CCPA Draft Regulations v2.0 and the Uncertainties Continue

Womble Bond Dickinson

Don’t wait to implement your California Consumer Privacy Act (CCPA) compliance as it could require changes to your operations. CCPA can apply to businesses even if they do not have offices or employees in California. It can also reach activities conducted outside of California. See our prior alert here to see if CCPA applies to your business.

On Monday, February 10, 2020 the California Attorney General’s office released an updated version of the proposed regulations, addressing errors in the draft released before the weekend and extending the comment period to February 25th at 5p PST. For those trying to keep track of what the eventual regulations will require, the challenge is greater than the AG’s version control. MediaPRO reported on February 11th in their 2020 State of Privacy and Security Awareness Report that almost two-thirds of U.S. employees are unaware if the CCPA applies to their organization. This presumably translates to confusion at the business level or at least slow communication or progress on the compliance front, reinforcing the fact that although the revised regulations are still in draft form (and subject to further revisions), the AG will begin enforcing the CCPA July 1st so businesses should consider the implications of the current draft regulations and take prompt action.

While the AG’s redline of the updated draft rules demonstrates that a great deal of time and thought (and, ahem, lobbying) have been put into the effort, what would be helpful is if the AG included a detailed explanation of why the changes have been proposed. Some make sense, and some continue to baffle. Onward to some of the most notable of the proposed changes.

Common Sense Prevails on Interpretive Guidance

Proposed Change: Insertion of interpretive guidance emphasizing that whether information is “personal information” depends on whether the business maintains information in a way that “identifies, relates to, describes, is reasonably capable of being associated with or could be reasonably linked, directly or indirectly, with a particular consumer or household.”

Years ago, Americans were typically confused or skeptical of when the EU held that an IP address (even a dynamic IP address) constituted personal data. This has been used in some U.S. contexts, such as protected health information under HIPAA and recent FTC settlements. But as a rule, most businesses have no ability to determine that an IP address alone relates to an individual. In the latest version of the regulations, the AG emphasizes that personal information depends upon whether the detail “is reasonably capable of being associated with, or could be reasonably linked” to a person or household.

While the proposed “test” or triggering factors the AG sets forth mirror commonly used concepts under privacy laws, it’s likely businesses will focus more on application of the example included in the “guidance.” The AG suggests that if a business collects or receives an IP address absent any other linked details then that IP address is not personal information. This will not permit willful ignorance by the business, as the proposed standard is whether the business links the IP address to other details or could reasonably do so. Expanding this example to other data points, a person’s name (say, James Smith) is the ultimate identifier, no? Maybe- until you realize that except for a small subset, individual names are surprisingly common.

Relief for Service Providers

Proposed Change: Service Providers must still be prohibited from retaining, using or disclosing personal information for purposes other than providing services to the business. However, they are now afforded exceptions for certain processing such as engaging downstream service providers; internal uses to enhance the service provider’s services (not to include amassing manipulating data because it’s helpful); to detect security incidents and prevent fraud; or complying with law and part of the other exceptions afforded to businesses at Cal. Civ. Code Section 1798.145(a)(1) - (a)(4).

Service providers should be largely happy with the addition of a simple three lines that proposes the internal use of personal information by a service provider to improve the quality of its services is now permissible. This had been an unreasonable obstacle under the prior version as most service providers use some level of data to improve product and service quality. While there are still some restrictions here, service providers and their business customers no longer have to worry whether a data transfer is a sale simply because the service provider would use the personal information to build or improve the service. This may cause service providers to revisit those freshly inked contract addenda if they can convince businesses that this changes in the draft regulations is certain to stick.

When Is a Household Not a Household?

Proposed Change: A business should not comply with a request to know specific pieces of information or a deletion request unless all of the following are met: all consumers of the household jointly make the request; the business independently verifies the identify of each member of the household; the business verifies that each member is currently a member of the household.

The original definition was that a person or group occupy the same dwelling. This made imminent sense but was impractical absent a common identifier such as a street address. The proposed change largely guts the household aspect of the CCPA because a business would now potentially need to know that: 1) the individuals reside at the same address, 2) they use a common device (smart TV?) or the same service (ISP? AppleTV? Netflix?), and 3) the business identifies these individuals as sharing a group account or a common identifier. The revised definition sharply narrows the impact of the statute’s text, but also corrects for what many perceived as an odd (at best) component of a privacy law centered on individual data.

Notice Requirements – Timing and Visibility across Platforms

Proposed Change: The notice required at collection must be readily available where consumers will encounter it and or before the point of collection. Specific examples on providing notice in mobile apps, by phone or in person were added. The accessibility requirements for notices must follow the Web Content Accessibility Guidelines version 2.1 (June 5, 2018) issued by the World Wide Web Consortium.

Seeing versus encountering means what exactly? In discussing the delivery of a privacy notice at the collection of personal information, the text now reads “The notice at collection shall be made readily available where consumers will see encounter it at or before the point of collection…”. Does this mean that the privacy notice must be a pop up a la EU ePrivacy hell? “Encounter” suggests something more than a link in the footer of a web page or in a mobile app’s settings. But the remainder of the draft regulations provide no indication that something so dramatic is necessary.

Proposed Change: When collecting personal information from a mobile device in a way not reasonably expected by a consumer, a business must provide just-in-time notice within the app with a link to the full notice. In addition, where previously prohibited from using personal information for any purpose other than what is stated in the notice, the prohibition now only applies if the purpose is materially different than disclosed in the privacy notice.

This means a flashlight app can still collect your (completely unnecessary) location data.

Wait, what?! It’s reassuring that the AG’s office has been reading FTC enforcement actions and the revised draft proposes a helpful “When a business collections personal information from a consumer’s mobile device for a purpose that the consumer would not reasonably expect, it [the business] shall provide a just-in-time notice…”. After all, the FTC found that there was a great deal of consumer surprise that the app captured user location. The AG suggests a pop-up window to highlight the data collection undoubtedly included with the conspicuous privacy notice but still likely to surprise consumers, because none of us reads privacy notices anyway.

Third Party Collections

Proposed Change: Businesses that do not collect information directly from consumers no longer have to provide notice at collection if the business has appropriately registered as a data broker.

The earlier version of the rules included a GDPR-like requirement for those collecting personal information indirectly, such as through an ad network or even through the purchase of marketing lists. Under the earlier draft, the receiving business could either send the consumer whose details were acquired a timely notice along with a sale opt-out or get an attestation for the data provider.

Those details have been deleted and now a business collecting indirectly need not “provide a notice at collection to the consumer” if the business is a registered data broker. So as an incentive to data brokers, registration relieves the obligation to tell a consumer that their details have been acquired. But an unregistered data broker or a regular business purchasing a marketing list appear to have the GDPR-like consumer notification that, hey, we’ve bought your data, here’s our privacy notice, and so on. Curious concession to the much-maligned data broker industry.

Individual Rights – the Good, the Bad and the TBD

Proposed Change: In responding to a request to know specific pieces of information (i.e., a right to access your own data), the business is not required to complete a complex expedition if a series of parameters are met.

While it may be difficult for most commercial business to check all of these boxes to avoid the time and resource-intensive search for data to address a right to know request, if all of the following conditions are met, the business does not have to complete the search: 1) business does not keep the personal information in a searchable or reasonably accessible format; 2) business maintains the information solely for legal or compliance purposes; 3) business does not sell personal information or use it for any commercial purposes; and 4) business tells the consumer the categories of records that may contain personal information but were not searched based on these criteria. Even if this doesn’t get them out from under the requirement altogether, it may allow businesses to eliminate certain systems or applications from the scope of searches.

Proposed Changes: For the right to know and the right to delete, businesses: have 10 business days to acknowledge receipt of requests to know or to delete; can deny a request if the consumer cannot be verified in the first 45 days; and requiring notarized documentation now comes at a cost to businesses.

Businesses have a bit more time to acknowledge receipt of right to know and deletion requests and can now flat out deny a request if the business cannot verify the consumer in the first 45-day period. However, for businesses that hoped to rely on notarized documentation as part of the verification process for authenticating consumers or their agents, the revised regulations require the business to compensate the requestor for the cost of notarization. In other words, businesses cannot charge a fee (or cause consumers to incur fees) for verification of the request to know or delete.

Proposed Change: Personal Info Buttons

As promised, the AG has proposed an opt-out button for Do Not Sell My Personal Info requests. Not being User Experience experts, we find it confusing. The privacy geeks on Twitter exploded over the weekend and generally used impolite words to describe the consumer-friendliness of the graphic. Anyway, you can use your own ‘button,’ but be sure that it is clear to the consumer wishing to opt out.

Proposed Change: The opt-out right no longer provides for preemptive opt-out if the business does not currently sell personal information. Businesses have 15 business days to comply with a request and have more limited obligations with regard to telling third parties not to sell information.

Plain reading of the original language allowed a consumer to direct a business that sells or “in the future may sell” personal information to stop selling the information and to “refrain from doing so in the future.” The revised regulations focus on current activities that constitute a “sale.” Businesses are no longer on the hook for the 90-day lookback to tell any third parties to whom the business has “sold” information about the opt-out request. Under the proposed change, businesses need only notify third parties if the business sells information to the third party after the consumer opts out and before the business complies with the opt out.

We have provided a link above to the AG’s redline of the new draft rules, and we encourage all to give it a thorough read. The comment period remains open until February 25th and there are proposed changes beyond those that we have recapped here.

[View source.]

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.

© Womble Bond Dickinson | Attorney Advertising

Written by:

Womble Bond Dickinson

Womble Bond Dickinson on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

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 (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

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

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:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

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.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • 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.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

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

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 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 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 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

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:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

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

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

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:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

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 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:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.