Every article regarding any bill referred to the California Senate (or Assembly) Appropriations Committee suspense file begins with a pun about being in suspense, and so does ours.  At a hearing of the California Senate Appropriations Committee on April 29, 2019, Senate Bill 561, written by Senator Hannah-Beth Jackson (D – Santa Barbara), which would add a private right of action to the California Consumer Privacy Act of 2018 (“CCPA”), was placed in the Appropriations Committee suspense file because it had a projected fiscal impact on the State of more than $50,000.  Now, SB 561 will finally have its hearing in the Appropriations Committee.

Hearing On SB 561 Set

Thursday is the big day. At a hearing on Thursday, May 16, Senate Appropriations Committee Chair Anthony J. Portantino (D – La Cañada Flintridge), will announce the fate of the hundreds of bills referred to the suspense file, including SB 561.  While the determination is supposed to be based on the fiscal impact to the State of the various bills in the file, the reality is different.  Actually, whether a bill makes it out of the suspense file, or dies an unceremonious death in committee, is largely determined by politics, lobbying, and last minute horse-trading, giving Chairman Portantino immense power over the legislative agenda in Sacramento.

At Thursday’s hearing, interests lined up in support of, and against, SB 561, will learn whether SB 561 will proceed. Bills will be taken up alphabetically by author, placing SB 561 right in the middle of the pack on the agenda for Thursday’s hearing.  If it does make it out of committee, the next stop for the bill will be the Senate Floor, where it will need 21 votes to move on to the California Assembly, where the whole process will repeat itself in California’s lower house.   Thus far, SB 561 has demonstrated itself to be surprisingly resistant to amendment, and the bill still exists in the form in which it was first introduced by Senator Jackson on February 22. While I considered SB 561, which enjoys the backing of the California Attorney General, a favorite to be ultimately signed by the Governor after its introduction in February, its relatively chilly reception even by committee Democrats in the Senate Judiciary Committee in March cast doubt over the future of the CCPA private right of action.  However, despite a commitment at that hearing by the author to “explore” alternatives to private enforcement of the CCPA, Senator Jackson has held firm, and SB 561 remains in its original form.

Privacy Bills Pass, and Fail, on Assembly Floor

With all eyes on the Senate Appropriations Committee, it is easy to overlook the privacy bills and CCPA amendments that made it to a vote on the Assembly floor this week as well.

Assembly Bill 1035, written by Assemblyman Chad Mayes (R – Yucca Valley), would require businesses to notify affected consumers regarding any data breach within 45-days after discovery or notification of the breach, unless doing so would impede a law enforcement investigation (current law requires notification at the earliest possible time, but contains no time limit).  The bill triggered no debate on the Assembly floor, and passed the Assembly by an almost unanimous vote of 72-0.  AB 1035 was ordered to the Senate for consideration, where it will be assigned to committee.

In addition, two CCPA-related bills on the Assembly consent calendar passed the Assembly (in order to be placed on the consent calendar, a bill must have received no opposition in committee). The following bills will head to the Senate, along with AB 1035, for consideration:

  • Assembly Bill 874, by Assemblywoman Jacqui Irwin (D – Thousand Oaks), which would refine the definition of “publicly-available information” and specify that aggregate or deidentified data is not “personal information” under the CCPA. The bill passed the Assembly by a vote of 74-0.
  • Assembly Bill 1355, by Assemblyman Ed Chau (D – Monterey Park), which would correct various ambiguity-creating typographical errors in the CCPA. The bill passed the Assembly by a vote of 74-0.

The appearance of a bill on the consent calendar almost guarantees its passage. In a puzzling move, Assemblyman Chau requested that Assembly Bill 25, which would exempt employment information from the definition of “personal information” in the CCPA, be removed from the consent calendar at Thursday’s floor session.  Accordingly, AB 25 was ordered to the third reading file during the Assembly floor session on Monday, May 13, where it will appear as Daily File item number 95.

But not all authors of privacy legislation were successful. Assembly Bill 1138, written by Assemblyman James Gallagher (R – Yuba City), would require parental consent before any child under the age of 13 registers for an account on a social media website.  The bill touched off the longest debate of the Thursday’s Assembly floor session, with opponents claiming that it would harm LGBT children who had not yet revealed their sexual orientation to their parents, but sought companionship from other like-minded individuals online.  Not wanting to vote against a bill requiring parental consent for minors to register for social media, opponents (primarily Assembly Democrats) largely did not vote, killing the bill by denying it the required 41 votes necessary to advance to the California Senate.

After the initial vote on the floor, Mr. Gallagher moved a call in an attempt to garner enough votes for passage, but when the call was lifted, the bill still could not muster the required votes, failing by a vote of 25 to 11. Mr. Gallagher then noticed reconsideration, keeping the bill alive until Monday’s floor session in the Assembly, where it will appear as Daily File item number 4 on the Unfinished Business calendar.  However, the future looks dim for AB 1138, and unless Mr. Gallagher can muster additional support over the weekend, the bill will likely die on Monday.