In a recent news briefing, the California Attorney General (AG) gave insight on two topics regarding the California Consumer Privacy Act (CCPA), which took effect on January 1. A question frequently asked is whether an organization has to include the “Do Not Sell My Personal Information” button or link on the business’ homepage? Furthermore, the Consumer Privacy Rights Act of 2020, colloquially CCPA 2.0, has moved on to the next phase in the referendum process.
CCPA Update
“If you’re going to see real enforcement — aggressive, early, decisive enforcement action — early on, it will deal with kids,” is one key takeaway the CA AG, Xavier Becerra, said during a news conference in Sacramento. Aside from enforcing parental consent for children under 13 years of age, and explicit consent for consumers between 13 to 16 years of age, the other enforcement priority after January 1 will focus on sensitive information like health data, Social Security numbers and dating patterns. In particular, the AG mentioned that his office will be patient with small businesses making a real effort to comply, yet indicated that “ignorance of the law is not an excuse.”
Do we have to include the “Do Not Sell My Personal Information” button or link?
Clients often ask whether or not they have to include the “Do Not Sell My Personal Information” link on their business’ homepage. This is a question for general counsel, the legal department or outside counsel. Nuances surround questions such as whether the organization generates annual revenues over $25 million, or collects information on more than 50,000 California residents in a year, or derives 50 percent or more of annual revenues from “selling” the personal information of California residents.
However, a business does not “sell” personal information under the CCPA when the business: 1) provides notice that the consumer’s information is being used or shared according to terms and conditions outlined in its consumer-facing privacy notice; 2) the service provider does not further collect, sell, or use the personal information of the consumer except as necessary to perform the business purpose. Most businesses already have a consumer-facing privacy notice, also known as an online privacy policy, thereby meeting the first criterion.
For the second criterion, the business must be a “service provider.” Under the CCPA, a “service provider” is a business that processes information on behalf of a business that discloses a consumer’s personal information for business purposes under a contract, provided the agreement contains the personal information use restrictions other than performing the services outlined in the contract (see 1798.140 (v). Therefore, a “service provider” does not have to include the “Do Not Sell My Personal Information” link on their business homepage if they satisfy conditions one and two.
Do we have to include the “Do Not Sell My Personal Information” button or link when we do not meet the “service provider” definition above and do not “sell” any personal information under the CCPA?
According to the proposed regulations in Section 999.306 (d)(2) implementing the CCPA, if a business does not (and will not) sell personal information, it is not required to post a “Do Not Sell My Personal Information” link or button on its website or in-person equivalent.
However, the business is required to include a disclosure or wording in the consumer-facing privacy policy or notice that the business does not and will not sell personal information.
The California Privacy Rights and Enforcement Act of 2020
On December 17, the CA AG released the title and summary for Initiative 19-0021, the California Privacy Rights Act. The Initiative would fundamentally change and replace the CCPA, which some have dubbed the CCPA 2.0. Of note, the increased annual state costs of roughly $10 million dollars for a new state agency to monitor compliance and enforcement of consumer privacy laws along with increased state costs for increased Department of Justice workloads and state courts.
Next, at least 623,212 signatures must be gathered (based on 5 percent of the total votes cast in the last gubernatorial election) by late June. Ironically, this is just before the Attorney General is about to begin enforcement of the CCPA 1.0.
Conclusion
Organizations should immediately look to implement tightened consent controls around children and minors, increase controls around secure sensitive information as a hedge against heightened AG enforcement, and probe whether or not the business is “selling” personal information and to include or exclude the “Do Not Sell My Personal Information” link. Finally, stand up privacy compliance programs that are scalable and adaptable to meet the events and changes framing the CCPA.
