Since passage of the California Consumer Privacy Act (“CCPA”) and California Privacy Rights Act (“CPRA”), many states have proposed data protection bills that have floundered in the legislative process. Virginia, previously a dark horse in the race amongst US states to pass data protection legislation, is now poised to take the lead with the Virginia Consumer Data Protection Act (“CDPA”). Unlike bills that have repeatedly stalled in key states like Washington, the CDPA has progressed swiftly and easily in this now “trifecta Blue” Virginia, with the Virginia Senate passing a version of the bill on February 3, less than a week after the House passed a near-identical companion bill. If the governor signs the CDPA into law, the CDPA will take effect January 1, 2023, simultaneously with the CPRA.
The CDPA represents a much more common-law approach to implementing a GDPR-like framework that may well fit more comfortably within the U.S. legal structures. While the CCPA tends to take more a European Civil Code approach, reminiscent of the text of the GDPR, the CDPA incorporates many of the proportionality and reasonableness tests that are the hallmark of the GDPR in practice. In this post, we outline the key provisions of the CDPA, which draw on – but differs from – the CCPA, CPRA, and EU General Data Protection Regulation (“GDPR”), and will almost certainly be pivotal in shaping future state and federal data protection law.
Applicability and Scope
Covered Entities. Virginia’s CDPA applies to “persons that conduct business in the Commonwealth or produce products or services that are targeted to residents of the Commonwealth” and that meet either of the following jurisdictional thresholds:
- Annually control or process personal data of at least 100,000 Virginia residents, or
- Control or process personal data of at least 25,000 Virginia residents and derive over 50% of gross revenue from the sale of personal data
The CDPA’s extraterritorial effect echoes that of the GDPR and CPRA, but notably the CDPA applies broadly to businesses that “control or process” personal data, in contrast to the CPRA’s application to a business that “buys, sells, or shares” personal information of 100,000 or more consumers or households. The CDPA’s lack of a gross annual revenue jurisdictional threshold further distinguishes it from the CCPA and CPRA. This variation in application of the two laws means that it will be important even for businesses that have already evaluated the applicability of the California laws to undertake a similar review for the CDPA.
Personal Data. The CDPA defines personal data broadly, closely hewing to GDPR language, as “any information that is linked or reasonably linkable to an identified or identifiable natural person.” Two exceptions are provided for publicly available information and de-identified data. Unlike the California laws, the CDPA does not include information linkable to households, but not to individuals, in its definition of personal data.
Covered Individuals. The CDPA’s protections and rights apply to Virginia residents “acting only in an individual or household contexts.” Individuals in commercial and employment contexts are specifically excluded, and so there is an inherent employee and B2B exemption.
Obligations for Controllers and Processors
The CDPA eschews the somewhat awkward “business” and “service provider” designations of California in favor of specific obligations for “controllers” and “processors” resonant from the GDPR.
Controllers. The key requirements for controllers (any entity that, alone or jointly, determines the purposes and means of processing) include:
- Establishing and implementing reasonable data security practices to protect personal data;
- Responding to consumer rights requests; and
- Conducting Data Protection Assessments in certain circumstances.
Processors. Processors (entities that process personal data on behalf of a controller) are generally required to follow the instructions of controllers and to assist controllers in meeting their obligations under the CDPA. Written contracts between controllers and processors, and processors and their sub-processors, will be required prior to processing of personal data.
Data Protection Assessments
The Data Protection Assessment requirement aligns the CDPA with the GDPR, as well as with the CPRA, which will require cost-benefit risk assessments for certain processing activities. Virginia, however, would go beyond California by requiring a Data Protection Assessment when the processing of personal data constitutes (1) targeted advertising; (2) a sale; (3) certain instances of profiling; (4) sensitive data; or (5) a heightened risk of harm to consumers.
Such Data Protections Assessments would be reviewable by the state Attorney General during an investigation, although they would be exempt from Virginia’s FOIA provisions. Accordingly, one might conclude that Virginia’s Data Protection Assessment would not be protected by privilege; however, the statute makes clear that disclosure of a Virginia Data Protection Assessment would not waive attorney work product or attorney-client protections, and federal courts should respect this state demarcation of a privilege. This thoughtful approach to Data Protection Assessments certainly contemplates that these assessments will be performed by counsel and normally subject to work product and privilege protections so as to encourage robust internal communication and consideration of alternatives, such as use of de-identified, synthetic, or pseudonymous data.
Sensitive Data and Opt-In Requirements
“Sensitive Data.” The CDPA takes a somewhat European approach to sensitive data by not including financial information. In Virginia, sensitive data would be:
(1) Personal data revealing racial or ethnic origin, religious beliefs, mental or physical health diagnosis, sexual orientation, or citizenship or immigration status;
(2) The processing of genetic or biometric data for the purpose of uniquely identifying a natural person;
(3) The personal data collected from a known child; and
(4) Precise geolocation data.
Though these classes of personal information are historically unfamiliar to US law, this broad definition reflects trends seen in the CPRA and proposed Washington Privacy Act, as well as the GDPR.
Consent Requirements. Covered companies must obtain opt-in consent to collect or process sensitive data. Again mirroring the GDPR, consent must be “a clear affirmative act signifying a consumer’s freely given, specific, informed, and unambiguous agreement” to the processing. The opt-in requirement for any processing of sensitive data is more stringent than that of the CPRA, which provides consumers only the right to opt-out, and may pose challenges to implement in practice.
The CDPA also requires businesses to obtain opt-in consent before processing personal data for unnecessary or incompatible secondary purposes.
Consumer Rights and Opt-Out Requirements
The CDPA provides covered consumers with rights of access, correction, deletion, and portability, as well as the right to opt out of the processing of their personal data for certain purposes. This suite of rights, taken almost exactly from the proposed 2021 Washington Privacy Act, contains two noteworthy points.
First, businesses are exempted from complying with access, deletion, correction, or portability requests for “pseudonymous data” in certain circumstances. Additionally, businesses are not required to re-identify pseudonmyized (or de-identified) data in order to comply with any individual request, similar to the GDPR’s exemption for pseudonymous data in response to certain data subject requests. Accordingly, covered businesses may consider pesudonymization as a compliance strategy for the CDPA.
Second, the CDPA’s opt-out right is more limited than the global opt-out right of the CCPA and CPRA, as the CDPA grants consumers the right to opt-out of processing of their personal data for three enumerated purposes: “(i) targeted advertising, (ii) the sale of personal data, or (iii) profiling in furtherance of decisions that produce legal or similarly significant effects concerning the consumer.” Additionally, the CDPA contains no provision for authorized agents to exercise the right on behalf of a consumer, instead requiring consumers to exercise their rights individually.
The CDPA provides a long list of entities and data that are exempt from its scope, including certain governmental entities, non-profits, and higher education institutions, as well as information subject to the Fair Credit Reporting Act (FCRA), the Children’s Online Privacy Protection Act (COPPA), or other federal laws, and personal data processed in employment contexts.
Interestingly, entity-based and data-based exemptions are provided with respect to the Gramm-Leach-Bliley Act (GLBA) and Health Insurance Portability and accountability Act (HIPAA). The CDPA does not apply to financial institutions or data subject to the GLBA, nor to covered entities or business associates subject to HIPAA. Separately, the CDPA exempts certain personal health information (as defined by HIPAA), patient information, and health records, as well as identifying information processed in certain research contexts and any information derived from these health care exceptions that is de-identified pursuant to HIPAA deidentification requirements. The nuances of these exemptions will require further scrutiny, but the provisions appear to exclude health care organizations as well as considerable amounts of medical research broadly.
The Virginia Attorney General is the only party authorized to institute civil actions against both controllers and processors for violations of the rights and requirements established by the CDPA, subject to a 30-day cure period. In these actions, the AG can assess penalties up to $7500 per violation. Unlike the CCPA, however, no private right of action is provided in the case of cybersecurity failures, and the text expressly precludes interpretation to support an implied right of action.
The Virginia legislative term is very short. Given the speed with which the CDPA progressed through the Virginia legislature, it is likely to become law, but laws can be derailed by delay with ease. If passed, Virginia CDPA and its unique framework of rights and obligations will undoubtedly influence bills already percolating in other states. With the looming threat of a patchwork of state laws imposing differing requirements, we expect increased pressure on federal lawmakers to more aggressively pursue national data protection legislation efforts. Watch this space for further developments in Virginia, other states, and Congress.