Attorneys who have to guide companies through the California Consumer Privacy Act (CCPA) would like clarification sooner, not later, on the proposed regulations the state's attorney general set out last year.

In October, California Attorney General Xavier Becerra released 24 pages of draft regulations concerning the CCPA that will be finalized by July 1, 2020, at the latest. The date is significant because Becerra has said that his office will not begin enforcing the law until then.

"For the most part, we are assuming that the proposed regulations will be implemented as they were initially drafted," Michelle Hon Donovan, a partner at Duane Morris in San Diego, said.

She said there is no clarity on some of the definitions, and businesses will need to be given direction in order to comply with the law, which came into effect on Jan. 1. Issues requiring additional clarification include a definition of personal information. The proposed rule says: "A business shall not provide a consumer with specific pieces of personal information if the disclosure creates a substantial, articulable, and unreasonable risk to the security of that personal information, the consumer's account with the business, or the security of the business's systems or networks."

"That language is unclear and can be interpreted very broadly," Hon Donovan said.

Jean-Marc Chanoine, global head of strategic accounts and legal counsel at Templafy in New York, said while there is a grace period now, the California Office of Attorney General will ultimately be going after companies for minute procedures in which the language on how to comply is vague.

For example, if someone requests what information a company has on them, a company may need to collect more information on that person to verify they are not a bad actor trying to steal information. There are questions, Chanoine said, on whether that is allowed and how long a company can retain that additional information.

"Anyone can request information on data that is being collected on them," Chanoine said. "That data could be used by bad actors. How are companies supposed to know what is a legitimate request?"

Chanoine said while the attorney general is not aiming to punish companies that are trying to do the right thing, the attorney general still has not defined which efforts would show good faith and which would not.

Chanoine would like to see some kind of protection for companies from frivolous class-action lawsuits. One of the most notable changes to the CCPA is that consumers now only have a private right of action for a data breach. If the suit is successful, consumers who have their data exposed in a breach can be given anywhere from $100 to $750.

"What is the attorney general doing to make sure there are not abuses in class-action lawsuits?" Chanoine asked. "Let's make sure we're protecting consumers and companies, and not causing more harm than good."

The timing is what is largely concerning to clients, said Jim Halpert, a partner at DLA Piper in Washington, D.C. He said some of these changes would take a while because there is no technology to handle some of the proposed requirements. One involves having "do not sell" notices that could be sent through a browser signal, Halpert explained.

"There is not the technology to do this, and it is unclear how, beginning on July 1, businesses would be able to comply with that," Halpert explained. "The CCPA has been a moving target, and the regulations include some new ideas which are a little difficult for entities to comply with."

From: Legaltech News