And Then There Were Five…

Just last summer, in July of 2021, Colorado joined California and Virginia, and became the third U.S. state with a comprehensive consumer privacy law. The Colorado Privacy Act is set to take effect in July 2023.

Hot on its heels, and within just two months of each other, first Utah in March of 2022, now Connecticut in May of 2022, passed privacy bills which will become effective in 2023.

So far, California remains the only state which allows for a private right of action in connection with its privacy bill. For more information, please see our comparison of the current U.S. state consumer privacy laws below.

For our unofficial redline of the CPRA, click here.

Follow these links for the official text of the CPRA, CPA, CTDPA, UCPA, and VCDPA.

To view and download a PDF version of this chart, click here.

Banner for PrivSec Global: A Global Live Stream Experience. 22-23 September 2021. The Largest Data Protection, Privacy and Security Event of 2021. Businesspeople smiling in the background of the banner.

Metaverse Law Speaks at PrivSec Global

On September 23, 2021 attorney Lily Li spoke at PrivSec Global: The Largest Data Protection, Privacy and Security Event of 2021. The Global Live Stream Experience was a two day event from September 22 to September 23, 2021.

The topic of discussion was “Why Most CCPA Cases Will Fail: Five Hurdles Plaintiffs Must Clear.” For more details on the topic and to watch the presentation on-demand, click here.

Cell phone with image of lock on the screen.

Reasonable Security: Implementing Appropriate Safeguards in the Remote Workplace

Photo by Franck on Unsplash

In 2020, with large portions of the global workforce abruptly sent home indefinitely, IT departments nationwide scurried to equip workers of unprepared companies to work remotely.

This presented an issue. Many businesses, particularly small businesses, barely have the minimum network defenses set up to prevent hacks and attacks in the centralized office. When suddenly everyone must become their own IT manager at home, there are even greater variances between secure practices, enforcement, and accountability.

“Reasonable Security” Requirements under CCPA/CPRA and Other Laws

Under the California Consumer Privacy Act (CCPA), the implementation of “reasonable security” is a defense against a consumer’s private right of action to sue for data breach. A consumer who suffers an unauthorized exfiltration, theft, or disclosure of personal information can only seek redress if (1) the personal information was not encrypted or redacted, or (2) the business otherwise failed its duty to implement reasonable security. See Cal. Civ. Code § 1798.150.

Theoretically, this means that a business that has implemented security measures—but nevertheless suffers a breach—may be insulated from liability if the security measures could be considered reasonable measures to protect data. Therefore, while reasonable security is not technically an affirmative obligation under the CCPA, the reduced risk of consumer liability made reasonable security a de facto requirement.

However, under the recently passed California Privacy Rights Act (CPRA), the implementation of reasonable security is now an affirmative obligation. Under revised Cal. Civ. Code § 1798.100, any business that collects a consumer’s personal information shall implement reasonable security procedures and practices to protect personal information. See our CPRA unofficial redlines.

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social network patents

Facebook, Patents, and Privacy: Social Media Innovations to Mine Personal Data

Social Media Patents & Privacy Data

[©2016. Published in GPSOLO, Vol. 37, No. 5, September/October 2020, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder]

* Updated November 25 to include references to CPRA/ Prop24.

The episode “Nosedive” of the television series Black Mirror envisions a society built on social credit scores. In this dystopia, all social media networks have converged into one platform—think Facebook, TikTok, Yelp, and Equifax combined.

This umbrella social platform allows users to rate each other on a five-point scale after each social interaction. Those with a high score gain access to job opportunities, favorable zip codes, and even high-status relationships. Those with a low score have the social ladder kicked out from under them, leading to a downward cycle of estrangement—and in the case of Black Mirror’s protagonist, jail time.

While the society in “Nosedive” seems far-fetched, is the technology behind it plausible?

Facebook Patents That Impact Privacy

According to Facebook’s patents, the answer is a resounding “yes.”

In a series of filings spanning almost a decade, Facebook has obtained several patents that allow social media platforms to track, identify, and classify individuals in new and innovative ways. Below are just few.

Tracking individuals via dust. U.S. Patent No. 9485423B2, “associating cameras with users and objects in a social networking system” (filed September 16, 2010, patented June 25, 2013), allows social media networks to identify an individual’s friends and relationships by correlating users across the same camera. To do so, an algorithm analyzes the metadata of a photo to find a camera’s “signature.”

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Offset angled photo of Proposition 24 from the 2020 California Voter's Guide

What Businesses Need to Know if Voters Pass Proposition 24 (California Privacy Rights Act of 2020, “CPRA”)

Hot on the heels of the California Consumer Privacy Act (CCPA), California residents this November will vote on Proposition 24. A majority yes vote on Prop 24 would pass the California Privacy Rights Act (CPRA). The CPRA proposes several amendments to the CCPA, such as granting new rights to consumers, imposing greater penalties on businesses for certain violations, and creating a new state enforcement agency, the California Privacy Protection Agency (CPPA).

1. Right to Restrict Use of Sensitive Data

Under the newly added Section 1798.121, consumers now have the right to direct businesses to limit the use of “sensitive personal information.”

As defined in CPRA, sensitive personal information appears to combine the conventional definition of “personally identifiable information” from state breach notification laws with the definition of “special category data” under the GDPR. Accordingly, sensitive personal information is data that may include a Social Security Number, driver’s license number, account log-in/debit/credit card information in combination with password or PIN. It may also include a consumer’s precise geolocation, the contents of their e-mails or texts to others, and racial, religious, biometric, or health data.

If directed to do so, businesses must limit the use of sensitive personal information to only those purposes that are necessary to provide a consumer’s requested services or goods.

To facilitate consumer exercise of this right, businesses may be required to add another link, “Limit the Use of my Sensitive Personal Information,” to their websites, in addition to any existing “Do Not Sell My Personal Information” link.

2. Right to Opt-Out of Cross-Context Behavioral Advertising

The CPRA requires a right of opt-out for “cross-context behavioral advertising” regardless of whether it constitutes a “sale” of personal information or not.

Continue Reading What Businesses Need to Know if Voters Pass Proposition 24 (California Privacy Rights Act of 2020, “CPRA”)
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