The CCPA, CPRA, and California’s Evolving Data Protection Landscape

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The California Consumer Privacy Act (CCPA) has been in effect since January 1, 2020, and it has impacted the way businesses collect, use, and protect consumers’ personal information considerably. Just over 9 months later, California voters approved Proposition 24, the California Privacy Rights Act (CPRA), which amends the CCPA and strengthens California’s data privacy laws further. Most of the CPRA provisions came into force on January 1, 2023. Enforcement will commence on July 1, 2023. On March 29, 2023, the California Consumer Privacy Act Regulations came into force, complementing the CPRA. 

To prevent your head from spinning in this veritable whirlwind of new privacy legislations, this blog post will provide an overview of the CCPA, the CPRA, and corresponding regulations with a focus on the data they protect, the concept of de-identification, and the impact of the enactment of the CPRA.

Scope of Application

The CCPA, as amended by the CPRA, applies to any business that collects, processes, sells, or shares the personal information of California residents and meets certain thresholds. These thresholds include having an annual gross revenue of over $25 million, collecting the personal information of 50,000 or more California residents, households, or devices annually, or deriving 50 percent or more of their annual revenue from selling the personal information of California residents.

It’s important to note that the CCPA and CPRA have extraterritorial reach, meaning that businesses located outside of California that meet the requirements are also subject to these laws. Furthermore, the thresholds are calculated taking into account overall revenue, not just that revenue made in California or from selling personal information from California residents. 

Information Protected Under the CCPA, as Amended

As amended by the CPRA, the following categories of personal information are covered under the CCPA (section 1798.140.(v)(1) Definitions):

Identifiers: These include names, aliases, postal addresses, unique personal identifiers, online identifiers, IP addresses, email addresses, account names, social security numbers, drivers license numbers, passport numbers, and other similar identifiers.

Personal information: This includes data like physical characteristics or description, such as height, weight, or gender; education information such as school and degree information; employment information such as work history, salary, and benefits information.

Commercial information: This category includes records of products or services purchased, obtained, or considered, as well as other purchasing or consuming histories or tendencies.

Biometric information: This includes data based on unique biological characteristics such as facial recognition, iris or retina scans, fingerprints, voiceprints, and other similar information.

Internet or other electronic network activity information: This includes browsing history, search history, and information regarding a consumer’s interaction with an internet website, application, or advertisement.

Geolocation data: This category includes precise location data about a consumer, as well as general location data.

Audio, electronic, visual, thermal, olfactory, or similar information: This includes data such as audio recordings, video recordings, and other types of sensory information.

Professional or employment-related information: This includes data such as employment history, professional licenses, or certifications.

Education information: This includes data such as student records, transcripts, and other similar information.

Inferences drawn from other personal information: This includes information that is used to create a profile about a consumer, such as preferences, characteristics, psychological trends, predispositions, behavior, attitudes, intelligence, abilities, and aptitudes.

It’s important to note that the CPRA includes a new and broad category of sensitive personal information, including what you would probably expect, such as social security number and religious beliefs, but also text and email messages. However, the difference with regard to a business’ obligation under the amended CCPA between personal information and sensitive information is limited. The disclosure provisions are identical and, for both, businesses must provide the option to opt out of selling and sharing this information. In the case of sensitive information, consumers have the additional right to also opt out of specific usage and disclosure of this information. Practically speaking, businesses must provide a “Do Not Sell My Personal Information” and a “Limit the Use of My Sensitive Personal Information” button on their website.

De-identification Under the CCPA

The CCPA excludes de-identified information from the scope of personal information, meaning that the act does not apply to such data. “Deidentified” means information that cannot reasonably be used to infer information about, or otherwise be linked to, a particular consumer. However, to be exempt from the application of the CCPA, the business that de-identifies the data must also put specific safeguards in place to ensure the data will not be re-identified. It is required that the business 

(1) Takes reasonable measures to ensure that the information cannot be associated with a consumer or household.

(2) Publicly commits to maintain and use the information in deidentified form and not to attempt to reidentify the information, except that the business may attempt to reidentify the information solely for the purpose of determining whether its deidentification processes satisfy the requirements of this subdivision.

(3) Contractually obligates any recipients of the information to comply with all provisions of this subdivision.

Compared to the General Data Protection Regulation (GDPR) in the EU, for example, de-identification under the CCPA is less onerous than the GDPR’s anonymization, which requires that information no longer relate to an identified or identifiable natural person or to personal data rendered anonymous in such a manner that the data subject is not or no longer identifiable. For the GDPR it does not suffice that data that cannot “reasonably” be used to identify an individual in order to consider the data anonymized; the GDPR’ standard is more absolute than that. 

However, the method to de-identify/anonymize the data will be the same. Both laws require the removal of direct and indirect identifiers and the evaluation of the re-identification risk, with the CPPA then making the additional demands of businesses described above. Private AI is uniquely equipped to help with the de-identification of personal data under both the GDPR and the CCPA. The vast majority of the data that falls under the CCPA’s definition of personal information that we set out above are captured by Private AI’s supported entities, i.e., entities that our algorithms can detect with unparalleled accuracy in unstructured data and numerous file formats as well as in over 50 languages. Exceptions include inferences drawn from personal information as well as purchasing history.  

Consumer Rights

Other than the right to opt out of the sale and sharing of their personal information and to limit the use and disclosure of sensitive information, California residents have the right to know what personal information businesses collect about them, and the right to request that businesses correct or delete their personal information.

Businesses subject to the CCPA must provide California residents with a privacy policy that outlines the categories of personal information collected, the purposes for which the information is used, and the categories of third parties with whom the information is shared. 

The CPRA also expands consumers’ right to know about automated decision-making and profiling based on their information.

Effect of the Amendments

The CPRA creates a new enforcement agency, the California Privacy Protection Agency (CPPA), which has the power to investigate violations, issue subpoenas, hold public hearings and, importantly, impose fines and penalties for violations of the CCPA and CPRA. 

The coming into force of the CPPA in January 2020 seems not to have affected ad revenues of businesses much at all – only 1-5 percent of consumers have opted out (survey results from November 2020). Compared to the impact of Apple’s App Tracking Transparency (ATT) roll-out, one could speculate that the reason is that the CPPA requires only an opt-out, whereas ATT provides the consumer with data protection by default. ATT requires that apps ask users whether they can track them, and over 80 percent politely declined. Yet, when users must take active steps to protect their rights, people’s innate indolence may get in the way of enjoying the right of not having personal information be sold or shared for profit. Similarly, access requests have also been far from numerous.

An interesting effect was, however, that many companies initially opted not to sell information in the first place, being concerned about the optics on the required button on their website. Furthermore, privacy-preserving advertising is becoming increasingly popular with new solutions capturing additional market share.

Conclusion

The CCPA and CPRA have created a new era of data privacy regulation in California, and businesses must take these laws seriously to avoid fines and penalties for non-compliance. Compliance with the CCPA and CPRA requires a significant investment of time and resources, but it is essential for businesses that collect, use, or share personal information. By implementing robust data privacy programs and staying up-to-date on the latest developments, businesses can protect consumer privacy and build trust with their customers. On the other hand, the limited extent to which consumers make use of their new rights contrasted with the clear industry trend towards privacy-preserving advertisement as the result of new privacy laws underscores the fact that privacy protection cannot be the responsibility of the consumer. Rather the behaviour of organizations has to change. And the threat of fines and reputational loss does a pretty good job at that as the IAPP-EY Privacy Governance Report 2023 has shown, which shows that 33 percent of companies grew their privacy teams over the past year alone.

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