On May 13th, New York State Senator Kevin Thomas, Chair of NY’s Consumer Protection Committee, reintroduced the New York Privacy Act (“NYPA”), a comprehensive consumer privacy law similar in kind to the California Consumer Privacy Act (“CCPA”), California Privacy Rights Act (“CPRA”), and Virginia’s Consumer Data Protection Act (“CDPA”).  The NYPA had been introduced in a previous legislative session back in 2019, but failed to move forward in the legislative process.

This version of the NYPA is in some respects less ambitious than the prior version.  For example, the latest version removed the bill’s broad application to any “legal entities that conduct business in New York” or that produce products or services that “intentionally target” New York residents, which would have meant that small-to-medium size businesses, and potentially even not-for-profits, would have been subject to the law. Nevertheless the NYPA surpasses the CCPA and CDPA in some important respects, including by requiring data controllers to:

  • collect opt-in consent from consumers before processing their personal data for any purpose;
  • provide detailed disclosures about the activities of outside parties to whom they disclose personal data;
  • respond to consumer requests to correct personal data; and
  • make disclosures about their automated decision-making activities, afford consumers the opportunity to challenge automated decisions, and conduct and publish assessments on the impacts of their automated decision-making processes.

The NYPA would also impose on data controllers duties of loyalty and care – the latter of which would require an annual risk assessment of all of the data controller’s data processing activities – and take direct aim at targeted advertising and data sales, declaring that these activities “shall not be considered processing purposes that are necessary to provide services or goods requested by a consumer.”

“Consumers should have a right to choose if and how their personal information is collected and used by companies,” said Senator Thomas in his reintroduction of the NYPA. “And New Yorkers deserve to know that businesses who are collecting, processing and protecting their personally identifiable information are doing so ethically and responsibly. The New York Privacy Act will set new, groundbreaking standards for comprehensive privacy legislation by advancing consumer privacy rights and creating stronger industry standards that empower businesses to enhance consumer confidence by putting privacy and security front-and-center.”

Below is a rundown of the NYPA’s key components:

  • Application: The NYPA would apply to legal persons that conduct business in New York State or produce products or services intentionally targeted to residents in New York State and that satisfy at least one of the following thresholds:
    • have annual gross revenue of $25M or more;
    • control or process personal data of at least 100,000 New York residents;
    • control or process personal data of at least 500,000 persons nationwide, at least 10,000 of whom are New York residents; or
    • derives over 50% of its gross revenue from the sale of personal data, and controls or processes personal data of at least 25,000 New York residents.
    • Exempt: Exempted from the NYPA are state and local governments, and personal data that is regulated by HIPAA, HITECH, FERPA, DPPA, GLBA and notably, “data sets maintained for employment records purposes, for purposes other than sale”.
  • Personal Data: Similar to the CCPA and CDPA, the NYPA defines personal data broadly to include “any data that is identified or could reasonably be linked, directly or indirectly, with a specific natural person, household, or device”. That said, unlike the CPRA,  CDPA or GDPR, the New York bill does not include a category for “sensitive data” to which heightened protections apply.
  • Consumer: The NYPA defines “consumer” as “a natural person who is a resident of New York acting only in an individual or household context.” The NYPA states that the definition of consumer does not include a “natural person acting in a commercial or employment context.”
  • Consumer Rights: The NYPA provides consumers a broad set of rights over their personal data, including the rights to:
    • receive clear notice of how their data is being used, processed and shared;
    • provide or withhold consent for the processing of their data for any purpose;
    • access and obtain a copy of their data in a commonly used electronic format, with the ability to transfer it between services;
    • correct inaccuracies in their data;
    • delete their data; and
    • challenge certain automated decisions.
  • Notice to Consumers: Under the NYPA, data controllers must provide written notice to consumers when processing their personal data in an “easy-to-understand language at an eighth-grade reading level or below.” This notice must include a description of the consumers’ rights, the categories of personal data processed, the sources of that data, the purposes for which the data is processed, and the identities of all outside parties to whom the data is disclosed, as well as information about how those parties will use the data and how long they will retain it. The notice must be dated with its effective date and updated at least annually. The notice (as well as each version of the notice dating back six years) must be made readily available to consumers
  • Non-Discrimination: The NYPA prohibits discrimination against a consumer who exercises their rights under the law. For example, a business may not target the consumer by denying goods or services or charging a higher price.
  • Data Broker Registry: The NYPA requires data brokers to register, pay an annual fee to the Attorney General, and submit information regarding their data use practices and contact information. The Attorney General must maintain a data broker registry on its website. Additionally, controllers must annually submit a list of all known data brokers or persons reasonably believed to be data brokers with whom the controller provided personal data in the preceding year and can only share personal data with data brokers that are properly registered.
  • Data Security: At least annually, under the NYPA, data controllers are required to conduct and document risk assessments of all current processing of personal data. In addition, data controllers must develop, implement, and maintain reasonable safeguards to protect the security, confidentiality and integrity of the personal data of consumers including adopting reasonable administrative, technical and physical safeguards appropriate to the volume and nature of the personal data at issue. The NYPA also imposes requirements related to data retention, data disposal and vendor management.
  • Enforcement and Private Right of Action: The NYPA authorizes the Attorney General to bring an action or special proceeding whenever it appears that a person has engaged or is about to engage in a violation of the law, with civil penalties of not more than $15,000 per violation (each instance of unlawful processing counts as a separate violation). And unlike comparable state laws, the NYPA would grant consumers a private right of action to enjoin violations of their rights under the law and to seek the greater of actual damages or liquidated damages in the amount of $1,000, along with attorney’s fees.  Contrary to other state consumer privacy bills introduced of late, such as Florida’s recently failed HB 969 or New York’s Biometric Privacy law, an organization found to have violated the NYPA does not have the opportunity to cure the violation before facing enforcement actions or litigation.

States across the country are contemplating ways to enhance their data privacy and security protections, with New York playing a leading role.  In addition to the reintroduction of the NYPA, there are other consumer privacy bills under consideration by the New York state legislature, and the New York City Council recently passed a data privacy bill that would impose rigorous requirements on owners of “Smart Access” buildings, and also created biometric information collection requirements for retail and hospitality businesses similar in kind to Illinois’s infamous Biometric Information Privacy Act (“BIPA”). 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 Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. and a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Mr. Gavejian focuses on the matrix…

Jason C. Gavejian is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. and a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

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

Mr. Gavejian’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.). Mr. Gavejian 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, Mr. Gavejian 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.

Mr. Gavejian represents companies with respect to inquiries from the HHS/OCR, state attorneys general, and other agencies alleging wrongful disclosure of personal/protected information. Mr. Gavejian 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.

Mr. Gavejian 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. Mr. Gavejian 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. Mr. Gavejian’s practice also focuses on advising/counseling employers regarding daily workplace issues.

Mr. Gavejian’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.

Mr. Gavejian 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.

Mr. Gavejian is the Co-Chair 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. Mr. Gavejian 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, Mr. Gavejian served as a judicial law clerk for the Honorable Richard J. Donohue on the Superior Court of New Jersey, Bergen County.

Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He founded and currently leads the firm’s Privacy, e-Communication and Data Security Practice, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with…

Joseph J. Lazzarotti is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He founded and currently leads the firm’s Privacy, e-Communication and Data Security Practice, 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, Mr. Lazzarotti 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 – Mr. Lazzarotti 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 – Mr. Lazzarotti’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.

Mr. Lazzarotti 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.

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