Hundreds of lawyers and several privacy regulators from California, Washington State, Oregon, Colorado, Connecticut, and the Federal Trade Commission gathered in Los Angeles last week for the second annual California Lawyers Association Privacy Summit (“Summit”). Among many engaging sessions on pressing topics, the panels with privacy regulators stood out discussions on enforcement priorities and administrative fines and injunctions, along with punchy and newsworthy statements – including that they are “plotting” and that considering the typical investigation presents “hundreds or thousands of violations,” potential fines are “significant.”

Perhaps even more newsworthy is that due to a California Court of Appeal order laid down as the Summit wound down on Friday, the stay in enforcement of the CCPA regulations was lifted. This happened as many companies were treating March 29, 2024, the end of the stay period, as the effective and enforcement date of regulations promulgated under the CPRA’s amendments by the California Privacy Protection Agency. The appeals order also nullifies the year delay in effectiveness of issued CCPA regulations that the trial court had required, making almost certain that CCPA regulations on risk assessments, cybersecurity assessments, and automated decision-making and profiling will be promulgated and in effect sometime this year, perhaps as early as Q2 or Q3.

Will 2024 be the year of privacy enforcement? In view of signaling from California regulators and those in other jurisdictions, and in view of several upcoming effective dates and regulatory deadlines, ongoing enforcement by regulators in California and beyond, and an impending uptick in privacy enforcement, it just might be. Stay tuned for future posts on these issues. Keep reading for more detailed takeaways regarding the Summit.

Continue Reading Potential CCPA Fines “Significant”, California AG’s Office “Plotting” and Other Takeaways From Privacy Regulators during Privacy Summit in Los Angeles

On Friday, February 9, the Court of Appeal of the State of California sided with the California Privacy Protection Agency (“CPPA” or “Agency”), finding that a California Superior Court judge erred when he issued an order staying the Agency’s enforcement of the regulations promulgated pursuant to the CPRA’s amendments to the CCPA until March 29, 2024. As a result of the Court of Appeal’s order, the previously delayed regulations go into effect as of Friday, February 9, and any future regulations promulgated by the Agency – including the forthcoming regulations on cybersecurity and risk assessments, and automated decision-making technology – will not be subject to a future delay.

The order was announced as the second annual California Lawyers Association Privacy Summit in Los Angeles was wrapping up on Friday afternoon. A number of California regulators were in attendance at the event, including CPPA Executive Director Ashkan Soltani, Deputy Director of Enforcement Michael Macko, and Stacy Schesser, Supervising Deputy Attorney General for the Privacy Unit in the Consumer Protection Section.

Executive Director Soltani provided remarks while Deputy AG Schesser and Deputy Director Macko spoke on a panel together. Among the enforcement priorities announced by the regulators, including a focus beyond front-end, public-facing compliance, perhaps the punchiest statement from the Summit came from Deputy AG Schesser during a Thursday morning session: “We are plotting.”

Stay tuned for more on this from Privacy World in the coming days, and buckle up!

Last week, California Attorney General Rob Bonta announced an investigative sweep of providers of streaming services to determine whether these businesses are complying with California Consumer Privacy Act (“CCPA”) opt-out requirements for businesses that sell or share consumer personal information.

“From watching live sporting events to blockbuster movies, families increasingly use streaming platforms for entertainment, and we must make sure that their personal information is protected. Today, we are taking a close look at how these streaming services are complying with requirements that have been in place since 2020,” said Attorney General Bonta.

Continue Reading California Attorney General Announces Industry Investigative Sweep into CCPA Compliance

On March 29, 2023, the California Office of Administrative Law (OAL) approved the regulations implementing the California Consumer Privacy Act (CCPA). The regulations were approved by the California Privacy Protection Agency (CPPA) during its February 3rd meeting (see our report here) and filed with the OAL on February 14, 2023. The regulations are effective as of March 29, 2023. As soon as they are processed through the OAL, the CPPA will post the officially final regulations here.

The March 29th regulations are the first substantive regulations produced by the CPPA but are not complete. On February 10, 2023, the CPPA invited comments from the public on Cybersecurity Audits, Risk Assessments, and Automated Decision making as required by CCPA (Cal Civ Code § 1798.185(a)(15)-(16)). Comments were due on March 27. (See Privacy World’s discussion of these topics here, here and here.)

Meanwhile, on March 30th, the California Chamber of Commerce filed a lawsuit in Sacramento Superior Court against the CPPA and the California Attorney General. The CalChamber wants complete and final regulations and prohibitions on any civil or administrative CCPA enforcement until 12 months after regulations are adopted. The CalChamber asserts that California voters provided a one-year period for businesses to comply with CCPA, noting that the regulations approved on March 29th are an “incomplete set of regulations”. The CalChamber wants the court to order the CCPA to “adopt final regulations and abide by the timelines for enforcement that were approved by the voters.” No doubt businesses covered by CCPA would welcome the clarity of final regulations and assurance that CCPA enforcement will be delayed. Stay tuned for more on the next round of rule-making.

With much less hoopla, Iowa Governor Kim Reynolds signed Iowa’s comprehensive privacy law on March 28, 2023, noting that Iowa is the sixth US state to enact a general privacy law. Click here for our prior coverage on what we dubbed the Iowa Privacy Law, which goes into effect on January 1, 2025.

A busy end to March, indeed.

2022 saw cases continue to be filed under the California Consumer Privacy Act (“CCPA”), although perhaps reflecting the increasing reliance of the plaintiffs’ bar on negligence and tort-based privacy claims concerning a defendant’s alleged failure to maintain “reasonable security,” the number of cases of CCPA based claims declined. Read on for Privacy World’s highlights of the year’s most significant events concerning the CCPA, as well as our predictions for what 2023 may bring.

Background

The CCPA went into effect on January 1, 2020, with the vast majority of its provisions applying to entities that qualify as “businesses.”

As a recap, what entities qualify as a business under the CCPA? The statute defines a business as a for-profit, private entity that (1) collects “personal information”, (2) determines the purposes and means of processing that personal information, (3) does business in California, and (4) meets certain revenue thresholds (>$25 million global gross revenue annually) and/or data collection/selling/sharing thresholds.

In addition to imposing numerous compliance obligations* on businesses, CCPA covered businesses are also subject to the law’s limited private right of action for certain security breaches.

*While the majority of this post focuses on the private right of action and enforcement-related issues, for those interested in the CCPA’s compliance obligations, effectiveness of the California Privacy Rights Act (“CPRA,”* which substantially amends the CCPA and became effective as of Jan. 1 this year), applicability of the CCPA to human resources and business-to-business data, and information on other state privacy laws, please see our recent post Are You Ready for the 2023 Privacy Laws? *References to CPRA in the remainder of this article mean the CCPA as amended by the CPRA, unless otherwise indicated.

Back to the private right of action, Section 1798.150(a)(1) of the CCPA provides a private right of action to “[a]ny consumer whose nonencrypted and nonredacted personal information … is subject to an unauthorized access and exfiltration, theft, or disclosure” due to a business failing to satisfy “the duty to implement and maintain reasonable security procedures and practices….” (emphasis supplied).

Damages available for a private right of action under Section 1798.150(a)(1) include a statutory amount of between $100 and $750 “per consumer per incident or actual damages, whichever is greater”, as well as injunctive or declaratory relief and “any other relief the court deems proper” (emphasis supplied).

CCPA Litigation Activity in 2022

Since the CCPA came into effect, nearly 300 cases have been filed by plaintiffs alleging violations of the statute.  The majority of these have been filed in California federal court (Northern and Central Districts of California being the most favored jurisdiction for such filings), with some also being brought in California state court and in other jurisdictions.

Although the number of CCPA filings declined from 2021, this may be due to the plaintiffs’ bar shifting towards alleging negligence and tort-based privacy claims in the wake of a data event.  This can be explained in part that such claims typically (although not always) are less burdensome to plead for them to survive past the motion to dismiss stage.  By contrast, it appears that based on at least rulings thus far courts have attempted to narrowly construe the CCPA’s limited private right of action.

Courts have consistently dismissed CCPA claims when it is clear from the face of the complaint that Plaintiff’s allegations do not concern a security breach as required to plead a civil cause of action under the CCPA.  Additional rulings this year reinforced the temporal requirements of the statute (that it must involve conduct arising as of the CCPA’s date of enactment, not before) and that the CCPA could not be relied upon by a defendant as a basis for refusing to comply with its discovery obligations in litigation.  Although many CCPA litigations involve software based claims and the tech industry in the wake of a data breach, healthcare and financial services entities, among others, have also been targeted.

CCPA Claims, Article III standing and Settlement Activity

As longtime readers of the blog are aware, Article III standing in the context of data privacy cases is in a constant state of flux—particularly in the Ninth Circuit.

When a CCPA claim is asserted in federal court, it must meet that “irreducible minimum,” as it is frequently described.  Article III standing consists of 1) suffering some actual or threatened injury; 2) fairly traceable to the defendant; which 3) is likely to be redressed by a favorable decision.  The injury must be concrete, rather than abstract, and particularized, meaning that it affects the plaintiff in a personal and individual way.  Spokeo, Inc. v. Robins, 578 U.S. 330, 339 (2016).  But as the Supreme Court held in 2021, “an injury in law is not an injury in fact,” and a plaintiff must do more than show a bare statutory violation for a claim to exist. TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2205 (2021).

In Kirsten, 2022 WL 16894503, the Central District of California addressed a defendant’s contention that a plaintiff lacked standing to pursue a CCPA claim, among others, because they could not fairly trace instances of identity theft, fraudulent credit card charges, and inability to access online accounts to the data breach at issue.  The court rejected the defendant’s argument, holding instead that past injury from misappropriated personal information gave rise to a substantial risk of threatened injury in the future.  Particularly notable is the court’s premising standing both on the actual injuries the plaintiffs experienced and the injuries they might experience in the future.

In Hayden v. Retail Equation, Inc., 2022 WL 2254461 (reconsidered and vacated in part on other grounds), the Central District of California addressed the specific requirements necessary to give rise to an injury under the CCPA.  Plaintiffs, retail consumers, sued a variety of retailers for their use of a “risk scoring” system that collected and shared individualized personal data with a vendor in order to assess the risk of fraud when a consumer attempted a product return or exchange.

Plaintiffs sued under Cal. Civ. Code § 1798.150(a), which required them to show that “nonencrypted and nonredacted personal information” was “subject to an unauthorized access and exfiltration, theft, or disclosure as a result of the business’s violation of the duty to implement and maintain reasonable security procedures and practices appropriate to the nature of the information to protect the personal information.”  The Court found that Plaintiffs had not asserted a claim under the CCPA because the disclosure of their information was not the result of a failure to implement and maintain reasonable security procedures and practices; rather, it was “a business decision to combat retail fraud.”  Plaintiffs’ failure to allege a violation of specific duties under the CCPA, as opposed to a more generalized complaint about the misuse of their data, could not support their claim.  The Hayden court also found that non-California residents lacked standing to bring suit under the CCPA.

The most significant CCPA settlement of 2022 was the $350 million T-Mobile settlement to resolve multidistrict litigation brought by T-Mobile customers whose data was allegedly exposed in a 2021 data breach.  In August 2021, T-Mobile disclosed that it had been the victim of a cyberattack that resulted in the compromise of some current, former and prospective customers’ SSN, name, address, date of birth and driver’s license/ID information the “Data Event”).  By T-Mobile’s account, no “customer financial information, credit card information, debit or other payment information” was exposed in the attack.  Nevertheless, over 40 putative class action claims were filed seeking damages for the improper disclosure of Plaintiffs’ personal information.

On July 22, 2022, Plaintiffs in the T-Mobile case filed an unopposed motion for preliminary approval of a proposed settlement to the class.  As part of the settlement, T-Mobile agreed to fund a non-reversionary $350 million settlement fund to pay class claims for out-of-pocket losses or charges incurred as a result of identity theft or fraud, falsified tax returns, or other alleged misuse of a class member’s personal information.  The settlement fund will then make payments to class members on a claims-made basis with a $25,000 aggregate claims cap per class member.  The proposed settlement also contemplates attorneys’ fees of no more than 30% of the settlement fund, approximately $105 million, and $2,500 individual service awards to class representatives.

2022: Continued Enforcement Activity by California OAG

As we predicted at the end of last year, 2022 saw continued enforcement activity at the state level. Headlines were ablaze in August with California’s Office of the Attorney General announcing its first settlement of a CCPA enforcement action.

Readers of the blog will know that the CA OAG’s CCPA enforcement efforts started in July 2020. While numerous cookie DNS and GPC cases were initially (and quietly) settled by the OAG without monetary penalty or public settlements, that all changed in August 2022 with the OAG announcing its required payment of $1.2 million from a retailer to settle claims of alleged CCPA violations.

The settlement marks a new era of CCPA enforcement in which real repercussions, including monetary penalties, may be imposed. In addition to the settlement, the OAG released “illustrative examples” of other non-public enforcement cases, including the types of violations, remediation activities carried out by the alleged violators, and the alleged violators’ type of business/industry (which included a number of industries that surprised many who thought they were perhaps not on the OAG’s radar for CCPA compliance, such as B2B-focused businesses and companies that are largely (but not fully) exempt from the CCPA, such as healthcare businesses and financial and insurance businesses.  For detailed analysis of the OAG’s settlement, see our blog post here.

Litigation and Enforcement in 2023 and Beyond

Litigation

The CPRA’s amendments to the CCPA brought some changes to the private right of action for certain security breaches, namely an expansion of the private right of action where a breach involves data in the form of an email address in combination with a password or security question and an answer that would permit access to an account. In addition, the CPRA’s amendments provide that that remediation of vulnerabilities post-breach are an insufficient cure to preclude statutory damages.

There is not otherwise a private right of action for non-security breach related violations under the CPRA; however, the CPRA opens the possibility of enforcement by all California county district attorneys and the four largest city district attorneys (though that is up for debate). In addition, despite the clarity that the private right of action is limited to certain types of security incidents, it is conceivable that an incomplete or inaccurate response to a consumer request might also give rise to an independent deception claim, and plaintiffs’ lawyers are expected to otherwise test the scope of the limitation on private consumer and class action relief. There is no private right of action for violations of the Virginia Consumer Data Protection Act (“VCDPA”), Colorado Privacy Act (“CPA”), Utah Consumer Privacy Act (“UCPA”), or Connecticut Act Concerning Personal Data Privacy and Online Monitoring (referred to as the “CTPA” herein). Put another way, this means there is not a private right of action for security breaches or security-breach related violations under those laws.

Enforcement

The enforcement risk will certainly increase under the CPRA in 2023 with the California Privacy Protection Agency, or CPPA, enforcing the CPRA alongside the OAG starting on July 1, 2023. In addition to California, Virginia’s privacy law came into effect and was enforceable as of January 1, and privacy laws in Colorado, Connecticut, and Utah will become effective throughout the year (see chart below).

  CPRA VCDPA CPA UCPA CTPA
Effective Date Jan. 1, 2023 Jan. 1, 2023 July 1, 2023 Dec. 31, 2023 July 1, 2023
Enforcement Date July 1, 2023 Jan. 1, 2023 July 1, 2023 Dec. 31, 2023 July 1, 2023
Enforcement Details 30-Day Notice and Cure Provision will remain in effect indefinitely for security breach violations only. 30-Day Notice and Cure Provision will remain in effect indefinitely. 60-Day Notice and Cure Provision will remain in effect until January 1, 2025 30-Day Notice and Cure Provision will remain in effect indefinitely. 30-Day Notice and Cure Provision will remain in effect until December 31, 2024.

Enforcement of the CPRA is delayed until July 1, 2023 and, unlike the CCPA between its effective and enforcement dates, there is an explicit grace period between January 1 and July 1, 2023. However, the CCPA’s provisions (without the CPRA’s amendments) will remain effective and enforceable between January 1 and July 1, and the required 30-day cure period no longer exists. Importantly, this means that the full scope of the CCPA also currently applies to HR and B2B data, and there is no delay in enforcement with respect to the same.

Under the CPRA, both agencies can seek civil penalties of $2,500 for each violation or $7,500 for each intentional violation or violations involving the data of minors. Violations may be potentially calculated based on each applicable piece of data or consumer, and, thus, exposure could be substantial. The existing requirement in the CCPA to provide notice of violation and give a 30-day cure period before bringing an enforcement action is eliminated by the CPRA, but the law permits the agencies to consider good faith cooperation efforts by the business when calculating the fine, and prosecutorial discretion is not limited. Further, CPPA actions are subject to a probable cause hearing prior to commencement of an administrative enforcement proceeding.

In Virginia, Utah, and Connecticut, the Attorney General has exclusive enforcement authority. The Virginia Attorney General may seek injunctive relief and civil penalties of $7,500 per violation. In Colorado, the state Attorney General or District Attorneys may bring an action for injunctive relief and civil penalties under the Colorado Consumer Protection Act, which provides for civil penalties of $500 per violation, actual damages, or three times actual damages if bad faith is shown. In Utah, the Attorney General may bring an action for actual damages to consumers and civil penalties of up to $7,500 per violation. In Connecticut, the Attorney General may treat a violation of CTPA as an unfair trade practice under the Connecticut Unfair Trade Practices Act (“CUTPA”); however, the private right of action and class action provisions of CUTPA dot not extend to violations of the CTPA. Nevertheless, remedies available for violations of CUTPA include restraining orders; actual and punitive damages, costs, and reasonable attorneys’ fees; and civil penalties of up to $5,000 for willful violations and $25,000 for restraining order violations.

However, like the CCPA (but unlike the CPRA), the respective Attorneys General of Virginia and Utah must provide a controller or processor with 30 days’ written notice of any violation of the VCDPA/UCPA, specifying the provisions that the Attorney General alleges have been violated. In Virginia and Utah, a controller or processor can avoid statutory damages if, within this 30-day cure period, it cures the noticed violation and provides the Attorney General with an express written statement that the alleged violations have been cured and that no further violations will occur. Under Connecticut and Colorado’s laws, their respective AGs must provide violators with notice of alleged violations and an opportunity to cure any such violations within a 60-day period following delivery of the notice. The requirement to allow for a cure period in Colorado sunsets on January 1, 2025 (though, the AG would almost certainly have prosecutorial discretion to allow for a cure). In Connecticut, the cure requirement becomes discretionary on January 1, 2025, as well.

Check back often for our continued updates on privacy litigation and enforcement trends and updates.  Privacy World will be there to keep you in the loop.

California Attorney General Rob Bonta announced today an investigative sweep of mobile apps, focused on popular apps in the retail, travel, and food service industries that fail to comply with the California Consumer Privacy Act (CCPA). According to a press release, the sweep is focused on apps that allegedly fail to comply with consumer opt-out requests or do not offer any mechanism for consumers who want to stop the sale of their data. The press release also highlights enforcement in relation to handling of agent requests, namely through an agent service created by Consumer Reports called “Permission Slip.”

Continue Reading California AG Announces CCPA Compliance Sweep of Mobile Apps ahead of Data Privacy Day

A federal court recently sanctioned defendants for spoilation of evidence in litigation. In doing so, the Court rejected the Defendant’s argument that they changed their data settings in good faith to align with the California Consumer Privacy Act of 2018 (“CCPA”) and the International Standard of Operation Compliance (“ISO”). 2022 U.S. Dist. LEXIS 178233 (N.D. Ohio Sep. 29, 2022). Read on to learn more.

Continue Reading Federal Court Sanctions Company for Spoilation of Evidence Over Arguments Data Settings Changed to Comply with CCPA and ISO Requirements

On August 24, 2022, California Attorney General Rob Bonta issued a press release announcing the first public settlement by the Office of the Attorney General (OAG) involving alleged violations of the CCPA. The settlement involves a judicial judgment, civil penalties and ongoing monitoring and reporting. The use of noncompliance letters to cajole companies into compliance over many months now appears to be a closed chapter in the CCPA saga. Season 2 promises more drama, more action and more money. Entertaining unless you are the next target!

Continue Reading The Cookie Crumbles – Lessons from First California Consumer Privacy Act (CCPA) Monetary Settlement

In a record-setting proposed settlement filed last week, T-Mobile has agreed to pay $350 million and boost its data security by $150 million over the next two years to resolve multidistrict litigation brought by T-Mobile customers whose data was allegedly exposed in a 2021 data breach.  Read on for the terms of the settlement, which may serve as a model in other high stakes data security cases going forward.

Recall that in August 2021, T-Mobile disclosed that it had been the victim of a cyberattack that resulted in the compromise of some current, former and prospective customers’ SSN, name, address, date of birth and driver’s license/ID information the “Data Event”).  By T-Mobile’s account, no “customer financial information, credit card information, debit or other payment information” was exposed in the attack.  Nevertheless, over 40 putative class action claims were filed seeking damages for the improper disclosure of Plaintiffs’ personal information.  In December 2021, the Judicial Panel on Multidistrict Litigation transferred and centralized the putative class actions into the MDL standing before the Western District of Missouri.

Continue Reading T-Mobile Agrees in MDL to Record Setting $350 Million Data Breach Settlement to Resolve CCPA and Other Privacy Claims

As we covered at the end of last month, the California Attorney General is targeting loyalty programs in a recent enforcement sweep alleging noncompliance with the California Consumer Privacy Act (CCPA). CPW’s Kyle Dull, a Senior Associate in Squire Patton Boggs Data Privacy, Cybersecurity & Digital Assets Practice, was recently interviewed by Law360 concerning businesses’ data practices in the operation of their loyalty programs. You can check out the Law360 article and his comments here. From the article: Continue Reading Loyalty Program CCPA Compliance: Kyle Dull Talks to Law360