Norton Rose Fulbright - Data Protection Report blog

The US elections on November 3, 2020 included three states with privacy-related ballot initiatives: California, Massachusetts, and Michigan. Voters supported all three initiatives.

Ballot initiative in California – California Privacy Rights Act (CPRA)

We had previously summarized this proposal to amend the California Consumer Privacy Act (CCPA) with a ballot initiative known as the California Privacy Rights Act (CPRA). Most of the changes will take effect as of January 1, 2023, but one of the immediate effects is that the initiative extends the “B2B” and “employee” exceptions through December 31, 2022.

The CPRA potentially extends the 12-month “look-back” period for access requests to an amount of time to be determined by new regulations, but this change would affect only information collected on or after January 1, 2022.

The CPRA adds two new consumer rights: a right to correct inaccurate personal information and a right to limit use and disclosure of “sensitive personal information.” In addition, California will have the nation’s first privacy regulatory agency, because CPRA creates and funds the new California Privacy Protection Agency.

The “Do Not Sell My Personal Information” website link for consumers will become “Do Not Sell or Share My Personal Information” and there will be a second link “Limit the Use of My Sensitive Personal Information.”

Although it’s not entirely clear, because the health research amendment to CCPA that the California legislature had passed in September appears to be largely unaffected by CPRA. We had previously summarized that amendment here. Because the amendment added sections to CCPA that are not affected by CPRA, the new sections apparently are unchanged.

Importantly, CPRA does not contain any new private right of action. It leaves unchanged the private right of action for breaches as currently provided in CCPA.

Ballot initiative in Massachusetts – On-Board Diagnostics (Telematics) Data

In Massachusetts, Question 1 for voters related to owner access to motor vehicle networks and on-board diagnostics systems—so-called “telematics” data. Under this ballot initiative, commencing with model year 2022, any manufacturer of motor vehicles equipped with telematics systems that are sold in Massachusetts must equip the vehicles with an “inter-operable, standardized and open access platform across all of the manufacturer’s makes and models.” The new law requires that the platform “be capable of securely communicating all mechanical data emanating directly from the motor vehicle via direct data connection to the platform.”

The data must be directly accessible by the motor vehicle owner and, with the owner’s authorization, by independent repair facilities or class 1 dealers, for the time needed to repair the vehicle or for “maintaining, diagnosing and repairing” the vehicle.

The Attorney General is required to create an explanatory notice for prospective motor vehicle owners, which the individuals will be required to sign. The new “right to repair” law provides a private right of action by owners and authorized independent repair shops denied access to the data. Penalties for each denial of access are the greater of treble damages or $10,000.

Ballot initiative in Michigan – Search Warrant for Electronic Data

In Michigan, Proposal 2 asked voters to weigh in on a proposed amendment to the state constitution. The Michigan constitution’s Article 1 § 12 is similar to the Fourth Amendment to the U.S. Constitution. The approved ballot proposal revised the state constitution section to read:

Searches and Seizures

The person, houses, papers, and possessions, and electronic data and electronic communications of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things or to access electronic data or electronic communications shall issue without describing them, nor without probable cause, supported by oath or affirmation. The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state.

Readers may recall that the U.S. Supreme Court ruled that the Fourth Amendment required the police to obtain a warrant to access a suspect’s cell phone (Riley v California, in 2014) or to access cell phone tracking data (Carpenter v. United States, in 2018). The changes to the Michigan constitution extend to “electronic data and electronic communications”— beyond what the U.S. Supreme Court had addressed.