With the California Consumer Privacy Act (CCPA) effective for nearly one month, businesses continue to grapple with the many components of this new privacy framework. A key component of the CCPA is granting consumers the right to request information about and to exercise some control over their personal information. Developing sufficient mechanisms to receive, process and respond to these requests is a central and complex area of compliance for businesses. One aspect of processing consumer requests requires verifying the identity of the individuals making the requests, and their authority to be making the request.

The CCPA directed the State’s Attorney General to establish rules and procedures to govern a business’s determination that certain requests received from a consumer is a “verifiable consumer request.” In fact, the statute provides that businesses are not obligated to provide information to consumers if the business cannot verify the consumer making the request is the consumer about whom the business has collected information or is a person authorized by the consumer. On October 10, 2019, the California Attorney General’s (AG) office issued proposed regulations which, among other things, begin to address how businesses can structure procedures for verifying consumers when they seek to exercise their “Right to Know” and “Right to Delete.”

So how does a company verify a consumer’s identity? In this post, we address the general rules, bearing in mind they may change when the Attorney General’s office finalizes its regulations.

General Rules

Currently, businesses have some flexibility in determining the method by which they verify a consumer’s identity, although there are some basic guidelines they must follow:

  • Where they can feasibly do so, businesses should match the identifying information provided by the consumer to the personal information of the consumer already maintained by the business.
  • Businesses should avoid collecting certain types of sensitive personal (e.g. SSN, government IDs, financial information, medical and health information, and biometric data), unless it is necessary to verify. See Civ. Code Sec. 1798.81.5(d).
  • Shape the verification method based on certain factors, such as: 1) type, sensitivity or value of personal information, 2) risk of harm to the consumer posed by unauthorized access or deletion, 3) likelihood that bad actors would seek the information, 4) vulnerability to being spoofed or fabricated, 5) manner in which the business interacts with the consumer, and 6) available technology for verification.
  • If the business uses a third-party identity verification service, be sure it complies with the CCPA rules for verification. Additionally, businesses should ensure these service providers maintain reasonable safeguards to protect the personal information they process in the course of verification.

Takeaways

The guidelines proposed by the AG’s office regarding verification boils down to “reasonableness” as it gives businesses a wide range of discretion and flexibility to establish a workable method that fits the business’ operation and financial capabilities. After establishing a “reasonable” method, the business has to document and comply with the method they have established.

Depending on the business’ capabilities, they can match the categories of information the consumer provides with the information the business already possesses or utilize a third-party verification service provider. Either way, businesses should refrain from requesting additional information for verification, unless doing so is necessary to protect the consumer.

Once the business has considered these items, they can get to work on shaping specific procedures for verification taking into account issues such as:

  • Who can make requests
  • Account holders versus non-account
  • “Requests to Know” versus “Requests to Delete”
  • Requests for categories of information versus specific pieces of information
  • Use of Authorized Agents

Please stay tuned as we address these in future blog posts.

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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.