The California Consumer Privacy Act takes effect January 1, 2020. Businesses within the scope of the CCPA are taking steps to prepare, including drafting notices to inform California consumers of their right to opt out of the sale of their personal information. However, California will not be the first state to provide a consumer with the right to opt out of the sale of their personal information. As a result of the recently amended Nevada data protection law, effective October 1, 2019 [here] a Nevada consumer will also have the right to opt out of the sale of personal information collected by an online business.

The existing Nevada Security and Privacy of Personal Information Act, NRS 603A, provides numerous privacy and security protections for the personal information of Nevada residents. These include requiring

  • A business to take reasonable measures to ensure the secure destruction of customer records containing personal information when the business decides that it will no longer maintain the records;
  • A data collector to (i) implement and maintain reasonable security measures to protect personal information it maintains regarding a resident of the state from unauthorized access, acquisition, destruction, use, modification, or disclosure and (ii) contractually obligate third parties to whom it discloses personal information to do the same;
  • A data collector to encrypt data for non-invoice transmissions outside of the business and encrypt data storage devices containing personal information when transported beyond the control of the data collector; and
  • A data collector to disclose a breach of the security of system data which includes personal information of Nevada resident where it was or is reasonably believed to have been acquired by an unauthorized person.

The Act also requires an operator of an Internet website or online service to post an online privacy notice regarding the privacy of “covered information” that it collects from a “consumer.” Covered information means one or more of the following items about a consumer when maintained by an operator in an accessible form:

  • A first and last name
  • A home or physical address including the name of a street and city or town
  • An email address
  • A telephone number
  • A social security number
  • An identifier that allows a specific person to be contacted physically or online
  • Any other information concerning a person collected from the person through the Internet website or online service of the operator and maintained by the operator in combination with an identifier in a form that makes the information personally identifiable.

A “consumer,” for the purpose of providing the privacy notice, means a person who seeks or acquires, by purchase or lease, any good, service, money, or credit for personal, family, or household purposes from the Internet website or online service of an operation.

SB 220 recently amended these consumer rights by adding the right to opt out of the sale of personal information collected by an operator of an Internet website or online service. Specifically, SB 220

  • Expands the definition of an operator to include a commercial Internet website or online service that otherwise engages in any activity that constitutes sufficient nexus with the State to satisfy the requirement of the US Constitution. It also expands the categories of entities exempt from this definition to include financial institutions or their affiliates subject to the Gramm-Leach-Bliley Act; entities subject to HIPAA; and manufacturers or persons who service motor vehicles and collect, generate, record, or store certain types of information;
  • Defines the “sale” of consumer personal information as the “exchange of covered information for monetary consideration by the operator to a person for the person to license or sell the covered information to additional persons;”
  • Requires the operator’s online privacy notice to include a “designated request address” such as an e-mail address, toll-free telephone number or Internet website through which the consumer can submit a verified request; and
  • Requires the operator to respond to a verified consumer request to prohibit the sale of any covered information the operator has collected or will collect about the consumer within 60 days of receipt, subject to a 30-day extension, as reasonably necessary.

While this consumer right to opt out is similar to the CCPA, there are several key differences worth noting. First, SB 220 applies to a much less expansive definition of personal information and a narrower definition of sale. Second, it applies only to personal information collected through online commercial sales. Third, and most significantly, there is no revenue or data collection threshold for determining which businesses are within its scope. It applies to operators of commercial Internet websites or online services who engage in any activity that constitutes sufficient nexus with Nevada to satisfy the requirements of the US Constitution, regardless of size or revenue.

The effective date for SB 220 is October 1, 2019 and operators should have their opt out notice and designated address ready. For those businesses preparing for the effective date of the CCPA in January, certain compliance preparations can be leveraged for SB 220. This includes data mapping, creating a designated request address, updating the online privacy policy, and drafting and implementing internal policies and procedures to identify, verify, and respond to a consumer request in a timely manner. Implementation of SB 220 will vary, however, based on differences including its limited application to online data collection, response time, and the definitions of sale and covered information. Finally, although not expressly required, best practices suggest preparing and training employees to identify and properly respond to consumers request.

For those businesses not currently subject to the CCPA or SB 220, data mapping, appropriate safeguards, written information security programs, vendor management, and employee training should be at the forefront of any developing data protection program. To borrow a phrase from the data breach environment, its no longer a question of if your jurisdiction will enact a comprehensive data protection law, but when.

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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.

Photo of Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and co-leader of the firm’s Privacy, Data and Cybersecurity practice group. Jason is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy…

Jason C. Gavejian is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and co-leader of the firm’s Privacy, Data and Cybersecurity practice group. Jason is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Jason focuses on the matrix of laws governing privacy, security, and management of data. Jason is co-editor of, and a regular contributor to, the firm’s Workplace Privacy, Data Management & Security Report blog.

Jason’s work in the area of privacy and data security includes counseling international, national, and regional companies on the vast array of privacy and security mandates, preventive measures, policies, procedures, and best practices. This includes, but is not limited to, the privacy and security requirements under state, federal, and international law (e.g., HIPAA/HITECH, GDPR, California Consumer Privacy Act (CCPA), FTC Act, ECPA, SCA, GLBA etc.). Jason helps companies in all industries to assess information risk and security as part of the development and implementation of comprehensive data security safeguards including written information security programs (WISP). Additionally, Jason assists companies in analyzing issues related to: electronic communications, social media, electronic signatures (ESIGN/UETA), monitoring and recording (GPS, video, audio, etc.), biometrics, and bring your own device (BYOD) and company owned personally enabled device (COPE) programs, including policies and procedures to address same. He regularly advises clients on compliance issues under the Telephone Consumer Protection Act (TCPA) and has represented clients in suits, including class actions, brought in various jurisdictions throughout the country under the TCPA.

Jason represents companies with respect to inquiries from the HHS/OCR, state attorneys general, and other agencies alleging wrongful disclosure of personal/protected information. He negotiates vendor agreements and other data privacy and security agreements, including business associate agreements. His work in the area of privacy and data security includes counseling and coaching clients through the process of investigating and responding to breaches of the personally identifiable information (PII) or protected health information (PHI) they maintain about consumers, customers, employees, patients, and others, while also assisting clients in implementing policies, practices, and procedures to prevent future data incidents.

Jason represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination, and wage and hour claims in both federal and state courts. He regularly appears before administrative agencies, including the Equal Employment Opportunity Commission (EEOC), the Office for Civil Rights (OCR), the New Jersey Division of Civil Rights, and the New Jersey Department of Labor. Jason’s practice also focuses on advising/counseling employers regarding daily workplace issues.

Jason’s litigation experience, coupled with his privacy practice, provides him with a unique view of many workplace issues and the impact privacy, data security, and social media may play in actual or threatened lawsuits.

Jason regularly provides training to both executives and employees and regularly speaks on current privacy, data security, monitoring, recording, BYOD/COPE, biometrics (BIPA), social media, TCPA, and information management issues. His views on these topics have been discussed in multiple publications, including the Washington Post, Chicago Tribune, San Francisco Chronicle (SFGATE), National Law Review, Bloomberg BNA, Inc.com, @Law Magazine, Risk and Insurance Magazine, LXBN TV, Business Insurance Magazine, and HR.BLR.com.

Jason is the co-leader of Jackson Lewis’ Hispanic Attorney resource group, a group committed to increasing the firm’s visibility among Hispanic-American and other minority attorneys, as well as mentoring the firm’s attorneys to assist in their training and development. He also previously served on the National Leadership Committee of the Hispanic National Bar Association (HNBA) and regularly volunteers his time for pro bono matters.

Prior to joining Jackson Lewis, Jason served as a judicial law clerk for the Honorable Richard J. Donohue on the Superior Court of New Jersey, Bergen County.