On Friday, California Attorney General Xavier Becerra released proposed modifications to the formerly-released draft regulations implementing the California Consumer Privacy Act (CCPA). The modifications reflect the Attorney General’s response to public comments issued in response to the draft regulations and arguably represent a rollback of key provisions previously proposed.
The modifications impose a number of…
As we mark Data Privacy Day, today is a good time to take stock of where U.S. privacy legislation stands in relation to the developments of the past few years. In less than two years, the GDPR and the CCPA became the most comprehensive privacy laws in effect, granting individuals extensive rights over their information,…
The California Attorney General unveiled its data broker registry on Monday. On or before January 31st, companies qualifying as a “data broker” based on the prior year’s activities are required to register their name and contact information with the Attorney General and may provide a statement concerning their data collection practices. A…
While Attorney General Xavier Becerra has indicated his office will prioritize enforcement relating to the sale of minors’ personal information, will direct enforcement efforts at companies that are not showing a willingness to comply, and will not make major changes before finalizing the proposed regulations, the Attorney General has not fielded specific questions about how to implement the law. This state of affairs has left companies scrambling to benchmark their compliance practices against competitors and the industry at large.
In this post, we provide some insights on common questions we are hearing about how to comply with the CCPA in the absence of clear guidance or precedent. Of course, every company is different and companies should always consult with a privacy attorney before deciding on the best way to comply with the CCPA.
- Why are so many companies posting a “Do Not Sell My Info” (DNSMI) button on their website if they do not sell personal information in exchange for money?
- When can a business claim that its ad tech partner and purchased ad tech services are exempt from the “sale” provisions of the CCPA?
- What are the IAB and DAA options for ad tech compliance?
- How do privacy technology vendor tools factor into CCPA Do Not Sell compliance?
- What best practices can companies adopt when verifying a consumer request before providing personal information to the requestor?
- Where are companies posting their DNSMI links?
- What should we do when a consumer clicks on our DNSMI link?
- What does the B2B exemption mean?
- We’re a business, and we sell personal information. Do we have to pass through consumer requests to entities to which we sold data?
- Is there a potential for a private right of action for privacy issues?
- What’s happening with California’s new privacy ballot initiative?
Why are so many companies posting a “Do Not Sell My Info” (DNSMI) button on their website if they do not sell personal information in exchange for money?
Companies that post a DNSMI button but do not sell personal information for money likely have determined that their provision of personal information to ad tech companies in connection with interest-based advertising is a “sale.” Accordingly, they post the DNSMI button to enable consumers to opt out of these “sales.”
The question of whether, and under what circumstances, the use of third-party cookies, pixels, tags, etc. constitutes a “sale” and how to provide DNSMI choices is a flashpoint in the debate over how to interpret the CCPA (as discussed here, here, and here). There is a growing consensus that only a lawsuit or a government enforcement action will resolve this matter.
For now, two ways of analyzing this question are emerging. One position concludes that data collected via a third-party cookie, tag, or pixel may be a potential “sale” because the company adding that cookie, tag, or pixel to its website sends, makes available, or otherwise shares personal information to an ad tech provider in exchange for services, and, critically, where that provider does not restrict its use or sharing of that personal information for the provider’s or other entities’ commercial benefit (other than for a limited number of exempted purposes).
The other position is that the third party directly collects personal information via the cookie, tag, or pixel placed on a publisher’s website, and the publisher is not selling that personal information to the third party responsible for the tracker.
When can a business claim that its ad tech partner and purchased ad tech services are exempt from the “sale” provisions of the CCPA?
The CCPA provides an exemption from the definition of a “sale” when a business uses or shares with a “service provider” personal information of a consumer that is necessary and proportionate to perform a “business purpose.” As a result, companies may want to determine (1) whether an ad tech vendor is a “service provider” and (2) whether that vendor performs its ad tech service for a “business purpose.” Examining specific arrangements with each advertising partner is the best way to address this question and for each of the relevant services provided by the vendor.
Some of the major players in online advertising have laid down public markers that can be helpful in classifying interest-based advertising activities. Examples include:…
As the 45-day period for public comments on proposed regulations to implement the California Consumer Privacy Act (“CCPA”) draws to a close (comments must be submitted by 5:00 pm Pacific time on December 6), we share this report from the second of four public hearings that the Attorney General’s Office is holding this week. Deputy…
California is not the only state focused on privacy. The New Jersey Attorney General’s Office recently emphasized how the Office is prioritizing its enforcement of such issues. Over its first year, the newly-created Data Privacy & Cybersecurity Section within the New Jersey Division of Law has initiated its own actions and joined several multi-state investigations. …
On Thursday, California Attorney General Xavier Becerra released draft regulations implementing the California Consumer Privacy Act (CCPA). The regulations provide the first glimpse into how the Attorney General interprets the sprawling law, which is slated to go into effect on January 1.
The new regulations cover seven topics:
- Notices to Consumers: The draft regulations clarify
Effective January 1, 2020, New Hampshire’s new Insurance Data Security Law will impose certain information security requirements on entities that (1) are licensed under the state’s insurance laws and (2) handle “nonpublic information.” “Nonpublic information” is defined as information that is not publicly available and falls into one of the two following categories:
- Information that