Virginia privacy legislation could rekindle action in other states
2/8/21 REUTERS LEGAL 21:02:00
Copyright (c) 2021 Thomson Reuters
Sara Merken
REUTERS LEGAL
February 8, 2021
Law enforcement officers patrol on the grounds of Virginia State Capitol, days ahead of President-elect Joe Biden inauguration, in Richmond, Virginia, U.S. January 17, 2021. REUTERS/Jim Urquhart
(Reuters) - Virginia may soon follow California in enacting its own consumer privacy legislation, adding a new layer of complexity for businesses and spurring action in other states.
The Senate of Virginia on Friday passed its version of the privacy bill, after the House passed a companion bill the week before.
The next step is for the legislature this month to reconcile the two bills, which attorneys have said are almost identical. If passed and signed into law by the governor, the law would take effect Jan. 1, 2023.
Until recently, the action in Virginia wasn't on the radar of many privacy attorneys, who say they have been tracking bills in Washington, New York and other states. Virginia lawmakers introduced the companion bills last month.
California made waves when the state in 2018 enacted the California Consumer Privacy Act (CCPA), which took effect in January 2020. Following California's lead, other states soon after introduced privacy bills of varying scope, but they have largely stalled.
If passed, Virginia's proposal may inspire other states to start or renew talks on their own legislation, particularly thanks to the speed of the progress in Virginia, some privacy attorneys said.
"This is going to strengthen the tide towards more U.S. state privacy laws and, after a critical mass, maybe a U.S. federal privacy law," Odia Kagan, a partner at Fox Rothschild, said in an email.
The passage of the CCPA also motivated federal lawmakers to consider a comprehensive federal privacy law, an effort by some to avoid an assortment of state laws with differing requirements for companies.
While one new law alone may not motivate Congress to pass a law, momentum may build if a Virginia law brings action in several other states, said Kirk Nahra, a partner at Wilmer Cutler Pickering Hale and Dorr.
"Each new state that passes a law adds pressure for federal legislation," Nahra said.
The Virginia proposal borrows concepts from the California law and the European Union's General Data Protection Regulation, attorneys said. The bill closely tracks a version of a proposal introduced in Washington state.
Companies that would face new requirements under the Virginia law, if passed, should note the differences in definitions and scope of the laws, attorneys said.
"While businesses developing a compliance strategy for the Virginia bill may be able to leverage elements of previous privacy compliance projects, they will not be able to rely solely on those efforts in complying with the Virginia bill," Glenn Brown, of counsel at Squire Patton Boggs, said in an email.
The Virginia law would apply to businesses that control or process the personal data of at least 100,000 consumers annually, or that control or process the data of at least 25,000 individuals annually while earning more than half of their gross revenue from selling personal information. The proposal would create exemptions for entities or information covered by several other laws.
Virginia consumers would be granted the right to delete personal data, correct inaccuracies in the data and opt out of sale of personal information, among other protections. The proposed law would not give consumers the right to sue companies. Instead, the state's attorney general would have the power to enforce violations.
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