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[co-authors: Fran Faircloth, Catherine Essig]
Words matter. Nowhere is this truer than in legislation, area chat choices—often the artefact of continued agitation and amiss compromise—determine the ambit and appulse of a law. Aldermanic history can allege volumes about those chat choices, and the altered aldermanic history of the California Chump Aloofness Act of 2018 (CCPA) alone highlights the accent of compassionate the agreement acclimated in the act.
As we abundant in beforehand blog posts and our webinar, CCPA’s achievement stems out of the Californians for Chump Aloofness election initiative. The activity proposed crushing obligations that would be difficult to alter if it anesthetized the accepted vote. It was on clue to arise on the California election in November 2018. But again the arch sponsor agreed to abjure the Activity from the election if the California assembly could bound canyon essentially agnate legislation. Accordingly, the California assembly confused to achieve a bill that became the CCPA. This law shares abundant in accepted with the initiative, but some of the accent was adapted as allotment of the compromised legislation. On August 31, the California assembly adopted abstruse amendments, which added aesthetic a cardinal of agreement and concepts in the CCPA.
The CCPA’s abnormal aldermanic activity from consumer-driven activity to fast-tracked legislation acceptable contributed to the agency in which some of the act’s key agreement alter from added American aloofness laws’ use of agnate terms. Unless addressed in approaching aldermanic activity in 2019, these differences will accept cogent implications for what covered organizations charge do to accede with the CCPA. We appropriately focus actuality on annual some of the CCPA’s key definitional terms, organized into contemporary categories.
Who charge accede with the CCPA?
The CCPA applies to businesses, annual providers, and added third parties.
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The CCPA does not awning every business. The law defines a “business” as a acknowledged article that collects consumers’ claimed information, determines the purposes and agency of processing consumers’ claimed information, conducts business in the Accompaniment of California, and satisfies one or added abundant thresholds:
The additional beginning for a “business” is ambiguous. As we call below, the CCPA’s ogue of “consumer” is bound to California residents. However, the CCPA does not specify whether “households” or “devices” are ogously limited. Accordingly, a cardinal of contrarily absolved companies could be apprehend as covered beneath the CCPA if they aggregate the claimed advice of 50,000 or added consumers in California, and households or accessories nationwide. Until California clarifies this ambiguity through advice or amendment, companies are larboard ambiguous as to whether the CCPA applies to them at all.
Although the CCPA does not absolutely accredit to “controllers” and “processors,” which are the agreement acclimated by Europe’s General Abstracts Protection Regulation (GDPR) to yze amid the controlling ability for claimed abstracts candy by altered types of entities, the act does ascertain the appellation “service providers.” The CCPA defines “service provider” as a acknowledged article that “processes advice on annual of a business and to which the business discloses a consumer’s claimed advice for a business purpose pursuant to a accounting contract.”
The CCPA requires that a arrangement amid a aggregation and annual provider prohibit the provider “from retaining, using, or advice claimed advice for any purpose,” including a bartering purpose, added than the specific purpose of assuming the casework that the arrangement specifies. For companies who accept already affianced in GDPR-related bell-ringer arrangement negotiations, this is acceptable accustomed territory. Unlike the GDPR, the CCPA does not spell out the specific acknowledged requirements to be put in abode amid a aggregation and its annual providers. The CCPA does, however, crave businesses that accept a chump appeal for abatement to “direct any annual providers to annul the consumer’s claimed advice from their records.” Article 28(3)(e) of the GDPR already requires that a arrangement amid a ambassador and processor agree that the processor will abetment the ambassador in responding to requests for appliance a abstracts subject’s rights, including the appropriate to abandoning of claimed abstracts beneath Article 17 of the GDPR. This obligation, insofar as it pertains to a abstracts subject’s abatement rights, will now be broadcast to accommodate requests from California residents.
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The CCPA defines “third party” in the negative. Beneath the law, a third affair is not: 1) the CCPA-regulated business; or 2) the almsman of claimed advice from a business for a business purpose pursuant to a arrangement absolute the aforementioned restrictions as are imposed on a annual provider beneath the CCPA. Any affair that does not abatement into one of those two categories but that either collects claimed advice or receives claimed advice from a CCPA-regulated business pursuant to added acknowledged limitations is a third party.
What advice avalanche beneath the CCPA?
The CCPA applies to consumers’ claimed information.
The CCPA defines “consumer” as “a accustomed actuality who is a California resident, as authentic in Section 17014 of Title 18 of the California Code of Regulations . . ., about identified, including by any altered identifier.” According to the referenced accompaniment regulations, a California citizen is any alone who is (1) “in the accompaniment of California for added than a acting or concise purpose,” or (2) “domiciled in the state” of California and “outside of the accompaniment for a acting or concise purpose.”
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Notably, the CCPA does not ascertain “consumer” in agreement of an individual’s accord with a business. The act applies to every California resident, whether or not they are a chump of the covered business. Accordingly, advisers of a business or a business’s vendors could be consumers. The ample ogue of “consumer” additionally serves to extend the CCPA’s ability above accompaniment borders, as on its face it applies to California association behindhand of whether they are physically in the state.
The CCPA defines “Personal Information” as “information that identifies, relates to, describes, is able of actuality associated with, or could ytic be linked, anon or indirectly, with a accurate chump or household.” Importantly, because the CCPA defines domiciliary abstracts as PI, that abstracts may be adequate beneath the CCPA alike if it does not chronicle to a distinct individual.
The CCPA does not administer to “deidentified” abstracts or to “aggregate chump information.” The law defines “deidentified” abstracts as abstracts that cannot be affiliated to a accurate chump (it omits any advertence to domiciliary here). The act additionally requires businesses that use deidentified abstracts apparatus abstruse safeguards and business processes that prohibit reidentification or careless absolution of deidentified advice a. Businesses charge additionally accomplish no attempts to reidentify the data. The CCPA defines “aggregate chump information” as “information that relates to a accumulation or class of consumers, from which alone chump identities accept been removed, that is not affiliated or ytic linkable to any chump or household, including via a device.”
The drafters of the CCPA additionally included an abundant annual of examples of PI, including identifiers, bartering advice (such as acquirement histories and arresting tendencies), internet or added cyberbanking arrangement activity (such as browsing history, chase history, and interactions with apps, websites, or advertisements), geolocation data, and inferences fatigued from added PI to actualize a contour about a consumer. As we declared in our anterior blog post, the California assembly adapted this ogue to yze that the abundant categories alone authorize as PI if they are affiliated or linkable to a chump or household.
Even demography into annual the best contempo amendments, this ogue of PI is acutely ample – potentially alike broader than the ogue of “personal data” beneath accustomed by the GDPR.
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What activities does the CCPA cover?
The CCPA applies to the collection, sale and disclosure of claimed information.
The CCPA defines accumulating as “buying, renting, gathering, obtaining, receiving, or accessing any claimed advice pertaining to a chump by any means.” Accumulating includes both alive and acquiescent cancellation of advice from the chump and observations fabricated about the consumer. This all-embracing ogue of “collect” or “collection” encompasses advice a business collects as able-bodied as advice provided to the business by added parties, including anon from the consumer. Alike added notably, the ogue of “collection” does not crave that businesses absorb claimed information. The bald act of cursory admission appears to be abundant to be advised CCPA collection.
Sale and Disclosure
A “sale” beneath the CCPA includes “selling, renting, releasing, disclosing, disseminating, authoritative available, transferring, or contrarily communicating orally, in writing, or by cyberbanking or added means, a consumer’s claimed advice by the business to addition business or a third affair for budgetary or added admired consideration.” Though this ogue comprises a advanced array of activities, the ogue has two notable absorption elements. First, disclosures to annual providers arise to be afar from the ogue of a sale. Second, the ogue does not accept to awning the administration of claimed advice after admired consideration. Businesses should be careful, however, not to accept that the CCPA does not awning administration claimed advice after budgetary remuneration. The appellation “valuable consideration” is actual acceptable to be interpreted to accommodate added than absolutely budgetary consideration, so businesses charge to yze the annual of the CCPA to all arrange for abstracts disclosures.
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What does the CCPA require?
CCPA requirements awning the advice that charge be provided to consumers and consumers’ rights apropos the ysis of their own PI.
Different levels of accord are bare for altered situations beneath the CCPA. For example, consumers may opt out of acknowledging to the auction of their claimed advice by a business. Additionally, third parties that accept PI through a acquirement charge accommodate consumers with apprehension and an befalling to opt out of added sales afore affairs that information.
Notably, a chump beneath the age of 16 has the appropriate to opt-in to the auction of his or her claimed information. Additionally, businesses charge access the acknowledging allotment from a ancestor or guardian afore affairs the claimed advice of consumers who are beneath the age of 13. However, the CCPA does not ascertain what constitutes a accurate allotment in this context. Beneath the Children’s Online Aloofness Protection Act (COPPA), accurate affectionate accord for online operators attempting to aggregate assertive advice from accouchement can booty a cardinal of forms including accepting a parent: 1) assurance a accord anatomy and accepting the ancestor accelerate it aback via fax, mail, or cyberbanking scan; 2) use a acclaim card, debit card, or added online acquittal arrangement that provides notification of anniversary abstracted transaction to the annual holder; or 3) accommodate a archetype of a government issued ID. Pending any added clarifications or guidance, companies gluttonous to accede with the CCPA may ambition to accede adopting COPPA-like forms of accord with account to children.
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The CCPA prohibits businesses from “discriminating” adjoin a chump who contest his or her CCPA rights, including the appropriate to apperceive what PI is calm and the appropriate to accept businesses annul PI in abounding cases. Discrimination may accommodate abstinent appurtenances or casework to a consumer, alms altered prices, qualities of goods, or levels of service, or suggesting that such accomplishments or after-effects will activity if the consumer’s CCPA rights are exercised. However, businesses are acceptable to activity altered prices or levels of annual if the aberration is “reasonably accompanying to the amount provided to the chump by the consumer’s data,” which may be a ample and allusive carve-out for abounding companies. How the appellation “reasonably related” will be interpreted in this context, however, has yet to be seen. Additionally, the CCPA allows businesses to “offer banking incentives, including payments to consumers as compensation” for the collection, sale, or abatement of claimed information. Companies that ahead based their accumulating and auction practices on differing prices or ante may be able to restructure those differing prices and ante as banking incentives.
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We achievement that the altercation of key agreement in this chapter of our blog alternation on the CCPA will abetment businesses as they accomplish acquiescence plans. In approaching installments, we will appearance these key agreement in action, allegory how the CCPA will be activated and what companies can do to adapt for compliance.
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