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Financial Services Law Insights and Observations


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  • CPPA continues efforts towards California Privacy Rights Act

    State Issues

    The California Privacy Protection Agency board is continuing its efforts to prepare regulations implementing the California Privacy Rights Act (covered by InfoBytes here and here).

    Draft risk assessment regulations and cybersecurity audit regulations were released in advance of the September 8 open meeting held by the board. Draft regulations on automated decision-making remain to be published. More comprehensive comment and feedback is expected on these draft regulations, unlike regulations finalized in March that were presented in a more robust state. As previously covered by InfoBytes, the California Privacy Protection Agency cannot enforce any regulations until a year after their finalization, adding a ticking reminder to the finalization process for these draft regulations.

    The draft cybersecurity regulations include thoroughness requirements for the annual cybersecurity audit, which must also be completed “using a qualified, objective, independent professional” and “procedures and standards generally accepted in the profession of auditing.” A management certification must also be signed certifying the business has not influenced the audit, and has reviewed the audit and understands its findings.

    The draft risk assessment regulations require conducting a risk assessment prior to initiating processing of consumers’ personal information that “presents significant risk to consumers’ privacy,” as set forth in an enumerated list include the selling or sharing of personal information; processing personal information of consumers under age 16; and using certain automated decision-making technology, including AI.

    State Issues Privacy California CCPA CPPA CPRA Compliance State Regulators Opt-Out Consumer Protection

  • FTC, DOJ issue permanent injunction and civil penalty for violations of CAN-SPAM Act

    Federal Issues

    On August 22, the DOJ and the FTC jointly announced a permanent injunction and civil penalty of $650,000 against a company that offers credit information, analytical tools, and marketing services for alleged violations of the CAN-SPAM Act, the CAN-SPAM Rule, and the FTC Act. The case, which was filed in the District Court for the Central District of California, asserts that millions of commercial emails sent to consumers did not give the recipients requisite notice of the option to opt-out of future such emails, in violation of the CAN-SPAM Act and Rule. The order enjoined the company from sending commercial emails that do not provide notice of the recipient’s ability to opt-out of future emails, it also enjoins the company from otherwise violating the CAN-SPAM Act, and subjects it to a civil penalty judgment of $650,000.

    Federal Issues Courts FTC CAN-SPAM Act California Marketing Opt-Out

  • California’s privacy agency finalizes CPRA regulations

    Privacy, Cyber Risk & Data Security

    On February 3, the California Privacy Protection Agency (CPPA) Board voted unanimously to adopt and approve updated regulations for implementing the California Privacy Rights Act (CPRA). The proposed final regulations will now go to the Office of Administrative Law, who will have 30 working days to review and approve or disapprove the regulations. As previously covered by InfoBytes, the CPRA (largely effective January 1, 2023, with enforcement delayed until July 1, 2023) was approved by ballot measure in November 2020 to amend and build on the California Consumer Privacy Act (CCPA). In July 2022, the CPPA initiated formal rulemaking procedures to adopt proposed regulations implementing the CPRA, and in November the agency posted updated draft regulations (covered by InfoBytes here and here).

    According to the CPPA’s final statement of reasons, the proposed final regulations (which are substantially similar to the version of the proposed regulations circulated in November) address comments received by stakeholders, and include the following modifications from the initial proposed text:

    • Amending certain definitions. The proposed changes would, among other things, modify the definition of “disproportionate effort” to apply to service providers, contractors, and third parties in addition to businesses, as such term is used throughout the regulations, to limit the obligation of businesses (and other entities) with respect to certain consumer requests. The term is further defined as “when the time and/or resources expended to respond to the request significantly outweighs the reasonably foreseeable impact to the consumer by not responding to the request,” and has been modified “to operationalize the exception to complying with certain CCPA requests when it requires ‘disproportionate effort.’” The proposed changes also introduce the definition of “unstructured” personal information, which describes personal information that could not be retrieved or organized in a predefined manner without disproportionate effort on behalf of the business, service provider, contractor, or third party as it relates to the retrieval of text, video, and audio files.
    • Outlining restrictions on how a consumer’s personal information is collected or used. The proposed changes outline factors for determining whether the collection or processing of personal information is consistent with a consumer’s “reasonable expectations.” The modifications also add language explaining how a business should “determine whether another disclosed purpose is compatible with the context in which the personal information was collected,” and present factors such as the reasonable expectation of the consumer at the time of collection, the nature of the other disclosed purpose, and the strength of the link between such expectation and the nature of the other disclosed purpose, for assessing compatibility. Additionally, a section has been added to reiterate requirements “that a business’s collection, use, retention, and/or sharing of a consumer’s personal information must be ‘reasonably necessary and proportionate’ for each identified purpose.” The CPPA explained that this guidance is necessary for ensuring that businesses do not create unnecessary and disproportionate negative impacts on consumers.
    • Providing disclosure and communications requirements. The proposed changes also introduce formatting and presentation requirements, clarifying that disclosures must be easy to read and understandable and conform to applicable industry standards for persons with disabilities, and that conspicuous links for websites should appear in a similar manner as other similarly-posted links, and, for mobile applications, that conspicuous links should be accessible in the business’ privacy policy.
    • Clarifying requirements for consumer requests and obtaining consumer consent. Among other things, the proposed changes introduce technical requirements for the design and implementation of processes for obtaining consumer consent and fulfilling consumer requests, including but not limited to “symmetry-in-choice,” which prohibits businesses from creating more difficult or time consuming paths for more privacy-protective options than paths to exercise a less privacy protective options. The modifications also provide that businesses should avoid choice architecture that impairs or interferes with a consumer’s ability to make a choice, as “consent” under the CCPA requires that it be freely give, specific, informed, and unambiguous. Moreover, the statutory definition of a “dark pattern” does not require that a business “intend to design a user interface to have the substantial effect of subverting or impairing consumer choice.” Additionally, businesses that are aware of, but do not correct, broken links and nonfunctional email addresses may be in violation of the regulation.
    • Amending business practices for handling consumer requests. The revisions clarify that a service provider and contractor may use self-service methods that enable the business to delete personal information that the service provider or contractor has collected pursuant to a written contract with the business (additional clarification is also provided on a how a service provider or contractor’s obligations apply to the personal information collected pursuant to its written contract with the business). Businesses can also provide a link to resources that explain how specific pieces of personal information can be deleted.
    • Amending requests to correct/know. Among other things, the revisions add language to allow “businesses, service providers, and contractors to delay compliance with requests to correct, with respect to information stored on archived or backup systems until the archived or backup system relating to that data is restored to an active system or is next accessed or used.” Consumers will also be required to make a good-faith effort to provide businesses with all necessary information available at the time of a request. A section has also been added, which clarifies “that implementing measures to ensure that personal information that is the subject of a request to correct remains corrected factors into whether a business, service provider, or contractor has complied with a consumer’s request to correct in accordance with the CCPA and these regulations.” Modifications have also been made to specify that a consumer can request that a business disclose their personal information for a specific time period, and changes have been made to provide further clarity on how a service provider or contractor’s obligations apply to personal information collected pursuant to a written contract with a business.
    • Amending opt-out preference signals. The proposed changes clarify that the requirement to process opt-out preference signals applies only to businesses that sell or share personal information. Language has also been added to explain that “the opt-out preference signal shall be treated as a valid request to opt-out of sale/sharing for any consumer profile, including pseudonymous profiles, that are associated with the browser or device for which the opt-out preference signal is given.” When consumers do not respond to a business’s request for more information, a “business must still process the request to opt-out of sale/sharing” to ensure that “a business’s request for more information is not a dark pattern that subverts consumer’s choice.” Additionally, business should not interpret the absence of an opt-out preference signal as a consumer’s consent to opt-in to the sale or sharing of personal information.
    • Amending requests to opt-out of sale/sharing. The revisions, among other things, clarify that, at a minimum, a business shall allow consumers to submit requests to opt-out of sale/sharing through an opt-out preference signal and through one of the following methods—an interactive form accessible via the “Do No Sell or Share My Personal Information” link, the Alternative Opt-out Link, or the business’s privacy policy. The revisions also make various changes related to service provider, contractor, and third-party obligations.
    • Clarifying requests to limit use and disclosure of sensitive personal information. The regulations require businesses to provide specific disclosures related to the collection, use, and rights of consumers for limiting the use of personal sensitive information in certain cases, including, among other things, requiring the use of a link to “Limit the Use of My Sensitive Personal Information” and honoring any limitations within 15 business days of receipt.  The regulations also provide specific enumerated business uses where the right to limit does not apply, including to ensure physical safety and to prevent, detect, and investigate security incidents.

    The proposed final regulations also clarify when businesses must provide a notice of right to limit, modify how the alternative opt-out link should be presented, provide clarity on how businesses should address scenarios in which opt-out preference signals may conflict with financial incentive programs, make changes to service provider, contractor, and third party obligations to the collection of personal information, as well as contract requirements, provide clarity on special rules applicable to consumers under 16-years of age, and modify provisions related to investigations and enforcement.

    Separately, on February 10, the CPPA posted a preliminary request for comments on cybersecurity audits, risk assessments, and automated decisionmaking to inform future rulemaking. Among other things, the CPPA is interested in learning about steps it can take to ensure cybersecurity audits are “thorough and independent,” what content should be included in a risk assessment (including whether the CPPA should adopt the approaches in the EU GDPR and/or Colorado Privacy Act), and how “automated decisionmaking technology” is defined in other laws and frameworks. The CPPA noted that this invitation for comments is not a proposed rulemaking action, but rather serves as an opportunity for information gathering. Comments are due March 27.

    Privacy, Cyber Risk & Data Security State Issues California CCPA CPPA CPRA Compliance State Regulators Opt-Out Consumer Protection

  • California investigating mobile apps’ CCPA compliance

    Privacy, Cyber Risk & Data Security

    On January 27, the California attorney general announced an investigation into mobile applications’ compliance with the California Consumer Privacy Act (CCPA). The AG sent letters to businesses in the retail, travel, and food service industries who maintain popular mobile apps that allegedly fail to comply with consumer opt-out requests or do not offer mechanisms for consumers to delete personal information or stop the sale of their data. The investigation also focuses on businesses that fail to process consumer opt-out and data-deletion requests submitted through an authorized agent, as required under the CCPA. “On this Data Privacy Day and every day, businesses must honor Californians’ right to opt out and delete personal information, including when those requests are made through an authorized agent,” the AG said, adding that authorized agent requests include “those sent by Permission Slip, a mobile application developed by Consumer Reports that allows consumers to send requests to opt out and delete their personal information.” The AG encouraged the tech industry to develop and adopt user-enabled global privacy controls for mobile operating systems to enable consumers to stop apps from selling their data.

    As previously covered by InfoBytes, the CCPA was enacted in 2018 and took effect January 1, 2020. The California Privacy Protection Agency is currently working on draft regulations to implement the California Privacy Rights Act, which largely became effective January 1, to amend and build upon the CCPA. (Covered by InfoBytes here.)

    Privacy, Cyber Risk & Data Security State Issues State Attorney General California CCPA Compliance Opt-Out Consumer Protection CPRA

  • California fines cosmetics chain for privacy violations

    Privacy, Cyber Risk & Data Security

    On August 24, the California attorney general announced that following an investigative sweep into online retailers, it entered into a $1.2 million settlement with a cosmetics chain for its alleged failure to disclose to consumers that it was selling their personal information, failure to process user requests to opt-out of such sale via user-enabled global privacy controls, and failure to cure such violations within the 30-day period allowed by the California Consumer Privacy Act (CCPA). The action reaffirms the state’s commitment to enforcing the law and protecting consumers’ rights to fight commercial surveillance, AG Bonata said, emphasizing that “today’s settlement sends a strong message to businesses that are still failing to comply with California’s consumer privacy law. My office is watching, and we will hold you accountable. It’s been more than two years since the CCPA went into effect, and businesses’ right to avoid liability by curing their CCPA violations after they are caught is expiring. There are no more excuses. Follow the law, do right by consumers, and process opt-out requests made via user-enabled global privacy controls.”

    According to a complaint filed in California Superior Court, third parties monitored consumers’ purchases and created profiles to more effectively target potential customers. The company’s arrangement with these third parties constituted a sale of consumer personal information under the CCPA, therefore triggering certain basic obligations, including telling consumers that it is selling their information and allowing consumers to easily opt-out of the sale of their information. According to the complaint, the company failed to take any of these measures.

    Under the terms of the settlement, the company is required to pay a $1.2 million penalty and must disclose to California customers that it sells their personal data and provide a mechanism for consumers to opt out of a sale of their information, including through user-enabled global privacy controls like the Global Privacy Control (GPC). Additionally, the company must ensure its service provider agreements meet CCPA requirements and provide reports to the AG related to its sale of personal information, the status of its service provider relationships, and its efforts to honor the GPC.

    The press release also announced that notices were sent to several businesses alleging non-compliance concerning their failure to process consumer opt-out requests made via user-enabled global privacy controls. The AG reiterated that under the CCPA, “businesses must treat opt-out requests made by user-enabled global privacy controls the same as requests made by users who have clicked the “Do Not Sell My Personal Information” link. Businesses that received letters today have 30 days to cure the alleged violations or face enforcement action from the Attorney General.” 

    Privacy, Cyber Risk & Data Security State Issues Courts CCPA California Enforcement Settlement State Attorney General Opt-Out Third-Party

  • California AG publishes CCPA FAQs

    Privacy, Cyber Risk & Data Security

    The California attorney general recently published a set of frequently asked questions providing general consumer information on the California Consumer Privacy Act (CCPA). The CCPA—enacted in June 2018 (covered by a Buckley Special Alert) and amended several times—became effective January 1. Final proposed regulations were submitted by the AG last month as required under the CCPA’s July 1 statutory deadline (covered by InfoBytes here), and are currently with the California Office of Administrative Law for review. The FAQs—which will be updated periodically and do not serve as legal advice, regulatory guidance, or as an opinion of the AG—are intended to provide consumers guidance on exercising their rights under the CCPA.

    • General CCPA information. The FAQs address consumer rights under the CCPA and reiterate that these rights apply only to California residents. This section also clarifies the definition of “personal information,” outlines businesses’ compliance thresholds, and states that the CCPA does not apply to nonprofit organizations and government agencies. The FAQs also remind consumers of their limited ability to sue businesses for CCPA violations and details the conditions that must be met before a consumer may sue a business for a data breach. The FAQs remind consumers that if they believe a business has violated the CCPA, they may file a complaint with the AG’s office.
    • Right to opt-out of sale. The FAQs answer common questions related to consumers’ requests for businesses not to sell their personal information. The FAQs provide information on the steps for submitting opt-out requests, as well as explanations for why a business may deny an opt-out request. It also address circumstances where a consumer receives a response from a service provider that says it is not required to act on an opt-out request.
    • Right to know. The FAQs discuss a consumer’s right to know what personal information is collected, used, shared, or sold, and clarifies what consumers should do to submit requests to know, how long a business may take to respond, and what steps should be taken if a business requests more information, denies a request to know, or claims to be a service provider that is not required to respond.
    • Required notices. The FAQs outline the disclosures that businesses must provide - i.e., the “notice at collection” and privacy policy. It also discusses the common places where notices at collection and privacy policies are located.
    • Request to delete. The FAQs address several questions related to consumers’ right to delete personal information, including how to submit a request to delete, businesses’ responses to and denials of requests to delete, and why a debt collector may make an attempt to collect a debt or a credit reporting agency may provide credit information even after a request to delete has been made.
    • Right to non-discrimination. Consumers are reminded that a business “cannot deny goods or services, charge. . .a different price, or provide a different level or quality of goods or services just because [a consumer] exercised [his or her] rights under the CCPA.”
    • Data brokers. The FAQs set forth the definition of a data broker under California law and outline steps for consumers interested in finding data brokers that collect and sell personal information, as well as measures consumers can take to opt-out of the sale of certain personal information.

    Privacy/Cyber Risk & Data Security State Issues CCPA California State Attorney General Opt-Out Disclosures

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