On March 11, 2020, California Attorney General Xavier Barrera released a second revision to the draft California Consumer Privacy Act (CCPA) regulations. The new draft contains a number of important changes to the regulatory landscape under the CCPA. One very specific change—concerning data scraping—caught my eye. Since the CCPA has been discussed and, indeed, even earlier in connection with the GDPR, there has been an open question of whether entities that pull personal data from public sources (e.g., from the publicly available LinkedIn pages) were required to provide notice to the individuals whose data had been collected. The new regulations answer the question, at least in part.
Specifically, §999.305(d) as revised provides that “[a] business that does not collect personal information directly from a consumer does not need to provide a notice at collection to the consumer if it does not sell the consumer’s personal information.”
Thus, a data scraper who does not sell the scraped information would not have to provide notice at collection. Where the company scrapes information for its own use, even to market to the identified consumers, it would not have to provide notice. My Farella colleague, Deepak Gupta asked “what if they collect the data, de-identify it, and sell the de-identified collection of data?” As the regulations are currently written, such a business is not subject to the notice requirements because it is not selling collections of personal information.”
On the other hand, a scraper that creates and sells collections of scraped data including personal information would not be exempted from the reporting requirement, and would need to provide notice “at collection,” though it is still not clear what that specifically means. That is, what is the timing of such notice and what form does it need to take? What would happen, for example, if a scraper that sells such collections of personal information does not collect any contact information? Would that data scraper be required to scrape contact information as well?
Not surprisingly, there are still questions to be answered. Of course, these regulations are still not final, so we could get more answers as we go forward. And more questions.