Just as businesses are preparing to ensure compliance with similar laws in California, Colorado, and Virginia, they soon will need to consider a fourth jurisdiction, Utah. On March 24, 2022, Governor Spencer Cox signed a measure enacting the Utah Consumer Privacy Act (UCPA). The UCPA is set to take effect December 31, 2023. Note, Georgia and Massachusetts may be the next states to enact similar laws.
Again, as with the Colorado Privacy Act (CPA) and the Virginia Consumer Data Privacy Act (VCDPA), UCPA was modeled in part on the CCPA, CPRA, and the EU General Data Protection Regulation (GDPR). But there are some variations. Key elements of the UCPA include:
- Jurisdictional Scope. The UCPA apples to controllers or processors that
- conduct business in Utah or produce a product or service that is targeted to consumers who reside in Utah; and
- have annual revenue of $25 million or more; and
- satisfy one or more of the following: (i) during a calendar year, control or process personal data of at least 100,000 consumers, or (ii) control or process personal data of at least 25,000 consumers and derive over 50 percent of gross revenue from the sale of personal data.
Notably, as indicated above, it is not required that a controller be located in Utah to be subject to the UCPA.
- Exemptions. The UCPA has a long line of entities and data to which the law does not apply. Although not an exhaustive list, some examples of excluded entities include governmental entities and their contractors when working on their behalf, tribes, non-profit corporations, institutions of higher education, HIPAA covered entities and business associates, and financial institutions. The UCPA also excludes certain categories of personal information, such as protected health information under HIPAA, identifiable private information involved in certain human subject research, deidentified information, and personal data regulated by FERPA. The UCPA also exempts personal data processed or maintained in the course of an individual applying to, being employed by, or acting as an agent or independent contractor of a controller, processor, or third party, to the extent that collection and use of the data are related to the individual’s role. This last exemption generally includes employee and applicant data, including the administration of benefits for individuals relating to employees.
- Personal Data. Using a simpler definition than the CCPA/CPRA, the UCPA defines personal data to mean, “information that is linked or reasonably linkable to an identified individual or an identifiable individual.”
- Sensitive Data. Like both the GDPR and the CPRA, the UCPA addresses a subset of personal data referred to as “sensitive data.” This is defined as personal data that reveals such items as racial or ethnic origin (unless processed by a video communication service); religious beliefs; medical history, mental or physical health, and medical treatment (unless processed by certain health care providers); sexual orientation, or citizenship or immigration status. This category of personal data also includes genetic and biometric data, as well as geolocation data. In general, controllers may not process sensitive data without providing clear notice and an opportunity to opt-out.
- Consumer. A “consumer” under the UCPA is “an individual who is a resident of Utah acting in an individual or household context.” Like the VCDPA, Utah’s law states a consumer does not include a “natural person acting in a commercial or employment context.”
- Consumer Rights. Subject to the exemptions and other limitations set forth under the law, Utah residents will be afforded the following rights with respect to their personal data:
- To confirm whether or not a controller is processing their personal data and to access such personal data;
- To delete personal data that the consumer provided to the controller. It is unclear whether this includes data provided to a processor or other third party with respect to the controller;
- To obtain a copy of their personal data that they previously provided to the controller in a portable and readily usable format that allows them to transmit the data to another controller without impediment, where the processing is carried out by automated means; and
- To opt out of the processing of the personal data for purposes of (i) targeted advertising, or (ii) sale.
- Controllers. Similar to the CCPA/CPRA, CPA, and VCDPA, controllers must provide an accessible and clear privacy notice that includes, among other things, the categories of personal data collected by the controller and how consumers may exercise a right with respect to their personal data. As with the CPRA, controllers are required to establish, implement, and maintain reasonable administrative, physical, and technical safeguards.
- Processors. Processors are persons that “process” (collect, use, store, disclose analyze, delete, or modify) personal information on behalf of controllers. Before processors may do so, they must enter into a contract that (i) clearly sets forth instructions for processing personal data, the nature and purpose of the processing, the type of data subject to processing, the duration of the processing, and the parties’ rights and obligations; (ii) requires the processor to ensure each person processing personal data is subject to a duty of confidentiality with respect to the personal data; and (iii) requires the processor to engage any subcontractor pursuant to a written contract that requires the subcontractor to meet the same obligations as the processor with respect to the personal data. Businesses with consumers in multiple states will have to compare these required provisions against those required under the CPRA, CPA, and VCDPA, as well as other privacy and security frameworks that may be applicable.
- Enforcement. The Utah Attorney General’s office has exclusive enforcement over the UCPA. In addition, a controller or processor must be provided 30 days’ written notice of any violation, allowing the entity the opportunity to cure the violation. Failure to cure the violation allows the Attorney General to recover actual damages to the consumer and a fine of up to $7,500 per violation. A private right of action is not available under the UCPA.
States across the country are contemplating ways to enhance their data privacy and security protections. Accordingly, 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.