Amended  IN  Assembly  May 04, 2020

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 3119

Introduced by Assembly Member Wicks

February 21, 2020

An act to amend Section 1798.100 of the Civil Code, relating to consumer privacy. An act to amend Sections 1798.120 and 1798.140 of, and to add Section 1798.103 to, the Civil Code, relating to privacy.


LEGISLATIVE COUNSEL'S DIGEST


AB 3119, as amended, Wicks. Personal information. California Consumer Privacy Act of 2018.
Existing law, the California Consumer Privacy Act of 2018 (CCPA), grants a consumer various rights with respect to personal information, as defined, that is collected or sold by a business, as defined, including the right to opt out of the sale of a consumer’s personal information. The CCPA defines terms for its purposes, including defining the term “sell” to mean, subject to specified exceptions, selling, renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or by electronic or other means, a consumer’s personal information by the business to another business or a third party for monetary or other valuable consideration.
This bill would, instead, define “share” to mean, subject to specified exceptions, renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or by electronic or other means, a consumer’s personal information by the business to another business or a third party and would define “sell” to mean sharing for monetary or other valuable consideration.
This bill would prohibit a business from collecting, sharing, retaining, or using a consumer’s personal information if specified requirements are not met, including that the collection, sharing, retaining, or using of the personal information is reasonably necessary to provide a service or conduct an activity that a consumer has requested. The bill would also prohibit a business from sharing a consumer’s personal information unless the consumer has affirmatively consented to the sharing of that personal information and would require a business to request a consumer’s opt-in consent separately from any other permission or consent, as specified.

Existing law, the California Consumer Privacy Act of 2018, grants consumers various rights in connection with a business, as defined, that collects the consumer’s personal information, including the right to request that a business that collects personal information disclose the categories and specific pieces of personal information collected.

This bill would make nonsubstantive changes to the California Consumer Privacy Act of 2018.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 This act shall be known as the Minimization of Consumer Data Processing Act.

SEC. 2.

 Section 1798.103 is added to the Civil Code, to read:

1798.103.
 (a) A business that collects a consumer’s personal information shall not collect or share the consumer’s personal information unless any of the following are true:
(1) Collecting or sharing a consumer’s personal information is reasonably necessary to provide a service or conduct an activity that a consumer has requested.
(2) Collecting or sharing a consumer’s personal information is reasonably necessary for security or fraud prevention purposes.
(3) The business is required to collect or share the consumer’s personal information to comply with a court-issued subpoena, warrant, or order.
(b) A business that collects a consumer’s personal information shall not use or retain the consumer’s personal information unless any of the following are true:
(1) Using or retaining the personal information is reasonably necessary to provide a service or conduct an activity that a consumer has requested.
(2) Using or retaining the personal information is reasonably necessary for security or fraud prevention purposes.
(3) (A) Except as provided in subparagraph (B), using or retaining the personal information is reasonably necessary for a business purpose directly related to the service or activity described in paragraph (1).
(B) Personal information used or retained only for security or fraud prevention purposes shall not be used or retained for a business purpose directly related to the service or activity described in paragraph (1).

SEC. 3.

 Section 1798.120 of the Civil Code is amended to read:

1798.120.
 (a) A consumer shall have the right, at any time, to direct a business that sells personal information about the consumer to third parties not to sell the consumer’s personal information. A business shall not share a consumer’s personal information unless the consumer has affirmatively consented to that sharing of personal information. This right may be referred to as the right to opt-out. opt-in consent.

(b)A business that sells consumers’ personal information to third parties shall provide notice to consumers, pursuant to subdivision (a) of Section 1798.135, that this information may be sold and that consumers have the “right to opt-out” of the sale of their personal information.

(b) (1) A business shall request a consumer’s opt-in consent separately from any other permission or consent.
(2) The business shall provide an option to the consumer to decline a request made pursuant to paragraph (1) that is at least as prominent as the option to provide consent.
(c) (1) If a consumer declines to provide opt-in consent to the sharing of the consumer’s personal information, the business shall not make another request pursuant to subdivision (b) for at least 12 months.
(2) A business may provide a setting or other user control that the consumer can affirmatively access in order to consent to additional sharing of the consumer’s personal information.
(d) A business that obtains a consumer’s opt-in consent to share the consumer’s personal information pursuant to this section shall provide to that consumer the ability to withdraw, at any time, the opt-in consent through a readily usable and automated means.
(e) A business shall not use personal information collected from the consumer in connection with the withdrawal of opt-in consent for a purpose other than to comply with the withdrawal request.

(c)Notwithstanding subdivision (a), a business shall not sell the personal information of consumers if the

(f) If a business has actual knowledge that the consumer is less than 16 13 years of age, unless the consumer, in the case of consumers at least 13 years of age and less than 16 years of age, or only the consumer’s parent or guardian, in the case of consumers who are less than 13 years of age, has affirmatively authorized the sale guardian may affirmatively authorize the sharing of the consumer’s personal information. A business that willfully disregards the consumer’s age shall be deemed to have had actual knowledge of the consumer’s age. This right may be referred to as the “right to opt-in.”

(d)A business that has received direction from a consumer not to sell the consumer’s personal information or, in the case of a minor consumer’s personal information has not received consent to sell the minor consumer’s personal information shall be prohibited, pursuant to paragraph (4) of subdivision (a) of Section 1798.135, from selling the consumer’s personal information after its receipt of the consumer’s direction, unless the consumer subsequently provides express authorization for the sale of the consumer’s personal information.

SEC. 4.

 Section 1798.140 of the Civil Code is amended to read:

1798.140.
 For purposes of this title:
(a) “Aggregate consumer information” means information that relates to a group or category of consumers, from which individual consumer identities have been removed, that is not linked or reasonably linkable to any consumer or household, including via a device. “Aggregate consumer information” does not mean one or more individual consumer records that have been de­identified.
(b) “Biometric information” means an individual’s physiological, biological, or behavioral characteristics, including an individual’s deoxyribonucleic acid (DNA), that can be used, singly or in combination with each other or with other identifying data, to establish individual identity. Biometric information includes, but is not limited to, imagery of the iris, retina, fingerprint, face, hand, palm, vein patterns, and voice recordings, from which an identifier template, such as a faceprint, a minutiae template, or a voiceprint, can be extracted, and keystroke patterns or rhythms, gait patterns or rhythms, and sleep, health, or exercise data that contain identifying information.
(c) “Business” means:
(1) A sole proprietorship, partnership, limited liability company, corporation, association, or other legal entity that is organized or operated for the profit or financial benefit of its shareholders or other owners that collects consumers’ personal information or on the behalf of which that information is collected and that alone, or jointly with others, determines the purposes and means of the processing of consumers’ personal information, that does business in the State of California, and that satisfies one or more of the following thresholds:
(A) Has annual gross revenues in excess of twenty-five million dollars ($25,000,000), as adjusted pursuant to paragraph (5) of subdivision (a) of Section 1798.185.
(B) Alone or in combination, annually buys, receives for the business’s commercial purposes, sells, or shares for commercial purposes, alone or in combination, the personal information of 50,000 or more consumers, households, or devices.
(C) Derives 50 percent or more of its annual revenues from selling consumers’ personal information.
(2) Any entity that controls or is controlled by a business as defined in paragraph (1) and that shares common branding with the business. “Control” or “controlled” means ownership of, or the power to vote, more than 50 percent of the outstanding shares of any class of voting security of a business; control in any manner over the election of a majority of the directors, or of individuals exercising similar functions; or the power to exercise a controlling influence over the management of a company. “Common branding” means a shared name, servicemark, or trademark.
(d) “Business purpose” means the use of personal information for the business’s or a service provider’s operational purposes, or other notified purposes, provided that the use of personal information shall be reasonably necessary and proportionate to achieve the operational purpose for which the personal information was collected or processed or for another operational purpose that is compatible with the context in which the personal information was collected. Business purposes are:
(1) Auditing related to a current interaction with the consumer and concurrent transactions, including, but not limited to, counting ad impressions to unique visitors, verifying positioning and quality of ad impressions, and auditing compliance with this specification and other standards.
(2) Detecting security incidents, protecting against malicious, deceptive, fraudulent, or illegal activity, and prosecuting those responsible for that activity.
(3) Debugging to identify and repair errors that impair existing intended functionality.
(4) Short-term, transient use, provided that the personal information is not disclosed to another third party and is not used to build a profile about a consumer or otherwise alter an individual consumer’s experience outside the current interaction, including, but not limited to, the contextual customization of ads shown as part of the same interaction.
(5) Performing services on behalf of the business or service provider, including maintaining or servicing accounts, providing customer service, processing or fulfilling orders and transactions, verifying customer information, processing payments, providing financing, providing advertising or marketing services, providing analytic services, or providing similar services on behalf of the business or service provider.
(6) Undertaking internal research for technological development and demonstration.
(7) Undertaking activities to verify or maintain the quality or safety of a service or device that is owned, manufactured, manufactured for, or controlled by the business, and to improve, upgrade, or enhance the service or device that is owned, manufactured, manufactured for, or controlled by the business.
(e) “Collects,” “collected,” or “collection” means buying, renting, gathering, obtaining, receiving, or accessing any personal information pertaining to a consumer by any means. This includes receiving information from the consumer, either actively or passively, or by observing the consumer’s behavior.
(f) “Commercial purposes” means to advance a person’s commercial or economic interests, such as by inducing another person to buy, rent, lease, join, subscribe to, provide, or exchange products, goods, property, information, or services, or enabling or effecting, directly or indirectly, a commercial transaction. “Commercial purposes” do not include for the purpose of engaging in speech that state or federal courts have recognized as noncommercial speech, including political speech and journalism.
(g) “Consumer” means a natural person who is a California resident, as defined in Section 17014 of Title 18 of the California Code of Regulations, as that section read on September 1, 2017, however identified, including by any unique identifier.
(h) “Deidentified” means information that cannot reasonably identify, relate to, describe, be capable of being associated with, or be linked, directly or indirectly, to a particular consumer, provided that a business that uses deidentified information:
(1) Has implemented technical safeguards that prohibit reidentification of the consumer to whom the information may pertain.
(2) Has implemented business processes that specifically prohibit reidentification of the information.
(3) Has implemented business processes to prevent inadvertent release of deidentified information.
(4) Makes no attempt to reidentify the information.
(i) “Designated methods for submitting requests” means a mailing address, email address, internet web page, internet web portal, toll-free telephone number, or other applicable contact information, whereby consumers may submit a request or direction under this title, and any new, consumer-friendly means of contacting a business, as approved by the Attorney General pursuant to Section 1798.185.
(j) “Device” means any physical object that is capable of connecting to the internet, directly or indirectly, or to another device.
(k) “Health insurance information” means a consumer’s insurance policy number or subscriber identification number, any unique identifier used by a health insurer to identify the consumer, or any information in the consumer’s application and claims history, including any appeals records, if the information is linked or reasonably linkable to a consumer or household, including via a device, by a business or service provider.
(l) “Homepage” means the introductory page of an internet website and any internet web page where personal information is collected. In the case of an online service, such as a mobile application, homepage means the application’s platform page or download page, a link within the application, such as from the application configuration, “About,” “Information,” or settings page, and any other location that allows consumers to review the notice required by subdivision (a) of Section 1798.135, including, but not limited to, before downloading the application.
(m) “Infer” or “inference” means the derivation of information, data, assumptions, or conclusions from facts, evidence, or another source of information or data.
(n) “Person” means an individual, proprietorship, firm, partnership, joint venture, syndicate, business trust, company, corporation, limited liability company, association, committee, and any other organization or group of persons acting in concert.
(o) (1) “Personal information” means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household. Personal information includes, but is not limited to, the following if it identifies, relates to, describes, is reasonably capable of being associated with, or could be reasonably linked, directly or indirectly, with a particular consumer or household:
(A) Identifiers such as a real name, alias, postal address, unique personal identifier, online identifier, internet protocol address, email address, account name, social security number, driver’s license number, passport number, or other similar identifiers.
(B) Any categories of personal information described in subdivision (e) of Section 1798.80.
(C) Characteristics of protected classifications under California or federal law.
(D) Commercial information, including records of personal property, products or services purchased, obtained, or considered, or other purchasing or consuming histories or tendencies.
(E) Biometric information.
(F) Internet or other electronic network activity information, including, but not limited to, browsing history, search history, and information regarding a consumer’s interaction with an internet website, application, or advertisement.
(G) Geolocation data.
(H) Audio, electronic, visual, thermal, olfactory, or similar information.
(I) Professional or employment-related information.
(J) Education information, defined as information that is not publicly available personally identifiable information as defined in the Family Educational Rights and Privacy Act (20 U.S.C. Sec. 1232g; 34 C.F.R. Part 99).
(K) Inferences drawn from any of the information identified in this subdivision to create a profile about a consumer reflecting the consumer’s preferences, characteristics, psychological trends, predispositions, behavior, attitudes, intelligence, abilities, and aptitudes.
(2) “Personal information” does not include publicly available information. For purposes of this paragraph, “publicly available” means information that is lawfully made available from federal, state, or local government records. “Publicly available” does not mean biometric information collected by a business about a consumer without the consumer’s knowledge.
(3) “Personal information” does not include consumer information that is deidentified or aggregate consumer information.
(p) “Probabilistic identifier” means the identification of a consumer or a device to a degree of certainty of more probable than not based on any categories of personal information included in, or similar to, the categories enumerated in the definition of personal information.
(q) “Processing” means any operation or set of operations that are performed on personal data or on sets of personal data, whether or not by automated means.
(r) “Pseudonymize” or “Pseudonymization” means the processing of personal information in a manner that renders the personal information no longer attributable to a specific consumer without the use of additional information, provided that the additional information is kept separately and is subject to technical and organizational measures to ensure that the personal information is not attributed to an identified or identifiable consumer.
(s) “Research” means scientific, systematic study and observation, including basic research or applied research that is in the public interest and that adheres to all other applicable ethics and privacy laws or studies conducted in the public interest in the area of public health. Research with personal information that may have been collected from a consumer in the course of the consumer’s interactions with a business’s service or device for other purposes shall be:
(1) Compatible with the business purpose for which the personal information was collected.
(2) Subsequently pseudonymized and deidentified, or deidentified and in the aggregate, such that the information cannot reasonably identify, relate to, describe, be capable of being associated with, or be linked, directly or indirectly, to a particular consumer.
(3) Made subject to technical safeguards that prohibit reidentification of the consumer to whom the information may pertain.
(4) Subject to business processes that specifically prohibit reidentification of the information.
(5) Made subject to business processes to prevent inadvertent release of deidentified information.
(6) Protected from any reidentification attempts.
(7) Used solely for research purposes that are compatible with the context in which the personal information was collected.
(8) Not be used for any commercial purpose.
(9) Subjected by the business conducting the research to additional security controls that limit access to the research data to only those individuals in a business as are necessary to carry out the research purpose.
(t) (1) “Sell,” “selling,” “sale,” or “sold,” “Share” means selling, renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or by electronic or other means, a consumer’s personal information by the business to another business or a third party for monetary or other valuable consideration. party.
(2) For purposes of this title, a business does not sell share personal information when:
(A) A consumer uses or directs the business to intentionally disclose personal information or uses the business to intentionally interact with a third party, provided the third party does not also sell the personal information, unless that disclosure would be consistent with the provisions of this title. An intentional interaction occurs when the consumer intends to interact with the third party, via one or more deliberate interactions. Hovering over, muting, pausing, or closing a given piece of content does not constitute a consumer’s intent to interact with a third party.
(B) The business uses or shares an identifier for a consumer who has opted out of the sale not opted in to the sharing of the consumer’s personal information for the purposes of alerting third parties that the consumer has opted out of the sale not opted in to the sharing of the consumer’s personal information.
(C) The business uses or shares with a service provider personal information of a consumer that is necessary to perform a business purpose if both of the following conditions are met:
(i) The business has provided notice of that information being used or shared in its terms and conditions consistent with Section 1798.135.
(ii) The service provider does not further collect, sell, share, or use the personal information of the consumer except as necessary to perform the business purpose.
(D) The business transfers to a third party the personal information of a consumer as an asset that is part of a merger, acquisition, bankruptcy, or other transaction in which the third party assumes control of all or part of the business, provided that information is used or shared consistently with Sections 1798.110 and 1798.115. If a third party materially alters how it uses or shares the personal information of a consumer in a manner that is materially inconsistent with the promises made at the time of collection, it shall provide prior notice of the new or changed practice to the consumer. The notice shall be sufficiently prominent and robust to ensure that existing consumers can easily exercise their choices consistently with Section 1798.120. This subparagraph does not authorize a business to make material, retroactive privacy policy changes or make other changes in their privacy policy in a manner that would violate the Unfair and Deceptive Practices Act (Chapter 5 (commencing with Section 17200) of Part 2 of Division 7 of the Business and Professions Code).
(u) “Sell” means sharing for monetary or other valuable consideration.

(u)

(v) “Service” or “services” means work, labor, and services, including services furnished in connection with the sale or repair of goods.

(v)

(w) “Service provider” means a sole proprietorship, partnership, limited liability company, corporation, association, or other legal entity that is organized or operated for the profit or financial benefit of its shareholders or other owners, that processes information on behalf of a business and to which the business discloses a consumer’s personal information for a business purpose pursuant to a written contract, provided that the contract prohibits the entity receiving the information from retaining, using, or disclosing the personal information for any purpose other than for the specific purpose of performing the services specified in the contract for the business, or as otherwise permitted by this title, including retaining, using, or disclosing the personal information for a commercial purpose other than providing the services specified in the contract with the business.

(w)

(x) “Third party” means a person who is not any of the following:
(1) The business that collects personal information from consumers under this title.
(2) (A) A person to whom the business discloses a consumer’s personal information for a business purpose pursuant to a written contract, provided that the contract:
(i) Prohibits the person receiving the personal information from:
(I) Selling the personal information.
(II) Retaining, using, or disclosing the personal information for any purpose other than for the specific purpose of performing the services specified in the contract, including retaining, using, or disclosing the personal information for a commercial purpose other than providing the services specified in the contract.
(III) Retaining, using, or disclosing the information outside of the direct business relationship between the person and the business.
(ii) Includes a certification made by the person receiving the personal information that the person understands the restrictions in subparagraph (A) and will comply with them.
(B) A person covered by this paragraph that violates any of the restrictions set forth in this title shall be liable for the violations. A business that discloses personal information to a person covered by this paragraph in compliance with this paragraph shall not be liable under this title if the person receiving the personal information uses it in violation of the restrictions set forth in this title, provided that, at the time of disclosing the personal information, the business does not have actual knowledge, or reason to believe, that the person intends to commit such a violation.

(x)

(y) “Unique identifier” or “Unique personal identifier” means a persistent identifier that can be used to recognize a consumer, a family, or a device that is linked to a consumer or family, over time and across different services, including, but not limited to, a device identifier; an Internet Protocol address; cookies, beacons, pixel tags, mobile ad identifiers, or similar technology; customer number, unique pseudonym, or user alias; telephone numbers, or other forms of persistent or probabilistic identifiers that can be used to identify a particular consumer or device. For purposes of this subdivision, “family” means a custodial parent or guardian and any minor children over which the parent or guardian has custody.

(y)

(z) “Verifiable consumer request” means a request that is made by a consumer, by a consumer on behalf of the consumer’s minor child, or by a natural person or a person registered with the Secretary of State, authorized by the consumer to act on the consumer’s behalf, and that the business can reasonably verify, pursuant to regulations adopted by the Attorney General pursuant to paragraph (7) of subdivision (a) of Section 1798.185 to be the consumer about whom the business has collected personal information. A business is not obligated to provide information to the consumer pursuant to Sections 1798.100, 1798.105, 1798.110, and 1798.115 if the business cannot verify, pursuant to this subdivision and regulations adopted by the Attorney General pursuant to paragraph (7) of subdivision (a) of Section 1798.185, that the consumer making the request is the consumer about whom the business has collected information or is a person authorized by the consumer to act on such consumer’s behalf.

SECTION 1.Section 1798.100 of the Civil Code is amended to read:
1798.100.

(a)A consumer shall have the right to request that a business that collects a consumer’s personal information disclose to that consumer the categories and specific pieces of personal information the business has collected.

(b)A business that collects a consumer’s personal information shall, at or before the point of collection, inform consumers as to the categories of personal information to be collected and the purposes for which the categories of personal information will be used. A business shall not collect additional categories of personal information or use personal information collected for additional purposes without providing the consumer with notice consistent with this section.

(c)A business shall provide the information specified in subdivision (a) to a consumer only upon receipt of a verifiable consumer request.

(d)A business that receives a verifiable consumer request from a consumer to access personal information shall promptly take steps to disclose and deliver, free of charge to the consumer, the personal information required by this section. The information may be delivered by mail or electronically, and if provided electronically, the information shall be in a portable and, to the extent technically feasible, readily useable format that allows the consumer to transmit this information to another entity without hindrance. A business may provide personal information to a consumer at any time, but shall not be required to provide personal information to a consumer more than twice in a 12-month period.

(e)This section shall not require a business to retain any personal information collected for a single, one-time transaction, if such information is not sold or retained by the business or to reidentify or otherwise link information that is not maintained in a manner that would be considered personal information.