On October 30, 2023, President Biden issued an executive order (“EO”) on the safe, secure, and trustworthy development and deployment of artificial intelligence (“AI”) that has the potential to set far-reaching standards governing the use and development of AI across industries. Although the EO does not directly regulate private industry, apart from certain large-scale models
On October 10, 2023, Governor Gavin Newsom signed into law the California Delete Act, which imposes new requirements on “data brokers.” Because of the California law’s broad definition of the term “data broker,” the law will apply to many businesses that would not typically think of themselves as engaged in buying and selling data. The Delete Act will require such “data brokers” to make new disclosures and, beginning in 2026, respond to bulk deletion requests submitted via a mechanism established by the California Privacy Protection Agency (CPPA), which is likely to prove onerous. Unlike current deletion requests, which are sent on a one-off basis to specific businesses, the Delete Act will require these requests to be honored by all businesses registered with the CPPA as a data broker simultaneously. As a result, data brokers will see a significant increase in the volume of such requests they are required to process. Additionally, beginning in 2028, data brokers will be required to undergo costly third-party compliance audits.
Continue Reading California Adopts “Delete Act”: New Requirements for Data Brokers
At its Sept. 8 board meeting, the California Privacy Protection Agency reviewed draft regulations addressing cybersecurity audits and risk assessments. If adopted, the proposed regulations would require many businesses already subject to the California Consumer Privacy Act to conduct new, independent audits of their cybersecurity programs. The proposed regulations would also impose broad rules
With the onslaught of state privacy laws passed earlier this spring and summer, the Texas Data Privacy and Security Act (the “TDPSA”) signed into law on June 18, 2023, may not have received its due. Although largely following the template set in other states, the Texas law is unique among the non-California comprehensive privacy laws in tying its scoping criteria to the size of a business rather than to a threshold number of data subjects whose information a business processes annually—typically 100,000 state residents. The company must also (1) conduct business in Texas or produce a product or service consumed in the state and (2) process or “sell” personal data (more on the definition of “sell” below, which would include many disclosures made through online advertising). As a result, many mid-market businesses that process smaller amounts of data (falling under the 100,000-resident threshold applicable in many states) could still be required to comply.
Continue Reading Texas Data Privacy and Security Act Could Impact More Businesses
On July 26, 2023, the Securities and Exchange Commission (the “SEC”) voted 3–2 to adopt rules requiring public companies to disclose material cybersecurity incidents as well as information regarding their cybersecurity risk management, strategy, and governance (the “Cybersecurity Disclosure Rules” or “Final Rules”).1 The Final Rules require disclosure of “material cybersecurity incidents”. The disclosure must be made within four business days from the date on which a cybersecurity incident is determined to be “material” as opposed to four business days from the date on which the occurrence of an incident is discovered; although, that distinction may be difficult to implement in practice. Covered entities, which include all issuers that file annual reports on Form 10-K or Form 20-F, should promptly review their cybersecurity protocols and procedures to address further required disclosure items.2
Continue Reading SEC Adopts Final Rules on Public Company Cybersecurity Disclosures
Just before the July 4th holiday, the California Superior Court in Sacramento gave businesses struggling to comply with the California Privacy Rights Act (“CPRA”) a small gift by delaying enforcement of the CPRA’s regulations until March of 2024 at the earliest. While helpful in some respects, discussed below, the ruling does not expressly prohibit the California Privacy Protection Agency (“Agency”) from enforcing the underlying text of the CPRA where implementing regulations are not required. Ashkan Soltani, the executive director of the Agency, has been quoted as stating that “significant portions” of the law can still be enforced immediately.
In short, businesses should not assume the Agency will remain idle. CPRA compliance remains a priority, though the Agency has indicated that enforcement is likely to proceed slowly at first—given staffing shortages at the Agency—with an initial emphasis on voluntary compliance. Further clarity on the Agency’s enforcement plans may be forthcoming on July 14, when the Agency is scheduled to hold a board meeting featuring Michael Macko, the Agency’s Deputy Director of Enforcement, who will provide an update on the Agency’s enforcement priorities.
Continue Reading Enforcement of CPRA Regulations Delayed, but CPRA Compliance Still a Priority
Find an umbrella. . . . The recent deluge of state-level privacy legislation continues. Legislatures in three additional states—Indiana, Montana, and Tennessee—have adopted comprehensive privacy laws. The Indiana Consumer Data Protection Act (ICDPA) was signed into law on May 1, 2023, making Indiana the seventh state to adopt such a law, and legislatures in Montana and Tennessee have passed legislation that is expected to be signed into law by their respective governors soon. Only one month ago, Iowa became the sixth state to adopt a comprehensive privacy law, and, of course, California, Colorado, Connecticut, Utah, and Virginia each have laws that either are already in effect or that will go into effect later his year. Meanwhile, on April 27, 2023, the governor of Washington signed into law the My Health My Data Act, a significant development that will impact many businesses that collect or process consumer health data (expect an update on this topic here soon).
Continue Reading When It Rains, It Pours (State Privacy Laws)
On March 29, 2023, the California Office of Administrative Law (the “OAL”) approved the first substantive set of California Privacy Rights Act (“CPRA”) regulations from the California Privacy Protection Agency (the “CPPA”), which we addressed in a previous blog. Those regulations went into effect immediately. As discussed in a recent episode of Ropes & Gray’s privacy podcast, The Data Day, the CPPA has also begun consideration of an additional set of regulations that would implement other CPRA requirements, issuing an Invitation for Preliminary Comments on Proposed Rulemaking Cybersecurity Audits, Risk Assessments, and Automated Decisionmaking. Enforcement of the CPRA, including its implementing regulations, is scheduled to begin on July 1, 2023. However, on March 30, 2023—just one day after the OAL approved the CPPA’s regulations—the California Chamber of Commerce announced that it had filed suit in Sacramento Superior Court seeking to delay enforcement until 12 months after a final and complete set of regulations has been adopted.
Tune in to the second episode of Ropes & Gray’s podcast series The Data Day, brought to you by the firm’s data, privacy & cybersecurity practice. This series focuses on the day-to-day effects that data has on all of our lives as well as other exciting and interesting legal and regulatory developments in the
Just in time for Data Privacy Day, the California attorney general (“California AG”) announced a new round of privacy investigations targeting the retail, travel, and food service industries. The investigative sweep will focus on “popular apps” that allegedly fail to honor consumer requests to opt out of the “sale” of their personal information. The sweep will also review responses to requests sent on behalf of consumers by authorized agents such as the “Permission Slip” application developed by Consumer Reports. Even with the considerable attention owed to the new requirements of the California Privacy Rights Act (“CPRA”)—which amends and expands on the California Consumer Privacy Act (“CCPA”)—along with the significant recent activity by the California Privacy Protection Agency, businesses should not overlook their ongoing obligations to comply with the CCPA prior to the CPRA’s enforcement beginning on July 1, 2023.