California Consumer Privacy Act (CCPA)

On Monday, the California Attorney General (“AG”) proposed a third set of modifications to the recently enacted California Consumer Privacy Act (“CCPA”) regulations.  Interested parties have until October 28 to file comments in response.

These proposed modifications are the latest effort in an extensive rulemaking process that has lasted more than a year.  Most recently, on August 14, the California Office of Administrative Law (“OAL”) formally approved the AG’s initial set of CCPA regulations, which went into effect immediately.  In approving the regulations, the OAL deleted five provisions that had been included in the version the AG submitted in June, but indicated that the AG could revise and resubmit those subsections for approval in the future.  The latest modifications are largely focused on reviving several of these last-minute removals.
Continue Reading California Attorney General Releases New Proposed Modifications to California Consumer Privacy Act Regulations

On September 22, 2020, the Federal Trade Commission (“FTC”) hosted “Data to Go,” a virtual workshop on data portability. The workshop convened experts from civil society, academia, and industry to discuss the potential risks as well as consumer and competition benefits of data portability, as well as issues and best practices related to its implementation in legislative and industry-led initiatives. The discussions emphasized five key themes regarding data portability efforts in the U.S. and globally.
Continue Reading Five Key Themes from the FTC’s Data Portability Workshop

On September 1, the California legislature passed AB 713, a bill that creates a new healthcare-related exemption under the California Consumer Privacy Act of 2018 (“CCPA”).  All provisions of the bill will take effect immediately to prevent the CCPA from “negatively impact[ing] certain health-related information and research,” except for the required contractual provisions described below.

Under the new exemption, information is not subject to the CCPA’s obligations if it meets both of the following requirements:
Continue Reading California Legislature Adopts CCPA Exemption for Information Deidentified in Accordance with the HIPAA Privacy Rule

The California legislature has approved a contingency plan to ensure that certain California Consumer Privacy Act (“CCPA”) exemptions will be extended beyond December 2020.  Regardless of what happens with the November ballot initiative, businesses will have at least another year before they must comply with all of the CCPA’s provisions…
Continue Reading California Legislature Extends CCPA’s Employment and Business-to-Business Exemptions

Two developments in the past week will likely have a significant impact on businesses subject to the California Consumer Privacy Act (“CCPA”): the long-awaited CCPA regulations have been finalized and put into immediate effect with modifications, while at the same time it seems increasingly likely that the exemptions for employees’ and business-to-business contacts’ data will be extended beyond January 2021.
Continue Reading Final CCPA Regulations Take Effect With Modification; Extension of Employee and Business-to-Business Exemptions Advances

Today, the California Senate Judiciary Committee will consider AB 1281, which would extend the California Consumer Privacy Act’s (CCPA) business-to-business and employment exemptions until January 1, 2022, in the event that the pending ballot initiative—which also would extend the exemptions—does not pass this November.

In addition, the Committee will consider two contact tracing measures, AB 660 (Levin) and AB 1782 (Chau).  Both bills could impact private employer and business contact tracing efforts:

  • AB 660 would prohibit use or disclosure of data collected for purposes of contact tracing for any other purposes. It generally would require deletion of such data within 60 days.
  • AB 1782 would require businesses that offer “technology-assisted contact tracing” to satisfy certain requirements, including providing individuals with the opportunity to revoke consent to collection of their personal information and rights to access, correct, and delete personal information. It also requires covered businesses to provide consumers certain disclosures, except where research or other exceptions apply, to delete personal information within 60 days from the time of collection, to maintain security safeguards, and to make available public reporting of the number of individuals whose information has been collected, amongst other content.

Finally, we also are watching SB 980, which passed out of the Senate on June 25, 2020 and is now under consideration by the Assembly.  SB 980 was scheduled for hearing before the Assembly’s Privacy and Consumer Protection Committee on July 28, although that hearing was postponed.  If enacted, the bill would impose certain additional privacy obligations on direct-to-consumer genetic testing companies that go beyond the CCPA, including requiring:
Continue Reading California Legislature Advances Privacy Legislation

The California Attorney General (“AG”) has submitted his proposed final CCPA regulations to the California Office of Administrative Law (“OAL”).

The proposed final rules substantively are the same as the draft rules released for public notice on March 11, which we summarized previously here.   However, the AG’s responses to comments and Final Statements of Reasons accompanying the final rulemaking package provide guidance on the AG’s position on key ambiguities under the CCPA.   For example, in declining to clarify whether the use of website cookies shared with third parties is a “sale,” the AG emphasized that, “[w]hether the particular situations raised in the comments constitutes a “sale” raises specific legal questions that would require a fact-specific determination, including whether or not there was monetary or other valuable consideration involved, the consumer directed the business to intentionally disclose the personal information, and whether the parties involved were service providers.”  The response thus is consistent with a determination that there is no “sale” of personal information based on specific facts and circumstances.  Other commentary provides guidance on such topics as the AG’s understanding of financial incentive provisions, obligations to respond to access and deletion requests, and when the law is applicable.
Continue Reading CCPA Update: Final Rulemaking Package Submitted to OAL

 On May 4th, 2020, Californians for Consumer Privacy confirmed that they had submitted hundreds of thousands more signatures than required to qualify for a ballot initiative. It is still yet unknown whether the Attorney General will qualify the ballot for the November 2020 election, let alone whether it would pass. If the initiative passes, it will be noteworthy for a number of reasons.
Continue Reading CCPA 2.0 And Where We Go From Here