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CCPA at the Two-Year Mark
Thursday, December 16, 2021

The CCPA has reached the two-year mark. This is a good time for businesses to review the success of their compliance programs, recalibrate for the CCPA’s third year, and gear up for the CPRA’s January 1, 2023 effective date.

Here are a few suggestions:

  1. Privacy Policies. The CCPA requires a business to update the information in its privacy policy or any California-specific description of consumers’ privacy rights at least once every twelve months. If your business has not already done so, now is a good time to review both online and offline data collection practices to ensure privacy policies accurately disclose, at a minimum, the categories of personal information (“PI”) collected in the preceding 12 months, the categories of PI sold in the preceding twelve months, and the categories of PI it disclosed for a business purpose in the last 12 months.

Given the challenges of the last few months, your business may be collecting PI beyond what it currently discloses in its privacy policies. For example, the business may need to update its privacy policies to disclose the collection and use of COVID-19 related screening information, biometric information, or PI collected as a result of remote work situations.

If your business needs to update its privacy policy to reflect additional data collection activities, it will likely need to update its “notice at collection”, including employee and job applicant privacy notices.

  1. Employee training. The CCPA requires that a business ensure all employees handling inquiries about consumer rights, the businesses’ privacy practices, or its compliance with the CCPA are informed of applicable CCPA requirements. Businesses will want to

  • review training programs to ensure they include appropriate CCPA related content;

  • determine whether employee handbooks and manuals have been updated accordingly; and,

  • document that relevant employees have received training.

  1. Reasonable Safeguards. The CCPA does not currently create an affirmative obligation to implement reasonable safeguards for protecting consumer PI; however, it provides a private right of action to consumers whose PI has been involved in a data breach resulting from the business’s failure to implement reasonable security safeguards. With this in mind, your business will want to review whether it has

  • performed an annual risk assessment to identify new or enhanced risks, threats, or vulnerabilities to its systems or the PI it collects or maintains;

  • reviewed and updated its written information security program and data retention schedule;

  • practiced its incident response plan; and

  • updated its vendor management program to address cyber-based risk.

CCPA compliance is an ongoing activity, and these action items are worthy of review at the one-year mark. However, further year-end review might also include

  • an assessment of the business’s website’s accessibility;

  • confirmation that service provider agreements have been amended to satisfy the CCPA; and

  • incorporation of relevant CCPA provisions in new service provider contracts.

Although the CCPA does not mandate implementing reasonable safeguards, this will change effective January 1, 2023. The CPRA, which amends the CCPA, creates an affirmative duty to do so. Businesses should use the next year to identify what constitutes reasonable safeguards for their data and systems, begin implementing those safeguards, update internal policies and procedures as necessary, and train staff.

The CPRA also amends the CCPA disclosure requirements to include information relating to the collection and use of “sensitive personal information”. In addition, California consumers will have the right to limit the business’s use of this information in certain circumstances, similar to the right to opt out of the sale of personal information. In order to comply, businesses may need to revisit and expand their data mapping to capture sensitive personal information.

These are just two examples that necessitate reviewing your business’s data protection program and setting in motion processes to prepare for the CPRA. We will continue to post on steps your business can take in anticipation of January 1, 2023.

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