The California Consumer Privacy Act (CCPA), which goes into effect January 1, 2020, is considered the most robust state privacy law in the United States. The CCPA seems to have spurred a flood of similar legislative proposals on the state level, and it was only a matter of time before the Empire State introduced its own version of the law. The New York Privacy Act (NYPA), s5642, introduced last month by New York Senator Kevin Thomas, the Chair of the Consumer Protection Committee, is considered a more expansive version of its California counterpart.

Similar to the CCPA, the NYPA would provide consumers with greater control over their personal data, and impose substantial duties on businesses that control and process data, however the NYPA is distinct from the CCPA in significant ways. Below are several key features of the NYPA:

  • Application: Unlike the CCPA, which only applies to businesses with a threshold of $25 million annual revenue, the NYPA applies to “legal entities that conduct business in New York” or that produce products or services that “intentionally target” New York residents. This means that small-to-medium size businesses, and potentially even not-for-profit organizations will be subject to the law’s privacy and security obligations. Organizations exempted include state and local governments, and personal data that is regulated by HIPAA, HITECH, GLBA and notably, “data sets maintained for employment records purposes”.
  • Consumer Rights: The NYPA provides consumers a broad set of rights over their personal data. Consumer rights include: the right to access, the right to rectification, right to delete, right to stop processing and right to have data portability.   This extends the rights afforded to consumers by the CCPA, as the CCPA does not include a right to rectification.
  • Privacy and Security Obligations: Under the NYPA, covered businesses would be required to “exercise the duty of care, loyalty and confidentiality . . . with respect to securing the personal data of a consumer against a privacy risk; and shall act in the best interests of the consumer, without regard to the interests of the entity, . . . in a manner expected by a reasonable consumer under the circumstances.” In addition businesses are required to “reasonably secure personal data from unauthorized access” and “promptly” notify consumers of a breach. Finally, the law prevents businesses from using personal data in a way that “(i) benefits an online service provider to the detriment of an end user; (ii) would result in reasonably foreseeable physical or financial harm to a consumer; or (iii) would be unexpected and “highly offensive” to a “reasonable consumer.”
  • Enforcement: The New York State Attorney General may bring an action in the name of the state, or on behalf of residents of the state, however a private right of action is also available to any person injured by reason of violation of the law. If passed, this enforcement provision would likely create an influx of litigation. A similar cause of action exists under an Illinois privacy law that you might have heard about, the Illinois Biometric Information Privacy Act or “BIPA.” That provision has resulted in flood of litigation, including putative class actions, seeking to recover statutory damages for plaintiffs who allege their biometric information has been collected and/or disclosed in violation of the statute. This is arguably the most significant difference between the CCPA. Despite several attempts to expand the private right of action, in its current form the CCPA only allows for a private right of action in very limited circumstances, if a nonencrypted or nonredacted personal information is subject to an unauthorized access, exfiltration, theft, or disclosure because the covered business did not meet its duty to implement and maintain reasonable safeguards to protect that information.

The NYPA is still in the very early stages of the legislative process – it has only been reviewed by the Senate’s Consumer Protection Committee, and is still looking for a co-sponsor from the state Assembly. Nonetheless, such an aggressive bill signifies the seriousness in which New York is considering privacy and security matters.  Organizations, regardless of their location, should be assessing and reviewing their data collection activities, building robust data protection programs, and investing in written information security programs (WISPs).

 

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Tampa, Florida, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the…

Joseph J. Lazzarotti is a principal in the Tampa, Florida, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Photo of Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and co-leader of the firm’s Privacy, Data and Cybersecurity practice group. Jason is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy…

Jason C. Gavejian is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and co-leader of the firm’s Privacy, Data and Cybersecurity practice group. Jason is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Jason focuses on the matrix of laws governing privacy, security, and management of data. Jason is co-editor of, and a regular contributor to, the firm’s Workplace Privacy, Data Management & Security Report blog.

Jason’s work in the area of privacy and data security includes counseling international, national, and regional companies on the vast array of privacy and security mandates, preventive measures, policies, procedures, and best practices. This includes, but is not limited to, the privacy and security requirements under state, federal, and international law (e.g., HIPAA/HITECH, GDPR, California Consumer Privacy Act (CCPA), FTC Act, ECPA, SCA, GLBA etc.). Jason helps companies in all industries to assess information risk and security as part of the development and implementation of comprehensive data security safeguards including written information security programs (WISP). Additionally, Jason assists companies in analyzing issues related to: electronic communications, social media, electronic signatures (ESIGN/UETA), monitoring and recording (GPS, video, audio, etc.), biometrics, and bring your own device (BYOD) and company owned personally enabled device (COPE) programs, including policies and procedures to address same. He regularly advises clients on compliance issues under the Telephone Consumer Protection Act (TCPA) and has represented clients in suits, including class actions, brought in various jurisdictions throughout the country under the TCPA.

Jason represents companies with respect to inquiries from the HHS/OCR, state attorneys general, and other agencies alleging wrongful disclosure of personal/protected information. He negotiates vendor agreements and other data privacy and security agreements, including business associate agreements. His work in the area of privacy and data security includes counseling and coaching clients through the process of investigating and responding to breaches of the personally identifiable information (PII) or protected health information (PHI) they maintain about consumers, customers, employees, patients, and others, while also assisting clients in implementing policies, practices, and procedures to prevent future data incidents.

Jason represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination, and wage and hour claims in both federal and state courts. He regularly appears before administrative agencies, including the Equal Employment Opportunity Commission (EEOC), the Office for Civil Rights (OCR), the New Jersey Division of Civil Rights, and the New Jersey Department of Labor. Jason’s practice also focuses on advising/counseling employers regarding daily workplace issues.

Jason’s litigation experience, coupled with his privacy practice, provides him with a unique view of many workplace issues and the impact privacy, data security, and social media may play in actual or threatened lawsuits.

Jason regularly provides training to both executives and employees and regularly speaks on current privacy, data security, monitoring, recording, BYOD/COPE, biometrics (BIPA), social media, TCPA, and information management issues. His views on these topics have been discussed in multiple publications, including the Washington Post, Chicago Tribune, San Francisco Chronicle (SFGATE), National Law Review, Bloomberg BNA, Inc.com, @Law Magazine, Risk and Insurance Magazine, LXBN TV, Business Insurance Magazine, and HR.BLR.com.

Jason is the co-leader of Jackson Lewis’ Hispanic Attorney resource group, a group committed to increasing the firm’s visibility among Hispanic-American and other minority attorneys, as well as mentoring the firm’s attorneys to assist in their training and development. He also previously served on the National Leadership Committee of the Hispanic National Bar Association (HNBA) and regularly volunteers his time for pro bono matters.

Prior to joining Jackson Lewis, Jason served as a judicial law clerk for the Honorable Richard J. Donohue on the Superior Court of New Jersey, Bergen County.