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Keypoint: The draft CPA rules retain the hallmarks of what makes the CPA rules unique but contain some notable revisions and clarifications.

On Friday, January 27, 2023, the Colorado Attorney General’s Office published the third draft Colorado Privacy Act (CPA) rules. The Office previously published initial draft rules in October and revised rules in December. The Office published these revised rules shortly before its formal rulemaking hearing scheduled for February 1, 2023. The Office also extended the time for written comments until February 3, 2023.

In the below post we provide a high-level summary of some of the more notable changes to the draft rules in this latest revision. …

Continue Reading Third Version of Colorado Privacy Act Draft Rules Published

Keypoint: The changes are mostly controller-friendly with modifications to the privacy notice, consent, and data protection assessment provisions likely to facilitate compliance; however, the draft rules retain many of the hallmark provisions that make the CPA rules a significant and important addition to the U.S. privacy law landscape.

On December 21, 2022, the Colorado Attorney General’s office published revised draft Colorado Privacy Act (CPA) rules. The Office originally published draft rules in September. The revised draft rules consider public input received by the Office through three stakeholder sessions held in November as well as written comments received through early December.

The Office will hold a public rulemaking hearing on February 1, 2023. Interested parties can submit written comments until February 1, 2023, although the Office recommends that comments be submitted by January 18, 2023, if they are intended to be considered at the hearing.

In the below post we provide a summary of some of the more notable changes to the draft rules. For a discussion of the initial draft rules please see our prior blog post and webinar.…

Continue Reading Revised Colorado Privacy Act Draft Rules Published

Keypoint: The CPA draft rules are a complex and lengthy set of regulations that, if adopted without substantial modification, will significantly expand the CPA’s requirements and require controllers to carefully consider their compliance obligations.

On Friday, September 30, the Colorado Attorney General’s office published proposed Colorado Privacy Act rules. The Office also announced that it will hold three stakeholder meetings on November 10, 15, and 17, 2022, and a public hearing on February 1, 2023.

The draft rules are long – 38 pages of single-space text (omitting the 20 pages of rulemaking documents that appear at the end). In comparison, the Colorado Privacy Act is 31 pages. The length allows the office to provide clarity (e.g., around consumer requests) but also complexity, in particular around data protection assessments and profiling.

The complexity of the draft rules may come as a surprise to those who have not tracked the Office’s comments about engaging in robust rulemaking. The Office has devoted significant time and effort to drafting the rules, and it is clear that the Office intends to make its mark on U.S. privacy law moving forward.

In the below post, we first provide a list of high-level takeaways. We then provide a brief discussion of the rulemaking process and timeline. Finally, we provide a short summary of some of the more important substantive sections.…

Continue Reading Colorado Privacy Act Draft Rules Published

Keypoint: The comments focus on identifying areas in which the Attorney General’s Office may provide additional clarity to consumers and businesses and to ensure, where appropriate, the interoperability of the Colorado Privacy Act with state and international privacy laws.

The Colorado Attorney General’s Office is currently accepting pre-rulemaking input on the Colorado Privacy Act (CPA). It also will host public listening sessions on June 22  and June 28 for those interested in providing oral comments.

Given the importance of these forthcoming regulations to the development of U.S. privacy law, members of Husch Blackwell’s data privacy practice submitted extensive comments to the Office. The purpose of the comments is to identify areas in which the Office may provide additional clarity to consumers and businesses and to ensure, where appropriate, the interoperability of the CPA with other state privacy laws enacted in California, Connecticut, Utah, and Virginia and international privacy laws such as GDPR.…

Continue Reading Husch Blackwell Submits Comments on Colorado Privacy Act Pre-Rulemaking

State Privacy Guide_widget_300x196-10

Keypoint: The CPRA is relatively prescriptive in how organizations must receive and respond to consumer requests, while the CPA and VCDPA introduce an appeal process and other nuances that will require adjusting existing CCPA consumer response processes.

This is the tenth and final post in our ten-part weekly series comparing key provisions of the California Privacy Rights Act (CPRA), Colorado Privacy Act (CPA), and Virginia Consumer Data Protection Act (VCDPA). With the operative dates of these laws drawing near, this series has explored important distinctions between them. Following this series, we will continue to provide updates and insights into these and other state privacy laws, including following the CPRA and CPA rulemaking processes. If you are not already subscribed to our blog, consider subscribing now to stay updated.

In this article we examine how each of the three state laws approaches consumer requests, including the types of requests consumers may submit, the methods organizations must employ to receive requests, and the timeframes in which to verify and respond to requests. The analysis below provides a high-level summary of the response frameworks under each law. It does not dive into statutory exceptions or how to substantively respond to requests.

The California Consumer Privacy Act (CCPA) and its regulations, as amended by the CPRA, is relatively prescriptive as it concerns processing consumer requests. The CPA and VCDPA, meanwhile, provide parameters but leave the processing of consumer requests largely to the discretion of the organization. Unique to the CPA and VCDPA, however, is the introduction of an appeals process that must also inform or assist the consumer in contacting the state Attorney General if dissatisfied with the result of the appeal.…

Continue Reading How do the CPRA, VCDPA & CPA treat consumer requests?

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Keypoint: Organizations that collect personal data from children under 16 will need to ensure compliance with additional requirements once the laws go into effect.

This is the ninth post in our ten-part weekly series comparing key provisions of the California Privacy Rights Act (CPRA), Colorado Privacy Act (CPA), and Virginia Consumer Data Protection Act (VCDPA). With the operative dates of these laws drawing near, we are exploring important distinctions between them. If you are not already subscribed to our blog, consider subscribing now to stay updated.

In this article, we examine how the three laws treat children’s personal data. The CPRA divides children into two groups, children under 13 and children the ages of 13-15. While both groups require consent to sell or share information, the latter may do so without a parent or guardian. In comparison, the VCDPA and CPA handle children’s data similar to each other by both defining a child as under 13 years old and including personal data of a child under the definition of sensitive data (for which consent is required to process). The VCDPA and CPA do not address the treatment of data for children ages 13-15.

In addition to these three state laws, California recently introduced a bill that would further regulate children’s personal data by creating additional obligations for companies collecting data of consumers under the age of 18. Momentum is also gathering for federal legislation that further regulates children’s online personal data, with several bills aiming to update the Children’s Online Privacy Protection Act (COPPA). In March, President Joe Biden addressed the importance of protecting children’s data in his State of the Union address. We provide an overview of these new bills in this article as well.…

Continue Reading How do the CPRA, VCDPA & CPA treat children’s data?

State Privacy Guide_widget_300x196-08

Keypoint: Starting in 2023, organizations that are subject to one or more of the laws will need to enter into contracts with recipients of personal information/data that address numerous statutory requirements.

This is the eighth article in our ten-part weekly series comparing key provisions of the California Privacy Rights Act (CPRA), Colorado Privacy Act (CPA), and Virginia Consumer Data Protection Act (VCDPA). With the operative dates of these laws drawing near, we are exploring important distinctions between them. If you are not already subscribed to our blog, consider subscribing now to stay updated.

In this article, we examine how the three laws treat data processing agreements (DPAs). The CPRA, VCDPA and CPA require, in certain situations, businesses/controllers to enter into contracts with entities to whom they transfer personal information. The CPRA establishes three categories of recipients – service providers, contractors, and third parties – and sets forth a baseline set of requirements that must be contractually addressed when businesses sell or share personal information to a third party or disclose it to a service provider or contractor for a business purpose. The CPRA requires additional contractual provisions when the transfers are made to service providers or contractors.

In comparison, the VCDPA and CPA require contracts when a controller transfers personal data to processors. The VCDPA and CPA generally align their requirements although there are differences as discussed below. There also are many differences as compared to the CPRA’s requirements.…

Continue Reading How do the CPRA, CPA & VCDPA treat data processing agreements?

Keypoint: The CPRA and CPA introduce the concept of dark patterns into state consumer data privacy laws although this area has come under increased attention recently with FTC enforcement actions and guidance, state attorneys general lawsuits, and class action litigation.

This is the seventh post in our ten-part weekly series comparing key provisions of the California Privacy Rights Act (CPRA), Colorado Privacy Act (CPA), and Virginia Consumer Data Protection Act (VCDPA). With the operative dates of these laws drawing near, we are exploring important distinctions between them. If you are not already subscribed to our blog, consider subscribing now to stay updated.

In this article, we analyze how each of these laws treats dark patterns. The CPRA and CPA both prohibit use of dark patterns to obtain consumer consent. The basic distinction between the CPRA and CPA is when they require consumer consent. The CPRA generally allows businesses to obtain consumer consent to circumvent certain consumer rights that have already been exercised. In comparison, the CPA requires consumer consent for the processing of sensitive data. The legal landscape will also likely continue to change and develop, as both laws may see additional rulemaking on this issue.

In contrast, the VCDPA does not directly address dark patterns although, in theory, the state Attorney General could still regulate dark patterns through the law’s definition of consent.

Finally, while the concept of dark patterns is new for the CPRA and CPA, it must be understood in the context of Federal Trade Commission (FTC) enforcement and guidance, state attorneys general lawsuits, and class action litigation.

In the below article, we first consider what constitutes a dark pattern and ongoing multi-layered enforcement regarding them. We then analyze the role of dark patterns in each of the three state privacy laws.…

Continue Reading How do the CPRA, CPA & VCDPA treat dark patterns?

State Privacy Guide_widget_300x196-06

Keypoint: The requirements for recognizing opt-out preference signals for certain types of processing vary widely depending on which state laws apply.

This is the sixth post in our ten-part weekly series comparing key provisions of the California Privacy Rights Act (CPRA), Colorado Privacy Act (CPA), and Virginia Consumer Data Protection Act (VCDPA). With the operative dates of these laws drawing near, we are exploring important distinctions between them. If you are not already subscribed to our blog, consider subscribing now to stay updated.

In this article, we analyze how each of these laws treat opt-out preference signals. The California Consumer Privacy Act (CCPA), through its regulations, requires businesses to recognize such signals. However, the CPRA makes this an optional requirement. In contrast, Colorado will require controllers to recognize these signals as of July 1, 2024, whereas Virginia sits on the other end of the spectrum and does not require controllers to recognize them.

In the below article, we first discuss how California currently addresses this issue under the CCPA and how the CPRA will change those requirements. We then discuss Colorado’s approach.…

Continue Reading How do the CPRA, CPA & VCDPA treat opt-out signals?

State Privacy Guide_widget_300x196-05

Keypoint: Organizations subject to these laws will need to determine whether they are engaging in “sales,” which can be a complex and multifaceted analysis given the statutes’ varying definitions and exemptions.

This is the fifth post in our ten-part weekly series comparing key provisions of the California Privacy Rights Act (CPRA), Colorado Privacy Act (CPA), and Virginia Consumer Data Protection Act (VCDPA). With the operative dates of these laws drawing near, we are exploring important distinctions between them. If you are not already subscribed to our blog, consider subscribing now to stay updated.

In this article, we analyze how each of these laws treat “sales” of personal information/data. The CPRA, CPA, and VCDPA all give consumers the right to opt-out of the sale of their personal information/data by businesses/controllers. Whether organizations need to provide this right is obviously dependent on whether they are selling personal data. That analysis, however, is complicated by the fact that the laws define “sale” differently and contain different exemptions. Reconciling the definitions and exemptions will be an important step for any organization complying with these laws.

In the below article, we analyze these issues by first comparing the definitions of sale under the three laws and then analyzing the various exemptions.…

Continue Reading How do the CPRA, CPA & VCDPA treat sales?