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:

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Image of virginia state and shield. Virginia has a new data privacy law.

Virginia Governor Signs Comprehensive Data Privacy Law

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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.
social network patents

Facebook, Patents, and Privacy: Social Media Innovations to Mine Personal Data

Social Media Patents & Privacy Data

[©2016. Published in GPSOLO, Vol. 37, No. 5, September/October 2020, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder]

* Updated November 25 to include references to CPRA/ Prop24.

The episode “Nosedive” of the television series Black Mirror envisions a society built on social credit scores. In this dystopia, all social media networks have converged into one platform—think Facebook, TikTok, Yelp, and Equifax combined.

This umbrella social platform allows users to rate each other on a five-point scale after each social interaction. Those with a high score gain access to job opportunities, favorable zip codes, and even high-status relationships. Those with a low score have the social ladder kicked out from under them, leading to a downward cycle of estrangement—and in the case of Black Mirror’s protagonist, jail time.

While the society in “Nosedive” seems far-fetched, is the technology behind it plausible?

Facebook Patents That Impact Privacy

According to Facebook’s patents, the answer is a resounding “yes.”

In a series of filings spanning almost a decade, Facebook has obtained several patents that allow social media platforms to track, identify, and classify individuals in new and innovative ways. Below are just few.

Tracking individuals via dust. U.S. Patent No. 9485423B2, “associating cameras with users and objects in a social networking system” (filed September 16, 2010, patented June 25, 2013), allows social media networks to identify an individual’s friends and relationships by correlating users across the same camera. To do so, an algorithm analyzes the metadata of a photo to find a camera’s “signature.”

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File folders with a small lock in the corner

Will the CCPA and Other State Privacy Laws Face Constitutional Attack?

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This article is Part 2 of 3 in a series exploring proposed federal privacy laws and constitutional concerns of privacy laws in the United States. Part 3 will discuss the constitutional challenges facing a proposed federal privacy law. 

In the first part of this series, we examined several federal privacy bills proposed this year, as Congress eagerly tries to pass a single harmonizing federal law. The issue of preemption continues to divide Republican and Democrat lawmakers, however, with the former in favor of an express provision allowing preemption stricter state privacy laws such as the CCPA and the latter largely against such a provision. 

Regardless of whether a federal law passes, with an express preemption provision, state privacy laws are still at risk of constitutional attacks. There are two primary ways that a state privacy law may be challenged: (1) invalidation under the Dormant Commerce Clause, and (2) invalidation under First Amendment grounds. State legislators contemplating the passage of their own privacy laws will need to consider these constitutional issues in the drafting phase, or risk facing opposition on constitutional grounds.

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Pole with sign saying "future".

Privacy Law Forecast for 2019

Image Credit: ID 23689850 © Steve Ball | Dreamstime.com

This past year was quite a whirlwind for privacy and cybersecurity watchers. Just to sum up a few of the top events of last year:

  • Facebook’s Cambridge Analytica scandal rocked political headlines
  • Europe introduced the GDPR, the most comprehensive data protection legislation to date in the world
  • California enacted the California Consumer Privacy Act, becoming the first US state to create GDPR-style rules
  • Google came under fire for allowing app developers to read your email, and track your location (even with location tracking off!)
  • Marriott’s guest reservation system was hacked, exposing the personal information of up to 500 million guests, including passport numbers and payment numbers for some of those hacked

What will happen in 2019? Here are our top 5 predictions:

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