Privacy Laws of the State of California

NOTES:

Information obtained from Robert Ellis Smith's Compilation of State and Federal Privacy Laws is cited as "Smith, 1992, 1994."

The California Office of Privacy Protection provides a more up-to-date list of California privacy-related laws at www.privacy.ca.gov/califlegis.htm. The OPP's list is particularly more current on laws related to identity theft.

Arrest Records

Whenever a person is acquitted of a charge and it appears to a judge that the person was innocent of the charge, the judge may order the case sealed and later destroyed. The person may then claim that he/she was not arrested. Cal. Penal Code 851.8 Records of arrest prior to 1976 may be destroyed upon petition to a court. Cal. Health and Safety Code 11361.5

Law enforcement agencies may not disclose criminal history information with the intent of affecting a person's employment prospects. Cal. Labor Code 432.7 (f)(1). Public and private employers may not inquire into arrests of applicants, nor may public agencies inquire into arrests on applications for a license, certificate or registration. Cal. Labor Code 432.7 and Cal. Bus. & Prof. Code 461. Nor may auto insurers inquire. Cal. Ins. Code 11580.08. Mere detentions, not regarded as arrests, must be accompanied by a record of release and the individual is entitled to a certificate labeling the incident a detention. Cal. Penal Code 851.69(b). (Smith, 1992, 1994)

Cable Television

State law prohibits a cable television corporation from using any electronic device to record, transmit, or observe events inside a subscriber's premises and from disclosing any information about the subscriber without their consent. Companies may sell lists of subscribers and addresses if they permit a subscriber to be deleted from such lists. Customers have a right to inspect and correct information about them. Cal. Penal Code 637.5. (Smith, 1992, 1994)

California Constitution - Inalienable Rights

Article 1, Section 1

"All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." (Amended Nov. 7, 1972, to add the word "privacy.")

The right to privacy is an inalienable right granted to all people under the California Constitution.

Generally, state restrictions and laws which threaten or hamper one's right to privacy are judged under the standard of "strict scrutiny."

The inalienable right to privacy has been subject to various legal interpretations in the following subject areas: airline travel, bank records, children and minors, communications, credit cards, election materials, entertainment services, hospitals, informants, prison conduct, jurors, medical information, motor vehicle records, narcotics, police activity, private investigations, public officials, public housing, public records, publications, sexual relations, commercial transactions, telephones and zoning.

Check Writing

Merchants may not require that customers' credit card numbers be recorded on checks. And they may not require that a credit card be shown as a condition of accepting the check (it can be requested however). Cal. Civil Code 1725.

Computer Crime

It is a crime to "intentionally access...any computer system or computer network from the purpose of devising or executing any scheme or artifice; to defraud or extort or obtain money, property or services with false or fraudulent intent, representations, or premises; or to maliciously access, alter, delete, damage, or destroy, any computer system, computer network, computer program or data." Cal. Penal Code 502. (Smith, 1992, 1994)

Publishing a Personal Identification Number (PIN), password, access code, debt card number, or bank account number is a crime. Penal Code 484j. (Smith, 1992, 1994)

Credit Card

Retailers are prohibited from writing personal information on credit card transaction slips, with some exceptions. Retailers can require to see specific documents such as a driver's license but cannot record that information. Cal. Civil Code 1747.08

Credit Reporting

Consumer reporting agencies must allow consumers to visually inspect all files maintained regarding such consumer at the time of the request. Consumer credit reports may also be furnished for the purposes of court orders, subpoenas, employment, governmental licensing, underwriting or other legitimate business reasons. Recipients of such information must identify themselves, certify the purposes for which the information is sought and certify that the information will be used for no other purposes.

Consumer credit reporting agencies shall reinvestigate and record the current status of disputed information unless it has reasonable grounds to believe that the dispute by the consumer is frivolous or irrelevant. If the disputed item is found to be missing, inaccurate or can no longer be verified, the consumer credit reporting agency must correct such information and shall notify the consumer of the change(s).

Consumer credit reporting agencies shall specify the source of such credit information and the date that such information was initially reported or publicized. Negative submissions to credit reports must be reported to the effected consumer. Cal. Civil Code 1785, California Consumer Credit Reporting Agencies Act.

Debt Collection Practices

Debt collectors are prohibited from using physical force or violence as a means of collecting consumer debt.

Debt collectors may not communicate with the debtor's employer regarding the consumer's debt unless such communication is necessary to the collection of the debt.

Such communication is necessary only if it is made for the purposes of verifying the debtor's employment, locating the debtor, or effecting garnishment, after judgment of the debtor's wages, or in the case of a medical debt for the purpose of discovering the existence of medical insurance.

Debt collectors may not communicate with the members of the debtor's family or spouse prior to obtaining a judgment against the debtor. Disclosure, publication or communication by a debt collector of information relating to consumer debt is proper if the recipient has a legitimate business need for such information. Cal. Civil Code 1788, Fair Debt Collection Practices.

DMV Records, Disclosure

Motor vehicles registration information may be sold at cost, but the buyer must identify themselves and the reason for the request. Data is available to the press and an attorney for pending litigation. There is a ten-day wait for a person requesting access to another person's motor vehicle records. Cal. Civ. Code 1798.26. A person may give an alternative address or motor vehicle registration so that one's true home address is not publicly released. Cal. Health & Safety Code 18081. (Smith, 1992, 1994)

All records of the department relating to the physical or mental condition of any person, and convictions of any offense involving the use or possession of controlled substances not arising from circumstances involving a motor vehicle are confidential and not open the public inspection. A dismissal from a driving school is confidential. Motor vehicle departments may sell information from their registration or drivers' license records. Drivers must show proof of insurance after being cited for a traffic violation. DMV records of public employees and their spouses and children must remain confidential. Cal. Vehicle Code 1653.

Electronic Commerce

Specific disclosure requirements apply to commercial services that occur via electronic commerce. These disclosure requirements include: name, address and telephone number of the provider of service; the procedures a consumer may follow in order to resolve complaints; and any charges to the consumer imposed by the provider for the use of the service. Cal. Civil Code 1789, Electronic Commerce Act of 1984.

Employment Records

Public and private employers are required to permit an employee to inspect all records and personnel files concerning the employee, at reasonable times, upon request. Letters of reference and criminal investigation records excluded. Records must be made available where the employee reports to work. Cal. Labor Code 1198.5 and Cal. Educ. Code 24317 and 92612. This section shall not apply to the state and any state agency or public school districts with respect to employees covered by Section 44031 of the Education Code. The Labor Commission does include ex-employees for a specific period of time, it does not include applicants 1196.5.

There are limits on employers use of applicants' medical histories. Cal. Civ. Code 56.05(b) and 56.20(a).There may be no "spotters" monitoring employees in a "public service corporation." Cal. Pub. Util. Code 8251. (Smith, 1992, 1994)

Employment, Polygraphing

Cal. Labor Code 432.2 prohibits mandatory polygraphing in private employment. Police officers do not have to submit to polygraphing in departmental investigations. Cal. Govt. Code 3307.

False Personation

False personation is a crime subject to strict penalties which include fines and imprisonment. Court appearances, publications, debitures, and the assumption of legal rights and responsibilities constitute circumstances in which false personation is a crime. Manufacture, possession or sale of documents meant for to advance false identities, such as altered birth certificates or driver's licenses, are punishable crimes. Any person who fraudulently defrauds, through false personation, any other person of money, labor or property is guilty of larceny. Cal. Penal Code 528-539.

Financial Records - Banks, Government Access

No officer or employee of a state or local governmental agency may request the financial records of a customer in connection with a civil or criminal investigation, unless the financial records are described with particularity and are consistent with the scope and requirements of the investigation. Such disclosure must be authorized by the customer. Disclosure must be made pursuant to an administrative subpoena or summons; search warrant; or judicial subpoena. Notice not required if judge determines that law or state regulation has been or is about to be violated. Financial institutions shall maintain the financial records of all examinations or disclosures for a period of five years. Cal. Civil Code 7460, California Right to Financial Privacy Act.

Information Practices Act

The state's Fair Information Practices Act, which is similar to those in other states, gives citizens the right to see and correct state files about themselves. State agencies may disclose personal information only in limited circumstances. The state university system and police are exempt. Unlike other states, California permits invasion-of-privacy lawsuits against a person who intentionally discloses personal information that he/she should have known came from a state or federal agency in violation of law. (Smith, 1992, 1994)

The protected personal data contained in this act covers a variety of administrative, medical and criminal records. Each agency responsible for collecting such personal information shall maintain the source or sources of the information. Disclosure may only occur upon prior written consent, to a duly appointed guardian or conservator, or to officers, employees, attorneys, or volunteers of the agency which has custody of the information. Cal. Civil Code 1798.

Santa Clara County government data banks are regulated by a Data Confidentiality Review Commission. Ordinance No. NS-300.219.1. (Smith, 1992, 1994)

Investigative Consumer Reports

Investigative consumer reports pertain to personal and demographic information obtained through personal interviews with neighbors, friends, or associates of the consumer. The requestor of the report must notify the subject that he or she is the subject of such a report. Individuals have the same right to correct and dispute incorrect or incomplete information as they do with their credit reports. Cal. Civil Code 1786, Investigative Consumer Reporting Agencies Act.

Insurance Information and Privacy Protection Act

Insurance agents and institutions are prohibited from obtaining consumer credit reports about an individual in connection with an insurance transaction. Individuals may obtain personal records from the insurance institution after submission of a written request with proper identification. Cal. Insurance Code, Article 6.6, sec. 791.

Medical Records

Patients are entitled to access their medical records upon written request upon payment of reasonable costs incurred in making such records available. A minor's request to access medical information is limited to the type for which the minor is lawfully authorized to consent. Medical records can not be withheld on account of unpaid bills. Cal. Health and Safety Code 123100.

Disclosure of medical records to third parties is prohibited without written consent of the patient. Medical records may be compelled by court order or by an administrative agency. Cal. Civil Code 56.

A patient's name, the general nature of the injury and the condition of the patient are not considered medical records for the purposes of confidentiality. Cal. Civil Code 56.16.

Reporting and disclosure requirements are given flexibility in order to provide for the compilation of data with respect to the incidence of cancer for reasons of public health. Cal. Health and Safety Code 103885.

Medical Records - HIV Testing

Negligent or willful disclosure of HIV test results to third parties is expressly prohibited. Civil penalties, not to exceed $1,000, shall be levied against those that participate in such conduct. Cal. Health and Safety Code 199.

Miscellaneous

There may be no "two-way mirrors" in rest rooms, locker rooms, showers, fitting rooms, or hotel rooms except for treatment facilities and educational institutions. Cal. Penal Code 653n.

County welfare departments and district attorneys are prohibited from asking applicants to Aid for Families with Dependent Children about paternity "where paternity is not logically an issue." Cal. Wel. & Inst. Code 11477.

Businesses that provide bookkeeping services may not disclose business or personal information without written consent, except under legal process; for tax enforcement or to aid a criminal investigation. Cal. Civil Code 1799.

Police Records

Complaints, investigations or intelligence records produced by state, local or federal enforcement and police agencies are protected materials not subject to public disclosure.

Police shall provide copies of police reports (description of witnesses, parties, date, time and type of activity) to the victim(s) of a police related incident. Such reports also shall be made available to authorized representatives, such as insurance companies to which a claim has been made. Records which may endanger the safety and health of a witness, reveal the state agencies' deliberative processes or threaten the completion of an investigation are not disclosed. Cal. Government Code 6254(f), Exemption of particular records.

Public Records Act

Library records are exempt under the state public records law. Cal. Govt. Code 6254(j).

"Personnel, medical or similar files" may be withheld if disclosure "would constitute an unwarranted invasion of personal privacy." (68 Ops. AG 73 (1985))

Data submitted confidentially or made secret by law may be withheld. Cal. Govt. Code 6254(d). Other categories of data exempt from disclosure are listed in section 6254.

School Records

Schools must notify in writing parents of their rights and responsibilities with respect to school records. Records may be changed, amended or altered upon a parent's written request according to the accuracy or competence of those records. Information cannot be released to private profit making entities other than employers, prospective employers and representatives of the news media. Cal. Education Code 49061.

Sex Offenders, Registration

Convicted sexual offenders are required to register with local law enforcement or University security officials wherever domiciled in the State. Registration applies in cases of change of address as well. Cal. Penal Code 290, Duty to Register.

Stalking

Stalking includes the willful, malicious and repeated harassment or following of another person which includes threats to that person's safety or the safety of their family. Special victim notifications requirements apply to the release of convicted stalkers. Stalking can include tortious conduct. Employers also may protect stalked employees through the adoption of temporary restraining orders on behalf of the employee. Cal. Penal Code 646.9.

Taxation and Revenue

Employees or agents of the Tax Board may not disclose or make known in any manner information as to the amount of income or any particulars set forth or enclosed therein a tax return. Such information may be disclosed in accordance with proper judicial order in cases or actions for the enforcement or prosecution of tax violations. Returns will be made available to inspection by the Attorney General or other legal representatives of the state. Income statements may be made available to the State Department of Social Services. Likewise, the California Student Aid Commission may also share information with the Tax Board. Cal. Administration of Tax, Article 2, sec. 19281.

Telephone Harassment

The commission of threatening, harassing or obscene phone calls is a misdemeanor. Penalties increase with the frequency of such calls and the location of the victim when receiving calls (i.e. workplace). Relief may include temporary restraining orders, injunctions or other court orders. Cal. Penal Code 653m, Telephone calls with intent to annoy. See also Cal. Penal Code section 422-422.1.

Telephone Records

No information regarding calling patterns, credit or financial information, subscriber services, or demographic data shall be disclosed by any telephone company without first obtaining the residential subscriber's consent. Exceptions include directory assistance services, postal zip codes, collection and billing materials, documents made available pursuant to FCC reporting requirements and the names and addresses of lifeline customers for the purpose of low-income assistance outreach. Cal. PUC, Article 3, Sec. 2891, Customer Right to Privacy.

Telephone companies may not include unlisted "telephone access numbers" on lists they rent. Cal. Pub. Util. Code 2891.1 (Smith, 1992, 1994)

Telephone Solicitation

State law outlaws automatic recording devices in telephone sales, except with consent and a live operator introducing the message. Cal. Pub. Util. Code 2873 and 2874.

"Caller ID," a service that displays the incoming telephone number on a person's telephone, may be offered by telephone companies only if they also offer a free service whereby callers may block the display. Cal. Pub. Util. Code 2893.

Telephone companies may not include unlisted "telephone access numbers" on lists they rent. Nor may they disclose certain subscriber information. Cal. Pub. Util. Code 2891.1

It is unlawful to disseminate an unsolicited prerecorded message by telephone without an unrecorded, natural voice first informing the person answering the telephone of the name of the caller or organization being represented and without obtaining the consent of that person to listen to the prerecorded message. This does not apply to a message disseminated to a business associate, customer, or other person having an established relationship with the person or organization making the call.

No person shall connect any automatic dialing-announcing device to a telephone line without making a written application to the telephone corporation within whose service area this device will be used. Cal Pub Util Code 2875. Automatic dialing-announcing devices may be used to place calls over telephone lines only pursuant to a prior agreement between the persons involved. Cal Pub Util Code 2873. No person shall operate an automatic dialing-announcing device in this state to place a call that is received by a telephone in this state during the hours between 9pm and 9am, California time. Some exceptions include educational institutions, an exempt organization under the Bank and Corporation Tax Law, public utilities, law enforcement agencies and petroleum refineries. Cal. Pub Util Code 2872. Any person violating this article is guilty of a civil offense and is subject to penalties. Cal Pub. Util Code 2876. (Smith 1992, 1994)

Video Store Lists

Personal information, including sales and rental information, may not be disclosed by video rental stores, except by consent; by court order or search warrant or civil discovery; or for tax administration or to law enforcement. Individuals' names and addresses only may be disclosed for use in commercial mailing lists. Cal. Civ. Code 1799.3. (Smith, 1992, 1994)

Voter Registration Records

Certain parts of the record are confidential, such as the residential address, telephone number, occupation, precinct number and prior registration information. Exceptions include disclosure to political parties, committees or candidates for use as journalistic, scholarly, governmental or political purposes. Cal. Elections Code 2188, 2194.

Wiretapping

Eavesdropping or the recording of privileged communications (i.e. physician-patient, attorney-client, religious advisor-worshiper) without the permission of all the parties is unlawful.

Any person not a party to a telephonic communications who willfully discloses the contents of the communication is punishable by imprisonment and/or by fine. Opening and reading some else's telegraphic communication with the intent to detain the usage of the person entitled to receive such message is punishable.

Interception and recording of cellular telephone conversations is unlawful behavior subject to fines and imprisonment. This applies equally to cordless phones. Manufacture, sale or possession of recording devices primarily or exclusively designed for the unauthorized interception of cellular or cordless phone calls is strictly prohibited. Cal. Penal Code 631-637.