On December 10, 2020, the California Department of Justice (“Department”) announced a fourth set of modifications to the California Consumer Privacy Act’s (CCPA) regulations. The deadline to submit comments to the modifications is Monday, December 28, 2020.
As a quick recap of past developments related to the CCPA regulations, the Department first published proposed regulations for public commentary on October 11,2019. Then in February of 2020, and again in March of 2020, the Department announced a second and third set of modifications to the proposed regulations, based on comments received during the public commentary period. Finally, in October of 2020, the Department issued a third set of modifications to the regulations, and received approximately 20 comments in response to those modifications. The fourth set of modifications issued this week, were developed in response to those comments, and to “clarify/conform” the proposed regulations to existed law.
The fourth set of modifications to the regulations, primarily aims to clarify ambiguities regarding a consumer’s right to opt out, as well as a company’s use of an opt out button and processing opt-out requests.
Regarding the right to opt out, the modifications clarify that a business selling personal information collected from consumers in the course of interacting with them offline shall inform consumers of their right to opt-out of the sale of their personal information by an offline method. The regulations provide examples to understand this clarification: for example, a business that sells personal information over the phone may inform consumers of their right to opt out orally during the call when the information is collected.
In addition, the latest set of modifications, re – introduced the opt-out button – providing the uniform logo that companies should use when implementing an opt-out button, as well as relevant instructions. It is worth noting that the opt-out button was initially introduced during the first set of modifications to the CCPA regulations, but was later removed, due to negative feedback from privacy advocates.
Here is what the opt-out button will look like:
The latest modifications also add a new section to the regulations, which emphasizes that an opt-out button:
- May be used in addition to posting the notice of right to opt-out, but not in lieu of any requirement to post the notice of right to opt-out or a ‘Do Not Sell My Personal Information’ link as required by; and
- Where a business posts the ‘Do Not Sell My Personal Information’ link, the opt-out button shall be added to the left of the text demonstrated below. The opt-out button shall link to the same Internet webpage or online location to which the consumer is directed after clicking on the ‘Do Not Sell My Personal Information’ link.
Finally, the latest modifications provide instructions on a business’s methods for submitting consumer requests to opt-out, highlighting that “requests to opt-out shall be easy for consumers to execute and shall require minimal steps to allow the consumer to opt-out.”
The Department will accept written comments to the latest modifications to the CCPA regulations between Friday, December 11, 2020 and Monday, December 28, 2020. Written comments may be submitted to the Department via email to PrivacyRegulations@doj.ca.gov.
It remains to be seen whether these latest modifications to the CCPA regulations will in fact be the final round, but given the active history of modifications, it would not be surprising if there were more to come. Companies should continue to monitor CCPA developments, and ensure their privacy programs and procedures remain aligned with current compliance requirements.