Many businesses and their service providers have been awaiting final guidance from the California Attorney General concerning the California Consumer Privacy Act (CCPA). When news came last Friday of a regulatory update (“Update”), there may have been some initial disappointment that the Update did not announce final regulations, but only revisions to existing proposed regulations issued last year and a new comment period (ending February 24, instructions to submit comments here). However, while final regulations are still sometime away, initial disappointment may be softened by some of the Update’s revisions.
Based on our initial review of the Update, below are some key changes to the proposed regulations:
- The Update would add guidance for interpreting defined terms under the CCPA. Specifically, the Update clarifies that determining whether information is “personal information” depends on whether the business maintains the information in a manner that “identifies, relates to, describes, is reasonably capable of being associated with, or could be reasonably linked, directly or indirectly, with a particular consumer or household.” This guidance and the example provided below would address concerns many have regarding information businesses collect online.
For example, if a business collects the IP addresses of visitors to its website but does not link the IP address to any particular consumer or household, and could not reasonably link the IP address with a particular consumer or household, then the IP address would not be “personal information.”
- The proposed regulations confirmed the requirement for online notices to be accessible, but the Update would require generally recognized industry standards be followed, such as the Web Content Accessibility Guidelines, version 2.1 of June 5, 2018, from the World Wide Consortium.
- The proposed regulations provided businesses could not use personal information for “any purpose other than disclosed in the notice at collection.” The Update would establish a less strict standard – “a purpose materially different than disclosed in the notice at collection.”
- With regard to notices at collection for employment-related data, a “Do Not Sell My Personal Information” link would not be required. Additionally, the notice could link to the business’s privacy policies for employees, applicants, etc., rather than consumers.
- The Update provides for an optional “Opt-Out Button.”
- Proposed regulations required a two-step process for online requests to delete personal information. The Update would make that two-step process optional.
- With regard to the general requirement to make two or more designated methods available for submitting requests to know, the Update would relax the specific methods. At least one still must be a toll-free number. However, for website operators, the second need not be an interactive webform and could be an email address.
- The Update also tweaks the timing of certain notice requirements. For example, when confirming receipt of a request to delete or a right to know, the business would have 10 business days, while responses to such requests generally would be due in 45 calendar
- Under the Update, a business would not be required to search for personal information in response to a request to know if the business: (i) does not maintain personal information in a searchable or reasonable accessible format, (ii) maintains the personal information only for legal or compliance purposes, (iii) does not sell the information or use it for a commercial purpose, and (iv) describes to the consumer the categories of records not searched because it satisfied the three conditions above.
- The Update would clarify that service providers that receive requests to know or to delete either can respond on behalf of the business or inform the consumer that it cannot act on the request because it is a service provider.
Businesses still need to monitor the development of CCPA regulation, but the Update would seem to provide some clarity and/or relief on some points. Also, there is a new opportunity to voice concerns and pose questions concerning the guidance thus far.