In addition to announcing a new COPPA policy statement and related “crackdown” on children’s privacy issues (discussed here) in its most recent open meeting, the FTC also proposed changes to the FTC’s Endorsement Guides. The changes would build on and expand previous guidance, including by expressly extending liability to endorsers, intermediaries, and platforms
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.
Last week, the Attorney General Alliance hosted a seminar to address the Colorado Privacy Act (CPA)—what it does and how to prepare for its July 1, 2023 effective date. The seminar featured a discussion with the bill’s sponsors, legal experts, practitioners, and the Attorneys General for Colorado and Wyoming. As the third state to enact…
Subscription services and other automatic renewals continue to be a hot topic, at both the federal and state levels. The FTC recently announced that it was going to increase its enforcement against companies that don’t comply with the law, while various states have been updating or passing new laws. Next up are new laws in…
In 2017, California updated its automatic renewal law to create some of the strictest requirements in the country. Now, just four years later, the Governor Newsom signed a new law that will impose even stricter requirements.
- Requirements for Free Trials: If a program includes a free or discounted trial period of 31 days or more,
On October 6, 2021, the Senate Commerce Committee conducted its second in a series of hearings dedicated to consumer privacy and data, this time addressing Data Security. Similar to last week’s privacy hearing, the witnesses and Senators appeared to agree that federal data security standards – whether as part of privacy legislation or on their own – are urgently needed. If there were to be consensus around legislative principles, the hearing provides clues about what a compromise might look like.
Prepared Statements. In their opening statements, the witnesses emphasized the need for minimum standards governing data security.
- James E. Lee, Chief Operating Officer of the Identity Theft Resource Center, explained that without minimum requirements, companies lack sufficient incentives to strengthen their data security practices to protect consumer data. Lee also advocated for more aggressive federal enforcement rather than the patchwork of state actions, which, he said, produce disparate impacts for the same conduct.
- Jessica Rich, former Director of the FTC’s Bureau of Consumer Protection and counsel at Kelley Drye, emphasized that current laws do not establish clear standards for data security and accountability. She advocated for a process-based approach to prevent the law from being outpaced by evolving technologies and to ensure that it accommodates the wide range of business models and data practices across the economy. Among her recommendations, Rich suggested that Congress provide the FTC with jurisdiction over nonprofits and common carriers and authority to seek penalties for first-time violations.
- Edward W. Felten, former Deputy U.S. Chief Technology Officer, former Chief Technologist of the FTC’s Bureau of Consumer Protection, and current Professor of Computer Science and Public Affairs at Princeton University, focused on the need to strengthen the FTC’s technological capabilities, including increasing the budget to hire more technologists. Notably, Felten advocated for more prescriptive requirements in data security legislation such as requiring companies to store and transmit sensitive consumer data in encrypted form and prohibiting companies from knowingly shipping devices with serious security vulnerabilities.
- Kate Tummarello, Executive Director at Engine, a non-profit organization representing startups, addressed the importance of data security for most startups. Tummarello advocated for FTC standards or guidance with flexible options. Cautioning against overburdening startups, Tummarello explained that newer companies take data security seriously because they do not have the name recognition or relationships with consumers that larger companies may have, and a single breach could be extremely disruptive. Additionally, Tummarello highlighted that the patchwork of state laws provides inconsistent and unclear data security guidance and imposes high compliance costs.
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…
On September 29, 2021, the Senate Commerce Subcommittee held a hearing titled Protecting Consumer Privacy. The senators addressed the potential $1 billion earmarked to strengthen the FTC’s privacy work, the future of a federal privacy and data protection law, and a myriad of other privacy related topics such as children’s privacy.
Prepared Statements. In…
The Senate yesterday confirmed current FTC Commissioner Rohit Chopra as the new Director of the Consumer Financial Protection Bureau (CFPB). The 50-48 vote to confirm was along party lines and followed Vice President Harris’s breaking of a 50-50 tie to invoke cloture and end debate on Chopra’s nomination.
With Chopra’s departure from the FTC…
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…