Since the passage of the California Consumer Privacy Act (CCPA) in June 2018, over a dozen US states have proposed their own privacy laws, many of which are nearly identical to the CCPA.  Some of these proposals have since become law.  Others are in different stages of the legislative process.  To help clients keep track of the status of these proposed laws, Ballard has launched a US State Privacy Law Tracker.  We’ll be updating the Tracker as these laws progress and states propose new privacy laws, so check back regularly. 
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In April 2019, the California Assembly Privacy and Consumer Protection Committee rejected a proposal known commonly as the “Privacy for All Act” (AB-1760), which among other things would have provided a private right of action for all violations of the California Consumer Privacy Act (CCPA). The rejection of AB-1760 was a blow to consumer privacy advocates. A similar measure, SB-561, would also have provided a private right of action for all privacy violations. That bill has also been defeated, meaning that the CCPA’s private right of action provisions will not be expanded this year.
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Following the speedy enactment of the California Consumer Privacy Act (CCPA or Act) in June 2018, business and consumer advocates alike have been pressuring California lawmakers to clarify the many ambiguities raised by the Act’s sweeping requirements. California lawmakers recently responded to these calls for greater clarity by proposing a slate of amendments to address some of the more controversial provisions of the CCPA, including the definition of “personal information”, requirements regarding information sharing, and the scope of industry exemptions.
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Recently, legislators in Texas introduced two bills relating to consumer privacy and data protection: H.B. No. 4518, the Texas Consumer Privacy Act (“Texas CPA”) and H.B. No. 4390, the Texas Privacy Protection Act (“TPPA”). These bills bear a strong resemblance to the California Consumer Privacy Act (the “California CPA”), and would lay the groundwork for extensive administrative schemes protecting consumers’ rights to their personal information.

Texas CPA

The Texas CPA bears strong similarity to California CPA. The Texas CPA, which, if adopted, would take effect September 1, 2020, applies to companies that do business and collect consumer data and:

  • Derive at least 50% of their annual revenue selling consumers’ personal information; or
  • Exceed $25 million in gross annual revenue (with that amount subject to adjustment by the Texas Attorney General every two years); or
  • Buy, sell, or receive the personal information of at least 50,000 consumers, households, or devices for commercial purposes
  • The Texas CPA would also apply to entities owned by companies that would be subject to the law. Similar to the California CPA, the Texas CPA contains express provisions governing rulemaking, implementation, and enforcement of the law. Notably, the legislation highlights various consumer rights, including (but not limited to):
  • A consumer’s right to disclosure, from the business, of the personal information the business collected.
  • A consumer’s right to deletion of the personal information that the business collected (with some limited, specific exceptions).
  • A consumer’s right to opt out of the sale of his or her personal information.


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Utah Governor Gary Herbert is expected to sign a new privacy law in the coming weeks that will make his state the first to protect private electronic data stored with third-party providers from government access without a warrant.

Under the legislation passed unanimously by the Utah Legislature earlier this month, law enforcement agencies need a warrant to obtain information about an individual from wireless communications providers, email platforms, search engine providers, or social media companies.

While much of the focus over the past two years has been on laws to protect consumer privacy rights, protecting private information from disclosure to law enforcement has also generated attention. Traditionally, the general rule followed, on both the federal and state levels, has been that law enforcement agencies can access information through third-party providers because individuals have no reasonable expectation of privacy when they share their personal information with third parties.
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The Equifax and Facebook-Cambridge Analytica scandals, coupled with the proliferation of state privacy and security laws such as the California Consumer Privacy Act (CCPA)—as well as proposed laws in Washington and Massachusetts—have increased demand for a comprehensive national privacy law.  Last week, the Senate announced plans to hold hearings to discuss a proposed privacy law.  The Government Accountability Office (GAO) has just released its report recommending that Congress develop comprehensive privacy legislation to enhance consumer protections. 
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As we turn the page on 2018, let’s reflect on some of the key privacy and cybersecurity issues that will continue to occupy our hearts and minds in 2019.

Owning the Mega-Breach

2018 was the year in which data breaches in mergers and acquisitions became the iceberg in full view. This fuller realization of cyber risk in transactions, though, actually has its origin in September 2016 – when Yahoo and Marriott were in the midst of deals that would involve some of the largest data breaches on record.
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For good reason, there has been much discussion about the new privacy rights created by the California Consumer Privacy Act of 2018 (CCPA), which becomes effective January 1, 2020. Perhaps one of the most significant provisions of the CCPA, though, will be one that has been somewhat overlooked: Section 1798.150, which provides for statutory damages of between $100 and $750 per consumer per incident for certain data breaches. Indeed, had California enacted Section 1798.150 alone, it would have garnered scores of articles on how its statutory damages remedy will likely lead to an explosion in “bet-the-company” private class action litigation over data breaches. The fact that it was enacted as just one provision in a first-in-the-nation privacy law has resulted in commentators spending less time analyzing its impact on businesses.

We will try to remedy this by taking a look at this provision and analyzing how it will apply to businesses covered by the CCPA. We begin by discussing existing California laws that are referenced in the CCPA’s private right of action. We then track the private right of action through its various forms, starting with the ballot measure and ending with its current version as reflected in Senate Bill 1121. Finally, we discuss how the private right of action likely will be used by private litigants and what steps businesses should take to avoid costly litigation.
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On April 18, 2018, the Government of Canada published the final regulations relating to mandatory reporting of privacy breaches under Canada’s Personal Information Protection and Electronic Documents Act (“PIPEDA”). To date, most organizations under PIPEDA’s purview have not been subject to mandatory privacy breach notification requirements. While organizations in the United States are familiar with breach notification statutes, organizations both within and outside of Canada will need to pay careful attention to the new requirements imposed under PIPEDA and assess any changes that need to be made to ensure compliance when the final regulations go into effect on November 1, 2018.
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A new bill introduced by House Financial Services subcommittee Chairman Rep. Blaine Luetkemeyer would significantly change data security and breach notification standards for the financial services and insurance industries. Most notably, the proposed legislation would create a national standard for data security and breach notification and preempt all current state law on the matter.
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