iThe Virginia legislature has introduced several bills that would amend Virginia’s Consumer Data Protection Act (“CDPA”) that was enacted last year. These bills are largely in response to the November 1, 2021 Virginia Consumer Data Protection Act Work Group report (the “Report”), which outlined 17 “points of emphasis” related to the CDPA. The Report includes recommendations regarding administrative items, permitting the Attorney General to seek actual damages based on consumer harm, implementing a right (that would sunset) to cure violations of the CDPA, amending the right to delete, amending the definition of sensitive data, implementing global privacy control, and providing resources to consumers and small business, among other topics.
The following is a high-level summary of the relationship between the introduced bills and the Report:
In the Report, the work group specifically called for the “right to delete” provision in the CDPA to be a “right to opt out of sale” as well. This change is meant to address the scenario where the benefit of deleting data may be undone if there is indirect collection at a later date. These bills would permit a business to satisfy a consumer’s request to delete by opting the consumer out of processing of their data for targeting advertising, sale, or profiling. Note that the opt out in HB 381 is more broad and would opt the consumer out of processing for any purpose (with certain exceptions).
The work group also outlined that there is a need to employ an “ability to cure” option for violations, should a potential cure exist, as well as permitting the Office of the Attorney General to pursue actual damages based on consumer harm.
Accordingly, these bills add a 30-day cure period that would only apply to violations that the Attorney General deems curable. Additionally, these bills would allow the Attorney General to seek actual damages in addition to existing remedies (injunctive relief and statutory damages of $7,500.00 per violation).
The Report also mentioned the need to consider whether the definition of “sensitive data” should exclude general demographic data used to promote diversity and outreach to underserved populations.
This bill proposes to address this by removing consent requirements for processing sensitive data when such processing involves “racial or ethnic origin, religious beliefs, mental or physical health diagnosis, sexual orientation, or citizenship or immigration status” if the data is used solely for marketing, advertising, fundraising, or similar outreach, communications or information sharing that does not result in decisions that could produce legal or similarly significant effects concerning the consumer.
Virginia is not the only state working to change its existing privacy framework. Colorado’s Office of the Attorney General will begin rulemaking activities shortly and the California Privacy Protection Agency recently held a public meeting to discuss updates to its rulemaking process.
