As of Jan. 1, 2020, the California Consumer Privacy Protection Act (CCPA) is now in force. Passed by the state legislature in 2018, this is a sweeping regulation of how businesses can collect and share “personal information” of California residents. Much like its “older cousin,” the GDPR of Europe, the CCPA has teeth and compliance is critical.
Initially, note that the California Online Privacy Protection Act (separate from the CCPA) has already been law since 2004. It provides a long list of requirements for disclosures in a Privacy Policy. The CCPA has now given Californians additional rights regarding their online privacy and data.
Consumers must be advised of their rights of request under the CCPA in a privacy policy, which must include a button titled ‘Do Not Sell My Personal Information.’
The CCPA applies to for-profit entities “doing business” in the state of California that fit at least one of these criteria:
- Earns annual gross revenues exceeding $25 million
- Annually buys, receives, sells or shares (for commercial purposes), the personal information of 50,000 or more consumers, households or devices
- Derives 50 percent or more of its annual revenues from selling consumers’ personal information.
The law is also applicable to any entity that (a) controls, or is controlled by, a business that fits any of the above criteria and (b) uses common branding (trademarks, service marks, etc.) with such business. The business does not need to be located in California to be subject to the law.
According to the CCPA, upon a (California) consumer’s request (up to twice per year), a business must provide the following relating to the year preceding the date of the request:
1. The categories of personal information that the business has collected about that consumer.
2. The categories of sources from which the personal information is collected.
3. The commercial purpose for collecting or selling personal information.
4. The categories of third parties with whom the business shares personal information.
5. The specific pieces of personal information the business has collected about that consumer.
If the business sells personal information, or discloses it for a commercial purpose, the business must also disclose to a requesting consumer:
6. The categories of personal information that the business has sold about the consumer and the categories of third parties to whom the personal information was sold.
7. The categories of personal information that the business has disclosed about the consumer for a commercial purpose.
The business must deliver the required information in writing to the consumer free of charge within 45 days of the date of receipt of the request. Moreover, with some exceptions, the business must delete any personal information about the consumer, which the business has collected, if the consumer so asks.
The CCPA broadly defines “personal information” as including:
1. Identifiers such as a real name, alias, postal address, unique personal identifier, online identifier, Internet Protocol address, email address, account name, social security number, driver’s license number, passport number or other similar identifiers.
2. Any categories of personal information described in the California Customer Records Statute.
3. Characteristics of protected classifications under California or federal law.
4. Commercial information, including records of personal property, products or services purchased, obtained or considered, or other purchasing or consuming histories or tendencies.
5. Biometric information.
6. Internet or other electronic network activity information, including, but not limited to, browsing history, search history and information regarding a consumer’s interaction with an Internet Web site, application or advertisement.
7. Geolocation data.
8. Audio, electronic, visual, thermal, olfactory or similar information.
9. Professional or employment-related information.
10. Education information, defined as information that is not publicly available personally identifiable information as defined in the Family Educational Rights and Privacy Act.
11. Inferences drawn from any of the above information to create a profile about a consumer reflecting the consumer’s preferences, characteristics, psychological trends, predispositions, behavior, attitudes, intelligence, abilities and aptitudes.
The items in these bullet points clearly cover a lot of different types of data … much more than the GDPR.
Under the CCPA, a business must make available to consumers two or more designated methods for submitting the requests, including a toll-free telephone number and a website address. The business cannot require the consumer to create an account with the business in order to make the request.
Consumers must be advised of their rights of request under the CCPA in a privacy policy, which must include a button titled “Do Not Sell My Personal Information,” linking to a webpage that includes a tool where a person can opt-out of the sale of their personal information. Businesses must provide a separate link on their home page with the same title to the opt-out tool. Like the avenues for submitting a request, this tool cannot require a consumer to create an account.
It’s very important to understand that the CCPA provides for a private right of the consumer to sue, or to bring class actions, for statutory damages of between $100 and $750 per consumer per incident or actual damages, whichever is greater. However, the consumer or class must provide the business 30 days’ advance written notice identifying the specific violations. If, during those 30 days, the business corrects the issue and notifies the consumer, statutory damages will not be available. The 30-day notice and cure period does not apply if the consumer or class is suing for actual damages.
In addition, failure to cure within the 30-day period can lead to a fine of up to $2,500 for each violation, or $7,500 for each intentional violation. Such would be assessed and recovered in a civil action brought in the name of the people of the State of California by the Attorney General.
The stakes here are high. If you operate a business that collects personal information from California residents, regardless of where the business is located, you must comply with the CCPA. Compliance will require displaying proper notices in your privacy policy, as well as implementing appropriate procedures. Review the full language of the law, and consult an attorney where needed — getting it right will pay off in the long run.
DISCLAIMER: The content of this article constitutes general information, and is not legal advice. If you would like legal advice from Maxine Lynn, an attorney-client relationship must be formed by signing a letter of engagement with her law firm. Visit Sextech.lawyer to inquire.
Maxine Lynn is an intellectual property (IP) attorney with the law firm of Keohane & D’Alessandro, PLLC, having offices in Albany, New York, USA. She focuses her practice on prosecution of patents for technology, trademarks for business brands and copyrights for creative materials. Through her company, Unzipped Media, Inc., she publishes the Unzipped: Sex, Tech & the Law blog at SexTechLaw.com and the Unzipped: The Business of Sex podcast at Businessof.sex.
