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California Invasion of Privacy Act (CIPA) – The Latest Privacy Litigation Trend

Adtech, California, State Privacy Laws, United States

As more U.S. states enact comprehensive consumer privacy legislation, plaintiffs are turning to laws from the 1960s to pursue claims against companies that use website tracking technologies. Most notably, there has been a significant uptick in privacy litigation claiming that the use of website technology, such as session replay, chatbots, tracking pixels, and other analytics software, violates the California Invasion of Privacy Act (“CIPA”).

How We Got Here

Since 2022, a wave of class action lawsuits has been filed regarding Meta’s pixel, a tracking tool often used by companies for targeted advertising by tracking user activity. Many of these cases allege a violation of the Video Privacy Protection Act of 1988 (“VPPA”), a federal law prohibiting videotape service providers from knowingly disclosing personally identifiable information concerning their consumers. These lawsuits allege that companies which stream online video content on their websites while using the Meta pixel violated the VPPA by transmitting personally identifiable information about a website user to Meta. While many courts dismissed the VPPA Meta pixel cases, some of these cases (such as Ambrose v. Boston Globe Media Partners LLC[1]) have survived the motion to dismiss stage, leading the parties to settle instead.

Lawsuits involving the Meta pixel, along with similar technology, are also being filed under alleged violations of strong state wiretapping laws, such as the CIPA. The CIPA, which was enacted in 1961, intended to protect California residents from then-new technologies used for different kinds of wiretapping. In these modern-day cases, plaintiffs claim that the use of many web analytics tools amount to a violation of CIPA’s wiretapping and eavesdropping provisions.

Relying on a Ninth Circuit court decision which held that CIPA also applies to “internet communications”[2], plaintiffs’ firms circulated hundreds of demand letters threatening CIPA class action litigation under CIPA’s Section 631(a) – which prohibits third-party wiretapping – and Section 632.7 – which prohibits the interception or receipt and recording of certain wireless communications without consent. The statutory penalty is $5,000 per violation, making it an attractive avenue for plaintiffs’ firms.

Where We Are Now (Thanks to Greenley v. Kochava[3])

An even more recent decision from the United States District Court for the Southern District of California has prompted plaintiffs’ firms to turn to yet another theory and to file suits under alleged violations of CIPA Section 638.51. Section 638.51 prohibits the installation or use of a “pen register” or a “trap and trace device” without first obtaining a court order. A “pen register” is defined as a device or process that records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted.

The plaintiff in Greenley v. Kochava claimed that the defendant’s software that was installed in third-party mobile applications constituted an illegally installed pen register by tracking a user’s “geolocation, search terms, click choices, purchase decisions, and/or payment methods,” collecting this tracked information, and then selling it to third-party advertisers. Deciding on a motion to dismiss, the Greenley court stated that while CIPA’s definition of a pen register was specific as to the type of data a pen register collects, it was “vague and inclusive as to the form of the collection tool – ‘a device or process.’” With this in mind, the Greenley court held that “software that identifies consumers, gathers data, and correlates that data through unique ‘fingerprinting’ is a process that falls within CIPA’s pen register definition.” Accordingly, the court denied the defendant’s motion to dismiss.

Following the Greenley court’s decision, over 50 new cases have already been filed in California state and federal courts under the CIPA pen register provision.

Where to Go from Here

Accordingly, businesses should evaluate their use of tracking software and technology, along with the disclosures in their privacy policy and potential consent mechanisms. The CIPA pen register provision allows a provider of electronic or wire communication services to use such a pen register if the consent of the user has been obtained. Although California courts have not yet interpreted consent in the context of the CIPA’s pen register provision, courts have found a user’s affirmative consent to be a successful defense in other CIPA claims.

 

[1] Ambrose v. Boston Globe Media Partners LLC, No. 1:22-cv-10195-RGS.

[2] Javier v. Assurance IQ LLC et al., 2022 WL 1744107, *1 (9th Cir. 2022).

[3] Greenley v. Kochava, Inc., No. 22-CV-01327-BAS-AHG, 2023 WL 4833466 (S.D. Cal. July 27, 2023).

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Chicago Grand Central Looking Up

2024 U.S. regulatory enforcement priorities for data & AI

AI & Algorithms, California, CCPA, Resource, State Privacy Laws, United States
In late 2023 and early 2024, federal and state regulators signaled their enforcement priorities regarding the use of data and AI. These enforcement priorities range from sweeping investigations into entire labor sectors to targeting specific uses of technology.
FEDERAL

FTC. The FTC continues bringing actions against companies over their improper use of AI, increasing the risks of LLMs and generative AI. On March 8, 2024, the Federal Trade Commission (FTC) entered a stipulated order with Rite Aid prohibiting the pharmacy chain from using any machine-based systems to analyze biometric information. A month before, the FTC announced proposed rules combating the use of AI to impersonate individuals, which includes potentially imposing a rule that would declare it unlawful for an AI platform to provide goods or services that the platform knows or has reason to know is being used to harm consumers through impersonation.

SEC. In a surprising regulatory move, the Securities and Exchange Commission (SEC) took action against two entities that made misleading disclosures regarding their use of AI. On March 18, 2024, the SEC announced a $400,000 settlement against two investment advisers for making false and misleading statements about their purported use of AI. The investors allegedly stated in its SEC filings, in press releases, and on their websites that they were harnessing AI tools in certain ways, when in fact they were not. The SEC published an AI and investment fraud alert, signaling that they will likely continue monitoring AI-related disclosures.

CALIFORNIA

Data Minimization. On April 2, 2024, the California Privacy Protection Agency (the Agency) released its first Enforcement Advisory notice, emphasizing that covered businesses must apply the principle of data minimization to every purpose for which they collect, use, retain, and share personal information. Specifically, the Agency focused on the principle of data minimization during two scenarios: (1) responding to a consumer’s request to opt-out of sale/sharing and (2) verifying a consumer’s identity. Failure to adhere to the principle of data minimization may constitute a violation of the California Consumer Privacy Act (CCPA) and its regulations.

Amended CCPA Regulations. On March 29, 2024, the amended CCPA regulations will take effect and be enforceable. These regulations were originally supposed to take effect on March 29, 2023, but the California Chamber of Commerce filed suit on March 30, 2023, arguing that the amended regulations could not enter into force until one year after finalization. The court agreed, thereby effectively pushing the enforcement date back to March 29, 2024. However, a California appellate court subsequently reversed that decision, thereby making the regulations effective immediately.

The Agency and the California Attorney General have indicated that they anticipate aggressively enforcing the new regulations, and since covered entities had nearly an extra year to comply with the new regulations, California regulators may not be lenient in providing cure periods for noncompliance with the new regulations.

Streaming Services. On January 26, 2024, the California Attorney General announced investigative sweeps into “popular streaming apps and devices,” and sending letters to businesses that fail to comply with the CCPA. Specifically, the AG’s sweep focuses on whether streaming services are complying with the CCPA’s opt-out requirements for selling or sharing consumer personal information. The sweep includes analyzing whether the streaming services “do not offer an easy mechanism for consumers who want to stop the sale of their data.” For example, consumers using a SmartTV should be able to easily enable a “Do Not Sell My Personal Information” setting in the streaming service and have that choice honored across different devices.

Connected Vehicles and Related Technologies. On July 31, 2023, the Agency announced investigative sweeps into the data privacy practices of connected vehicle manufacturers and related technologies. The Agency conducted the review under the CCPA and its regulations enforceable at the time, with a focus on whether connected vehicle manufacturers and the like provided consumers with rights under the law (e.g., right to know, right to delete, and right to opt out of sale/share). However, the Agency has not indicated whether the sweep will continue into 2024 as the new regulations take effect, so connected vehicle manufacturers and producers of related technologies should remain vigilant.

COLORADO

Global Privacy Control. In the fall of 2023, the Colorado Department of Law accepted applications for universal opt-out mechanisms (UOOMs) that, under the Colorado Privacy Act (CPA), covered businesses would need to respect as a means for consumers to opt out of the sale of personal data or the sharing of personal data for targeted advertising. In December of 2023, the Colorado Attorney General announced that it selected the Global Privacy Control (GPC) as the UOOM the AG considers valid under the CPA.

Beginning on July 1, 2024, organizations subject to the CPA must ensure they are able to accept consumer opt-out requests made using the GPC, and the AG has announced that it “will prioritize for enforcement” compliance with the Department’s list of acceptable UOOMs.

CONNECTICUT

General Enforcement. On February 2, 2024, the Connecticut Attorney General released a report on the Connecticut Data Privacy Act (CTDPA), which detailed the AG’s enforcement efforts and priorities. Since the CTDPA took effect, the AG has issued cure notices to covered entities in a wide range of industries, including retail, fitness, event services, career services, parenting technologies, and home improvement.

The cure notices identified the following deficiencies:

    • Lacking or inadequate disclosures (e.g., failure to inform consumers completely or sufficiently about their rights under the law);
    • Lacking rights mechanisms (e.g., failure to provide a webpage that enables consumers to opt out of targeted advertising or sale of data);
    • Burdensome rights mechanisms (e.g., rights mechanisms that did not take into account the ways consumers normally interact with the company); and,
    • Broken / inactive rights mechanisms (e.g., non-working links or dead-end mechanisms).

Taken together, the report indicates an interest in the AG to ensure covered entities (in a wide range of industries) provide sufficient privacy disclosures and compliant rights mechanisms.

BEST PRACTICES CHECKLIST As we move through 2024, businesses should consider the following to lower their risk of enforcement actions:
  • Analyze State Privacy Thresholds. Each of the US state privacy laws feature their own thresholds of applicability that must be met before a business must comply with the law, so businesses must continually monitor whether they have satisfied any of these numerous thresholds. To help, we have compiled all of the state privacy law thresholds.
  • Create Data Maps. Because state and international privacy laws impose certain obligations on specific types of data (e.g., personal v. sensitive) and processing activities (e.g., using AI for significant decisions), businesses should create data maps to monitor and document their information practices.
  • Respect Opt-Out Signals. Where a state privacy law requires respecting opt-out preference signals, ensure that you have implemented a means for websites to recognize and respect such signals, and disclose to consumers that they have the right to use such opt-out mechanisms (e.g., Global Privacy Control).
  • Review Policies. While many of the disclosure requirements of US privacy laws and regulations overlap, there are intricate differences between them, so businesses should review external-facing policies to ensure the disclosures remain accurate and compliant.
  • Conduct DPIAs. Conduct a data protection impact assessment (DPIA) to the extent required by applicable state privacy laws or review existing DPIAs to ensure they remain compliant with applicable laws.
  • Analyze AI Tools. Understand and document how the business uses AI tools, which includes understanding the AI’s inputs and outputs, ensuring appropriate data minimization and IP safeguards are implemented, and analyzing disclosures regarding the use of the AI tools. This includes implementing an internal AI policy that covers whether and to what extent employees can use AI tools.
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Metaverse Law to speak at OCBA Health Care Law Section Meeting

AI & Algorithms, California, Health Data , , ,

Healthcare Data, Trackers, & Artificial Intelligence: Are You Giving Away Sensitive Healthcare Information?

  Metaverse Law’s Lily Li will be speaking on this topic at this month’s OCBA Health Care Law Section Meeting. When? Thursday, March 14, 2024 12:30 PM – 1:30 PM Where? OCBA Offices 4101 Westerly Place Newport Beach, CA 92660 Click here for more information and to register for the event. *Advance registration required. No Walk-Ins.*
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Flag of California, depicting a large brown bear beside a red star, above the words "California Republic."

California Delete Act allows consumers to easily delete data from all data brokers in California

California, CCPA, Data Brokers
On October 10, 2023, California Governor Gavin Newsom announced that he had signed into law Senate Bill 362, which is otherwise known as the Delete Act.[1] The full text of the Delete Act can be found here. The Delete Act is a landmark law seeking to provide consumers with a one-stop-shop mechanism for deleting the consumer’s personal information from all data brokers covered by the law.[2] Under current provisions, consumers must submit individual deletion requests to each data broker, but the Delete Act intends to provide a universal opt-out mechanism that allows consumers to send a single deletion request to all data brokers. To do this, the law charges the California Privacy Protection Agency with developing the one-stop-shop mechanism by January 1, 2026. While the technical and operational specifics of the mechanism are unknown, the law provides broad guidelines for what the mechanism must achieve, which expressly includes allowing consumers to make a single request that “every data broker that maintains any personal information delete any personal information related to the consumer held by the data broker or associated service provider or contractor.”[3] In addition, the law shifts data broker registration in California from the California Department of Justice to the California Privacy Protection Agency – presumably to provide the Agency with a database for the purposes of facilitating the consumer’s deletion request.[4] Previously, failure to register as a data broker amounted to $100 penalty for each day the data broker failed to register; however, the Delete Act doubles the fine to $200 per day. The law also imposes new disclosure obligations on covered data brokers, requiring them to disclose to consumers whether the data broker collects consumers’ precise geolocation, reproductive health care data, or information of minors. Starting in 2029, the data broker must disclose whether it has undergone an audit pursuant to the law. At this time, it remains unclear how the Agency will satisfy the creation of a one-stop-shop deletion mechanism, but data brokers in California should be prepared to adapt to a new government-imposed deletion mechanism. We will continue monitoring the Agency’s progress as the deadline approaches.
[1] https://www.gov.ca.gov/2023/10/10/governor-newsom-signs-legislation-10-10-23/ [2] Sec. 1798.99.86(a). [3] Sec. 1798.99.86(a)(2). [4] Section 1798.99.82 of the Civil Code is amended to read: 1798.99.82. (a) On or before January 31 following each year in which a business meets the definition of data broker as provided in this title, the business shall register with the California Privacy Protection Agency pursuant to the requirements of this section.
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Flag of California, depicting a large brown bear beside a red star, above the words "California Republic."

CCPA + CPRA Timeline of Key Events

California, Resource, State Privacy Laws, United States
[Updated: August 30, 2023] As the first comprehensive state privacy law to provide broad consumer rights over personal information, the California Consumer Privacy Act of 2018 (“CCPA”) is a groundbreaking privacy law in the United States, and it paved the way for subsequent state comprehensive privacy laws. However, the road to progress is rarely smooth, and the CCPA has experienced a long and arduous journey toward changing how covered entities handle Californians’ personal information. To capture the breadth of this journey, we created the following timeline, which catalogues key events from the CCPA’s inception to its current state.
  October 12, 2017 – Alastair Mactaggart, Rick Arney, and Mary Stone Ross file a ballot initiative containing the preliminary language of the CCPA.[1] December 18, 2017 – The CCPA is proposed as a ballot proposition by Californians for Consumer Privacy. The California Attorney General approves the initiative’s language, allowing the group to begin collecting signatures to qualify the initiative for the November 2018 election.[2] February 13, 2018 – Assemblymember Ed Chau introduces SB 1121 to the California Senate Committee on Rules, a bill with language similar to the CCPA ballot initiative.[3] May 13, 2018 – Mactaggart’s group, now called Californians for Consumer Privacy, claim they have submitted over 600,000 signatures, surpassing the 366,000 minimum needed to qualify the initiative for the November 2018 ballot.[4] June 22, 2018 – California legislators negotiate an agreement with Californians for Consumer Privacy to pass a substantially similar version of the CCPA in exchange for the withdrawal of the ballot proposition.[5] June 25, 2018 – California Secretary of State Alex Padilla confirms receipt of the required signatures, and will certify the initiative as qualified for the November 2018 ballot.[6] June 28, 2018 – Californians for Consumer Privacy withdraws the ballot initiative.[7] The California legislature approves the CCPA, and California Governor Edmund Brown signs the bill into law.[8] September 13, 2018 – The California legislature passes amendments to the CCPA, clarifying the law’s private right of action and certain other provisions.[9] September 25, 2019 – Alastair Mactaggart, Board Chair and Founder of Californians for Consumer Privacy, files an initiative for the California Privacy Rights Act (“CPRA”) to appear on the November 2020 ballot.[10] Mactaggart hopes the CPRA will modify the CCPA’s statutory language, in part, by providing consumers with additional privacy rights and establishing a new authority dedicated to protecting these rights, the California Privacy Protection Agency (the “Agency”). October 11, 2019 – The California Attorney General releases a notice of proposed CCPA regulations, seeking to clarify the law’s obligations on businesses.[11] California Governor Gavin Newsom signs five CCPA amendments into law:
  • AB 25, which temporarily excludes employment information from many of the CCPA’s requirements until January 1, 2021.[12]
  • AB 874, which excludes “publicly available information” from the definition of personal information and clarifies that deidentified or aggregate information is not personal information.[13]
  • AB 1146, which exempts certain vehicle and vehicle ownership data from the law.[14]
  • AB 1355, which modifies how businesses make privacy rights disclosures to consumer and allows for differential treatment of consumers related to the value of the consumer’s information to the business.[15]
  • AB 1564, which modifies how covered businesses must allow consumers to submit privacy rights requests.[16]
November 13, 2019 – Californians for Consumer Privacy submit the final draft of the CPRA ballot initiative, which includes substantive changes to previous drafts.[17] December 6, 2019 – California Attorney General releases a 250-page document detailing public comments received regarding the CCPA and proposed CCPA regulations.[18] December 17, 2019 – California Attorney General Xavier Becerra releases the title and summary for the CPRA initiative that Mactaggart filed on September 25, 2019.[19] With this release, the Californians for Consumer Privacy group can begin collecting signatures to qualify the CPRA for the November 2020 ballot. January 1, 2020 – The CCPA takes effect.[20] Covered entities have until June before enforcement begins. February 3, 2020 – The first legal complaint citing the CCPA is filed in the Northern District of California. Plaintiffs sue Hanna Andersson and Salesforce.com over a data breach suffered by Hanna Andersson.[21] February 10, 2020 – California Attorney General issues a set of proposed modifications to the proposed CCPA regulations.[22] March 11, 2020 – California Attorney General issues another set of proposed modifications to the proposed CCPA regulations, which includes removing an opt-out icon requirement.[23] March 17, 2020 – A group of advertising companies sends the California Attorney General a letter requesting a delay in CCPA enforcement, citing the COVID-19 pandemic as the reason.[24] May 4, 2020 – Californians for Consumer Privacy announce that they have submitted over 900,000 signatures to qualify the CPRA for the November 2020 ballot.[25] June 1, 2020 – California Attorney General submits the proposed CCPA regulations to the California Office of Administrative Law.[26] June 8, 2020 – Californians for Consumer Privacy file a petition in state court, contending that the California Secretary of State failed to verify the signatures necessary to place the CPRA on the November 2020 ballot. The group requests that the court order the Secretary of State to direct local election officials to report the results of signature sampling and therefore allow the CPRA ballot initiative to be certified in time.[27] June 19, 2020 – A California judge grants Californians for Consumer Privacy’s petition, ordering counties to finish verifying signatures to qualify the CPRA for the November 2020 ballot.[28] June 25, 2020 – The CPRA qualifies for the November 2020 ballot as Proposition 24.[29] July 1, 2020 – The CCPA becomes enforceable by the California Attorney General.[30] August 14, 2020 – The CCPA regulations submitted by the California Attorney General on June 1, 2020, take effect.[31] September 25, 2020 – California Governor Gavin Newsom signs AB 713 into law, establishing new CCPA exemptions for certain types of medical and health information.[32] September 29, 2020 – California Governor Gavin Newsom signs AB 1281 into law, extending CCPA exemptions for employment data and business-to-business data until January 1, 2022, conditional upon the CPRA ballot initiative not being approved.[33] However, the ballot initiative is later approved, and the CPRA amends the CCPA by extending the exemptions to January 1, 2023.[34] November 3, 2020 – California voters approve Proposition 24, the CPRA.[35] The CPRA amends the statutory language of the CCPA, notably by providing consumers with additional privacy rights, establishing enhanced obligations for covered businesses, and establishing a new authority dedicated to protecting these rights, the Agency. [36] The CPRA’s amendments also empower the Agency to implement and enforce the amended CCPA statute, which includes calling on the Agency to adopt implementing regulations by July 1, 2022, with enforcement commencing a year later on July 1, 2023.[37]
NOTE: Regarding the CCPA’s dual enforcement The California Constitution establishes the Attorney General as the state’s chief law officer, vesting the position with broad powers to ensure the state’s laws are uniformly and adequately enforced.[38] This authority includes enforcing the CCPA, which expressly recognizes that the Attorney General may bring civil actions against violators.[39] Yet, in a legislative move that distinguishes California from other states with comprehensive privacy laws, the CCPA (via the CPRA amendments passed on November 3, 2020) also vests the Agency with authority to bring administrative actions against violators.[40] This creates a dual enforcement mechanism: the Attorney General can bring civil actions; the Agency, administrative actions. Both authorities are enforcing the same statutory text of the CCPA and its supplemental regulations, but each authority uses a different procedural means of achieving that enforcement. Furt6hermore, in accordance with its Constitutional authority as chief law officer, the Attorney General can request the Agency stay an administrative action or investigation to allow the Attorney General an opportunity to determine whether to pursue an investigation or action.[41] The Agency cannot do the same to the Attorney General.
January 1, 2021 – Had the CPRA not amended the CCPA’s statutory language, the CCPA’s employment data and business-to-business (“B2B”) data exemptions would have expired on this day. This would have obligated covered businesses to extend privacy rights to employees, contractors, and job applicants.[42] However, the CPRA amendments extended these exemptions to January 1, 2023.[43] March 15, 2021 – Amendments to the CCPA regulations, which had become operative on August 14, 2020, come into effect.[44] June 2021 – California Attorney General commences an enforcement sweep of large retailers to determine whether they violate the CCPA by continuing to sell personal information after a consumer signals an opt-out via Global Privacy Control (“GPC”).[45] October 4, 2021 – Ashkan Soltani is selected as the Executive Director of the Agency.[46] In this role, Soltani must carry out the day-to-day operations of the Agency, which includes building and leading the Agency, overseeing the Agency’s enforcement activities, and building public awareness. October 5, 2021 – California Governor Gavin Newsom signs AB 694 into law, which amends the CPRA’s statutory amendments by clarifying the Agency’s rulemaking authority and changing certain definitions and exemptions.[47] Governor Newsom also signs AB 825 into law, which amends the CCPA’s definition of personal information to include genetic data.[48] October 8, 2021 – California Governor Gavin Newsom signs AB 335 into law, which exempts certain vessel information from the CCPA’s right to opt out.[49] October 21, 2021 – The Agency notifies the California Attorney General that it is prepared to assume rulemaking responsibilities.[50] Rulemaking authority will transfer to the Agency six months after this notice. January 1, 2022 – The CPRA’s 12-month lookback period for collected personal information commences.[51] While the CPRA amendments to the CCPA will not take effect until January 1, 2023, the law provides consumers with the right to know what information a covered business has collected from them going back 12 months (i.e., January 1, 2022). May 5, 2022 – The California Office of Administrative Law (OAL), pursuant to Section 100 of OAL’s regulations, approves the transfer of the existing CCPA regulations to Title 11, Division 6, a new division of the California Code of Regulations that is under the jurisdiction of the Agency.[52] This transfer represents the beginning of the Agency’s rulemaking role.[53] July 1, 2022 – The Agency fails to meet the statutory deadline to finalize and adopt CPRA regulations. However, the CPRA’s statutory amendments to the CCPA become fully enforceable. July 8, 2022 – The Agency releases a notice of proposed CPRA regulations, which will update existing CCPA regulations to harmonize them with CPRA amendments to the CCPA, operationalize new privacy rights and obligations introduced by the CPRA, and consolidate requirements set forth in the law to make the regulations easier to follow and understand.[54] August 23, 2022 – California Attorney General Rob Bonta, based on findings from the June 2021 enforcement sweep, brings a complaint against Sephora, Inc., the French multinational retailer of personal care and beauty products, alleging Sephora violated the CCPA by failing to satisfy its notice obligations under the law, failing to provide a “Do Not Sell . . .” link on its website, and failing to honor opt-out signals sent by consumers using GPC.[55] August 24, 2022 – Sephora agrees to a settlement with the California Attorney General, resolving allegations that the company violated the CCPA.[56] The settlement requires Sephora to pay $1.2 million and, in part, to honor opt-out signals sent by consumers using GPC. August 31, 2022 – The California legislature adjourns without enacting Assembly Bill 1102,[57] which would have extended the CCPA’s employment data and business-to-business (“B2B”) data exemptions to January 1, 2025.[58] The exemptions are set to expire on January 1, 2023. October 27, 2022 – The Global Privacy Assembly votes to admit the Agency as a full voting member.[59] The Global Privacy Assembly is an international forum of over 130 data protection and privacy authorities, and the Agency joins the Federal Trade Commission as the second voting member from the United States. November 3, 2022 – The Agency releases a notice of proposed modifications to the proposed CPRA regulations.[60] January 1, 2023 – The CPRA amendments to the CCPA become fully operational. The CCPA’s employment data and B2B data exemptions expire, making the CCPA’s privacy rights applicable to employees, contractors, and job applicants.[61] February 3, 2023 – The Agency votes to adopt and approve the CPRA regulations.[62] February 10, 2023 – Pursuant to the CPRA amendments directing the Agency to issue regulations, the Agency issues an invitation for preliminary comments on proposed rulemaking on cybersecurity audits, risk assessments, and automated decision making.[63] February 14, 2023 – The Agency files the final CPRA regulations with the California Office of Administrative Law, initiating a 30-business day review period.[64] March 30, 2023 – The California Office of Administrative Law approves the CPRA regulations, making them effective immediately and leaving covered businesses with only three months to satisfy the requirements before the original July 1, 2023 enforcement date.[65] Later that day, the California Chamber of Commerce brings suit against the Agency, seeking a delay of enforcement of the CPRA regulations for a period of one year.[66] May 12, 2023 – The Asia Pacific Privacy Authorities (“APPA”) vote to admit the Agency as a member.[67] The APPA provides members with the opportunity to exchange best practices related to the management of privacy inquiries and complaints, and the Agency joins the Federal Trade Commission as the second member organization from the United States. June 30, 2023 – One day before the CPRA regulations would have become enforceable, the Sacramento County Superior Court grants the Chamber of Commerce’s request for an injunction and delays enforcement of the CPRA regulations until March 29, 2024.[68]
NOTE: Leveraging the delay to satisfy the CPRA regulations While the immediate enforcement date of the CPRA regulations remains uncertain due to the Agency’s appeal of the trial court’s injunction, businesses should not see this uncertainty as a reason to ignore the CPRA regulations. The delayed enforcement of the CPRA regulations is exactly that: a delay, not a termination. Businesses should use this time to ensure their practices and policies align with both current requirements and the delayed regulations looming on the temporal horizon. The Agency and the California Attorney General have signaled an eagerness to enforce the stayed regulations and will likely use this time to rev up its Enforcement Division in preparation for the inevitable day when the regulations become enforceable.
July 1, 2023 – Had the Sacramento County Superior Court not granted the Chamber of Commerce’s request for an injunction and delayed enforcement of the CPRA regulations until March 29, 2024, the CPRA regulations would have become enforceable on this day. July 14, 2023 – California Attorney General Rob Bonta announces an investigative sweep through inquiry letters sent to large California employers, requesting information on the companies’ compliance with the CCPA with respect to personal information of employees and job applicants.[69] Same day, the Agency holds a public board meeting at which Michael Macko, Deputy Director of Enforcement at the Agency, announces that, despite the Sacramento County Superior Court decision on June 30, 2023, the Agency expects to conduct “vigorous enforcement over the coming year.”[70]
NOTE: Regarding the Agency’s enforcement priorities. Macko added that the Agency will use its prosecutorial discretion to prioritize certain topics and areas. These include:
  • Privacy notices and policies. The statutory language of the CCPA, even before the CPRA amendments, expressly stated what a business must include in their privacy policy disclosures to consumers. As such, Macko said the Agency will focus its enforcement efforts on reviewing whether businesses satisfy the law’s foundational disclosure requirements.
  • Right to delete personal information. Again, even prior to the CPRA amendments, the CCPA required businesses to respect a consumer’s right to delete personal information. Macko described this right as “well established,” and the Agency will review whether and how businesses are complying with this “long-standing” right.
  • Implementation of consumer requests. For years now, businesses covered by the CCPA have had to operationalize both internal and a consumer-facing means of respecting consumer privacy rights requests. As such, the Agency will focus its efforts on reviewing how businesses have actually implemented means of respecting these requests. Specifically, the Agency will analyze whether a business has implemented “barriers” to prevent consumers from actualizing those rights.
July 31, 2023 – The Agency announces that it will review the data privacy practices of connected vehicle manufacturers and related connected vehicle technology.[71] August 4, 2023 – The Agency and California Attorney General Rob Bonta file a petition with California’s Third District Court of Appeal to overturn the Sacramento County Superior Court decision that imposed a 12-month delay on enforcement of the CPRA regulations.[72] August 9, 2023 – The Dubai International Financial Centre (“DIFC”) issues an adequacy determination establishing the CCPA’s equivalence with the DIFC’s data protection law.[73] Although the DIFC and its data protection law are limited in jurisdiction and applicability, this adequacy determination sets precedent of an international authority granting adequacy status to a state within the United States. August 29, 2023 – CPPA releases draft cybersecurity audit and risk assessment regulations, which will be discussed during their September 8 board meeting.[74] March 29, 2024 – Expected date when the Agency and the California Attorney General can enforce the CPRA regulations.  
[1] https://www.oag.ca.gov/system/files/initiatives/pdfs/17-0039%20%28Consumer%20Privacy%20V2%29.pdf. [2] https://www.sos.ca.gov/administration/news-releases-and-advisories/2017-news-releases-and-advisories/proposed-initiative-enters-circulation39. [3] https://leginfo.legislature.ca.gov/faces/billHistoryClient.xhtml?bill_id=201720180SB1121. [4] https://www.nytimes.com/2018/05/13/business/california-data-privacy-ballot-measure.html. [5] https://iapp.org/news/a/california-legislature-reaches-tentative-agreement-on-consumer-privacy-rules/. [6] https://www.sos.ca.gov/administration/news-releases-and-advisories/2018-news-releases-and-advisories/new-measure-eligible-californias-november-2018-ballot7/. [7] https://iapp.org/news/a/california-passes-landmark-privacy-legislation/. [8] https://leginfo.legislature.ca.gov/faces/billHistoryClient.xhtml?bill_id=201720180AB375. [9] https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB1121. [10] https://www.caprivacy.org/a-letter-from-alastair-mactaggart-board-chair-and-founder-of-californians-for-consumer-privacy/. [11] https://oag.ca.gov/sites/all/files/agweb/pdfs/privacy/ccpa-nopa.pdf. [12] https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB25. [13] https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB874. [14] https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB1146. [15] https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB1355. [16] https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB1564. [17] https://oag.ca.gov/system/files/initiatives/pdfs/19-0021A1%20%28Consumer%20Privacy%20-%20Version%203%29_1.pdf. [18] https://oag.ca.gov/sites/all/files/agweb/pdfs/privacy/ccpa-comments-45day-pt4.pdf. [19] https://www.caprivacy.org/ca-attorney-general-becerra-releases-the-title-and-summary-for-initiative-to-protect-consumer-privacy/. [20] https://www.theguardian.com/us-news/2019/dec/30/california-consumer-privacy-act-what-does-it-do. [21] https://www.law360.com/cases/5e39a9d5babd2503b3d79986. [22] https://oag.ca.gov/sites/all/files/agweb/pdfs/privacy/ccpa-text-of-mod-redline-020720.pdf. [23] https://www.oag.ca.gov/sites/all/files/agweb/pdfs/privacy/ccpa-text-of-second-set-mod-031120.pdf. [24] https://www.law360.com/articles/1255181/attachments/0. [25] https://www.caprivacy.org/californians-for-consumer-privacy-submits-signatures-to-qualify-the-california-privacy-rights-act-for-november-2020-ballot/. [26] https://oag.ca.gov/news/press-releases/attorney-general-becerra-reminds-consumers-data-privacy-rights-under-california. [27] https://media.mcguirewoods.com/publications/2020/Alastair-Mactaggart-complaint.pdf. [28] https://elections.cdn.sos.ca.gov/ballot-measures/pdf/1879-court-order.pdf. [29] https://www.caprivacy.org/california-privacy-rights-act-cpra-qualifies-for-the-november-2020-ballot/. [30] https://oag.ca.gov/privacy/ccpa/enforcement. [31] https://cppa.ca.gov/regulations/pdf/20220708_npr.pdf. [32] https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB713. [33] https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB1281. [34] https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=1798.145. [35] https://www.vox.com/policy-and-politics/2020/11/3/21546835/california-proposition-24-live-results-data-privacy. [36] Cal. Civ. Code sec. 1798.199.10. [37] Cal. Civ. Code sec. 1798.185(d). [38] https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CONS&sectionNum=SEC.%2013.&article=V [39] https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=1798.199.90. [40] https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=1798.199.40. [41] https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=1798.199.90. [42] CCPA (pre-CPRA amendments), sec. 1798.145(n)(3). [43] https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=1798.145. [44] https://cppa.ca.gov/regulations/pdf/20220708_npr.pdf. [45] https://oag.ca.gov/system/files/attachments/press-docs/Complaint%20%288-23-22%20FINAL%29.pdf. [46] https://cppa.ca.gov/announcements/2021/20211004.html. [47] https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220AB694. [48] https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220AB825&search_keywords=privacy. [49] https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202120220AB335&search_keywords=privacy. [50] https://cppa.ca.gov/regulations/pdf/20220708_npr.pdf. [51] https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=1798.130. [52] https://cppa.ca.gov/regulations/pdf/2022032_02nr_approval.pdf. [53] https://cppa.ca.gov/announcements/2022/20220525.html. [54] https://cppa.ca.gov/announcements/2022/20220708.html. [55] https://oag.ca.gov/system/files/attachments/press-docs/Complaint%20%288-23-22%20FINAL%29.pdf. [56] https://oag.ca.gov/system/files/attachments/press-docs/Filed%20Judgment.pdf.pdf. [57] https://image.uschamber.com/lib/fe3911727164047d731673/m/24/RN2220645_rn2220645_distprint.pdf?utm_source=sfmc&utm_medium=email&utm_campaign=&utm_term=Data+Privacy+WG+Note+8.26.22&utm_content=8/26/2022. [58] https://iapp.org/news/a/ccpa-cpra-grace-period-for-hr-and-b2b-ends-jan-1/. [59] https://cppa.ca.gov/announcements/2022/20221027.html. [60] https://cppa.ca.gov/regulations/pdf/20221102_15_day_notice.pdf. [61] https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=1798.145. [62] https://cppa.ca.gov/announcements/2023/20230330.html. [63] https://cppa.ca.gov/regulations/pre_rulemaking_activities_pr_02-2023.html. [64] https://cppa.ca.gov/announcements/2023/20230330.html. [65] https://cppa.ca.gov/announcements/2023/20230330.html. [66] California Chamber of Commerce vs. California Privacy Protection Agency (March 30, 2023) 34-2023-80004106-CU-WM-GDS (complaint). [67] https://cppa.ca.gov/announcements/2023/20230512.html. [68] https://www.metaverse.law/wp-content/uploads/2023/08/CU_34-2023-80004106-CU-WM-GDS_a47a4e35-7157-4304-815c-de5b2bf90f308.pdf. [69] https://oag.ca.gov/news/press-releases/attorney-general-bonta-seeks-information-california-employers-compliance. [70] https://www.youtube.com/watch?v=jmcrOWAeLAI. [71] https://cppa.ca.gov/announcements/2023/20230731.html. [72] https://cppa.ca.gov/announcements/2023/20230804.html. [73] https://cppa.ca.gov/announcements/2023/20230809.html. [74]https://cppa.ca.gov/meetings/materials/20230908item8.pdf & https://cppa.ca.gov/meetings/materials/20230908item8part2.pdf.
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