Worldwide: CCPA Amendments Pass As The California Legislative Session Draws To A Close

Last Updated: September 23 2019
Article by Ropes & Gray LLP

As the clock ticked to the close of California’s 2019 legislative session on Friday the 13th, the California legislature passed several noteworthy amendments to the California Consumer Privacy Act (CCPA). Both the Senate and the Assembly passed five bills to amend the CCPA—AB 25, 874, 1146, 1355, and 1564. If signed by the Governor, these pieces of legislation will alter the scope of the CCPA, most significantly by (albeit temporarily) removing employees from most provisions and materially narrowing its application to business-to-business (B2B) contacts. This alert reviews the changes that each of these bills propose.

Removing Employee and Business Contact Information from CCPA Coverage—Temporarily 

For businesses that collect little to no information from retail customers or other individuals that fit within the conventional concept of a consumer, AB 25 and AB 1355 could together have a significant impact. Taken together, these bills would remove personal information from employees and certain business contacts from most CCPA coverage. A one-year sunset clause makes these amendments inoperative on January 1, 2021, requiring the California legislature to come up with a more permanent solution or revert to the original CCPA text. Additionally, the exemptions do not apply to the CCPA’s data breach cause of action, with potential statutory damages of $100 to $750 per consumer per incident.

AB 25 is the most prominent bill, and it proposes several amendments to the CCPA. Most notably, it excludes from most of the CCPA’s key provisions any information that is collected about employees, job applicants, owners, directors, staff, officers, and contractors, as well as any emergency contact information those individuals provide to the business. Businesses would also still be required to provide employees with notices about what categories of information a business collects about them and their purpose for doing so, but they would not need to offer opt-out, access, and deletion rights.

AB 1355 adds an exemption for business contact information that a business collects during communications or transactions with another business or government agency (B2B transactions). Specifically, AB 1355 would exempt from most of the act’s provisions personal information about an employee, owner, director, officer or contractor of a business or government agency collected by a business as part of B2B transactions, in the context of due diligence of, or the provision of products or services to, the business or agency. The exemption does not exclude all B2B information, but it may exclude much of it. The exemption also does not apply to the right to opt out of the sale of a consumer’s data or obligation not to discriminate against a consumer for attempting to exercise other rights. AB 1355 also helpfully clarifies that consumers’ right to access any personal information that a company has collected about them in the past year does not require the business to retain any personal information that it would not otherwise retain in the ordinary course of business.

Clarifying What Counts as Personal Information

Two other amendments—AB 874 and AB 1146—provide additional clarifications on what personal information is covered by the CCPA.

AB 874 removes a carve-out from the definition of “publicly available” information that applied if a business used such information in a way that was “not compatible” with the purpose for which the information was made available by the government. That carve-out could have potentially affected businesses using government data to provide information services, and its removal should provide such businesses with comfort that their activities will not be materially impacted by the CCPA. AB 874 also expressly exempts de-identified or aggregate information from the definition of personal information. The CCPA already stated that its obligations should not restrict a business’s ability to collect, use, retain, sell, or disclose de-identified or aggregated information. The amendment may lessen confusion as to whether any of the CCPA’s substantive provisions might still apply to such information. Finally, the amendment clarifies part of the definition of personal information to state that information capable of being associated with an individual or household must be “reasonably” capable of being associated with the consumer or household.

AB 1146 exempts vehicle information and vehicle ownership information that is retained or shared by dealers for warranty or recall purposes. Vehicle information is defined to include VIN as well as make, model, year, and odometer reading. Vehicle ownership information includes the name and contact information for the owners. Such information may be shared, provided that the dealer or manufacturer receiving the information does not sell, share, or use it for any other purpose.

Modifying the Methods for Consumers’ Access or Deletion Requests

Lastly, AB 1564 amends the requirements as to the methods that businesses may provide for consumers to submit access or deletion requests. The text of the CCPA as enacted required businesses to provide at least two methods, including both a toll-free number and, if the business maintained a web site, a web address. The amendment adds that, for businesses that operate exclusively online and have a direct relationship with a consumer from whom it collects personal information, only one method—an email address for submitting requests—is required. The amendment originally added a physical address option, but that was removed before it was passed. This will avoid forcing online companies to open toll-free numbers to comply with the CCPA.

Unsuccessful CCPA Amendment

One additional amendment, AB 846, was ordered to the inactive file at the end of the legislative session. This amendment would have permitted loyalty programs that offer a benefit to customers who voluntarily participate and provide their personal information in spite of the CCPA’s general nondiscrimination protection. The amendment, originally proposed by industry, was hit with a poison pill amendment that prohibited the sale of data from loyalty program members, resulting in industry pulling its support of the amendment.

Non-CCPA Amendments That Could Affect the CCPA

An additional bill, AB 1130, which passed both houses of the legislature last week, would also clarify application of the CCPA’s private right of action for security breaches. If the Governor signs the legislation, AB 1130 would expand the types of personal information covered by California’s breach notification statutes to add two categories of information: (1) additional specification of governmental identifiers, such as a tax identification number, passport number, military identification number, or other unique identification number issued on a government document commonly used to verify the identity of a specific individual; and (2) unique biometric data generated from measurements or technical analysis of human body characteristics, such as a fingerprint, retina, or iris image, used to authenticate a specific individual.

AB 1130 would be significant for the CCPA, because the CCPA provides a private right of action to individuals whose nonencrypted or nonredacted personal information is subject to a breach as a result of a business’s violation of the duty to implement and maintain reasonable security procedures and practices. As mentioned above, under the CCPA, each affected consumer may seek to recover $100 to $750 in damages per incident. Expanding the definition of personal information in the breach notification statute increases the likelihood that consumer information subject to a breach would fall under the CCPA, potentially leading to additional liability for businesses.

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