California’s Anti-Big Data Consumer Right to Privacy Act Gathers Momentum

All signs are that California’s controversial ballot initiative, Consumer Right to Privacy Act of 2018, is gathering momentum ahead of a November vote.  Telecom and Internet-based business are preparing to oppose the ballot measure.

The initiative has been introduced by two California citizens and would impose new data privacy and security obligations, as well as significant liability for the failure to comply.  It claims to provide California consumers an “effective way to control their personal information” by providing them with: (i) a right to request what personal information covered businesses have collected, sold or disclosed within the last year; and (ii) the right to opt-out from having their personal information disclosed by a covered business.

There is no requirement to prove damages.  Also, the initiative also permits enforcement by private litigants, the attorney general and a prosecutor.  Notably, it also includes covers whistleblower actions.

 

The California Consumer Privacy Act of 2018 was first proposed in September 2017.  It could prove quite problematic for companies that use or resell consumer data.  There are clearly similarities to GDPR, although the California law would place the burden on consumers to request disclosures from companies and permit them to opt out.  Conversely, GDPR is an opt-in regime.

California permits new laws to be adopted by ballot initiatives, rather than the legislative process.  The measure needs to secure a minimum of 365,880 signatures by mid-June 2018 for it to be placed on the November 2018 ballot.  If it appears on the ballot and passes, the measure would become state law.

If passed, it would almost certainly have national implications.

Richard B. Newman is an Internet marketing compliance and regulatory defense attorney at Hinch Newman LLP focusing on advertising and digital media matters. His practice includes conducting legal compliance reviews of advertising campaigns, representing clients in investigations and enforcement actions brought by the Federal Trade Commission and state Attorneys General, commercial litigation, advising clients on promotional marketing programs, and negotiating and drafting legal agreements.  

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Richard B. Newman

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