Scarinci Hollenbeck, LLC
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201-896-4100 info@sh-law.comFirm Insights
Author: Scarinci Hollenbeck, LLC
Date: June 3, 2021
The Firm
201-896-4100 info@sh-law.comVirginia has recently joined the growing list of states with their own comprehensive data privacy laws. The Consumer Data Protection Act (CDPA), which incorporates elements of the European Union’s General Data Protection Regulation (GDPR), as well as the California Consumer Privacy Act (CCPA) and the California Privacy Rights Act (CPRA), will go into effect on January 1, 2023.
Covered Businesses and Data
The requirements set forth in the CPRA apply to entities that conduct business in Virginia or produce products or services that are targeted to Virginia residents and that either:
The term “controller” is used to refer to entities that, alone or jointly with others, determine the purpose and means of processing personal data. The following entities are exempt under the CPRA, even if they meet the above requirements:
“Consumer” is defined as “a natural person who is a resident of the Commonwealth acting only in an individual or household context.” Unlike other privacy laws, the CPRA expressly excludes those who are “acting in a commercial or employment context.” Accordingly, the law generally does not apply to employee relations or business-to-business transactions.
The CPRA defines “personal data” as “any information that is linked or reasonably linkable to an identified or identifiable natural person.
Consumer Privacy Rights
The CPRA establishes several personal data rights. Consumers may invoke the following rights by submitting a request to a controller specifying the consumer rights the consumer wishes to invoke:
Controllers must respond to a consumer request without undue delay, but in all cases within 45 days of receipt of the request. The response period may be extended once by 45 additional days when reasonably necessary, taking into account the complexity and number of the consumer’s requests, so long as the controller informs the consumer of any such extension within the initial 45-day response period, together with the reason for the extension. Information provided in response to a consumer request must be provided by a controller free of charge, up to twice annually per consumer.
Controller Responsibilities
The CDPA also imposes several additional responsibilities on data controllers. To start, controllers must provide consumers with a “reasonably accessible, clear, and meaningful” privacy notice that includes: the categories of personal data processed by the controller; the purpose for processing personal data; how consumers may exercise their consumer rights, including how a consumer may appeal a controller’s decision with regard to the consumer’s request; the categories of personal data that the controller shares with third parties, if any; and the categories of third parties, if any, with whom the controller shares personal data. Data controllers must also:
If a controller sells personal data to third parties or processes personal data for targeted advertising, the controller must clearly and conspicuously disclose such processing, as well as the manner in which a consumer may exercise the right to opt out of such processing. Controllers must also establish, and describe in a privacy notice, one or more secure and reliable means for consumers to submit a request to exercise their consumer rights.
Enforcement
The CDPA does not include a private right of action. However, it does authorize the state attorney general to enforce the law and seek penalties of up to $7,500 per violation. Notably, the Virginia privacy law also includes a right to cure–upon discovering a potential CDPA violation, the attorney general must provide the data controller written notice and allow the data controller 30 days to cure the alleged violation prior to filing suit.
If you have any questions or if you would like to discuss the matter further, please contact me, David Einhorn, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.
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