The California Consumer Privacy Act (“CCPA”) took effect on January 1, 2020. In October 2019, the California Attorney General (“CA AG”) published proposed regulations. In the lead up to January 1, 2020, the CA AG repeatedly made the point that those subject to the CCPA should plan for compliance with its broad principals by the first of the year, while admitting enforcement would not start until the regulations were final, meaning July 1, 2020. As part of this process, the CA AG advised he did not expect there to be significant changes to the regulations between October and July. However, upon receiving comments to those October proposed regulations, he changed his mind and on February 7, 2020 revised regulations were issued. A subsequent notice on February 10, 2020 corrected the earlier publication, which omitted certain updates.
To be clear, some of the changes were long awaited (such as what the “Do Not Sell My Personal Data” button looks like), while others were unexpected (such as the change to the training requirement by raising the level of records from four million to ten million). This Alert will summarize the key proposed changes. Continue reading “New Revisions to the CCPA”
In Part 1, we summarized the recent legislative changes regarding the California Consumer Privacy Act (“CCPA”). Bearing in mind the CCPA takes effect on January 1, 2020 and the Attorney General is required to issue regulations by July 1, 2020, these regulations both meet that time frame, but also seek to provide much-needed guidance to industry.
Most of the legislative changes focused on narrowing the definition of personal information, clarified the time frame which applies when a consumer demands information the business possesses about him or her, and also confirmed the CCPA applies to businesses, not non-profits or government entities. In this Alert, we summarize the regulations which were recently issued. However, even in the regulatory context, the starting point remains the same. Companies should begin by asking the following questions: Continue reading “California Consumer Privacy Act: Are You Ready? (Part 2)”
In the last few weeks we have seen both regulatory and legislative action that has helped to clarify the scope and impact of the California Consumer Privacy Act (“CCPA”). By way of a refresher, the CCPA seeks to protect the personal information of California consumers by giving them greater knowledge about the nature and extent of the data collected about them, how it is used (sold or shared) by those who possess it, and how the individual consumer can control the use of his/her personal data. The CCPA applies to companies, regardless of where they are located, which:
Have annual gross revenues in excess of $25 million;
Alone or in conjunction with others annually buy, sell, receive or share for commercial purposes, the personal information of 50,000 or more consumers, households, or devices; or
Derive 50% or more of their annual revenues from selling consumer personal information.
This framework leaves companies to ask some very basic questions before deciding next steps:
What is our annual gross revenue (not limited to California income)?
Do we have the personal information of at least 50,000 consumers, households or devices located in California?
Do we sell the personal data we have of those California consumers, households or devices? If so, do we derive 50% or more of our annual revenues from those sales?
Even if we do not sell that personal data, do we disclose any portion of it to any third parties?
If you answered more than $25 million to the first question or yes to any of the remaining questions, you could be subject to the CCPA, but there is more to the analysis. The next important question is: do you hold personal data belonging to any California consumers, households or devices? If you answered no, you can breathe a sigh of relief. If not, get ready for the year-end push! Continue reading “California Consumer Privacy Act: Are You Ready? (Part 1)”
When the law was signed by then Governor Brown (see our prior Alert here), the expectation was that Attorney General Becerra would issue the enabling regulations by July of this year, which would allow a phase-in period. Then by January 1, 2020, the requirements would be clear and companies would be able to properly formulate and implement their compliance policies. Regretfully, things are not going as expected.
In the last week, both the Dept. of Homeland Security and the Food and Drug Administration have issued a consumer alert about the potential hacking risk regarding cardiac devices, specifically because those devices have no encryption on their software. The devices in question are implantable cardiac devices, clinic programmers and home monitors which are used to regulate one’s heartbeat rate – to speed it up or slow it down, as needed. The focus this time is on the Medtronic Conexus Radio Frequency Telemetry Protocol. Given this latest notice, one has to wonder what will be the impact of the California IoT law.
What both federal agencies had to say is short range access allows interference with, generation, modification or interception of communications. There is also the ability to read/write any valid memory location on the implanted device and, therefore, impact its intended functionality. Continue reading “CA IoT Law: Devices at Risk?”
In a compromise to avoid a ballot measure, at the very last moment on the very last day, just before the stroke of midnight, on June 29, 2018, the California legislature passed and Governor Brown signed into law the California Consumer Privacy Act of 2018 (the “Act”), which takes effect on January 1, 2020. Many of its provisions are similar to the General Data Protection Regulations (“GDPR”), which took effect in Europe at the end of May, and required companies to institute new internal data privacy regimes. So, while those companies which prepared for the GDPR are well on their way to gaining compliance with this new law, there is still much to be done by them and especially those companies which were not impacted by the GDPR. Continue reading “California Consumer Privacy Act of 2018 – GDPR Lite?”
On May 25, 2018, important European regulations regarding data privacy and protection go into effect that will have a major impact on American companies, many of whom don’t realize they will be subject to compliance with its requirements. The General Data Protection Regulations (the “GDPR”) will have severe penalties for non-compliance (as high as €20 million or 4% of annual worldwide turnover). The GDPR will also have very broad territorial reach applying not only to European entities, but also to entities located outside of Europe (including those in the U.S.) that process the personal data of living European individuals residing in the covered countries, including if the company:
Offers goods or services to individuals in the covered countries (e.g., e-commerce, capital raising, fund raising, immigration);
Employs individuals in one or more of the countries;
Monitors the behavior of individuals in any of these countries; and
Collects, stores, or processes the personal data of affected individuals on behalf of others.
For these purposes, the European definition of personal data mirrors nicely the American definition of personally identifiable information. Given the severe penalties and broad reach, it is important that each company in the U.S. consider whether the GDPR applies to its operations and, if so, how best to comply. Continue reading “The GDPR is Coming – Are You Ready?”
Just about every survey of General Counsels reveals the same #1 culprit of sleepless nights….. a cybersecurity hack. If you run a business in today’s global environment, it is hard to escape the fundamental reality that it is more than likely a matter of when, not if, you will face a cyber threat. And depending on the nature of your business, that threat can have a wide range of implications. If you are a public company, there is an additional issue to consider… what do you have to disclose to your investors and shareholders?
Being prepared for a hack with a comprehensive written information security plan and an equally robust incident response plan is just one component to be considered if you are a public company. You must also have a plan to meet your reporting and disclosure obligations to a variety of governmental bodies. While measuring your response needs in the wake of a hack, and determining if there are state, federal or international laws and regulations that require reporting, you must also pay close attention to possible disclosure obligations in your SEC filings. Specifically, if you have tripped a disclosure to a state attorney general or your company’s customers, then it is possible you may also have a disclosure obligation to your shareholders. Continue reading “If You SEC Something, Say Something”
Recently, there has been much discussion about the Superior Court of Pennsylvania’s ruling in Dittman v. UPMC, which affirmed a lower court’s order dismissing an employee class action against their employer over a data breach. While this was a significant victory for employers, non-Pennsylvania employers should temper their enthusiasm. As one recent federal court decision in California makes clear, the reasoning of Dittman may not extend far beyond, if at all, the borders of Pennsylvania. Moreover, regardless of their outcomes, both cases also reinforce the need for employers to maintain legally compliant, written policies for safeguarding private information and responding to data breaches.
In Dittman, a data breach resulted in the theft of the personal information (e.g., names, birth dates, social security numbers, banking information) of approximately 62,000 UMPC current and former employees. The information was used to file fraudulent tax returns and steal tax refunds from certain employees.
Daily headlines of data breaches, resulting class actions, governmental investigations and enforcement actions, and the settlements of those actions serve as constant reminders of the need to implement and maintain reasonable cybersecurity measures. Yet another example can be found in the recent announcement by the Federal Trade Commission, which states that the operators of Ashley Madison have agreed to settle the charges brought against them by the FTC and over a dozen state attorneys generals arising out of the July 2015 data breach of Ashley Madison’s network. Analyzing the settlement also provides additional guidance on what regulators mean when they refer to reasonable safeguards.