Data is helping governments, researchers, and companies across the world track the spread of the novel coronavirus, monitor cases and outcomes of COVID-19, and devise ways to halt the virus’s spread.  As part of these efforts, raw data, software tools, data visualizations, and other efforts are providing the public and policymakers with insights into the

 California Attorney General (AG) released third draft of proposed CCPA regulationsOn Wednesday, the California Attorney General (AG) released a third draft of proposed CCPA regulations for public comment.  The draft contains a series of technical corrections, along with a handful of substantive incremental modifications to the prior draft.  The limited number of changes signals that the rulemaking process is reaching an end.

The following

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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

The January 1, 2020 effective date of the California Consumer Privacy Act (CCPA) has come and gone, but questions about how to comply with the law show no hint of disappearing.  As companies move past their efforts to comply with the law’s most visible requirement – providing notice at the point of collection and explaining data practices in a full privacy policy – the focus is sharpening on a broad array of operational and implementation questions.

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?

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.

Each business, however, will need to evaluate, on a case-by-case basis, whether its interest-based advertising, analytics, and other forms of tracking may constitute a sale under the CCPA.  Often this starts with categorizing  the types of vendors and partners (i.e. ad tech, analytics, or other services); identifying each specific vendor or partner responsible for the tracker on the business’s site(s); and reviewing the vendor or provider’s publicly posted terms, privacy policy, and contract with the business, if there is one, to determine if the transfer of personal information to the vendor could reasonably qualify as a transfer for a business purpose to a service provider, or other exemption, or whether the transfer is likely a “sale.”

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:
Continue Reading CCPA Implementation: An Early Map

Congratulations. You’re nearly to January 1 with new practices designed to address CCPA obligations. Hydrate, and grab an energy bar – you’re just hitting your stride. Up ahead, we’ll need to incorporate obligations under the final Attorney General CCPA regulations (finalized perhaps mid-summer?), potential new legislation, and perhaps changes from a ballot initiative, which just

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