Keys to California's Consumer Privacy Act

On June 26 of this year, Connecticut Gov. Ted Lamont signed HB 7424, the state budget bill. Among the provisions in this over 200-page piece of legislation: “The bill repeals the state’s information security program law, replacing it with provisions substantially similar to the National Association of Insurance Commissioners (NAIC) insurance data security model law.” This is remarkable for two reasons. The first is Connecticut doing something no state west of the Mississippi has done – adopt the NAIC Model Law. The second is the Connecticut legislature actually repealed outdated laws before it adopted the new ones. Clearly, these people have never been to California. Which brings us to the California Consumer Privacy Act of 2018, or what is now affectionately known as the CCPA. Insurance companies are anxiously anticipating the outcome of several assembly bills amending the CCPA that are awaiting action by the Senate, now that the legislature has returned from summer recess. Regardless of the changes, it remains likely – even though unnecessary – that the CCPA will “go live” on Jan. 1, 2020. Given the number of cans kicked down the road by the legislature this year on important CCPA issues, it will be difficult for regulators to provide much needed clarity by the July 1, 2020 rule-making deadline. What regulations are adopted will likely be subject to quick change once the Jan. 1, 2021, iteration of the CCPA takes shape during next year’s legislative session. It will also be difficult for the attorney general to provide advice to businesses or third parties on how to comply with the CCPA, a requirement the attorney general feels, correctly, is a bit at odds with his obligation to enforce the CCPA. Maybe that, too, will be part of the 2020 agenda. In the meantime, insurance companies are faced with an increasing number of privacy and data security requirements not associated with the CCPA. For insurers doing business in New York or states that have adopted a form of the NAIC Insurance Data Security Model Law, compliant practices are being developed right now. In the case of New York and its Cybersecurity Requirements for Financial Institutions, 23 NYCRR 500, the “go-live” date was March 1 of this year. The New York regulation became effective one year after publication but also had a two-year transitional period before full compliance was required. That implementation process could have been emulated for the CCPA. Instead, there appears to be a hard effective date of Jan. 1, 2020 even as key amendments are still being negotiated. And remember, while the attorney general cannot bring an enforcement action until the earlier of July 1, 2020, or the adoption of regulations, lawsuits can happen right away. More accurately, lawsuits can commence after the 30-day notice and right-to-cure provisions are triggered. The CCPA has a series of “data exceptions” that are evolving. While entities such as insurance companies are not exempt from the new law, certain personal information (PI) of “consumers” is. Among those exemptions is PI collected that is also subject to the Gramm-Leach-Bliley Act (GLBA), 1999 legislation that ushered in privacy protections and rules for the safeguarding of PI by financial institutions when the merger of banks, investment firms and insurance companies became authorized. GLBA also required states to undertake certain actions in terms of privacy of PI; if they did not, the information practices of insurers (and others) would be subject to federal regulation. States could provide greater protections than the federal law but not diminish them. See also: First of Many Painful Privacy Laws   So, the NAIC and the California Department of Insurance sprang into action. California adopted portions of NAIC model regulations governing privacy of financial and health information, and additional regulations governing the safeguarding of that information. While the Department of Insurance was adopting portions of these models, it also provided additional privacy protections and conformed the new privacy regulations to already existing statutory protections in the Insurance Information and Privacy Protection Act (IIPPA). In addition, the legislature adopted the California Financial Information Privacy Act (CFIPA) as part of providing greater privacy protections for California residents and customers of financial institutions (including insurers) than required under GLBA. As part of the expansion of privacy protections beyond those contained in the federal law was the characterization of a workers’ compensation claimant as a “consumer” under certain circumstances. While this activity was going on, the Federal Trade Commission (FTC) adopted the Privacy Rule – relating to information practices and providing the ability for consumers to “opt out” of having their information shared. It also adopted the Safeguards Rule, requiring a financial institution to develop, implement and maintain a comprehensive information security program. After this great rush of legislative and regulatory activity in Sacramento and Washington, D.C., during 2000-2002, the pace of new regulation of privacy practices of insurers slowed. Newer iterations of the NAIC model regulations were not adopted in California, and neither was the later iteration of the IIPPA. The legislature continued to push out privacy-related bills at a dizzying pace, including the California Online Privacy Protection Act (COPPA), 2003 legislation requiring operators of websites and online services that collect PI about the users of their site to conspicuously post their privacy policies on the website and comply with them. The COPPA has been amended several times to keep up with technology. It is not in conflict with the existing requirements of entities that fall under GLBA. Indeed, analyses of Assembly Bill 68 (Simitian), 2003 legislation creating the COPPA, suggest that part of the intent of this legislation was to have other businesses operating on the internet adopt the same policies and practices as financial institutions under GLBA. The CCPA does not amend the COPPA, or even refer to it. Instead, the CCPA adds even more content on business’ websites so the new rights allowed under it can be exerted by consumers. Both the CCPA and COPPA want their notices to be “conspicuous” and on the business’ home page. It’s going to get crowded on home pages. In March of this year, the Federal Trade Commission (FTC) announced it was proposing to revisit both the Privacy Rule and the Safeguards Rule under GLBA. The changes as they relates to the Safeguards Rule will closely track the NAIC Insurance Data Security Model Law and the New York Cybersecurity Regulation. Once adopted, the changes may result in more action from the NAIC. None of this will occur in 2019, and maybe not even in 2020, but the landscape for privacy protection and data security for insurers and insurance organizations will be in a state of flux at least through 2021. The authors of the CCPA acknowledged that, within the patchwork of state and federal laws governing PI, some safeguards are adequate. The initiative measure upon which the CCPA is based provided data exceptions for PI covered by the Health Insurance Portability and Accountability Act of 1996 (HIPAA). These data exceptions were expanded to include other laws, including GLBA and the CFIPA, during the legislative negotiations in 2018 that resulted in the initiative being withdrawn. In the rush to forestall an initiative and pass something to send to then-Gov.r Jerry Brown before the end of June last year, the California legislature did what it all too often does: add new laws without regard to existing ones addressing the same issues but in a different way. Because only certain PI is exempted from the requirements of the CCPA, businesses that collect and disclose exempt data must nevertheless maintain the architecture of the CCPA for non-exempt data. Consumers who seek to exercise their rights – assuming they will read properly crafted notices on business websites – will access a series of links only to be told that the PI they are seeking to control or delete really isn’t PI, even though it includes the consumer’s name, address, Social Security number, etc. It’s just not CCPA PI. Well, that’s certainly enlightened public policy, isn’t it? See also: In Race to AI, Who Guards Our Privacy?   It is difficult to claim the current and evolving laws and regulations governing consumer control over and data security of PI collected by insurers is inadequate. Yes, there have been security breaches among financial institutions covered by GLBA. That, however, is not the exclusive measure of effective security. The CCPA acknowledges that “reasonable” security efforts will protect a business from liability if unencrypted or unredacted PI is improperly accessed. Clearly, that also sends a message as to what the legislature thinks is a minimum standard for what is “reasonable.” Not good enough. The IIPPA, GLBA, the Privacy and Safeguards Rules of the FTC, the Department of Insurance Privacy Regulation and continuing initiatives by the FTC and the NAIC demonstrate a decades-long history of developing strong laws to protect the privacy of insurance consumers. Advocates for the CCPA would do well to remember that not every business is unregulated when it comes to information practices and give the IIPPA and subsequent laws a level of earned deference in today’s digital debate. Or, to quote Jacob McCandles (John Wayne) in the movie "Big Jake," “If you can’t respect your elders, I’ll just have to teach you to respect your betters.” The CCPA gathers headlines because it is intended to empower individuals and their efforts to control their own PI. When PI is shared, policymakers want to make certain it is shared transparently and securely regardless of where the PI goes. This is a response to the use of PI by very large international companies that occupy an outsized space in what is purported to be a competitive digital marketplace. They are also the companies most able to afford the increasingly complex data security environment throughout the world and who can pay very large penalties for non-compliance. Good for them. This new and complex environment is where policymakers in Sacramento should focus for the remainder of 2019 and next year, when CCPA 3.0 will roll out. Unfortunately, they won’t.