Regulatory Developments

The COVID-19 pandemic continues to have far-reaching effects on businesses and consumers everywhere.  While many states are taking broadly consistent approaches on certain issues (e.g., price gouging, non-essential business closures), one area where we’ve seen significant divergence involves regulation of collection efforts – both by first party creditors and debt collectors.  In

 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

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

On January 30th, 24 State Attorneys General*, led by Kwame Raoul (D) of Illinois, submitted an amici curiae brief in support of the Federal Trade Commission’s position in FTC v. Credit Bureau Center LLC.

These State AGs are in agreement with the FTC, which has argued that the district court’s authority to

On January 1, 2020, the Artificial Intelligence Video Interview Act went into effect in Illinois.  This is the first state law regulating the use of AI for employee interviews.

Illinois’ law reflects increasing scrutiny in the United States and globally of biometrics practices. The law is consistent with U.S. policymakers’ focus on addressing significant concrete

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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The year ended with a flurry of activity related to the FTC’s ability to obtain permanent injunctions and restitution under Section 13(b) of the FTC Act.  As we head into 2020, a level-set is in order.

To File or Not File is No Longer the Question

On December 19, 2019, the FTC filed a petition

In the 2010s, Kelley Drye’s Ad Law Access blog posted approximately 1500 entries. Below are the most popular by year. To give you a sense of beginning to end, the first post came one month after Apple announced the iPad and the last just days before the first all-female spacewalk by astronauts Christina Koch and

In 2019, Ad Law Access published 124 stories on a wide range of topics. However, two topics stood out above the others:

  • California Consumer Privacy Act (CCPA)
    CCPA was far and away the most popular topic of 2019 and, as mentioned in one of our last posts of the year, “businesses and privacy professionals