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Delaware Passes Online Privacy and Student Protection Acts
Practical Law Legal Update 4-618-0955 (Approx. 4 pages)
Delaware Passes Online Privacy and Student Protection Acts
by Practical Law Intellectual Property & Technology
| Published on 12 Aug 2015 • USA (National/Federal) |
Delaware has enacted two privacy laws, the Online Privacy and Protection Act directed to protecting children's online privacy and regulating internet service operators' use of privacy policies, and the Student Data Privacy Protection Act, directed to regulating educational technology service providers' use of student data.
On August 7, 2015, Delaware Governor Jack Markell signed into law SS 1 for SB 68, known as the Delaware Online Privacy and Protection Act. The law:
- Specifies a list of products and services deemed harmful to children (harmful products) including:
- alcohol, drugs and tobacco products;
- firearms; and
- pornographic or patently offensive material.
- Regulates advertisers and operators of internet services directed to children by:
- requiring operators to provide notice to advertisers that the internet service is directed to children;
- prohibiting operators and advertisers from marketing harmful products to children; and
- prohibiting operators who have actual knowledge that a child is using the internet service from using the child's personally identifiable information (PII) to market harmful products and from disclosing the PII if the operator knows it will be used for marketing harmful products.
- Requires all internet services operators to make their privacy policy conspicuously available if they collect PII from Delaware residents for commercial purposes.
- Directs the Department of Justice to promulgate rules:
- identifying the information that must be disclosed in a privacy policy;
- providing specific language for privacy policies that, if used, would serve as a safe harbor for operators; and
- promoting uniformity with other states regarding privacy policies.
- Regulates digital book service providers by:
- prohibiting these entities from disclosing user personal information to law enforcement or others except in specified circumstances, for instance when there is an imminent danger of death or serious physical injury; and
- requires these entities to post an annual report on their disclosures of user personal information.
This law is effective on January 1, 2016.
On August 7, 2015, Governor Markell also signed SS 1 for SB 79, known as the Student Data Privacy Protection Act. Among other things, this law requires education technology service providers, including websites and mobile applications used for school purposes, to implement reasonable procedures to protect student information and prohibits them from:
- Selling student data.
- Using student data to conduct targeted advertising to students or their families.
- Amassing a profile on students to be used for non-educational purposes.
- Disclosing student data with limited exceptions.
These obligations become effective on August 1 of the first full year following the act’s enactment into law, while certain administrative requirements relating to the statute became effective on passage. Delaware's student privacy law continues the trend of states passing student privacy protection laws and is modeled on California's comprehensive student privacy protection act, which went into effect earlier this year (see Legal Updates, California Enacts Law Protecting Student Privacy and Amends Data Breach Statute and Georgia and Maryland Enact Student Privacy Laws).