On March 2, 2021, Governor Northam signed into law Virginia’s own Consumer Data Protection Act (“Virginia CDPA” or the “Act”), a bill that brings together concepts from the EU’s General Data Protection Regulation (GDPR) as well as the California Consumer Privacy Act (CCPA) and the California Privacy Rights Act (CPRA). It is the first of its kind legislation on the East Coast. The law will go into effect on January 1, 2023.

The drafters of the Virginia CDPA appear to have benefited from observing the pitfalls and problems that arose in the development and implementation of both GDPR and CCPA. The Virginia bill deftly avoids several of those by incorporating narrower, more tailored definitions that clearly exclude categories of data and businesses over which there was (and continues to be) some confusion with respect to both the EU/UK and California compliance regimes. It also adopts, in concept, the framework of the GDPR, and even some of its language. Like GDPR, it characterizes the party who initially collects and controls personal data as the “controller” and obligates that party to be a good steward of the data, through transparency with the consumer, accountability for sharing the data with third parties (“processors”), and a duty to implement appropriate data security to safeguard the data. It will be enforced by the Virginia Attorney General. Notably, there is no private right of action under the Act.


Continue Reading Virginia’s New Consumer Data Protection Act (CDPA)

Data privacy is a top concern for many in-house legal professionals – and for good reason – data privacy and cybersecurity legal requirements are complex and continually evolving. Data Privacy Day is a great day to start addressing your organization’s data privacy and cybersecurity needs.

On Data Privacy Day 2021, here is what is top of mind for some of our Data Privacy & Security Team members:

  • Andrew Konia – A Federal Privacy Law: “Calls (pleas?) for federal privacy legislation are nothing new, and last year we came close, with both parties presenting draft bills for consideration (surprise, neither passed!).  But now, with the White House and both chambers of Congress under Democratic control, there appears to be renewed (and more serious) interest in a federal privacy law. We have seen (admittedly narrow) hints of the federal government taking a stronger stance on cybersecurity standards with the IoT Cybersecurity Improvement Act of 2020, which applies to federal agency purchases. But you take the recent and intense backlash on “Big Tech’s” use/sharing of data and perceived lack of data transparency, and mix in the Biden Administration’s prioritization of consumer protection generally, and you have the recipe – and a strong political appetite – for a comprehensive federal privacy law.”
  • Bethany Lukitsch – California: “CPRA will be here before we know it, and most companies are going to have a lot to do to get ready. Updating privacy policies and adding ‘do-not-share’ links are one thing, but as with CCPA, it’s the behind-the-scenes work that is really going to take some time.  It’s certainly not too early to get started.”


Continue Reading Data Privacy Day 2021: Privacy and Cybersecurity Are On Our Minds, Too

Once again, the Virginia legislature is set to consider comprehensive data privacy legislation.  In the 2020 regular session of the Virginia General Assembly, the House of Delegates referred several bills dealing with privacy issues, including a proposed data privacy law, to the Virginia Joint Commission on Science and Technology for study.

This year, it appears Virginia is poised to seriously consider adoption of a broad consumer data privacy framework.  Senate Bill 1392 , sponsored by Senator David Marsden (D-Fairfax), was introduced on January 13, 2021. House Bill 2307, sponsored by Delegate Cliff Hayes, Jr. (D-Chesapeake), was introduced on January 20, 2021. The bills create the “Consumer Data Protection Act.”

Virginia does not currently have a comprehensive data privacy law governing consumer data.  Like most states, it has a data breach notification law and various protections for specific types of data in certain contexts.


Continue Reading Virginia Legislature Is Set to Consider Comprehensive Data Privacy Legislation

In Part II of this series, California-based Ali Baiardo, and London-based Alice O’Donovan, continue their comparison of the GDPR and California privacy law. To view Part I in the series, click here.

NEW DATA PROTECTION PRINCIPLES AND OBLIGATIONS ON BUSINESSES

a. Key data protection principles

The GDPR revolves around seven key data protection principles:

  1. Lawfulness, fairness and transparency;
  2. Purpose limitation;
  3. Data minimisation;
  4. Accuracy;
  5. Storage limitation;
  6. Integrity and confidentiality (security); and
  7. Accountability


Continue Reading California Privacy Rights Act: A Move Closer to GDPR? Part II

The recently-passed California Privacy Rights Act (CPRA) augments and supplements California’s existing privacy law, the California Consumer Privacy Act (CCPA).  We are sure many practitioners are wondering how it stacks up with the European Union’s General Data Protection Regulation (GDPR). See below for Part I of our two part series comparing the CPRA and the GDPR (and see Part II here).

HOW DOES THE CPRA CHANGE THE CCPA?

The CPRA makes several significant changes to the CCPA:

  • It introduces the concept of “sensitive personal data”;
  • It introduces new obligations on businesses, and GDPR-style “principles”;
  • It introduces new rights for consumers; and
  • It creates a new supervisory authority for data protection and privacy in California — the California Privacy Protection Agency.

These changes are very significant – but do they represent a move closer to GDPR, or a move away?


Continue Reading California Privacy Rights Act: A Move Closer to GDPR? Part I

The November 2020 election left a lot of questions.  Among them, companies doing business in California are now asking about compliance with yet another California data privacy law, this time the California Privacy Rights and Enforcement Act of 2020 (the “CPRA”).  This article gives an overview addressing the what, when, and how of the CPRA.  (We won’t hazard a guess as to the why—we leave that to the backers of the new law.)

What is the CPRA?

The CPRA builds on the California Consumer Privacy Act of 2018 (the “CCPA”) in a number of key ways.  It includes: new consumer rights, new requirements for businesses, and a number of other miscellaneous changes.  Some parts of the CCPA will remain in effect, and others are rephrased or clarified.  We provide below a high-level overview of topics we believe businesses should be thinking about now as they look ahead to building-out their CPRA compliance programs.


Continue Reading You’re CCPA Compliant. So Now What? Top Tips for Companies Looking Ahead to the Recently-Passed CPRA

On October 12, 2020, the California Attorney General provided public notice of a new Proposed Third Set of Modifications to the Regulations under the California Consumer Privacy Act (the “CCPA”).  You will be forgiven if you assumed that “final approval” of the existing Regulations back in August meant the Regulations were final—or at least we hope so because we made the same assumption.

Since August, however, it appears the AG was working behind the scenes to resurrect previously withdrawn Sections 999.306(b)(2) (covering offline notice of opt-out if a business substantially interacts with consumers offline); 999.315(c) (minimum standards for opt-out requests); and 999.326(c) (specific requirements for authorized agents).  The AG describes the newly proposed rules as follows:


Continue Reading Spooky: Presumed-Dead CCPA Regulations Come Back to Life

On August 14, 2020, the California Attorney General announced final approval of the California Consumer Privacy Act Regulations by the Office of Administrative Law.  The Regulations take effect immediately.

While the revisions made to the Final Regulations mostly consist of “non-substantive changes” to correct grammatical errors or clarify the wording of various provisions, business should be aware of the “global modifications” made in a few key areas.  These are summarized below along with our take on what they may mean for businesses:


Continue Reading Finally Final: CCPA Regulations Take Effect

If you’re like us, you’ve been anticipating an announcement from the California Attorney General about the types of companies it targeted in its initial enforcement of the California Consumer Privacy Act (the “CCPA”), the types of violations the AG is interested in, and the types of arguments it is making in enforcing the Act.  While official word from the AG is unlikely before the end of the 30-day cure period following its initial notice letters, a member of the AG’s office did confirm during a recent panel discussion that the AG sent out those letters on July 1, 2020.

The statement was part of a fascinating and informative panel put on by the International Association of Privacy Professionals (“IAPP”).  It featured Stacey Schesser, Supervising Deputy Attorney General for the State of California and part of a multi-member team of attorneys in the AG’s office charged with enforcing the CCPA.  A recording is available on the IAPP’s website, and we encourage you to check it out if you’re a member.  In terms of the details gleaned from Ms. Schesser’s comments, here is what we know about the AG’s enforcement of the CCPA to-date:


Continue Reading California Attorney General CCPA Enforcement—Make Sure You Pay Attention to What Customers Are Saying on Twitter

On June 1, 2020, the California Attorney General submitted the final text of the CCPA Regulations to the California Office of Administrative Law (the “OAL”).  This was the last step the AG needed to take before the Regulations become enforceable.  But whether enforcement will still start on July 1, 2020 as set forth in the CCPA remains uncertain.

What does this mean for the timing of CCPA enforcement?

Some have questioned whether the AG’s delay in submitting the Regulations following the end of the last comment period in March signaled an intent by the AG to delay enforcement of the CCPA.  So far, however, there is no indication of any intended delay in either the AG’s press announcement regarding submission of the Final Regulations or his prior comments reiterating his intention to keep enforcement on track despite COVID-19.  Indeed, the AG requested expedited review of the Regulations by OAL in order to meet the July 1 deadline.


Continue Reading AG Submits Final CCPA Regulations—Is Enforcement Still on Track for July 1, 2020?