United States: CCPA's Final Requirements In Flux, With Six Months To Go To Comply - Part 1 Of 3: Where Does The Law Stand Now?

On June 28, 2018, the state of California enacted and then-Governor Jerry Brown signed the California Consumer Protection Act (CCPA) into law. The CCPA is a robust piece of legislation that substantially expanded the privacy rights of California residents regarding the collection, use, sale, and disclosure of their personal information by certain for-profit businesses that operate or do business in California.

The CCPA, which is set to go into effect on January 1, 2020, has been regarded as the first real U.S. answer to the European Union's General Data Protection Regulation (GDPR). The GDPR expanded the rights of EU residents to control the use of their personal information by businesses within and beyond the EU borders. The California law is seen as an analog to the GDPR as it similarly enhances the rights of its residents to know how their personal information is being used by businesses, and it allows them to exert a measure of control over that use. Much like the GDPR, the CCPA also requires covered businesses to be more transparent in how they collect, share, and use consumers' data.

The passage of the CCPA last year was just the beginning. California legislators rushed the CCPA through both legislative chambers and passed the bill unanimously with the understanding that an even more stringent consumer privacy bill would be removed from the ballot in California's November 2018 election. Since then, businesses potentially subject to its provisions have used the law as guidance to implement measures to comply with the law once effective.

Despite its swift passage in the California Legislature and impending effective date, the CCPA may not even be in its final form. A host of widely varying amendments have been introduced in both the State Assembly and the Senate. While not every proposed amendment to the CCPA is likely to be enacted into law, the fact that legislators are looking to clarify– or in some cases substantially revise – the CCPA's current language leaves the ultimate requirements of California's expanded privacy law uncertain. The result is that the exact scope and requirements of the CCPA are in flux with just a little more than six months left for businesses to become compliant. The challenge for businesses is that the final version of the CCPA may be significantly different than that with which they have been preparing to comply.

As the calendar draws close to the end of the California Legislature's session and to January 1, 2020, any changes to the CCPA will leave businesses even less time to determine how the amendments will impact their obligations under the law.

Part 1 of this three-part blog series looks at the CCPA as currently written to understand the requirements that businesses have been working to come into compliance with over the past year. Part 2 will examine many of the bills to amend the CCPA currently pending in the California Legislature, to assess the ways in which the CCPA's final scope and requirements may be altered in the next six months. Though not every bill will pass, it is helpful to understand pending proposals to better gauge and plan for potential compliance requirements and their operational impact. Finally, Part 3 will analyze what the attempts to modify the CCPA's provisions mean for businesses, and provide realistic recommendations towards compliance.

I. CCPA: Where Does the Law Stand Now?

a. Who is Subject to the CCPA?

A critical first step for any company assessing their CCPA compliance is to ask, "Does the CCPA apply to my business?" As currently enacted, the CCPA only applies to for-profit entities that do business in California, control the collection or processing California consumers' personal information, and meet one of the following thresholds:

  • Have annual gross revenues in excess of $25 million;
  • Annually process personal information of 50,000 or more California consumers, households, or devices; or
  • Derive 50 percent or more of its annual revenues from selling consumers' personal information.

Therefore, not every business across the U.S. – or even in California – will need to comply with the CCPA's provisions come January 1, 2020. However, given the impact—especially in the data sector—of California's economy on businesses across the country, and the anticipation of consumers, regulators, and plaintiffs' attorneys raising questions about perceived non-compliance with the future CCPA, companies outside the scope of the CCPA should seriously consider voluntary compliance.

b. What Does the CCPA Cover?

The CCPA expands the rights of California consumers concerning their "personal information," including:

  • Right to Information: Consumers have a right to disclosure of the categories of personal information collected, the categories of sources from which the personal information is collected, the business purpose for collecting or selling the information, the categories of third parties to whom the information is shared, and the specific pieces of personal information that have been collected.
  • Right to Erasure/California "Right to be Forgotten": Consumers have a right to request deletion of their personal information, and to have it deleted when the information is no longer necessary for legitimate business purposes.
  • Right to Opt-Out of Sale of Personal Information: Consumers have a right to know whether a business has sold the consumer's information and to direct a business to not sell the information, or to "opt-out" of information sharing.
  • Minor Rights: Businesses are prohibited from selling personal information of minors under 16 years old without valid "opt-in" consent.
  • Non-Discrimination: Consumers have the right to not be discriminated against based upon the exercise of rights under the CCPA. This includes the right to not be denied goods or services, to not be denied levels of quality of goods or services, or to not be charged different prices or rates.

The CCPA also requires covered businesses to increase their transparency in their data collection and use practices. For instance, the law currently written requires subject businesses to state in their online privacy policies the rights of California consumers under the CPPA, and list the categories of personal information collected, disclosed, and sold.

c. What is "Personal Information" Under the CCPA?

The CCPA expansively defines "personal information" to mean "information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household." In addition to this broad definition, the CCPA includes a laundry list of data sets that fall within its scope:

  • 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;
  • Any categories of personal information described in subdivision (e) of Section 1798.80 (any information that identifies, relates to, describes, or is capable of being associated with a particular individual, including, but not limited to, his or her name, signature, Social Security number, physical characteristics or description, address, telephone number, passport number, driver's license or state identification card number, insurance policy number, education, employment, employment history, bank account number, credit card number, debit card number, or any other financial information, medical information, or health insurance information);
  • Characteristics of protected classifications under California or federal law;
  • Commercial information, including records of personal property, products or services purchased, obtained, or considered, or other purchasing or consuming histories or tendencies
  • Biometric information;
  • 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 website, application, or advertisement;
  • Geolocation data;
  • Audio, electronic, visual, thermal, olfactory, or similar information;
  • Professional or employment-related information;
  • Education information, defined as information that is not publicly available personally identifiable information as defined in the Family Educational Rights and Privacy Act (20 U.S.C. Section 1232g, 34 C.F.R. Part 99).
  • Inferences drawn from any of the information identified in this subdivision to create a profile about a consumer reflecting the consumer's preferences, characteristics, psychological trends, preferences, predispositions, behavior, attitudes, intelligence, abilities, and aptitudes.
  • Importantly, the CCPA does not currently cover:
  • Protected or health information covered under the California Confidentiality of Medical Information Act or the federal Health Insurance Portability and Accountability Act (HIPAA);
  • Personal information sold to or from a consumer reporting agency if used in accordance with the federal Fair Credit Reporting Act (FCRA); or
  • Personal information collected, processed, sold, or disclosed in accordance with the federal Gramm-Leach-Bliley Act (GBLA) or Driver's Privacy Protection Act.

The CCPA's definition is substantially broader than how most states – including California – define personal information under their respective data breach notification statutes. This means that, to be in compliance with the law as written, covered businesses must account for much more of the information they maintain on California consumers. In the end, businesses should review how much consumer "personal information" is necessary for their legitimate business purposes, and ensure they are not collecting or sharing more data than is necessary for those purposes.

d. Who Can Enforce the CCPA, and How?

The CPPA currently contains a number of enforcement tools for both California consumers and the state Attorney General.

First, the CCPA creates a private right of action for any consumer whose unencrypted "personal information" – as defined under California's information security standard at California Civil Code 1798.81.5, and not the CCPA's main provisions – is acquired without authorization as a result of a business' failure to implement and maintain "reasonable security procedures" to protect personal information. A consumer may institute a civil action to recover statutory damages between $100 and $750 per consumer per incident, or actual damages, whichever is greater. A court may also order injunctive or declaratory relief, or any other relief it deems proper. Prior to initiating any action, however, the California consumer must provide the business 30 days' notice to "cure" the violation unless the action is solely for actual pecuniary damages. A consumer bringing an action must also provide notice to the Attorney General within 30 days of the action being filed. This will then require the Attorney General to review the action and either prosecute the action in place of the consumer within six months, allow the consumer's action to proceed, or notify the consumer not to proceed with the action.

Intentional violations of the CCPA may be assessed a $7,500 penalty for each violation.

Second, subject businesses and covered third parties concerned about how they can comply with the CCPA will be able to seek an advisory opinion from the Attorney General. Such entities should note that, if an entity is put on notice by the Attorney General of alleged noncompliance, it will then have 30 days to correct its actions and cure the violation, or it will be found in violation. Consequently, there may be a risk that by reaching out to the Attorney General for guidance, a business will be found to be non-compliant and required to take quick action to avoid penalties.

Third, the Attorney General is charged with adopting regulations to further the purposes of the CCPA, including but not limited to:

  • Updating the definition of "personal information" as needed;
  • Providing exemptions to the CCPA necessary to comply with relevant state or federal law (including but not limited to trade secrets and intellectual property rights);
  • Establishing rules, procedures, and exceptions to ensure business notices and information required to be provided by the CCPA are in a form easily understandable to the average consumer, accessible to those with disabilities, and are available in the language primarily used for consumer interactions; and
  • Establishing rules and procedures to facilitate business compliance and consumers' exercise of the right to "opt-out" of sales of personal information.

This means that businesses are incentivized to evaluate what data they need to collect for operational and business needs. It also means that businesses need to closely monitor their compliance and keep abreast of any updates or additional rules and procedures.

Read Part 2, "General Observations on Pending Amendments to the CCPA," from June 5, and Part 3 "Trends and Planning - What it All Means" from June 7. Click the 'Subscribe For More Updates' button at the top of the page to receive email alerts when new Digital Insights posts go up.

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.

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
Font Size:
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.


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.


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