February 4, 2023

Volume XIII, Number 35

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February 03, 2023

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February 02, 2023

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Virginia’s Consumer Data Protection Act is not the only Privacy and Data Protection Law in the Commonwealth

On January 1, 2023, Virginia’s Consumer Data Protection Act (CPDA) takes effect. Key features of the CPDA include expansive consumer privacy rights (right to access, right of rectification, right to delete, right to opt-out, right of portability, right against automatic decision making), a broad definition of “personal information”, the inclusion of a “sensitive data” category, and data protection assessment obligations for data controllers.

However, the CDPA is not the only privacy and data protection legislation in the Commonwealth. The following are some of the other laws to consider when working on privacy and data protection policies in the state.

Personal Information Privacy Act

This law which predates the CPDA restricts the sale of personal information of customers by merchants as well as the use of social security numbers. For example, with regard to the limitations on the use of social security numbers, a person shall not:

1. Intentionally communicate another individual’s social security number to the general public;

2. Print an individual’s social security number on any card required for the individual to access or receive products or services provided by the person;

3. Require an individual to use his social security number to access an Internet website, unless a password, unique personal identification number, or other authentication device is also required to access the site; or

4. Send or cause to be sent or delivered any letter, envelope, or package that displays a social security number on the face of the mailing envelope or package, or from which a social security number is visible, whether on the outside or inside of the mailing envelope or package.

Insurance Data Security Act

Effective July 1, 2020, Virginia adopted legislation establishing data security requirements applicable to persons licensed by the insurance laws of the Commonwealth. Following several other state laws that have created data security regimes applicable to the insurance industry, the law requires licensees to maintain the security of information systems and nonpublic information. The law also requires licensees to investigate cybersecurity events and to notify individuals and the Commissioner of Insurance. More recently, regulations have been approved effective June 1, 2021. Those regulations provide (i) rules for reporting cybersecurity events; (ii) risk assessment requirements that must be implemented by July 1, 2022; and (iii) additional security measures that must be implemented by July 1, 2022.

Data Breach Notification Law

Since July 2008, Virginia law has required entities doing business in Virginia and state agencies to notify individuals of a breach of their computerized, unredacted, and unencrypted personal information. Under the law, notice is required only if the breach causes, or it is reasonably believed that it has or will cause, identity theft or other fraud to a resident of the Commonwealth.

Similar to the data breach notification laws in other states, such as Massachusetts and New Hampshire, the notification must be provided to the Virginia Attorney General, as well as the affected residents. Also, if more than 1,000 persons would have to be notified at one time, the business would have to notify the Virginia Attorney General and all consumer reporting agencies of the timing, distribution, and content of the notice. Violations of this statute are enforced by the Attorney General, who may seek up to $150,000 in penalties per breach. Individuals also may recover direct economic damages from a violation.

Jackson Lewis P.C. © 2023National Law Review, Volume XII, Number 314

About this Author

Jason C. Gavejian, Employment Attorney, Jackson Lewis, Principal, Restrictive Covenants Lawyer

Jason C. Gavejian is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. and a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

Mr. Gavejian represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination and wage and hour claims in both federal and state courts. Additionally, Mr. Gavejian regularly appears before administrative agencies,...

(973) 538-6890

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm's Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and...

973- 538-6890