Voters in California approved Proposition 24, which updates the California Consumer Privacy Act (“CCPA”) just a few months after the landmark regulations implementing the privacy law went into effect.  As we have previously explained, the California Privacy Rights Act (“CPRA”) will change the existing CCPA requirements in a number of ways, including limiting the sharing of personal information for cross-context behavioral advertising and the use of “sensitive” personal information, as well as creating a new correction right.  It also establishes a new agency to enforce California privacy law.  The key provisions of the bill will not go into effect until January 1, 2023, providing much-needed time to clarify the details and for businesses to adjust their CCPA compliance approaches to account for the additional requirements.

Continue Reading Californians Approve Ballot Initiative Modifying the California Consumer Privacy Act

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 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 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

The California Attorney General has released both clean and redlined versions of proposed modifications to the draft implementing regulations for the California Consumer Privacy Act (“CCPA”). Below is a high-level overview of some key changes:

  1. Service Providers. The modified draft restricts a service provider from processing the personal information it receives from a business except

While all eyes are on California following the implementation of the California Consumer Privacy Act (“CCPA”) earlier this month and the start of enforcement later this year, other states are off to the privacy races already.  On Monday, Washington State became the latest entrant with the introduction of a revised Washington Privacy Act.

From the proposals introduced so far this year in Washington, Virginia, New Hampshire, Illinois, and Nebraska, it is clear that states will continue to follow last year’s trend of varied approaches to state privacy legislation. While there are variations in state proposals, many of the bills seem to fall into three molds.

CCPA Copycats

The first category of proposals closely track the CCPA.  Some of these bills, like last year’s Mississippi Consumer Privacy Act, are essentially identical to the CCPA or have minor changes.  These bills may lack changes made by the September amendments to the CCPA.  For example, the CCPA originally regulated 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 September amendments also eliminated limitations on the scope of publicly available information and added exceptions for employment or business-to-business related data.  These differences were notable in the New Hampshire legislation recently introduced, which was otherwise in line with the CCPA.
Continue Reading State Privacy Trends to Watch in 2020

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

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