New Privacy Regulations Coming Your Way: California Consumer Privacy Act (CCPA)

Have you recovered from last spring’s GDPR adrenaline rush yet? As much anxiety as GDPR regulations provoked, that may soon look like the good old days. Now California passed a privacy initiative you will be expected to follow starting Jan. 1, 2020.

Editor’s Note: While this piece is directed at publishers, CCPA also will be something marketers will have to be compliant with, just like GDPR.

Have you recovered from last spring’s GDPR adrenaline rush yet? Everybody in publishing was nervous about finding the right way to comply with new European privacy regulations. It did not seem like there was one clear path to compliance.

As much anxiety as GDPR regulations provoked, that may soon look like the good old days. At least in the EU, 27 countries came together with one edict. They also spent the time necessary to be smart and coherent, whether or not you agree with all the details.

Now California passed a privacy initiative you will be expected to follow starting Jan. 1, 2020. In many industries as goes California law, so go U.S. standards. This will be, in practice, a new national standard. California is too dominant a market, larger than most countries on the globe. Add to that a quirk in the drafting of the law, which says you must treat anyone who has left California and intends to return as a Californian. What?

Newly minted California Governor Gavin Newsom hailed the “first-in-the-nation digital privacy law” in his first State of the State address, according to reporting by Wendy Davis in MediaPost. “Companies that make … billions of dollars collecting, curating, monetizing our personal data also have a duty to protect in. Consumers have the right to know and control how their data is being used.”

CCPA Is Not Like GDPR

“The California law was written in five days, and really shows,” says Christopher Mohr, VP of intellectual property and general counsel at SIIA. “It is an extraordinarily complicated and poorly written statute.” Adding insult to injury, it is grammatically inconsistent and difficult to understand. I can’t imagine what compelled them to rush such important legislation through. It sounds irresponsible when you consider the EU worked on GDPR for more than three years.

“This is not the same as GDPR — it’s much broader.” Not a statement the already GDPR-fearing publishing industry wants to hear. Mohr continues, “In GDPR the information is tied to a data subject, for example, an individual. The CCPA covers ‘households’ as well as individuals. In addition, the CCPA’s potential ban on the use of information extends not only to the information but to the ‘inferences’ you might draw from it.” Inferences? Yikes! The law goes on to explain what is meant, but the idea of inferring conclusions sounds ripe for misinterpretation to me.

The main goal of the law is to regulate the collection and sale of personally-identifiable (PI) consumer data to third parties and service providers. You do not need to get paid for the data. If you disclose it to another party, it is considered a transaction. Using outside vendors to help manage your data is not a problem, because you are the controlling party.

Everyone will now have the “right to delete.” I asked Mohr to confirm that means deleting people from your database, not from your articles. “That’s the intent, I think. Whether the words match the intent is a completely different issue, and it’s not as clear as it could be. Personal information covers any information that could be associated with an individual.”

Anyone can tell you to cease disclosing their data to others; and you must comply. You cannot deny goods or services to anyone because of their data opt-out. That becomes the new Catch-22: In order to know you are not supposed to have data on an individual, you must have that individual in your database. And since it is likely you must have data on an individual in order to do business with him or her, how do you conduct business with data exceptions? For those rare European GDPR complainants, admittedly some American publishers will simply delete; good-bye. In the Hotel California, “you can check out any time you like, but you can never leave.”

Preventing a Privacy Tower of Babel

Fortunately, enforcement is by state attorney general, not by individuals. In other words, thank God this is not an invitation to everyone in California to sue. Of course this law will be challenged in court. It may be too vague, according to some. It may be discriminatory, since non-profits (and government agencies) can ignore it and do what they want, the way it is written.

Living in this hyper-intrusive world, it’s hard to disagree with the intent of CCPA since we are all being personally data mined. But play this out. Imagine what mischief the other 49 states can do. Davis reports, Washington state “lawmakers are considering a bill that would not only give consumers the right to learn what data is collected about them, but would also allow them to prevent their personal data to be used for ad targeting.”

Federal legislation is coming on this after the recent grillings on Capitol Hill of some of the leading big-tech luminaries. Typically federal legislation trumps local law, which is what makes interstate commerce work. Hopefully there will be one law of the land, so any company handling data can maintain sanity versus bowing to every state, city, or county passing a law. But in these Alice in Wonderland times we are in, I will leave that speculation to you.

You have complied with GDPR so that means you now have DPO (data protection officer). The CCPA gives your DPO a little more to do.

I’m no lawyer, so I’ll provide the usual disclaimer on all the above. On the other hand, I am a member of and advocate for the Specialized Information Publishers Association, part of SIIA, whose general counsel Chris Mohr was invaluable in enabling me to share an understanding of this law. I believe it makes great sense to occasionally be involved with your peers and work on common problems like privacy laws. As a member of SIPA or Connectiv, you won’t need to call your lawyer every time there is a question about the new privacy landscape. You can take advantage of knowledgeable experts in your corner.

Do I have you pining for the muddy clarity of GDPR yet?

No, B2B Media Doesn’t Have an Ethics Problem

It broke my heart when I read the recent blog post “B2B Media, The Ethics Virus & The Pursuit of Consumer-Grade Experiences,” which argued the majority of B2B/trade publishers have a problem of selling out editorial integrity to advertisers. In the piece, Publishing Executive editor-in-chief Denis Wilson wrote, “If you think your organization is immune (from editorial integrity issues), I’d wager you’re a minority or just wrong.”

It broke my heart when I read the recent blog post “B2B Media, The Ethics Virus & The Pursuit of Consumer-Grade Experiences,” which argued the majority of B2B/trade publishers have a problem of selling out editorial integrity to advertisers. In the piece, Publishing Executive editor-in-chief Denis Wilson wrote, “If you think your organization is immune (from editorial integrity issues), I’d wager you’re a minority or just wrong.” Also, that “B2B media has an especially nefarious legacy of playing fast and loose with the journalistic craft.”

I may have taken the post personally, having been a B2B publisher on and off for 40 years. I never sold a word and, must admit, I have no memory of thinking my competition did either. I do not suggest all B2B publishers are beyond reproach when it comes to bending to advertiser pressure. I do say the vast majority do not do so, nor do they have a culture of selling out.

When I came up in the business, there were storied trade publishers like McGraw Hill, Chilton, Gralla, Penton, CMP and many others. There were fat magazines with solid content that industries relied upon, such as Variety, Automotive Week, Billboard, American Banker and Aviation Week. I used to read Crain publications like the old Ad Age with as much enjoyment as consumer books. Women’s Wear Daily, famously known as WWD, had such quality journalism it gained a significant consumer readership.

In the post, Wilson talks about how B2B publishers today are finally learning “quality original content drives audience engagement and monetization.” Those publishers mentioned support my view the industry was built on quality content.

The ASBPE Focus on Ethics

Ethics was indeed discussed at the ASBPE conference. As Wilson points out, that is to the credit of the journalists in attendance. I heard everything Wilson did, but recognized that those few stories of difficult advertiser pressure were presented not as the norm. The example of one publisher giving into ad pressure was worthy of discussion, because that publication had never crossed a similar line before.

We heard about when the rigid wall between church and state required an editor to stop dating an advertising sales assistant or be fired. Another example described when a feature story was written about an industry problem for which a big client happened to advertise a solution. The advertiser relationship had not driven the story. The fact the publisher had to pull their hair out over whether to run the ad opposite the story opener speaks to their integrity. They were worried that although ad and story had no causal relationship, it would simply look like they did. In my opinion they made the correct decision to run the ad opposite the opener, that it was helpful to readers and no lines were crossed.

Yet Wilson and I reached different conclusions as to why ethics was discussed so prominently. To me, it was a reflection of a profession that thinks that is how important editorial ethics are, not to cure endemic problems.

Think back to all the articles Publishing Executive and other media publications ran when native advertising first became a thing. Despite most of us having published advertorials in the past, there was overwhelming pushback that native adverting crossed a line. It was not just theoretical venting. Truly, a majority of B2B publishers during those days told me their staffs would not let them entertain the notion of native. The knee-jerk resistance speaks to a culture not in the habit of doing things for advertisers.

Editorial Contributions

The article correctly acknowledged the importance of editorial contributions from industry experts who happen to work for advertisers or potential advertisers. I’ve been an editor and publisher my entire career, but today as I write for Publishing Executive I am a vendor. My instincts have me steer clear of writing about what I sell and Wilson and I discuss anything I fear may be too close to the line. That has worked out well.

In his post, Wilson attributes industry contributors to low budgets. No doubt that is a huge driver; but there is more to it. I was associate publisher of a trade book called Modern Horsebreeding in the ’80s. Guess who knew much more than all of our writers? The veterinarians and pharmaceutical companies. We did occasionally run articles by their experts — there were no such thing as blogs — though never once tied them to advertising.

When I published a magazine and then website about RFID technology, we were thrilled to get some deeply knowledgeable pieces from industry experts. Sadly, most were not advertisers. But this was terrific content and simply had nothing to do with advertising. If a prospective advertiser really liked that we ran their engineer’s helpful information, great. We’ll take all the good vibes we can get with prospective advertisers. Conversely, when an advertiser complained that we didn’t run their content, we would invite them to suggest a topic. We provided written guidelines they must adhere to, advertiser or non-advertiser. We edited each piece and were glad to consult as they worked on it. I believe approaches like these and those of PubExec are the norm.

The Opposite Reality

From what I have seen, advertiser pressure is something ad salesmen feel more than it being a routine reality. I personally sold ads for decades and ran ad sales teams. Ad salespeople are always hopeful the magazine runs articles plugging clients; it’s in the blood. They sometimes whine to editors about running more copy on their clients. In my experience, editors mostly ignore them with thinly veiled pity.

One speaker at ASBPE said advertisers were purposely overlooked and not written about to avoid the appearance of corruption. As Wilson wrote, “the sticky politics of accepting vendor contributions wasn’t worth the trouble.” In my experience, this is far and away the bigger secret we all carry: advertisers tend to get screwed. We heard how one company mandated that editors not use advertisers as sources for stories. I have personally seen multiple situations where editors avoid calling executives at advertiser companies for quotes out of fear it would look like the publication was kissing advertiser butt.

Big advertisers are often the larger companies in any given industry. These same companies have the biggest budgets for research. These companies are often actually involved in many newsworthy issues and situations because of their commercial reach. It would be self-defeating to avoid tapping their knowledge; yet because of the fear of appearing unethical, I have seen this time and time again.

Advertisers, too, might surprise you. I will never forget at my RFID publication a news investigation that we ran on the cover slammed perhaps the largest company in the industry at that time. They were not advertisers and I thought, well, we’ll never see a dime from them. But it was an important, well-reported story. To the lasting credit of an SVP of Intermec, he told his ad department to place some cover ads in our new magazine. He felt the industry had to support quality journalism.

I repeat: Of course I have heard stories of pay-to-play. The few I’ve heard are memorable because they are rare, not pervasive. One former VP of editorial told me long ago he was made to run feature interviews with some advertisers. Again, that stood out in his mind because it was the opposite of everything else in his career.

I am not saying B2B publishers are ethical saints. Wilson made some excellent suggestions in his post on what editors should watch out for. However, I do believe the B2B publishing industry overall is not rife with virulent ethical lapses.