California Enacts Mini-GDPR Effective January 1, 2020

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Covered businesses will need to update policies and procedures for responding to customer inquiries about collection, use, sale and disclosure of customers’ personal information or face stiff enforcement actions.

Takeaways

  • The California Consumer Privacy Act of 2018 provides consumers with broad rights to control use of their personal information by covered businesses.
  • Covered businesses will need to review and revise their existing privacy policies to make the required disclosures and to provide two methods for customers to inquire about use of their personal information.

On June 28, California Governor Edmund Gerald “Jerry” Brown signed into law Assembly Bill 375, enacting The California Consumer Privacy Act of 2018. The new law provides consumers with expansive rights and control over the personal information obtained by or shared with covered businesses.

When does The California Consumer Privacy Act of 2018 go into effect?

January 1, 2020.

What are consumers’ rights under the new law?

  • Right to request disclosure of information collected about the individual (including categories and specific information)
  • Right to request disclosure of information about the individual that the covered business has sold or shared for business purposes
  • Right to request deletion of personal information held by a covered business (except, among other reasons, to enable solely internal uses that are reasonably aligned with the expectations of the consumer, to comply with a legal obligation, where retention is necessary to complete a transaction for the individual or reasonably anticipated in the context of a business’s ongoing relationship with the consumer, for security reasons such as to protect against fraudulent or illegal activity or to prosecute such activity)
  • Right to opt out of the sale of the consumer’s personal information
  • Right not to be discriminated against because of choices regarding her/his personal information.

Who is required to comply?

A covered business is any legal for-profit entity (and any entity that is controlled by or controls such entity) that collects personal information, which alone or with others determines the purposes and means of processing that information and which (a) has annual gross revenues exceeding $25 million or (b) annually buys, sells, receives or shares personal information of 50,000 consumers or more, or (c) derives 50 percent or more of annual revenues from selling consumer information.

What does “Personal Information” include?

Personal information includes, without limitation, information which identities a natural person residing in California (“consumer”) (such as name, alias, postal address, unique personal identifier, online identifier, IP address, email address, account name, Social Security Number, driver’s license number, passport number, etc.), any categories of personal information in Civil Code §1798.80 (i.e., any information that identifies, relates to, describes, or is capable of being associated with, a particular individual, including, but not limited to, his or her name, signature, Social Security Number, physical characteristics or description, address, telephone number, passport number, driver’s license or state identification card number, insurance policy number, education, employment, employment history, bank account number, credit card number, debit card number, or any other financial information, medical information, or health insurance information), characteristics of protected classifications under California or federal law, commercial information, personal property records, products or services purchased, obtained, or considered, or other purchasing or consuming histories or tendencies, biometrics, internet activity (browsing history, search history, etc.), geolocation information, audio, electronic, visual, thermal, olfactory or similar information, professional or employment-related information, and education information.

What information is exempt?

  • Information collected by a covered business or which is governed by the Health Insurance Portability and Accountability Act (HIPAA),
  • Information from a consumer reporting agency,
  • Information collected through activities taking place wholly outside of California,
  • Information collected, processed, sold or disclosed pursuant to the Gramm-Leach-Bliley Act (GLBA), or
  • Information collected, processed, sold or disclosed pursuant to the Drivers Privacy Protection Act of 1994 (18 U.S.C. § 2721).

What disclosures are required?

Pre-request disclosures at point of collection or in the privacy policy:

At least two methods for submitting requests for disclosure must be provided, including a toll free phone number and website address. The privacy policy (which must be updated at least once every 12 months) must include a list of the categories of personal information being collected, sold or disclosed during the prior 12 months, the sources from which the information is collected, the categories of third parties with whom the information is shared, and the purposes for which the information is used or a statement that personal information has not been sold or disclosed during the prior 12 months. The covered business cannot use the collected information for other purposes without providing notice to consumers in advance of the new use. The privacy policy also must include a description of rights called “Do Not Sell My Personal Information” along with a link to a page enabling an opt-out.

The covered business’s website homepage must include a link called “Do Not Sell My Personal Information” linked to a page enabling an opt-out.

Upon Request:

Covered businesses must respond within 45 days to a verified request, but this period can be extended for another 45 days and up to a total of 90 days depending on the complexity of the information and circumstances. Any request must be verifiable as that of the individual whose information is being requested.

Disclosure may be by mail or electronically (if made electronically the information must be portable and in a usable format).

Disclosures must include the categories of information collected, the categories of sources from which the information is collected, the business purposes for collecting or selling the information, the categories of third parties with whom information has been shared or to whom sold during the prior 12 months including the categories of information sold or shared with each third party, and the specific pieces of personal information collected about the requesting individual. Disclosures must be free unless the business can show the request is repetitive or unfounded, in which case a reasonable fee may be charged.

Covered businesses are not required to respond to an individual’s request made more than twice in any 12-month period.

Can a business offer a financial incentive to a consumer for the collection, sale or deletion of information?

Yes, a covered business may offer payment to consumers as compensation or a different price, rate, level or quality of goods or services if the price difference is directly related to the value provided to the consumer by the consumer’s data. Such an incentive program must require the affirmative opt in of the consumer after notification of the terms of the incentives.

A covered business may not discriminate against a consumer because the consumer exercised its rights under the new law. For instance, a covered business may not deny goods or services to the consumer, charge different prices or rates for goods or services through the use of discounts, benefits or imposing penalties, provide a different level or quality of goods or services, or suggest that the consumer will receive a different price, rate or quality of goods or services if the consumer exercises its rights under the statute.

Who can enforce the statute?

A covered business shall be in violation of the new law if it fails to cure any alleged violation within 30 days after being notified of the alleged noncompliance. The California Attorney General can enforce this statute. In addition, a consumer can institute a legal action if, before suing, the consumer provides 30 days written notice to the covered business and the covered business does not cure the defect; the consumer notifies the Attorney General within 30 days of filing an action and the Attorney General, within 30 days, either notifies the consumer (a) that the Attorney General will prosecute the claim (but if no claim is filed within six months, the consumer may proceed), or (b) that the Attorney General will refrain from acting (in which case the consumer may proceed), or (c) that the consumer may not proceed with an action.

What are the penalties for violation?

If there has been an unauthorized access, exfiltration, theft or disclosure of personal information as a result of the covered business’s violation of a duty to implement reasonable security procedures, a consumer may recover damages not less than $100 but not greater than $750, plus injunctive or declaratory relief.

Any covered business that fails to cure a violation after notice shall be liable for penalties set out in Business & Professions Code §17206 ($2,500 per violation) in an action brought by the Attorney General.

Any person, business, or service provider that intentionally violates this title may be liable for a civil penalty of up to $7,500 for each violation.

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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JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

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Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

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How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
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  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
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How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

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We use cookies and other tracking technologies to:

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There are different types of cookies and other technologies used our Website, notably:

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Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

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If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

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