CCPA

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On New Year’s Day, you may have received emails from numerous companies saying their privacy policies have changed, or noticed a link at the bottom of many companies’ homepages stating “Do Not Sell My Info.” These are two of the more visible requirements of the California Consumer Protection Act (CCPA) and companies are still in the process of rolling out other requirements. For those of you that are in the EU or doing business with companies that offer products or services to EU residents, this might have felt like the movie “Groundhog Day.”

To understand the various approaches to CCPA compliance, we reviewed the websites of 50 companies in the Fortune 500® and noticed a few trends:

1. Brace yourself (for export turbulence)

2020 could well be a year of data export turmoil – so brace yourself.

The Court of Justice of the European Union (CJEU) will determine the validity of the EU Standard Contractual Clauses (SCCs) (Data Protection Commissioner v Facebook Ireland Limited, Maximillan Schrems) whilst the General Court of the EU will consider the future of Privacy Shield (La Quadrature du Net v Commission).

The Advocate General (AG) delivered his non-binding opinion on the SCCs just before Christmas (see our blog post).  Although the AG’s view was that the SCCs are valid, he suggested that those using them would need to examine the national security laws of the data importer’s jurisdiction to determine whether they can in fact comply with the terms of the SCCs.  He also raised serious doubts over the validity of the Privacy Shield.  If the CJEU shares these doubts, it could influence the outcome of La Quadrature du Net.

Data localisation issues are also set to resurface during 2020.  China’s requirements are tricky, the Russian Data Localisation law now has monetary penalties and the draft Indian data protection bill also imposes localisation requirements in certain circumstances.

As companies get ready for the California Consumer Privacy Act’s (CCPA) effective date of January 1, 2020, compliance is complicated because there are still several moving variables:

  • Draft regulations have been proposed but may not be final until after January 1, 2020.
  • The recent amendments to CCPA include two important exceptions (business-to-business (B2B) and the “employee” exceptions) that sunset on December 31, 2020. It is anticipated that amendments to CCPA will be introduced in the California legislature during the 2020 session on these topics and others.
  • A ballot initiative to amend CCPA may be presented directly to California voters. The proposed initiative had originally been filed with the California Attorney General on September 25, 2019, but an amended ballot initiative was received by the Attorney General on November 13, 2019. This version has some potential surprises for companies subject to CCPA.

On Friday, October 11, 2019, the California Governor signed all five of the California Consumer Privacy Act amendments that were awaiting his signature (AB 25, 874, 1146, 1355, and 1564) as well as an amendment to California’s data breach law (AB 1130).  We had previously written about the impact on CCPA if all five amendments went into effect here.

On October 10, 2019, with just weeks to go until the law goes into effect, the California Attorney General released the long-awaited draft regulations for the California Consumer Privacy Act (CCPA).

The proposed rules shed light on how the California AG is interpreting and will be enforcing key sections of the CCPA.  In the press release announcing the proposed regulations, Attorney General Becerra described CCPA as “[providing] consumers with  groundbreaking new rights on the use of their personal information” and added, “It’s time we had control over the use of our personal data.”

Executive Summary

The wait is over:  Only five CCPA amendments made it through the California legislature.  The amendments are limited in scope, which means the CCPA will go into effect, largely intact, on January 1, 2020.

The California legislative session for 2019 ended on September 13 and the following five amendments to the California Consumer Privacy Act (CCPA) were passed: AB 25, 874, 1146, 1355, and 1564. They now move to the Governor’s desk, where he has 30 days to sign or veto them.

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 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).

In a 12-hour marathon hearing, the California Senate Judiciary Committee on July 9, 2019, debated, struck down, scaled back and put back on the negotiating table key amendments to the California Consumer Privacy Act (“CCPA”).

Read below to find out what happened to the much-anticipated “employee exception” bill, “customer loyalty program” bill, and the bill to remove the toll-free number requirement.

This is the Data Protection Report’s eleventh blog post in a series of CCPA blog posts. Stay tuned for additional posts on the CCPA.

As America prepares for the Fourth of July holiday weekend, the California legislature continues to work on amending the California Consumer Privacy Act (“CCPA”), as it races to get modifications passed through the state legislature before it adjourns for the 2019 calendar year. On June 28, one of those bills, AB 25, the “employee exception” bill was significantly amended by the Senate Judiciary Committee and appears to move forward, despite a recent political setback last month when the California Labor Federations announced its opposition. Three other proposed amendments are set for a hearing on July 9, including AB 1355, which will hopefully clean up several drafting errors. See below for a brief summary of the latest on “what’s cooking” in Sacramento.