In the period of just a week, California passed a bold new privacy law — the California Consumer Privacy Act of 2018. This law was hurried through the legislative process to avoid a proposed ballot initiative with the same name. The ballot initiative was the creation of Alastair Mactaggart, a real estate developer who spent millions to bring the initiative to the ballot. Mactaggart indicated that he would withdraw the initiative if the legislature were to pass a similar law, and this is what prompted the rush to pass the new Act, as the deadline to withdraw the initiative was looming.
There are others who summarize the law extensively, so I will avoid duplicating those efforts. Instead, I will highlight a few aspects of the law that I find to be notable:
(1) The Act creates greater transparency about the personal information businesses collect, use, and share.
(2) The Act provides consumers with a right to opt out of the sale of personal information to third parties and it attempts to restrict penalizing people who exercise this right. Businesses can’t deny goods or services or charge different prices by discounting those who don’t opt out or provide a “different level or quality of goods or services to the consumer.” However, businesses can do these things if they are “reasonably related to the value provided to the consumer by the consumer’s data.” This is a potentially large exception depending upon how it is interpreted.
(3) The Act allows businesses to “offer financial incentives, including payments to consumers as compensation,” for collecting and selling their personal information. Financial incentive practices cannot be “unjust, unreasonable, coercive, or usurious in nature.” I wonder whether this provision will undercut the restriction on offering different pricing or levels of service in exchange for people allowing for the collection and sale of their information. Through some clever adjustments, businesses that were enticing consumers to allow the collection and sale of their personal data through different prices or discounts can now restructure these into “financial incentives.”
I have a confession to make, one that is difficult to fess up to on the US side of the pond: I love the GDPR.
There, I said it. . .
In the United States, a common refrain about GDPR is that it is unreasonable, unworkable, an insane piece of legislation that doesn’t understand how the Internet works, and a dinosaur romping around in the Digital Age.
But the GDPR isn’t designed to be followed as precisely as one would build a rocket ship. It’s an aspirational law. Although perfect compliance isn’t likely, the practical goal of the GDPR is for organizations to try hard, to get as much of the way there as possible.
The GDPR is the most profound privacy law of our generation. Of course, it’s not perfect, but it has more packed into it than any other privacy law I’ve seen. The GDPR is quite majestic in its scope and ambition. Rather than shy away from tough issues, rather than tiptoe cautiously, the GDPR tackles nearly everything.
Here are 10 reasons why I love the GDPR:
(1) Omnibus and Comprehensive
Unlike the law in the US, which is sectoral (each law focuses on specific economic sectors), the GDPR is omnibus – it sets a baseline of privacy protections for all personal data.
This baseline is important. In the US, protection depends upon not just the type of data but the entities that hold it. For example, HIPAA doesn’t protect all health data, only health data created or maintained by specific types of entities. Health data people share with a health app, for example, might not be protected at all by HIPAA. This is quite confusing to individuals. In the EU, the baseline protections ensure that nothing falls through the cracks.
Recently, I created two new FERPA training resources.
I created a 1-page visual summary of FERPA, which I call the FERPA Whiteboard. The idea was to summarize HIPAA in a concise and visually-engaging way. You can download a PDF handout version here. We’ve been licensing it to many organizations for training and awareness purposes.
FERPA Interactive Whiteboard
I subsequently created a new training module — an interactive version of the FERPA Whiteboard — the FERPA Interactive Whiteboard. When people click on each topic, the program provides brief narrated background information, presented in a very understandable and memorable way. Trainees can learn at their own pace. This program is designed to be very short — it is about 5 minutes long.
It can readily be used on internal websites to raise awareness and teach basic information about FERPA. It can also be used in learning management systems.
I co-authored Risk and Anxiety: A Theory of Data Breach Harms with Professor Daniel Keats Citron. The piece is forthcoming in Texas Law Review this year. Even though there continues to be a steady flow of data breaches, there remains significant confusion in the courts around the issue of harm. Courts struggle with data breach harms because they are intangible, risk-oriented, and diffuse. Professor Citron and I argue: “Despite the intangible nature of these injuries, data breaches inflict real compensable injuries. Data breaches raise significant public concern and legislative activity. Would all this concern and activity exist if there were no harm? Why would more than 90% of the states pass data-breach notification laws in the past decade if breaches did not cause harm?” We provide examples of different types of data breaches and discuss whether harm should be recognized. We argue that there are many instances where we would find harm that the majority of courts today would not.