Updated November 30, 2020.
California is the physical frontier of America, where the continent plunges into the Pacific.
With the California Consumer Privacy Act (CCPA), it is now also the frontier of data privacy law in the US.
In this article, we take a close look at the CCPA and how Cookiebot consent management platform (CMP) helps your website become compliant.
CCPA compliance with Cookiebot CMP
Cookiebot CMP is a tool that automatically scans your website, finds all cookies and similar tracking technology, and then enables compliance with both the CCPA and the EU’s GDPR.
Cookies (especially those from third parties embedded through plugins) can harvest personal information such as names, physical addresses, IP addresses, location data, but also sensitive personal data such as religious convictions, political opinions and/or sexual orientation.
The CCPA requires that businesses enable California residents to opt out of having their personal information sold to third parties, as well as disclosing what data has already been collected and deleting it, if consumers request it.
Cookiebot CMP enables compliance with the CCPA with a specific configuration that detects whether a user is from California, and then displays the required Do Not Sell My Personal Information link on the website’s cookie declaration (as seen below).
This is how the Cookiebot CMP CCPA solution looks like for your end-users:
Cookiebot CMP also supports multiple compliance solutions on the same website, so that your website will display different banners depending on where your visitors come from.
This way, visitors from the EU will be presented with a GDPR-compliant cookie banner asking for their prior consent, and visitors from California will meet the CCPA compliant cookie declaration with information on what data is being collected and a clear way for them to opt out of having their personal information sold to third parties.
Try Cookiebot CMP free for 30 days… or forever if you have a small website.
The California Privacy Rights Act (CPRA) is passed into law
In the General Election on November 3, 2020, the new state-wide California Privacy Rights Act (CPRA) was passed into law by a majority of Californians.
The new California Privacy Rights Act (CPRA) took full effect on January 1, 2023, and will be enforced from July 1, 2023. Data collected, processed and shared from January 1, 2022, is liable under the CPRA’s 12-month look-back period.
The California Privacy Rights Act (CPRA) expands upon the existing CCPA data privacy regime by creating new and modified rights for California residents, establishing a new government enforcement agency (CPPA) and tightening requirements for how businesses are allowed to use the personal information of consumers in California.
CCPA compliance checklist
If you’re wondering what it takes to be compliant with the California Consumer Privacy Act (CCPA), here is a checklist for your business and its website.
The list is non-exhaustive, but covers the most central points of requirements in the CCPA.
- Feature a Do Not Sell My Personal Information link on their website that users can use to opt-out of third party data sales.
- Provide a notice at or before the point of collection informing the consumer of the categories of personal information that the company collects and for what purpose.
- React to an opt-out request within 15 days by stopping further selling and notifying all parties to whom it has sold the personal information in the previous 90 days.
- Obtain opt-in consent from minors age 13 to 16 before selling their personal information, and opt-in consent by parents or legal guardians from consumers under the age of 13.
- Provide consumers free of charge records of the personal information collected in the past 12 months (including sources, commercial purposes and categories of third parties with whom it has been shared) if a consumer requests disclosure or deletion.
- Respond within 10 days of receiving requests for disclosure or deletion with information on how the request will be processed. Substantive responses must be given to the consumer within 45 days of receiving a verified request.
- Include two steps for a deletion request, whereby the consumer can submit the request and subsequently agree to the personal information to be deleted.
- Only offer financial incentives (e.g. different prices, rates and quality) for goods and services if the differences are reasonably related to the value provided to the business by the consumer’s data.
- Refrain from discriminating based on a consumer’s choice to exercise their rights to opt-out, request disclosure or deletion.
- a description of the rights (opt-out, disclosure, deletion) and how to exercise these rights.
- a list of the categories of personal information that the business collects, sells and discloses, and to update this list every 12 months.
- a toll-free phone number or, if a business operates solely online, a link on the website through which the consumer can exercise their rights.
CCPA – the right to opt out
The CCPA gives the consumer the right to demand a business not to sell their personal information to third parties (CCPA; 1798.120.) If such a request is received, the business is prohibited from selling the user’s personal information.
CCPA’s definition of “personal information”
Personal information is defined in the CCPA as“information that identifies, relates to, describes or is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household”.
Personal information in the CCPA includes:
- Identifiers such as cookies, beacons, pixel tags, telephone numbers, IP addresses, account names…
- Biometric data such as face, retina, fingerprints, DNA, voice recordings, health data…
- Geolocation data such as location history via devices,
- Internet activity such as browsing history,
- Plus data regarding personal characteristics, behavior, religious or political convictions, sexual preferences and so on.
“Opt out” simply means that a consumer can choose to direct a business to stop the sale of their personal information to a third party.
Compliance with the right to opt out
A business must provide a clear link on their website with the title “Do Not Sell My Personal Information” (CCPA; 1798.135.a.1).
This link must not require the consumer to create an account in order to direct the business to not sell their data.
If the consumer is under the age of 13, businesses are not allowed to sell their personal information unless first authorized by parents or legal guardians.
If the consumer is between the age of 13 and 15, businesses are not allowed to sell their personal information unless they have first opted in.
The CCPA prohibits discrimination against consumers based on their choice to exercise their rights.
This means that if a consumer chooses to opt out of the selling of their data to third parties, or if they request their data deleted, a business is not allowed to then e.g. charge different prices for services, provide different levels or quality of services or deny the consumers services (CCPA; 1798.125.a).
However, the CCPA does authorize businesses to offer financial incentives, e.g. different prices and quality of service, for the collection, sale or deletion of personal information, if the differences are reasonably related to the value provided to the business by the consumer’s data (CCPA; 1798.125.a.1.b).
CCPA – the right to request disclosure
The CCPA grants the consumer “the right to request that a business that collects a consumer’s personal information disclose to that consumer the categories and specific pieces of personal information the business has collected” (CCPA; 1798.100.a).
A consumer has the right to access and obtain a copy of the personal information that has been collected on them by a business in the past 12 months.
The CCPA specifies that consumers have the right to request the disclosure of (CCPA; 1798.110/115):
- the categories and the specific pieces of personal information being collected.
- the categories of sources from which the information is collected.
- the purpose for collecting or selling personal information.
- the categories of third parties with whom the business shares personal information.
Compliance with “the right to request disclosure”
The request to disclosure has to be verifiable, before the business has to provide the information (CCPA; 1798.100.c).
If verifiable, a business must promptly take steps to disclose and deliver, free of charge, the personal information to the consumer (CCPA; 1798.100.d).
The business must make available two or more methods for submitting requests (CCPA; 1798.130.a.1), and disclose, free of charge, the required information within 45 days of receiving the verifiable request (CCPA; 1798.130.a.2).
- A description of the rights to (request disclosure, deletion) and how to exercise these right.
- List of categories of personal information that the business collects, sells and discloses. This list must be updated every 12 months.
- Maintain a toll-free phone number and/or a webpage for exercising this right.
CCPA’s definition of “business”
In the CCPA, a business is an umbrella term that includes both companies, corporations, associations, partnerships or any other legal entity that is organized or operated for the profit or financial benefit of its shareholders or other owners.
However, to be regarded as a business under the CCPA, a company has to meet at least one of the three following attributes (CCPA; 1798.140.c):
- have an annual gross revenue exceeding $25 million,
- derive 50% or more of its annual revenues from selling consumers’ personal information,
- buy, receive, sell, or share the personal information of 50,000 or more California residents, households or devices a year.
This means that if you have a small business that makes under $25 million a year, or if less than half of your business income relies on selling personal information to third parties, or if your business does not sell more than fifty-thousand Californians’ personal information, the CCPA does not apply to you.
However, if your business shares common branding with a company that meets one of the above mentioned thresholds, your business will be subject to CCPA compliance.
Common branding means that a business shares a name, service mark or trademark with another business.
CCPA – the right to request deletion
The CCPA grants the consumer “the right to request that a business delete any personal information about the consumer which the business has collected from the consumer” (CCPA; 1798.105.a).
It specifies that “a business that collects personal information has to disclose the consumer’s rights to request the deletion of the consumer’s personal information” (CCPA; 1798.105.b).
CCPA’s definition of “collection”, “sale”, and “deletion”
The CCPA defines collection as anything that relates to access of personal information, actively or passively.
In other words, intentional and passive collection of personal information, such as IP addresses or other online identifiers, counts as collection.
Sale/selling is defined as any sharing, disclosure or sale of personal information with a third party in exchange for money or other value.
Deletion is pretty straight forward. It means permanent erasure of personal information as requested by the consumer.
A business has to make it clear to the consumers that they have the right to request their data to be deleted. It must describe this right and how to exercise it.
CCPA – household data
One of the main areas of ambiguity in the California Consumer Privacy Act have to do with the definition of data, specifically the two categories of “individual data” and “household data”.
Household data is not itself defined in the CCPA.
But the final CCPA regulations, approved and in effect since August 14 2020, define household as: a person or group of people who
- reside at the same address,
- share a common device or the same service provided by a business,
- are identified by the business as sharing the same group account or unique identifier.
The CCPA regulations also clarify if a household does not have a password-protected account, the business is not required to comply with a request for access or deletion of personal information, unless the following conditions are met:
1. All consumers in the household jointly request access to specific pieces of personal information.
2. All members of the household can be individually verified.
3. All members making the request are still members of that household.
CCPA vs GDPR, California & Europe compared
So how does the California Consumer Privacy Act fare against its European equivalent, the General Data Protection Regulation that came into effect in May 2018?
Reminder: what is the GDPR?
The General Data Protection Regulation (GDPR) is a European law that has global jurisdiction, in the sense that it protects the personal information and user data of all European citizens, regardless of where in the world the website or business handling the EU user data is located.
The crux of GDPR is that websites and businesses must obtain clear and unambiguous consent from its users prior to any processing of personal data, after specifying all types of cookies and other tracking technology present and operating on its pages. It also requires that they safely and confidentially document each user consent.
The scope of GDPR is large and deals with all types of data (i.e. not only personal information), how companies and organizations have to secure transparency and document user consent.
Consent vs request: the main differences between CCPA and GDPR
The most clear and consequential distinction between the European and Californian laws are at the point of consent.
The GDPR grants the user the right of consent, meaning that their data cannot be used until the user gives their consent to do so.
This consent can be given in different ways, but the crux of it is that under the GDPR prior consent is demanded by law.
Now, in the CCPA nothing of the sort is stated.
A business does not need prior consent to handle personal information, nor does a website need to obtain user consent to sell their data to third parties.
What the CCPA does is to grant the consumer the right to request – either disclosure, deletion, a business to stop selling their information. But this happens after the fact of both collection and sale.
Where the GDPR creates a door for the consumer to lock, the CCPA creates a window for the consumer to open in order to know what of their personal information might already be obtained by a business.
The GDPR is a prevention, whereas the CCPA is a means to transparency and then deletion (of past 12 months data collected).
CCPA enforcement 2020
CCPA regulations and enforcement in effect since August 2020
On August 14, 2020, the final CCPA regulations were approved and took effect immediately.
Enforcement by the Attorney General of the California Consumer Privacy Act (CCPA) has therefore begun.
Battle for a federal US data protection law
Another uncertain element in the enforcement of the CCPA is the possibility that a federal law will be passed and enforced in all of the US.
This could potentially override state-level regulations, such as the CCPA, and create a whole new landscape of higher legal authority.
This could also lead to a weaker nationwide version of stronger state-level laws, like the CCPA.
This is in the interest of Silicon Valley, obviously, who actively lobbied against the CCPA.
The fear of privacy activists and consumer groups, as well as the authors and sponsors of the CCPA, is that a federal law can seem like a victory, in that it ensures uniform law in all of the US, while in fact being a loss on part of the consumers, because these uniform federal laws might settle on a weaker privacy level than the CCPA.
The hopes of privacy activists are also, paradoxically, that a federal law could do better than California’s.
Their hope is that California will be the lower bar upon which a federal privacy law might build, rather than undercut.
As California goes, so goes the nation, as the old American saying puts it.
Or as Alastair Mactaggart said, when visiting Washington to meet with key senators and Trump administration officials on the matter: “California leads, the others follow”.
The grassroots story behind the CCPA
In 1972, California voters amended the California Constitution to include the right of privacy among the “inalienable” rights of all people.
Four decades later, the CCPA (California Consumer Privacy Act, Assembly Bill No. 375) took effect on January 1, 2020.
The California Consumer Privacy Act began as a bottom-up, grassroots initiative by unlikely privacy activists – spearheaded by a millionaire real estate developer, a former CIA analyst, an industry executive and a Pulitzer price-winning journalist, who worked on the Snowden leaks for the Washington Post.
Californians for Consumer Privacy is led by San Francisco real estate developer Alastair Mactaggart, who drafted a ballot initiative on consumer privacy protection to fill the legal void.
“Tell me what you know about me. Stop selling it. Keep it safe”, as Alastair Mactaggart summarized the proposal.
With the revelations of the Facebook/Cambridge Analytica scandal, the California ballot initiative suddenly got a strong wind in its back.
A ballot initiative is a way for the Californian public to legislate bottom-up, by drafting a proposal for a law and securing enough signatures (eight percent of the people who voted in the last gubernatorial election) for the proposal to then become a part of the November general election ballot in that specific state. Voters then have to choose yes or no on the same day that they vote for president or congress.
In the case of the CCPA, Mactaggart spent $3 million of his own money to raise more than 600,000 signatures for the proposal (which was a stronger and tougher version than what would eventually become the CCPA), and thus secured a spot on the general election ballot to be held in November 2018.
Compromised: how the tech industry changed the CCPA
With the threat of a strong privacy law passing with a majority of citizen votes in the November general election 2018, the tech industry started lobbying heavily against the ballot version of the CCPA.
One of the biggest fights between the ballot authors and the tech industry, specifically Facebook, was the so-called private right to action.
It was originally a right that authorized consumers to sue businesses and companies for any violation of the law, not just data breach. The tech industry was very pronounced in its opposition, fearing vast liability risks –
“We support more disclosure in principle, but the stakes are just much higher with the private right of action”, said Will Castleberry, Vice President for state and local policy in Facebook.
Google, Facebook, Verizon, Comcast and AT&T each contributed $200.000 to a committee opposing the proposed ballot measure.
It was also estimated that they would spend around $100 million to campaign against the proposal come the November general election of 2018.
So, the initiative was watered down to only include a private right to action in the case of data breach (unauthorized access, theft etc.).
The CCPA was then drafted by Mactaggart, co-written and sponsored by two democratic lawmakers, raced through the State Legislature, passed unanimously and signed into law by the Governor of California on Thursday June 28, 2018 – all in less than one week.
Its co-author Assemblyman Ed Chau has called it “GDPR light”.
Data is the new oil… if oil was alive
The tech industry is often compared to the oil industry of a hundred years ago – unregulated, monopolous and too powerful.
Data is the new oil, the fuel of the 21st century, they say.
This is an apt comparison in many ways, since both the gold rush and the oil boom of the last centuries began in Southern California. But it leaves out a very important distinction that is critical to keep in mind:
Where oil is an inanimate resource that powers machines; data is the mapping of human behavior that powers digital infrastructures of probability in order to predict and make predictable the experience of being a person.
It is this collection and monetization of our inner and outer lives that has made Silicon Valley a force parallel to nation states in power and wealth.
Where the unregulated oil industry made a few men very rich and as a consequence very powerful, the unregulated tech industry is making a few men very rich and very knowledgeable, and as a consequence immensely more powerful than the oil tycoons of the late century.
This knowledge is the collective behavioral patterns of societies and the private inner lives of billions of people.
The collection and monetization of said knowledge has ushered in the era of surveillance capitalism in which, according to Harvard Business School professor Shoshana Zuboff, “the economic imperatives compel the leading tech companies to enter a collision course with democracy.”
Well, democracy is fighting back.
The CCPA applies specifically to the Golden State, it is not a federal law – but California is also the world’s fifth largest economy and the consensus is that the CCPA will likely mark the standard for privacy rights nationwide and that companies will comply with the CCPA across the U.S.
The CCPA is undoubtably a historic landmark for digital privacy in the U.S.
Google and Facebook are still free to use. With the CCPA, Californian citizens are no longer free for Google to use.
What is the CCPA?
The California Consumer Privacy Act (CCPA) is a state-wide law that governs the collection, sharing and selling of personal information from California residents. It requires business to notify consumers if their PI is collected, to enable consumers to opt out of having their data shared or sold to third parties, as well as making is possible for consumers to access and have deleted already collected PI.
What is personal information under the CCPA?
The CCPA defines personal information (PI) as information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household. This includes names, addresses, social security numbers, driver’s license, passport information, biometric data such as face, retina, fingerprints, DNA, voice recordings, and sensitive information such as religious beliefs, political convictions and sexual preferences.
What does the CCPA say about website cookies?
How can I control cookies on my website?
Cookies are difficult to control, since they often load other third-party cookies that can change on repeated visits. Using a consent management platform can help your website detect all cookies and trackers in operation and control them in a way that makes you compliant with both the CCPA and GDPR.