The Proposed CCPA Regulations Are Here: An Overview

Morgan Lewis
Contact

Morgan Lewis

While the California attorney general’s proposed regulations do not address all provisions of the California Consumer Privacy Act, they do include new procedures and deadlines and cover compliance issues for businesses not covered by the statute. For example, there are new obligations concerning service providers, training and recordkeeping, and standards for certain businesses maintaining the personal information of 4 million or more consumers for commercial purposes, like data brokers.

The California Office of the Attorney General on October 10 released the highly anticipated proposed regulations implementing the landmark California Consumer Privacy Act (CCPA), which takes effect January 1, 2020. The public comment period for the proposed regulations ends on Friday, December 6, 2019.

The proposed regulations set forth procedures and specific deadlines and address certain compliance issues for businesses covered under the CCPA, including some new obligations that were not in the statute. While the list below is not exhaustive, this summary highlights notable areas and topics in the proposed CCPA regulations, particularly focused on those areas where new obligations are imposed. Future LawFlashes will review other aspects of the proposed regulations.

Responding to Consumer Requests to Know, Delete, or Opt Out

The proposed regulations establish specific procedures for businesses to follow when handling consumer requests to know, requests to delete, and requests to opt out of the sale of the consumers’ personal information.[1] As a general summary, the proposed regulations require that a business provide a consumer with two or more methods to exercise these rights. The proposed rules clarify that businesses are required to confirm receipt of consumer requests within 10 days and must respond to requests within 45 days of receipt. An additional 45 days may be taken if necessary as long as the consumer receives “notice and an explanation of the reason” for the extended time.

The CCPA allows a business to provide two or more designated methods for consumers to submit requests. Under the proposed regulations, requests that are submitted to the business by consumers through a nondesignated method must be treated by the business as correctly received or the business must provide to the consumers instructions on how to remedy the deficiencies to resubmit their requests. The proposed regulations also require businesses to treat user-enabled privacy controls, such as browser plugins or privacy settings, as a method by which a consumer may opt out of the sale of personal information. An opt-out by a consumer is no longer an “all or nothing” concept, as the proposed regulations state that a business may inform a consumer who has opted out when a transaction requires the sale of their personal information as a condition of completing the transaction.

Additionally, the proposed regulations incorporate the new concept of a consumer’s “authorized agent” who may exercise the consumer’s privacy rights on the consumer’s behalf. If a business transmits personal information to a consumer it must “use reasonable security measures.” Consult with counsel on additional requirements that may apply under the proposed regulations to your business practices.

On the right to opt out of the sale of personal information, the regulations also note that in the future an opt-out button or logo will be issued in a “modified version of the regulations and made available for public comment.”[2]

Verifying Requests

The proposed regulations require a business to establish a reasonable method for verifying the identity of consumers making requests to a “reasonable degree of certainty.”[3] For example, this may “include matching at least two data points provided by the consumer with data points maintained by the business, which the business has determined to be reliable for the purpose of verifying the consumer.” While this “reasonable degree of certainty” standard applies to requests to know, with respect to requests to delete, “a reasonably high degree of certainty” would apply based on “the sensitivity of the personal information and the risk of harm to the consumer posed by unauthorized deletion.” The “reasonable degree of certainty” standard would still apply to less sensitive information.

The proposed regulations permit businesses that maintain password-protected consumer accounts to use established authentication procedures. The proposed regulations require businesses that must verify non-accountholders to match a certain number of verification data points depending on the type of request. For a consumer to use an authorized agent to exercise privacy rights on their behalf, the proposed rules provide that a business may require a consumer to provide the authorized agent written permission to do so and to verify their own identity directly with the business, unless the consumer has provided a power of attorney.

If a business is unable to verify a request, it may deny the request, but must comply with the request to the greatest extent it can. For example, the business must treat a request to delete as a request to opt out.

Notice of Financial Incentive; Calculating the Value of Consumer Data

Under the right to nondiscrimination for the exercise of a consumer’s privacy rights, the proposed regulations add additional information regarding nondiscrimination to be disclosed to consumers and define the terms “financial incentive” and “price or service difference.”[4] Businesses that may offer financial incentives or a price or service difference must provide notice and an explanation to consumers of these potential offerings. The proposed regulations create an exemption for a price or service difference that is “reasonably related to the value of the consumer’s data.” The regulations provide broad guidance as to how to calculate the value of consumer data in connection with financial incentive offerings.

Businesses That Maintain Personal Information of 4 Million or More Consumers

The proposed regulations impose new standards on businesses that annually buy, share, or receive for commercial purposes, or sell the information of, 4 million or more California consumers.[5] Under the proposed regulations, these businesses must report various metrics related to the request to know, delete, and opt out for the prior calendar, include these metrics in its privacy policy, and also implement and document training related to this requirement.

Service Providers

The proposed regulations impose new obligations on service providers,[6] which process personal information on behalf of a business. The proposed regulations state that a consumer may make certain requests directly to a service provider, and the service provider can either comply with the request or deny it and inform the consumer to submit the request directly to the business. Moreover, the proposed regulations state that a service provider shall not use personal information received from a consumer or a business it services for the purpose of providing services to another person or entity. However, there is an exception that allows the service provider to combine personal information to detect data security incidents or protect against fraudulent or illegal activity.

Training and Recordkeeping

The proposed regulations include new requirements on training and recordkeeping.[7] They require that all individuals responsible for handling consumer inquiries about a business’s privacy practices or the business’s compliance with the CCPA receive training about the CCPA, including how to direct consumers to exercise their rights under the CCPA.

The proposed regulations also require businesses to maintain records of CCPA consumer requests for at least 24 months. These records may be maintained in a ticket or log format and must include the date of the request, the nature of the request, the manner in which the request was made, the date of the business’s response, the nature of the response, and the basis for the denial of any request that is denied.

What the Regulations Do Not Modify or Address

It is worth noting that the 24-page proposed regulations do not modify or address all of the provisions of the CCPA. For example, the regulations do not address a consumer’s private right of action with respect to security breaches, CCPA exceptions, or the attorney general’s enforcement standards.

The proposed regulations also do not address any of the amendments signed by Governor Gavin Newsom on October 11, 2019. Those amendments address the one-year exemption for employee data and business-to-business communications and methods to submit a verifiable consumer request.

No Safe Harbor for GDPR Compliance

The attorney general’s Initial Statement of Reasons, issued with the proposed regulations, states that the office “considered and rejected” the creation of a safe harbor exemption from the CCPA for businesses that are compliant with the EU General Data Protection Regulation (GDPR). The attorney general reasoned that the “CCPA and GDPR have different requirements, different definitions, and different scopes,” highlighting that (1) the CCPA does not prohibit the collection of personal information without express consent; (2) the GDPR does not have a right to opt out of a sale, which is a “core right” of the CCPA; and (3) the GDPR applies to both public and private sector entities, whereas the CCPA only applies to specific types of businesses. The attorney general, therefore, determined that a GDPR safe harbor would not further the purposes of the CCPA.

What’s Next?

Before the draft regulations are finalized, interested parties may submit written comments about the proposed CCPA regulations by mail or email, or at four scheduled public hearings held on the following dates in California:

  • December 2 in Sacramento
  • December 3 in Los Angeles
  • December 4 in San Francisco
  • December 5 in Fresno

The deadline to submit written comments is December 6, 2019, at 5:00 pm PT. The attorney general has stated that the expected date of final regulations and enforcement is July 1, 2020.

On September 25, at an International Association of Privacy Professional Conference, businessman Alastair Mactaggart, the primary sponsor of the California ballot initiative that was the impetus for the CCPA, announced the filing of the California Privacy Rights and Enforcement Act, a new proposed ballot initiative that is intended to further strengthen the CCPA’s privacy protections. Mr. Mactaggart hopes the initiative will garner enough votes to appear on the California ballot in the November 2020 election.

Next Steps

With the CCPA’s January 1, 2020, effective date in sight, there are a number of steps businesses can consider taking if they have not already done so:

  • Assess what “personal information” is collected based on the broad definition under the CCPA.
  • Review and update privacy policies.
  • Revise website home pages.
  • Prepare consumer notifications.
  • Consider how to verify consumer requests.
  • Consider safeguarding personal information including by encryption and redaction.
  • Review and assess “reasonable security procedures” in place to protect personal information.
  • Comply with training requirements.
  • Review recordkeeping policies and requirements.
  • If a business collects personal information of minors, special rules apply.
  • Review nondiscrimination issues to provide consumers with the right to equal service and price.
  • Review and update incident response plans.
  • Prepare employee notifications, if applicable.

Topic Series

Our privacy and cybersecurity team will be issuing a series of LawFlashes with more detailed analysis on the following topics addressed in the proposed regulations:

  • Receiving consumer requests
  • Verifying consumer requests
  • Responding to requests to know
  • Responding to requests to delete
  • Responding to requests to opt out
  • Loyalty programs and value of consumer information
  • CCPA obligations regarding minors
  • CCPA and the consumer products industry
  • CCPA and the retail industry
  • CCPA and the healthcare industry
  • CCPA obligations for employers
  • CCPA obligations for service providers

Please visit our CCPA Resource Center for more information and the latest updates.

 

[1] CCPA Proposed Regulations, 11 C.C.R. §§ 999.300 et seq.

[2] Id. § 999.306(e).

[3] Id. § 999.325.

[4] Id. §§ 999.301(g), 301(l), 337.

[5] Id. § 999.317(g).

[6] Id. § 999.314.

[7] Id. § 999.317.

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.

© Morgan Lewis | Attorney Advertising

Written by:

Morgan Lewis
Contact
more
less

Morgan Lewis 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.