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On Friday May 27, 2022, the California Privacy Protection Agency (CPPA) Board announced its next public meeting will be on June 8, 2022. The announcement simply stated the date of the meeting, that there are “some discussion items [that] will be relevant to the Agency’s rulemaking work,” and that information on how to attend the meeting and the meeting agenda could be found on the CPPA’s site. It did not take too many Internet sleuths to review the posted agenda, and note that Agenda Item No. 3 was “Discussion and Possible Action Regarding Proposed Regulations, Sections 7000–7304, to Implement, Interpret, and Make Specific the California Consumer Privacy Act of 2018, as Amended by the California Privacy Rights Act of 2020, Including Possible Notice of Proposed Action,” and that the posted meeting materials included a copy of the “Draft Proposed CCPA Regulations.” In addition, Agenda Item No. 4 provides for “Delegation of Authority to the Executive Director for Rulemaking Functions.” Full stop, June will be an active month for California privacy rulemaking.

But let’s unpack the surprises in the draft regulations. The 66-page draft proposed CCPA regulations (and they are referred to within the document as CCPA regulations) take a prescriptive approach to privacy obligations. In concept, that is not too surprising. Of concern, in some areas, they uniquely depart from approaches set forth by other state privacy laws. The quiet release of dramatic new obligations while bipartisan Senators reportedly may be reaching consensus on federal privacy legislation that could  preempt state law obligations puts companies doing business in California in a difficult position. Do they scramble to operationalize new programs to comply with the CPPA’s new requirements, if finalized? Do they wait on Congress? Do they choose a third path? For now, while these draft rules are certain to change in some respects before they are finalized, they directionally outline a new privacy baseline for the United States. We highlight certain aspects of the draft rules below, with a particular focus on accountability and risk exposure, how data can be shared with other businesses for digital advertising or other functions, and what those business agreements must include to lawfully support such business relationships and comply with the amended CCPA.
Continue Reading New California Draft Privacy Regulations: How They Would Change Business Obligations and Enforcement Risk

The replay for our May 19, 2022 Teen Privacy Law Update webinar is available here.

Protecting the privacy and safety of kids and teens online is receiving enormous attention lately from Congress, the States, the FTC, and even the White House.  Further, just last month, BBB National Programs unveiled a Teenage Privacy Program Roadmap…

The replay for our April 28, 2022 Privacy Priorities for 2022: Tracking State Law Developments webinar is available here.

In the absence of a federal privacy law, privacy has been at the forefront of many states’ legislative sessions this year. Against this backdrop, state attorneys general continue to initiate investigations into companies’ privacy practices,…

Age Appropriate Design Codes – Well Meaning, but Do They Make for Good Law?

As we’ve discussed here, there’s bipartisan momentum in Congress to enact stronger privacy protections for kids and teens – and specifically, tools that would enable minors and their parents to limit algorithms and online content that fuel self-harm and addictive behaviors. These efforts, reflected in several federal bills (see here and here…

How the Utah Consumer Privacy Act Stacks Up Against Other State Privacy Laws

As companies wait to see whether the Utah Consumer Privacy Act (UCPA) becomes the fourth comprehensive state privacy law, we are providing an overview of some of the Act’s key provisions – and how they depart from comprehensive privacy laws in California, Colorado, and Virginia.

Utah’s Senate unanimously passed the UCPA on February 25.  The House – also through a unanimous vote – followed on March 2.  The Legislature sent the UCPA to Governor Spencer Cox on March 15.  Because the Legislature adjourned on March 4, Governor Cox has 20 days from the date of adjournment – March 24 – to sign or veto the Act.  If Governor Cox takes no action, the UCPA will become law, with an effective date of December 31, 2023.

In broad strokes, the UCPA is similar to the Virginia Consumer Data Protection Act (VCDPA) and Colorado Privacy Act (CPA).  And, like the laws in Colorado and Virginia, the UCPA borrows some concepts from the CCPA – including a version of the right to opt out of the “sale” of personal data.

However, the UCPA pares back important features of all three of these laws.  Some of the significant changes include:

  • Applicability.  The UCPA’s applicability is narrower than the three other comprehensive state privacy laws.  The UCPA applies only to controllers or processors that (1) do business in the state (or target Utah residents with products or services); (2) earn at least $25 million in revenue; and (3) either: (a) control or process personal data of 100,000 or more consumers in a calendar year; or (b) derive more than 50 percent of gross revenue from selling personal data and control or process data of 25,000 or more consumers.  By contrast, the $25 million revenue threshold is an independent basis for the CCPA to apply to a business; and neither the CPA nor VCDPA includes a revenue-based exemption.
  • Exemptions.  In addition to exempting personal data that is subject to sector-specific privacy laws and regulations, such as HIPAA, the Gramm-Leach-Bliley Act, and the Fair Credit Reporting Act, the UCPA provides that the Act does not apply to certain entities, including a tribes, institutions of higher education, and nonprofit corporations.
  • Sale and Targeted Advertising Opt-Out Rights.  Although the UCPA requires controllers to provide consumers with the ability to opt out of sale and targeted advertising, the Act does not provide a right to opt out of profiling (or otherwise address profiling).  Like the VCDPA, the UCPA restricts the definition of “sale” to “the exchange of personal data for monetary consideration by a controller to a third party.”  This definition does not include “other valuable consideration,” found in the definitions of “sale” under the CCPA and CPA.
  • Opt-Out Consent to Process Most Sensitive Data.  The UCPA does not require opt-in consent to process most sensitive data, unless the data “concern[s] a known child,”  unlike the opt-in requirements of the CPA and VCDPA.  Instead, the UCPA requires controllers to “present[] the consumer with clear notice and an opportunity to opt out” of sensitive data processing.
  • Other Consumer Rights.  The UCPA provides consumers the right to confirm processing and to delete personal data they provided to a controller.  Consumers also have the right to obtain a portable copy of personal data that the consumer “previously provided to the controller.”  This “provided to” language follows the VCDPA’s access and portability right and contrasts with obligations to provide personal data “concerning” (CPA) or “about” (CCPA) a consumer.  The UCPA does not provide a right of correction or accuracy.
  • Enforcement and Regulation.  The UCPA does not include a private cause of action, nor does it authorize the Attorney General or other state official or agency to issue regulations.  The Division of Consumer Protection, in the Utah Department of Commerce, investigates potential violations and can refer an action to the Utah Attorney General for enforcement.  The Attorney General can recover actual damages for consumers and a penalty of up to $7,500 per violation, but only after a 30 day notice and right to cure period.

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Continue Reading How the Utah Consumer Privacy Act Stacks Up Against Other State Privacy Laws

Lina Khan’s Privacy Priorities – Time for a RecapRumors suggest that Senator Schumer is maneuvering to confirm Alvaro Bedoya as FTC Commissioner sooner rather than later, which would give FTC Chair Khan the majority she needs to move forward on multiple fronts. One of those fronts is consumer privacy, for which  Khan has announced ambitious plans (discussed here and here) that have stalled for lack of Commissioner votes. With Bedoya potentially on deck, now seems like a good time to recap those plans, as they might provide clues about what’s in the pipeline awaiting Bedoya’s vote. We focus here on three priorities Khan has emphasized in statements and interviews since becoming Chair.
Continue Reading Lina Khan’s Privacy Priorities – Time for a Recap

Day in the Life of a Chief Privacy OfficerOn this special episode, Privacy and Information Security practice chair Alysa Hutnik chats with Shana Gillers, TransUnion’s Chief Privacy Officer. Alysa and Shana discuss the journey to becoming a chief privacy officer, hot topics, and what it takes to stay on top of your game in privacy today.

Watch a video version here or the…

FTC Continues to Focus on Incentivized ReviewsPlease join us for a webinar on February 24, 2022 at 4 p.m. on recent and upcoming FTC developments. The webinar will feature Kelley Drye’s Jessica Rich and Aaron Burstein, both former FTC officials, and will be moderated by the newest addition to our privacy team, Jayson Lewis. Here’s a taste of what we’ll be…

On December 13, the New Mexico Attorney General announced a settlement with Google to resolve claims regarding children’s privacy, including in the burgeoning EdTech space. The federal lawsuits Balderas v. Tiny Lab Productions, et al. and Balderas v. Google LLC, respectively, alleged COPPA and privacy violations related to collection of children’s information on…

Jessica L. Rich and Laura Riposo VanDruff, Two Former Senior FTC Officials Further Bolstering Kelley Drye’s Privacy and Advertising PracticesWe are thrilled that Jessica Rich and Laura Riposo VanDruff have joined the firm’s Privacy and Advertising practice groups. Both attorneys are former top officials at the Federal Trade Commission (FTC), with Rich having served as Director of the Bureau of Consumer Protection (BCP) and VanDruff as an Assistant Director in BCP’s Division of Privacy…