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A Potential Look Into The Future: California Issues First Draft Of Cybersecurity Audit And Risk Assessment Regulations – Security | #hacking | #cybersecurity | #infosec | #comptia | #pentest | #ransomware


Introduction

The Board of the California Privacy Protection Agency (the CPPA)
held its first meeting since July on Friday, September 8, 2023, and
discussed the first public draft of cybersecurity audit regulations and risk assessment regulations.1 While
the CPPA Board expressly announced that the drafts were for board
meeting discussion purposes and that it has not started the formal
rulemaking procedures yet, the first public drafts of the
regulations provide a roadmap for where the CPPA Board may go, and
the draft regulations would impose new and detailed compliance
requirements.

The CPPA Board determined that the draft regulations will be
edited prior to the next meeting, which is likely to be held in
December 2023, before the regulations enter into formal rulemaking
procedures. However, the CPPA Board engaged in substantive
discussions about the regulations that give an indication of what
the finalized regulations may look like (subject to public
comment). In general, the CPPA Board stressed the importance of (1)
harmony with other jurisdictions, (2) minimizing onerous
requirements, and (3) the need for an economic impact analysis.
Additionally, the CCPA Board expressed hope that it would present
the first draft Automated Decision-Making Technology (ADMT)
Regulations at the next meeting, but it will probably not enter
into formal rulemaking at that time. Below, we summarize the key
takeaways from the draft regulations and the latest meeting and
highlight anticipated next steps in the rulemaking process.

Cybersecurity Audits

Scope

Echoing the statutory language that created the audit
obligation, the draft cybersecurity regulations would require that
“[e]very business whose processing of consumers’ personal
information presents significant risk to consumers’ security. .
.complete a cybersecurity audit.” Next, the draft regulations
identify what would qualify as a “significant risk,”
breaking the risk into two sections. First, all data
brokers
(as defined under the CCPA statutory text) would
constitute a “significant risk to consumers’
security.” Second, the draft regulations would set certain
potential “significant risk” triggers based on
objective thresholds: the volume of certain
categories of personal information processed (e.g., sensitive
personal information or children’s data), gross revenues, or
total number of employees.

During the September 8 meeting, the CPPA Board responded
positively to the first portion of the draft pertaining to data
brokers, suggesting that all data brokers—regardless of size
or processing metrics—will likely need to adhere to this
requirement. However, the CPPA Board was much more divided when it
came to determining the optimal metrics for whether a
business’s processing constituted a “significant risk to
consumers’ security.” In fact, none of the three proposed
metrics had unanimous support from the board members. Notably, CPPA
Board Member Jeffrey Worthe (attending his first CPPA Board meeting
since being recently appointed) succinctly indicated a key concern
with revenue as the metric: “My biggest concern is that we
have small organizations that don’t have [x] amount of revenue,
but do process lots of data,” advocating for a construction of
the regulations that takes this into account. After much
back-and-forth, the CPPA Board and CPPA staff agreed to table the
discussion until after a fulsome economic analysis is conducted to
determine the number of businesses potentially affected by the
draft regulations. The scope of cybersecurity audits is expected to
be an important discussion point at the next CPPA Board
meeting.

Independent Auditor and Board Involvement

The draft regulations would require that cybersecurity audits
must be completed “using a qualified, objective, independent
professional” auditor that “may be internal or external
to the business.” “If the business uses an internal
auditor, the auditor shall report. . .directly to the
business’s board of directors or governing body [or
highest-ranking executive].” Notably, an internal auditor
could not report to “business management that has direct
responsibility for the business’s cybersecurity
program.”

The draft regulations would also require that audit results
include an attestation by the business’s board of directors,
governing body, or (if none) highest-ranking executive that the
business did not attempt to influence the findings of the audit,
and that such stakeholder has reviewed and understands the audit
findings. Comments from both the CPPA Board and the public echoed
support for these requirements.

Audit Requirements

The draft regulations would include a requirement that a
business document and explain the business’s
“establishment, implementation, and maintenance of its
cybersecurity program.” Accompanying this requirement, a
business would be required to assess and document the
“safeguards the business uses to protect personal information
from internal and external risks.” The draft regulations
contain a lengthy list of security safeguards that would be
covered, and businesses would either need to address each of these
safeguards or “document and explain why the component is not
necessary.” The list includes:

  • Encryption of personal information—at rest and in
    transit.

  • Zero trust architecture.

  • Account management and access controls.

  • Internal and external vulnerability scans, penetration testing,
    and vulnerability disclosure and reporting.

  • Cybersecurity awareness, education, and training.

  • Oversight of service providers, contractors, and third
    parties.

  • Incident response management.

  • Business continuity and disaster recovery plans, including data
    recovery capabilities and backups.

The total list of potential requirements constitutes
approximately six pages of the draft regulations and does not
reference or provide an explicit safe harbor for any existing
cybersecurity framework. The audit would be required to assess
security, identify gaps, and determine steps to address any gaps.
Businesses would also be required to identify any instances,
worldwide, where the business was required to notify a data
protection or privacy regulator of an incident, plus any other
“breaches,” defined with reference to California law
specifically.2 The auditor would be required to retain
“all documents relevant to each cybersecurity audit” for
at least five years after completing the audit.

While the regulations note that comparable audits or assessments
may be used to satisfy the audit requirements, if the existing
audit or assessment “does not meet all of the requirements of
[the draft regulations],” the business would be required to
supplement the audit or assessment. The CCPA Board did not discuss
the substantive or procedural elements of this approach in the
meeting on September 8.

Timing and Reporting

Any business required to complete a cybersecurity audit would
have 24 months from the effective date of the regulations to
complete its first audit(s) and would be required to complete an
audit(s) annually thereafter. Notably, businesses would also need
to annually submit a notice of compliance to the CPPA.

Risk Assessments

Scope

Following the CPRA, under the draft regulations, every business
whose processing of consumers’ personal information presents
“significant risk” to consumers’ privacy would be
required to conduct a risk assessment. The regulations provide a
list of activities that would be deemed to constitute a
“significant risk to consumers’ privacy.” These
activities would include:

  • Selling or sharing personal information.

  • Processing Sensitive Personal Information(SPI)
    under certain circumstances.

  • Using ADMT in certain circumstances or
    processing consumer personal information in order to train
    artificial intelligence (AI) or ADMT.

  • Processing the personal information of consumers whom the
    business has actual knowledge are children less
    than 16 years of age.

  • Processing certain employee data.

  • Processing the personal information of consumers in
    publicly accessible places under certain
    circumstances.

To aid in understanding what constitutes a “significant
risk,” the draft regulations also provide a list of common
data processing examples that would trigger a risk assessment, such
as data processing by rideshare providers, mobile dating
applications, personal budgeting applications, and technology
providers, among others.

Risk Assessment Requirements

The draft regulations would provide a list of 10 requirements
that must be included within a risk assessment, including a short
summary of the processing, anticipated benefits to consumers,
anticipated negative impacts to consumers’ privacy, and
safeguards the business plans to implement to address any negative
impacts identified. In determining negative impacts, the business
would need to consider a list of 10 harms, including constitutional
harms, discrimination harms, economic harms, and even psychological
harms to consumers. This language drew significant commentary from
the Board, and changes to the text may appear in further
drafts.

The draft regulations also would require that a business weigh
the risks to consumer privacy against the benefits and, if the
risks to consumers’ privacy outweigh the benefits resulting
from processing to the consumer, the business, other stakeholders,
and the public, the business would not be able to
engage
in processing of personal information. The risk
assessments, regardless of the findings, would need to be retained
for five years and provided to the CPPA upon request.

Automated Decision-Making Technology (ADMT)

The draft regulations would provide additional requirements for
businesses using ADMT, focusing on businesses that process personal
information to train AI or ADMT, with each term defined within the
draft regulations.

These concepts constitute significant portions of the draft
regulations concerning risk assessments. At the recent meeting, the
CPPA Board disagreed on certain portions of this draft, including
the breadth of the definitions for “Artificial
Intelligence” and “Automated Decisionmaking
Technology.” CPPA Board Member Alastair Mactaggart noted the
definition of “Artificial Intelligence” currently
“covers a carburetor.” In response, CPPA Board Member
Vinhcent Le noted that these definitions were “adapted from
the NIST standards,” and that there exist other limitations
within the regulations that constrain the breadth of the
definitions.

Relatedly, the CPPA Board acknowledged other significant
legislation in comparative jurisdictions—most notably,
Europe’s forthcoming AI Act—and foreshadowed that this
may affect further edits to the draft regulations. The CPPA Board
queried whether or not to combine these draft risk assessment
regulations with the forthcoming draft regulations on usage of
ADMT. Under either approach, this area promises to be a primary
focus of the CPPA Board in future meetings.

Timing and Reporting

Before a business could begin a given processing activity, the
business would already need to have a risk assessment conducted and
then comply with specific timing requirements concerning the review
of these risk assessments to ensure they remain accurate in
accordance with the regulations. In the event a business already
initiated a processing activity prior to the effective date of the
regulations, the regulations would require businesses to conduct
and document a risk assessment within 24 months of the effective
date of the regulations.[3] At least every three
years, a business would need to review and update the risk
assessment as necessary. For ADMT risk assessments, this review
would need to be conducted at least annually. These risk
assessments would need to be made available to the CPPA or the
attorney general upon request, as well as annually submitted to the
agency in an abridged form with a certification by a designated
executive that the business has complied with the requirements.

Timeline and Next Steps

CPPA Board members hinted that the next board meeting may be
slightly delayed to December and stated that they hope to present
the first draft ADMT regulations at that meeting, but they likely
will not enter into formal rulemaking on that portion at that time.
CPPA Board members also suggested that formal rulemaking for the
draft cybersecurity audit and risk assessment regulations may be
possible as early as the next CPPA Board meeting, although members
also acknowledged that prior to entering into the formal rulemaking
process, the CPPA staff must first conduct an economic analysis,
and it is unclear how long that analysis will take. It is uncertain
how detailed the revisions to the next draft will be, or when the
public comment period will start. As such, companies should pay
close attention to the draft regulations as they currently stand
and begin to think through compliance steps and areas for potential
public comment.

Getting Ready

Depending on the results of future CPPA Board meetings and the
direction of subsequent rulemaking procedures, these draft
regulations could lead to new compliance requirements and
restrictions on organizations conducting businesses in
California.

Our Chambers-ranked Privacy & Security team
will monitor upcoming developments and collaborate with our clients
to ensure their concerns are heard as the CPPA moves forward with
the rulemaking processes.

Footnotes

1. Section 1798.185(a)(15) of the CPRA directs the CPPA
Board to issue regulations requiring businesses whose processing of
consumers’ personal information presents significant risk to
consumers’ privacy or security to (A) perform a cybersecurity
audit on an annual basis and (B) submit a risk assessment to the
CPPA with respect to their processing of personal information. The
draft regulations set separate thresholds for (A) and (B) based on
the risks to security and privacy, respectively, and thus
businesses may fall under one or both requirements
independently.

2. §7123(e-g). The law references both security
breaches requiring individual notification under California law,
§1798.98, and “personal information security
breaches” under the CCPA, § 1798.150, which are defined
slightly differently. In either case, it is possible no regulatory
notification had been previously required from such
incidents.

3. §7156(c). We note that while the time frame of 24
months was a tentative timeline in the current draft regulations,
during the September 8 meeting, the CPPA Board expressed positive
feedback regarding this time frame.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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