If At First You GDPR, CCPA, CCPA Again

Fox Rothschild LLP
Contact

Fox Rothschild LLP

The California Consumer Privacy Act (CCPA), which takes effect in 2020, has been dubbed “GDPR-Lite” or “California GDPR” because it shares many concepts and compliance obligations with the EU General Data Protection Regulation (GDPR). Both include expanded disclosure obligations and guarantee individuals the right to receive access to their information, request that their information be deleted and opt out of the sale of their information.

So, if the laws are so similar, does that mean companies that went through a robust GDPR compliance exercise before the EU privacy regulations took effect in May 2018 are also fully prepared for the CCPA?

Unfortunately, the answer is no.

If your company has already done some work toward GDPR compliance, below are the key steps you will need to take to get ready for the CCPA:

Determine Whether CCPA Applies to You

  • Are you a commercial entity (operating for profit)?
  • Are you a California-based or registered entity OR an entity that “does business in California?”
    • CCPA does not define the phrase “doing business in California,” but under existing California tax laws it includes out-of-state companies with no physical presence in California that “actively engage in any transaction for the purpose of financial or pecuniary gain or profit” and meet certain financial thresholds.
  • Do you process personal information or is personal information processed on your behalf?
  • Do you determine the purpose and means of processing personal information?
  • Do you meet any of the following thresholds?
    • Generate at least $25 million in annual gross revenue
      • [This is likely to mean generally, and not just from California]
    • Buy, sell, share and/or receive the personal information of at least 50,000 California consumers, households or devices, per year
    • Derive at least 50 percent of annual revenue from selling California consumers’ personal information.
  • Do you control or are you controlled by an entity meeting the above criteria and share common branding with it?

Continue Your Data Mapping to Include a Broader Definition of Personal Information

  • Include U.S. data: If your U.S. and EU data was relatively segregated when you were gearing up for GDPR, you may have opted to set the U.S. data aside and concentrate only on the EU data. To prepare for CCPA, you need to map any personal information that relates to California residents. In many cases it would be a good idea to map all of your U.S. data in view of the growing number of U.S. state privacy laws that are likely to impose similar obligations regarding Personal Information in other states.
    • As of now, California employee information seems to be included in the definition of Personal Information, but that may change in the near future as an amendment carving out employee data recently received a positive vote from the California Assembly’s Privacy and Consumer Protection Committee.
    • Don’t forget to include internet activity for all U.S.-facing websites: this includes click stream, interactions with the website, browsing history, IP address and mobile device ID.
  • Even if you mapped all of your data originally – update to include additional aspects of personal information, such as:
    • Inferences drawn from any Personal Information to create a profile about a consumer reflecting their preferences, characteristics, behavior or attitude
    • “Household” and “device” data

Consider Whether To Develop a Compliance Plan for, or Take Advantage of the Carve-Outs for Certain Types of Data Provided by CCPA

  • Publicly available information;
  • Certain medical and health information:
    • If you collect or sell medical or health information, assess whether it is (1) “Protected Health Information” covered under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) or (2) the Confidentiality of Medical Information Act. Even if it is, consider whether information de-identified pursuant to HIPAA may still be “Personal Information” under CCPA.
    • Even if it is not, consider the fact that under CCPA, health information is not entitled to a higher compliance standard in the vein of “special category data” under GDPR.
  • Certain financial information: If you collect or sell financial information, assess whether you (1) buy or sell information from consumer reporting agencies, (2) collect or sell non-public personal information under the Gramm Leach Bliley Act (GLBA) or (3) collect or sell information covered by the California Financial Information Privacy Act.
  • Personal Information under the Driver’s Privacy Protection Act.
  • Personal Information collected as part of certain clinical trials.

Assess and Amend Your Service Provider Agreements

  • Map all the service providers that process Personal Information for you.
  • Amend the agreements to include obligations such as:
    • Use/disclose/retain only for the specific purpose of performing the services specified in the agreement
    • Timely respond to access and deletion requests
    • Provide access to information in portable and readily usable format
    • Operationalize “opt outs”

Assess and Amend Your Data Sharing Agreements

  • Include requirements for a third party to notify individuals when it intends to sell personal information about those individuals that has been sold to it by the business, and provide the opportunity to opt out.
  • If sharing de-identified or aggregated information, include requirements for:
    • technical and procedural safeguards to prevent re-identification
    • business processes to prohibit re-identification
    • prohibition of any attempt to re-identify

Devise a Process To Verify the Identity of an Individual Making an Access, Deletion or Opt Out Request

Devise a Process to Address Access Requests

  • If you have not yet instituted a process for responding to access requests, devise a process that includes providing the required disclosures:
    • The categories of personal information you collected about the consumer
    • The categories of sources from which the personal information is collected
    • The business or commercial purpose for collecting or selling personal information
    • If you sell information, the categories of personal information that the business sold
    • The categories of third parties with whom you share personal information
    • If you sell information, the categories of third parties to whom the personal information was sold, by category or categories of personal information for each third party to whom the personal information was sold
    • If you disclose information for a business purpose, the categories of personal information that the business disclosed about the consumer for a business purpose
    • The specific pieces of personal information collected about that consumer
  • If you have instituted a process for addressing access requests under GDPR:
    • Consider whether to adapt the scope of access to include only information (1) collected or sold (as opposed to “processed”) and (2) only in the preceding 12 months, and whether to limit responses to just twice a year.
    • Adapt the disclosure you provide with the responses to include:
      • If you sell information, the categories of personal information that the business sold
      • The categories of third parties with whom you share personal information
      • If you sell information, the categories of third parties to whom the personal information was sold, by category or categories of personal information for each third party to whom the personal information was sold
      • If you disclose information for a business purpose, the categories of personal information that the business disclosed about the consumer for a business purpose
    • Find a portable and readily usable format for sending the information.
    • Use the CCPA timetable of 45 days or have a 30-day GDPR timetable across the organization.
  • In either case, provide two methods individuals can use to exercise their rights, one of which needs to be a toll-free telephone number.

Devise a Process To Address Data Deletion Requests

  • If you have not instituted a process for responding to data deletion requests, devise a process that includes:
    • Knowing where all the relevant information collected from the individual is located
    • Assessing whether an exception applies to responding
    • Informing and educating all the relevant stakeholders of the need for timely responses
  • If you have instituted a process for responding to deletion requests under GDPR:
    • Amend the deletion procedures to apply across the board and not only for specific legal circumstances (like GDPR).
    • Consider whether to apply the deletion procedures to all information (like for GDPR) or only information collected from the individual (as CCPA requires).
    • Consider whether to use the CCPA timetable of 45 days or have a 30-day GDPR timetable across the organization.
    • Use existing GDPR exceptions to the right of erasure or utilize the additional exceptions available under CCPA including:
      • Detect security incidents, protect against malicious, deceptive, fraudulent or illegal activity; or prosecute those responsible for that activity.
      • Debug to identify and repair errors that impair existing intended functionality.
      • For uses that are “reasonably anticipated” in the context of the relationship or the purpose for providing the information
        • You should document the process for determining that your use falls under this exception in case it is challenged later.

Devise a Procedure for Addressing the Right to Opt Out of a Sale

  • Assess which of your data sharing activities are included in the broad CCPA definition of “sale.” This can include:
    • Sharing for marketing/advertising purposes
    • Sharing for a third party’s analytics purposes
    • Sharing (e.g. with data brokers) in consideration for a service or acknowledgement
    • Any situation in which you receive a benefit you are not entitled to receive by law in exchange for the information
  • Assess whether you are able to take advantage of any of the exceptions to the definition of sale, such as:
    • You were directed to share the information by an individual OR an individual uses your business to intentionally interact with a third party and the agreement with the third party with whom the information is shared prohibits sharing that is not consistent with the original purpose.
    • You share the information in order to notify a third party that an individual has opted out of the sale of his/her information.
    • You are sharing information as necessary to perform a business purpose provided that: (1) this sharing was included in your notice and (2) the agreement with the service provider prohibits further use of the information other than as necessary for the business purpose.
    • You are sharing the information as part of a business reorganization.
  • Devise an opt-out process for any sharing activities you determine constitute a “sale.”
  • If you have a cookie consent management platform, consider whether to adopt that for use with California consumers or use an opt-out based tool.

Amend Your Data Portability Procedures

  • If you have a GDPR process, amend the procedure to include all situations where data access is requested (not only data collected based on the legal bases of “contract” and “consent”).

 Revise Your Online Privacy Notice

  • If you have not amended your privacy notice in connection with GDPR, amend it to incorporate the additional disclosures required by CCPA. These include:
    • Categories of information collected – not just on the website
    • Categories of sources from which the information has been collected
    • Separate lists of categories of information collected, sold or disclosed over the past 12 months
    • Purposes for which the information collected will be used
    • If the business sells personal information, the rights to which the individuals are entitled and how to exercise them
    • Description of your financial incentive programs
  • If you have amended your privacy notice in connection with GDPR, further amend it to address the following issues:
    • Include separate lists of categories of information collected, sold or disclosed over the past 12 months (or the fact that you have not done so)
    • The additional rights to which California residents are entitled
    • Your financial incentive program
  • Institute a process for amending your privacy notice every 12 months.
  • Provide a “clear and conspicuous link” titled “Do Not Sell My Personal Information” on the business’s homepage OR create a homepage that is dedicated to California consumers.

Assess Your Financial Incentives/Loyalty Plans

  • Disclose the plan/incentive in the privacy notice.
  • Devise a process for getting opt-in consent for participation in the program.
  • Ensure that your financial incentive practices are not unjust, unreasonable, coercive or usurious in nature.
  • Ensure that any (1) difference in price or rate that you charge consumers, (2) different quality of goods or services or (3) financial incentives, including payments to consumers as compensation for the collection of personal information, the sale of personal information or the deletion of personal information, are reasonably related to the value provided to the consumer by the consumer’s information.
    • Document your analysis of the relationship between the incentive and the value provided by the information to make the rates defensible.
    • Note: The criterion here is not explained in the law and would benefit from guidance from the California Attorney General.

[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.

© Fox Rothschild LLP | Attorney Advertising

Written by:

Fox Rothschild LLP
Contact
more
less

Fox Rothschild LLP 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 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

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 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.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (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 legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. 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 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.

- 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.