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:
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When it takes effect next month, the CCPA is almost certain to become an immediate spark for litigation.  While requests for access/deletion and individual or threatened claims start to fill in-house legal departments’ inboxes and the practical realities of compliance seize resources, a more fundamental question will need to be answered:  Is the CCPA constitutional?

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. 

As privacy and personal data issues continue to be a focus of both legal action and media coverage, privacy policy statements are getting dusted off and reviewed by more eyes.  Imprecise or inaccurate policy statements, themselves, can expose a company to potential liability.  While most of the recent California Consumer Privacy Act (“CCPA”) attention has

On a new episode of the Ad Law Access PodcastAlysa Hutnik provides an update to the California Consumer Privacy Act (CCPA) including discussion of the amendments, the draft regulations, and she touches on some of the classification issues.

For additional information see the Ad Law Access blog posts:

In exactly two months, the California Consumer Privacy Act (CCPA) takes effect. Many businesses are devoting resources to timely comply, but between the late rollout of the Attorney General’s draft regulations, recent amendments to the law, and a lack of consensus in the industry on interpretation of key CCPA terms, tackling compliance can be

With the new CCPA draft regulations out, you may be wondering—how can I comment?  What are the deadlines?  When will the draft regulations be finalized and go into effect?  This blog post summarizes the process and timing for the CCPA proposed regulations.  Businesses should consider filing comments to provide the Attorney General’s Office with insights

On Friday, California Governor Gavin Newsom signed seven legislative proposals to amend the California Consumer Privacy Act (CCPA), marking the end of a nearly-yearlong process to make changes to the new privacy law before it goes into effect on January 1st.  The next opportunity to amend the CCPA will be in the 2020