The California Consumer Privacy Act (CCPA) imposes new transparency and disclosure obligations on businesses’ use, sale, and disclosure of consumer information. Businesses will need to honor requests from consumers to access their personal information, delete their personal information, and opt out of the sale of their personal information. “Personal information” is more broadly described in the CCPA than in any prior statute: that is, “information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household.”

Continue Reading Pseudonymized Personal Information on Blockchain Not Sufficient Under CCPA

At the core of complying with the CCPA is knowing how to deal with consumer’s requests with respect to any of the eight rights regarding their personal information (PI), which are:

  1. An abbreviated right to disclosure regarding PI collected (§1798.100)
  2. An expanded right to disclosure regarding PI collected (§1798.110(a))
  3. Right to disclosure regarding PI sold or disclosed for a business purpose (§1798.115)
  4. Right to opt-out of sale of PI (§1798.120)
  5. Right to opt-in for sale of minor’s PI (§1798.120(c))
  6. Right to deletion of PI collected (§1798.105)
  7. Right to access PI (§1798.100(d))
  8. Right to not be discriminated against (§1798.125)

Continue Reading CCPA 12-Month Compliance Series Part 5: Responding to Consumer Requests

Does your company use chatbots to interact with customers online? If so, California’s new Autobot Law, Cal. Bus. & Prof. Code § 17940, et seq. (SB 1001) goes into effect July 1, 2019 and may affect your business. As the nation’s first autobot regulation, SB 1001 makes it unlawful “to use a bot to communicate or interact with another person in California online, with the intent to mislead the other person about its artificial identity for the purpose of knowingly deceiving the person about the content of the communication in order to incentivize a purchase or sale of goods or services in a commercial transaction or to influence a vote in an election.”

Continue Reading I Am Robot: California’s New Law Requires Disclosure of Use of Bots

A business that is subject to the CCPA will need to update its consumer-facing online privacy policy. At a bare minimum, a privacy policy (and any California-specific privacy disclosure) must disclose:

  • A description of a consumer’s right to disclosure regarding the personal information (“PI”) that the business has collected about the consumer, a consumer’s right to disclosure regarding the business’s sale of her or his PI, and a consumer’s right not to be discriminated against for exercising any rights under the CCPA [Cal. Civ. Code §1798.130(a)(5)(A)];
  • Categories of PI collected, sold, or disclosed in the preceding 12 months [Cal. Civ. Code §1798.130(a)(5)(B)&(C)]; and
  • Two or more designated methods for submitting consumer requests, including a toll-free number and a website address [Cal. Civ. Code §1798.130(a)(1)].

Continue Reading CCPA 12-Month Compliance Series Part 4: Update Your Privacy Policy

It is no secret that artificial intelligence (“AI”) is set to become the next wave in technological innovation. AI is expected to create as many as 133 million new jobs by 2022 and boost the global economy by $13 trillion by 2030. However, successful machine learning depends on large and broad data sets, including personal information, and the extraordinary pace of development is forcing nations to reevaluate their laws in order to compete within the industry. Continue Reading Promoting and Regulating Artificial Intelligence

On April 9, 2019, the California Senate Judiciary committee voted to advance SB 561, which would expand the private right of action to any violation of the CCPA (not just for negligent breaches) and would eliminate a business’s 30-day right to cure. (Video available here.) During the hearing, several senators expressed serious concerns with the bill as currently drafted and made clear they expect to see changes to the bill or will not vote to move the bill forward. The bill will next be heard by the appropriations committee, followed by a Senate floor vote, before it moves on to the House. Continue Reading Takeaways from CA Senate Judiciary Hearing on Bill That Would Expand CCPA’s Private Right of Action

When creating a privacy program, it is important to look ahead and think strategically about who your audience might be. For businesses that might find themselves under the scrutiny of regulators and judges because of a lawsuit, unwanted publicity, or data breach, it is critical to be able to demonstrate substantial compliance for the program they’ve implemented. This can be accomplished by developing privacy programs that follow guidance promulgated by their audience—regulators and courts. This guidance includes the CNIL’s (the French Data Protection Authority’s) Six Steps for GDPR Compliance, along with Federal Trade Commission orders such as the Vizio 2017 order, which provide a roadmap for a comprehensive privacy program that can be distilled down to six main phases Continue Reading Six Phases of Compliance for a Comprehensive Privacy Program

After conducting a data inventory (see Part 2 of our CCPA series), a business should assess its risks by benchmarking its policies and practices with applicable privacy laws and regulations. Conducting a gap analysis is a critical tool in identifying compliance gaps and developing a plan to bridge those gaps. See e.g.Stipulated Order for Permanent Injunction and Monetary Judgment, Federal Trade Commission & Others v. Vizio, Inc., No. 2:17-cv-00758 (D.N.J. Feb. 6, 2017), Document 1-3 at 5 (privacy program includes addressing privacy risks related to the development and management of new and existing products and services) and CNIL (the French Data Protection Authority) Guidance on Six Steps for GDPR Compliance (step three to identify actions to comply with current/future obligations and to prioritize such actions based on risks). Continue Reading CCPA 12-Month Compliance Series Part 3: Conduct a Gap Analysis

The GDPR and the CCPA have made headlines for their wide scope and impact on privacy practices. On the issue of data security, they take somewhat different approaches, but the bottom line for companies is quite similar: data security measures tailored to the company’s risk profile and actual practices are essential for both legal compliance and the protection of the company and its customers.

The GDPR makes data security a general obligation for all companies processing personal data from the European Union (EU) by requiring controllers and processors to implement “appropriate technical and organizational measures to ensure a level of security appropriate to the risk” (Article 32). As stated in the GDPR, such measures include: pseudonymization and encryption; ability to ensure the ongoing confidentiality, integrity, availability, and resilience of systems and services; ability to timely restore availability and access to personal data in the event of a physical or technical incident; and processes for regularly testing, assessing, and evaluating the technical and organizational measures to ensure the security of processing. Comprehensive internal policies and procedures are thus crucial for all companies controlling or processing EU personal data. Recent enforcement brings home this point, as the Portuguese supervisory authority (CNPD) fined a hospital for using software that provided inadequate patient protections, even though the hospital asserted that it used the software provided by the Portuguese Health Ministry. Continue Reading Cybersecurity, GDPR, and CCPA

I wanted to take this opportunity to share the key takeaways from yesterday’s Senate Judiciary Committee hearing on The State of Data Privacy Protection: Exploring the California Consumer Protection Act and its European Counterpart (see video), where I presented my thoughts regarding a path forward for data management that involves transforming our view of data and reimagining data as a pre-tangible asset in this post-data world. Here are my takeaways from the hearing: Continue Reading CCPA- Key Takeaways from the California State Senate Judiciary Informational Hearing on the State of Data Privacy Protection: Exploring the California Consumer Protection Act and its European Counterpart