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Apr 21, 2023
The regulatory landscape for data privacy in the United States is complex and rapidly evolving, with a patchwork of federal, state, and industry-specific laws and regulations governing the collection, use, and sharing of personal data. While there is currently no comprehensive federal data privacy law in the US, several states have taken steps to enact their own privacy laws, with others expected to follow suit in the coming years.
The Colorado Privacy Act (CPA) is a data privacy law that was signed into law in Colorado in July 2021 and will go into effect on July 1, 2023. The CPA is one of the most stringent data privacy laws in the United States and follows in the footsteps of other state-level privacy laws, such as the California Consumer Privacy Act (CCPA) and the Virginia Consumer Data Protection Act (CDPA).
The CPA is a significant addition to this regulatory landscape, and businesses that collect, use, and share personal data in Colorado will need to ensure they are in compliance with the law’s requirements. The law’s focus on data security, consumer rights, and transparency reflects a growing trend among lawmakers to prioritize data privacy and protect consumers’ personal information.
The CPA applies to businesses that conduct business in Colorado or produce or deliver commercial products or services that are intentionally targeted to residents of Colorado and that meet certain thresholds related to revenue or data processing. Specifically, the CPA applies to businesses that:
It’s worth noting that the CPA’s applicability is broader than that of other state data privacy laws, such as the California Consumer Privacy Act (CCPA).
The CPA grants Colorado residents certain rights with respect to their personal data. These rights include:
The CPA requires businesses to establish processes for responding to data subject requests and to provide certain information to data subjects when collecting their personal information, such as the purposes for which the data will be used and the categories of third parties with whom the data will be shared.
The CPA imposes various obligations on businesses with respect to the protection of personal data. These obligations include:
The CPA also requires businesses to notify data subjects and the Colorado Attorney General in the event of a data breach that affects the personal data of Colorado residents.
The CPA requires businesses to enter into contracts with third-party service providers that process personal information on their behalf. These contracts, known as “data processing agreements,” must include certain provisions related to data security and the rights of data subjects. Specifically, data processing agreements must require service providers to:
The CPA grants the Colorado Attorney General the authority to enforce the law and to bring civil actions against businesses that violate its provisions. The CPA also provides for a private right of action for data subjects in certain circumstances. Specifically, data subjects may bring a civil action against a business if the business fails to comply with a data subject request or if the business violates the CPA in a way that causes the data subject harm. The CPA also provides for a “cure period” during which businesses can correct violations before facing enforcement actions or civil suits.
First, it’s important to note that the CPA defines a “business” as a legal entity that collects, processes, or sells personal data of Colorado residents and that meets certain revenue or data processing thresholds. However, the CPA specifically excludes non-profit organizations from the definition of “business,” meaning that non-profits are not subject to the CPA’s requirements unless they engage in certain commercial activities.
Specifically, the CPA only applies to non-profits if they meet one or more of the following criteria:
However, even if a non-profit does not meet these criteria, it is still subject to certain provisions of the CPA related to data security and breach notification. Specifically, the CPA requires all entities, including non-profits, to implement reasonable security procedures and practices to protect personal data and to notify affected individuals in the event of a data breach.
In terms of penalties, the CPA provides for fines of up to $20,000 per violation for any entity that violates its provisions. However, the CPA specifies that non-profits will not be subject to the maximum fines unless they engage in willful and intentional violations of the law. Instead, fines for non-profits will be based on the nature, scope, and gravity of the violation, as well as the organization’s financial condition and other factors.
It’s important to note that the CPA’s exemptions for non-profit organizations are based on the activities that the organization engages in, rather than its legal or tax status. Therefore, whether a non-profit organization is exempt from the CPA will depend on the nature of its activities and whether those activities meet the thresholds set by the law.
The Colorado Privacy Act (CPA) stands out among other state data privacy laws in several ways, and for several reasons is considered one of the most stringent data privacy laws in the United States.
With the July 1st enforcement date approaching quickly, organizations should be proactive and start putting together a comprehensive plan to achieve compliance.
By taking these steps, businesses can prepare for the enforcement of the Colorado Privacy Act and ensure they are in compliance with the law. It is important for businesses to stay informed about any updates or changes to the law and adjust their policies and procedures accordingly.
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