As we have written in blog posts over the past year, the California Consumer Privacy Act (CCPA) is the most comprehensive state privacy law to date. While there are a number of conditions and exemptions in play, the law goes into effect on Jan. 1, 2020, and will be enforced starting in July 2020.
In Taft’s Privacy and Data Security Insight, we have been writing regularly on the California Consumer Privacy Act and what to expect as it goes into effect in January. Like many new privacy laws, panic begins to set in about how to actually address the new approach towards consumer privacy (remember the great GDPR panic of May 25, 2018?) In our last blog, we told you about the final amendments to the CCPA and how the language of the law will finally read. The next step to the implementation of the United States’ most comprehensive state privacy law is the issuance of the Attorney General’s Proposed Regulations, a Notice of Proposed Rulemaking Action, and an Initial Statement of Reasons. These draft documents attempt to answer the question burning in the minds of lawyers and businesses around the country: HOW am I supposed to actually do this? With these draft documents finally out (awaiting public comments until December), we have what we are to understand as the AG’s guidance to businesses on how to comply with the provisions of the CCPA, including, but not limited to:
- How to properly notify consumers;
- How to handle consumer requests;
- How to verify the identity of consumers;
- Collecting personal information of minors; and
- How the value of consumer data is calculated.
The California Consumer Privacy Act (“CCPA”) will go into effect on January 1, 2020.
As we have discussed before, the California Consumer Privacy Act (“CCPA”) is forcing entities doing business in California to critically examine their information collection and sharing practices. Although California signed it into law last year, the CCPA does not go into effect until January 1, 2020. Last month, the California Legislature passed six amendments to the CCPA that will affect how businesses operate, while also affording California residents their newfound rights.
I. Limiting Personal information & Publicly Available Information (AB-874).
The CCPA, before this amendment, defined “personal information” as any information that “is capable of being associated with… a particular consumer or household.” This amendment changes that language to any information that “is reasonably capable of being associated with… a particular consumer or household.” This is an attempt to clarify and limit the scope of personal information and what information is “capable of being associated with” a consumer. Much like other areas of the law, we expect contentious debate over what is “reasonable” when anticipating association with a particular consumer or household. Additionally, the definition of “personal information” will now exclude de-identified or aggregated consumer information. This amendment also removes restricting language on what information is treated as “publicly available” and simply states that it is information made available by federal, state, or local governments.
As the Jan. 1, 2020 operational date for the California Consumer Privacy Act (“CCPA”) approaches, the balance between consumer rights and company responsibility continues to be vigorously debated. As this blog predicted when we discussed the first set of amendments to the CCPA, negotiations and amendments to the CCPA continue. We review the most recent Feb. 22, 2019 consumer friendly amendment now—Senate Bill 561 (“SB 561”).
Last week, I had the pleasure of speaking at the 11th Annual Northern Kentucky University Cybersecurity Symposium. This year, over three hundred attendees ranging from IT and security professionals, to corporate executives and attorneys, gathered for workshops and presentations relating to nascent privacy and security issues. During my presentation, “So Goes California, So Goes the Nation,” I discussed the California Consumer Privacy Act (“CCPA”), and the California legislature’s recent amendments to the CCPA (“the Amendments”), which were signed into law by Governor Brown on Sept. 28, 2018.
As I explained during my presentation, the CCPA was fast-tracked through the California legislature in an attempt to preempt a state-wide voter initiative that would enact regulations on California businesses that collect personal information, but would have been immune from amendment absent a second state-wide voter initiative. Because the California legislature drafted and passed the CCPA in a week, a number of businesses have identified vague and confusing aspects of the law. Therefore, just eight weeks after passing the CCPA, the California legislature has already passed the first set of Amendments. Here are the top takeaways from my talk at NKU:
- Private Right of Action & Civil Penalties: The CCPA creates a private right of action for a California citizen only when a company has suffered a data breach that is the result of the company’s failure to implement reasonable security measures. The CCPA requires the individual to contact the company prior to initiating an action, and allows the company thirty (30) days to cure the violation. The California Attorney General can also issue civil penalties of up to $2,500 per violation of the CCPA, and up to $7,500 per each intentional violation.
- Role of California Attorney General: The Amendments clarified that although the CCPA takes effect on Jan. 1, 2020, the California Attorney General can wait until July 1, 2020 to promulgate final regulations. Further, the California AG cannot file enforcement actions under the CCPA until the earlier of July 1, 2020, or six months after the date of the final regulations. Accordingly, businesses regulated under the CCPA will have limited time to align their compliance programs before potential enforcement. Additionally, the original CCPA required any private right of action suits or class actions to be sent to the California AG’s office to determine whether a potential violation existed. The Amendments removed this requirement to avoid forcing the AG’s office into the role of a litigation gatekeeper.
- Federal Privacy Regulations Exemptions: Originally, the CCPA contained exemptions for compliance for information already subject to federal privacy laws, such as Gramm-Leach-Bliley Act, Driver’s Privacy Protection Act or Health Information Portability and Accountability Act, whenever the CCPA conflicted with a requirement of the federal law. Now, under the amendments, that exemption simply applies across the board regardless of whether or not the CCPA conflicts with these laws. However, companies need to be aware that being subject to a federal regulation does not exempt all data being collected from the new CCPA. If a business collects data outside the federal regulations, then that data will still be regulated by the CCPA.
Rebekah Mackey, Taft summer associate, contributed to this article.
Just months after the European Union’s General Data Protection Regulation, or “GDPR” changed the landscape of data privacy around the globe, California reaffirmed its position as the United States pioneer of consumer-friendly data privacy protections with the state legislature’s passage of Assembly Bill No. 375.
The California Consumer Privacy Act (“Act”) was originally a ballot initiative to be voted on by California residents in November, but the fate of the policy changed course rapidly when AB 375 passed within one week of being introduced in the state’s legislature. Here are some of the key provisions of which businesses and consumers should be aware when the law goes into effect Jan. 1, 2020.