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State Attorney General Starts Rulemaking Process for California Consumer Privacy Act

Yesterday, by e-mail and on its website, the California Department of Justice (DOJ) announced that it would hold “six statewide forums to collect feedback” in advance of the rulemaking process for the California Consumer Privacy Act (CCPA).  The announcement did not include proposed rules or regulations, which must be adopted by July 1, 2020.

As we’ve previewed  in  previous  blog posts, the California Attorney General's office will have its work cut out for it in developing the regulations underlying the CCPA.  Since the CCPA has been adopted, there’s been a groundswell of support and criticism of the regulation, ranging from interpretative issues to definitional.  For example, taking the definition of “consumers” in the CCPA, issues have been raised as to whether or not it includes a regulated company’s own employees.

And to take a more nefarious example, despite recent amendments to the CCPA, critics have complained that the CCPA – as currently drafted – might allow potential criminals to “opt out” of the use of their data for the investigation of crimes.

In addition, when a consumer exercises his or her rights under the CCPA, businesses may not “discriminate against” that consumer, subject to a few exceptions. For instance, a business cannot deny goods or services to the consumer or charge different prices or rates for goods or services.  At the same time, the CCPA says that businesses can charge a different price or rate if that difference is “reasonably related to the value provided to the consumer by the consumer’s data.”  Critics complaint that it’s unclear what counts as consumer data “reasonably related to value provided” such that companies can price discriminate against consumers that “exercise” their rights under the CCPA.  The California DOJ must resolve these questions, and many others, despite what it says are a lack “of resources” to “carry out this rulemaking – or even its implementation thereafter.”

But in the meantime, the California DOJ will hold the public forums in January and February, across California.  And, in advance of the forums, the agency “invites all interested persons and parties to submit comments regarding the CCPA regulations.”

We’ll continue to monitor the CCPA and its forthcoming regulations.