What is a ‘consumer’ under the CCPA?
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Under the California Consumers Privacy Act (CCPA) only the processing of data of ‘consumers’ is subject to restrictions and ‘consumer’ is defined to mean:
- a natural person who is a California resident, as defined in Section 17014 of Title 18 of the California Code of Regulations, as that section reads on September 1, 2017
- “however identified, including by any unique identifier”
See Cal. Civ. Code Sec. 1798.140(g)
CCPA v. GDPR: A ‘consumer’ under CCPA is the equivalent of a data subject under data protection law (including under GDPR).
Employee data and CCPA: The data of employees is subject to the provisions of CCPA under the current version of the Act. There is debate over whether employee data should be excluded and over to what extent the rights provided by CCPA should be limited for employees to prevent potential abuses by litigious employees.
WHAT IS A ‘CALIFORNIA RESIDENT’?
Section 17014 of Title 18 of the California Code of Regulations reads as follows:
“The term “resident,” as defined in the law, includes (1) every individual who is in the State for other than a temporary or transitory purpose, and (2) every individual who is domiciled in the State who is outside the State for a temporary or transitory purpose. All other individuals are nonresidents.”
This section defines residence for the purpose of requirement to pay taxes in California and the underlying logic behind it is that the state with which a person has the closest connection during the taxable year is the state of his residence (i.e. the state where the individual is to pay taxes for all of his/her income). Under this definition, an individual may be a resident although not domiciled in California, and, conversely, may be domiciled in California without being a resident.
(1) Being in California for other than a temporary or transitory purpose
If an individual acquires the status of a resident by virtue of being physically present in the State for other than temporary or transitory purposes, he remains a resident even though temporarily absent from California. If, however, he leaves California for other than temporary or transitory purposes, he thereupon ceases to be a resident.
Section 17014(b) of Title 18 of the California Code of Regulations clarifies the meaning of “temporary or transitory purpose” as follows:
(b) Meaning of Temporary or Transitory Purpose. Whether or not the purpose for which an individual is in this State will be considered temporary or transitory in character will depend to a large extent upon the facts and circumstances of each particular case. It can be stated generally, however, that if an individual is simply passing through this State on his way to another state or country, or is here for a brief rest or vacation, or to complete a particular transaction, or perform a particular contract, or fulfill a particular engagement, which will require his presence in this State for but a short period, he is in this State for temporary or transitory purposes, and will not be a resident by virtue of his presence here.
If, however, an individual is in this State to improve his health and his illness is of such a character as to require a relatively long or indefinite period to recuperate, or he is here for business purposes which will require a long or indefinite period to accomplish, or is employed in a position that may last permanently or indefinitely, or has retired from business and moved to California with no definite intention of leaving shortly thereafter, he is in the State for other than temporary or transitory purposes, and, accordingly, is a resident taxable upon his entire net income even though he may retain his domicile in some other state or country.
Therefore, an individual whose presence in California (1) does not exceed an aggregate of six months within the taxable year and (2) who is domiciled within another state and maintains a permanent abode at the place of his domicile, will be considered as being in California for temporary or transitory purposes providing he does not engage in any activity or conduct within California other than that of a seasonal visitor, tourist or guest. Some of the examples provided in the section include:
Example (1): X is domiciled in Quebec, where he had lived for 50 years and had accumulated a large fortune. However, X’s doctor ordered him to California where he now spends his entire time, except for yearly summer trips of about three or four months duration to Quebec. X maintains an abode in California and still maintains, and occupies on his visits there, his old abode in Quebec. Notwithstanding his domicile in Quebec, because his yearly sojourn in California is not temporary or transitory he is a resident of California, and is taxable on his entire net income.
Example (2): Until the fall of 1955, Y admitted domicile in California. At that time, however, to avoid the California income tax, Y declared himself to be domiciled in Nevada, where he had a summer home. Y moved his bank accounts to banks in that state, and each year thereafter spent about three or four months in that state. He continued to spend six or seven months of each year at his estate in California, which he continued to maintain, and continued his social, club and business connections in California. The months not spent in Nevada or California he spent traveling in other states or countries. Y is a resident of California and is taxable on his entire income, for his sojourns in this State are not for temporary or transitory purposes.
Note: If, in the foregoing two examples, the facts are reversed so that California is the State of domicile and the other states or countries are those in which the person is present for the indicated periods and purposes, X and Y are not residents of California within the meaning of the law because they are absent from the State for other than temporary or transitory purposes.
Example (3): B and C, husband and wife, domiciled in Minnesota where they maintained their family home, come to California each November and stay here until the middle of March. Originally they rented an apartment or house for the duration of their stay here but three years ago they purchased a house here. The house is either rented or put in the charge of a caretaker from March to November. B has retired from active control of his Minnesota business but still keeps office space and nominal authority in it. He belongs to clubs in Minnesota, but to none in California. He has no business interests in California. C has little social life in California, more in Minnesota, and has no relatives in California. Neither B nor C is a resident of California. The connection of each to the state of domicile in each year is closer than it is to California. Their presence here is for a temporary or transitory purpose.
Note: If, in the foregoing example, the facts are reversed so that California is the state of domicile and the persons are visitors in another state or country, the persons are residents of California.
Being domiciled in California
Section 17014(c) of Title 18 of the California Code of Regulations clarifies the meaning of domicile as follows:
(c) Meaning of Domicile. Domicile has been defined as the place where an individual has his true, fixed, permanent home and principal establishment, and to which place he has, whenever he is absent, the intention of returning. It is the place in which a man has voluntarily fixed the habitation of himself and family, not for a mere special or limited purpose, but with the present intention of making a permanent home, until some unexpected event shall occur to induce him to adopt some other permanent home. Another definition of “domicile” consistent with the above is the place where an individual has fixed his habitation and has a permanent residence without any present intention of permanently removing therefrom.
Therefore, an individual can at any one time have but one domicile. If an individual has acquired a domicile at one place, he retains that domicile until he acquires another elsewhere.
Example:
If an individual, who has acquired a domicile in Illinois comes to California for a rest or vacation or on business or for some other purpose, but intends to either return to Illinois or to go elsewhere as soon as his stay in California is completed, he retains his domicile in Illinois and does not acquire a domicile in California, even though he maintains a home here, has his family with him, and remains here a considerable period of time. Likewise, an individual, who is domiciled in California and who leaves the State retains his California domicile as long as he has the definite intention of returning here regardless of the length of time or the reasons why he is absent from the State.
Example:
An individual, domiciled in Illinois, who comes to California with the intention of remaining here indefinitely, and who has no fixed intention of returning to Illinois, loses his Illinois domicile and acquires a California domicile the moment he enters the State. Similarly, an individual domiciled in California, who leaves the State, loses his California domicile the moment he abandons any intention of returning to California and locates elsewhere with the intention of remaining there indefinitely.
WHAT IS A ‘HOWEVER IDENTIFIED’?
The inclusion of the reference “however identified, including by any unique identifier” in Sec. 1798.140(g) seems to implies that, where a given ‘business’ is not able to identify the residence of a particular individual based on the data available to the ‘business’, the data of such individual would be outside of the scope of CCPA. Absent guidelines from the California Attorney General office is not possible to conclude the level of effort expected of a ‘business’ to identify whether a particular individual is a resident in the State of California.
It is important to note that the concept of domicile under CCPA includes both subjective (the person’s intention to remain indefinitely) and objective factors (length of residency, connection to State). In practice, ability to identify ‘consumers’ will depend upon whether those subjective and objective factors can be directly or indirectly derived from the personal information available for a particular organization:
- For example, a business that possesses a user’s full name, phone number and email, without more, would almost certainly be unable to determine whether or not the user is domiciled in California, even if the phone number has a California area code. In this example, the business does not possess enough subjective or objective personal information to reasonably determine domicile.
- On the other hand, a business that possesses internet protocol addresses, shipping information, billing records, geolocation data and activity logs of a user in addition to other personal information may be able to determine residency. The information could reasonably be used to objectively determine a user’s domicile and consequently identify a user as a California ‘consumer’. The subjective intention of the user might be shown from user submitted responses to forms or other inputs.
- As a final example, an online company offering tax software may be able to determine residency in California with almost absolute accuracy if it has records of yearly filings of personal taxes.
