Arguably the most important right the California Consumer Privacy Act provides to California residents is the right to opt-out of data sales. “Sale” is defined as “selling, renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or by electronic or other means, a consumer’s personal information to another business or a third party for monetary or other valuable consideration.” Valuable consideration is not defined under CCPA, but the act authorizes the attorney general to provide guidelines in furtherance of the CCPA’s purpose, and it is expected that a public consultation period will open in 2019.
Absent guidelines, this article proposes a possible framework to interpret “valuable consideration” in light of existing California law.
Under contract law, one of the requirements for the formation of a contract is the existence of valuable consideration. California law defines consideration as “[a]ny benefit conferred, or agreed to be conferred, upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise.” Moreover, where the agreement is in writing, California law provides that “[a] written instrument is presumptive evidence of a consideration.” There are many examples of contract formation with non-monetary consideration. For example, in a non-disclosure agreement, one party agrees to allow another access to confidential information (a detriment) in exchange for service (a benefit).
If the reference in CCPA...
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