification and when a business must treat a consumer as being a child under 18 or under 13. These regulations would need to be issued on or before July 1, 2025. While not entirely clear from the bill, based on the California State Court decision in July 2023 delaying the enforcement of the current CCPA regulations until March 29, 2024, the regulations would likely not go into effect until at least one year following their official issuance.

Impact to Businesses

The modifications proposed by the bill would only affect organizations that are subject to the CCPA. As such, the bill does not affect the privacy practices regarding the personal information of children under 18 by organizations not subject to the CCPA. While the Federal Children’s Online Privacy Protection Act (COPPA) provides some protection for the personal information of children under the age of 13 (and is currently being reviewed/updated by the Federal Trade Commission), there remains no California-specific protection for personal information about children between 13-18 processed by organizations not subject to the CCPA.

The bill is meant to protect children’s privacy online despite the injunction issued against the Children’s Age-Appropriate Design Code Act (CAADCA). If passed, the law is likely to meet a prompt challenge from NetChoice, who also brought the case to challenge the CAADCA. As such, businesses should continue to monitor the progress of the bill as well as the court challenges to the CAADCA for any change in status and be prepared to put policies and procedures in place to comply with these laws if necessary.

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