CCPA Privacy FAQs: So what is with the CCPA’s deadline? Is it, or is it not, going into force on January 1, 2020?
There is a good deal of confusion about when the CCPA actually “becomes law.” The confusion is due, in large part, to a lack of drafting clarity presumably caused by the hasty drafting of the Act.1
The CCPA includes the following references to deadlines:
|Enacted||Date that the law was enacted.||June 28, 2018|
|Operative||Date that the law becomes “operative.”2||January 1, 2020|
|Enforceable by private suit||Date that individuals can bring suit for an alleged violation of the data security provisions.3||January 1, 2020|
|Attorney General Mandatory Regulations||Date by which the Attorney General must “adopt” regulations on mandatory topics.4||On, or before, July 1, 2020|
|Attorney General Discretionary Regulations||Date by which the Attorney General can adopt additional regulations on other topics that may “further the purposes” of the CCPA||No deadline|
|Attorney General Enforcement Actions||Date by which the Attorney General can bring an enforcement action under the CCPA.5||July 1, 2020 (unless final regulations are published sooner)|
In summary, although the statute becomes “operative” on January 1, 2020, the only enforcement of the statute as of that date relates to suits involving data security breaches. A company cannot be a defendant in a civil action for the privacy-oriented provisions of the CCPA until July of 2020 – at which time the Attorney General can bring enforcement actions premised on any provision of the CCPA (regardless of whether such a provision relates to privacy or security, or one of the Attorney General’s regulations).
The timeline created by California legislature has raised questions about whether the Attorney General is prohibited from initiating an enforcement action until July 1, 2020 (i.e., prohibited from filing a lawsuit until that date), or whether the Attorney General is prohibited from bringing an enforcement action for conduct that occurs prior to July 1, 2020. In other words, the CCPA is ambiguous about whether companies that violate the privacy provisions of the Act on January 1, 2020 are immune from liability, or could be subject to an enforcement action initiated on July 1, 2020, as the January conduct would fall within the scope of the four year statute of limitations that applies to an Attorney General initiated suit.6 While the text of the Act is ambiguous, a strong argument could be made that the intent of the legislature in building a delayed enforcement period into the statute was to provide businesses with time – between when the statutorily mandated interpretative guidance is first proposed and when it is approved as a final rule – to process that guidance, and take steps to come into compliance. In addition, the Attorney General has not given any indication to-date that he intends to bring enforcement actions premised on conduct that occurs between January 1, 2020 and the final publication of regulations. The net result is that while the Attorney General might theoretically attempt to bring a suit under the CCPA on July 1, 2020 for conduct that occurred before July 1, 2020, as a practical matter, it is highly unlikely that he will attempt to do so, and dubious that such an attempt, if made, would be successful.