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.”

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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:
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To comply with the CCPA, you need to know your data. You need to know what personal information you collect, where it is collected and stored, and whether, to whom, and for what purpose, it is shared or sold. And to know your data, you need to conduct a thorough data inventory.

The process of creating and maintaining a data inventory differs from company to company; however, several key steps are common across industries. First, you need to identify all personal information your company is collecting and where, or from whom, such information is obtained. You also need to identify where the personal information is stored and whether it is shared or sold to others. If personal information is shared with or sold to others, you need to know to whom and for what purpose. In addition, the inventory should have a mechanism to track the 12-month “lookback” period for responding to consumer data requests. If you had prepared a data inventory for GDPR, that would be helpful, but it would not be the end-all for CCPA compliance, as GDPR inventories (or Article 30 reports) are typically limited to personal information flowing from the European Union and to the data elements contained within GDPR’s definition of “personal data.”
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For any company handling personal information (PI), an incident involving unauthorized access of the PI may be a question of when and not if. The question then becomes: what does the company need to do? Having an incident response plan that outlines the roles and responsibilities of company stakeholders, the steps the company will take in response to an incident, and the issues it must consider is essential to re-securing the network, meeting the legal obligations arising out of the incident, and minimizing the monetary and reputational harm to the company. All 50 states have breach notification laws that require businesses to take certain actions in the event of a data breach. While notification laws vary from state to state, most states require notification without unreasonable delay and are starting to impose deadlines as short as 30 days. Meanwhile, the GDPR requires a controller to notify “without undue delay” a data breach to the supervisory authority within 72 hours, and if the breach is likely to pose a “high risk to the rights and freedoms” of individuals, it must also notify the affected individuals.
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Recent privacy laws and standards promote, and in some cases require, privacy by design. Simply put, companies are to incorporate privacy principles in and throughout all its products and services. In Europe, Article 25 of the GDPR requires companies to implement “appropriate technical and organisational measures . . . which are designed to implement data-protection

With the states taking the lead on privacy (see our tip here), the federal government is starting to get in on the action.

Last week, on January 16, 2019, Republican Sen. Marco Rubio introduced the American Data Dissemination (ADD) Act (S. 142). Recognizing the lack of a single comprehensive federal privacy law, the ADD Act seeks to “provide a national consumer data privacy law that protects both consumers and the innovative capabilities of the internet economy.” It instructs the Federal Trade Commission (FTC) to prepare privacy regulations applicable to “covered providers”—i.e., persons who provide a service that uses the internet to collect records containing personally identifiable information—for approval by Congress that are substantially similar to the requirements under the Privacy Act of 1974. Among other things, the FTC would be required to establish criteria for exempting small or newly formed providers, to restrict disclosure of records, and to provide consumers with rights to access and correct their personal data. The ADD Act, if enacted, would preempt the California Consumer Privacy Act (see our CCPA page here) and other state privacy laws, including the recently introduced New York privacy bill, which would establish a privacy bill of rights for New York residents.
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The California Office of the Attorney General (OAG or Office) held the first two of its six public forums on January 8, 2019 in San Francisco and on January 14, 2019 in San Diego to solicit public comments and feedback in preparation for its rulemaking efforts under the California Consumer Privacy Act (CCPA). The OAG specifically welcomed comments across seven rulemaking categories that are included in the responsibility of the OAG:

  1. Categories of “personal information”
  2. Definition of “unique identifier”
  3. Exceptions to the CCPA
  4. Submitting and complying with requests
  5. The uniform opt-out logo or button
  6. What notices and information should businesses be required to provide to consumers
  7. Verification of consumers’ requests

In San Francisco, 14 speakers from businesses, nonprofit organizations, trade associations, universities, Perkins Coie and individual consumers sought clarifications to definitions in, and scope of, the statute and provided specific suggestions. In San Diego, a total of five speakers, including representatives from a trade association and a cybersecurity consulting firm, shared their input.
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Privacy policies are meant for a host of audiences, including consumers, regulators and advocates. One way to make your privacy policy more accessible to consumers is to include a short form privacy notice at the start of a policy. Short form notices deliver essential elements of how information is treated and protected, provide means to access the full policy, and often include essential privacy choices, such as opt-ins or opt-outs.
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The second annual review of the EU-U.S. Privacy Shield framework is currently underway, with the European Commission planning to release a report detailing its findings regarding the effectiveness of the Privacy Shield by January 1, 2019. The Privacy Shield framework was created to act as a conduit between the respective privacy approaches of the European Union and the United States. In July, the European Parliament warned that it would suspend the EU-U.S. Privacy Shield agreement unless the United States took steps to demonstrate its obligations under the framework. Since then, the United States has been collaborating with the European Union to preserve the international data flows in place under the Privacy Shield, emphasizing its importance for both EU and U.S. consumers and businesses.
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