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.

 

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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.