New CCPA regulations announced shortly before new Attorney General named

On Monday, March 15, 2021, former California Attorney General Xavier Becerra announced new regulations under the California Consumer Privacy Act (CCPA), which have been approved by the Office of Administrative Law. According to the press release, the regulations’ purpose is to “prohibit[] companies from burdening consumers with confusing language or unnecessary steps such as forcing them to click through multiple screens or listen to reasons why they shouldn’t opt out” of the sale of their personal information.

The regulations ban the use of so-called “dark patterns” that confuse consumers with respect to their right to opt out. Specifically, they ban:

• using an opt-out request process that requires more steps than the process for a consumer to opt back into the sale of personal information after previously opting out;
  
   
• using confusing language (e.g., double-negatives, “Don’t Not Sell My Personal Information”);
  
   
• requiring consumers to click through or listen to unnecessary reasons why they should not submit an opt-out request;
  
   
• requiring a consumer to provide personal information that is unnecessary to implement the request; or
  
   
• upon clicking the “Do Not Sell My Personal Information” link, requiring a consumer to search or scroll through the text of a website or privacy policy to submit the opt-out request.

The new regulations also give businesses an optional “Privacy Options” icon. The Privacy Options icon was designed by Carnegie Mellon University’s Cylab and the University of Michigan’s School of Information. The icon allows consumers to know where they can go to opt-out of the sale of their personal information. The icon is available on the California Attorney General website here. The approved regulations can be viewed here.

On March 18, 2021, the U.S. Senate confirmed Xavier Becerra as the Secretary of the Department of Health and Human Services, and Becerra resigned as California Attorney General. California Governor Gavin Newsom named Rob Bonta as California’s new Attorney General on March 24, 2021. The nomination must be confirmed by the California State Assembly and Senate. Bonta was elected to the California State Assembly’s 18th District in 2012.

Libby Casale is an associate in Thompson Coburn’s Business Litigation group.

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