How a new tool that crowdsources California privacy law violation allegations creates gray areas for businesses

California is conscripting everyday people in its privacy law enforcement war.

California Attorney General Rob Bonta has been sending companies so-called “notice-to-cure” letters when they are found by his office to be out of compliance with the state’s California Consumer Privacy Act. Now his Department of Justice is crowdsourcing Californians to do the same using a new tool allowing them to create letters to send to companies via email or snail mail notifying them that they may be in violation of the law if they don’t include a homepage link for people to opt out from data collection. But rather than clarifying compliance questions for a law that already has been accused of being confusing, the tool could create a new gray area for companies to navigate.

“I think it’s an interesting tactic because it kind of puts the consumer in the attorney general’s office and helps them in the policing function,” said Jessica B. Lee, partner, chair, privacy, security and data innovations at law firm Loeb and Loeb.

The tool asks a series of questions related to details about the business in question such as “Does the business have a ‘Do Not Sell My Personal Information’ link on its website or its mobile app?” Similar to tools automating letters for political advocacy causes, it spits out a draft letter after questions are answered. One of many iterations of letter drafts created by the tool reads, “I believe that your business…is in violation of the California Consumer Privacy Act’s requirement to provide a clear and conspicuous ‘Do Not Sell My Personal Information’ link on its Internet homepage that enables consumers to opt out of the sale of their personal information.”

“it seems like it’s walking this really interesting line with outsourcing the cure notices” to everyday people, said Stacey Gray, senior counsel of Future of Privacy Forum.

Questions remain regarding due process

Simply using the tool does not make for an official consumer complaint regarding a CCPA violation, the AG’s office told Digiday. However, sending notice using a letter built with the tool could lead to enforcement action, according to Bonta. “This email may trigger the 30-day period for the business to cure their violation of the law which is a prerequisite of the attorney general, my office, bringing an enforcement action,” he said during a press conference on Monday to mark the one-year anniversary since the AG’s office began enforcing CCPA in July 2020.

When the attorney general’s office itself sends letters notifying firms they are not in compliance with CCPA, they get a 30-day grace period to work with the AG’s office to make changes to come into compliance.

The letter-generating tool raises “a number of due process concerns that don’t feel particularly well-thought-out,” said Lee. For instance, she said it’s not clear whether the 30-day clock starts ticking when someone sends a letter or if a company should wait until they get separate correspondence from the AG’s office.

She also said it is unclear whether companies receiving letters from …read more

Source:: Digiday