Data is the most crucial asset for modern-age companies to drive business growth. And the U.S. has been, for quite a while, at the forefront of big-tech businesses and the ever-dynamic digital landscape.
But like anything valuable, data is also subjected to vulnerability. And U.S. Data Privacy laws are the result of the inability of businesses to limit and secure data that causes no harm to an individual whatsoever.
The U.S. has had a history of continuing frameworks and ever-evolving laws that regulate businesses for the judicial usage of an individual's data.
Though more than 90% of small-medium businesses still need privacy compliance, a lot is changing with enforced regulations such as CPRA and CPA.
So, this guide will be an in-depth review of data privacy, its history, the current regulatory landscape, and its future implications on modern-age businesses.
History of US Data Privacy Laws
Privacy Laws are usually categorized into Vertical Focus and Horizontal Focus.
Privacy Laws with Vertical Focus refer to the information about an individual's medical and financial information as they are susceptible to breach. This includes medical health records or financial statements and account numbers.
Privacy Laws with a Horizontal Focus refer to how an organization processes an individual's personal information, regardless of its context. These privacy laws govern information such as fingerprints, facial and voice recognition, biometric data, retina scans, and other personally identifiable information such as names and addresses.
U.S. Privacy Act 1974
Enacted in 1974 and enforced in September 1975, the U.S. Privacy Act is the first and foremost data privacy regulation formed to govern the federal U.S. government.
It was primarily enforced to establish a code to conduct "fair information practices" among federal agencies, particularly those that indulge in national security and consumer entities.
The act: "balances the government's need to maintain information about individuals with the rights of individuals to be protected against unwarranted invasions of their privacy stemming from federal agencies' collection, maintenance, use, and disclosure of personal information about them."
Right to access and modify personal data: U.S.'s first privacy act gives American citizens the right to access the data collected and processed by federal agencies and change their personal information if found inaccurate.
Right to access for privileged individuals: Depending upon an individual's role in the company, this act would allow only certain people to access their personal information.
Right to inquire about personal data: As per the act, individuals have the right to know how and what federal agencies can do with their data.
The HIPAA Act, or the Health Insurance Portability and Accountability Act, regulates hospitals, insurance companies, and healthcare providers to protect and secure patients' sensitive personal information or Protected Health Information or PHI. The U.S. Department of Health and Human Services (HHS) regulates this health privacy law, while Office enforces the regulatory provisions for Civil Rights (OCR).
Entities that are compliant with HIPAA:
Use an individual's personal information for specific purposes such as payments and medical treatments. However, healthcare providers require patients' explicit consent when that personal data is used for marketing and advertisement activities or promotions.
It is mandatory for healthcare providers to compulsorily provide a privacy notice to the patients declaring the practices used by the entity to collect and process personal data and for what purpose it will be used. The patient can limit or restrict healthcare providers from disclosing personal data.
The patient can access and modify the medical information if the records are inaccurate.
The Children's Online Privacy and Protection Act, colloquially known as COPPA, is a set privacy standard regulating websites, apps, and other online platforms that exchange personal data pertaining to children under 13.
Essential requirements in COPPA:
Post a precise and straightforward privacy statement outlining what data service providers will gather on children, how they will use it, and whether they will disclose it to third-party organizations.
Before obtaining, using, or disclosing children's personal information, obtain their parent's or guardian's explicit consent.
Giving parents and guardians the right to examine and erase their child's personal information is mandatory under COPPA.
The Gramm-Leach-Bliley Act is a regulation enacted by the U.S. government in 1999 that requires financial institutions and fin-tech businesses and startups that provide financial products and services to their client to declare their data collection, processing, and sharing practices with their clients upfront and safeguard their sensitive data.
Essential requirements in GLBA:
Enabling consumers to Opt-out of sensitive data-sharing options and explaining in-depth data-sharing practices of your organization.
Mandatory regulatory guidelines for financial organizations on how to gather, process, or safeguard users' data. It applies to all data types collected from consumers, including online information.
Create and implement a defined information security program to prevent unauthorized access to client information.
Current State of Privacy Laws in the U.S. and its Implications
The U.S. has enacted privacy laws with only state-wide jurisdiction while it is consistently planning and working to implement a federal law as well.
So, let's start with laws already active in certain states, some passed, and a brief look at the federal privacy law in the making.
CCPA & CPRA: California Consumer Privacy Act
California became the first state in the U.S. to enact a privacy law on January 1, 2020. And CPRA amends CCPA expanding the full scope of the privacy law state-wide and establishing California Privacy Protection Agency or CPPA substantially making businesses compliant.
It enforces for-profit businesses that are based in California or collect process, and share/sell the personal data of California's citizens.
This Law also gives Californians greater control over their data. Californians have the right to ask for their data from businesses and can access, modify or delete their personal information it needs to be.
If a business is found in violation of privacy laws, there can be fined anywhere between $2500 to up to $7500 per violation in highly sensitive cases.
Businesses, especially small-medium enterprises, must take precautions and get their company compliant with privacy laws as it will mitigate the risk of fines and penalties, safeguard your businesses' reputations, and build long-term consumer trust.
VCDPA: Virginia Consumer Data Protection Act
Virginia was signed into a comprehensive data privacy law in March 2021, making it the second state in the U.S. to enact a privacy law.
It enforces for-profit businesses based in Virginia or collect process, and share/sell the personal data of Virginia's citizens.
Like CCPA, VCDPA gives significant control to the virginal citizens over their data. They also have the right to ask for their data from businesses and can access, modify or delete their personal information if needs to be.
If a business is found in violation of privacy laws, there can be fined anywhere between $2500 to up to $7500 per violation in highly sensitive cases.
CPA: Colorado Privacy Act
As the bill has already been signed into Law, Colorado Privacy Act will go into effect on July 1, 2023, becoming the third state in the U.S. to have its privacy law.
The CPA applies to people and business owners who operate in Colorado or whose products and services are targeted at Colorado residents and who, during the course of a calendar year, either control the processing of personal data of:
100,000 or more customers annually,
Twenty-five thousand or more customers generate income from the sale of personal data.
The Law also allows Colorado residents the option to refuse the sale of their personal data and mandates that companies inform customers of their data collecting and sharing practices.
Additionally, the Law imposes fines, as much as $20,000 per violation, on businesses and gives the state attorney general the power to launch enforcement actions.
UCPA: Utah Consumer Privacy Act
On March 24, 2022, the Utah Consumer Privacy Act (UCPA) became the fourth state to implement privacy law, that will be enacted by Dec 31, 2023. It safeguards Utah residents' right to privacy and provides data privacy obligations for businesses operating there to outline their data-sharing practices.
Targeted advertising and the sale of personal data are covered by the UCPA, which specifies what constitutes and does not constitute a sale as "the exchange of personal data for monetary consideration by a controller to a third party."
Utah Consumer Privacy Act offers the business a response period of 45 days with a cure period of "30 days". If found guilty of violating privacy regulations, your business could pay as much as $7500 per violation.
CTDPA: Connecticut Data Privacy Act
The Connecticut Data Privacy Act (CTDPA), the fifth and most recent comprehensive state consumer privacy law, will be enacted on July 1, 2023, allowing businesses operating in the state to collect and collect and process the personal data of Connecticut citizens.
The California Consumer Privacy Act (CCPA) and the Colorado Privacy Act (CPA), which are more consumer-focused than the more business-friendly Utah Consumer Privacy Act, share the most similarities with other states' consumer privacy laws, the California Consumer Data Privacy Act (VCDPA) and Colorado Privacy Act (CPA).
The CTDPA mandates that companies take appropriate precautions to guard against unauthorized customer data access, use, or disclosure. Additionally, the CTDPA imposes severe fines on companies that do not appropriately protect customer data.
ICDPA: Iowa Consumer Data Protection Act
Iowa joins the league by becoming the sixth U.S. state to implement a data privacy law, which will be enacted on January 1, 2025.
Like any other law, the Iowa Data Privacy Act aims to provide consumers and residents of the Iowa state greater autonomy over their data by mandating businesses ask for explicit consent from the user before collecting their data.
Key features of the Iowa Privacy Law:
Right for Consumer to Opt-out
Processing Agreement Required between Controllers and Service Providers
Attorney General Investigations and Enforcement
Counter to other consumer-focused regulations, Iowa goes easy on businesses by giving them a more extended response and cure period of 90 days and an additional 45 days in unusual and complex cases.
This privacy law is specifically designed to safeguard Indiana individuals' privacy and is called the Indiana Data Privacy Law (IDPL) and will be fully enacted on January 1, 2026.
Signed into law on May 1, 2023, by Indiana Governor Eric Holcomb, IDPL regulates Businesses that cater to the people of Indiana and mandates that businesses must make residents of Indiana aware of these consumer privacy rules and take the necessary steps to comply. And if companies don't do it, they risk facing harsh financial penalties.
For a first offense, civil penalties go up to $7,500 per violation with a cure period of 30 days. Indiana Data Privacy Law does not permit a "private right of action" but is more active than other laws for conducting enforcement actions and issuing investigative demands.
The U.S. Privacy landscape is on fire as Tennessee has become the eighth state to implement state-wide data privacy law, which will be enacted on July 1, 2025.
Tennessee Information Protection Act is most business-friendly, like Utah and Iowa, and provides a safe harbor to companies that comply with the National Institute of Standards and Practices.
TIPA aims to safeguard the privacy of individuals within the state and mandates businesses to provide users with secure access to personal data and give them their privacy right, i.e., to modify or withdraw if a user believes in doing so.
Failing to comply, TIPA may attract civil penalties ranging up to $7,500 per violation and also provides businesses with a response or cure period of 60 days, failing which the Tennessee attorney general may take legal action against the company.
U.S.'s Data Privacy Law vs. E.U.'s GDPR
EU's General Data Protection Regulations is the world's most comprehensive data privacy regulation, colloquially known as the "mother of all privacy laws."
E.U.'s GDPR came into effect in May 2018 due to the international data breach incidents that caused significant compromise to millions of sensitive consumer data.
With the strictest sets of standards, E.U.'s GDPR and U.S.'s CCPA rigorously focus on how businesses handle users' data and what data protection practices are implemented in their operations.
Along with that, both privacy laws are fully committed to providing consumers their right to privacy by regulating businesses to grant the ability to access, modify or delete personal data if the consumer does so.
Let me outline the key differences between E.U.'s GDPR and U.S.'s CCPA:
Jurisdiction and Applicability
GDPR: GDPR not only operates within the purview of the European Union but applies to any business worldwide that collects, process, share/sell the personal data of E.U. citizens. This Law doesn't require data processing or a revenue threshold.
CCPA: CCPA operates within the purview of California State and applies to businesses that collect, process, share/sell the personal data of Californians. This Law requires data processing or revenue threshold.
Scope of Personal Information
GDPR: The GDPR encompasses a broader definition of personal data that includes any information that directly or indirectly identifies an individual, such as names, email addresses, I.P. addresses, and even cookie data.
CCPA: As per CCPA, personal information is data that identifies, relates to, describes, or could be reasonably linked to a particular consumer or natural human being.
Consent and Opt-out Rights
GDPR: Under the GDPR, businesses must get users' explicit consent to process their data. Also, users have the right to withdraw consent and request the deletion of their data.
CCPA: The CCPA provides consumers with the right to opt out of the sale of their personal information. However, it does not require explicit consent for data processing as the GDPR does.
Rights and Enforcement
GDPR: The GDPR grants individuals various rights, including the right to access their data, rectify inaccuracies, restrict processing, and data portability. Non-compliance can result in significant fines (up to 4% of global annual turnover) and regulatory actions.
CCPA: The CCPA grants consumers rights such as access to their information, request deletion, and opt-out of sales. While it does not impose penalties directly, it allows for a private right of action in case of data breaches.
GDPR: The GDPR places a greater emphasis on accountability and requires businesses to implement measures such as privacy notices, data protection impact assessments (DPIAs), appointing a Data Protection Officer (DPO) in some instances, and maintaining records of processing activities.
CCPA: The CCPA focuses more on transparency and requires businesses to provide clear privacy policies, inform consumers about data collection and sharing practices, and offer opt-out mechanisms to sell personal information.
Which Law Will Apply to Your Business?
There are three significant criteria you should consider as a business owner to make an informed decision regards to privacy law compliance:
Location: If your business is in a state with an active data privacy law, compliance is a must for you regardless of the revenue or data processing threshold. Why?
Getting compliance will build your brand identity. It will give you a competitive edge to market your business.
You will have consented to the user's personal data if you comply with privacy law. This data can be further used for Advertising or personalization.
Compliance will mitigate the risk of potential fines and penalties apart from reputational damages the business might suffer.
Industry: Though data is the lifeline of every industry in the digital age, some businesses indulge in sensitive data collection, making them more vulnerable to data breaches and cyber-attack. Also, you should focus on the industry-specific standards crucial for your business as they meet different vertical treatments. For example, healthcare businesses must comply with HIPAA; financial institutions need GLBA compliance, and much more.
Size: If you deal in large chunks of data, you want to make sure of the third parties you are dealing with. Also, ensure that if you have on-premises data storage, it is well interacted, and rigorous data security measures are implemented.
In an ever-changing digital world, data is critical for future brands. But businesses need to adopt the "Data Privacy" concept as the new benchmark to enhance the consumer experience.
Businesses must consider getting privacy compliance as the competitive edge they can build their brand around. Because even if you don't want privacy, your customer indeed does.