On October 5, 2021, the California Governor signed Assembly Bill 694 (AB 694) on privacy and consumer protection. AB 694 amends several elements of the California Consumer Privacy Act (CCPA) including new definitions and amendments to existing definitions among other things.

AB 694 also amends the timeline for the California Privacy Protection Agency’s (CPPA) rulemaking authority, clarifying that this will begin: “On and after the later of July 1, 2021, or within six months of the agency providing the Attorney General with notice that it is prepared to assume rulemaking responsibilities under this title […]

New Definitions as Introduced by AB 694

AB 694 will introduce several new definitions to the California Civil Code relating to key definitions under the CCPA including advertising and marketing, consent, contractor, and household among others. The new definitions are as follows:

Advertising and marketing

“a communication by a business or a person acting on the business’ behalf in any medium intended to induce a consumer to obtain goods, services, or employment.”

Consent

“any freely given, specific, informed, and unambiguous indication of the consumer’s wishes by which the consumer, or the consumer’s legal guardian, a person who has power of attorney, or a person acting as a conservator for the consumer, including by a statement or by a clear affirmative action, signifies agreement to the processing of personal information relating to the consumer for a narrowly defined particular purpose.”

Contractor

“a person to whom the business makes available a consumer’s personal information for a business purpose, pursuant to a written contract with the business”

Cross-context behavioral advertising

“targeting of advertising to a consumer based on the consumer’s personal information obtained from the consumer’s activity across businesses, distinctly-branded websites, applications, or services, other than the business, distinctly-branded website, application, or service with which the consumer intentionally interacts.”

Dark pattern

“a user interface designed or manipulated with the substantial effect of subverting or impairing user autonomy, decisionmaking, or choice, as further defined by regulation.”

Household

“a group, however identified, of consumers who cohabitate with one another at the same residential address and share use of common devices or services.”

Intentionally interacts

“when the consumer intends to interact with a person, or disclose personal information to a person, via one or more deliberate interactions, including visiting the person’s website or purchasing a good or service from the person. Hovering over, muting, pausing, or closing a given piece of content does not constitute a consumer’s intent to interact with a person.”

Nonpersonalized advertising

“advertising and marketing that is based solely on a consumer’s personal information derived from the consumer’s current interaction with the business with the exception of the consumer’s precise geolocation.”

Definitions Amended by AB 694

In addition to new definitions, AB 694 will also amend a number of existing definitions such as ‘business’ and clarifies the definition of personal information that falls outside the scope of the law.

Business

The language relating to the definition of a covered business under the CCPA has been amended to read:

As of January 1 of the calendar year, had annual gross revenues in excess of twenty-five million dollars ($25,000,000) in the preceding calendar year

And

“Alone or in combination, annually buys, sells, or shares the personal information of 100,000 or more consumers or households.”

AB 694 further clarifies the definition of a covered business under the CCPA by introducing language to address joint ventures and partnerships as well as voluntary declarations of compliance to the CPPA.

Personal information 

The language relating to the definition of publicly available personal information has been amended to read, “Personal information does not include publicly available information or lawfully obtained, truthful information that is a matter of public concern.”

In addition, AB 694 clarifies ‘publicly available’ as: “information that is lawfully made available from federal, state, or local government records, or information that a business has a reasonable basis to believe is lawfully made available to the general public by the consumer or from widely distributed media; or information made available by a person to whom the consumer has disclosed the information if the consumer has not restricted the information to a specific audience “Publicly available” does not mean biometric information collected by a business about a consumer without the consumer’s knowledge.”

The signing of AB 694 follows recent developments in California including the CPPA’s call for public comment on rulemaking and the selection of Ashkan Soltani as Executive Director for the CPPA. Provisions of AB 694 will take effect on January 1, 2022.

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Further reading on Assembly Bill 694, the CCPA, and the CPRA:

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