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Aaron J. Burstein

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How the Utah Consumer Privacy Act Stacks Up Against Other State Privacy Laws

As companies wait to see whether the Utah Consumer Privacy Act (UCPA) becomes the fourth comprehensive state privacy law, we are providing an overview of some of the Act’s key provisions – and how they depart from comprehensive privacy laws in California, Colorado, and Virginia.

Utah’s Senate unanimously passed the UCPA on February 25.  The House – also through a unanimous vote – followed on March 2.  The Legislature sent the UCPA to Governor Spencer Cox on March 15.  Because the Legislature adjourned on March 4, Governor Cox has 20 days from the date of adjournment – March 24 – to sign or veto the Act.  If Governor Cox takes no action, the UCPA will become law, with an effective date of December 31, 2023.

In broad strokes, the UCPA is similar to the Virginia Consumer Data Protection Act (VCDPA) and Colorado Privacy Act (CPA).  And, like the laws in Colorado and Virginia, the UCPA borrows some concepts from the CCPA – including a version of the right to opt out of the “sale” of personal data.

However, the UCPA pares back important features of all three of these laws.  Some of the significant changes include:

  • Applicability.  The UCPA’s applicability is narrower than the three other comprehensive state privacy laws.  The UCPA applies only to controllers or processors that (1) do business in the state (or target Utah residents with products or services); (2) earn at least $25 million in revenue; and (3) either: (a) control or process personal data of 100,000 or more consumers in a calendar year; or (b) derive more than 50 percent of gross revenue from selling personal data and control or process data of 25,000 or more consumers.  By contrast, the $25 million revenue threshold is an independent basis for the CCPA to apply to a business; and neither the CPA nor VCDPA includes a revenue-based exemption.
  • Exemptions.  In addition to exempting personal data that is subject to sector-specific privacy laws and regulations, such as HIPAA, the Gramm-Leach-Bliley Act, and the Fair Credit Reporting Act, the UCPA provides that the Act does not apply to certain entities, including a tribes, institutions of higher education, and nonprofit corporations.
  • Sale and Targeted Advertising Opt-Out Rights.  Although the UCPA requires controllers to provide consumers with the ability to opt out of sale and targeted advertising, the Act does not provide a right to opt out of profiling (or otherwise address profiling).  Like the VCDPA, the UCPA restricts the definition of “sale” to “the exchange of personal data for monetary consideration by a controller to a third party.”  This definition does not include “other valuable consideration,” found in the definitions of “sale” under the CCPA and CPA.
  • Opt-Out Consent to Process Most Sensitive Data.  The UCPA does not require opt-in consent to process most sensitive data, unless the data “concern[s] a known child,”  unlike the opt-in requirements of the CPA and VCDPA.  Instead, the UCPA requires controllers to “present[] the consumer with clear notice and an opportunity to opt out” of sensitive data processing.
  • Other Consumer Rights.  The UCPA provides consumers the right to confirm processing and to delete personal data they provided to a controller.  Consumers also have the right to obtain a portable copy of personal data that the consumer “previously provided to the controller.”  This “provided to” language follows the VCDPA’s access and portability right and contrasts with obligations to provide personal data “concerning” (CPA) or “about” (CCPA) a consumer.  The UCPA does not provide a right of correction or accuracy.
  • Enforcement and Regulation.  The UCPA does not include a private cause of action, nor does it authorize the Attorney General or other state official or agency to issue regulations.  The Division of Consumer Protection, in the Utah Department of Commerce, investigates potential violations and can refer an action to the Utah Attorney General for enforcement.  The Attorney General can recover actual damages for consumers and a penalty of up to $7,500 per violation, but only after a 30 day notice and right to cure period.

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Continue Reading How the Utah Consumer Privacy Act Stacks Up Against Other State Privacy Laws

In the first formal written opinion interpreting CCPA compliance obligations, California Attorney General Rob Bonta concludes that the CCPA grants consumers the right to know and access internally generated inferences that businesses generate about them, but that the CCPA does not require businesses to disclose trade secrets.

The 15-page opinion, issued on March 10, responds to a question posed by Sacramento area Assemblyman Kevin Kiley (R): “Under the California Consumer Privacy Act, does a consumer’s right to know the specific pieces of personal information that a business has collected about that consumer apply to internally generated inferences the business holds about the consumer from either internal or external information sources?”

OAG’s response, in a nutshell, is “yes.”  Giving consumers access to inferences is important, according to OAG, because “inferences are one of the key mechanisms by which information becomes valuable to businesses, making it possible to target advertising and solicitations, and to find markets for goods and services.”  OAG further notes that nothing in the Consumer Privacy Rights Act (CPRA) changes its analysis.  The opinion also suggests that the OAG will refer to the CCPA’s broad purposes, such as giving “consumers greater control over the privacy of their personal information,” to support its interpretations.
Continue Reading California AG’s First CCPA Opinion Takes a Broad View of the Right to Access Inferences

FTC Continues to Focus on Incentivized ReviewsPlease join us for a webinar on February 24, 2022 at 4 p.m. on recent and upcoming FTC developments. The webinar will feature Kelley Drye’s Jessica Rich and Aaron Burstein, both former FTC officials, and will be moderated by the newest addition to our privacy team, Jayson Lewis. Here’s a taste of what we’ll be…

During last month’s California Privacy Protection Agency Board (CPPA) meeting, the only substantive agenda item, addressed in closed session, was a discussion of two key appointments: the first Executive Director and a Chief Privacy Auditor, as required by CPRA’s 1798.199.30. On October 4, 2021, the five-person CPPA board announced that they appointed…

As of September 27, 2021, the European Commission requires controllers and processors to rely on the recently updated Standard Contractual Clauses (SCCs) for any new contracts governing personal data transfers from the EEA. (Existing contracts can continue to use old SCCs until December 27, 2022.)  This post provides an overview of what’s in the new…

On September 22, the California Privacy Protection Agency (CPPA) issued an invitation for public comments as part of its first “preliminary” rulemaking activities.  Established by the California Privacy Rights Act (CPRA) ballot initiative last November, the CPPA has the authority to write rules that address some of the most technical and controversial topics addressed in…

In an aggressive expansion of its security and privacy enforcement programs, on September 15, 2021, the FTC issued what it characterized as a “Policy Statement” reinterpreting an old rule about personal health records.

First, some background. In 2009, Congress directed the FTC to create a rule requiring companies to provide notice when there…

The Colorado Legislature recently passed the Colorado Privacy Act (“ColoPA”), joining Virginia and California as states with comprehensive privacy legislation. Colorado Governor Jared Polis signed the bill (SB 21-190) into law on July 7, and ColoPA will go into effect on July 1, 2023.

How does the measure stack up against the VCDPA and the CCPA (as amended by CPRA)? The good news is that, in broad terms, ColoPA generally does not impose significant new requirements that aren’t addressed under the CCPA or VCDPA, but there are a few distinctions to note..
Continue Reading Privacy Law Update: Colorado Privacy Bill Becomes Law: How Does it Stack Up Against California and Virginia?

Update: Governor Polis signed SB 21-190 into law on July 7, 2021, see our updated blog post here.

The Colorado Legislature recently passed the Colorado Privacy Act (“ColoPA”), joining Virginia and California as states with comprehensive privacy legislation. Assuming Colorado Governor Jared Polis signs the bill (SB 21-190) into law, ColoPA will…