United States: A Spate Of Legislative Action Portends A Busy Year In Privacy And Security

Last Updated: January 15 2020
Article by Christopher Escobedo Hart

The new decade has barely begun, and the world of privacy already seems set to change quickly. Here is a brief overview:

New Laws In Effect as of January 1

On January 1, 2020, new data breach notification requirements went into effect in three states: Texas, Oregon, and Illinois. Each law has a unique twist on privacy-related notifications (and thus places additional burdens on businesses):

  • Texas places a definite time limit on notifying individuals after a breach occurs: 60 days (and not "as quickly as possible").
  • Oregon extends notification obligations on vendors, which must notify the state attorney general if the breach involves more than 250 Oregon residents.
  • Illinois requires "data collectors" to notify the state attorney general if more than 500 Illinois residents are affected by a breach.

In addition to these new notification laws, a new artificial intelligence law in Illinois has also gone into effect: the Illinois Artificial Intelligence Video Interview Act. The new law requires an employer using AI during the interview to (1) notify the applicant of the use of the technology, (2) provide an information sheet explaining how the technology works and is going to be used, and (3) obtain the applicant's consent before the technology is used.

More States Begin Thinking Like California (and Europe)

The California Consumer Privacy Act (CCPA) is not only a big deal for organizations doing business in California that obtain or use personal information; it's also a big deal for everyone else. States are now clearly looking to California as a model for their own, new, more robust privacy laws. As examples:

  • A bill introduced in the Virginia House of Delegates proposes data privacy rights similar to the CCPA and European General Data Protection Regulation (GDPR); defines "data controllers" who have responsibility for effectuating privacy rights and disclosing information; and requires controllers to perform data risk assessments on data processing activities.
  • The Nebraska legislature introduced a bill that provides consumers the right to know what information is being collected about them as well as an "opt out" of the sale of their personal information, similar to the CCPA's opt-out requirement.

These bills are just beginning their legislative journey, so they are subject to amendment as well as public hearings before they come up for a full vote. Whether they become law or not, it is clear that California has provided a template for other states to follow.

California Continues to Be a Moving Target

The CCPA is now in effect, although the California Attorney General won't begin enforcing the law until July 1, 2020. The AG submitted proposed regulations in October, and after a public notice and comment period ended on December 6, is as of this writing in the process of either revising them or (more probably) finalizing them. The regulations are a critically important piece of the enforcement puzzle, and without final regulations businesses can be excused for thinking that their own compliance programs entail more than the usual amount of guesswork for a new law. While AG Becerra has suggested being merciful toward organizations that are making good faith efforts toward compliance in the face of uncertainty, hoping for mercy is not generally speaking a recommended legal strategy.

As if that isn't bad enough, a new California privacy law introduced in September 2019 — which proposes data minimization and processing restrictions, among other things — could create a new round of resource-intensive efforts to comply with the information protection laws of the 5-th largest global economy. Where California will land in the foreseeable future seems to be a frustrating parlor game.

Preliminary Observations

What can we glean from this dizzying array of legal change?

  1. Illinois' data laws are particularly robust. Between heightened notification laws, a rigorous Biometric Information Privacy Act that is currently the subject of several class action disputes, and a first-of-its-kind Artificial Intelligence disclosure law, Illinois offers a unique blend of forward-thinking data protection laws and is already thinking seriously about how AI is going to play a role in our data future.
  2. States are moving toward greater protections of specific rights. Whether any particular state's attempts to move the data protection needle in a more robust direction is successful, the trend toward defining specific rights (such as deletion, access, or sale opt-outs) and creating a legal regime around those rights is not going away.
  3. States are explicitly including more actors in their privacy laws. Whether the law defines vendors, controllers, or data brokers and creates obligations concerning them, states are increasingly aware that data flows are complex and touch many different actors, and are concerned about holding actors within the data flow stream accountable.
  4. National legislation seems more necessary, but is probably still far away. Both a Republican and Democratic version of a comprehensive data privacy law have been introduced in the U.S. Senate. Both arise out of real concern among federal lawmakers about the need for standardized privacy protection. But despite this bipartisan recognition, election year dynamics and the complexities of solving the problems of preemption (that is, what to do about more robust state-level privacy laws) and private rights of action (should average consumers be able to sue under the law or not) appear likely to keep national data privacy legislation the Zeno's arrow of legislative efforts.
  5. Notice is still king. Whether the law is the CCPA, the BIPA, the GDPR, or something else, notice to consumers continues to privacy law's touchstone. While some might argue that the best privacy laws would focus on making organizations fiduciaries of consumer data, such a sea change seems less and less likely as more jurisdictions adopt the Californian or European model. The law seems to be headed to more or less robust versions of the notice regime.

Perhaps 2020 will be seen as a turning point in privacy law. Then again, is there a recent year when that hasn't been the case?

To view Foley Hoag's Security, Privacy and The Law Blog please click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
23 Jan 2020, Panel, New York, United States

Foley Hoag LLP invites you to a SBIC Hot Topics Luncheon on January 23, at Foley Hoag's New York office prior to the start of SBIA's Northeast Private Equity Conference.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions