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Data & Privacy Law

CCPA Enforcement has Begun

by David Klein

Although the California Consumer Privacy Act (“CCPA”) went into effect on January 1, 2020, the California Attorney General (“AG”) was prohibited from bringing enforcement actions until July 1, 2020. Due to the COVID-19 pandemic, some observers were unsure whether the AG would be able to meet the July 1st deadline. However, the AG is moving full speed ahead and has even denied businesses’ requests to delay the CCPA enforcement date due to COVID-19. Now, the AG has commenced enforcement action as planned, and businesses have already started to receive CCPA violation notices. 

What should you do if you receive a CCPA violation notice?

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CCPA Compliance: The CA Attorney General is Enforcing Now!

by David Klein

With the outbreak of the COVID-19 pandemic, businesses have had to react to a whole new set of issues that were not on their radar four (4) months ago.  One task that may have been tabled until some sense of normalcy was restored is compliance with the California Consumer Privacy Act (“CCPA”). Businesses must be aware that July 1, 2020, marked the day that the California State Attorney General’s Office began its CCPA enforcement efforts. Attorney General Xavier Becerra announced the enforcement date by releasing a statement encouraging “every Californian to know their rights to internet privacy and every business to know its responsibilities.” Although it is too early to know what enforcement will look like, businesses that are not already within CCPA compliance must act fast to avoid stiff penalties. 

What are the immediate responsibilities businesses should be aware of?

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CCPA Service Provider Agreements: Accounting for the California Consumer Privacy Act (CCPA)

by David Klein

With the enforcement of the California Consumer Privacy Act (“CCPA”) commencing on July 1, 2020, many businesses should be taking a close look at their CCPA service provider agreements.  By way of background, the CCPA is a consumer-friendly privacy law that applies to various entities and their respective service providers.  The CCPA provides consumers with protections and choices with respect to how their personal information is collected, used and shared by businesses and other entities.  Consistent with the foregoing, the CCPA requires businesses to ensure that their service providers and other third-party partners refrain from exploiting the personal information that is shared with them.  

The CCPA defines “service provider” as any entity “that processes information on behalf of a business and to which the business discloses a consumer’s personal information for a business purpose pursuant to a written contract.”  Further, the CCPA contains an expansive definition of “personal information,” which includes “information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household.”  

Based on the foregoing, if they have not already done so, companies need to: 1) revise CCPA service provider agreements on a going-forward basis; and 2) draft CCPA-compliant amendments to existing agreements to ensure that their respective service provider partners are contractually obligated to refrain from using consumer information for prohibited commercial purposes. 

Should I Revise My Service Provider Agreements for CCPA Compliance Purposes? 

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Preparing for the July 1 CCPA Enforcement Deadline

by David Klein

Despite the fact that the California Consumer Privacy Act (“CCPA”) regulations have yet to be finalized, the California Attorney General is prepared to begin CCPA enforcement as of July 1, 2020. In 2018, the CCPA was enacted to create enhanced consumer privacy rights by imposing obligations on how businesses collect, use and share California State resident personal information. Over the past two years, the California State Attorney General has been tinkering with the CCPA regulations in an effort to assist businesses with navigating statutory compliance. Given that the CCPA enforcement deadline is upon us, businesses should now be familiar with the various provisions of the CCPA. 

What are the key provisions of the CCPA?

Overview of CCPA Regulations

Businesses fall within the ambit of the CCPA if they: 1) do business in the State of California; 2) collect California State residents’ personal information; and 3) satisfy at least one of the following thresholds:

  • Have annual gross revenue of over $25 million;
  • Buy, receive, sell or share the personal information of 50,000 or more consumers, households or devices for commercial purposes each year; or 
  • Derive 50% or more of annual revenue from selling consumer personal information. 

Dating back to the passage of the CCPA on June 28, 2018, we have blogged about the CCPA compliance measures that businesses need to take in order to avoid private rights of action and/or investigation by the California State Attorney General. Some key CCPA provisions worth noting include:

  • Notice to Consumers: Businesses that collect California consumer personal information must provide notice prior to or at the point of collection. The purpose of this notice is to inform consumers about the categories of personal information that businesses will collect and the purposes for which the information will be used. Additionally, businesses must notify consumers of their right to opt-out from having their personal information sold to third parties. 
  • Privacy Policies: As stated in the CCPA regulations, “[t]he purpose of the privacy policy is to provide consumers with a comprehensive description of a business’s online and offline practices regarding the collection, use, disclosure, and sale of personal information and of the rights of consumers regarding their personal information.” In order to achieve this level of transparency, businesses must disclose: 1) the categories of personal information collected; 2) the sources from which personal information is collected; and 3) the commercial or business purpose for which the personal information was collected or sold.
  • CCPA Forms: The CCPA affords California consumers the right to: 1) opt-out of the sale of their personal information to third parties; 2) request to know what personal information has been 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. The CCPA regulations provide detailed requirements on how to present, process, respond to and store these requests. 
  • Accessibility: All of the foregoing CCPA-related notices should be accessible to consumers with disabilities and conform to standards included in the Web Content Accessibility Guidelines (“WCAG”), version 2.1, as promulgated by the World Wide Web Consortium (“W3C”). 

CCPA Enforcement 

Businesses that run afoul of the CCPA face both private rights of action and investigation by the California Attorney General’s Office. California consumers can bring private rights of action against businesses for data breaches (and only data breaches) that have exposed their non-encrypted and non-redacted personal information to unauthorized third parties. For private rights of action, statutory damages will amount to the greater of actual damages, or between $100 and $750 per consumer, per incident. Additionally, following the July 1, 2020 CCPA enforcement deadline, the California Attorney General is expected to begin sending notifications of alleged violation to non-compliant businesses. Please note that businesses will be afforded thirty (30) days to cure any instances of non-compliance. Civil penalties levied by the California Attorney General’s office will range from $2,500 for non-intentional violations, up to $7,500 for intentional violations. Notwithstanding the foregoing, considering the amount of time and resources that are being devoted to the COVID-19 pandemic response, it is unclear how the California Attorney General’s Office will prioritize CCPA enforcement. We expect that the Attorney General will initially focus its attention on the largest companies that have misused the most amount of consumer data. 

If you require assistance in connection with CCPA compliance, please email us at info@kleinmoynihan.com, or call us at (212) 246-0900. 

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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Final CCPA Regulations Released

by David Klein

On June 1, 2020, the California Attorney General’s Office submitted the final text of California Consumer Privacy Act (“CCPA”) regulations to the Office of Administrative Law (“OAL”) for review. Typically, OAL has thirty (30) working days to determine whether regulations under its review satisfy the procedural requirements of the Administrative Procedure Act. The California State Attorney General has requested that OAL expedite its review and make the CCPA regulations effective on the same day that they are filed with the Secretary of State. It is uncertain at this time whether OAL will comply with the California State Attorney General’s request and enact the final CCPA regulations by the July 1, 2020 enforcement date.

When will the final CCPA Regulations take effect?

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Website Terms and Conditions: More Important than Ever

by David Klein

The era of social distancing brought on by the recent Covid-19 pandemic has greatly limited in-person retail interaction. Consequently, e-commerce transactions and other online interactions have significantly increased in popularity, making well-drafted website Terms and Conditions more essential than ever for website operators. Website Terms and Conditions, coupled with online Privacy Policies, are the legal documents used to establish the contractual relationship between website operators and their respective end-users and customers.  

Given this vital role, it is of paramount importance that website operators ensure that their website Terms and Conditions limit liability to the maximum extent permitted by law and provide other key legal protections.

Why Is It Important to Have A Contract with Website End Users?

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Preparing CCPA Privacy Policies Before the July 1 Enforcement Date

by David Klein

Despite the myriad issues that businesses now face with the Covid-19 pandemic, the California State Attorney General remains committed to the California Consumer Privacy Act (“CCPA”) enforcement date of July 1, 2020. As such, businesses that have not already done so should add CCPA compliance to their immediate to-do lists. One area of compliance that requires attention is online privacy policies that include CCPA-mandated provisions (“CCPA Privacy Policies”). Since the proposed CCPA regulations were first released to the public on October 11, 2019, the California State Attorney General’s Office has released two (2) modifications thereto. Those modifications have, in turn, necessitated changes to companies’ CCPA Privacy Policies. Businesses must, among other things, update their online privacy policies to ensure that they include CCPA-required disclosures and the associated menu of consumer options. 

What is required of CCPA Privacy Policies?

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The Importance of Well-Drafted Website Terms and Conditions

by David Klein

The United States District Court for the Southern District of New York recently issued a ruling that exemplifies the importance of well-drafted website Terms and Conditions. In Stephanie Sinclair v. Ziff Davis, LLC and Mashable, Inc., 1:18-cv-00790 (SDNY, April 13, 2020), the Court ruled that because Stephanie Sinclair (“Sinclair”) had agreed to Instagram’s Terms of Use, Mashable, Inc. (“Mashable”) was allowed to embed Sinclair’s photograph on its website as a sublicensee, without separately obtaining Sinclair’s permission. This case illustrates that, when drafted correctly, website Terms and Conditions can save website owners from lengthy and expensive litigation. 

How can website Terms and Conditions help protect your website?

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