Introducing… the Global Privacy Control

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Bradley Arant Boult Cummings LLP

One of the most reoccurring questions we’ve gotten from companies subject to CCPA that have a “Do Not Sell” link has been “What the heck do we do about this global privacy control?” Up until now, there wasn’t a clear, or even semi-helpful, answer to that question that didn’t involve a fair amount of guesswork. We now have our answer — the aptly named “global privacy control” — but what exactly does it mean?

This concept of “user-enabled global privacy controls” was introduced in the CCPA regulations and left companies scratching their heads as to what it meant. Specifically, Section 999.315(c) states:

If a business collects personal information from consumers online, the business shall treat user-enabled global privacy controls, such as a browser plug-in or privacy setting, device setting, or other mechanism, that communicate or signal the consumer’s choice to opt-out of the sale of their personal information as a valid request submitted pursuant to Civil Code section 1798.120 for that browser or device, or, if known, for the consumer.

The use of the word “shall” coupled with the seemingly unascertainable scope of this provision understandably got the attention of those tasked with CCPA compliance. Based on a literal reading, a business has to somehow monitor for the development of any type of mechanism that might provide an opt-out and recognize it or risk being considered non-compliant with CCPA. One caveat, subsection (1), provided that “[a]ny privacy control developed in accordance with these regulations shall clearly communicate or signal that a consumer intends to opt-out of the sale of personal information.” So, businesses only have to monitor for every possible mechanism that “clearly” communicates or signals an intention. This was an added revision made to the original draft regulations, so presumably the regulators see this as a meaningful limitation. Nevertheless, there remains no apparent limitation on a business’ obligation to proactively monitor for highly technical implementations that a business may have no internal capability to address, even if it identifies such a global privacy control. For those wrestling with this dilemma there was a temporary measure of comfort. Specifically, in the Final Statement of Reasons for the CCPA Regulations, the OAG stated that the subsection cited above “is forward-looking and intended to encourage innovation and the development of technological solutions to facilitate and govern the submission of requests to opt-out” (see FSOR at p. 37). So we knew, at the very least, the OAG had no signals in mind at the time and businesses were not expected to be processing any.

Unfortunately, it would appear that the window of comfort is coming to a close. A number of organizations, including the likes of DuckDuckGo, the Electronic Freedom Frontiers, Mozilla, the NY Times and the Washington Post, are implementing the aptly named “global privacy control” (GPC) specification. This specification explicitly references this provision of the CCPA regulations stating “[t]he GPC signal will be intended to communicate a Do Not Sell request from a global privacy control, as per CCPA-REGULATIONS §999.315.” Given the express intent and the industry players involved, it would appear that this is the first foray into the user-enabled global privacy control. Businesses that have a “Do Not Sell” link should take note and begin to determine how they can comply.

Even though this one has cornered the market on the name, it is highly doubtful this will be the last user-enabled control to signal a user’s intent to opt-out, so businesses need to dedicate resources to addressing this evolving issue.

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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