Attorney General Releases Modified CCPA Draft Regulations: Key Changes Your Business Should Know

On Friday, February 7, and Monday, February 10, 2020, the California Attorney General released proposed modified regulations in connection with the California Consumer Privacy Act (“CCPA”). The modified regulations provide businesses with some clarity, and arguable relief, from certain of the prior onerous regulatory obligations. Despite the modifications, however, there is still ambiguity about many aspects of the regulations, and the CCPA remains the most stringent privacy compliance law in effect in any state in the United States.

Below is a short summary of some of the more prominent changes to selected provisions of the regulations that may have an immediate effect on businesses. This summary is not meant to be an exhaustive list of the proposed modifications. These regulations are not final regulations, and additional changes may be made in the next few months as they are finalized. The deadline to submit written comments to the proposed modifications is February 25, 2020.

On Friday, February 7, and Monday, February 10, 2020, the California Attorney General released proposed modified regulations in connection with the California Consumer Privacy Act (“CCPA”). The modified regulations provide businesses with some clarity, and arguable relief, from certain of the prior onerous regulatory obligations. Despite the modifications, however, there is still ambiguity about many aspects of the regulations, and the CCPA remains the most stringent privacy compliance law in effect in any state in the United States.

Below is a short summary of some of the more prominent changes to selected provisions of the regulations that may have an immediate effect on businesses. This summary is not meant to be an exhaustive list of the proposed modifications. These regulations are not final regulations, and additional changes may be made in the next few months as they are finalized. The deadline to submit written comments to the proposed modifications is February 25, 2020.

Changes to Definitions

“Personal Information” – Whether or not information collected by businesses is personal information now depends on how the business maintains the information. If the business maintains information in a manner that “identifies, relates to, describes, or is reasonably capable of being associated with, or could be reasonably linked, directly or indirectly, with a particular consumer or household,” the information is “personal information.” So, according to the regulations, if a business only collects IP addresses of visitors to its website but does not link or could not link the IP address to a particular consumer or household, the IP address would not be “personal information.”

This new definition tries to narrow the scope of “personal information” but remains ambiguous as to what information “could be” linked to a consumer or household. For example, collection of data through automated technology such as cookies, pixels, and web beacons is arguably anonymous and not linked to a consumer at the time of collection, but this data, when combined with enough other data points, could be reasonably linked to a particular consumer or household. For instance, if a consumer is logged into Facebook and browsing a website with the Facebook analytics tool called Facebook pixel in the same session, information collected on the website (including IP address, click patterns, etc.) may be attributed to the consumer’s Facebook profile. In this scenario, the collected data would presumably be “personal data.” Businesses will have to continue to analyze the types and amount of data they collect and how such data is used to determine if linkage to a consumer or household could reasonably be accomplished.

Categories of “Sources” and “Third Parties” – Businesses are now required to describe how the business collects personal information about consumers, and who it discloses the information to, with enough particularity to provide consumers with a “meaningful understanding.” Simply stating that the business collects information from or discloses information to “third parties” will not suffice. Businesses will have to explicitly list sources of the collected personal information and the types of third parties it shares that information with, such as advertising networks, internet service providers, data analytics providers, operating systems and platforms, social networks, government entities, and data brokers.

“Household” – Household means a person or group of people who: 1) reside at the same address; 2) share a common device or the same service provided by a business; and 3) are identified by the business as sharing the same group account or unique identifier.

“Signed” – The definition of “signed” means written attestation, declaration, or permission that is physically or electronically signed.

Changes to Consumer Rights and Requests Under the CCPA

“Requests to Delete” – The two-step process to confirm that a consumer wishes to delete his or her information is no longer required and is merely optional.

“Methods to Submit Request to Know and Requests to Delete” – Exclusively online businesses that have a direct relationship with consumers from whom they collect personal information only need to provide an email address for submitting requests to know. All other businesses must provide two methods, including a mandatory 1-800 number. For requests to delete, all businesses are still required to designate two or more acceptable methods. An interactive webform is an acceptable option but is no longer required for any consumer request.

Businesses that primarily interact with consumers in person should provide in-person methods such as printed forms that can be mailed, a tablet or computer portal for an online form, or a toll-free number to submit requests to know and delete.

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