Overview
On July 7, 2021, Gov. Jared Polis signed into law the Colorado Privacy Act (CPA), which will go into effect on July 1, 2023. Like California’s and Virginia’s data privacy laws, the CPA aims to provide consumers with greater control over their data and enhanced transparency with respect to how their data is used. However, businesses should pay close attention to the unique nuances of the CPA, which are likely to complicate compliance strategies.
Scope
The CPA applies to data "controllers" that "conduct[] business in Colorado or produce[] or deliver[] commercial products or services that are intentionally targeted to residents of Colorado" and that:- "Control[] or process[] the personal data of [100,000 Colorado residents] or more during a calendar year," or
- "Derive[] revenue or receive[] a discount on the price of goods or services from the sale of personal data and process[] or control[] the personal data of [25,000 Colorado residents] or more."
- Certain healthcare related information, including information related to HIPAA compliance;
- "Activit[ies] involving the collection, maintenance, disclosure, sale, communication, or use of any personal data bearing on a consumer's creditworthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living by" (1) consumer reporting agencies, (2) furnishers of information for use in a consumer report, and (3) users of a consumer report;
- Personal data in connection with certain state and federal laws, including:
- The Colorado Health Benefit Exchange Act;
- The federal Gramm-Leach-Bliley Act;
- The federal Driver’s Privacy Protection Act of 1994;
- The federal Children’s Online Privacy Protection Act of 1998; or
- The federal Family Educational Rights and Privacy Act of 1974.
- "Data maintained for employment records purposes;"
- Air carriers;
- A national securities association registered pursuant to the Securities Exchange Act of 1934;
- Financial institutions covered under the federal Gramm-Leach-Bliley Act and implementing regulations;
- "Customer data maintained by" public utilities or state body "if the data are not collected, maintained, disclosed, sold, communicated, or used except as authorized by state and federal law;" and
- "Data maintained by" state and municipal government entities (including state institutions of higher education) "if the data is collected, maintained, disclosed, communicated, and used as authorized by state and federal law for noncommercial purposes."
Rights and Requirements
The CPA provides consumers with the following rights:- "[T]he right to opt out of the processing of personal data concerning the consumer for the purposes of" (1) "targeted advertising," (2) "sale of personal data," and (3) "profiling in furtherance of decisions that produce legal or similarly significant effects concerning a consumer."
- "[T]he right to confirm whether a controller is processing personal data concerning the consumer and to access the consumer’s personal data."
- "[T]he right to obtain [their] personal data in a portable and, to the extent technically feasible, readily usable format that allows the consumer to transmit the data to another entity without hindrance."
- "[T]he right to correct inaccuracies in the consumer’s personal data, taking into account the nature of the personal data and the purposes of processing the consumer’s personal data."
- "[T]he right to delete personal data concerning the consumer."
- "[P]rovide consumers with a reasonably accessible, clear, and meaningful privacy notice" including:
- "The categories of personal data collected or processed by the controller or a processor1;"
- "The purposes for which the categories of personal data are processed;"
- "How and where consumers may exercise their rights [under the CPA], including the controller's contact information and how a consumer may appeal a controller's action with regard to the consumer's request;"
- "The categories of personal data that the controller shares with third parties, if any;"
- "The categories of third parties, if any, with whom the controller shares personal data."
- "[C]learly and conspicuously disclose the sale [of personal data to third parties] or processing [of personal data for targeted advertising], as well as the manner in which a consumer may exercise the right to opt out of the sale or processing."
- "[S]pecify the express purposes for which personal data are collected and processed."
- Ensure "collection of personal data [is] adequate, relevant, and limited to what is reasonably necessary in relation to the specified purposes for which the data are processed."
- "[N]ot process personal data for purposes that are not reasonably necessary to or compatible with the specified purposes for which the personal data are processed, unless the controller first obtains the consumer's consent."
- "[T]ake reasonable measures to secure personal data during both storage and use from unauthorized acquisition." Such measures "must be appropriate to the volume, scope, and nature of the personal data processed and the nature of the business."
- "[N]ot process personal data in violation of state or federal laws that prohibit unlawful discrimination against consumers."
- "[N]ot process a consumer's sensitive data without first obtaining the consumer's consent or, in the case of the processing of personal data concerning a known child, without first obtaining consent from the child's parent or guardian." "Sensitive data" is defined as (1) "[p]ersonal data revealing racial or ethnic origin, religious beliefs, a mental or physical health condition or diagnosis, sex life or sexual orientation, or citizenship or citizenship status," (2) [g]enetic or biometric data that may be processed for the purpose of uniquely identifying an individual," or (3) [p]ersonal data from a known child." "'Child’ means an individual under 13 years of age."
- "Processing personal data for purposes of targeted advertising or for profiling if that profiling presents a reasonably foreseeable risk of:
(I) [u]nfair or deceptive treatment of, or unlawful disparate impact on, consumers; (II) [f]inancial or physical injury to consumers;
(III) [a] physical or other intrusion upon the solitude or seclusion, or the private affairs or concerns, of consumers if the intrusion would be offensive to a reasonable person; or
(IV) [o]ther substantial injury to consumers;"
- "Selling personal data"; and
- "Processing sensitive data."