As businesses prepare for the effective date of the California Consumer Privacy Act, many are conducting data mapping to identify the personal information they collect, who it belongs to, how they use it, with whom they share it and whether they sell or disclose it. The information a business collects from this exercise will set the groundwork for understanding compliance obligations. Given the CCPA’s expansive definition of personal information, it is easy to overlook elements of personal information during this exercise, including website cookies. These FAQs provide a high-level look at how the CCPA may apply to website cookies.

 Does the CCPA apply to website cookies?

A cookie is a small text file that a website places on a user’s computer (including smartphones, tablets or other connected devices) to store information about the user’s activity. Cookies have a variety of uses ranging from recognizing you when you return to the website to providing you with advertising targeted to your interests. Depending on their purpose, the website publisher or a third party may set the cookies and collect the information.

The CCPA defines personal information to include a “unique identifier.” This means “a persistent identifier that can be used to recognize a consumer, a family, or a device that is linked to a consumer or family, over time and across different services, including, but not limited to, a device identifier; an Internet Protocol address; cookies, beacons, pixel tags, mobile ad identifiers, or similar technology… or other forms of persistent or probabilistic identifiers that can be used to identify a particular consumer or device.” As a result, personal information collected by website cookies that identifies or could reasonably be linked to a particular consumer, family or device may be subject to the same disclosure notices and consumer rights, including the right to delete or opt out of the sale of information to a third party, as other personal information collected through the website.

Does the CCPA require that we have a cookie policy on our website?

The CCPA does not require websites of covered businesses to have a separate cookie policy to address the collection and use of personal information through cookies, or to permit consumers to exercise their rights. This information can be included in the website’s privacy policy.

Does our website need a cookie banner?

 The website does not need a separate cookie banner if the website discloses information relating to the collection and use of personal information through cookies, and permits consumers to exercise their rights, if this information is included in the website privacy policy and is provided at or before the point of collection.

Do cookies create special challenges to CCPA compliance?

Covered businesses may not have a full understanding of what cookies are present on their websites or their functionality. These businesses should inventory and audit their cookies to identify at a minimum:

  • the types of cookies set on their sites
  • their purpose and functionality
  • the personal information they collect and how it is used
  • whether the personal information is shared and, if so, to whom
  • if applicable, the purpose(s) for selling the personal information and to whom it is sold, and
  • whether the cookies are first party or third party cookies. This may require consulting with your IT provider, website designer, marketing department, and particularly advertising partners.

In certain cases, third parties may place cookies on the website that collect personal information as part of services necessary for the site’s business purpose. The services agreement with this third party should contain specific provisions identifying it as a service provider, stating the business purpose for collecting the personal data, and prohibiting the further use or sale of any personal information collected by the cookies. These provisions are necessary to demonstrate that any disclosure of personal information to a third party, or collection by a third party, is in the context of providing services and not a sale or disclosure to which the consumer’s right to opt out applies.

In other cases, it may be unclear if a third party cookie’s collection of personal information is strictly for the website’s business purpose or a sale subject to the right to opt out. This may apply in cases where cookies are placed by embedded content (e.g. video), a social media widget, or a vendor that provides targeted or behavioral advertising. While the website publisher should disclose all collection activity and use, it will need to review these activities to determine how to effectuate meaningful notice and the right to opt out.

It is not yet clear how the CCPA will apply to third party cookies used specifically for targeted and behavioral advertising. This creates significant uncertainty for website publishers who engage vendors to assist with advertising. The Adtech industry, legislators, and various stakeholders are currently reviewing how the CCPA may apply to third party cookies that track site users for targeting and behavioral advertising and clarification may be forthcoming.

Cookies and other website tracking technologies pose a unique challenge to businesses as they work to identify the personal information they collect and process. Identifying the presence of these technologies, their function, and the relationship with any third party that places them on the website is an essential part of data mapping. This process will require a greater understanding of the website’s functionality as well as a deeper dive into the business’ analytics, marketing, and advertising practices.

Tags: California Consumer Privacy Act, CCPA, CCPA FAQs, consumer privacy, cookies, data mapping, Internet service provider, personal information, third party service providers, website cookies
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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.

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