The California Attorney General recently approved modified regulations under the California Consumer Privacy Act (CCPA). One part of the modified regulations bans “dark patterns” on a website. What are dark patterns? Public comments to the proposed regulations describe dark patterns as deliberate attempts to subvert or impair a consumer’s choice to opt-out on a website. Dark patterns could be used on a website to confuse or distract a consumer into granting knowing consent instead of choosing the opt-out option.

The modified regulations therefore ban the use of dark patterns that:

  • Use an opt-out request process that requires more steps than the process for a consumer to opt back into the sale of personal information after previously opting out;
  • Use confusing language (e.g., double-negatives, “Don’t Not Sell My Personal Information”);
  • Require consumers to click through or listen to unnecessary reasons why they should not submit a request to opt-out before confirming their request;
  • Require a consumer to provide personal information that is unnecessary to implement an opt-out request; or
  • Require a consumer to search or scroll through the text of a website or privacy policy to submit the opt-out request after clicking the “Do Not Sell My Personal Information” link (but before actually choosing the option).

If your website uses any such dark patterns you may wish to revise those mechanisms and implement clearer, more transparent methods for your website’s users to opt-out.

California Attorney General Xavier Becerra announced this week that the Office of Administrative Law approved additional California Consumer Privacy Act (CCPA) regulations, which became effective March 15, 2021.

The additional changes to the regulations primarily affect businesses that sell the personal information of California residents. The changes include a uniform Opt-Out Icon for the purpose of promoting consumer awareness of the right to opt-out of the sale of personal information, guidance to businesses regarding opt-out requests, including what not to do, and changes regarding the proof that a business may require for authorized agents and consumer verifications.

New sections of the regulations include a requirement that a business that sells personal information it collects from consumers offline shall also inform consumers by an offline method of their right to opt-out and provide instructions on how to submit a request to opt-out. The new regulations state that the Opt-Out Icon may be used in addition to posting the notice of the right to opt-out, but not in lieu of any requirement to post the notice of right to opt-out or a “Do Not Sell My Personal Information” link. (A link to download the Opt-Out Icon can be found here.)

With respect to authorized agents, a business may require that the consumer authorized agent provide proof that the consumer gave the agent signed permission to submit the request. The business may also require the consumer to do either of the following: (1) verify their own identity directly with the business or (2) directly confirm with the business that it provided the authorized agent permission to submit the request.

Other new sections of the regulations state that a business’s methods for submitting requests to opt-out should be easy for consumers to execute and shall require minimal steps to allow the consumer to opt-out. Examples of methods that businesses should not use are specified in the regulations and include:

  • The process for opting out shall not require more steps than the business process for opting in to the sale of personal information;
  • The business should not use confusing language such as double negatives (Don’t Not Sell My Personal Information);
  • The business shall not require consumers to click through or to listen to reasons they should not submit a request to opt-out before confirming their request;
  • The business cannot require the process for submitting a request to opt-out to require the consumer to provide personal information that is not necessary to implement the request; and
  • Upon clicking the “Do Not Sell My Personal Information” link, the business shall not require the consumer to search or scroll through the text of a privacy policy or similar document or webpage to locate the mechanism for submitting a request to opt-out.

The bottom line for these additional changes to the CCPA regulations is that the overriding principles remain the same: inform consumers of their right to opt-out of the sale of their personal information and present this information to consumers in a way that is easy to read and understand.

Federal Court Finds the California Consumer Privacy Act (CCPA) Does Not Apply Retroactively, Dismissing Claims Against Walmart Stemming from an Alleged Data Breach | Data Privacy + Cybersecurity Insider

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This week, Consumer Reports published a Model State Privacy Act. The Consumer advocacy organization proposed model legislation “to ensure that companies are required to honor consumers’ privacy.” The model legislation is similar to the California Consumer Privacy Act, but seeks to protect consumer privacy rights “by default.”  Some additional provisions of the model law include a broad prohibition on secondary data sharing, an opt-out of first-party advertising, and a private right of action in addition to enforcement by state Attorneys General.

While the introduction of a model privacy law is an interesting development, we also continue to track state privacy laws in multiple states right now, as several states have recently introduced consumer privacy legislation. Connecticut, Massachusetts, Illinois, Minnesota, New York and Utah recently saw the introduction of new privacy legislation. As legislative sessions move forward into 2021, we expect even more states to follow suit.

Our list of pending state privacy legislation includes:

We will continue to provide updates as these bills move forward.

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Marriott recently won dismissal of a proposed class action data breach lawsuit alleging several violations, including a violation of the California Consumer Privacy Act (CCPA). The case, Arifur Rahman v. Marriott International, Inc. et al., Case No.: 8:20-cv-00654, was dismissed in an Order by U.S. District Court Judge David O. Carter on January 12, 2021.

The Plaintiff in the lawsuit alleged that he was a member of a “class that were victims of a cybersecurity breach at Marriott when to employees of a Marriott franchise in Russia accessed class members’ names, addresses, phone numbers, email addresses, genders, birth dates, and loyalty account numbers without authorization.” Marriott admitted there was a breach, sent letters to affected individuals, and confirmed that no sensitive information, such as social security numbers, credit card information, or passwords, was compromised.

The matter was dismissed, as the Court found that it lacked subject matter jurisdiction as the Plaintiff lacked standing to sue. The Court was clear that in the 9th Circuit, the sensitivity of the personal information, combined with its theft, are prerequisites to finding that plaintiffs alleged injury in fact. Injury in fact is one of the three elements necessary to support Article III standing.

The data breach in this case affected approximately 5.2 million Marriott customers, but the information accessed by hackers was not “sensitive information,” which was a required element to be able to continue the lawsuit.

The California Privacy Rights Act (CPRA) expands the definition of personal information as it currently exists in the California Consumer Privacy Act (CCPA). The CPRA adds “sensitive personal information” as a defined term, which means:

(l) personal information that reveals:

(A) a consumer’s social security, driver’s license, state identification card, or passport number;

(B) a consumer’s account log-in, financial account, debit card, or credit card number in combination with any required security or access code, password, or credentials allowing access to an account;

(C) a consumer’s precise geolocation;

(D) a consumer’s racial or ethnic origin, religious or philosophical beliefs, or union membership;

(E) the contents of a consumer’s mail, email and text messages, unless the business is the intended recipient of the communication;

(F) a consumer’s genetic data; and

(2) (A) the processing of biometric information for the purpose of uniquely identifying a consumer;

(B) personal information collected and analyzed concerning a consumer’s health; or

(C) personal information collected and analyzed concerning a consumer’s sex life or sexual orientation.

This is perhaps the broadest definition of personal information in the country as it now includes entirely new classes of personal information such as racial, ethnic origin, religious or philosophical beliefs or union membership, the content of a consumer’s mail, email and text messages, genetic data, biometric data, and data collected and analyzed concerning a consumer’s health or sex life or sexual orientation.

What does this mean for a business that is covered by the CPRA? In a previous post, we provided a detailed overview of  the CPRA, but suffice it to say that if the business had to comply with CCPA, it also will likely be covered by CPRA. Given this new definition of sensitive personal information, one of the first steps in thinking about CPRA compliance will be to think about data mapping to determine whether the business collects any of these new categories of sensitive personal information. The CPRA is still very much a consumer-focused law with the goal of expanding consumer knowledge about the types of personal information businesses collect about consumers and how that personal information is used, sold, or shared. It will be a critical first step for businesses to understand the data and personal information they collect about consumers and whether they collect any sensitive personal information under this new definition.

According to the Los Angeles Times and other media outlets, Californians passed Proposition 24, also known as the California Privacy Rights Act of 2020 (CPRA). With 71.61 percent of precincts reporting, the measure passed with 56.1 percent of the vote. We wrote about the CPRA last week, and we provided an overview of this new privacy law in California that expands on the California Consumer Privacy Act (CCPA).

The CPRA has some new privacy provisions that pull from other privacy laws. Of particular interest in the CPRA are provisions to expand the restrictions on the sale of personal information to include the sharing of personal information, the regulation of automated decision making, the requirement of additional security and risk assessments for certain businesses, additional requirements for third parties, and the creation of a new regulatory agency for enforcement actions.

We will continue to review the CPRA and will provide more details soon regarding this new California privacy law and what it means for businesses.

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DataGrail recently released a mid-year report on trends related to the California Consumer Privacy Act (CCPA) and how it has affected consumers and businesses. The report indicates that consumers are regularly opting out of the sale of their personal information, with the “do not sell” right being the most exercised right, occurring 48 percent of the time, more than access rights (at 21 percent) and deletion requests (at 31 percent).

Overall, according to this report, about 83 percent of consumers expect to have control over how businesses use their data, and this research confirms that people are taking action to control their privacy by exercising rights provided by the CCPA. 

When the CCPA first went into effect in January 2020, DataGrail found that Californians began exercising those rights right away. In January 2020, there was actually a surge of individual requests to exercise their rights granted under the CCPA. Since that initial surge, such requests have leveled off at about 13 requests per million records every month. Data from a recent Gartner report show that the manual processing of one single request costs an average of $1,406. If companies continue to process these requests manually, that could be upwards of $240,000 per million records. It seems like a call for a standardized process that can be implemented by companies across the board to handle these requests more efficiently.

DataGrail also found that 3 out of 10 requests go unverified (i.e., no fraud detection for requests that might be made for purposes of stealing personal information). This again shows a need for a scalable verification process to prevent harm to consumers, which the CCPA aims to protect against.