California Attorney General Issues More Proposed CCPA Regulation Changes

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Morgan Lewis Practical Advice On Privacy: Guide To The CCPA

The California attorney general recently published proposed modifications to the operative final regulations to the California Consumer Privacy Act, including notable regulatory changes requested by the attorney general for those businesses subject to the act.

A third set of proposed modifications to the California Consumer Privacy Act (CCPA) regulations were announced by the California attorney general on October 12. The announcement comes less than two months after California’s Office of Administrative Law (OAL) approved the final CCPA regulations that went into immediate effect on August 14, as we previously reported. The latest set of proposed modifications provide illustrative examples on complying with the CCPA’s opt-out rights and the submission of consumer data privacy requests from authorized agents.

If approved by the OAL, the third set of proposed CCPA regulations requested by the attorney general would require the following.

OFFLINE NOTICE OF THE RIGHT TO OPT OUT OF THE SALE OF PERSONAL INFORMATION (PROPOSED SECTION 999.306(B)(3))

For businesses that collect personal information in person, over the phone, or through other methods not involving the internet, the proposed modifications require that notice of the right to opt out of the sale of personal information be provided through that same offline method. For instance, if a business collects personal information in a brick-and-mortar store, then the proposed modifications suggest that signage be placed at the collection point directing the consumer to the web address for the business’s privacy policy.

EASY METHODS AND MINIMAL STEPS FOR CONSUMERS TO SUBMIT OPT-OUT REQUESTS (PROPOSED SECTION 999.315(H))

The proposed modifications instruct that businesses shall not use methods that are designed to impair, or have the substantial effect of impairing, a consumer’s choice to opt out of the sale of their personal information. This requires businesses to implement minimal steps from the point of request (when the consumer clicks the “Do Not Sell My Personal Information” hyperlink) to the completion of that request. Further, a business cannot require a consumer to go through more steps to opt out than are required to opt into the sale of personal information after a consumer previously opted out. The proposed modifications also caution businesses against using confusing language when providing consumers the choice to opt out and against requiring consumers to click through or listen to reasons why they should not opt out, with limited exceptions.

AUTHORIZED AGENT REQUESTS (PROPOSED SECTION 999.326(A))

Under the proposed modifications, businesses may require a consumer’s authorized agent to provide proof that the consumer has given permission and may require a consumer to verify their “request to know” or “request to delete.”

CHILDREN’S INFORMATION (PROPOSED SECTION 999.332(A))

The proposed modifications make clear that a business having actual knowledge that it sells the personal information of consumers under the age of 13, or between the ages of 13 and 15, must provide certain disclosures in its privacy policy about the processes it uses to obtain the affirmative opt-in consent needed to sell personal information of consumers under the age of 16. While this proposal does not change the type of consent required to sell personal information of consumers under the age of 16, it does contemplate a change in how that process is disclosed in privacy policies.

Overall, the proposed modifications to the CCPA regulations make minor, noncontroversial edits to the final CCPA regulations. The attorney general is accepting public comments to the proposed regulations until October 28, 2020. As the CCPA continues to be amended and the attorney general seeks further changes to the regulations, businesses should review the proposed changes to assess any impact on CCPA compliance obligations in deciding whether to comment.

CONCLUSION

The issuance of the third set of proposed modifications to the CCPA regulations further defines the CCPA regulatory and enforcement landscape, following the August 14 approval of the final CCPA regulations by the OAL. See Morgan Lewis Insight: CCPA Final Regulations Approved and Immediately Enforceable by the California Attorney General. With the final CCPA regulations now approved and in effect, we expect broadened attorney general enforcement activity to remedy not just alleged violations of the statute, but also alleged violations of the final regulations.

The third set of proposed modifications to the CCPA regulations clarifies a few issues regarding implementation of the law’s consumer privacy rights, but does not significantly alter the regulatory and enforcement picture.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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