The State of the State Privacy Laws: A Comparison

On July 7, 2021, Colorado became the third state to enact a comprehensive privacy law. The Colorado Privacy Act (CPA) has elements in common with the California Consumer Privacy Act (CCPA) and California Privacy Rights Act (CPRA) and largely tracks the new Virginia Consumer Data Protection Act (VCDPA). Only the CCPA is currently in effect; the CPA, CPRA, and VCDPA will take effect in 2023. All these laws impose new obligations on businesses and provide residents of these states with new rights regarding the collection and use of their personal information. While there are many similarities among the laws, there are also some key differences, as set forth in the table below.

All the laws define the term “personal information” or “personal data” broadly. Unlike the CCPA, however, both the CPA and the VCDPA borrow terms and definitions from the EU General Data Protection Regulation (GDPR), such as “controller” and “processor” when referring to covered entities and their service providers, respectively, and “personal data.” In addition, the CPA and the VCDPA require covered entities to conduct data security assessments for data processing activities that present a “heightened” risk of harm, such as profiling, selling personal data, processing sensitive personal data, and engaging in targeted advertising. The CPRA adds a risk assessment requirement to the CCPA. Unlike the CCPA, which allows a private right of action for breaches of “personal information” (as that term is defined in a separate California data breach notification law and which is more narrowly defined than the term “personal information” in the CCPA), neither the CPA nor the VCDPA includes a private right of action for any type of violation. The CPRA extends the CCPA private right of action to data breaches that compromise a username and password and creates a new enforcement body, the California Privacy Protection Agency. 

Each law and its implementing regulations, when adopted, must be reviewed in detail to assess application to a specific entity’s operations, but the chart below offers a high-level comparison of key features of each law.

THIS SUMMARY IS INTENDED TO PROVIDE GENERAL INFORMATION ABOUT APPLICABLE LAWS AND DOES NOT CONSTITUTE LEGAL ADVICE REGARDING SPECIFIC FACTS OR CIRCUMSTANCES.  
 

Federal Legislation

While states forge ahead with privacy legislation, members of Congress continue to put forth their own federal privacy bills. Most recently, on November 3, 2021, Republican members of the House Energy and Commerce Committee issued a discussion draft of a national preemptive privacy bill, the Control Our Data Act.  This follows up on the introduction by Senator Roger Wicker (R-Miss.), ranking member of the Senate Committee on Commerce, Science, and Transportation, and several other Republican senators, of the Setting an American Framework to Ensure Data Access, Transparency, and Accountability Act  (SAFE DATA Act or the Act). This bill shares certain features with the Colorado and Virginia privacy laws, including the absence of a private right of action for violations and an emphasis on business transparency. The Act requires covered businesses to obtain affirmative consent from consumers before processing or transferring sensitive personal data, minimize personal data collection, provide reasonable security to protect personal data, publish user-friendly privacy policies, and perform an annual data impact assessment. The Act provides consumers with several rights, including rights to access, delete, correct, and port their personal information, and a right to opt-out of the collection, processing, or transfer of covered data – broadly defined as “information that identifies or is linked or reasonably linkable to an individual or a device that is linked or reasonably linkable to an individual” before such collection, processing, or transfer occurs. The Act excludes aggregated data, employee data, deidentified data, and publicly available data. With respect to minors, the Act prohibits businesses from processing or transferring personal data of minors absent affirmative express parental consent where the business has actual knowledge that the consumer is between 13 and 16 years old. Violations would be enforced by State Attorneys General and the Federal Trade Commission (FTC).

Other privacy bills have been introduced in Congress this year and a few include a state preemption clause. They include: the BROWSER Act of 2021, introduced by Senator Marsha Blackburn (R-TN); the Consumer Data Privacy and Security Act of 2021, introduced by Senator Jerry Moran (R-KS); and the APP Act, submitted by Senator Marco Rubio (R-FL). In contrast, four bills introduced this year include a limited private right of action: the Public Health Emergency Privacy Act, introduced by Representative Anna Eshoo (D-CA) (an identical bill was introduced in the Senate by Senator Richard Blumenthal, D-CT); the Mind Your Own Business Act of 2021, submitted by Senator Ron Wyden (D-OR); and the Facial Recognition and Biometric Technology Moratorium Act of 2021, introduced by Senator Ed Markey (D-MA). 

Both businesses and consumers would benefit from a clear, comprehensive federal privacy law. Many businesses believe it is crucial that any new federal privacy law work with existing federal privacy laws, such as the Gramm-Leach-Bliley Act, the Health Insurance Portability and Accountability Act, and the Children’s Online Privacy Protection Act, along with others. To establish the goal of a uniform national standard, most businesses agree that, like the aforementioned laws, new federal privacy legislation must explicitly preempt state and local laws. The business community also opposes creating a private right of action, favoring instead strong enforcement by a central federal agency, such as the FTC, with state Attorneys General also given enforcement authority. 

Data is the engine of a significant part of today’s economy, and the 2022 state and federal legislative landscape promises more attention on privacy and data security. Creating a common national U.S. legal standard to maintain consumer privacy and data security is critically important to promote consumer confidence and foster a competitive global economy. It is hoped that stakeholders will work together to forge federal legislation that establishes a fair and workable national privacy framework in the United States. 

For more information on privacy and data security matters, please contact us:
Sheila Millar: 202.434.4143, millar@khlaw.com)
Tracy Marshall: 202.434.4234, marshall@khlaw.com)

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