What to Expect in 2023 from the States on Privacy Legislation
In the continuing absense of federal action,states are taking privacy legislation into their own hands. This is creating exactly what we DO NOT want, a patchwork quilt of varying policy across the country.
In 2022, Connecticut and Utah joined California, Colorado, and Virginia as the only states to pass omnibus privacy legislation.
Washington, which has unsuccessfully attempted to pass legislation four previous times, is likely to try again in 2023; however, longtime proponent Sen. Reuven Carlyle, D-Seattle, did not seek re-election in November. Similarly, another privacy focused legislator, Oklahoma Rep. Colin Walke, D-Oklahoma City, opted out of a re-election bid. However, Oklahoma is at it again with another effort to enact the nation’s first opt-in privacy legislation. Unlike the legislation introduced in 2021 by Rep. Walke, the current legislation does NOT cover nonprofit organizations. Nonetheless, TNPA is watching this legislation carefully and is working with our Oklahoma TNPA members to oppose this measure. As in past years, related legislation is expected in Florida, with the caveat that long time privacy bill sponsor Rep. Fiona MacFarland, R-Sarasota, has indicated that changes in legislative leadership may render unlikely the passage of legislation on this issue, according to IAPP.
Other states likely to examine privacy and personal information legislation include Alaska, which considered legislation last session with the backing of Republican Gov. Mike Dunleavy, and Ohio, which contemplated legislation endorsed by Republican Gov. Mike DeWine. For its part, Massachusetts will most likely re-introduce privacy protection legislation, as Democrats will soon have a trifecta in the state, thus giving such efforts added traction. Additionally, according to Husch Blackwell, Oregon’s attorney general’s office has been holding regular workgroup meetings to draft legislation for the upcoming session, while in Montana, lawmakers have filed numerous bill draft requests relating to privacy. Child-specific privacy legislation is also expected to garner consideration in several states, as exemplified by California’s Age Appropriate Design Code Act, which, broadly speaking, requires businesses providing online services, products, or features likely to be accessed by children to comply with specified standards. To this point, Utah lawmakers are currently working on a bill aimed at a similar purpose.
Read more about state legislation that has been proposed or enacted at the bottom of this page and also on our webpage Legislation in the States.
Data Privacy: Background & Current Situation
PRIVACY: What is the issue?
As Americans are sharing more personal data and as the internet has enabled companies to collect more personal data, it is important to ensure that nonprofit organizations are ethical custodians of the data with which they are entrusted, and also have access to the information to enable them to further their missions.
Why do nonprofits care?
- Donor trust is foundational to nonprofits’ ability to raise funds and provide services.
- Organizations use consumer data and third-party data providers to ensure our programmatic and fundraising marketing messages are delivered to those most likely to benefit – and, likewise, not to those who will not.
- At times we also use consumer data, including aggregated depersonalized data, to assess need, measure effectiveness, and better direct resources to the people and places that need it the most.
- Nonprofits rely on commercial data companies to maintain data in secure environments at a level that many nonprofits could not afford to maintain on their own, certainly not without significantly reducing the funds available to spend on direct mission-focused work.
What is the Ideal Policy?
TNPA calls upon Congress to enact a national privacy statute for the proper handling of data, to both protect consumers and allow for the legitimate use of data:
- Federal legislation to create a single, clear, uniform set of national standards and guidelines.
- Include a clear preemption of any current or future state privacy statutes to create national consistency of laws.
- Require litigation of federal privacy legislation be filed in only federal court (and not state courts), which would create greater national uniformity of enforcement.
- No Private Right of Action, which could result in a proliferation of class action lawsuits, many of which would be frivolous.
For an in-depth discussion of these points and policy proposals, read TNPA’s Discussion Points in Preparation for Drafting Federal Legislation Called The Individual Privacy Act.
What is the Current Situation?
U.S. Federal Law:
Over the years a number of federal laws have been passed dealing with portions of the handling of data, however there is no broad-based federal statute to address the overall question of how data should be handled to better protect the privacy of consumers, while setting out clear guidelines for the proper use of data by businesses.
On December 20, 2022, the Omnibus Spending Package to fund the federal government through the end of the fiscal year (September 30, 2023) did NOT include the language of H.R. 8152, the American Data Privacy and Protection Act, which was reported out of the House Energy & Commerce Committee earlier in 2022. As proposed in July, 2022 H.R. 8152 included fifteen “carveouts” which would allow current state privacy-related statutes to stay in force. The bill also allowed for a Private Right of Action, which could lead to frivolous class action lawsuits.
Since H.R. 8152 was not included in the “must pass” Omnibus Spending Package, it was thus not enacted into law before Congress officially closed out the 117th Congress at year end. Accordingly, H.R. 8152 “died,” as all legislation which has not passed does at the end of a two-year congressional cycle. With the new 118th Congress having convened in January, Congress starts over with a clean slate.
Far-reaching, highly impactful legislation — which comprehensive national privacy legislation clearly is — often takes several two-year Congresses to gain enactment.
(See below for individual states)
In the States:
What to keep an eye on
California State Law:
California Consumer Privacy Act (CCPA) of 2018
- It does exempt nonprofit organizations from its restrictions.
- However, the burdens placed on corporate providers of data to nonprofits have stopped many small- to mid-sized data providers from doing business in California, creating obstacles and extra expense for nonprofits communicating with supporters in California.
According to the California Attorney General’s website:
The California Consumer Privacy Act of 2018 (CCPA) gives consumers more control over the personal information that businesses collect about them and the CCPA regulations provide guidance on how to implement the law. This law secures new privacy rights for California consumers, including:
- The right to know about the personal information a business collects about them and how it is used and shared;
- The right to delete personal information collected from them (with some exceptions);
- The right to opt-out of the sale of their personal information; and
- The right to non-discrimination for exercising their CCPA rights.
Businesses are required to give consumers certain notices explaining their privacy practices. The CCPA applies to many businesses, including data brokers.
California Privacy Rights Act (CPRA) of 2020
- Modified the CCPA (above) when approved via ballot initiative Proposition 24 in November 2020.
- Creation of a new California Privacy Protection Agency.
- The key provisions of the CPRA will NOT go into effect until January 1, 2023.
Colorado State Law:
Colorado SB 190 , the Protect Personal Data Privacy Act, was signed into law on July 7, 2021, and will take effect on July 1, 2023. Major provisions include:
- Enable a consumer to opt-out of the processing of their personal information.
- Confirm whether or not a controller is processing personal data concerning the consumer and to provide access to that information.
- The right to correct inaccurate personal information.
- The right to have personal information deleted.
- Controllers would be required to provide a meaningful privacy notice to consumers detailing their various rights
- Does not contain a private right of action.
Nonprofit organizations are NOT exempted from the requirements of the law.
- The statute does not prescribe fundraising, but unlike other states, registering to solicit in the state is considered “doing business” in Colorado.
- To fall under the jurisdiction of the statute, an organization must have personal data on 100,000 or more Coloradans; or receive revenue or discounts from the sale of data (e.g., list rental and exchange) and have data for 25,000 or more Coloradans.
Connecticut State Law:
Connecticut SB 6/Public Act 22-15, sponsored by Senate President Pro Tempore Martin Looney, D-New Haven, was signed on May 10, 2022, and takes effect July 1, 2023. The law will grant consumers various rights including:
- The right to confirm whether or not a controller is processing the consumer’s personal data.
- The right to correct inaccuracies in their personal data.
- The right to delete personal data provided by or obtained about the consumer.
- The right to obtain a copy of the consumer’s personal data processed by the controller.
- The right to opt out of the processing of the personal data for the purposes of targeted advertising, the sale of personal data or profiling in furtherance of decisions that produce legal or similarly significant effects.
Controllers will be required to respond to verified consumer requests within 45 days but could request an extension of an additional 45 days. Controllers will also be prohibited from processing the sensitive data of a consumer without their affirmative consent. The law will not apply to nonprofit organizations, does not provide a private right of action and will grant controllers a right to cure at the discretion of the attorney general. The law will also specify that a controller is not required to authenticate an opt-out request but will be able to deny a request if the controller has reasonable and documented belief that the request is fraudulent. Controllers will be required to send notice to the person making the request that they believe the request is fraudulent.
Utah State Law:
Utah SB 227 was signed March 24, 2022, and takes effect December 31, 2023. The law will grant consumer’s various rights including:
- The right to confirm whether a controller is processing the consumer’s personal data and to access their data.
- The right to correct inaccurate personal data.
- The right to delete the consumer’s personal data.
- The right to obtain their personal data in an easily portable format.
- The right to opt-out of the processing of their data for the purposes of targeted advertising or the sale of personal data.
The law does not apply to nonprofit organizations and does not contain a private right of action.
Virginia State Law:
Virginia SB 1392, the Virginia Consumer Data Protection Act, was signed into law on March 2, 2021, and will take effect on January 1, 2023. The CDPA grants consumers the right to confirm, correct, and delete personal data and opt-out of use of data for advertising or sale. It includes an opt-in consent requirement for sensitive data. Nonprofits are largely exempt.
Other states have considered their own new state privacy statutes over the past few years, risking the creation of a “patchwork quilt” of varying, and often conflicting, state privacy laws.
Click here for more information about privacy legislation being proposed in state legislatures.
Who are key players?
IN THE U.S. SENATE
- Senator Maria Cantwell (D-WA) as Chair of the Commerce Committee.
- Senator Ted Cruz (R-TX) as Ranking Republican on the Commerce Committee.
- Senator Jerry Moran (R-KS) as a senior member of the Commerce Committee.
- Senator John Thune (R-SD) as the former Chair of the Commerce Committee and Senate Republican Whip.
IN THE U.S. HOUSE OF REPRESENTATIVES
- Congresswoman Cathy McMorris Rodgers (R-WA) as the Chair of the Energy & Commerce Committee.
- Congressman Frank Pallone (D-NJ) as the Ranking Democrat on the Energy & Commerce Committee.
Privacy activity in the States
New laws and bills to watch in state legislatures
TNPA’s Discussion Points in Preparation for Drafting Federal Legislation Called The Individual Privacy Act
Our Privacy Position Statement
Legislative Round-Up January 2021
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