Since the passage of the California Consumer Privacy Act (CCPA) in June 2018, over a dozen US states have proposed their own privacy laws, many of which are nearly identical to the CCPA. Some of these proposals have since become law. Others are in different stages of the legislative process. To help clients keep track of the status of these proposed laws, Ballard has launched a US State Privacy Law Tracker. We’ll be updating the Tracker as these laws progress and states propose new privacy laws, so check back regularly.
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Proposed Expansion of CCPA’s Private Right of Action Defeated in State Senate
In April 2019, the California Assembly Privacy and Consumer Protection Committee rejected a proposal known commonly as the “Privacy for All Act” (AB-1760), which among other things would have provided a private right of action for all violations of the California Consumer Privacy Act (CCPA). The rejection of AB-1760 was a blow to consumer privacy advocates. A similar measure, SB-561, would also have provided a private right of action for all privacy violations. That bill has also been defeated, meaning that the CCPA’s private right of action provisions will not be expanded this year.
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Proposed Amendments to the California Consumer Privacy Act May Limit Scope of the Act
Following the speedy enactment of the California Consumer Privacy Act (CCPA or Act) in June 2018, business and consumer advocates alike have been pressuring California lawmakers to clarify the many ambiguities raised by the Act’s sweeping requirements. California lawmakers recently responded to these calls for greater clarity by proposing a slate of amendments to address some of the more controversial provisions of the CCPA, including the definition of “personal information”, requirements regarding information sharing, and the scope of industry exemptions.
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Texas Legislature Weighing Proposed New Privacy Laws
Recently, legislators in Texas introduced two bills relating to consumer privacy and data protection: H.B. No. 4518, the Texas Consumer Privacy Act (“Texas CPA”) and H.B. No. 4390, the Texas Privacy Protection Act (“TPPA”). These bills bear a strong resemblance to the California Consumer Privacy Act (the “California CPA”), and would lay the groundwork for extensive administrative schemes protecting consumers’ rights to their personal information.
Texas CPA
The Texas CPA bears strong similarity to California CPA. The Texas CPA, which, if adopted, would take effect September 1, 2020, applies to companies that do business and collect consumer data and:
- Derive at least 50% of their annual revenue selling consumers’ personal information; or
- Exceed $25 million in gross annual revenue (with that amount subject to adjustment by the Texas Attorney General every two years); or
- Buy, sell, or receive the personal information of at least 50,000 consumers, households, or devices for commercial purposes
- The Texas CPA would also apply to entities owned by companies that would be subject to the law. Similar to the California CPA, the Texas CPA contains express provisions governing rulemaking, implementation, and enforcement of the law. Notably, the legislation highlights various consumer rights, including (but not limited to):
- A consumer’s right to disclosure, from the business, of the personal information the business collected.
- A consumer’s right to deletion of the personal information that the business collected (with some limited, specific exceptions).
- A consumer’s right to opt out of the sale of his or her personal information.
California Legislation Would Make CCPA Even Worse for Businesses
New proposed legislation in California, backed by state Attorney General (AG) Xavier Becerra, would amend the new California Consumer Privacy Act (CCPA) to make it easier for private plaintiffs and public officials to sue for violations while further increasing regulatory uncertainty and compliance costs for businesses. Specifically, SB 561 would expand the CCPA’s private right of action, remove the Act’s public enforcement “cure” provision, and eliminate the ability of affected companies to seek compliance guidance from the AG.
The CCPA is a sweeping new privacy law which goes into effect in January 2020. It gives California residents substantial control over personal data held by certain California businesses, requiring disclosure of what personal information the business collects, how that information is used or sold, and allowing consumers to control or delete that information upon request. It currently allows private plaintiffs to seek statutory damages of up to $750 per violation for certain violations, and it allows the AG to seek civil penalties of up to $2,500 for most violations, and up to $7,500 for violations found to be intentional.
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Privacy Legislation Proposed in New York
The prevailing wisdom after last year’s enactment of the California Consumer Privacy Act (CCPA) was that it would result in other states enacting consumer privacy legislation. The perceived inevitability of a “50-state solution to privacy” motivated businesses previously opposed to federal privacy legislation to push for its enactment. With state legislatures now convening, we have
Some Thoughts on the Year in Privacy and Data Security Law
As we turn the page on 2018, let’s reflect on some of the key privacy and cybersecurity issues that will continue to occupy our hearts and minds in 2019.
Owning the Mega-Breach
2018 was the year in which data breaches in mergers and acquisitions became the iceberg in full view. This fuller realization of cyber risk in transactions, though, actually has its origin in September 2016 – when Yahoo and Marriott were in the midst of deals that would involve some of the largest data breaches on record.
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California Department of Justice Announces Public Forums on CCPA Regulations
Just in case you needed a reminder that the California Consumer Privacy Act of 2018 (CCPA) will go into effect on January 1, 2020, the California Department of Justice announced that it will hold six statewide forums to collect feedback from stakeholders as part of its duty to promulgate regulations “that will establish procedures to
Analyzing the California Consumer Privacy Act’s Private Right of Action
For good reason, there has been much discussion about the new privacy rights created by the California Consumer Privacy Act of 2018 (CCPA), which becomes effective January 1, 2020. Perhaps one of the most significant provisions of the CCPA, though, will be one that has been somewhat overlooked: Section 1798.150, which provides for statutory damages of between $100 and $750 per consumer per incident for certain data breaches. Indeed, had California enacted Section 1798.150 alone, it would have garnered scores of articles on how its statutory damages remedy will likely lead to an explosion in “bet-the-company” private class action litigation over data breaches. The fact that it was enacted as just one provision in a first-in-the-nation privacy law has resulted in commentators spending less time analyzing its impact on businesses.
We will try to remedy this by taking a look at this provision and analyzing how it will apply to businesses covered by the CCPA. We begin by discussing existing California laws that are referenced in the CCPA’s private right of action. We then track the private right of action through its various forms, starting with the ballot measure and ending with its current version as reflected in Senate Bill 1121. Finally, we discuss how the private right of action likely will be used by private litigants and what steps businesses should take to avoid costly litigation.
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GLBA and the California Privacy Act: Analyzing SB 1121’s Change to the Financial Institution Carve-Out Provision
Less than three months after California passed the California Consumer Privacy Act of 2018 (CCPA), Governor Jerry Brown signed SB 1121 this week, making a number of technical and substantive changes to the law.
Of particular note: SB 1121 modifies the financial institution carve-out language in CCPA section 1798.145(e). While the change is a welcome development for entities subject to regulation under the Gramm-Leach-Bliley Act (GLBA), it does not grant full exemption from the CCPA. Therefore, GLBA-regulated entities that collect information online will need to analyze the CCPA’s requirements and how they apply to a specific business.
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