Throughout their short history, privacy regulations have caused a stir among the organizations they govern.
When the European Union’s privacy law, the General Data Protection Regulation (GDPR), was adopted in 2016, many businesses that operate between the United States and Europe worried how the stricter data requirements would impact their organizations. When the California Consumer Privacy Act (CCPA) was adopted in 2018, many companies that manage Californians’ personal data had to re-evaluate their operations. But something funny has begun to happen. When Virginia adopted its Consumer Data Protection Act earlier this year, there was little hand wringing. More recently, the passage of the Colorado Privacy Act was met largely by indifference. The trend these laws suggest is clear: navigating the requirements of privacy laws is becoming standard operating procedure for businesses, as their leaders expect more states to adopt similar laws.
Although the New Hampshire legislature has considered privacy legislation similar to the California Consumer Privacy Act, the state has not adopted a comparable law. However, given the General Court’s previous consideration of the legislation, the development of privacy rights in other states, and consumers’ shifting expectations, New Hampshire business leaders should expect, and prepare their organizations for, the creation of privacy rights and obligations.
Scope of Privacy Laws
The “personal information” governed by privacy laws is intended to be broad. The CCPA’s definition of personal information is representative of most: “information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular” person. If that sounds like it could be almost any information about a person, you are starting to grasp the scope of privacy laws. Businesses should adjust their operations to consider the personal information they collect from employees, consumers, potential consumers, employees of vendors and customers, and anyone else that interacts with the business.
Disclosure Requirements
Privacy laws typically require organizations to maintain a privacy notice or policy that satisfies defined standards of accessibility and states specific information. Businesses need to present the policy to individuals when personal information is collected or before. The specific disclosures required in policies vary a little by jurisdiction, but in general, a privacy notice must state the personal information collected, how the organization uses that information, the third parties that receive the personal information from the organization, and how long the organization will retain the personal information. You must understand how your organization collects and uses personal information in order to prepare an appropriate and accurate privacy policy.
Privacy Rights
Privacy rights are the specific requests that individuals can make to organizations that collect and maintain their personal information and that those organizations must honor. They include:
- The right to deletion, permitting a person to request that a business delete all personal information it has about the person;
- The right to correction, permitting a person to request that a business correct his or her personal information;
- The right to data portability, permitting a person to request that a business provide a copy of all personal information in the possession of the business; and
- The right to opt-out, permitting a person to request that a business stop selling or using that person’s personal information.
Privacy laws like the GDPR and CCPA create privacy rights and obligate the organizations governed by those laws to enforce the rights upon request. Businesses need to review carefully their data collection and maintenance operations to ensure that they are capable of acting upon those requests. For example, if a consumer asked your organization to delete every piece of their personal information in your system, could you do that? Every email containing their address or preferences? Every application or survey? When you start to consider how broadly privacy laws define personal information, the need to create administrative, physical and technological systems capable of sorting and responding to privacy rights requests becomes apparent.
In addition to the rights and obligations above, privacy laws also address other topics like children’s data, non-discrimination following the exercise of privacy rights, and heightened care for sensitive personal information like health data and data about an individual’s ethnic background. New Hampshire businesses that have not begun to consider how privacy laws will affect their operations should begin doing so soon, as it is only a matter of time before they will need to, and complying becomes harder the longer you wait.