With the California Consumer Privacy Act (CCPA) now in effect (January 1, 2020) and enforceable by California’s Attorney General (“AG”) (July 1, 2020), the AG has published Frequently Asked Questions (FAQs). Designed to aid consumers in exercising their rights under the CCPA, the FAQs also contain helpful reminders for businesses and service providers regarding their obligations under the law.

The FAQs cover several main topics for consumers: general information, “Do Not Sell” requests, “Right to Know” requests, required notices, “Right to Delete” requests, right to nondiscrimination, and information about data brokers. As noted, FAQ responses include information businesses and service providers may want to review.

For example, businesses still not sure if they are covered by the CCPA can review Question 5 under General Information, “What businesses does the CCPA apply to?”:

The CCPA applies to for-profit businesses that do business in California and meet any of the following:

    • Have a gross annual revenue of over $25 million;
    • Buy, receive, or sell the personal information of 50,000 or more California residents, households, or devices; or
    • Derive 50% or more of their annual revenue from selling California residents’ personal information.

There is more to this analysis, but the response provides a good starting point. One question many businesses have is whether the $25 million gross annual revenue threshold refers only to revenue generated in California. The AG did not answer this question in the regulations or these FAQs, and the statute itself is silent. However, the AG’s responses to comments submitted concerning the regulations can be instructive:

Civil Code § 1798.140(c)(1)(A) does not limit the revenue threshold to revenue generated in California or from California residents. Any proposed change to limit the threshold to revenue generated only in California or from California residents would be inconsistent with the CCPA.

The FAQs help to confirm the role of service providers and explain to consumers why a business might refuse to act on a consumer’s request, such as a request to exercise the right to delete. In that case, under Question 6 of Requests to Delete Personal Information, the AG explains that “service providers” do not have the same obligations under the CCPA that “businesses” do. Requests must be submitted to the business, not its service providers. Of course, a business may require service providers to act on approved and verified requests the business receives from its consumers, such as requests to delete consumer personal information.

The FAQs also inform consumers about what to do if they think a business violated the CCPA. Notably, Question 7 of the General Information section makes clear that consumer “cannot sue businesses for most CCPA violations.” In most cases, only the Attorney General can file an action against a business. The FAQ goes on to explain:

Consumers can only sue a business under the CCPA if there is a data breach, and even then, only under limited circumstances. You can sue a business if your nonencrypted and nonredacted personal information was stolen in a data breach as a result of the business’s failure to maintain reasonable security procedures and practices to protect it. If this happens, you can sue for the amount of monetary damages you actually suffered from the breach or “statutory damages” of up to $750 per incident. If you want to sue for statutory damages, you must give the business written notice of which CCPA sections it violated and give it 30 days to give you a written statement that it has cured the violations in your notice and that no further violations will occur. You cannot sue for statutory damages for a CCPA violation if the business is able to cure the violation and gives you its written statement that it has done so, unless the business continues to violate the CCPA contrary to its statement.

In addition to maintaining “reasonable safeguards,” businesses need to be prepared, following a breach of nonencrypted and nonredacted personal information, to promptly respond to written statements from consumers concerning alleged violations.

Consumers, businesses, and service providers are encouraged to review the FAQs. As the AG notes, the FAQs “are not legal advice, regulatory guidance, or an opinion of the Attorney General.” So, while the FAQs can provide helpful general explanations of certain CCPA requirements, businesses and service providers, in particular, will want to obtain a more complete understanding of the statute and regulations with experienced counsel.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He founded and currently leads the firm’s Privacy, e-Communication and Data Security Practice, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with…

Joseph J. Lazzarotti is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He founded and currently leads the firm’s Privacy, e-Communication and Data Security Practice, 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, Mr. Lazzarotti 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 – Mr. Lazzarotti 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 – Mr. Lazzarotti’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.

Mr. Lazzarotti 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.

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