Insights

Cleaning Up the CCPA Part 2: CCPA Amendments Moving to Governor Newsom's Desk

Firm Thought Leadership
The California Consumer Privacy Act (“CCPA”) is on the move. The CCPA takes effect on January 1, 2020. The California legislature ended its 2019 legislative session on September 13 by passing five out of the six pending bills to amend the CCPA: AB-25, AB-874, AB-1146, AB-1355 and AB-1564 (we previously discussed these proposed amendments in our article here). The California Assembly of Privacy and Consumer Protection Committee introduced these bills addressing several issues with the CCPA, and they are now headed to Governor Newsom’s desk. Governor Newsom will have until October 13 to sign these bills into law.

Below is a summary of the bills passed by the California legislature, awaiting Governor Newson’s signature:

AB-25 exempts employees and contractors from the definition of “consumer” under the CCPA for one year. AB-25 provides a limited exemption from the CCPA, until January 21, 2021, for the collection of personal information about a job applicant, employee, owner, director, officer or contractor to the extent the personal information is collected and used in the context of one of those roles.

AB-874 expands the scope of “publicly available information” that is exempted from the definition of personal information in the CCPA and amends the definition of personal information to include information that is “reasonably capable” of being associated with a consumer or household. AB-874 also clarifies that personal information does not include deidentified or aggregate consumer information.

AB-1146 exempts certain vehicle and ownership information from the CCPA’s right of deletion and right to opt-out. This would allow auto dealers and manufacturers to share car warranty and recall information related to vehicle repairs.

AB-1355 addresses various drafting errors, the scope and application of the CCPA’s Fair Credit Report Act (FCRA) exemption, and the application of the CCPA to business-to-business communications and transactions. AB-1355 ensures that the CCPA does not apply to business-to-business communications and transactions for one year, to prevent an employee, owner, director, officer, or contractor from one business interfering with the due diligence efforts of another business.

AB-1564 revises an existing provision of the CCPA governing the methods that must be made available to consumers to make CCPA-related requests. AB-1564 provides a limited exception for businesses that operate exclusively online to prove only an email address for a consumer to effectuate their CCPA-related requests.

The pending bill that did not advance was AB-846. AB-846 would have clarified that the CCPA does not prohibit loyalty or rewards programs, but the bill was removed from consideration at the request of Senator Jackson on September 12th. AB-846 failed due to industry opposition despite its original sponsor the California Retailers’ Association. Senator Jackson plans to reintroduce the bill next year.

Now that AB-846 has been shelved, it is unclear how the CCPA will treat loyalty and rewards programs in the context of the CCPA’s antidiscrimination provision. Loyalty and rewards programs are offered by grocery stores, drug stores, airlines, and a host of other companies. As the CCPA is currently drafted, the nondiscrimination provision could lead to the end of these types of programs and cause unnecessary litigation. Losing AB-846 means losing needed certainty that the loyalty and rewards programs survive the CCPA without weakening the nondiscrimination provision.

Governor Newsom is expected to sign each of AB-25, AB-874, AB-1146, AB-1355 and AB-1564 into law. These amendments and the last-minute removal of AB-846 from consideration highlight the continuing contention between businesses and consumers to continue to amend the CCPA even after it goes into effect on January 1, 2020. Companies should be on alert for further amendments to the CCPA and other local and state legislation that continues to go into effect into 2020.

 

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