California Consumer Privacy Act (CCPA)

While some state legislators are still putting away their holiday decorations, New Hampshire legislators introduced new data privacy legislation, New Hampshire House Bill 1680.  The legislation is similar to the California Consumer Privacy Act (which we’ve written extensively about before, including here and here).  It grants consumers access, portability, transparency, non-discrimination, deletion, and opt-out-of-sale rights (or opt-into-sale rights for minor consumers) with respect to their personal information.

Notably, NH HB 1680 does not reflect several of the amendments which partially mitigated the constitutional and operational concerns raised by the CCPA.  For example, it regulates as personal information all information  “capable” of being associated with a consumer or household, whereas California’s definition is now tied to information “reasonably capable” of being associated with a consumer or household.  The NH legislation retains limitations on the scope of publicly available information that is excluded from the definition of personal information.  By way of other examples, NH HB 1680 does not provide exceptions for employment or business-to-business related data.
Continue Reading State Legislatures Are Off to the Privacy Races, With New Hampshire in the Lead

Heading into the new year, California Consumer Privacy Act (“CCPA”) readiness remains top of mind for many businesses, especially as continued developments, such as the California Attorney General’s forthcoming implementing regulations, may implicate compliance efforts.  State legislation will likely move forward in 2020.  At the same time, however, companies should not lose sight of legislative proposals at the federal level, which have the potential to reshape the privacy landscape in the United States and even preempt state laws such as the CCPA.  The question of whether a federal privacy bill can pass in 2020 remains an open one.  But regardless of whether a bill will actually pass, the legislative proposals that are emerging this year likely will shape the contours of federal legislation that could move toward becoming law.

Although the issues of preemption and a private right of action dominated the federal privacy conversation last year, four legislative trends emerged in 2019 that also may become key components of a federal privacy framework:
Continue Reading Four Federal Privacy Trends to Watch in 2020

With less than two months until it goes into effect, many practitioners are focused on bringing their programs into compliance with the California Consumer Protection Act (“CCPA”) by January 1, 2020.  But the rapid pace of privacy legal developments could continue next year.  This past year, five states established studies or task forces to study privacy laws and report back to the legislature before their next session begins. Bills in Washington and Illinois passed one legislative chamber before failing, and their proponents have promised a renewed effort in 2020.

This is the first of a series of blog posts on what states other than California were considering to help you anticipate and prepare for 2020.  In total, at least eighteen states considered comprehensive privacy bills this year.  This initial blog post — on the heels of Halloween last week — focuses on some of those that are the scariest: bills in New York, Massachusetts, and Maryland.
Continue Reading State Privacy Laws Have the Potential to Haunt Industry

As the effective date of the California Consumer Privacy Act looms closer, companies are grappling with the significance of the law and its definitions. One defined term in particular, “sale,” has sparked heated debate between industry and consumer advocates, and even within the legal profession. While much has been said about this term, more needs

Last week, after months of negotiation and speculation, the California legislature passed bills amending the California Consumer Privacy Act (“CCPA”).  This marked the last round of CCPA amendments before the legislature adjourned for the year—and before the CCPA takes effect on January 1, 2020.  California Governor Gavin Newsom has until October 13 to sign the bills into law.  Separately, the Attorney General’s office is expected to release a draft of proposed CCPA regulations for public input later this Fall.

  • Exemption for employees and job applicants: AB 25 (Chau) generally exempts from the CCPA—for one year—personal information collected from job applicants, employees, owners, directors, officers, medical staff members, or contractors, as well as their emergency contacts and their beneficiaries.  However, employers must provide these individuals with general notice of the types of personal information collected about them and the purposes for which the information is used.  Employers may be liable if certain types of unredacted or unencrypted personal information are breached due to unreasonable data security.
  • Exemption for business customers and other technical corrections: AB 1355 (Chau) exempts from the CCPA—also for one year—personal information reflecting a communication or transaction with a natural person who is acting as an employee, owner, director, officer or contractor of another company or legal entity in most circumstances.  This language generally creates an exemption for personal information about business customers.  The bill clarifies that the CCPA’s private right of action does not apply if personal information is either encrypted or redacted.  The bill also makes certain technical corrections, including revising the exemption for activities involving consumer reports that are regulated under the Fair Credit Reporting Act and clarifying that de-identified or aggregate consumer information is excluded from the definition of “personal information.”
  • Definitions of “personal information” and “publicly available information:” AB 874 (Irwin) includes several helpful clarifications with respect to the scope of “personal information” regulated under the statute.  Previously, “personal information” was defined to include all information that “identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household.”  The amended definition of “personal information” clarifies that information must be “reasonably capable of being associated with” a particular consumer or household.  Separately, the bill clarifies that “publicly available information” means information that is lawfully made available from federal, state, or local records, regardless of whether the data is used for a purpose that is compatible with the purpose for which the data was made publicly available.  Further, the bill revises the definition of “personal information” to clarify that it does not include de-identified or aggregate information.
  • Required methods for receiving consumer requests: The CCPA provides that a covered business is required to make available to consumers two or more reasonably accessible methods for submitting requests under the CCPA, including, at a minimum, a toll-free telephone number, and, if the business maintains an internet website, a website address.  AB 1564 (Berman) would amend this requirement to provide that a business which (1) operates exclusively online and (2) has a direct relationship with the customer from whom it collects personal information needs to provide only an email address.  If the business also maintains a website, the bill requires the business to make the website available to consumers to submit requests.  Finally, the bill expressly permits a business to require a consumer who maintains an account with the business to submit a request through the account.
  • Exemption for vehicle warranty/recall purposes: AB 1146 (Berman) exempts, from the CCPA’s right to opt out and right to delete, vehicle or owner information retained or shared between a new motor vehicle dealer and the vehicle’s manufacturer for the purposes of vehicle repair covered by a warranty or recall.


Continue Reading California Legislature Passes CCPA Amendments and Privacy Bills

At the Black Hat conference in Las Vegas last week, a security researcher presented his research on using access rights available under the GDPR for identity theft purposes (slides available here; whitepaper available here).  Specifically, the researcher “attempted to steal as much information as possible” about his fiancé by submitting GDPR access requests

On May 29, 2019, the Governor of Nevada signed into law Senate Bill 220 (“SB 220”), an act relating to Internet privacy and amending Nevada’s existing law requiring websites and online services to post a privacy notice.  In short, Nevada’s law will require operators of Internet websites and online services to follow a consumer’s direction not to sell his or her personal data.  The Nevada law differs from the California Consumer Privacy Act (“CCPA”) enacted last year in notable ways, and could signal the coming of a patchwork of fifty-plus different data privacy standards across the country, much like the state data breach notification laws.

Unlike the CCPA (which applies to both online and offline business operations), SB 220 applies only to operators of Internet websites and online services, and defines “operators” as people who (1) own or operate an Internet website or online service for commercial purposes; (2) collect and maintain covered information from consumers who reside in Nevada and use or visit the Internet website or online service; and (3) engage in any activity that constitutes a sufficient nexus with Nevada to satisfy the requirements of the United States Constitution.  Such activity includes purposefully directing activities toward Nevada, consummating a transaction with Nevada or a Nevada resident, or purposefully taking advantage of the privilege of conducting activity in Nevada.  SB 220 does not apply to the following entities: an entity that is regulated by the Gramm-Leach-Bliley Act or the Health Insurance Portability and Accountability Act; a service provider to an operator; or a manufacturer of a motor vehicle or a person who services a motor vehicle who processes covered information that is either (1) retrieved from a motor vehicle in connection with a technology or service related to the motor vehicle, or (2) provided by a consumer in connection with a subscription or registration for a technology or service related to the motor vehicle.
Continue Reading Nevada’s New Consumer Privacy Law Departs Significantly From The California CCPA

At a February 27, 2019 hearing on “Privacy Principles for a Federal Data Privacy Framework in the United States,” Republican and Democratic members of the Senate Commerce, Science, & Transportation Committee offered different perspectives on whether new federal privacy legislation should preempt state privacy laws.

Continue Reading Republicans, Democrats Offer Different Views on Preemption During Senate Privacy Hearing