August 2019

We are seeing companies use many different approaches to the California Consumer Privacy Act (“CCPA”) compliance, but the “wait and see” approach in particular is not advisable.

Companies who want to “wait and see” point to the pending amendments to CCPA that are currently working through the California Senate (as we have previously described—see links below). Others point to the California Attorney General regulations that will be released in draft form in the next few months, which should provide some guidance to implementing CCPA.

Those statements are indeed accurate, as far as they go. However, they neglect the fact that most business cannot turn on a dime and do not have a robust grasp on the IT and business systems that collect and share personal information. Given that January 1, 2020 is almost upon us and July 2020 follows close behind, there simply will not be enough time once the amendments are passed and the guidance provided, to implement CCPA if you do not start now (or ideally, have started already).

On 4 July 2019, the CNIL published new guidelines on cookies and other similar technologies, repealing its 2013 cookie guidance in order to align its position with the GDPR’s new requirements on consent. These guidelines will be supplemented during the first quarter of 2020 by sectoral recommendations aimed at providing practical guidance to stakeholders on how to collect consent.

On August 12, the California legislature returns after its summer recess. Starting with the Senate Appropriations Committee Hearing today, the legislature will now have approximately a month to continue the markups and send California Consumer Privacy Act (CCPA) amendments to the Governor’s desk for signature before the September 13 deadline.  As previously reported, any amendment that passes from the Senate will likely need to go back to the Assembly since many of them have been marked up significantly by the Senate. Below is a summary of the seven amendments that are moving forward and what they mean for businesses who are working on implementing a CCPA program.  Click here for our previous coverage of AB 25 (employee exception), AB 846 (customer loyalty program), and AB 1564 (consumer request methods).

On 29 July 2019, the European Court of Justice (ECJ) issued its judgement on Case C-40/17 (the “Fashion-ID” case). In its ruling, the ECJ held that operators of websites embedding Facebook’s “Like” button act as data controllers jointly with Facebook in respect of the collection and transmission to Facebook of the personal data of visitors to the relevant websites. In relation to these processing activities, the website operators must inform their website visitors about the data processing activities for which they act as a joint controller with Facebook, must establish a lawful basis for these processing activities and, where applicable, must collect relevant consent from the website visitor.

The U.S. Clarifying Lawful Overseas Use of Data Act (“CLOUD Act”) is apparently the Goldilocks of the privacy world, according to recent statements issued by two international jurisdictions. The CLOUD Act’s requirements are “too hard” for Australian law, according to the Law Council of Australia, but the privacy protections are “too soft” for the European Data Protection Board and European Data Protection Supervisor. The current lack of any executive agreements between the U.S. and another jurisdiction under the CLOUD Act seems to indicate that the U.S. has not yet found a jurisdiction that is “just right” for the CLOUD Act.