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While we will discuss in more detail who privacy laws apply to in the next section, privacy laws generally apply to websites that collect Personally Identifiable Information (PII). PII is defined as any information that could identify someone. Examples of PII that are commonly collected by websites include:
- Phone numbers;
- Physical addresses; and
- IP addresses.
- Contact forms;
- Email newsletter sign up forms;
- Account creation forms;
- eCommerce portals where consumers can make purchases; and
- Analytics programs such as Google Analytics.
Once you have reviewed your website for these features and determined what PII you collect, you should also ask yourself:
- How do I use the PII that I collect?
- Who, if anyone, do I share this PII with?
Once you have reviewed your website, it is time to determine what privacy laws apply to you.
While privacy laws have a very broad application in the sense that they apply to businesses outside of the states or countries in which they are passed, they also have certain criteria that you need to meet for the law to apply to you. Therefore, you should not just assume that every privacy law applies to you, but should instead review the below list of laws and criteria to determine your obligations:
- California Online Privacy and Protection Act of 2003 (CalOPPA): applies to operators of commercial websites that collect the PII of California residents;
- California Consumer Privacy Act (CCPA): applies to for-profit entities that do business in California, collect, share or sell the PII of California residents and meet one or more of the following criteria:
- Has annual gross revenues of $25,000,000 or more;
- Buys, receives, sells or shares the PII of at least 50,000 California consumers, households or devices; or
- Derives at least 50% of its annual revenue from selling the PII of California consumers.
- Nevada Revised Statutes Chapter 603A applies to data brokers and operators of commercial websites that collect the PII of Nevada consumers that purposefully directs their activities towards Nevada, consummates a transaction with the State of Nevada or a resident of Nevada, purposefully avails itself of the privilege of conducting activities in Nevada or otherwise engages in any activity that constitutes sufficient nexus with Nevada to satisfy the requirements of the United States Constitution;
- Delaware Online Privacy and Protection Act (DOPPA): applies to operators of commercial websites that collect the PII of Delaware residents;
- Virginia Consumer Data Protection Act (VCDPA – goes into effect on 1/1/2023): applies to persons that conduct business in Virginia or that produce products or services that are targeted to residents of Virginia and that:
- During a calendar year, control or process the PII of at least 100,000 residents of Virginia; or
- Control or process the PII of at least 25,000 Virginia consumers, and derive 50% of gross revenue from the sale of PII.
- Colorado Privacy Act (goes into effect 7/1/2023) applies to controllers of PII that conduct business in Colorado or produce or deliver commercial products or services that are intentionally targeted towards residents of Colorado and satisfy one of the following thresholds:
- Control or process the PII of 100,000 or more Colorado consumers during the calendar year; or
- Derive revenue or receive a discount from the sale of PII and collect or process the PII of 25,000 or more Colorado consumers.
- Utah Consumer Privacy Act (goes into effect 12/31/2023) applies to controllers of PII that conduct business in Utah or that produce products or services that are targeted to residents of Utah and that:
- Have annual revenue of $25,000,000 or more; and
- Meet one of the following thresholds:
- During a calendar year, control or process the PII of 100,000 or more Utah residents; or
- Derive 50% or more of its annual revenue from the sale of personal data and control or process the PII of 25,000 or more Utah consumers.
- Connecticut SB6 (goes into effect 7/1/2023): applies to persons that do business in Connecticut or that provide goods or services that are targeted towards residents of Connecticut and that during the previous year:
- Controlled or processes the personal data of 100,000 or more Connecticut residents; or
- Controlled or processed the personal data of 25,000 or more residents of Connecticut and derived more than 25% of their gross revenue from the sale of personal data.
- General Data Protection Regulation (GDPR): applies to you if you:
- Are located in the European Union;
- Offer goods or services to European Union residents, regardless of your location; or
- Monitor the behavior of European Union residents, regardless of your location.
- Personal Information Protection and Electronic Documents Act (PIPEDA): applies to organizations across Canada that collect, use, or disclose PII in the course of commercial activity. PIPEDA can also apply to non-Canadian companies that collect, use, or disclose the PII of Canadian residents.
- Quebec Law 25 (effective 9/1/2023): applies to persons who collect, hold, use or share the personal information of Quebec residents in the course of carrying on an enterprise within the meaning of Article 1525 of the Quebec Civil Code. Article 1525 defines “enterprise” as “the carrying on by one or more persons of an organized economic activity, whether or not it is commercial in nature, consisting of producing, administering or alienating property or providing a service.” This means that Quebec Law 25 will apply to both for-profit and nonprofit organizations that collect, hold, use or share the personal information of residents of Quebec.
- Australia Privacy Act of 1988: applies to Australian organizations with annual turnover of more than AUD $3,000,000 and the organizations outside of Australia that have an Australian link. It also applies to the following Australian organizations even if they have turnover of less than AUD $3,000,000 per year:
- Private sector healthcare providers;
- Businesses that sell or purchase PII;
- Credit reporting bodies;
- Contracted service providers for Australian government contracts;
- Employee associations registered or recognized under the Fair Work (Registered Organisations) Act 2009;
- Businesses that have opted in to comply with the law;
- Businesses that are related to a business covered by the law; and
- Businesses prescribed by the Privacy Regulation 2013.
- The effective date of your policy;
- Your name and contact information;
- What PII you collect;
- Sources from which you collect the PII;
- Purposes for which you will be using the PII;
- Whether you share PII and, if you do, the categories of third parties with whom you share it;
- If personal information is collected using technology that allows the person to be identified, located or profiled and the means available to deactivate the functions that allow the person to be identified, located, or profiled.
- How your website responds to Do Not Track signals;
- Whether you sell PII – fi you do, you may need to make further disclosures regarding such sales;
- Whether you use PII for targeted advertising and how individuals can opt out (this disclosure will start to be required in 2023);
- A list of the privacy rights provided to consumers;
- How a consumer can exercise their privacy rights;
- How a consumer can appeal a decision made regarding a privacy rights request (this disclosure will start to be required in 2023);
- How a user can complain to the authorities if they feel like their privacy rights have been infringed upon;
- Legal bases under which you process PII;
- How long you store PII;
- Whether you use PII for direct marketing;
- Whether you use PII for automated decision making or profiling;
- Whether you transfer PII outside of certain countries or to an international organization;
- How you protect the PII that you collect;
- Whether you use any type of analytics on your website such as Google Analytics; and