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CA Attorney General Updates CCPA Proposed Regulations

Many businesses and their service providers have been awaiting final guidance from the California Attorney General concerning the California Consumer Privacy Act (CCPA). When news came last Friday of a regulatory update (“Update”), there may have been some initial disappointment that the Update did not announce final regulations, but only revisions to existing proposed regulations issued last year and a new comment period (ending February 24, instructions to submit comments here). However, while final regulations are still sometime away, initial disappointment may be softened by some of the Update’s revisions.

Based on our initial review of the Update, below are some key changes to the proposed regulations:

  • The Update would add guidance for interpreting defined terms under the CCPA. Specifically, the Update clarifies that determining whether information is “personal information” depends on whether the business maintains the information in a manner that “identifies, relates to, describes, is reasonably capable of being associated with, or could be reasonably linked, directly or indirectly, with a particular consumer or household.” This guidance and the example provided below would address concerns many have regarding information businesses collect online.

For example, if a business collects the IP addresses of visitors to its website but does not link the IP address to any particular consumer or household, and could not reasonably link the IP address with a particular consumer or household, then the IP address would not be “personal information.”

  • The proposed regulations confirmed the requirement for online notices to be accessible, but the Update would require generally recognized industry standards be followed, such as the Web Content Accessibility Guidelines, version 2.1 of June 5, 2018, from the World Wide Consortium.

  • The proposed regulations provided businesses could not use personal information for “any purpose other than disclosed in the notice at collection.” The Update would establish a less strict standard – “a purpose materially different than disclosed in the notice at collection.”

  • With regard to the contents of the notice at collection, the proposed regulations required (i) a list of the categories of personal information to be collected, and (ii) for each category, the business or commercial purposes for which it will be used. The Update would remove the requirement to list the purposes of use for each category. In other words, it appears it would be sufficient to list the business or commercial purposes for using all of the categories of personal information, not each one individually. This change would significantly simplify the notice at collection, and would be extended to the privacy policy as well.

  • With regard to notices at collection for employment-related data, a “Do Not Sell My Personal Information” link would not be required. Additionally, the notice could link to the business’s privacy policies for employees, applicants, etc., rather than consumers.

  • The Update provides for an optional “Opt-Out Button.”

  • Proposed regulations required a two-step process for online requests to delete personal information. The Update would make that two-step process optional.

  • With regard to the general requirement to make two or more designated methods available for submitting requests to know, the Update would relax the specific methods. At least one still must be a toll-free number. However, for website operators, the second need not be an interactive webform and could be an email address.

  • The Update also tweaks the timing of certain notice requirements. For example, when confirming receipt of a request to delete or a right to know, the business would have 10 business days, while responses to such requests generally would be due in 45 calendar

  • Under the Update, a business would not be required to search for personal information in response to a request to know if the business: (i) does not maintain personal information in a searchable or reasonable accessible format, (ii) maintains the personal information only for legal or compliance purposes, (iii) does not sell the information or use it for a commercial purpose, and (iv) describes to the consumer the categories of records not searched because it satisfied the three conditions above.

  • The Update would clarify that service providers that receive requests to know or to delete either can respond on behalf of the business or inform the consumer that it cannot act on the request because it is a service provider.

Businesses still need to monitor the development of CCPA regulation, but the Update would seem to provide some clarity and/or relief on some points. Also, there is a new opportunity to voice concerns and pose questions concerning the guidance thus far.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 41

TRENDING LEGAL ANALYSIS


About this Author

Principal

Joseph J. Lazzarotti is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He founded and currently helps to co-lead the firm's Privacy, e-Communication and Data Security Practice, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals.

In short, his practice focuses on the matrix of laws governing the privacy, security and management of data, as well as the impact and regulation of social media. He also...

973- 538-6890
Jason C. Gavejian, Employment Attorney, Jackson Lewis, Principal, Restrictive Covenants Lawyer
Principal

Jason C. Gavejian is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. and a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

Mr. Gavejian represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination and wage and hour claims in both federal and state courts. Additionally, Mr. Gavejian regularly appears before administrative agencies, including the Equal Employment Opportunity Commission, the Office for Civil Rights (OCR), the New Jersey Division of Civil Rights, and the New Jersey Department of Labor. His practice also focuses on advice/counseling employers regarding daily workplace issues.

Mr. Gavejian represents companies with respect to inquiries from the HHS/OCR, state attorneys general, and other agencies alleging wrongful disclosure of personal/protected information. Mr. Gavejian negotiates vendor agreements and other data privacy and security agreements, including business associate agreements. His work in the area of privacy and data security includes counseling and coaching clients through the process of investigating and responding to breaches of the personally identifiable information (PII) or protected health information (PHI) they maintain about consumers, customers, employees, patients, and others, while also assisting clients in implementing policies, practices, and procedures to prevent future data incidents.

Mr. Gavejian’s litigation experience, coupled with his privacy practice, provides him with a unique view of many workplace issues and the impact privacy, data security, and social media may play in actual or threatened lawsuits.

Mr. Gavejian regularly provides training to both executives and employees and regularly speaks on current privacy, data security, monitoring, recording, BYOD/COPE, biometrics (BIPA), social media, TCPA, and information management issues. His views on these topics have been discussed in multiple publications, including the Washington Post, Chicago Tribune, San Francisco Chronicle (SFGATE), National Law Review, Bloomberg BNA, Inc.com, @Law Magazine, Risk and Insurance Magazine, LXBN TV, Business Insurance Magazine, and HR.BLR.com.

Mr. Gavejian is the Co-Chair of Jackson Lewis’ Hispanic Attorney Resource Group, a group committed to increasing the firm’s visibility among Hispanic-American and other minority attorneys, as well as mentoring the firm's attorneys to assist in their training and development. Mr. Gavejian also previously served on the National Leadership Committee of the Hispanic National Bar Association (HNBA) and regularly volunteers his time for pro bono matters.

Prior to joining Jackson Lewis, Mr. Gavejian served as a judicial law clerk for the Honorable Richard J. Donohue on the Superior Court of New Jersey, Bergen County.

(973) 538-6890