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.
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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.
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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.
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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.
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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.
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Upcoming Webinar Series! California Consumer Privacy Act: Is your organization ready?
In just a few short months, on January 1, 2020, the California Consumer Privacy Act (CCPA) is set to go into effect, establishing new consumer privacy rights for California residents and imposing significant new duties and obligations on commercial businesses conducting business in the state of California. Consumer rights include the right to know what
Proposed Amendment to Expand CCPA Private Action Stalls
Cross-Posted from Carpe Datum Law Blog
Senate Bill 561, which would have generated even greater compliance challenges and litigation risk for businesses, has been held in committee and placed on suspense. This development effectively prevents the bill from advancing for a vote and is a bit of CCPA good news for businesses. It also serves
2019: Is This The Year of Consumer Privacy (or, Elephants, Elephants Everywhere)
In prior posts, we’ve commented on the California Consumer Privacy Act (“CCPA”), likening it, and its Texas ‘flavored’ variant(s), to ‘elephants in the room’. Here, we’ve opted to expand our coverage and talk about what we’re seeing other states do (or, let’s expand the elephant metaphor to: elephants, elephants everywhere.)
It seems that all of a sudden, consumer privacy is THE hot topic and everyone’s jumping on the CCPA bandwagon! Consumers have woken up to what is happening with their personal information and are demanding government protective action! These are sensationalist statements, to be true, but are they accurate statements? Well, as is usually the case it is a bit more nuanced and it is important to set some things straight.
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And Texas joins the Privacy Fray – Part 2 (or, Everything is Bigger in Texas…)
In Part 1 of our ‘Texas Joins the Privacy Fray’ series, we focused on the Texas Consumer Privacy Act. Here, we shine the light on the Texas Privacy Protection Act (HB 4390).
The TXPPA is distinguishable from both the TXCPA and the CCPA because the applicability threasholds are different. For the TXPPA to apply,