California Governor Signs Limited Amendments to the California Consumer Privacy Act

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On October 11, 2019, California Governor Gavin Newsom signed five bills to amend the California Consumer Privacy Act (CCPA): AB 25, AB 874, AB 1146, AB 1355, and AB 1564. The governor’s office announced his signing of these bills one day after the California attorney general issued proposed regulations under the CCPA.

The five bills provide some regulatory relief, but certain key amendments expire on January 1, 2021. Unless the California legislature ultimately decides to extend or modify these amendments, in 2020 or beyond, businesses will need to prepare for the strictest privacy rule in the United States. The amendments providing regulatory relief include the following:

  • Employee Information Exemption. The amendments provide an exemption from the CCPA for personal information that is collected in the course of business about a job applicant to the business, or about an employee, owner, director, officer, medical staff member, or contractor of that business, so long as the information is collected and used by the business solely within the context of such relationship. This amendment also exempts personal information that is emergency contact information of these individuals or that is necessary for the business to retain to administer benefits for such individuals, again to the extent that the personal information is collected and used solely in these respective contexts. These exemptions do not apply to the obligation of a business that collects personal information to inform the consumer, at or before the point of collection, as to the categories of personal information collected and the purposes for which such information will be used. They also do not override a consumer’s right to recover damages for information security breaches.
    These exemptions expire on January 1, 2021.
  • Business-to-Business Exemption. The amendments add an exemption from many of the CCPA’s provisions for personal information reflecting a communication or transaction between a business and a consumer where the consumer is a natural person acting as an employee, owner, director, officer, or contractor of a business (including non-profits) or government agency, and whose communications or transactions with the business occur solely within the context of the business conducting due diligence regarding, or providing or receiving a product or service to or from, such business or government agency. The exemption does not apply to the rule prohibiting discrimination based on the exercise by consumers of their rights, and does not override the CCPA’s civil money penalty provisions or the rights of consumers to recover damages for information security breaches. This exemption also does not apply to the rule allowing consumers to opt-out from the sale of their personal information or to the opt-in requirement applicable to sales of information regarding consumers who are less than 16 years of age. It appears, however, that businesses would not be required to disclose those opt-out or opt-in rights to consumers given that the section of the CCPA requiring such notices (1798.135) is specifically exempted.
    This exemption also expires on January 1, 2021.
  • Deletion Exception for Certain Warranty or Product Recall Purposes. The amendments add an exception to the requirement to delete consumers’ personal information upon a consumer’s request when retention of the information is necessary for the business to fulfill the terms of a written warranty or product recall conducted in accordance with federal law.
  • Expanded Fair Credit Reporting Act Exemption. The exemption from the CCPA for the sale of certain personal information that is reported in or used to generate a consumer report under the federal Fair Credit Reporting Act (FCRA) is expanded by the amendments. The CCPA now will not apply to “an activity involving the collection, maintenance, disclosure, sale, communication or use of any personal information” bearing on a consumer’s credit worthiness or other characteristics covered by the FCRA definition of consumer report. This exemption covers the foregoing activities by consumer reporting agencies, furnishers of information for use in a consumer report, and users of such consumer reports. This exemption does not apply to the rights of consumers to recover damages for information security breaches.
  • Exclusive Online Businesses. A business that operates exclusively online and has a direct relationship with a consumer from whom it collects personal information will only be required to provide an email address for consumers to submit requests for information regarding personal information that is collected or sold.
  • Motor Vehicle Dealer and Manufacturer Exception. A limited exception from consumers’ rights to opt-out of the sale of personal information is added by the amendments with respect to vehicle information or ownership information. The consumers’ opt-out rights (or opt-in rights in the case of consumers who are younger than 16 years of age) do not apply to vehicle information or ownership information that is shared between a new motor vehicle dealer and the vehicle’s manufacturer if the information is shared for the purpose of effectuating, or in anticipation of effectuating, a vehicle repair covered by a vehicle warranty or a recall conducted pursuant to federal law. However, the new motor vehicle dealer or vehicle manufacturer may not sell, share, or use such information for any other purpose.

The enacted bills also correct a number of drafting errors and clarify certain issues. With respect to clarifications:

  • As part of determining that a consumer’s request for information is a “verifiable consumer request,” a business may require authentication of the consumer that is “reasonable in light of the nature of the personal information requested.”
  • The definition of “personal information” is amended to clarify that it includes specified information when it is “reasonably capable of being associated with” a particular consumer or household, as opposed to simply “capable of being associated with” a particular consumer or household.
  • The definition of “personal information” also is amended to clarify that it does not include consumer information that is de-identified or aggregate consumer information.
  • Whether one characterizes it as a clarification or a new exception, the CCPA as amended specifically provides that it shall not be construed to require a business to collect personal information that it would not otherwise collect in the ordinary course of business, or to retain personal information for longer than it would otherwise retain such information in the ordinary course of business.

The amendments direct the California attorney general to establish rules and procedures on how to process and comply with verifiable consumer requests for specific pieces of personal information relating to a household in order to address obstacles of implementation and privacy concerns. Given that the governor signed these amendments one day after the attorney general proposed regulations, it seems reasonable to assume that additional regulations will be proposed.

The CCPA takes effect in just a few months, on January 1, 2020. While the California attorney general may not bring an enforcement action under the CCPA until six months after the publication of final regulations or July 1, 2020, whichever is sooner, businesses that will be subject to the CCPA need to prepare for the January 1, 2020 effective date.

As a first step, a business should identify all of the covered “personal information” that it “collects,” “sells,” or discloses for business purposes. Businesses also will need to coordinate with their vendors and other third parties with which they share consumers’ personal information, or from which they obtain personal information, and in many cases adjustments to existing contracts with these third parties might be needed. In addition, covered businesses will need to develop systems to store the covered information in ways that allow the business to address consumers’ rights, implement systems to respond to consumers’ requests for information or deletion of their personal information, develop the required disclosures, and begin training of relevant staff. Finally, every business will need to make certain decisions, including whether to treat all information about individuals the same way for storage and similar purposes whether or not relating to a covered “consumer” (which depends on the individual’s residency) and whether to extend CCPA rights to all individuals regardless of their California residency.

We are assisting our clients with all of these preparatory steps. Their individual issues depend on their type of business and business model, among other things. Companies with a significant online presence, and especially those that market their products or services online, face more challenges than certain other businesses due to the ability to collect covered personal information in passive as well as active ways. Certain institutions can benefit from the CCPA exemption for information that is collected, processed, sold, or disclosed pursuant to the federal Gramm-Leach-Bliley Act, but this exemption will rarely cover all personal information that these institutions obtain. 

For more updates on CCPA, visit our California Privacy Law Center.

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).

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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 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.

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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.

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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.

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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.

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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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How We Use Cookies and Other Tracking Technologies

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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