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Another Data Privacy Law? Colorado Enacts the Colorado Privacy Act

Colorado became the third state to enact comprehensive data privacy legislation when Gov. Jared Polis signed the Colorado Privacy Act (CPA) on July 8, 2021. The CPA shares similarities with its stateside predecessors, the California Consumer Privacy Act (CCPA), the California Privacy Rights Enforcement Act (CPRA), and the Virginia Consumer Data Protection Act (VCDPA), as well as the European Union’s General Data Protection Regulation (GDPR). But the CPA’s nuances must be considered as companies subject to these statutes craft holistic compliance programs.

The CPA goes into effect on July 1, 2023. But, given its complexity, the time for companies to start preparing is now. Here are some answers to questions about the scope of the new law, the consumer rights it provides, the obligations it imposes on businesses, and its enforcement methods.

Does the CPA apply to my business?

The CPA’s jurisdictional scope is most like the VCDPA’s. The CPA applies to any “controller” – defined as an entity that “determines the purposes for and means of processing personal data” – that “conducts business in Colorado” or produces or delivers products or services “intentionally targeted” to Colorado residents and either (1) controls or processes the personal data of 100,000+ “consumers” each calendar year; or (2) controls or processes the personal data of 25,000+ consumers and derives revenue or receives discounts from selling personal data.

“Personal data” is defined as “information that is linked or reasonably linkable to an identified or identifiable individual” other than “publicly available information” or “de-identified data.” The CPA defines a “consumer” as a “Colorado resident acting only in an individual or household context.”

The CPA provides entity-level exemptions to air carriers and national securities associations, among others. Unlike the CCPA, CPRA, and VCDPA, the CPA does not provide an entity-level exemption to non-profit organizations.

How do I handle consumer requests regarding their personal data?

The CPA provides consumers with the right to submit authenticated requests to a controller to (1) opt-out of certain processing of their personal data; (2) access their personal data and confirm if it is being processed; (3) correct inaccuracies in their personal data; (4) delete their personal data; and (5) obtain their personal data in a portable format. A controller must inform the consumer of any actions taken or not taken in response within certain timelines.

Like the VCDPA and unlike the CCPA and CPRA, the CPA provides consumers with the right to appeal a controller’s decision concerning an authenticated request. Controllers must set up internal processes for handling such appeals.

What are a consumer’s opt-out rights?

The CPA provides consumers with the right to opt-out of the processing of personal data for: (1) sale; (2) targeted advertising; or (3) profiling. The final two opt-out rights are also found in the VCDPA and CPRA, but not the CCPA.

Like the CCPA’s definition, the CPA’s definition of the “sale” of personal data is broad: “the exchange of personal data for monetary or other valuable consideration by a controller to a third party.” But the CPA’s exceptions to this definition are much broader. Under the CPA, a controller does not sell personal data by disclosing personal data (1) to an affiliate; (2) to a “processor” that processes the personal data on the controller’s behalf; (3) to a third party for “purposes of providing a product or service” that the consumer requests; (4) that a consumer “directs the controller to disclose or intentionally discloses by using the controller to interact” with a third party; or (5) that the consumer “intentionally made available … to the general public via a channel of mass media.”

When do I have to obtain opt-in consent from a consumer?

The CPA requires that a controller obtain opt-in consent before processing (1) “sensitive” data; (2) the personal data of a “known” child;  or (3) personal data “for purposes that are not reasonably necessary to or compatible with” the processing purposes that the controller previously specified to the consumer. To provide the requisite “consent,” a consumer must make a “clear, affirmative act” that signifies their “freely given, specific, informed, and unambiguous agreement” to the processing.

Importantly, a consumer accepting broad terms of use or a “similar document that contains descriptions of personal data processing along with other, unrelated information” does not constitute consent. Nor does an agreement obtained through “dark patterns,” which the CPA defines as user interfaces “designed or manipulated with the substantial effect of subverting or impairing user autonomy, decision-making, or choice.”

What does my privacy notice have to say?

A controller must provide consumers with a privacy notice that is “reasonably accessible, clear, and meaningful.” All privacy notices must include the following information: (1) the categories of personal data collected or processed; (2) the purposes for which personal data are processed; (3) the categories of personal data shared with third parties; (4) the categories of third parties with whom the controller shares personal data; and (5) how a consumer can submit authenticated requests and appeals regarding such requests.

If a controller sells personal data or processes such data for targeted advertising, the privacy notice must “clearly and conspicuously disclose” that fact and how consumers can opt-out. The “opt-out method” also must be provided in a separate location that is “clear, conspicuous, and readily accessible.”

Do I have to perform data protection assessments?

Similar to the VCDPA and GDPR, the CPA requires that controllers conduct and document a “data protection assessment” regarding each of its processing activities that: (1) involves personal data acquired on or after July 1, 2023; and (2) presents a “heightened risk of harm” to a consumer. Processing that presents such a heightened risk includes (1) selling personal data; (2) processing sensitive data; (3) processing personal data for targeted advertising; or (4) processing personal data for profiling that presents a “reasonably foreseeable risk” of certain consumer harms.

Among other requirements, a data protection assessment must “identify and weigh” the benefits of the processing to the “controller, the consumer, other stakeholders, and the public” against “the potential risks to the rights of the consumer,” as “mitigated by safeguards that the controller can employ to reduce the risks.”

What are my data minimization and security requirements?

A controller’s “collection of personal data must be adequate, relevant, and limited to what is reasonably necessary” to the processing’s purposes that have been disclosed to the consumer. As noted above, a controller cannot process for another purpose without the consumer’s consent.

A controller must take “reasonable measures” to secure personal data from “unauthorized acquisition” during storage and use. These data security practices must be appropriate for the “nature” of the controller’s business and the “volume, scope, and nature of the personal data processed.”

How is the CPA enforced?

Unlike the CCPA, the CPA does not provide a private right of action. It is enforceable only by Colorado’s attorney general and district attorneys. CPA violations constitute a deceptive trade practice and are thus subject to civil penalties of up to $20,000 per violation.

Until January 1, 2025, the attorney general or district attorney must provide notice of a violation, which triggers a 60-day cure period. If the controller fails to cure the violation within this period, the attorney general or district attorney may initiate an enforcement action.

Conclusion

While the CPA’s similarities to predecessor privacy statutes will allow companies to leverage their current compliance efforts to obtain CPA compliance, the statute’s enactment nonetheless adds another layer to already onerous data privacy obligations.

© 2021 Bradley Arant Boult Cummings LLPNational Law Review, Volume XI, Number 203
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About this Author

J. Hunter Robinson Commercial Litigation Bradley Arant Boult Cummings LLP
Associate

Hunter Robinson represents clients in commercial litigation and compliance-related matters across the country. His litigation practice focuses on representing financial institutions in lender-liability, title, and business disputes, including class actions. Hunter represents mortgage servicers and lenders in suits arising from repurchase demands, and defends those entities in litigation involving alleged violations of the Truth in Lending Act (TILA), Fair Debt Collection Practices Act (FDCPA), Real Estate Settlement Procedures Act (RESPA), and the Fair Credit Reporting...

615-252-2328
Junaid Odubeko Attorney Litigation Cybersecurity Bradley Arant Boult Cummings Nashville
Partner

Junaid Odubeko is a litigator whose practice focuses on advising and representing clients in complex commercial and business disputes and real estate litigation. Businesses turn to Junaid for assistance with matters involving contract disputes and business torts. Junaid also represents clients in litigation involving real estate contracts and condemnation actions. He is known as a hard working and dedicated attorney, and his clients rely on him for his thoughtful, effective, and efficient resolution of their legal needs. Junaid has represented clients in many industries...

615-252-4635
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