Legislative & Regulatory Developments

The stringent law introduces several novel obligations and a unique approach to determining applicability that may broaden its reach.

By Clayton Northouse, Michael H. Rubin, and Robert Brown

On June 18, 2023, Texas enacted the Texas Data Privacy & Security Act (TDPSA), which will largely take effect in just over a year on July 1, 2024. The TDPSA follows in the footsteps of 10 other comprehensive US state privacy laws but sits decisively on the more stringent end of the spectrum.

While the TDPSA is generally modeled after the Virginia Consumer Data Protection Act (VCDPA), it adopts many of the more consumer-friendly components of more recently enacted laws. It also introduces several novel obligations and a unique approach to determining applicability that may broaden its reach.

In light of these factors and considering the size of the Texas economy and population, the TDPSA may prove to be the most impactful state privacy law since the California Consumer Privacy Act (CCPA), which was enacted in 2020.

The new laws introduce novel applicability thresholds and other requirements that businesses should consider when preparing for compliance with US state privacy laws, including those coming into effect from 2023 onwards.

By Robert Blamires, Marissa Boynton, Michael H. Rubin, Joseph Hansen, and Austin Anderson

Key Takeaways:

(i) Indiana, Montana, and Tennessee have all enacted general data privacy legislation, bringing the total to nine US state data privacy laws.

(ii) Montana will be the first of the three new laws to take effect on October 1, 2024, followed by Tennessee on July 1, 2025, and Indiana on January 1, 2026.

(iii) For businesses subject to existing similar general data privacy laws in other US states, many of the requirements will look familiar. The laws in Indiana and Tennessee generally follow in the wake of Virginia’s privacy law, while Montana’s law tracks more closely to Connecticut’s privacy law.  

(iv) All three laws will be exclusively enforced by the respective state attorneys general, but the penalties and applicable cure periods vary.

Iowa’s new data privacy law, which will come into force in 2025, adds to an increasingly complex patchwork of state laws.

By Robert Blamires, Clay Northouse, Michael Rubin, Robert Brown, Joseph Hansen, and Zac Alpert

On March 28, 2023, Iowa became the sixth US state to pass a comprehensive privacy law. The Iowa data privacy law (SF 262) (Iowa Privacy Law) was passed unanimously by the state House and Senate, and signed by Governor Kim Reynolds.

The Iowa Privacy Law imposes requirements similar to those already required by other state privacy laws—most notably, Utah. The key task for companies subject to the law will be to ensure that their existing measures cover personal data collected about Iowa residents, for example, by extending their privacy notices, contracts, and user rights mechanisms to include Iowa consumer personal data.

The updated reform legislation provides welcome guidance and clarifications on aspects such as legitimate interests and accountability, without substantially shifting the approach proposed under the existing reform bill.

By Gail E. Crawford, Fiona M. Maclean, Timothy Neo, Irina Vasile, and Amy Smyth

On 8 March 2023, the UK government introduced the second draft of its UK data protection reform legislation, the Data Protection and Digital Information (No.2) Bill (the No. 2 Bill). The No. 2 Bill supersedes the original Data Protection and Digital Information Bill (the Original Bill), which the government first introduced last summer, following the consultation “Data: a new direction” (the Consultation). (For more information on the Consultation, see this Latham blog post; for more details on the proposed changes in the first version of the Bill, see this Latham overview and deep dive.)

The No. 2 Bill details how the government proposes to reform the current UK data protection regime, which consists primarily of the UK Data Protection Act 2018 (DPA 2018), the UK General Data Protection Regulation (UK GDPR), and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR).

Organisations should expect increased scrutiny and enforcement activity around the role of data protection officers in the coming year.

By Gail E. Crawford, Fiona M. Maclean, Ben Leigh, and Amy Smyth

The European Data Protection Board (EDPB) has announced that its coordinated enforcement action for 2023 will focus on the designation and position of data protection officers (DPOs). Each year, the EDPB’s Coordinated Enforcement Framework (CEF) designates a topic EU data protection authorities (DPAs) should focus on. Although participation for any given year is voluntary, the EDPB has stated that this CEF will involve 26 DPAs across the European Economic Area, including the European Data Protection Supervisor.

The Privacy Commissioner for Personal Data reminds organisations to review and implement appropriate data security measures amidst more data breaches.

By Kieran Donovan, Anthony Liu, and Jacqueline Van

On 13 February 2023, the Privacy Commissioner for Personal Data of Hong Kong (PCPD) published an article titled “Guidance on Data Security – Heightened Importance of Data Security Amid Increased Cyberthreats”. The article discusses the increasing trend of cyberattack incidents, identifies common vulnerabilities based on data incidents the PCPD has investigated, and sets out practical guidance for data security measures.

The Office of the Privacy Commissioner for Personal Data of Hong Kong summarised enforcement trends and plans to further amend the Personal Data (Privacy) Ordinance.

By Kieran Donovan and Jacqueline Van

On 9 November 2022, the Office of the Privacy Commissioner for Personal Data of Hong Kong (Commissioner) published its annual report titled “A New Era in the Regulatory Regime for the Protection of Personal Data” (Annual Report). The Annual Report details the work of the Commissioner during 2021-2022, its observations on trends of complaints, and expectations for the year ahead. In particular, the Annual Report reflects the Commissioner’s continued efforts to enforce the new doxxing offence, and a likely further legislative review of the Personal Data (Privacy) Ordinance (Cap. 486) (PDPO) in the coming year.

Amended data privacy legislation enabled Hong Kong courts to convict doxxing offences, though their ability to enforce cessation notices remains unclear.

By Kieran Donovan and Jacqueline Van

In October 2021, Hong Kong amended its data privacy law, the Personal Data (Privacy) Ordinance (Cap. 486) (PDPO), to criminalise “doxxing” (generally defined as publicly providing personally identifiable information about an individual or related persons, usually via the internet, and often with malicious intent). The law empowers the Privacy Commissioner for Personal Data (Commissioner) to carry out criminal investigations, institute prosecutions, and issue cessation notices in relation to doxxing. The law is similar in many respects to New Zealand’s Harmful Digital Communications Act and Singapore’s Protection from Harassment Act, each of which were expressly referred to by the Hong Kong SAR’s Legislative Council Research Office in advance of the amendment coming into force.

This blog post reviews doxxing-related enforcement activity in Hong Kong since the amendment came into effect.

The amendment proposes business-friendly changes regarding data localization and legitimate interests.

By Brian Meenagh and Lucy Tucker

On November 20, 2022, the Saudi Data and AI Authority (SDAIA) published an amended version of the Kingdom of Saudi Arabia’s (KSA or the Kingdom) Personal Data Protection Law (PDPL) for consultation (the Amended Draft). The Amended Draft contains significant changes which are largely business friendly, including a relaxation of strict data localization requirements and the introduction of a form of legitimate interests as a legal basis for processing.

Businesses will need to take additional steps to ensure compliance as exemptions under the California Consumer Privacy Act expire at the end of 2022.

By Robert Blamires, Michael H. Rubin, Robert W. Brown, and Jennifer Howes

The California legislature adjourned its 2022 session without extending the exemptions under the California Consumer Privacy Act (CCPA) for personal information collected about California residents in a personnel/HR or business-to-business (B2B) context. Therefore, starting next year all obligations (and rights) in the CCPA, including those introduced under the California Privacy Rights Act (CPRA), will extend to such information.