On Wednesday, March 11, 2020, the California Attorney General released a second set of modifications (the "March Revisions") to the proposed regulations implementing the California Consumer Privacy Act of 2018 (the "CCPA"), including substantive changes to both the initial draft regulations issued in October (the "Initial Regulations") and the revisions published Friday, February 7, 2020 (as supplemented on Monday, February 10, 2020, the "February Revisions").
(We previously analyzed the CCPA here, the legislative amendments here, the Initial Regulations here, and the February Revisions here.) While the March Revisions address several of the issues raised by stakeholders commenting upon the February Revisions, there are many issues that remain unaddressed. Another round of modifications to the regulations may be issued following the conclusion of the public comment period on March 27, 2020.
This alert memorandum highlights certain notable changes to the proposed regulations, particularly with respect to service providers, requirements for privacy policies and other notices to consumers, and the processing of CCPA consumer rights requests.
Service Providers' Use of Personal Information Clarified
The March Revisions again alter the treatment of service providers under the CCPA, one of the topics most commonly addressed by industry commenters following the issuance of the February Revisions.
- Service Provider's Use of Personal Information on Behalf of Third Parties. One material change brought by the February Revisions was an expansion of the permissible uses of personal information collected by a service provider in the course of providing services to a business. In contrast to the Initial Regulations, which prohibited the use of such information by a service provider for the purpose of providing services to others, the February Revisions detailed five categories of permissible use of such information, notably including to "perform the services specified in the written contract with the business that provided the personal information." Following the issuance of the February Revisions, many stakeholders commented that this language left open the interpretation that service providers are free to use personal information collected in the course of providing services to one business in order to provide the same services to other businesses, so long as the contract with the first business does not prohibit the provision of such services to such other businesses. This interpretation was, however, arguably inconsistent with the statute's definition of "service provider."
The March Revisions clarify that use of personal information by service providers to service third parties is not permitted. Rather, the permissible use in the context of providing services is limited to processing or maintaining personal information "on behalf of the business that provided such information or that directed the service provider to collect the personal information" and in compliance with the written contract.
At the same time, the March Revisions slightly expand the permissible internal use of personal information by the service provider. The February Revisions had allowed service providers to use the personal information internally to build or improve the quality of its services but not to build or modify household or consumer profiles. The March Revisions would allow such profile building so long as it is not used to provide services to another business.
- Ambiguity in a Service
Provider's Role in Data Hygiene and Analytics
Remains. One of the hotly debated provisions
introduced in the February Revisions was one that prohibited
service providers from building or improving their services by
"cleaning or augmenting data acquired from another
source." Many commenters noted that this language was
vague, and requested that it either be clarified or removed to
avoid inadvertently preventing pro-consumer data hygiene functions,
such as refining address databases used to deliver goods to
consumers, or otherwise permissible analytics functions. The
March Revisions replaced the ambiguous word "cleaning"
with the similarly undefined term "correcting" but took
no other steps to clarify when such analytics and data hygiene
functions may be performed.
Personal Information Definition Guidance Removed
- Personal Information
Classification Is Not Reliant on Whether the Collecting Business
Maintains the Information in a Manner that Allows
Identification. The March Revisions removed entirely
guidance introduced in the February Revisions that restricted the
scope of the definition of "personal information" to
information that is maintained by a business in a manner that meets
the requirements for the definition of personal information under
the CCPA. In other words, meeting the definition depended on
whether the collecting business maintains the information in a
manner that "identifies, relates to, describes, is reasonably
capable of being associated with, or could be reasonably linked,
directly or indirectly, with a particular consumer or
household." The guidance had specifically identified IP
addresses as an example of information that may not be personal
information if the collecting business "does not" and
"could not reasonably" link the IP address to any
particular consumer or household.
While many commenters applauded the California Attorney General for the guidance, numerous prominent privacy advocates argued for its deletion. Those critics voiced concerns that the provision was contrary to legislative intent (as demonstrated by the rejection of proposed amendments with similar effect) and created a substantial loophole, given that such information may be transferred or even sold to other businesses who could match it to a consumer or household and yet the seller of the personal information would escape the provisions of the CCPA entirely (including the notice and opt-out provisions). Following the March Revisions, a business has to treat as "personal information" any information that could be reasonably linked by anyone, whether the business or third parties, with a particular consumer or household.
Consumer Request Responses and Mechanisms Modified
- User-Enabled Controls that
Indicate Consumer Intent are Requests to Opt-Out.
The Initial Regulations required businesses to treat any
user-enabled privacy control, such as a browser plugin or privacy
setting, as a signal that the consumer using such a control wishes
to opt out of the sale of personal information. The February
Revisions seemed to relax this requirement, stating that
user-enabled privacy controls developed in accordance with the
regulations must clearly communicate or signal such an
intent and should require consumers to affirmatively exercise their
choice (and must not be designed with any pre-selected
Industry reaction to this revision was split. Some commenters voiced support for this limitation on controls recognized as requests to opt-out, while others advocated for revisions that would designate a broader set of controls as opt-out requests, including "Do Not Track" privacy settings. The March Revisions represent a compromise approach. The provisions retain the requirement that privacy controls must clearly indicate an intent to opt out but do not require consumers to "affirmatively select" their choice, nor do they prohibit the use of pre-selected settings in order for such controls to constitute a request to opt-out. Notably, the March Revisions do not address other commenters' requests for clarification of related issues, such as the definition of "global privacy controls" or the interaction between global opt-out mechanisms and business- or website-specific privacy settings.
- Enhanced Responses to
Requests to Know Biometric and Other Sensitive Data.
The February Revisions added certain biometric data to a list of
types of information that a business should not disclose in
response to a request to know. While some commenters lauded
this exemption as a much-needed consumer protection measure
limiting the risk of identity theft and fraud, prominent commenters
raised concerns that this type of restriction would effectively
exempt several particularly sensitive personal data sets from
consumer's right to know (e.g., social security numbers, health
insurance information or medical identification numbers). In
particular, the addition of biometric information as an exempt
category was met with protests.
The March Revisions adopted the approach suggested by Californians for Consumer Privacy, specifying that businesses must still inform consumers with sufficient particularity of the categories of biometric and other sensitive information collected (e.g., biometric data including a fingerprint scan), but without disclosing the sensitive data itself.
- All Denied Requests to Delete Trigger an Opt-Out Offer. Under the Initial Regulations, businesses were required to treat a request to delete that could not be verified as a request to opt-out of sale, which is subject to less stringent identity verification requirements. The February Revisions replaced this requirement with a provision requiring businesses that sell personal information to ask consumers if they would like to opt out of sale of their personal information and include a notice of the right to opt-out. There was some ambiguity, however, as to whether this requirement was triggered by all requests to delete or only those requests for which the business cannot verify the identity of the requestor. The March Revisions apply this obligation when (i) a business denies a consumer's request to delete (for any reason, not only as a result of an inability to verify the requestor's identity), (ii) the business sells personal information, and (iii) the consumer has not already made a request to opt-out.
- Deletion of Proposed Opt-Out
Logo. The Initial Regulations promised to provide in
later versions an optional image for businesses that sell personal
information to include alongside the required opt-out link on their
website. The February Revisions included a proposed image (an
"opt-out button") and required that when the opt-out
button is used, it must appear to the left of the "Do Not Sell
My Personal Information" or "Do Not Sell My Info"
link and "be approximately the same size as other buttons on
the business's webpage." Following an outpouring of
criticism of the design, implementation, and utility of the
proposed image, the entire provision was removed in the March
Amendments Relating to Privacy Policies and Notices to Consumers
The CCPA requires businesses to make certain disclosures in their privacy policies, notices to consumers at or before the point of collection of personal information (the "notice at collection"), and notices to consumers regarding the right to opt-out of the sale of personal information (the "opt-out notice"). The February Revisions imposed certain new disclosure obligations not included in the text of the statute or the Initial Regulations but also relaxed or removed entirely other obligations that appeared in the Initial Regulations. The March Revisions walk back some of these changes while also imposing limited additional disclosure requirements on businesses that engage in the sale of personal information of minors.
Notice at Collection
- No Fees for Authorized Agents. The February Revisions added a restriction preventing businesses from charging consumers for identity verification. As an example, the February Revisions stated that "a business may not require a consumer to provide a notarized affidavit to verify their identity unless the business compensates the consumer for the cost of notarization." Comments were split on this provision. Some wanted this provision narrowed so as not to discourage notarization or to clarify that businesses may charge authorized agents (which may include for-profit companies set up for this purpose). Others applauded the provision and wanted clarification that businesses also may not charge authorized agents. The March Revisions extend the restriction on charging fees for identity verification to explicitly include authorized agents but do not reference authorized agents in the provided example.
- Value of Consumer Data Restricted to U.S. Persons. The CCPA prohibits businesses from discriminating against consumers for the exercise of their rights thereunder but explicitly allows businesses to charge a consumer a different price or rate, or provide a different level or quality of goods or services, if that difference is reasonably related to the value provided to the business by the consumer's data. The Initial Regulations required businesses who offer financial incentives or price or service differences to use and document a reasonable and good faith method for calculating the value of the consumer's data. The February Revisions provided additional guidance that, for the purpose of calculating the value of consumer data, a business may consider the value of the data of all natural persons and not just consumers. Seemingly in response to a commenter concerned that businesses may use this to grossly understate how much they earn selling consumers' information (because the value of a consumer in certain countries may be much lower than the value of one in the United States), the March Revisions amend this provision to state that businesses may consider the value to the business of the data of all natural persons "in the United States."
Unanswered Questions and Next Steps
Consumer advocacy groups and industry associations have been outspoken and active participants in shaping of the CCPA and its implementing regulations. With the March Revisions, the California Attorney General demonstrated the importance of this interplay between regulators and the various stakeholders by incorporating new provisions, clarifying areas of disagreement, and walking back proposals that, based on the received comments, were unjustified or impractical. However, areas of ambiguity and uncertainty remain. The California Attorney General will be accepting comments on the March Revisions through March 27, 2020, which may prompt additional revisions in advance of the issuance of the final regulations. Enforcement of the CCPA begins July 1.
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.