The California Consumer Privacy Act (“CCPA”) went into effect on January 1, 2020 and with it came expanded data breach laws and an increased risk of litigation. Attorney General enforcement of privacy-related suits cannot be initiated until six months after final regulations are approved by the California Attorney General or July 1 (whichever comes first), however data breaches are subject to enforcement via plaintiff private right of action now.
In fact, substantial data breach litigation has already begun under the CCPA, primarily in the form of consumer class actions brought in federal courts in California.
Businesses should be aware and prepared to comply with the data breach compliance requirements of the CCPA in the event of a data breach incident, as discussed below, or risk facing litigation.
The CCPA provides consumers with a limited private right of action when “nonencrypted and nonredacted personal information…is subject to an unauthorized access and exfiltration, theft, or disclosure as a result of the business’ violation of the duty to implement and maintain reasonable security procedures and practices appropriate to the nature of the information.” Violations are subject to penalties of $100 to $750 per incident, actual damages, and injunctive relief.
Personal Information Defined
In order for a data breach to be actionable, the information breached must be personal information as narrowly defined by California’s data breach notification law, Section 1798.81.5, not the broad definition included in the CCPA. For the private right of action for data breaches, personal information means:
An individual’s first name or first initial and the individual’s last name in combination with any one or more of the following data elements…:
(i) Social security number.
(ii) Driver’s license number, California identification card number, tax identification number, passport number, military identification number, or other unique identification number issued on a government document commonly used to verify the identity of a specific individual.
(iii) Account number or credit or debit card number, in combination with any required security code, access code, or password that would permit access to an individual’s financial account.
(iv) Medical information.
(v) Health insurance information.
(vi) Unique biometric data generated from measurements or technical analysis of human body characteristics, such as a fingerprint, retina, or iris image, used to authenticate a specific individual.
This narrower definition of personal information should work to limit the availability of CCPA’s private right of action.
What Constitutes “Reasonable Security?”
The CCPA does not define “reasonable security” and the California Attorney General has not yet offered guidance on the subject. However, some California regulators have endorsed certain security measures as providing “reasonable security” in contexts outside of the CCPA.
For example, the former California Attorney General, Senator Kamala Harris, provided clear guidance on what she considered reasonable security in the February 2016 California Data Breach Report. As highlighted in the report, covered entities should look to the Center for Internet Security’s list of 20 Critical Controls (“CIS Controls”) as a potential baseline security standard for reference. The CIS Controls consist of twenty key actions, including authentication, incident-response plans, data-protection policies, and other security safeguards. Although these CIS Controls are not prescriptive safeguards for CCPA compliance, they are a good place to start.
Notice and Cure Period
Before bringing an action for a security breach, the CCPA requires consumers to provide covered businesses with 30 days written notice, identifying the specific provisions the business allegedly violated. Businesses then have 30 days to address and resolve the violations without penalty. Businesses who fail to cure the violation open themselves up to civil action for monetary damages, injunctive relief, and any other relief the court deems proper.
The CCPA does appear to prohibit the commencement of lawsuits which leverage the CCPA to state other claims. The CCPA explicitly prohibits consumers from using alleged CCPA violations “to serve as the basis for a private right of action under any other law,” thus prohibiting a plaintiff from alleging that a CCPA violation constitutes a violation of the California Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200, et seq. or other statutes. However, as described in other blogs, this has not stopped plaintiffs from bringing just these types of claims. Judicial decisions are required on the scope and enforceability of the CCPA’s prohibition on non-CCPA claims.
Businesses should continue to follow CCPA developments and carefully monitor related litigation in the coming months for further clarity on enforcement and compliance. CCPA data breach litigation is expected to considerably increase as plaintiffs take advantage of the CCPA’s private right of action for data breaches resulting from a company’s failure to implement and maintain “reasonable” security measure. Octillo will continue to provide updates as they become available. Additionally, AG enforcement of the CCPA data breach and privacy provisions is expected to commence soon, providing an additional layer of enforcement activity that businesses must be aware of. The Octillo team will continue to provide timely updates on the CCPA landscape and potential claims, and is available to discuss practical low-cost, high-impact tips for mitigating CCPA litigation risk.
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