The Colorado Attorney General’s Office published draft Colorado Privacy Act (CPA) rules on September 30, 2022. As discussed in our prior blog post, the 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 October 20, 2022, members of Husch Blackwell’s data privacy team will host a webinar to analyze the draft rules and how they will impact your CPA compliance efforts. During the webinar, we will:

  • Review the draft rules
  • Compare the draft rules to the CCPA/CPRA regulations
  • Analyze how the draft rules interact with other state privacy laws in Connecticut, Virginia and Utah

Click here for more information and to register.

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: Businesses subject to the CCPA will need to revise their compliance programs before the exemptions expire on January 1, 2023.

As previously reported, the California legislature had been considering multiple bills to extend the employee and business-to-business data exemptions under the California Consumer Privacy Act (CCPA). On August 31st, however, the California legislature adjourned without extending the exemptions which automatically expire on January 1, 2023 – the same day the California Privacy Rights Act (CPRA) goes into effect.

Generally speaking, the current exemptions apply to (1) personal information of job applicants, employees, owners, directors, officers, and independent contractors in the context of the individual’s employment or application for employment and (2) personal information reflecting written and verbal communications or a transaction where the consumer is acting in a business-to-business commercial transaction. With the exemptions set to expire, California will become the first state to apply comprehensive restrictions on the collection and use of such information.

Businesses subject to the CCPA and that have California employees or deal with other California companies will need to engage in substantial efforts to update their privacy programs. We outline some of the necessary steps below.

Continue Reading California Legislature Fails to Extend CCPA Employee and B2B Data Exemptions

Keypoint: The thirteen new enforcement case examples – released just a few months before the CCPA’s right to cure sunsets – provide further insight into the Attorney General’s enforcement priorities.

As we previously reported, last week the California Attorney General’s Office announced its first public settlement for alleged non-compliance with the California Consumer Privacy Act (CCPA), consisting of a $1.2 million penalty as well as injunctive relief. Although much of the discussion since the announcement has been appropriately focused on the contours of the settlement agreement, the Office contemporaneously published thirteen new CCPA enforcement case examples. The new examples add to the twenty-seven examples the Office published in July 2021.

Because the Office does not generally release information to the public about its investigations, the new case examples provide a rare glimpse into the Office’s past year of CCPA enforcement activities. With the CCPA’s thirty day right to cure sunsetting on January 1, 2023, businesses should review these case examples as part of their ongoing compliance efforts.

Below is an overview of the new enforcement case examples.

Continue Reading CCPA Update: Cal. AG Releases Thirteen New Enforcement Case Examples

Keypoint: The Attorney General’s announcement of a $1.2 million penalty sends a “strong message” to companies to come into compliance.

On August 24, 2022, California Attorney General Bonta announced the first public enforcement action under the California Consumer Privacy Act (CCPA) as well as a new round of investigative sweeps and more enforcement case examples.

During an online press conference, Attorney General Bonta announced a $1.2 million settlement with a company over allegations it illegally sold data in violation of the CCPA. Bonta stated the enforcement action should send a “strong message” to companies to comply with the CCPA. The enforcement action arose out of a prior investigative sweep in which the Attorney General’s office sent over one-hundred (100) notices of violation.

Continue Reading California Attorney General Announces First Public CCPA Enforcement Action

In the sixteenth episode of our Legislating Data Privacy podcast series, we are joined – for the second time – by the International Association of Privacy Professional’s Joseph Duball.

In what has become a yearly conversation, Husch Blackwell’s David Stauss and Joe discuss what happened with proposed privacy legislation during the 2022 session and look forward to what might happen in 2023. In 2022, no one followed proposed state privacy legislation closer than Joe. In his work contributing to the IAPP’s daily news alerts, Joe published articles on every major state privacy law development in 2022.

Keypoint: As currently drafted, the ADPPA’s private right of action provides U.S. citizens with the opportunity to enforce their privacy rights but limits lawsuits to federal court and provides covered entities and service providers with mechanisms to mitigate the risk of such claims, including through the use of arbitration provisions and class action waivers.

As we previously reported, the American Data Privacy and Protection Act (ADPPA) (H.R. 8152) is eligible for a full House vote after the House Committee on Commerce & Energy (House Committee) reported out an amended version on July 20, 2022. Prior to reporting out the ADPPA, the House Committee adopted an Amendment in the Nature of a Substitute (AINS) that made numerous changes to the bill, including modifications to the bill’s private right of action (PRA).

The contours of the ADPPA’s PRA are crucial.

Privacy advocates point to the inclusion of the PRA as one way in which the ADPPA is stronger than the California Consumer Privacy Act. However, Senator Maria Cantwell (D-Wash.) – whose support is necessary to pass the bill because she chairs the relevant Senate committee – stated that the ADPPA contains “major enforcement holes” and does not have her support. Recently, Senator Cantwell stated that “she couldn’t support the bipartisan framework unless House lawmakers add tougher enforcement measures, including limits on forced arbitration and a broad right for individuals to sue companies that violate the law.” According to Cantwell, “The problem is it’s taking the House a long time to come to reality about what strong enforcement looks like.” “If you’re charitable, you call it ignorance. If you think that it’s purposeful, it literally won’t pass the House because they just won’t meet the test of what a strong federal bill looks like.” Meanwhile, business advocates such as the U.S. Chamber of Commerce are adamantly opposed to any bill “that creates a blanket private right of action.”

Given how important this issue is to passing a federal privacy bill, the below article contains a detailed analysis of the ADPPA’s current PRA as the House Committee passed it on July 20. The article then outlines the PRA contained in Senator Cantwell’s 2019 bill, the Consumer Online Privacy Right Act for comparison purposes.

If you are interested in learning more about the ADPPA, we are hosting a webinar on it on August 18, 2022. Click here for more information and to register. We also would like to thank the Future of Privacy Forum and the IAPP’s Cobun Zweifel-Keegan whose redline of the latest version of the ADPPA was instrumental in the drafting of this article.

Continue Reading Analyzing the American Data Privacy and Protection Act’s Private Right of Action

On July 20, 2022, the House Committee on Energy & Commerce reported out the American Data Privacy and Protection Act (ADPPA), and it is now eligible for a full House vote. If passed by Congress and signed by the President, the ADPPA will fundamentally change privacy law in the United States and around the world.

On August 18, 2022, Husch Blackwell will host a webinar to analyze the ADPPA. During the webinar we will cover the following topics:

  • What entities the ADPPA covers
  • What types of data are subject to the ADPPA
  • The requirements for covered entities under the ADPPA
  • How would the ADPPA be enforced, including an analysis of the bill’s private right of action
  • Where the ADPPA stands in the legislative process and what its path forward is

Click here for more information and to register.

Keypoint: The House Committee on Energy & Commerce reported out the American Data Privacy and Protection Act by a vote of 53-2, referring the bill to the full House.

On July 20, 2022, the House Committee on Energy & Commerce reported out an amended version of the American Data Privacy and Protection Act (ADPPA) (H.R. 8152) after holding a markup. The bill passed by a vote of 53-2 and is now eligible for a  full House floor vote. Lawmakers previously voted the bill out of a House subcommittee on June 23, 2022.

In the below article, we provide a brief overview of the amendments to the ADPPA as well as a discussion of recent objections raised by various entities and individuals.

Continue Reading Federal Privacy Bill Advances to House Floor

Keypoint: While the Agency previously published draft regulations in early June, its filing of a Notice of Proposed Rulemaking officially initiates the rulemaking process and triggers a 45-day comment period.

On July 8, 2022, the California Privacy Protection Agency (Agency) announced that it has initiated the formal rulemaking process to adopt proposed regulations implementing the Consumer Privacy Rights Act of 2020 (CPRA). The announcement comes exactly six weeks after the Agency published draft regulations in connection with an Agency Board meeting held on June 8, 2022.

In the below post we identify the rulemaking documents filed by the Agency, discuss the rulemaking timeframe and scope, highlight comments the Agency made regarding other privacy laws, and identify the non-substantive changes made between this version and the prior draft version published in June.

Continue Reading CPPA Commences Formal CPRA Rulemaking