Earlier this month, California Attorney General (“AG”) Xavier Becerra sent a letter to several members of U.S. Congress, providing an update on the implementation of the newly effective California Consumer Privacy Act (CCPA), and urging Congress not to enact a federal law that would preempt the CCPA and other state consumer privacy measures. Instead, AG Becerra called on Congress to develop a law that would “build on the rights” provided for by the CCPA, and partner with states to ensure greater consumer privacy protections.

“I invite Congress to look to the states as sources of innovation and expertise in data privacy, and not to undermine protections, like CCPA, that states have already developed. Therefore, as I noted above, I encourage Congress to favor legislation that sets a federal privacy-protection floor rather than a ceiling, allowing my state— and others that may follow—the opportunity to provide further protections tailored to our residents,” wrote AG Becerra. 

In addition, AG Becerra emphasized that Congress in its development of a federal consumer privacy law should extend enforcement powers broadly, providing state attorney generals with parallel enforcement authority, and consumers the ability to protect their rights directly under a private right of action. It is not clear the extent to which AG Becerra is suggesting the inclusion of a private right of action in federal law. The CCPA only authorizes a private cause of action against a covered business if a failure to implement reasonable security safeguards results in a data breach, and is not available when a consumer’s individual rights under the CCPA are violated. Moreover, the definition of personal information for a private right of action is much narrower than the general definition of personal information under the rest of the CCPA.

AG Becerra is instrumental in the CCPA legislative process, in particular his office is tasked with development of regulations to operationalize the CCPA and provide clarity and specificity to assist in the implementation of the law. AG Becerra announced proposed regulations in October 2019, and following a series of public hearings across California, announced a regulatory update to the existing proposed regulations in early February 2020, and then again last week. The AG’s regulations must be finalized and implemented by July 1, 2020.

In the meantime, the U.S. Congress has been plugging away at a federal consumer privacy law over the last couple years, with limited progress. Most recently, two competing federal consumer privacy bills were introduced. The first proposal, Consumer Online Privacy Rights Act, introduced by Sen. Maria Cantwell (D-Wash), and shortly after the United States Consumer Data Privacy Act , introduced by Senator Roger Wicker (R-Miss). While the two proposals have significant overlap, a key difference is their treatment of state consumer privacy laws. Cantwell’s proposal includes preemption of “directly conflicting state laws”, but stipulates that the federal law would not override state laws with a “greater level of protection”. Conversely, Wicker’s proposal includes a broad provision expressly preempting any state law “related to the data privacy or security and associated covered entities”.

A federal consumer privacy law, while still unclear what shape it will take and when, is almost inevitable.   With the CCPA in effect and other state measures on the horizon, the development of a meaningful data privacy and protection program has never been more important.

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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.