United States: Nevada Enacts CCPA-Style Opt-Out Right For Consumers—But Similarities Are Few

Nevada just joined California as the second state to enact an opt-out right for consumers from the "sale" of their personal information.  Senate Bill 220, which was signed into law on May 29, 2019, is scheduled to take effect on October 1, 2019, three months prior to its precursor under the California Consumer Protection Act (the "CCPA"). The opt-out right is one of several changes made to Nevada's existing online privacy law, which requires operators of commercial websites and other online services to post a privacy policy. In addition to the new opt-out right, the revised law exempts from its requirements certain financial institutions, HIPAA-covered entities, and motor vehicle businesses.  

While both California and Nevada will provide consumers with the right to block covered businesses from selling their personal information, there are key differences between the two laws. Notably, the Nevada right is significantly more circumscribed than its CCPA counterpart.1 Businesses covered by both laws will need to ensure that any programs being developed to meet the CCPA opt-out requirements are also Nevada-compliant and ready by the earlier deadline, or that a Nevada-specific process is in place in time.

There is no private right of action under the Nevada law, which instead contemplates enforcement by the Attorney General, with civil penalties of up to $5,000 per violation.

A New (but Narrow) Right to Opt Out of the Sale of Personal Information Collected Online

The Nevada law requires operators of websites and other online services to make certain disclosures regarding their collection and use of "covered information." "Covered information" means name, address, e-mail, telephone number, SSN, any identifier that allows a person to be contacted either physically or online, or "any other information concerning a person collected from the person through the Internet website or online service of the operator and maintained by the operator in combination with an identifier in a form that makes the information personally identifiable."

When the revised law takes effect, consumers will be able to direct an operator not to sell their covered information under certain circumstances. These circumstances, however, are fairly narrow, especially when compared to the opt-out right under the CCPA. Most notably, the definition of "sale" under the Nevada statute is restricted to exchanges of covered information that are for monetary consideration and to a person that licenses or resells the information to another person. This means that sales to third parties will be excluded from the reach of the Nevada opt-out right where the information is used for that third party's own purposes and is not resold or licensed. This stands in contrast to the CCPA, which extends its opt-out right to exchanges for monetary or "other valuable" consideration and is not limited by the third-party recipient's intended use or disclosure of the information.

The differences do not stop there. The Nevada opt-out right is available to a much narrower set of individuals and covers a smaller subset of personal information than its CCPA counterpart. Specifically, Nevada's definition of "consumer" clearly excludes employees and other individuals acting in a commercial capacity, whereas the equivalent CCPA definition currently does not.2 Moreover, "covered information" under the Nevada law is limited to information collected online, whereas the CCPA applies to personal information collected offline as well. Finally, while both the Nevada and California laws exempt from the opt-out requirement disclosures involving service providers and certain corporate acquisitions, the Nevada law includes additional exceptions for disclosures to affiliates, as well as disclosures consistent with the reasonable expectations of the consumer.

New Process, New Ambiguities

Once the Nevada law comes into effect in October, operators of websites and online services will be required to have a process in place through which a consumer may submit a do-not-sell request. In particular, an operator will need a "designated request address," defined as an email address, online form, or toll-free number, to facilitate such requests. Unlike the CCPA, however, the law does not make any distinction between operators who actually "sell" covered information and those who do not, and thus it appears to require that all operators have a designated request address in place even if they do not sell covered information.

The CCPA requires that covered businesses make available a "do not sell my personal information" link.  The amended Nevada law, on the other hand, imposes no requirement to notify consumers about their right to opt out.   

Under the revised Nevada law, operators need only respond to "verified" requests, which are those for which the operator can confirm the identity of the individual and the authenticity of the request, using commercially reasonable means. The law, however, is silent as to what such verification actually entails. The law gives operators 60 days (with the possibility of a 30-day extension) to respond to opt-out requests. The CCPA currently provides for no specific timeframe.

New Categories of Exemptions From the Law's Requirements

The Nevada law exempts from its coverage third parties that operate, host, or manage a website or online service on behalf of its owner or that process information on behalf of the owner. The amended law adds three exemptions: (i) financial institutions and affiliates of financial institutions subject to the Gramm-Leach-Bliley Act; (ii) covered entities under HIPAA; and (iii) manufacturers of or persons who repair or service motor vehicles (with respect to covered information collected in connection with certain technologies or services relating to such motor vehicles).

Footnotes

1 For information about the CCPA and its requirements, please visit the MoFo CCPA resource page.

2 The California Assembly recently passed AB 25, a bill to amend the CCPA's definition of "consumer" to exclude a job applicant, employee, contractor, or agent of a business to the extent that such an individual's personal information is collected and used "solely within the context of the person's role as a job applicant to, an employee of, a contractor of, or an agent on behalf of, the business." AB 25 will now go to the Senate for its consideration. You can read our recent alert on this topic for more information.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

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
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
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