News & Articles - Page 11 of 29

19 Jan

Metaverse Law featured in OC Lawyer Magazine

AI & Algorithms, Biometrics, Data / Web Scraping, GDPR, Social Media

The Orange County Bar Association recently released the January 2024 issue of Orange County Lawyer magazine. This month, Orange County Lawyer includes an article written by Metaverse Law’s Lily Li.

Read “AI Generated Deepfakes: Potential Liability and Remedies” below or in Orange County Lawyer magazine.

[Originally published as a Feature Article: AI-Generated Deepfakes: Potential Liability and Remedies, by Lily Li, in Orange County Lawyer Magazine, January 2024, Vol. 66 No.1, page 26.]

AI-Generated Deepfakes: Potential Liability and Remedies

by Lily Li

Almost ten years ago, in Netflix’s hit series House of Cards, the Underwoods’ presidential bid is almost derailed by a leaked picture of an affair, nude shower scene and all. While the picture was real, the Underwoods were able to undermine the credibility of the leaked image by claiming it was fake—going so far as to recreate the image using a hired model, to show how “easy” it was to fabricate photos.

This episode, aptly named “The Road to Power,” highlights one of the greatest risks of disinformation and fake or synthetic media. It is not through the public’s gullibility to doctored images; it is the watering down of trust in online media, leading individuals to rely solely on friends, family, and other sources of information that echo their own beliefs and values.

Fast forward a decade, and synthetic media—also known as “deepfakes” –-are now pervasive. In early 2022, for example, a fake video of Ukrainian President Volodymyr Zelensky circulated on social media, calling for his soldiers to lay down their arms and surrender to Russia.[1] At the corporate level, deepfakes have been used to mimic a CEO’s voice to fraudulently transfer $243,000.[2] Just as troubling, and even more creepy, a “sophisticated hacking team” impersonated the CEO of cryptocurrency company Binance by using “video footage of his past TV appearances and digitally alter[ing] it to make an ‘AI hologram’ of him and trick people into meetings.”[3] At home, scammers can use deepfaked voices to mimic loved ones, or AI-powered chatbots to engage in romance scams via text messages and phone calls. This is just a front to ask the victim to wire money, send gift cards, or reveal personal information to engage in identity theft. The problem has become so severe that both the FTC and the FCC have released consumer alerts in early 2023 regarding these AI-generated scams.[4]

The ease in which generative AI can create realistic videos, voice, and text will only aggravate these concerns. Deepfakes have long relied on machine learning to iterate and become more realistic with training, but in the past, this type of technology required significant computing resources and time. Now, almost every tech product is incorporating generative AI or machine learning in some form, making this accessible to every novice programmer or script kiddie.

Given these growing risks, this article will focus on the potential liability that creators, platforms, and publishers face in creating and spreading deepfakes, as well as the challenges of pursuing remedies under existing laws. In addition, this article will discuss pending rulemaking governing deepfakes and potential steps forward.

Privacy Liability for Deepfakes

Biometrics: If deepfakes rely on scans of faceprints, facial geometry, or voiceprints to make the false video or audio, or even to train their algorithms, then biometric privacy laws may apply. The Illinois Biometric Information Privacy Act (BIPA) is one of the strictest data privacy laws in the country. It requires express written consent and meaningful disclosures prior to any use and disclosure of Illinois resident biometric data. The collection of biometric data is interpreted broadly to include faceprints and voiceprints. It provides a private right of action, up to $5,000 in statutory damages per violation, and does not require a showing of harm.[5] Earlier this year, in Cothron v. White Castle Systems, Inc.,[6] the Illinois Supreme Court went even further, confirming that each scan in violation of BIPA counts as an ongoing violation—adding further teeth to this law.

Revenge Porn Laws: To the extent the deepfakes include pornographic images, several states, like Virginia,[7] have explicitly included deepfakes within “revenge porn” laws, while other victims have pursued claims under existing revenge porn laws by claiming that the deepfakes amount to non-consensual pornography. The legal consequences vary by jurisdiction, ranging from misdemeanors to felonies with fines and jail time. New York and California also provide a private right of action for deepfake pornography.

General Data Protection Regulation (GDPR): The EU has a broad privacy law that governs use of personal data. Unlike U.S. state privacy laws, which generally allow free use of publicly available data (except for biometric processing), the EU requires all individuals, companies, and non-profits to have a lawful basis for processing any personal data—with limited exclusions for personal data “manifestly made public by the data subject.” Thus, indiscriminate scraping of social media data for deepfakes, especially where the users have limited the audience for their data, would likely violate the GDPR and be subject to fines and regulatory scrutiny.

IP, Torts, and other Remedies

Defamation: Traditional defamation claims are also applicable to deepfakes, if the plaintiff can show that the deepfake is communicated to third parties and makes false assertions that harms the plaintiff’s reputation. For public figures, plaintiffs must also show malice.

Rights of Publicity: Many states recognize a “right of publicity” to an individual’s voice or image. The damages or royalties from a right to publicity claim are proportionate to the value associated with licensing one’s image, so these types of claims are more appropriate for celebrities that ordinarily profit from licensing their image.

Copyright and Trademark: To the extent deepfakes use existing logos, photos, music, or even unique website designs to make them seem official or legitimate, this may support multiple claims of copyright and trademark infringement. Copyright holders may also send copyright takedown notices under the DMCA for infringing conduct.

Breach of Contract: If deepfakes rely on scraped content from existing sites or platforms, this may also support a breach of contract claim against the offending party (to the extent they’ve signed up and agreed to the platform’s rules). For example, in the widely publicized case, hiQ Labs, Inc. v. LinkedIn Corp., the Ninth Circuit found that hiQ breached LinkedIn’s User Agreement both through its own scraping of LinkedIn’s site and through its use of independent contractors to log into LinkedIn and do quality control of the data.[8] The Ninth Circuit noted, however, that LinkedIn was estopped from pursuing certain claims due to how much time had elapsed since its initial awareness of data scraping. Consequently, platforms that wish to rely on breach of contract claims to combat data scrapers, and potential misuse of their platforms for generative AI and deepfakes, must act swiftly and definitively. This is likely the impetus for X Corp’s (formerly Twitter) recent slew of crackdown on data scrapers, through a series of lawsuits filed in August.[9]

State Deepfake Laws: California, Texas, and Virginia have also enacted deepfake laws specific to political deepfakes, but these laws are limited in application and remedy. Texas SB 751, for instance, prohibits deepfake videos created “with intent to injure a candidate or influence the result of an election” and which are “published and distributed within thirty days of an election.” This law makes violations a Class A misdemeanor punishable by up to a year in jail and fines up to $4,000. More recently, Washington State passed a law requiring clear and transparent notices on any synthetic video or audio concerning candidates if it is related to an election. Senate Bill 5152 gives candidates a private right of action, including attorney’s fees for the prevailing party.

Limitations of Existing Remedies; Section 230 of the Communication Decency Act

There are several hurdles that would-be plaintiffs face in pursuing deepfake claims. For many torts like defamation and right of publicity, the amount of damages may be limited compared to the cost of litigation, and important First Amendment rights protect non-commercial speech that is satirical or political commentary. In addition, deepfake content can easily cross borders, so it may be difficult to find a defendant to penalize or enjoin. Consequently, instead of pursuing traditional claims, many victims rely solely on IP takedown notices, or a social media platform’s own processes to flag and remove deepfake content.

At present, Section 230 of the Communications Decency Act also shields platforms from liability for the content users upload and distribute on their platforms, as platforms generally do not constitute the “speaker” or “publisher” of such content. The line between acting as a pure platform, and contributing or generating harmful content, is increasingly blurred, however. In the recent Supreme Court case, Twitter, Inc. v. Taamneh et al,[10] plaintiffs alleged that social media platforms profited from ISIS recruitment videos and allowed ISIS to take advantage of the social media platforms’ “recommendation” algorithms that match content. While the Supreme Court declined to address the scope of 230 protections for these types of “recommendation” algorithms—the Supreme court noted that Section 230 may not protect platforms that create text, audio, or video through generative AI. In oral arguments to Google v. Gonzales, a companion case to Taamneh, Justice Gorsuch strongly implied that generative AI would fall outside of Section 230’s protections, stating: “I mean, artificial intelligence generates poetry, it generates polemics today. That—that would be content that goes beyond picking, choosing, analyzing, or digesting content. And that is not protected. Let’s—let’s assume that’s right, okay?”[11]

Going forward, we anticipate that the Illinois Biometric Information Privacy Act, and pending bills on biometric data, will likely be a more promising and lucrative way to attack platforms that explicitly use biometric data to generate or share deepfakes. In addition, as noted above, plaintiffs may have more luck pursuing claims against platforms that help create deepfake content or media using generative AI rather than solely relying on user content.

Do We Need Additional Laws?

As we can see from the patchwork of common law and statutory rights, the potential risks for creating and publishing deepfakes is many, but the best avenue for plaintiffs to pursue a remedy is unclear. Even some regulators are scratching their heads as to whether existing rules apply to deepfakes. For example, in July 2023, Public Citizen filed a petition with the Federal Election Commission (FEC), asking the FEC to amend its regulation on “fraudulent misrepresentation” at 11 C.F.R. § 110.16[12] to clarify that “the restrictions and penalties of the law and the Code of Regulations are applicable” should “candidates or their agents fraudulently misrepresent other candidates or political parties through deliberately false [AI]-generated content in campaign ads or other communications.”[13] In response, the FEC submitted a notice, soliciting public comment on this issue before making a decision on the merits of the petition.

The FTC has taken a firmer stance, stating that it does have authority to regulate AI generally, and deepfakes more specifically. In a March 2023 blog post titled “Chatbots, deepfakes, and voice clones: AI deception for sale,” the FTC noted that the “FTC Act’s prohibition on deceptive or unfair conduct can apply if you make, sell, or use a tool that is effectively designed to deceive—even if that’s not its intended or sole purpose.”[14]

Abroad, the European Union is taking an entirely different approach, developing a comprehensive law (the EU “AI Act”) that would govern artificial intelligence as a whole. The law, as drafted, requires all high-risk AI processing to undergo risk assessments for bias, safety, accuracy, and other risks. In addition, the AI Act would require transparency obligations for deepfakes, defined as “AI systems that generate or manipulate image, audio or video content.”[15] While the AI Act is still in draft form, it is likely to have as large and wide sweeping of an impact as the General Data Privacy Regulation, once it goes into effect.

Given the existing plethora of rights and remedies under the law, and the potential impact of the EU AI Act, this author does not believe that this is the right time to pursue a federal law specific to deepfakes—even though they present serious threats. In the current divisive political climate, it is likely that any proposed law will either get blocked, watered down, or if passed—fail to strike the right balance between free speech and misleading content. Instead, courts and regulators should strictly enforce existing laws that protect individual privacy and image rights, and the right to be free from false and deceptive practices. Attorneys should advise their tech clients on the risks of generative AI technologies and the potential gaps in Section 230 coverage. Finally, as private citizens, let’s remain diligent in what we read and share—and not be afraid to call out anyone who seeks to deceive.

ENDNOTES

(1) Bobby Allyn, Deepfake video of Zelenskyy could be ’tip of the iceberg’ in info war, experts warn, NPR (Mar. 16, 2022, 8:26 PM), https://www.npr.org/2022/03/16/1087062648/deepfake-video-zelenskyy-experts-war-manipulation-ukraine-russia.

(2) Catherine Stupp, Fraudsters Used AI to Mimic CEO’s Voice in Unusual Cybercrime Case, Wallstreet Journal (Aug. 30, 2019, 12:52 PM), https://www.wsj.com/articles/fraudsters-use-ai-to-mimic-ceos-voice-in-unusual-cybercrime-case-11567157402.

(3) Luke Hurst, Binance executive says scammers created deepfake ’hologram’ of him to trick crypto developers, Euronews (Aug. 24, 2022, 2:47 PM), https://www.euronews.com/next/2022/08/24/binance-executive-says-scammers-created-deepfake-hologram-of-him-to-trick-crypto-developer.

(4) Alvaro Puig, Scammers use AI to enhance their family emergency schemes, Federal Trade Commission (Mar. 20, 2023), https://consumer.ftc.gov/consumer-alerts/2023/03/scammers-use-ai-enhance-their-family-emergency-schemes; ’Grandparent’ Scams Get More Sophisticated, Federal Communications Commission, https://www.fcc.gov/grandparent-scams-get-more-sophisticated (last visited Nov. 29, 2023).

(5) See Rosenbach v. Six Flags Entertainment Corp., 2019 IL 123186 (Jan. 25, 2019).

(6) 2023 IL 128004 (Feb. 17, 2023).

(7) Va. Code Ann. § 18.2-386.2.

(8) No. 17-3301 (N.D. Cal. Nov. 4, 2022).

(9) Blair Robinson, X Corp Lawsuits Target Data Scraping, National Law Review (Aug. 17, 2023), https://www.natlawreview.com/article/x-corp-lawsuits-target-data-scraping.

(10) 598 U.S. 471 (May 18, 2023).

(11) Transcript of Oral Argument at 49, Google v. Gonzales, 598 U.S. 617 (2023) (No. 21-1333).

(12) Available at https://www.ecfr.gov/current/title-11/section-110.16.

(13) Artificial Intelligence in Campaign Ads, 88 Fed. Reg. 55606 (proposed Aug. 16, 2023), https://www.federalregister.gov/documents/2023/08/16/2023-17547/artificial-intelligence-in-campaign-ads.

(14) Michael Atleson, Chatbots, deepfakes, and voice clones: AI deception for sale, Federal Trade Commission (Mar. 20, 2023), https://www.ftc.gov/business-guidance/blog/2023/03/chatbots-deepfakes-voice-clones-ai-deception-sale.

(15) Tambiama Madiega, Artificial intelligence act, EU Legislation in Progress, European Parliament (June 2023), https://www.europarl.europa.eu/RegData/etudes/BRIE/2021/698792/EPRS_BRI(2021)698792_EN.pdf.

Lily Li is a data privacy, AI, and cybersecurity lawyer and founder of Metaverse Law. She is a certified information privacy professional for the United States and Europe and is a GIAC Certified Forensic Analyst for advanced incident response and computer forensics.

24 Oct

AI vendor management – human programming for machine learning

Metaverse Law

AI & Algorithms, United States AI, Algorithmic bias, Algorithms, Vendor Management

Machine learning and artificial intelligence (AI) have permeated the supply chain. The reasons are apparent. Low cost and efficiency are an easy sell in today’s economy, with rampant inflation in the supply chain and tight labor markets. Yet, the economic motivation for AI must be tempered by human (or human-programmed) review of AI systems. Rules are necessary to ensure that the fundamental privacy and moral rights of individuals are protected. From data input to disaster recovery, AI vendor management ensures both the protection of businesses and the broader society.

In an Insight article written by Lily Li, Founder of Metaverse Law for Data Guidance, Lily discusses data minimization for AI vendors, algorithmic bias and disgorgement, considerations for AI terms and conditions, and business continuity and disaster recovery considerations for AI. Click here to continue reading.

11 Oct

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

Dale Rappaneau

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.

26 Sep

An overview of biometrics laws in the U.S.

Dale Rappaneau

Biometrics, Health Data, Resource, State Privacy Laws, United States

[Updated: September 27, 2023] In addition to state comprehensive privacy laws, state legislatures are increasingly interested in regulating the collection, use, and possession of biometric data. It is therefore imperative for startups and businesses to remain informed of the potential laws that may apply and when. Readers are encouraged to review the following enacted and enforceable biometric laws, and to reach out if concerned that one such law may apply. We will continue monitoring the biometric legislation landscape and will update this resource accordingly.

ILLINOIS

Law: Biometric Information Privacy Act (“BIPA”) Applies to: Any individual, partnership, corporation, limited liability company, association, or other group, however organized, that possesses, collects, captures, purchases, receives through trade, or otherwise obtains biometric identifiers or biometric information of Illinois residents. Covers:

Biometric identifiers: Retina or iris scans, fingerprints, voiceprints, and scans of hand or face geometry; or
Biometric information: Any information, regardless of how it is captured, converted, stored, or shared, based on an individual biometric identifier and used to identify an individual.

Enforcement: The law provides individuals with a private right of action, and violations can amount to $5,000 per collection, possession, etc., in violation of the law.

MARYLAND

Law: Labor and Employment Code § 3-717 Applies to: Maryland employers that use facial recognition services for purposes of creating a facial template during an applicant’s interview for employment. Covers:

Facial template: Machine-interpretable pattern of facial features that is extracted from one or more images of an individual by technology that analyzes facial features and is used for recognition or persistent tracking of individuals in still or video images.

Enforcement: Maryland Department of Labor.

MONTANA

Law: Facial Recognition for Government Use Act Applies to: Third-party vendors contracting with Montana state or local government agencies for the provision of facial recognition services. Covers:

Facial biometric data: Data derived from a measurement, pattern, contour, or other characteristic of an individual’s face, either directly or from an image.

Enforcement: Montana Attorney General can bring enforcement actions, with damages starting at $10,000. The law provides individuals with a private right of action, and violations can amount to $1,000 per violation.

NEW YORK

Law: N.Y. LAB. LAW § 201-aA Applies to: New York employers that fingerprint employees as a condition of securing employment or of continuing employment. Covers:

Fingerprints: The law does not define what constitutes a fingerprint, but New York State Department of Labor RO-10-0024 states: “instruments that measure the geometry of the hand are permissible under the Labor Law so long as they do not scan the surface details of the hand and fingers in a manner similar or comparable to the scanning of a fingerprint.”

Enforcement: New York State Department of Labor.

Law: NYC Admin Code §§ 22-1201-1205 Applies to: Places of entertainment, retail stores, or food or drink establishments in New York City that collect biometric identifier information from customers. Covers:

Biometric identifier information: Physiological or biological characteristics that are used by or on behalf of a place of entertainment, a retail store, or a food or drink establishment, singly or in combination, to identify, or assist in identifying, an individual.

Enforcement: The law provides individuals with a private right of action, and violations can amount to $5,000 per violation.

OREGON

Law: Portland City Code, Title 34- Digital Justice, Chapters 34.10.010-34.10-050 Applies to: Any individuals and non-government entities in the city of Portland, prohibiting them from using face recognition technologies in any place or service offering to the public accommodations, advantages, facilities, or privileges whether in the nature of goods, services, lodgings, amusements, transportation, or otherwise. Covers:

Face recognition: Automated searching for a reference image in an image repository by comparing the facial features of a probe image with the features of images contained in an image repository.

Enforcement: The law provides individuals with a private right of action , and violations can amount to $1,000 per day for each day of violation.

STATE COMPREHENSIVE PRIVACY LAWS

Laws:

Applies to: Each state comprehensive privacy law features various thresholds of applicability. Please see our overview of state comprehensive privacy laws for more information on those thresholds. Covers:

Biometric data: Generally means an individual’s physiological, biological, or behavioral characteristics that is used or is intended to be used to establish or authenticate an individual’s identity.

Enforcement: Most state comprehensive privacy laws are enforced by the state’s respective attorney general, but California also authorizes the California Privacy Protection Agency to enforce California’s state comprehensive privacy law.

TEXAS

Law: Capture or Use of Biometric Identifier (“CUBI”) Applies to: Any individuals and non-government entities capturing biometric identifiers of Texas individuals for a commercial purpose. (The law does not define what constitutes a “commercial purpose,” but the Texas Attorney General has argued that capturing biometric identifiers to improve or develop products or services constitutes a commercial purpose.) Covers:

Biometric identifiers: Retina or iris scans, fingerprints, voiceprints, or records of hand or face geometry.

Enforcement: Texas Attorney General, which can seek fines of up to $25,000 per violation.

WASHINGTON

Law: Biometric Identifiers Law (“BIL”) Applies to: All individuals and non-government entities that collect, use, and retain biometric identifiers from Washington residents. Covers:

Biometric identifiers: Data generated by automatic measurements of an individual’s
- biological characteristics, such as a fingerprint, voiceprint, eye retinas, irises, or
- other unique biological patterns or characteristics that is used to identify a specific individual.

Enforcement: Washington Attorney General under the state’s consumer protection act.

Law: My Health, My Data Act (“MHMDA”) Applies to: All legal entities of any size that conduct business in Washington state or produce or provide products or services targeted to individuals in Washington, and alone or jointly collects, processes, shares, or sells consumer health information. Covers:

Consumer health information: Personal information that is linked or reasonably linkable to a consumer and that identifies the consumer’s past, present, or future physical or mental health status.

Enforcement: Washington Attorney General can bring enforcement actions under the state’s consumer protection act. In addition, the law provides individuals with a private right of action.

18 Aug

CCPA + CPRA Timeline of Key Events

Dale Rappaneau

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.

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