iEarlier this month, California Attorney General (“AG”) Xavier Becerra sent a letter to several members of U.S. Congress, providing an update on the implementation of the newly effective California Consumer Privacy Act (CCPA), and urging Congress not to enact a federal law that would preempt the CCPA and other state consumer privacy measures. Instead, AG Becerra called on Congress to develop a law that would “build on the rights” provided for by the CCPA, and partner with states to ensure greater consumer privacy protections.
“I invite Congress to look to the states as sources of innovation and expertise in data privacy, and not to undermine protections, like CCPA, that states have already developed. Therefore, as I noted above, I encourage Congress to favor legislation that sets a federal privacy-protection floor rather than a ceiling, allowing my state— and others that may follow—the opportunity to provide further protections tailored to our residents,” wrote AG Becerra.
In addition, AG Becerra emphasized that Congress in its development of a federal consumer privacy law should extend enforcement powers broadly, providing state attorney generals with parallel enforcement authority, and consumers the ability to protect their rights directly under a private right of action. It is not clear the extent to which AG Becerra is suggesting the inclusion of a private right of action in federal law. The CCPA only authorizes a private cause of action against a covered business if a failure to implement reasonable security safeguards results in a data breach, and is not available when a consumer’s individual rights under the CCPA are violated. Moreover, the definition of personal information for a private right of action is much narrower than the general definition of personal information under the rest of the CCPA.
AG Becerra is instrumental in the CCPA legislative process, in particular his office is tasked with development of regulations to operationalize the CCPA and provide clarity and specificity to assist in the implementation of the law. AG Becerra announced proposed regulations in October 2019, and following a series of public hearings across California, announced a regulatory update to the existing proposed regulations in early February 2020, and then again last week. The AG’s regulations must be finalized and implemented by July 1, 2020.
In the meantime, the U.S. Congress has been plugging away at a federal consumer privacy law over the last couple years, with limited progress. Most recently, two competing federal consumer privacy bills were introduced. The first proposal, Consumer Online Privacy Rights Act, introduced by Sen. Maria Cantwell (D-Wash), and shortly after the United States Consumer Data Privacy Act , introduced by Senator Roger Wicker (R-Miss). While the two proposals have significant overlap, a key difference is their treatment of state consumer privacy laws. Cantwell’s proposal includes preemption of “directly conflicting state laws”, but stipulates that the federal law would not override state laws with a “greater level of protection”. Conversely, Wicker’s proposal includes a broad provision expressly preempting any state law “related to the data privacy or security and associated covered entities”.
A federal consumer privacy law, while still unclear what shape it will take and when, is almost inevitable. With the CCPA in effect and other state measures on the horizon, the development of a meaningful data privacy and protection program has never been more important.
