Verifying Consumer Requests

The second article in our Guide to the CCPA series focuses on verifying consumer requests received pursuant to the California Consumer Privacy Act (CCPA). The California attorney general’s recently proposed regulations implementing the CCPA establish rules and procedures for verifying the identity of consumers making requests to know and requests to delete. This article explains those rules and provides best practices for verifying consumer requests made under the CCPA.

General Rules Regarding Verification

The CCPA statutory text does not provide much, if any, guidance on how businesses should verify consumer requests. It talks about responding to “verifiable consumer requests” but leaves to the California attorney general the task of specifying how a business must verify that the consumer making the request is actually who the consumer claims to be. The proposed regulations have a number of provisions regarding these requirements.

Specifically, the proposed regulations require businesses to establish, document, and comply with a reasonable method for verifying that the person making a request to know or a request to delete is the consumer about whom the business has collected information.[1] In determining the appropriate verification method, the proposed regulations recommend a number of considerations for businesses:

• Whether the business can feasibly match identifying information provided by the consumer to the personal information already maintained by the business, or use a third-party identity verification service
• The sensitivity of the information collected about the consumer, as sensitive or valuable personal information (discussed further below) would warrant a more stringent verification process
• The risk of harm to the consumer if there were unauthorized access or deletion
• Whether the personal information to be provided by the consumer to verify the consumer’s identity is sufficiently robust to protect against fraudulent requests or being spoofed or fabricated
• The manner in which the business interacts with the consumer
• Available technology for verification[2]

Businesses are required to implement reasonable security measures to detect fraudulent identity verification activity.[3] With these considerations in mind, a business must develop a reasonable verification process, and specific rules come into play depending on whether the consumer already holds a password-protected account with the business.

In an example provided in the proposed regulations, a business that maintains a consumer’s name and credit card number may require the consumer to provide the credit card’s security code and identify a recent purchase made with the credit card in order to verify the consumer’s identity to a reasonable degree of certainty.

Verification for Password-Protected Accounts

Where a consumer maintains a password-protected account with a business, the proposed regulations allow the business to verify the consumer’s identity through existing authentication practices, so long as they are consistent with the general rules on verification described above. Businesses must require consumers making requests through password-protected accounts to reauthenticate themselves before the business can disclose or delete a consumer’s data. If a business suspects fraudulent or malicious activity on or from a password-protected account (like an account takeover or an in-progress brute force attack), it should not comply with a consumer’s request to know or delete until further verification procedures confirm the consumer request is authentic.[4]

Two-Tier Verification Process for Non-Accountholders

For non-accountholders, the attorney general’s proposed verification standards vary by type of request:

• Requests for disclosure of categories of personal information must be verified to a “reasonable degree of certainty.” According to the proposed regulations, a “reasonable degree of certainty” may include matching at least two data points provided by the consumer with data points maintained by the business, which the business has determined to be reliable for the purpose of verifying the consumer.[5]
• Requests for specific pieces of personal information must be verified to a “reasonably high degree of certainty” requiring the business to match at least three pieces of personal information provided by the consumer with information maintained by the business and a signed declaration under penalty of perjury.[6]
• Requests to delete must be verified by a standard that varies depending upon the sensitivity of the personal information and the risk of harm to the consumer if there were unauthorized deletion.[7]
• Requests to opt out of sales need not be verified. However, if a business has a good-faith, reasonable, and documented belief that a request to opt out is fraudulent, the business may deny the request. The business must then inform the requesting party that it will not comply with the request and provide an explanation of why it believes the request is fraudulent.[8]

Exclude Sensitive Data from the Verification Process Where Possible

The proposed regulations strongly encourage businesses to avoid collecting sensitive information such as social security numbers, driver’s license numbers, credit or debit card numbers with security codes, medical information, health information, login credentials, or security questions and answers for verification purposes “unless necessary.”[9] Businesses also should avoid requesting additional information from consumers for the purposes of verification. But, if necessary, a business may request additional information so long as it is used only for verification and security or fraud prevention purposes, and is deleted after processing the consumer’s request, consistent with recordkeeping requirements in the regulations.[10] As the CCPA’s private right of action applies to only breaches of sensitive information subject to California’s reasonable security law,[11] avoiding the collection of sensitive information for verification purposes will reduce a business’s risk of facing a private right of action under the CCPA in the event of a breach.

Use of Authorized Agents to Make Consumer Requests

The proposed regulations allow a consumer to use an authorized agent to submit consumer requests on the consumer’s behalf. In order to verify a request to know or a request to delete submitted by an authorized agent (other than those operating under a power of attorney pursuant to the California Probate Code), the business may require the consumer to provide the authorized agent with written permission to do so and verify the consumer’s own identity with the business. A business is permitted to deny any request by an authorized agent that does not submit proof that the agent has been authorized by the consumer to act on the consumer’s behalf.[12]

What Happens When a Business Cannot Verify a Consumer’s Identity?

If there is no reasonable method by which a business can verify the identity of a consumer, the business can deny the request, but must (1) inform the consumer that it cannot verify the consumer’s identity and (2) provide or direct the consumer to the business’s general business practices regarding the collection, maintenance, and sale of personal information set forth in its privacy policy.[13] For requests to delete in particular, in addition to informing the consumer that it cannot verify the consumer’s identity, the business must treat the deletion request as a request to opt out of the sale of the consumer’s information.[14]

If it is not possible for a business to verify requests from a particular category of consumers, the business must say so in its privacy policy and provide an explanation as to why it has no method to identify such consumers.[15]

Recommendations and Next Steps

In developing a CCPA-compliant verification process, businesses should look to the types of personal information they already have collected from consumers, and consider using the least sensitive information to verify a consumer’s identity. Businesses that already maintain password-protected accounts should take advantage of the attorney general’s approval of such accounts as a means to verify a consumer’s identity. For businesses that do not maintain such accounts, validation using at least one or two pieces of information that only the customer would know (e.g., an order number or the last time the consumer visited a store or website) is recommended to reduce the risk of fraud. All businesses should train individuals responsible for handling consumer inquiries about their verification procedures for various types of requests. Businesses also should implement reasonable security measures in connection with the verification process to prevent unauthorized access to or deletion of consumers’ personal information.

For businesses that may receive requests on behalf of minors, the proposed regulations also have detailed requirements for verification of such requests, which will be discussed in an upcoming article addressing CCPA obligations regarding minors.

The California attorney general issued proposed regulations for the CCPA on October 10, 2019. The proposed regulations are pending public comment through December 6, 2019. As part of the rulemaking process, the California attorney general will then decide whether any modifications should be made to the proposed regulations before they become final. In the meantime, the proposed regulations provide useful guidance as businesses prepare for and comply with the CCPA, which takes effect on January 1, 2020.

Please visit our CCPA Resource Center for more information and the latest updates.

How We Can Help

The Morgan Lewis privacy team is providing practical privacy advice to more than 100 businesses on compliance with the CCPA, the newly proposed regulations, and how to accept requests. If you have any questions or would like more information, please contact any of the following Morgan Lewis lawyers:

San Francisco
Carla Oakley
Michelle Park Chiu
Gene Park

Los Angeles
Joseph Duffy

Philadelphia
Gregory Parks
Ezra Church
Kristin Hadgis
Julian Williams

New York
Martin Hirschprung

Washington, DC
Dr. Axel Spies

[1] CCPA Proposed Regulations, 11 C.C.R. §§ 999.300, 999.323(a).

[2] Id. § 999.323(b).

[3] Id. § 999.323(d).

[4] Id. § 999.324.

[5] Id. § 999.325(b).

[6] Id. § 999.325(c).

[7] Id. § 999.325(d).

[8] Id. § 999.315(h).

[9] Id. § 999.323(b)(2).

[10] Id. § 999.323(c).

[11] California Civil Code § 1798.81.5.

[12] 11 C.C.R. §§ 999.326.

[13] Id. § 999.325(f).

[14] Id. § 999.313(d)(1).

[15] Id. § 999.325(f).