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Colorado has become the third US State to pass a comprehensive data privacy law. Colorado Privacy Act (CPA) was signed into law on July 8th, 2021. Modeled pretty similarly to the Virginia Data Protection Act (VCDPA) passed earlier this year, the CPA provides comprehensive privacy rights to state residents of Colorado and imposes a new set of obligations and duties on data controllers managing consumer personal information.
All consumers may invoke the following rights by sending a verified request to the data controller (in case of a child, the parent/guardian may send the request on behalf of the child):
The consumer shall have a right to confirm whether or not a controller is processing his/her personal data.
The consumer has a right to access the personal data collected and processed about him/her by the data controller.
The consumer has a right to have inaccurate personal data being stored or processed by the data controller be corrected.
The consumer has the right to have his/her personal data stored or processed by the data controller be deleted.
The consumer has a right to obtain a copy of his/her personal data in a portable, technically feasible and readily usable format that allows the consumer to transmit the data to another controller without hindrance.
The consumer has the right to opt out of the processing of the personal data for purposes of targeted advertising, the sale of personal data, or profiling in furtherance of decisions that produce legal or similarly significant effects concerning the consumer.
A controller shall provide consumers with a reasonably accessible, clear, and meaningful privacy notice containing specific information including categories of data it shares or sells (including for targeted advertising) and means for consumers to exercise their rights and how they can appeal against the denial of their DSRs.
A controller must undertake Data Protection Assessment (DPAs) for each processing activity which poses a heightened risk of harm to consumers, protect deidentified data from reidentification and comply with data subject requests made by consumers as well as ensure data processors it contracts with comply with the duties prescribed under this law.
Controllers shall not collect unnecessary personal data of consumers or process the personal data for purposes beyond what was disclosed to consumers without gaining their consent.
Controllers may not process the personal data to discriminate against the consumer in violation of state or federal laws that prohibit unlawful discrimination against consumers.
Controllers cannot process sensitive personal data or data of minors unless it has the express consent of the consumer or of the parents/guardians of a minor child, respectively.
Establish, implement, and maintain reasonable administrative, technical, and physical data security practices to protect the confidentiality, integrity, and accessibility of personal data during both storage and use. Such data security practices shall be appropriate to the volume and nature of the personal data at issue.
The CPA does not apply to:
The provisions of this act shall become effective on July 1, 2023 unless a referendum petition is filed within 90 days after final adjournment of the general assembly and the people vote for the proposed changes to the act within the referendum at the general election to be held in November 2022. In such a case, the amended provisions will take effect July 1, 2023, or on the date of the official declaration of the vote thereon by the governor, whichever is later.
The CPA is structurally very similar to the VCDPA. There are only a few significant differences between the two acts.
Data Protection Assessments under the CPA must identify and weigh the benefits that may flow, directly and indirectly, from the processing to the controller, the consumer, other stakeholders, and the public against the potential risks to the rights of the consumer associated with the processing, as mitigated by safeguards that the controller can employ to reduce the risks. It is important to note that the controller shall make the data protection assessments available to the attorney general upon request.
The requirement to conduct Data Protection Assessments under the CPA shall apply to processing activities created or generated after July 1, 2023, and is not retroactive.
The CPA defines a minor below 13 years of age for the additional protections it provides.
There is no 12 months time limit as found in the CPRA or CCPA after which the business can re-ask for the consent of the consumer who chooses to exercise the right to opt-out.
The CPA requires that opt-in consent be collected for processing of children’s Personal Data, use of Sensitive Personal Data and use of Personal Data beyond the initial purpose for which it was collected for.
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