Data & Privacy Law

CCPA Enforcement Date Remains July 1, 2020

March 31, 2020 by David Klein

The novel coronavirus (“COVID-19”) pandemic has required businesses to adapt to unforeseen disruptions. However, one thing that has remained constant is the California Consumer Privacy Act (“CCPA”) enforcement date of July 1, 2020. Earlier this month, a coalition of approximately 60 businesses sent a letter to California Attorney General Xavier Becerra asking that the CCPA enforcement date be delayed until January 2, 2021 because of ongoing health and economic worries created by COVID-19. Civil Code Section 1798.85(c) states that “the Attorney General shall not bring an enforcement action under this title until six months after the publication of the final regulations issued pursuant to this section or July 1, 2020, whichever is sooner.” In an email to Forbes magazine, an advisor for the California Attorney General’s Office said that they are “committed to enforcing the law upon finalizing the rules or July 1, whichever comes first,” and “encourage[d] businesses to be particularly mindful of data security in this time of emergency.” Consequently, because the final regulations have not been published, July 1, 2020 remains the CCPA enforcement date. Given the foregoing, businesses working to weather the damage caused by COVID-19 also need to be mindful of their compliance obligations under the CCPA.

What are the CCPA Enforcement Measures?

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CCPA Regulations Revised, Again

March 20, 2020 by David Klein

Recently, the California Consumer Privacy Act (“CCPA”) regulations were modified by the California Attorney General for a second time. These modifications are an attempt to address issues raised by approximately one hundred comments that followed the release of the Modified Draft Regulations on February 7, 2020. The California Attorney General is accepting written comments on the latest modifications until March 27, 2020. All of these measures are being taken to ensure that businesses have a clear understanding of what the CCPA regulations require before the enforcement date of July 1, 2020.

What are the most recent modifications to the CCPA regulations?

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False Advertising: What You Need to Know

March 10, 2020 by David Klein

False advertising occurs when a business makes a misleading, deceptive, or plainly false claim about a particular product or service. There are currently a host of state and federal laws aimed at addressing false advertising, the most prominent of which is the Federal Trade Commission Act (“FTC Act”), 15 U.S.C. § 53(b). As articulated by Federal Trade Commission (“FTC”) Commissioner Christine S. Wilson, “[a]ccurate and complete information contributes to the efficient functioning of the market and facilitates informed consumer decision-making. In contrast, deceptive or false claims inhibit informed decision-making and cause economic injury to consumers.”

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CCPA Forms: The Right to Opt-Out, Request to Know and Request to Delete

February 28, 2020 by David Klein

Readers of this blog have been following our coverage of the California Consumer Privacy Act (“CCPA”) and related regulatory developments. In today’s blog, we detail some of the compliance measures that should be taken with respect to consumer data election rights and the associated CCPA forms through which consumers can make these elections. Among other measures, the CCPA has codified California consumers’ rights to: 1) opt-out of the sale of their personal information to third parties; 2) request to know what personal information businesses have collected about them and how businesses have sold or disclosed that information to third parties; and 3) request that businesses delete personal information that has been collected from/about them. With limited exceptions, businesses should provide consumers with CCPA forms to make elections by and through their websites.

What are CCPA forms and when should they be processed?

CCPA Forms

In order to comply with the CCPA, each business is required to “provide two or more methods for submitting requests to opt-out, including, an interactive form accessible via a clear and conspicuous link titled ‘Do Not Sell My Personal Information,’ or ‘Do Not Sell My Info,’ on the business’ website or mobile application.” Businesses do not need to provide an opt-out form if they do not sell personal information and explain this fact in their privacy policies. Opt-out forms should: 1) include a description of consumers’ rights to opt-out of the sale of their personal information; 2) use plain, straightforward language and avoid technical or legal jargon; 3) provide instructions on any other method by which consumers may submit their requests to opt-out; and 4) be reasonably accessible to consumers with disabilities. The modified CCPA regulations have removed the requirements that opt-out forms include proof when consumers are using authorized agents to exercise their rights to opt-out and that opt-out forms provide links to the URLs of businesses’ privacy policies.

The most recent proposed CCPA regulation revisions have eliminated the requirement that businesses operating exclusively online that have a direct relationship with their consumers provide a web-based CCPA form to submit right to know requests. These businesses are now only required to provide an email address. All other businesses must provide two (2) methods for submitting requests to know including, but not limited to, a toll-free telephone number and, a designated email address or a form that can be submitted by U.S. Mail. When supplying consumers with the ability to delete their personal information, businesses must provide two (2) or more methods for submitting these requests. Methods include, but are not limited to, a toll-free number, a link or form available online through a business’s website, or a designated email address. If businesses create CCPA forms to satisfy right to know and deletion election requirements, they too should use plain, straight forward language, which must be reasonably accessible to consumers with disabilities. Please note that the modified CCPA regulations no longer require a two-step process to effectuate online requests to delete.

Processing CCPA Forms

Businesses must comply with requests to opt-out no later than fifteen (15) business days from the date the requests are received. If a business sells a consumer’s personal information after the request to opt-out has been received, but before that business has complied with the request, it must notify third parties that have received consumer personal information from the company in this interim period that the consumer has elected to opt-out and that these third parties may no longer sell that consumer’s personal information. Businesses must confirm receipt of right to know and deletion requests within ten (10) business days of receiving such requests and respond to these requests within forty-five (45) calendar days from the date that the subject requests were received. If necessary, businesses that are unable to respond to requests within the forty-five (45) calendar day period may take an additional forty-five (45) calendar days to respond, provided that they provide consumers with notice and explanation that an extension is required.

CCPA forms are just one regulatory implementation measure that should be taken on the path to CCPA compliance. If you are interested in learning more about this topic or require assistance with consumer data privacy compliance for your business, please email us at info@kleinmoynihan.com, or call us at (646) 713-1684.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.

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Consumer Privacy Compliance Primer

February 27, 2020 by David Klein

As readers of this blog know, businesses face significant liability if they fail to take their consumer privacy obligations seriously. These obligations can vary widely based on the kind of information a business collects and where a consumer is located. Privacy compliance is an essential consideration for many businesses, and properly obtaining consumer consent to collect, use and/or share consumer data is critical.

How Should Businesses Obtain Consumer Consent?

Existing Privacy Frameworks

The global trend toward increased consumer privacy protections continues, and jurisdictions across the world are developing new laws and updating existing frameworks to regulate the collection, use and sharing of consumer data. California and the European Union (“EU”) are unquestionably leading the pack on this front. On May 25, 2018, the General Data Protection Regulation (“GDPR”) went into effect in the EU. To date, the United States has not passed comprehensive federal privacy regulations, but privacy legislation has been proposed or enacted in several states. Most notably, on January 1, 2020, the California Consumer Privacy Act (“CCPA”) went into effect. Both the GDPR and CCPA significantly changed businesses’ obligations regarding consumer data.

When it comes to consumer consent, the GDPR can generally be described as an opt-in regime. The GDPR requires that consent be “freely given, specific, informed and unambiguous.” For US-based businesses, the GDPR may be of limited application, as it generally only applies to businesses that collect, retain or use the personal data of EU residents. By contrast, virtually all US-based businesses must carefully analyze (and most likely, implement) the CCPA’s various requirements. The CCPA imposes an opt-out regime on businesses that collect, use or share the data of California residents. Under the CCPA, businesses must allow California consumers to opt-out of the sale of their personal information. Businesses must post “clear and conspicuous” opt-out language on their websites, allowing consumers to exercise their rights under the CCPA.

Within the United States, the CCPA is seen as the standard of privacy legislation. In large part, this is due simply to California’s size. The CCPA sets out specific requirements for how a company must honor consumers’ right to know, deletion and opt-out elections; and a number of other states are following suit. For example, in 2019, the New York Privacy Act was introduced by the State Legislature. The bill, in many respects, mirrored the GDPR’s opt-in consent requirements. However, the New York measure went further, requiring businesses to act as “data fiduciaries” for consumers. Under this proposal, businesses would have been required to place the best interests of consumers before any duties owed to its owners or shareholders. Although the bill did not gain sufficient traction during a recent legislative session and ultimately failed to become law, new data privacy compliance legislation is likely to pass in New York in the near future.

Consent and Privacy Compliance

Many of the most significant privacy laws are relatively new, and the exact requirements are still evolving. Moreover, new legislation is proposed all the time. It is impossible to predict exactly what the privacy landscape of the future will look like. However, there are steps that businesses can take today to ensure that they are flexible and able to adapt.

Only collect, use or share whatever consumer data is necessary to operate your business. Other than data obtained with the consumer’s consent, the GDPR sets forth five acceptable bases to collect, use or share consumer data. All of these bases have one thing in common: collect only what is necessary. This limits potential liability and will help streamline data management.
Use clear language. All privacy legislation seeks to increase transparency and empower consumers. Businesses should, therefore, ensure that their privacy policies are clear and unambiguous. In addition, privacy-related information should not be hidden within websites, but should be prominently featured and built into the consent portion of the online registration/purchasing process.
Create and maintain systems for consumers to revoke and limit their consent. The concept of “Privacy by Design” has spread beyond the EU, and there is every reason to expect that legislation in other jurisdictions will require businesses to afford consumers far greater data privacy rights than exist today.

Businesses’ privacy compliance obligations are always changing. To that end, it is important to work with counsel experienced in this space. If you need to review your privacy policies or need assistance understanding the changing laws affecting consumer privacy compliance, please e-mail us at info@kleinmoynihan.com, or call us at (646) 350-1736.

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CA Attorney General Releases New CCPA Law Modifications

February 12, 2020 by David Klein

February 12, 2020

Recently, the California Consumer Privacy Act (“CCPA”) regulations were modified by the California Attorney General.

The latest CCPA modifications were released on February 7, 2020, in an attempt to address issues that were raised during the public hearing and comment period that followed the release of the proposed regulations on October 11, 2019. The California Attorney General has announced a deadline of February 24, 2020, at 5:00 p.m. (PST) to submit written comments, in yet another attempt to clarify CCPA law.

How have the proposed regulations changed?

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California Data Broker Registration Requirements

January 16, 2020 by David Klein

January 16th, 2020

In September 2019, the California State Legislature passed Assembly Bill No. 1202 (“A.B. 1202”), amending the California Consumer Privacy Act (“CCPA”). The amendment requires qualified businesses to register as data brokers with the California Attorney General on or before January 31, 2020. A.B. 1202 defines “Data Broker” as “a business that knowingly collects and sells to third parties the personal information of a consumer with whom the business does not have a direct relationship.” (emphasis supplied). A.B. 1202 carves out exemptions from the data broker registration requirement for most entities subject to regulation under the federal Fair Credit Reporting Act, the Gramm-Leach-Bliley Act, and the Insurance Information and Privacy Protection Act, respectively.

Who is a Data Broker and what are the data broker registration requirements?

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CCPA Law: The Private Right of Action

January 14, 2020 by David Klein

January 14th, 2020

As readers of this blog know, the California Consumer Privacy Act (“CCPA”) recently went into effect on January 1, 2020. While the California Attorney General will not bring enforcement actions prior to July 1, 2020, the CCPA’s private right of action is now in full effect. This private right of action provides California consumers with a powerful tool to seek redress if their personal information is accessed as a result of a data breach. Of course, this also means that companies that do business in California may face massive civil liability if their systems are the subject of a breach.

Who can sue under the CCPA Law, and when?

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