The California legislature will consider technical amendments to the California Consumer Privacy Act (CCPA), S.B. 1121, by August 31, 2018, which is the deadline in the current legislative session for bills to be passed by the legislature.

The proposed amendments to the CCPA include:

  • Clarification that the categories of personal information listed in the CCPA are only potentially personal information. That is, data types such as IP addresses, purchasing histories and geolocation data are no longer deemed personal information per se, but must be associated with a specific consumer or household.
  • Elimination of the conflict requirement with respect to the Gramm Leach Bliley Act (GLBA) and Drivers Privacy Protection Act (DPPA) exemptions. As originally drafted, the CCPA only exempted GLBA and DPPA data where the CCPA was in conflict with those statutes. The proposed amendments would further provide that the GLBA and DPPA exemptions will not apply to the limited private right of action provision.
  • Creation of a new exemption for data under the California Financial Information Privacy Act.
  • Expansion of the Health Insurance Portability and Accountability Act (HIPAA) exemption to include business associates. The proposed amendment would add a new substantive exemption relating to clinical trials that are subject to Federal Policy for the Protection of Human Subjects and follow certain leading clinical practice guidelines.
  • Clarification that the private right of action only applies to violations related to data breaches and not any violations of any other section of the law.
  • Removes the requirement for consumers to notify the Attorney General within 30 days of filing data breach actions.
  • Defers from January 1, 2020 to July 1, 2020 the mandate that the Attorney General draft and adopt the CCPA’s implementing regulations and further provides that the AG may not bring an enforcement action until six months after the publication of final regulations or July 1, 2020, whichever is sooner.

The proposed amendments do not address the narrow definition of the public records exception to the definition of personal information or the Fair Credit Reporting Act exemption.

The CCPA was a response to a proposed ballot initiative which was withdrawn at the eleventh hour. In a letter to California Assembly member Ed Chau last week, Attorney General Xavier Becerra noted five primary concerns with the existing language of the CCPA regarding his office’s role in implementation:

  • Objection to the requirement that the Attorney General’s Office (AGO) is required to provide opinions to “[a]ny business or third party” as well as warnings and an opportunity to cure to a business before the business can be held accountable for a violations of the CCPA.
  • Concern that the civil penalty provisions are likely unconstitutional because they purport to amend and modify the Unfair Competition Law’s civil penalty provisions which were enacted through a ballot initiative.
  • Objection to the requirement that private plaintiffs give notice to the AGO before filing suit.
  • Objection to the unfunded mandate that the AGO conduct rulemaking in this new area within one year.
  • Objection to the limited private right of action.