Map of the United States - State Privacy Laws

State Privacy Laws in the Wake of the CCPA: A Tough Act to Follow

Image Credit: Free-Photos from Pixabay.

Hard on the heels of the California Consumer Privacy Act of 2018 (CCPA) and updated state privacy laws in Nevada and Maine which took effect in 2019, state data privacy legislation is still on the rise.

In November of 2020, California citizens approved the California Privacy Rights and Enforcement Act (CPRA), further amending the CCPA. The CPRA is intended to strengthen privacy regulations in California by creating new requirements for companies that collect and share sensitive personal information. It also creates a new agency, the California Privacy Protection Agency, that will be responsible for enforcing CPRA violations.

Most recently, the Virginia Governor signed the Consumer Data Protection Act into law, thereby making Virginia yet another U.S. state with a comprehensive state privacy law. 

As momentum builds for state privacy laws, 2021 could be the year that privacy laws gain footing across the country, helping Americans exercise control over their digital lives.

Washington’s Privacy Act 2021, SB 5062
**Update: The WPA did not pass the House by the April 11 deadline. On April 12, however, Senator Carlyle tweeted that the “bill remains alive through the end of the session.” The legislature will close on April 25.

*** Update 4/26: The WPA did not pass for the third year in a row, due to the late introduction of a limited private right of action (for injunctive relief). Jump to the bottom of the page for links to other pending state legislation.

The most notable – due to its furthest progression in state legislation – is the current draft of the Washington Privacy Act 2021 (“WPA”). This draft bill is the third version of the act introduced by Washington state Sen. Reuven Carlyle (D-Seattle) in as many years.

Scope

The WPA would apply to legal entities that:

Continue Reading State Privacy Laws in the Wake of the CCPA: A Tough Act to Follow
Image of virginia state and shield. Virginia has a new data privacy law.

Virginia Governor Signs Comprehensive Data Privacy Law

Image Credit: Kjrstie from Pixabay.

Following hot on the footsteps of the California Privacy Rights Act, Virginia Gov. Ralph Northam (D) signed the Consumer Data Protection Act on Tuesday, making Virginia the second state in the U.S. to pass a comprehensive data privacy law. Below, please see our comparison of the the California Consumer Privacy Act and the Virginia Consumer Data Protection Act.

California Consumer Privacy Act
(CCPA)
California Privacy Rights Act
(CPRA)
Virginia Consumer Data Protection Act
(VCDPA)
Date of effectJanuary 1, 2020January 1, 2023January 1, 2023
Law applies toA “business” that meets at least one threshold below:
• Generates over $25M in annual gross revenue;
• Handles the records of at least 50,000 California consumers; or
• Generates over 50% in annual revenue from sales of consumer data
Same as CCPA, except the threshold for handling records of California consumers increases from 50,000 to 100,000.Applies to businesses that
• Handles the records of at least 100,000 Virginia consumers; or
• Handles the records of at least 25,000 Virginia consumers and derives over 50% in gross revenue from sales of consumer data

Definition of personal data
Any information that could be associated or linked with a particular consumer or household.Same as CCPA, except that there is a reasonableness element:
Any information that could be reasonably associated or linked with a particular consumer or household.
Limited to particular consumers.
“Any information that is linked or reasonably linkable to an identified or identifiable natural person”
Definition of sensitive personal dataDoes not define sensitive personal data.Defines sensitive personal data to include:
• Social security number
• Driver’s license
number
• Account log-in, debit,
or credit card number in combination with password or PIN
• Precise geolocation
• Racial/ethnic origins
• Religious or
philosophical beliefs
• Union membership
• Contents of e-mails or
texts to others
• Genetic/biometric
data
• Health information
• Sex life/sexual
orientation data
Defines sensitive personal data to include:
• Racial/ethnic origins
• Religious beliefs
• Mental or physical
health diagnosis
• Sexual orientation
• Citizenship/
immigration status
• Genetic/biometric
data
• Children’s data
• Precise geolocation
Consumer rights• Access
• Deletion
• Non-Discrimination
• Opt-out of:
o Sale of personal data
Same as CCPA, with the addition of rights to:
• Correct personal information
• Limit the use of
sensitive personal information
• Access
• Correction
• Deletion
• Port
• Opt-out of:
o Targeted advertising
o Sale of personal data
o Profiling in furtherance of decisions that produce legal effects
Data Privacy Impact AssessmentsNo requirement to conduct or document.No requirement to conduct or document.Controllers must conduct and document data protection assessments for the following activities:
• Targeted advertising
• Sale of personal data
• Profiling
• Sensitive data
• Catch-all: any data that presents a “heightened risk of harm to consumers.”
Data Protection AuthorityCalifornia Office of the Attorney General$10 million allocated per year to the California Privacy Protection Agency (CPPA).
Primary enforcement and rulemaking abilities shift from the California Attorney General to the CPPA.
Virginia Office of the Attorney General
Cure Provision30 days to cure upon written notice of a violation by the California Attorney General’s office.Ability to cure removed from CPRA.30 days to cure upon written notice of a violation by Virginia Attorney General’s office.
EnforcementAdministrative fines ranging from $2,500 per violation to $7,500 for intentional violations.Administrative fines of $7,500 now includes intentional violations and children’s data violations.Administrative fines of $7,500 per violation.
Private Right of ActionConsumers have a private right of action for the unauthorized disclosure of nonencrypted and nonredacted personal information.Same as CCPA.Consumers do NOT have a private right of action.
Medical stethoscope and blue ink pen laying on appointment booklet. HIPAA privacy notices.

Deidentified Health Info under HIPAA: Deconstructing Dinerstein v. Google, LLC

Image Credit: DarkoStojanovic from Pixabay.

HIPAA Lawsuit
Privacy Compliance

Health data is an increasingly fraught area of privacy. Outside of sectoral health privacy laws like HIPAA, many regulations such as the GDPR and the California Privacy Rights Act (CPRA) rightly treat health or biometric information as a sensitive or special category of data deserving of more protections than many other types of data.

The amount of electronic heath data collected by companies is also increasing at a staggering rate. DNA testing kits and wearable fitness trackers are everywhere, and telehealth has proliferated in the wake of COVID-19.

Healthcare data controllers are just as likely to be big tech companies as opposed to traditional covered entities. Consequently, courts now need to consider a variety of privacy frameworks, not just HIPAA and HITECH, when they adjudicate healthcare claims.

In September 2020, the U.S. District Court for the Northern District of Illinois dismissed a lawsuit brought against the University of Chicago and the University of Chicago Medical Center (collectively referred to as “the University”) and Google for allegations that the University improperly disclosed healthcare data to Google as part of a research partnership. Dinerstein v. Google, LLC, No. 19-cv-04311 (N.D. Ill. 2020).

Even though the University and Google were able to shake off this lawsuit, this case touched upon several interesting questions at the intersection of HIPAA and other privacy laws:

Continue Reading Deidentified Health Info under HIPAA: Deconstructing Dinerstein v. Google, LLC
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California Privacy Rights Act Highlights With Lily Li and DPO Advisor

Permalink to video here: https://vimeo.com/484360790

Mike: Hi everyone, if you’ve been following data privacy at all, you’ve probably already heard of California’s new landmark privacy law, the California Consumer Privacy Act, or CCPA as it is widely known.

The CCPA was the biggest data privacy shakeup in United States history. However, on November 3rd, California passed the California Privacy Rights Act or the CPRA, which adds teeth to the CCPA and further strengthens the rights for California consumers.

Here to talk about the upcoming CPRA is Lily Li, who is a Data Privacy Attorney and the founder of Metaverse Law.

Lily, thanks so much for joining us today.

Lily: Hey, thanks for having me.

Mike: Well, let’s jump right in. Can you please explain to everyone what the CPRA is?

Lily: Well, the CPRA is a law that amends the existing law on the books. As you mentioned there is this law called the California Consumer Privacy Act. It was passed by the California Legislature in 2018 and went into affect January 1st of this year.

Now we have CPRA, which is a ballot initiative that passed in the latest election, and it amends CCPA even further to make it more protective of privacy rights. Both of how customers use sensitive data and also about how companies use children’s data. We can definitely go more into the different changes that CPRA made to CCPA but this is a little bit of background on how it started.

Mike: That’s great. What do you feel are some of the key changes that the CPRA brings?

Lily: Well, the CPRA brings in this idea of sensitive personal information or sensitive personal data. And this aligns with a lot of other global privacy laws like GDPR and the new Brazilian Data Protection law.

Previously CCPA treated all types of personal information the same with respect to data subject requests. So people could get copies of their data. People could delete their data and a lot of people still have those rights with respect to companies.

Now, in CPRA there’s a new category of data sensitive personal data, sensitive personal information and these categories of data include things like health care information, now precise geo location, information about people’s genetics or biometric data.

And what’s important about these categories of data is that not only does the law prevent you from sharing this data without providing certain notices. The law also allows consumers to limit how a company uses sensitive data for their own purposes.

So even if you’re collecting Geo location information, not giving it out to third parties, if you’re using it for purposes at the company that aren’t related to why you’re collecting it from the consumer, the consumer can have the right to ask you to limit your use of sensitive data.

A good example of this is precise Geo location data. Uber got in trouble a little awhile ago because it would collect Geo location data from people using its rideshare app—even after people had stopped using the app. And so Uber could track people’s location in their homes or while they were still waiting for the right transit service.

This is a big No-No—especially if you are not disclosing it. But now, customers and consumers have the right to say hey, only use these sensitive pieces of information to provide me the services that I’ve requested. Don’t use it for anything else.

Another big change that the CPRA makes. Some people call it “CIPRA” now like to use the term CIPRA is that it increases the penalties for children’s data.

So previously, you could suffer fines if you were using children’s data in violation of how you disclosed the uses of data and privacy policy or if you refuse to respond to consumer requests regarding children’s data and the finding regime was the same. It was $2500 to $7500 per violation.

The difference between CPRA and CCPA is that under CCPA you could be fined $2500 per violation or $7500 per intentional violation. So you had to intentionally violate the law, and not just accidentally violate it because you didn’t know about the rules.

What “CIPRA” does or CPRA does is that it removes the intentionality requirement when you’re dealing with children’s data. So if you are using children’s data in ways that you haven’t disclosed in your privacy policy or are you are not fulfilling consumer requests regarding children’s data, then you are subject to that higher fine of $7500 per violation without any showing that you did it on purpose.

And there are a lot of other changes in CPRA that affects businesses. One of them is concerning behavioral advertising.

Under CCPA there was a lot of debate about whether or not re marketing, re targeting other types of cookies that track users across websites counted as sales of consumer data. And if something counted as a sale of consumer data under California law, you need to put a lot of disclosures on your website, like I do not sell my personal information.

Some companies were arguing that targeting ads behavioral advertising wasn’t a sale. There was no real exchange of money for personal information.

But CPRA removes that ambiguity. Under CPRA it is very clear that cross contextual behavioral advertising, that is to say, cookies that you set on a device that tracks users across different platforms in order to create a profile for a user to target them, counts as sales of data under CCPA, and so triggers a lot of the same disclosure requirements as if you were selling data in more traditional formats. So that’s another big change due to CPRA.

Mike: What do you think are the most important steps for businesses to take to comply with the CPRA?

Continue Reading California Privacy Rights Act Highlights With Lily Li and DPO Advisor