California has once again decided it needed to pass privacy legislation to protect the residents of the great state from the nefarious actions of Big Tech. However, this time they did it with a ballot initiative and not via the thoughtful (mostly) mechanism of the legislative process. The proponents of the California Privacy Rights Act of 2020 (“CPRA”) touted this as an improvement over the CCPA – but is it really? To listen to the proponents of the CPRA, it aims to strengthen California consumer privacy rights, while for the most part, avoiding the imposition of overly-burdensome requirements on a business, particularly those businesses that are already CCPA compliant. So, what’s changed, really?
Continue Reading California Prop 24 – Is the New Privacy Law Really New (Or Is the Sky Falling)
CJEU Invalidates EU-US Privacy Shield Framework
Today, the Court of Justice of the EU has handed down its judgment in the highly-anticipated Facebook Ireland case (aka Schrems II) and invalidated the Privacy Shield Decision. For those of you who have followed this case, the CJEU took a “left turn at Albuquerque” in its decision since the primary contention of Mr. Schrems was that the Commission Decision around Standard Contractual Clauses (“SCCs”) was invalid.
While the Court did opine on the SCC issue, it didn’t stop there. The Court actually took up a broader scope and addressed the validity of the Privacy Shield decision. In a mentally acrobatic exercise, we ended up with a judgment that preserved the SCCs decision (kind of), but invalidated the Privacy Shield Decision – even after there had been multiple renewals of the adequacy finding of Privacy Shield in the past. Additionally, along with the logical gymnastics around Privacy Shield, the SCCs aren’t quite out of the woods yet.
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The CCPA Regulations Are Finally Here
Monday, California Attorney General Xavier Becerra submitted of the Final Regulations under the California Consumer Privacy Act (CCPA) to the California Office of Administrative Law (OAL). Under the California Administrative Procedure Act (APA), the OAL has 30 business days plus 60 calendar days (due to a COVID-related executive order) to determine whether the regulations meet the requirements of the APA. This final submission comes after various public forums, hearings, commentary, and revisions to the regulations.
Continue Reading The CCPA Regulations Are Finally Here
US Senators Propose COVID-19 Consumer Data Protection Act
At the beginning of 2020, a Federal privacy law, similar to that of GDPR or PIPEDA, was a faint and distant reality. However, in light of some mobile device and other monitoring being considered because of the COVID-19 pandemic, US Senators Roger Wicker (R-Miss.), chairman of the Senate Committee on Commerce, Science, and Transportation; John
Europe’s Privacy Law is Coming – Just Not Via California
While a lot of ink has been spilled on the California Consumer Privacy Act (“CCPA”) over the last 18 months, one of the things which has become quite apparent to those of us who view privacy through a lens which considers both EU and US perspectives is that the CCPA is actually not an EU-style law. Except for the right to delete data, all the consumer rights in the CCPA actually existed (albeit in a much less aggressive form) for many categories of information under prior California law. When one considers the number of carve-outs to the deletion right, the CCPA actually looks a lot like what is the more traditional approach to privacy that is prevalent under US jurisprudence.
Continue Reading Europe’s Privacy Law is Coming – Just Not Via California
What We Can Expect from the CCPA Regulations
While the United States largely hit the brakes as of March in the wake of the COVID-19 crisis, California Attorney General Xavier Becerra made clear his intentions to begin enforcement of the Act on July 1, 2020, as originally planned. This announcement came despite many organizations’ pleas to defer enforcement in order to relieve the additional stress imposed on organizations as they respond to the COVID-19 crisis, and continue to work towards ensuring their compliance with the CCPA. While Becerra has not yet published his final regulations on the Act, there are aspects of the regulations that we expect to be largely intact in their current form once the final regulations are out as a result of reviewing the three drafts General Becerra has already produced.
Continue Reading What We Can Expect from the CCPA Regulations
CCPA Amendments – What did California Actually Do?
The rush for California to get all of the “rules of the road” ready for next year has seemed to cause a bit of confusion with California’s privacy law. Draft regulations were published the same day the Governor signed into law a series of amendments to the underlying law. It is all a bit confusing, However, now that the Governor has signed the last raft of amendments, and the dust has somewhat settled, the question on everyone’s mind is: What changed in the California Consumer Protection Act (“CCPA”)? How does this effect the draft regulations that the Attorney General published?
Fortunately, there are a number of significant changes which help clarify the CCPA, as well as materially change the scope of the CCPA – even if the AG didn’t include some of these changes into the initial draft regulations announced earlier this month. The most impactful changes across industries are as follows:
Business employees
To start off, the issue of employee coverage under the CCPA has been a fractious one. On one hand, business has rightly claimed that the relationship with an employee is not the same as the relationship with a customer. On the other hand, privacy advocates have claimed that employees shouldn’t give up privacy rights just because they are employees.
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And the Wait for CCPA Rules is Over …. Kind Of
Attorney General Becerra’s office posted the long-awaited draft CCPA regulations a little before 2:00 pm (PST) October 10th. It was a bit of a curve ball, to be perfectly honest (considering the final swath of amendments to the CCPA are not even final until Governor Newsom signs them, or on October 13th). Tellingly, the California Administrative Procedure Act requires the California Department of Finance to approve “major regulations” (and they have 30 days to do that) prior to publication. Based on this, it would seem that these regulations were drafted prior to the amendments to the CCPA going through the legislature. This does not seem like an effective way to draft regulations, but hey, no one should tell the AG he shouldn’t jump the gun! They are now out there so, one reviews anyway.
Topping out at a modest 24 pages (the CCPA itself is 19 pages), the regulations are organized into seven articles. We’re directing our comments to the issues that pop out to us initially, and as always, we’ll post further observations as things progress.
Continue Reading And the Wait for CCPA Rules is Over …. Kind Of
CCPA Amendments – Employees and the Loyalty Program Change Nobody is Talking About
Those interested in keeping up with the latest news impacting the California Consumer Privacy Act have been heavily focused on AB 25, and its potential to exclude employees from the scope of the CCPA. In a marathon late-night session, the California Senate Judiciary Committee weighed in July 11 on various bills – including AB 25. An while AB 25 was part of the Committee debate, that amendment may actually make the bill less useful than first intended. Additionally, another bill made it out of committee which has the potential of a far greater impact than anyone seems to be noticing.
Continue Reading CCPA Amendments – Employees and the Loyalty Program Change Nobody is Talking About
Industries Seek Uniform Federal Privacy Law To Preempt Inconsistent Patchwork of State Laws
On Thursday, July 11, 2019, a diverse group of trade associations spanning numerous industries, including retail, telecom, manufacturing, and food and beverage, urged Congress to enact a consumer privacy law. In a letter to the Senate and House commerce committees, the coalition of 27 industry groups asked Congress “to act quickly to adopt a robust