Yesterday, the California Attorney General (“AG”) proposed a fourth set of modifications to the California Consumer Privacy Act regulations. These modifications build on the third set of proposed regulations released by the AG in October, which we discussed here. Interested parties have until December 28 to submit comments in response.

The proposed modifications are the most recent chapter in a lengthy rulemaking process, in which we have seen significant variation over the mechanics of implementing the CCPA. The most recent proposed changes include:

  • Requiring businesses that sell personal information collected offline to inform consumers through an offline method of their right to opt out and instructions for exercising that right.
  • Creating an opt-out button, which may be used in addition to posting the notice of the right to opt out but not in lieu of that notice or a “Do Not Sell My Personal Information” link. If a business posts the “Do Not Sell My Personal Information” link and chooses to post the button as well, the opt-out button must appear to the left of the link (example below) and must link to the location to which the consumer is directed after clicking on the link.

  • Requiring a business’s methods for submitting requests to opt-out to be easy for consumers to execute and require minimal steps, and prohibiting businesses from using a method that is either designed with the purpose or has the substantial effect of subverting or impairing a consumer’s opt-out choice. The regulations contain examples of such prohibited methods.
  • Clarifying what businesses may require of authorized agents who are acting on behalf of consumers and of consumers who are choosing to use authorized agents.
  • Explaining that a business that is subject to either the regulations governing consumers under 13 years of age or those governing consumers between the ages of 13-15 must provide a description of its opt-in process in its privacy policy.

Notably, California will continue to engage in rulemaking procedures next year. The recently passed California Privacy Rights Act (also known as proposition 24) requires an extensive rulemaking process to address a number of topics, including the notices required by the act, the use of dark patterns in the context of consumers’ opt-out rights, and an authorized agent’s ability to exercise a consumer’s rights.

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Photo of Lindsey Tonsager Lindsey Tonsager

Lindsey Tonsager helps national and multinational clients in a broad range of industries anticipate and effectively evaluate legal and reputational risks under federal and state data privacy and communications laws.

In addition to assisting clients engage strategically with the Federal Trade Commission, the…

Lindsey Tonsager helps national and multinational clients in a broad range of industries anticipate and effectively evaluate legal and reputational risks under federal and state data privacy and communications laws.

In addition to assisting clients engage strategically with the Federal Trade Commission, the U.S. Congress, and other federal and state regulators on a proactive basis, she has experience helping clients respond to informal investigations and enforcement actions, including by self-regulatory bodies such as the Digital Advertising Alliance and Children’s Advertising Review Unit.

Ms. Tonsager’s practice focuses on helping clients launch new products and services that implicate the laws governing the use of endorsements and testimonials in advertising and social media, the collection of personal information from children and students online, behavioral advertising, e-mail marketing, artificial intelligence the processing of “big data” in the Internet of Things, spectrum policy, online accessibility, compulsory copyright licensing, telecommunications and new technologies.

Ms. Tonsager also conducts privacy and data security diligence in complex corporate transactions and negotiates agreements with third-party service providers to ensure that robust protections are in place to avoid unauthorized access, use, or disclosure of customer data and other types of confidential information. She regularly assists clients in developing clear privacy disclosures and policies―including website and mobile app disclosures, terms of use, and internal social media and privacy-by-design programs.

Photo of Libbie Canter Libbie Canter

Libbie Canter represents a wide variety of multinational companies on privacy, cyber security, and technology transaction issues, including helping clients with their most complex privacy challenges and the development of governance frameworks and processes to comply with global privacy laws. She routinely supports…

Libbie Canter represents a wide variety of multinational companies on privacy, cyber security, and technology transaction issues, including helping clients with their most complex privacy challenges and the development of governance frameworks and processes to comply with global privacy laws. She routinely supports clients on their efforts to launch new products and services involving emerging technologies, and she has assisted dozens of clients with their efforts to prepare for and comply with federal and state privacy laws, including the California Consumer Privacy Act and California Privacy Rights Act.

Libbie represents clients across industries, but she also has deep expertise in advising clients in highly-regulated sectors, including financial services and digital health companies. She counsels these companies — and their technology and advertising partners — on how to address legacy regulatory issues and the cutting edge issues that have emerged with industry innovations and data collaborations.