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U.S. State Law

26 June 2020

The Return of the Mac: CCPA 2.0 Qualifies for California’s November 2020 Ballot and Could Usher In Sweeping Changes to CCPA

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.

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04 June 2020

CCPA Enforcement Date Rapidly Approaching: California Attorney General Proposes Regulations for Final Review With July 1, 2020 Less Than One Month Away

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.

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07 May 2020

In Midst of COVID-19 Pandemic, Senators Propose Privacy Bill Aimed At Businesses’ Use of Consumer Data

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…)

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04 May 2020

Stay At Home Orders May Have Killed California’s Ballot Initiative to Expand CCPA [**Update – But Californians for Consumer Privacy Say Maybe Not**]

UPDATE:  Soon after we published the post below, we learned that the sponsors of the California Privacy Rights Act (CPRA) – i.e., the ballot initiative that aimed to amend and significantly expand the California Consumer Privacy Act (CCPA) – intend to push forward with their attempt to get it on the ballot this year.  On May 4th, the initiative’s sponsors, the Californians for Consumer Privacy, announced on Twitter they were submitting to counties across the state.  Whether county election officials can verify the signatures in time to qualify for the November 2020 ballot remains to be seen.  While conventional wisdom is that the recommended April deadline is an important one to make, the approval process may be different this year due to the COVID-19 pandemic and how it might affect the availability of resources to approve initiatives.  We will continue to monitor this situation and provide updates on Data Matters as appropriate.    

The California Privacy Rights Act (CPRA), the ballot initiative that aimed to amend and significantly expand the California Consumer Privacy Act (CCPA), including by creating the California’s very own data protection authority, the nation’s first, appears to be dead–at least for this ballot season.

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12 February 2020

A February 2020 Surprise: California Attorney General Proposes Significant Revisions to CCPA Regulations

Just as companies were starting to recover from their exertions to put in place California Consumer Privacy Act (“CCPA”) compliance programs before the law’s January 1, 2020 entry into force, the California Attorney General (“AG”) provided an early February surprise.  CCPA watchers long expected that the AG would revise the CCPA regulations he initially proposed on October 10, 2019.  But when the AG actually released his proposed regulations on February 7 – a proposal he subsequently modified slightly on February 10 – both the timing and breadth of the revisions were surprising.  In short, the revisions were both sooner and more significant than expected.

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10 January 2020

California Department of Business Oversight December 2019 Actions

The California Department of Business Oversight (CDBO) recently concluded that the point of sale consumer financing programs offered by Sezzle, Inc., and another, unnamed party constituted making loans for purposes of the California Financing Law (CFL). A number of payment providers and technology companies have been developing innovative payment options, including consumer financing options, that are facilitated by advances in technology and mobile connectivity. Some market participants have structured their products such that a license should generally not be required under state law. The CDBO’s actions, however, may require companies to revisit that analysis and consider their licensing obligations.

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02 January 2020

Oregon Requires Vendors to Report Data Breaches

While much of the New Year attention has been focused on California due to the effective date of the California Consumer Privacy Act, a new Oregon law also went into effect on January 1, 2020 complicating compliance with data breach obligations. The law is unique among state data breach notification laws in that it imposes a direct obligation on vendors to provide regulatory notice to the state. It also requires vendors to provide notice to the data owner within 10 days.  This new regulatory notice requirement may take some control away from data “owners” that typically manage (and often contractually demand sole control over) initial regulator communications with regard to incidents impacting their data.  However, the new requirement may also incentivize service providers to take more responsibility for incident response.

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19 December 2019

Examining Legislative Proposals to Protect Consumer Data Privacy

On December 4, 2019, the Senate Commerce Committee addressed data privacy in a hearing titled, “Examining Legislative Proposals to Protect Consumer Data Privacy.”  The hearing focused on the two leading privacy proposals that were put forward in the week leading up to the hearing, the Consumer Online Privacy Rights Act (COPRA), introduced by Sen. Maria Cantwell, D-Wash., ranking member on the Committee, and a Staff Discussion Draft of the United States Consumer Data Privacy Act of 2019 (CDPA), introduced by Sen. Roger Wicker, R-Miss., Chairman of the Committee.  The competing proposals share many similarities, including their scope of covered data and entities, as well as their approaches to consumer transparency and access.  However, as witness testimony during the hearing revealed, the proposals diverge on a few critical issues.

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18 December 2019

CCPA 2.0 Moves to Next Critical Stage of Referendum Process

In the evening of December 17, 2019, Californians for Consumer Privacy, the consumer privacy rights organization led by Alastair Mactaggart that propelled California towards the U.S.’s first comprehensive privacy legislation, tweeted the Attorney General’s release of the title and summary for Initiative 19-0021.  This Initiative would substantively amend and essentially replace the California Consumer Privacy Act (“CCPA”) with the proposed Consumer Privacy Rights Act of 2020—also known colloquially as CCPA 2.0. (more…)

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08 November 2019

Federal and State Authorities Increase Scrutiny and Enforcement of Children’s Privacy; Google, YouTube Agree to Pay a Record $170 Million Fine

This fall, scrutiny has increased on children’s privacy with the FTC and New York Attorney General’s announcement of the largest fine ever for violations of the Children’s Online Privacy Protection Act (“COPPA”), followed by FTC public workshops on updating the COPPA Rule.  Combined with increased requirements for the sale of teen personal information under the California Consumer Privacy Act (“CCPA”), and calls for triple fines for children’s privacy violations under a potential CCPA 2.0 referendum for 2020, children’s privacy has come to the forefront of privacy risks.

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