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New Ballot Initiative Seeks to Redo the CCPA

By Libbie Canter, Lindsey Tonsager & Jayne Ponder on October 10, 2019
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A new ballot initiative would create the California Privacy Rights and Enforcement Act (“CPREA”) and would make several changes to the California Consumer Privacy Act (“CCPA”).

CPREA makes the following changes and additions:

  • California Privacy Protection Agency: This ballot initiative would establish the California Privacy Protection Agency (“CPPA”), which would be comprised of five members appointed by members of the California government. The CPPA would be tasked with adopting rules, appointing a Chief Privacy Auditor who would proactively audit businesses for compliance, and bringing enforcement actions.
  • Additional Disclosures: CPREA would require that businesses tell consumers whether they profile them in certain circumstances (such as where profiling is reasonably expected to have an effect on financial loans or education admissions), together with the “logic involved” in using personal information for such profiling. Additionally, businesses that use personal information for political purposes would also be subject to specific disclosure obligations, including identification of the candidates, committees, or ballot measures for which personal information is used.
  • Amended Definition of Sale: Notably, the CPREA would define “sale” to include transfers of personal information not only for monetary or other valuable consideration, but also disclosures “otherwise for a commercial purpose, including but not limited to cross-context behavioral advertising.” This edit is similar to the broader “sale” definition proposed in the original ballot initiative, which did not require any consideration and was explicitly rejected by the California legislature. “Cross-context behavioral advertising” is defined as the “targeting of advertising to a consumer based on a profile of the consumer including predictions derived from the consumer’s personal information, where such profile is related to the consumer’s activity over time and across multiple businesses or across multiple, distinctly-branded websites, application, or services.” For consumers who opt-out of the sale of their personal information or opt-out of the use or disclosure of personal information for advertising and marketing, the ballot initiative would require businesses to wait for at least 12 months before requesting authorization to sell, or use and disclose, the consumer’s personal information.
  • Sensitive Personal Information: CPREA creates a new category of “sensitive personal information.” CPREA provides consumers with the right to opt-out of the use or disclosure of their sensitive personal information “for advertising and marketing,” which is defined to include communications intended to induce a consumer to buy, rent, lease, join, use, subscribe to, apply for, provide, or exchange products, goods, property, information, services, or employment. “Sensitive information” includes (for example) financial information, health information, race and religion, and precise geolocation information. Notably, sensitive information already is heavily regulated under other federal and state privacy laws.
  • Heightened Protection for Consumers under 16 years of age: Businesses would not be permitted to collect personal information of consumers less than 16 without opt-in consent if the business has actual knowledge that the consumer is less than 16.
  • Creates New Regulated Entities and Relationships: The CPREA introduces the role of a “contractor.” The ballot initiative would require that contractors be subject to contractual restrictions, including prohibitions on the sale of personal information, restrictions on retaining and using personal information, and certifications to the business.
  • Private Right of Action: As drafted, the private right of action is available for certain data breaches that result from unreasonable security practices and only if a business does not cure the “violation” within 30 days’ notice by a plaintiff. CPREA would expressly state that the implementation and maintenance of reasonable security procedures and practices following a breach would not constitute a cure that would serve as a defense to a claim.

The author of the ballot initiative intends to include this proposal on the November, 2020 ballot.

Photo of Libbie Canter Libbie Canter

Libbie Canter represents a wide variety of multinational companies on managing privacy, cyber security, and artificial intelligence risks, including helping clients with their most complex privacy challenges and the development of governance frameworks and processes to comply with U.S. and global privacy laws.

Libbie Canter represents a wide variety of multinational companies on managing privacy, cyber security, and artificial intelligence risks, including helping clients with their most complex privacy challenges and the development of governance frameworks and processes to comply with U.S. and global privacy laws. She routinely supports clients on their efforts to launch new products and services involving emerging technologies, and she has assisted dozens of clients with their efforts to prepare for and comply with federal and state laws, including the California Consumer Privacy Act, the Colorado AI Act, and other state laws. As part of her practice, she also regularly represents clients in strategic transactions involving personal data, cybersecurity, and artificial intelligence risk and represents clients in enforcement and litigation postures.

Libbie represents clients across industries, but she also has deep expertise in advising clients in highly-regulated sectors, including financial services and digital health companies. She counsels these companies — and their technology and advertising partners — on how to address legacy regulatory issues and the cutting edge issues that have emerged with industry innovations and data collaborations.

Chambers USA 2026 ranks Libbie in Band 2 Nationwide for both Privacy & Data Security: Privacy and Privacy & Data Security: Healthcare.Chambers USA notes, Libbie is “incredibly sharp and really thorough. She can do the nitty-gritty, in-the-weeds legal work incredibly well but she also can think of a bigger-picture business context and help to think through practical solutions.”

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Photo of Lindsey Tonsager Lindsey Tonsager

Lindsey Tonsager is a recognized leader in representing companies before federal and state regulators, and is renowned for advising on minor protection, AI, and state comprehensive privacy laws.

Lindsey chairs the firm’s global Data Privacy and Cybersecurity practice. She advises clients in their…

Lindsey Tonsager is a recognized leader in representing companies before federal and state regulators, and is renowned for advising on minor protection, AI, and state comprehensive privacy laws.

Lindsey chairs the firm’s global Data Privacy and Cybersecurity practice. She advises clients in their strategic and proactive engagement with the Federal Trade Commission, the U.S. Congress, the California Privacy Protection Agency, and State Attorneys General on proposed changes to data protection laws, and regularly represents clients in responding to investigations and enforcement actions involving their privacy and information security practices.

Lindsey’s practice focuses on helping clients launch new products and services that implicate the laws governing the use of artificial intelligence; data processing for robotics, autonomous vehicles, and other connected devices; biometrics; online advertising; the collection of personal information from children, teens, and students online; e-mail marketing; disclosures of video viewing information; and new technologies.

Lindsey also assesses privacy and data security risks in complex corporate transactions where personal data is a critical asset or data processing risks are otherwise material. In light of a dynamic regulatory environment where new state, federal, and international data protection laws are always on the horizon and enforcement priorities are shifting, she focuses on designing risk-based global privacy programs for clients that can keep pace with evolving legal requirements and efficiently leverage the clients’ existing privacy policies and practices. She conducts data protection assessments to benchmark against legal requirements and industry trends and proposes practical risk mitigation measures.

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Photo of Jayne Ponder Jayne Ponder

Jayne Ponder counsels companies on the intersection of privacy, AI, and emerging technology regulation, and routinely represents clients in regulatory inquiries, investigations, and enforcement matters before federal and state agencies.

Jayne counsels clients across industries to launch and enhance products, services, and governance…

Jayne Ponder counsels companies on the intersection of privacy, AI, and emerging technology regulation, and routinely represents clients in regulatory inquiries, investigations, and enforcement matters before federal and state agencies.

Jayne counsels clients across industries to launch and enhance products, services, and governance programs involving their collection and use of data and emerging technologies. Her experience spans U.S. comprehensive privacy, automated decisionmaking, AI governance, biometric privacy, surveillance and algorithmic pricing, and AI transparency, disclosure, and safety frameworks. She partners with clients to design products and governance programs that keep pace with the dynamic regulatory environment, including in connection with digital and online advertising, social media, AI-powered and agentic services, connected devices, and robotics.

In addition, she advises companies on engagement with federal and state regulators, including through enforcement and rulemaking. Jayne analyzes privacy and security risks in complex corporate transactions. She also provides strategic input on the legislative, regulatory, and policy developments shaping the privacy and AI landscape.

Jayne maintains an active pro bono practice, focusing on assisting nonprofits with their privacy programs and elder estate planning.

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  • Posted in:
    Privacy and Cybersecurity
  • Blog:
    Inside Privacy
  • Organization:
    Covington & Burling LLP
  • Article: View Original Source

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