United States: California Legislature Passes Amendments To Privacy Law

Last Updated: October 7 2019
Article by Scott W. Pink

In a flurry of activity on the last day of the legislative session, on September 13, 2019, California passed several amendments to the California Consumer Privacy Act of 2018 (CCPA).  While these amendments provide some important exemptions and clarifications, the legislature did not drastically change the CCPA by adopting any significant industry-backed exemptions (e.g., SB-753, which, if passed, would have exempted certain data sharing related to targeted advertising from the CCPA "do-not-sell" compliance requirements). In addition, the legislature did not act on a proposed bill to allow companies to sell personal information gathered in loyalty programs.

The CCPA grants California consumers broad rights to control their personal information.  While not as strict as Europe's General Data Protection Regulation (GDPR), California's law will be the strictest in the nation and will impose significant new obligations on companies doing business in California with respect to personal information of California residents.  Assuming these amendments are approved by Governor Newsom, the final step is for the California Attorney General to issue regulations relating to the CCPA.  The law takes effect on January 1, 2020, with enforcement delayed until six months after issuance of the Attorney General's regulations, or July 1, 2020, whichever is sooner.

The five amendments—Assembly Bills 25, 874, 1146, 1355, and 1564—will affect different aspects of the CCPA.  In addition, the legislature passed AB 1202, which requires the registration of data brokers.   

AB 25 - Temporary Exception for Employees and Contractors

AB 25 exempts, until January 1, 2021, personal information collected from a natural person by a business in the course of the natural person acting as a job applicant to, an employee of, owner of, director of, officer of, medical staff member of, or contractor of that business, as specified, from most provisions of the CCPA. It also exempts emergency contact information or personal information necessary to administer benefits for another natural person relating to the employee, owner, director, officer, medical staff member, or contractor. However, these individuals retain their rights to be informed of the categories of personal information collected and the purposes for which these categories of personal information shall be used by the business. Additionally, they retain their right to bring a private action for a data breach.

AB 25 - Exemption for Certain Business-to-Business Information

AB 25 exempts, until January 1, 2021,  personal information reflecting a written or verbal communication or a transaction between the business and a person acting as an employee, owner, director, officer, or contractor of a company, partnership, sole proprietorship, nonprofit, or government agency if the communications or transaction occurs solely within the context of the business conducting due diligence regarding, or providing or receiving a product or service to or from such company, partnership, sole proprietorship, nonprofit, or government agency, from most provisions of the CCPA.  This exemption would appear to provide that most email communications between individuals in their roles as employees of businesses are not subject to CCPA requests.

AB 25 - Reasonable Authentication Requests from Consumers 

The CCPA grants consumers the right to request that a business disclose specific pieces of personal information it has collected and to have information held by that business deleted.  The act requires the business to disclose and deliver the required information to a consumer free of charge within 45 days of receiving a verifiable consumer request from the consumer.  Additionally, the act prohibits a business from requiring a consumer to create an account with the business in order to make a verifiable consumer request.

AB 25 allows a business to require authentication of the consumer that is reasonable in light of the nature of the personal information requested in order to make a verifiable consumer request.  It also provides that if the consumer maintains an account with the business, the business may require the consumer to submit the request through that account. 

AB 874 - Exclusions from the Definition of Personal Information

AB 874 limits the definition of "personal information" in certain cases, so that:

  • "Personal information" does not include consumer information that is de-identified or aggregate consumer information.
  • "Personal information" does not include publicly available information ("publicly available" means information that is lawfully made available from federal, state, or local government records). This amendment eliminated the requirement that publicly available information be used for the same purpose as the public record.  Note that "publicly available" does not mean biometric information collected by a business about a consumer without the consumer's knowledge.
  • "Personal information" is now defined as: "information that identifies, relates to, describes, is reasonably  capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household" (the word "reasonably" was added to the definition).

AB 1146 - No Opt-Out Right for Sharing of Information for Vehicle Recall or Warranty Repairs

The CCPA grants a consumer the right to direct a business not to sell, as defined, personal information about the consumer to third parties, as defined (the "opt-out right"). A consumer also has the right to request that a business delete personal information about the consumer that the business has collected from the consumer, subject to certain conditions.

AB 1146 provides that the consumer's opt-out right does not apply to vehicle information (VIN, make, model, year, and odometer reading) or ownership information retained or shared between a new motor vehicle dealer and the vehicle's manufacturer if the vehicle or ownership information is shared for the purpose of effectuating, or in anticipation of effectuating, a vehicle repair covered by a vehicle warranty or a recall, provided that the new motor vehicle dealer or vehicle manufacturer with which that vehicle information or ownership information is shared does not sell, share, or use that information for any other purpose.

The bill also exempts from the right to request a business to delete personal information about the consumer the personal information that is necessary for the business to fulfill the terms of a written warranty or product recall conducted in accordance with federal law.

AB 1202 - Creates "Data Broker" Registry with the California Attorney General

AB 1202 requires data brokers to register with and provide certain information to the Attorney General. The bill defines a data broker as a business that knowingly collects and sells to third parties the personal information of a consumer with whom the business does not have a direct relationship, subject to specified exceptions. The bill requires the Attorney General to make the information provided by data brokers accessible on its internet website. The bill makes data brokers that fail to register subject to injunction and liability for civil penalties, fees, and costs in an action brought by the Attorney General, with any recovery to be deposited in the Consumer Privacy Fund, as specified.

AB 1355 - Differential Treatment of Consumers

The CCPA prohibits a business from discriminating against a consumer for exercising any of the consumer's rights under the act.

AB 1355 changes the previous exception to this prohibition, and allowing differential treatment if it is reasonably related to the value provided to the business by the consumer's data.

AB 846, which would have exempted loyalty programs from the differential treatment provisions, was deferred and not approved.

AB 1355 - Clarification that the Attorney General May Adopt Additional Regulations

AB 1355 clarifies that the Attorney General may adopt additional regulations to establish rules and procedures on how to process and comply with consumer requests for specific pieces of personal information relating to a household (to address obstacles to implementation and privacy concerns).

AB 1355 - Information Not Usually Collected in the Ordinary Course of Business

AB 1355 clarifies that the law does not require a business to collect personal information that it would not otherwise collect in the ordinary course of its business. Similarly, a business need not retain personal information for longer than it would otherwise retain such information in the ordinary course of its business.

AB 1355 - Clarification of FCRA Exemption

The CCPA had provided an exemption for the sale of personal information to and from a consumer reporting agency under the Fair Credit Reporting Act (FCRA).  AB 1355 amends and broadens the exemption to apply to the collection, maintenance, disclosure, sale, communication, or use of any personal information bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living by a consumer reporting agency in a consumer report, as those terms are defined in the FCRA.  The exemption only applies if the personal information is used as permitted under the FCRA.  The exemption does not seem to impact a consumer's ability to bring a private action against a business for a data breach involving such information.

AB 1135 - Clarification Regarding the Consumer's Disclosure Right

AB 1135 clarifies that consumers have the right to request specific pieces of information that a business has collected about them. However, they do not have the right to automatically obtain such information (they only have the right to request it).

AB 1564 - Consumers Information Requests from an Exclusively Online Business

The CCPA provides that a business is required to make available to consumers at least two designated methods for submitting requests for specified information required to be disclosed.

AB 1564 provides that a business that operates exclusively online and has a direct relationship with a consumer from whom it collects personal information is only required to provide an email address for submitting requests for information required to be disclosed. If the business maintains an internet website, it should make the website available to consumers to submit requests for information required to be disclosed.

October 13, 2019, will be the final day for the governor to sign or veto these bills.

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
 
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