How To Do a Colorado DMV Change of Address | Moving.comColorado recently became the latest state to consider a comprehensive consumer privacy law.  On March 19, 2021, Colorado State Senators Rodriguez and Lundeen introduced SB 21-190, entitled “an Act Concerning additional protection of data relating to personal privacy”. Following California’s bold example of the California Consumer Privacy Act (“CCPA”) effective since January 2020, Virginia recently passed its own robust privacy law, the Consumer Data Protection Act (“CDPA”), and New York, as well as other states, like Florida, appear poised to follow suit.  Furthermore, California is expanding protections provided by the CCPA, with the California Privacy Rights Act (CPRA) – approved by California voters under Proposition 24 in the November election.

Unsurprisingly, Colorado’s SB 21-190 generally tracks the CCPA, CPDA, CPRA and the EU General Data Protection Regulation (GDPR).  Key elements of the Colorado bill include:

  • Jurisdictional Scope. SB 21-190 would apply to legal entities that conduct business or produce products or services that are intentionally targeted to Colorado residents and that either:
    • Control or process personal data of more than 100,000 consumers per calendar year; or
    • Derive revenue from the sale of personal data and control or process the personal data of at least 25,000 consumers.
  • Exemptions. SB 21-190 includes various exemptions related to healthcare entities and health data, such as protected health information under HIPAA, patient identifying information maintains by certain substance abuse treatment facilities, and identifiable private information collected in connection with human subject research. Additional exemptions include without limitation personal data collected for the purposes of the Gramm Leach Bliley Act (GLBA), Driver’s Privacy Protection Act (DPPA), Children’s Online Privacy Protection Act (COPPA), Family Educational Rights Act and Privacy Act. Finally, data maintained for employment records purposes are exempted as well.
  • Personal Data. Similar to its counterparts, Colorado’s SB 21-190 broadly defines personal data to mean “information that is linked or reasonably linkable to an identified or identifiable individual.”
  • Sensitive Data. Like the CPDA, CPRA and GDPR, SB 21-190 includes a category for “sensitive data”. This is defined as “personal data revealing racial or ethical origin, religious beliefs, a mental or physical health condition or diagnosis, sex life or sexual orientation, or citizenship or citizenship status OR genetic or biometric data that may be processed for the purpose of uniquely identifying an individual OR personal data from a known child”. As with Virginia’s CPDA, there are two key compliance obligations related to “sensitive data”.  First, sensitive data cannot be processed without obtaining consumer consent, or in the case of a known child or student, without obtaining consent from a parent or lawful guardian.  Second, the controller must conduct and document a data protection assessment specifically for the processing of sensitive data.
  • Protected Persons. SB 21-190 defines “consumer” as an “individual who is a Colorado resident acting only in an individual or household context”. The Colorado bill states that the definition of consumer does not include “an individual acting in a commercial or employment context”.
  • Consumer Rights. Under SB 21-190, consumers have the right to opt out of the processing of their personal data; access, correct, or delete the data; or obtain a portable copy of the data.
  • Data Protection Assessments. Akin to Virginia’s CPDA, the Colorado bill requires data controllers to conduct a data protection assessment for each of their processing activities involving personal data that presents a heightened risk of harm to consumers, such as processing for purposes of targeted advertising or processing sensitive data (as mentioned above).
  • Enforcement. If enacted, SB 21-190 would only be enforceable by the Colorado attorney general or district attorneys. A violation of law could result in a civil penalty of not more than $2,000 for each such violation (not to exceed $500,000 for any related series of violations), or injunction.

Colorado’s SB 21-190 is in the early stages of the legislative process, still it signals the continued momentum building in states across the country to enhance consumer data privacy and security protections. Organizations, regardless of their location, should be carefully assessing their data collection activities, developing policies and procedures to address their evolving compliance obligations and data-related risks, and training their workforce on effective implementation of those policies and procedures.

Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, 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)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, 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.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.