At a meeting of the California Privacy Protection Agency (“CPPA”) on June 8, we learned additional information about the initial batch of proposed regulations (“Proposed Regulations”) to the California Privacy Rights Act (“CPRA”) that were published on May 27. The Proposed Regulations keep much of the pre-existing California Consumer Privacy Act (“CCPA”) regulations but modify and add some key provisions. Because the CPRA was drafted as an amendment to the CCPA, the Proposed Regulations reference the CCPA (as amended by the CPRA). The Proposed Regulations focus on data subject rights, contractual requirements, and obligations related to disclosures, notices, and consents. Additional proposals will cover cybersecurity audits, privacy risk assessments, and automated decision making, among other areas. While we expect significant changes as the Proposed Regulations proceed through the formal rulemaking process, which the CPPA has not yet officially started, we provide our key takeaways below:

Continue Reading Recent Activity from the California Privacy Protection Agency

On April 28, 2022, the Connecticut General Assembly passed SB 6, the Act Concerning Personal Data Privacy And Online Monitoring (the “Connecticut Privacy Act”) by a vote of 144-5, which puts Connecticut on course to become the fifth state to enact a comprehensive data privacy law, following California, Virginia, Colorado, and Utah. The bill, which passed the state senate 35-0, now awaits the signature of Governor Ned Lamont. If it becomes law, the bulk of the statute is set to take effect July 1, 2023.

The bill passed by Connecticut legislature closely follows the structure of similar laws enacted in other states, giving support to the Colorado legislature’s claim, that “states across the United States are looking to [the Colorado Privacy Act, enacted in 2021] and similar models to enact state-based data privacy requirements and to exercise the leadership that is lacking at the national level.” One of the Connecticut bill’s sponsors and its key proponent in the state senate, Sen. James Maroney, compared the legislation to Colorado’s statute, saying that both SB 6 and the Colorado law are less aggressive than the California Consumer Privacy Act (“CCPA”) but provide more privacy protections that similar bills passed by other states.

Continue Reading Connecticut Becomes the Fifth State to Pass a Comprehensive Data Privacy Law

The California Attorney General’s office (OAG) recently released its first formal written opinion on the scope of the rights granted to consumers under the California Consumer Privacy Act (CCPA), specifically, the right for a consumer to know about the personal information that a business collects from them. The opinion comes in response to a question submitted by California Assembly member Kevin Kiley as to whether a consumer’s right to know the specific pieces of personal information that a business has collected about that consumer applies to internally generated inferences the business holds about them. The OAG asserted that the right to know does apply to such inferences, albeit with certain key exceptions.

Continue Reading California Attorney General’s Office Releases First Formal CCPA Opinion

On March 24, 2022, Utah Governor Spencer Cox signed into law the Utah Consumer Privacy Act (“UCPA”), which was unanimously passed by the state legislature earlier this month. Utah is the fourth U.S. state to pass a comprehensive privacy law, following California, Virginia, and Colorado. The UCPA will go into effect on December 31, 2023.

The Utah law generally resembles the three existing state privacy models, but closely tracks with the Virginia Consumer Data Protection Act (CDPA) and Colorado Privacy Act (CPA), suggesting that states are shifting away from California’s more stringent strand of privacy regulation toward a version that balances the spirit of the EU’s General Data Protection Regulation (GDPR), in terms of purpose limitation and consumer protection, against the need to avoid overly burdening companies. In fact, the UCPA is seen by some as more business-friendly than legislation passed in Virginia and Colorado: Utah’s law does not require businesses to conduct data protection assessments and does not compel companies to provide a mechanism for consumers to appeal denials of requests to exercise personal data rights.

Continue Reading Utah Passes Comprehensive Privacy Law

In a unanimous decision issued on February 3, 2022, the Illinois Supreme Court held in McDonald v. Symphony Bronzeville Park that the Illinois State Workers’ Compensation Act (“WCA”) did not bar claims under the Illinois’ Biometric Information Privacy Act (“BIPA”). In doing so, the court eliminated one significant defense commonly raised in such cases, since many BIPA class actions are brought in the context of employment (many of which were stayed pending the decision in McDonald). Critically, though, the decision does not preclude other potential defenses including claims of federal preemption.

BIPA is one of the most actively litigated privacy statutes in the United States. Among other things, it requires that businesses obtain consent prior to collecting biometric information (fingerprints, facial geometry information, iris scans and the like), issue a publicly available data retention policy, and refrain from certain data sales and disclosures. Because BIPA provides for a private right of action along with statutory damages of $1,000 to $5,000 per violation, it has proved fertile ground for the plaintiff’s bar.

Continue Reading Illinois Supreme Court Finds Illinois Biometric Information Privacy Act Not Preempted By State Workers’ Compensation Law

Since the passage of the California Consumer Privacy Act (CCPA) in 2018, many states have proposed sweeping data protection legislation, but only two others, Colorado and Virginia, have so far succeeded in passing such laws. That may soon change. In 2021, several states came close to enacting comprehensive privacy legislation and that momentum has continued into this year, with data protection bills being carried over, introduced, and reintroduced in state legislatures across the country. As the possibility of a federal privacy law dwindles—particularly during this midterm year—state legislatures are poised to be the source of major data protection developments in 2022. Throughout the year, Ropes & Gray will monitor and analyze these developments in state privacy laws, beginning with a discussion of the latest iteration of the proposed New York Privacy Act.

Continue Reading State Privacy Law Developments: The New York Privacy Act

Artificial Intelligence (AI), including machine learning and other AI-based tools, can be effective ways to sort large amounts of data and make uniform decisions. The value of such tools has been embraced by some employers as an efficient way to address current increased hiring needs in the current job market. The use of artificial intelligence () as an aid to employers in making employment decisions—e.g., recruitment, resume screening, or promotions—has been on the radar of lawmakers and regulators in recent years, particularly out of concern for the risk that these tools may mask or entrench existing discriminatory hiring practices or create new ones. For example, some workers have filed charges with the Equal Employment Opportunity Commission (EEOC) based on alleged discrimination that resulted from employers’ use of AI tools, leading the EEOC to establish an internal working group in October 2021 to study the use of AI for employment decisions. Elsewhere, a bill addressing the discriminatory use of AI was proposed in Washington, DC in late 2021, and Illinois enacted one of the first U.S. laws directly regulating the use of AI in employment-related video interviews in 2019. In contrast, a bill proposed in California in 2020 suggested that AI could be used in employment to help prevent bias and discrimination.

On November 10, 2021, the New York City Council passed the latest such bill, which places new restrictions on New York City employers’ use of AI and other automated tools in making decisions on hiring and promotions. The measure—which takes effect on January 2, 2023—regulates the use of “automated employment decision tools” (AEDTs) which it defines as computational processes “derived from machine learning, statistical modeling, data analytics, or artificial intelligence” that issue a “simplified output” to “substantially assist or replace” decision-making on employment decisions (i.e., hiring new candidates or promoting employees). Under the new law, employers and employment agencies are barred from using AEDTs to screen candidates unless certain prerequisites are met. First, the AEDT must be subject to a bias audit within the last year. Second, a summary of the results of the most recent audit, as well as the distribution date of the AEDT, must be made publicly available on the employer’s or employment agency’s website. The law describes this “bias audit” as “an impartial evaluation by an independent auditor” which “shall include, but not be limited to” assessing the AEDT’s “disparate impact on persons” based on race, ethnicity, and sex.

Continue Reading NYC Law Aims To Reduce Bias Introduced by AI in Employment Decisions

As 2021 comes to a close, so does our 12 Days of Data series, but we will see you on the other side in 2022 with more posts on the top privacy and data protection issues. 2021 was an interesting year. While vaccinations spread and some sense of normalcy started to return, new strains of COVID-19 led to additional waves of shutdowns that stalled many of the debates. In 2022, we anticipate that the move toward a new normal will continue, and we will once again start to see traction on some of these data, privacy, and cybersecurity issues. As a preview, here are some of the key areas where we expect to see potential developments in 2022.

Continue Reading Closing out the 12 Days of Data: What to Expect in 2022

As 2021 comes to a close, it is a great time to take stock of the present state of affairs with respect to U.S. privacy laws. With the relatively recent passage of comprehensive privacy laws in California, and additional countries adopting laws that closely follow the principles of the EU’s General Data Protection Regulation (GDPR), along with increasing public concerns regarding how companies manage customers’ personal data, legal practitioners entered 2021 with high hopes that comprehensive federal privacy legislation may finally be on the horizon. Nevertheless, in a trend that is likely to continue in the year ahead, it was the states rather than federal legislatures that successfully added to the ranks of privacy laws with which businesses will soon need to comply.

Continue Reading Momentum Builds for State Privacy Laws but the Possibility of a Federal Law Remains Remote

Private employers in New York will now need to notify and obtain employee acknowledgement prior to engaging in any electronic monitoring under the provisions of S2628, signed by Governor Kathy Hochul on November 8, and effective May 7, 2022. With this law, New York joins Connecticut and Delaware in mandating that employers provide employee notice of monitoring, which, in practice, can be integrated into the sort of employee privacy notice required under the California Consumer Privacy Act.

Applicability and Obligations for Businesses

S2628 applies to any private employer with a place of business in New York that electronically monitors employees’ communications and internet activity. The law’s core provisions require that upon an employee’s hiring, the employer must provide prior written notice alerting the employee that their telephone conversations, e-mails, and internet access or usage may be monitored using any electronic device or system such as a computer, telephone, wire, radio, or electromagnetic, photoelectronic, or photo-optical systems. The notice must be in writing or electronic form and acknowledged by the employee in writing or electronically. Employers must also post the notice describing the electronic monitoring in a conspicuous place that is readily available for employees to view.

Continue Reading New York Law Will Require Employee Notice and Acknowledgement Prior to Electronic Monitoring by Employer