Photo of Céline Guillou

Céline Guillou is a member of Hopkins & Carley’s Corporate Practice and focuses on data privacy law and compliance.  Céline holds the certificate for Certified Information Privacy Professional Europe (CIPP/E) from the International Association of Privacy Professionals (IAPP), the global standard in privacy certification.

With COVID-19 driving so much business online, like most people, I am increasingly seeing offers from companies vying for new customers to hand over my contact information in exchange for discounts or rewards. This includes businesses that seek to use personal information obtained through loyalty or rewards programs, those that offer price or service differences such as with free versus paid subscriptions to a service (e.g., music streaming), or those that simply want to increase their marketing reach and attract new consumers by offering a discount in exchange for personal information. There is really nothing new to these types of marketing strategies, but for companies that are subject to the California Consumer Privacy Act (CCPA), providing discounts, rewards or free-versus-paid services to California consumers has become trickier because the CCPA contains very specific – and quite stringent – obligations when it comes to financial incentives. The CCPA defines a “financial incentive” as a program, benefit, or other offering (including payments to consumers) related to the collection, retention, or sale of personal information – or, put simply, you give me your personal information and I will give you a discount code or rewards. Many businesses that are subject to CCPA, however, are not complying with the CCPA’s complex requirements regarding financial incentives. Failing to comply could spell trouble. Below we explain the challenges of implementing the CCPA’s requirements with respect to financial incentives.
Continue Reading Providing Financial Incentives Under CCPA

The Federal Trade Commission has broadly relied on Section 5 of the Federal Trade Commission Act (FTC Act) to investigate and enforce against consumer protection violations, including in the context of data privacy and security. Specifically, Section 5 of the FTC Act prohibits unfair or deceptive acts or practices in or affecting commerce. With respect to data privacy and security, the FTC has repeatedly taken the position that under Section 5 of the FTC Act, a company’s failure to implement and maintain appropriate measures to protect consumers’ information may constitute an unfair practice. Likewise, making false or misleading representations (including omissions) about a company’s data privacy and security practices – notably in consumer-facing privacy notices – has been deemed by the FTC to constitute a deceptive trade practice. In its enforcement actions for data privacy and security violations, the FTC has sought – and obtained – both injunctive and equitable monetary relief (e.g., restitution or disgorgement) against companies whose practices violated Section 5 of the FTC Act. But how the FTC obtains equitable monetary relief – and whether it may even continue to do so under Section 13(b) of the FTC Act – is now before the Supreme Court.
Continue Reading How the FTC’s Enforcement of Data Privacy and Security May be Impacted by the U.S. Supreme Court’s Upcoming Review of the FTC’s Use of Section 13(b)

As we (remotely) head back to school, we thought it timely to post our “annual” reminder that collecting, using and/or disclosing children’s personal information comes with some restrictions (see last year’s post here). With this unprecedented back-to-school season, nearly all children’s activities, products and services are moving online for the foreseeable future. As such, now more than ever organizations should really take the time to determine whether they collect any data from children (or have actual knowledge of doing so), and ensure that they are taking the proper steps to comply with applicable rules.
Continue Reading Children’s Privacy Check-Up

As we all know, the EU-U.S. Privacy Shield framework, the cross-border transfer mechanism relied upon by over 5,000 U.S. entities until just over a month ago, was recently invalidated by the CJEU in the Schrems II case (see here for our last post following the ruling). So what next?
Continue Reading Addressing Cross-Border Transfers from the EU Following the Schrems II Ruling

With the Covid-19 crisis, many companies that may have traditionally only done business offline are transitioning and expanding into e-commerce. Others are starting new businesses and innovating new technologies and platforms. There are a multitude of considerations that go into these new ventures, an important one of which is security.
Continue Reading Data Security and the New York SHIELD Act: Going Beyond New York Companies

During a recent keynote presentation with the IAPP following the July 1 enforcement deadline of the CCPA, Stacey Schesser, Supervising Deputy Attorney General for the State of California (“Deputy AG”), provided a bit of a roadmap for CCPA enforcement actions from the California Attorney General (“AG”) that are both currently underway and expected in the near future.
Continue Reading CCPA Enforcement: What to Expect Next

Despite three annual reviews by European Union Commissioners, the European Court of Justice (CJEU) invalidated the Privacy Shield and called into question many transfers of personal data pursuant to the Standard Contractual Clauses on July 16.  At stake are transfers of EU personal data to thousands of U.S. companies that rely on personal data being transferred from the EU. The case is colloquially known as “Schrems II” as it is the second case involving Maximillian Schrems (Case C-311/18 Data Protection Commissioner v Facebook Ireland and Maximillian Schrems). Mr. Schrems’ first case resulted in an invalidation of the EU-US Safe Harbor, the Privacy Shield’s predecessor in 2015.
Continue Reading Schrems II: EU Personal Data Transfers to the U.S. and the Invalidation of the Privacy Shield

The California Attorney General’s final proposed regulations under CCPA (“Regulations”) have been submitted, and pending approval by the California Office of Administrative Law, will soon become enforceable by law. One often overlooked requirement of the CCPA is the obligation of covered businesses to provide notices that are “reasonably accessible.” All drafts of the Regulations have provided more detail about the accessibility requirement contained in the CCPA, and the final Regulations make clear that for notices provided online, businesses must follow generally recognized industry standards, such as the Web Content Accessibility Guidelines, version 2.1 (WCAG) from the World Wide Web Consortium. While companies have largely focused on updating the language or substance of their notices to comply with CCPA, this requirement as to form has, by and large, slipped through the cracks, but is certain to generate some discussion (if not litigation) in coming months.

By way of background, the Americans with Disabilities Act (ADA) requires, among other things, that places of “public accommodation” remove barriers to access for individuals with disabilities. While this has long been considered the rule for physical establishments, including privately-owned, leased or operated facilities like hotels, restaurants, retail merchants, health clubs, sports stadiums, movie theaters, and so on, virtual accessibility has been much less consistent, and generally the exception rather than the norm. In fact, web accessibility hardly ever appears on businesses’ radars, due perhaps to a very short-sighted perception of what, in fact, qualifies as a disability as well as a lack of overall guidance.

Web accessibility means ensuring that websites, mobile applications, and other virtual platforms can be used by everyone, including those with disabilities, such as impaired vision. However, what exactly is required is a source of confusion. In 2019, the Department of Justice (DOJ), which is responsible for establishing regulations pursuant to the ADA, withdrew regulations that had been drafted for website accessibility, and has since yet to promulgate any such regulations. This has left courts with the task of determining how and to what extent web accessibility is required under the ADA when it comes to businesses that offer goods and services online, with varying results.
Continue Reading CCPA and Web Accessibility

At the Worldwide Developers Conference on June 23, Apple announced an assortment of new privacy features – some quite significant for developers – that will be included as part of iOS 14. Some of the new privacy features include added protections against user tracking on apps and websites, as well as transparency measures to prevent apps from using cameras or microphones without a user’s knowledge. How location data is collected will also be impacted: iOS already enables users to block specific apps from collecting data about their location, but now users will be able to share approximate location data.

One very significant change is that app developers will now be required to disclose the types of data that their app collects, and importantly, call out specific information that could be used to track users across platforms. Inspired by nutrition labels that are typically affixed to food products, these new disclosure mandates from Apple will require developers to complete a specific form (showcased at the Worldwide Developers Conference). When users search for an app, the summary of collected data will appear alongside other information about the app.
Continue Reading Apple’s iOS 14 Transformative Privacy Announcements

As cities and states gradually open up, companies have begun to assess under what circumstances they can re-open the workplace – and in particular, what health-related personal information can and should be collected. When it comes to monitoring employees, generally speaking, privacy and employment law are increasingly overlapping as more stringent laws are adopted, and COVID-19 has brought this overlap to the forefront. Our employment team at Hopkins & Carley has provided a number of resources and webinars on the employment-related issues of COVID-19 and what can and cannot be done (available here). Here we will focus on the intertwined privacy implications of allowing individuals – employees and non-employees – back into offices and facilities, particularly with respect to the California Consumer Privacy Act (CCPA).

What are the CCPA’s notice requirements?
Continue Reading Returning to Work: CCPA Considerations