On December 10, 2020, the California Attorney General (“AG”) proposed additional edits to the CCPA Regulations. These changes both build upon the updates that were proposed on October 12, 2020, and add some new content. All of the newly proposed changes relate to the right to opt-out of the sale of personal information. For a summary of all changes proposed on October 12, 2020, please see our post here.
*This article originally appeared the Daily Journal on November 20, 2020
The passage of Proposition 24, the California Privacy Rights Act (CPRA), amends 2018’s California Consumer Privacy Act (CCPA) by creating the nation’s first data privacy enforcement agency and expanding consumers’ rights with respect to their personal information. In this article, Sheri Porath Rockwell and Alexis Miller Buese highlight some of the significant features of the CPRA that are likely to impact consumers and businesses alike.
The results are in, and California voters have approved the California Privacy Rights Act (CPRA) which was listed on the ballot as Proposition 24. The law, most of which does not go into effect until January 1, 2023, will substantially overhaul and amend the California Consumer Privacy Act (CCPA) which went into effect just this year, on January 1, 2020, with final regulations issued just a few months ago, on August 14, 2020. And indeed, CCPA obligations continue to evolve, with proposed amendments to the regulations proposed by the Attorney General’s Office mid-October 2020.
New privacy developments continue to come from California, with a new proposed modifications to CCPA regulations, continuing CCPA litigation, and voting beginning on Proposition 24, an initiative to overhaul the CCPA. We provide insight into each below.
Proposed Third Modified CCPA Regulations
In mid-October 2020, just a few months after the “finalization” of the regulations, the California Office of Attorney General proposed a handful of proposed modifications to regulations implementing the California Consumer Privacy Act. The abbreviated comment period for the proposed modifications closed on October 28th, which means the Attorney General must now review the comments, draft a response, and either further modify the proposed regulations or submit them in their current form for approval by the California Office of Administrative Law (OAL).
California’s Governor Gavin Newsom recently signed into law two bills to amend the California Consumer Privacy Act (“CCPA”). He also vetoed two other consumer privacy bills based on concerns about potential conflicts with existing state and federal law. Collectively, these four bills represented the most significant privacy legislation that came out of the California Legislature’s 2019-20 term, which came to a close on September 30th.
Only one of the two new CCPA amendments, AB713, includes substantive changes to the law. It streamlines the CCPA’s health information exception and imposes new obligations on CCPA businesses and others that handle deidentified patient information.
The other CCPA amendment, AB1281, simply extends the CCPA’s employee and B2B exemptions to January 1, 2022 if voters fail to pass Proposition 24 (CPRA or CCPA 2.0) in November. Those exemptions are currently set to expire on December 31st of this year.
Newsom also vetoed two consumer privacy bills despite expressing support for the goals of each. SB980 would have expanded consumer rights with respect to genetic information collected by direct-to-consumer genetic testing companies. Newsom’s veto was motivated by concerns that the law could have “unintended consequences” for the operation of the state’s communicable disease reporting requirements, including those applicable to COVID-19. The other bill, AB1138, would have imposed additional parental consent requirements on social media network operators. Newsom vetoed it to avoid potentially overlapping state and federal compliance obligations, citing parallels between the bill and federal regulations under the Children’s Online Privacy Protection Act (“COPPA”).
Here we outline the significant features of each of the new CCPA amendments.
*This article was adapted from “Global Overview,” appearing in The Privacy, Data Protection and Cybersecurity Law Review (7th Ed. 2020)(Editor Alan Charles Raul), published by Law Business Research Ltd., and first published by the International Association of Privacy Professionals Privacy Perspectives series on September 28, 2020.
Privacy, like everything else in 2020, was dominated by the COVID-19 pandemic. Employers and governments have been required to consider privacy in adjusting workplace practices to account for who has a fever and other symptoms, who has traveled where, who has come into contact with whom, and what community members have tested positive or been exposed.
As a result of all this need for tracking and tracing, governments and citizens alike have recognized the inevitable trade-offs between exclusive focus on privacy versus exclusive focus on public health and safety.
On August 14, 2020, California’s Office of Administrative Law approved and filed with the California Secretary of State final regulations implementing the California Consumer Privacy Act. The regulations, drafted by California’s Office of the Attorney General (OAG), went through three rounds of changes during the rulemaking process and were finally enacted more than two years after the CCPA was signed into law. The CCPA is a landmark state privacy law that grants consumers new privacy rights, and requires businesses to enhance disclosures about their data practices and facilitate consumer privacy rights. (more…)
The California Privacy Rights Act (CPRA), a proposed initiative to codify far-reaching amendments to the California Consumer Privacy Act (CCPA) and sometimes referred to as “CCPA 2.0”, is back in play and heading to the November 2020 ballot. A series of dramatic procedural twists and turns culminated with initiative backers successfully obtaining a writ of mandate directing the Secretary of State to direct counties to verify signatures for the ballot proposal by the June 25th Constitutional deadline. This verification involved each county conducting a random sample of the more than 800,000 signatures that proponents had submitted to place the initiative on the ballot.
Before the California court’s ruling, observers were skeptical that signatures could be verified before the deadline. Initiative proponents were almost two weeks behind the recommended schedule when they delivered signatures to be verified by California’s 58 counties. This meant counties had until June 26th to verify signatures — a day after the June 25th Constitutional deadline. Experience with other initiatives this year had shown that several large counties were waiting until the deadline to complete verifications, so proponents petitioned the court to push the deadline up by a day in order to meet the Constitutional deadline. The court agreed to do so, finding good cause existed to force counties to complete verifications a day early. And, as it happened, the extra time was not needed, as counties finished the count two days ahead of their initial deadline.
On June 1, 2020, California’s Office of the Attorney General (“AG”) moved one step closer to finalizing the California Consumer Privacy Act (“CCPA”) regulations when the AG submitted proposed final regulations for review and approval by California’s Office of Administrative Law (“OAL”). This submission signals the end of the AG’s CCPA regulation drafting process that began in early 2019. If the OAL approves the proposed final regulations, they will be finalized and enforceable by the AG, subject to any legal challenges.
On April 30, 2020, four Republican Senators announced plans to introduce the COVID-19 Consumer Data Protection Act. The four Senators, John Thune (R-S.D), Roger Wicker (R-Miss.), Jerry Moran (R-Kan.), and Marsha Blackburn (R-Tenn.), are all Members of the Commerce Committee, with Wicker the Committee’s chair.
According to the April 30 Senate press release regarding the COVID-19 Consumer Data Protection Act, the legislation would “provide all Americans with more transparency, choice, and control over the collection and use of their personal health, geolocation, and proximity data” for data processing related to fighting the COVID-19 pandemic. The press release also states that the bill would “hold businesses accountable to consumers if they use personal data to fight the COVID-19 pandemic.” Under the bill, covered purposes include “(1) collecting, processing, or transferring the covered data of an individual to track the spread, signs, or symptoms of COVID-19; (2) collecting, processing, or transferring the covered data of an individual to measure compliance with social distancing guidelines or other requirements related to COVID-19 that are required by federal, state, or local government order; (3) collecting, processing, or transferring the covered data of an individual to conduct contact tracing for COVID-19 cases.” (more…)