A Bill Making Its Way Through the California Legislation Would Expand Companies’ Obligations under the CCPA

The California Consumer Privacy Act (CCPA) grants consumers various rights with respect to their personal information that is collected or sold by a business, including the right to opt out of the sale of a consumer’s personal information. The CCPA generally defines the term “sell” to mean selling, renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or by electronic or other means, a consumer’s personal information by the business to another business or a third party for monetary or other valuable consideration.

California AB 3119, a bill proposed in February and currently being reviewed by the legislative committees, would introduce to the CCPA a term “share.”  “Share” would mean (subject to substantially the same exceptions currently applicable to the term “sale”) renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or by electronic or other means, a consumer’s personal information by the business to another business or a third party.  To “sell” would, in turn, mean sharing for monetary or other valuable consideration.

This bill would prohibit a business from collecting, sharing, retaining, or using a consumer’s personal information if specified requirements are not met, including that the collection, sharing, retaining, or using of the personal information is reasonably necessary to provide a service or conduct an activity that a consumer has requested.

The bill would further prohibit a business from sharing a consumer’s personal information unless the consumer has affirmatively consented to the sharing of that personal information and would require a business to request a consumer’s opt-in consent separately from any other permission or consent.  A change from the existing “opt out” to the “opt in” scheme, would significantly change the way companies collect and process consumer data under the CCPA.

AB 3119 is not the only potential amendment to the CCPA that might significantly increase businesses’ compliance obligations.  As we recently reported, Californians for Consumer Privacy, an advocacy group headed by Alastair Mactaggart, the proponent of the 2018 ballot initiative that led to the enactment of the CCPA, has recently gathered more than 900,000 signatures for a new initiative, California Privacy Rights Act, to place on the ballot in November of 2020.  If enacted, the CPRA (also dubbed CCPA 2.0) will significantly amend the CCPA and further expand privacy rights of California consumers as well as compliance obligations of California businesses and their service providers and contractors.

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