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Update: The VCDPA was signed into law by Governor Ralph Northam without amendment on March 2, 2021. The VCDPA will become operative on January 1, 2023, and businesses should remain mindful of pending legislation in states like Washington, New York, Illinois and Massachusetts.
Virginia is set to become the second U.S. state to pass comprehensive data privacy legislation. Senate Bill 1392, called the Consumer Data Protection Act (“VCDPA” or the “Act”), passed the Virginia Senate by a vote of 39-0 on February 5, 2021, and the Virginia House of Delegates approved a companion bill (House Bill 2307) by a vote of 89-9 on January 29, 2021. The bills now await reconciliation, thought by some to be a mere formality. If passed, the law will establish a framework for controlling and processing personal data in the Commonwealth that parallels California legislation like the California Consumer Privacy Act (“CCPA”) and the California Privacy Rights Act (“CPRA”), as well as the European Union’s General Data Protection Regulation (“GDPR”). Notably, the Act does not create a private right of action for consumers, even in the case of a security incident. The law would take effect on January 1, 2023. This article includes a chart comparing certain provisions of the Act to the CCPA (as amended by the CPRA) and the GDPR, as well as a breakdown of key provisions.
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On March 2, 2021, Governor Northam signed into law Virginia’s own Consumer Data Protection Act (“Virginia CDPA” or the “Act”), a bill that brings together concepts from the EU’s General Data Protection Regulation (GDPR) as well as the California Consumer Privacy Act (CCPA) and the California Privacy Rights Act (CPRA). It is the first of its kind legislation on the East Coast. The law will go into effect on January 1, 2023.
The drafters of the Virginia CDPA appear to have benefited from observing the pitfalls and problems that arose in the development and implementation of both GDPR and CCPA. The Virginia bill deftly avoids several of those by incorporating narrower, more tailored definitions that clearly exclude categories of data and businesses over which there was (and continues to be) some confusion with respect to both the EU/UK and California compliance regimes. It also adopts, in concept, the framework of the GDPR, and even some of its language. Like GDPR, it characterizes the party who initially collects and controls personal data as the “controller” and obligates that party to be a good steward of the data, through transparency with the consumer, accountability for sharing the data with third parties (“processors”), and a duty to implement appropriate data security to safeguard the data. It will be enforced by the Virginia Attorney General. Notably, there is no private right of action under the Act.
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