United States: Calif. AG Must Clarify Consumer Privacy Act Right Of Access

The California Consumer Privacy Act, set to become effective in January 2020, will introduce a powerful new set of rights for California consumers — broad and inalienable rights to control the sharing, disposition, retention and use of their data. The central premise of the new law is that all consumers have an inalienable right, rooted in Article I, Section 1 of the California Constitution, to reclaim and/or demand deletion of personal information from businesses covered by the new law.

That these rights are "inalienable" means that they can't be forfeited by waiver, or even by sale. Central to this new set of rights is the right of access — the right of a consumer to demand that a business disclose select information about data collected from the consumer, including the "specific pieces" of personal information collected from that consumer, in the year preceding the request. This right, in the overall context of the new statute as written, raises serious questions that the California attorney general should address in the regulations that are set to be proposed for comment later this year.

The Right of Access — Rules of the Road

Section 110 of the CCPA sets forth the new right of access, and Section 130 lays out the basic procedures for data access requests and responses.

Section 110(a) provides that a covered business must "disclose" to a consumer, in response to a verified data access request: (1) the "categories" of personal information collected about the consumer (i.e., name, Social Security number, web browsing history); (2) the "categories" of sources from which the information was collected (i.e., online order history, cookies, web beacons); (3) the business or commercial purpose for the collection or sale of personal information (i.e., fraud prevention, marketing, etc.); (4) the categories of third parties with whom the business shares personal information (i.e., tailored advertising partners, affiliates); and (5) the "specific pieces" of personal information it has collected about that consumer, all in the year preceding the request.

Section 130(a)(2) sets forth the base requirements for a data access response. The response must be provided free of charge within 45 days of receipt of the "verifiable consumer request"1 through the customer's account with the business or electronically or in writing, at the consumer's election, if the consumer doesn't maintain an account with the business.

This period can be extended by an additional 45 days where "reasonably necessary," provided the consumer is given notice of the extension within the initial 45-day period, and perhaps also by an additional 90 days in some circumstances.2 The information must be provided "in a readily useable format that allows the consumer to transmit this information to another entity without hindrance."3

The concept of a right of access to data may seem simple, but, as anyone who is ramping up for CCPA compliance in a large organization can tell you, it just isn't. There are at least three significant challenges that the California attorney general will need to meet and to resolve in the coming regulations to rationalize and make workable the right of access as drafted.

First, the regulations should make clear that businesses need not reidentify or link to a consumer previously deidentified or pseudonymized data in fulfilling a data access request. Second, the regulations should confirm that a business is required to provide only the personal information pertaining to the consumer verified as having made the request, and not data of other household members or shared device users. Finally, the attorney general should clarify that businesses are not required to forfeit trade secrets in responding to data access requests.

The Right of Access Should Not Require Reidentification of Consumer Data

The definition of "personal information" in the CCPA includes information that "is capable of being associated with" a particular consumer or household.4 If this definition is read broadly to sweep within the concept of personal information data that has been deidentified or pseudonymized, then data access requests could trigger mass reidentification of previously deidentified or pseudonymized data, all to the detriment of consumers' broader data privacy interests.

Put simply, many businesses have made it a practice to protect consumer information by deidentifying or pseudonymizing consumer data, following best practices inspired by the privacy by design movement. A settled body of law in the United States and beyond recognizes that such data, because it can't be reasonably linked to a particular individual without additional information, isn't deserving of the protections of personal information.

The CCPA contains provisions to ensure that deidentified and psuedonymized data be maintained in such a way as to protect against reidentification.5 In addition, the CCPA makes clear that the duty to provide access to personal information does not require a business to reidentify or otherwise link data that is not maintained as personal information.6

In order to fulfill the purposes of the CCPA, it is important that the attorney general address this tension created by the potential breadth of the statutory definition of personal information. The problem is that the definition of personal information, if read broadly, could sweep within the scope of personal information deidentified or pseudonymized data simply because such data "is capable of being associated" with the consumer, no matter how unlikely or remote the possibility of association might be.

If such a broad reading were accepted, the rights of access and deletion could then be read to require reidentification of such data for the purpose of fulfilling data access and deletion requests. This would be highly problematic, not only for the businesses who would be burdened with the obligation to reidentify data but also for the data privacy interests of consumers for whom the information was deidentified in the first place. The attorney general should make clear in the regulations that the rights of access and deletion in the CCPA do not require businesses to reidentify or otherwise link previously deidentified or pseudonymized data.

Footnote

1 A "[v]erifiable consumer request" is defined to include requests made by third parties on the consumer's behalf if the third party is registered with the Secretary of State to provide such services. See Cal. Civ. Code § 1798.140(y). The statute contemplates that the Attorney General will adopt regulations to guide businesses on appropriate standards for verification of consumer requests. See id. § 1798.185(a)(7).

2 Section 145(g)(1) seems to permit still another extension by an additional 90 days "where necessary, taking into account the complexity and number of the requests," again so long as notice is provided to the consumer in the initial 45-day period. The Attorney General should clarify in the regulations whether the 90-day extension provided in Section 145(g)(1) is in addition to, or an alternative to, the 45-day extension permitted by Section 130(a)(2).

3 Cal. Civ. Code § 1798.130(a)(2).

4 Cal. Civ. Code § 1798.140(o)(1).

5 See id. § 1798.140(h) (defining "[d]eidentified" to ensure against reidentification and to require safeguards to prohibit reidentification); id. § 1798.140(r) (defining "[p]seudonymize" similarly).

6 See id. § 1798.110(d)(2) (access right does not require a business to reidentify data that is "not maintained in a manner that would be considered personal information."); id. § 1798.145(a)(i) ("This title shall not be construed to require a business to reidentify or otherwise link information that is not maintained in a manner that would be considered personal information.").

To see the full article click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Wilson Sonsini Goodrich & Rosati
Weintraub Tobin Chediak Coleman Grodin Law Corporation
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Wilson Sonsini Goodrich & Rosati
Weintraub Tobin Chediak Coleman Grodin Law Corporation
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions