Will Florida be the next state to enact a comprehensive consumer privacy law? It sure is starting to look like a viable possibility.  With the California Consumer Privacy Act (“CCPA”) in full effect, and the recent enactment of Virginia’s Consumer Data Protection Act (“CDPA”), there has been a flurry of state privacy legislative proposals since the start of 2021, with Florida leading the way.  Backed by Governor Ron DeSantis,   Florida House Bill 969 (HB 969) would create new obligations for covered businesses and greatly expand consumers’ rights concerning their personal information, such as a right to notice about a business’s data collection and selling practices.

Florida’s HB 969 was originally introduced in February (a full overview of the initial bill is available here), and has continued to move swiftly through the legislative process. On April 21, the a slightly revised version of the bill passed the Florida House of Representatives by a 118 – 1 vote, expanding the scope of the private cause of action, changing the effective date and modifying the scope of companies subject to the law.

Here are the key changes made to HB 969 since originally introduced:

Significantly, and similar to the California Consumer Privacy Act (CCPA), HB 969 would establish a private cause of action for consumers affected by a data breach involving certain personal information when reasonable safeguards were not in place to protect that information. More expansive than the CCPA, however, a private cause of action would now also be available to consumers for a company’s failure to comply with deletion, opt-out and correction requests.  Conversely, Virginia’s CDPA lacks a private cause of action in its entirety, and the state’s attorney general has exclusive enforcement authority.

Second, if passed, HB 969 would go into effect on July 1, 2022 – instead of the originally proposed January 1, 2022.  And finally, initially, HB 969 stated that the law would apply to for profit businesses that conduct business in Florida, collect personal information about consumers, and satisfy at least one of the following threshold requirements:

  1. The business has global annual gross revenues over $25 million (adjusted to reflect any increase in the consumer price index); or
  2. The business annually buys, receives for the business’s commercial purposes, sells, or shares for commercial purposes the personal information of at least 50,000 consumers, households, or devices; or
  3. The business derives at least half of its global annual revenues from selling or sharing personal information about consumers.

Instead, HB 969 now stipulates that the law would only apply to for profit businesses that satisfy at least two the above threshold requirements.  In addition, the revised bill increased the annual gross revenues threshold from over $25 million to over $50 million.

Florida seems to be leading the way as the next state  poised to enact a consumer privacy law, but it is not alone.  The International Association of Privacy Professionals (IAPP) has observed, “State-Level momentum for comprehensive privacy bills is at an all-time high.” The IAPP maintains a map of state consumer privacy legislative activity, with in-depth analysis comparing key provisions. There are currently at least 14 states with consumer privacy bills undergoing the legislative process, and several other states where bills were introduced but died in committee or were postponed.  One key state to keep an eye on is Washington. For three consecutive years, the Washington state legislature has introduced versions of the WPA. In 2019, the bill failed in the Assembly. In 2020, the Assembly passed an amended version of the bill, but the two chambers failed to reach a compromise regarding enforcement provisions. Currently in cross committee, the WPA would impose GDPR-like requirements on businesses that collect personal information related to Washington residents. In addition to requirements for notice and consumer rights such as access, deletion, and rectification, the WPA would impose restrictions on use of automatic profiling and facial recognition.

States across the country are contemplating ways to enhance their data privacy and security protections. 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.

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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.