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More Updates to the CCPA May Be Ahead

Ever since the California Consumer Privacy Act (CCPA) was enacted in June of 2018 it has been in a constant state of revision.   First, in September of 2018, Governor Jerry Brown signed into law Senate Bill 1121, which helped clarify and strengthen the original version of law. Then, in February of 2019, California Attorney General Xavier Becerra and Senator Hannah-Beth Jackson introduced Senate Bill 561, similarly intended to clarify and strengthen the CCPA with expansion of the consumer’s right to bring a private cause of action and removing certain ambiguous language. During this period, the California Attorney General’s Office also conducted a CCPA rulemaking process with a six-part series of public forums, allowing all interested persons the opportunity to provide their comments on the new law. And finally, earlier this week, the California Assembly of Privacy and Consumer Protection Committee (“Committee”) introduced several bills intended to clarify some of the remaining ambiguities in the CCPA.

We’ve already reported on one of the bills, introduced by Committee Chairman Ed Chau’s AB 25, which the committee unanimously approved. AB 25 modifies the definition of consumer to exclude employees, and contractors (if a written contract is in place). In addition to AB 25, several other bills were approved by the Committee and will now advance to the Senate Judiciary Committee, chaired by Senator Jackson, a major proponent of protection of consumer rights. It is likely that some of these bills will not survive the legislative process, and others will be revised along the way. Below is a list of the Committee approved CCPA amendment bills:

  • AB 846 – A bill that updates the clause prohibiting businesses from discriminating against consumers who exercises “opt-out” rights by clarifying that loyalty, rewards, and similar programs are exempt.
  • AB 873 – A bill that helps clarify ambiguities in the definitions of personal and deidentified information.
  • AB 874 – A bill that updates the public record exemption under the definition of personal information.
  • AB 1146 – A bill clarifying a consumer’s right to request that a business delete or not sell the consumer’s personal information, in the context of a motor vehicle warranty or recall information.
  • AB 1355 – An additional bill introduced by Chairman Chau makes technical changes to CCPA drafting flaws.
  • AB 1564 – A bill providing alternatives to the current requirement that a business makes available to consumers a toll-free number to submit requests for information regarding the use of their personal information. Alternatives include an email address and physical address for submitting requests.

The Committee also approved AB 981 which would make significant changes affecting the insurance industry, including changes that would hope to incorporate California’s Insurance Information and Privacy Protection Act (“IIPPA”) to avoid overlap with CCPA, and exempting insurance institutions, agents, and support organizations (insurers) from certain CCPA provisions. Other changes include:

  1. Providing that insurers or insurance transactions subject to the IIPPA shall be exempt from the CCPA. This exemption would not apply to the CCPA’s limited private right of action for data breaches or business activity not subject to the IIPPA.
  2. Defining various terms for the purposes of the IIPPA to mirror the definitions provided in the CCPA, including “consumer” to reflect the definition proposed in the March 25, 2019 version of AB 25, and “personal information” to reflect the definition of that term provided in the CCPA, with the exception of “household,” which is absent from the definition, similar to AB 873.
  3. Requiring insurers to provide certain notices concerning their information practices and privacy policies and procedures, including communications to individuals regarding the right to opt-out of disclosures.
  4. Requiring an insurance institution, agent, or insurance-support organization to implement a comprehensive written information security program that includes administrative, technical, and physical safeguards for the protection of policyholder information, as specified, and authorize the commissioner to audit an insurance intuition, agent, or support organization’s compliance.
  5. Prohibiting an insurer from “unfairly discriminating,” against an applicant or policyholder because that applicant or policyholder has opted out from the disclosure of nonpublic PI, or did not grant authorization for the disclosure of nonpublic personal medical record information.

In addition, the Senate Judiciary Committee was scheduled in a April 23 hearing to review SB 753, a bill that would have revised the definition of “sell” to exempt situations where a business “pursuant to a written contract, shares, discloses, or otherwise communicates to another business or third party a unique identifier only to the extent necessary to serve or audit a specific advertisement to the consumer.” The bill would require such a “contract to prohibit the other business or third party from sharing, selling, or otherwise communicating the information except as necessary to serve or audit advertisement from the business.” Review of SB 753 was cancelled at the request of Senator Henry Stern, the bill’s author, who faced criticism that the bill would negatively impact the CCPA’s purpose.

We will continue to track and update on the fate of these bills. While it remains unclear which bills will ultimately stick, the CCPA is certain to see additional changes in the upcoming months.

Jackson Lewis P.C. © 2019

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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