Montana Consumer Data Privacy Act

What you need to know about the MCDPA:

To Whom Does MCPDA Apply?

The MCDPA applies to for-profit entities that:

  1. Conduct business or provide products or services to residents of Montana (consumers), and 
  2. Control or process the personal information of either:
    1. 50,000 consumers, excluding PI solely used for completing payment transactions; or
    2. 25,000 consumers and derives more than 25% of gross revenue from sale of PI.
When Does MCPDA NOT Apply?

Exempt Entities: Exempt entities include:

  • Non-profits;
  • State government entities;
  • Higher education Institutions;
  • HIPAA-covered entities;
  • GLBA-covered entities
  • National securities associations registered under the federal Securities Exchange Act

Exempt Data:  MCPDA exempts certain personal information, including but not limited to:

  • Protected Health Information under HIPAA;
  • Various federally and internationally protected health and patient information, including that protected by the Common Rule, human subject data, and more; and
  • Various forms of credit data regulated by the Fair Credit Reporting Act; and
  • Data covered by a wide variety of other federal laws including Family Educational Rights, Farm Credit Act, and Privacy Act, and Driver’s Privacy Protection Act.

Exempt Use Cases: The MCPDA is not applicable in some circumstances, such as:

  • Processing PI in an employment or commercial (B2B) context;
  • Processing PI for emergency contact purposes; and
  • Processing PI of an individual in relation to the provision of benefits.

In addition, Montana specifies that its law should not be construed to restrict a business’s collection, use, or retention of PI for:

  • Conducting internal research for development, improvement, and repair of products, services, and technology (R&D);
  • Product recalls;
  • Identifying and repairing technical errors that impair existing or intended functionality; and
  • Performing internal operations.

Key Components of the MCDPA

What Constitutes Personal Information in Montana?

The MCDPA covers “personal data,” also called personal information or PI, which Montana defines as: “any information that is linked or reasonably linkable to an identified or identifiable individual.”

The definition exempts de-identified information and information made publicly available by government records, the media, or the consumer.

What Constitutes Sensitive PI?

Montana’s definition of sensitive PI is in keeping with older laws, like Colorado and California. Whereas some of the newer laws include financial information, transgender status and more, Sensitive PI in MCDPA consists of:

  • Racial or ethnic origin;
  • Religious beliefs;
  • Mental or physical condition or diagnosis;
  • Sex life or sexual orientation;
  • Citizenship or immigration status;
  • PI about a known child;
  • Precise geolocation data; and
  • Genetic or biometric data processed for identification purposes.
Any Other Categories of Data I Should Think About?

Where a controller processes de-identified data, MCPDA requires it to take reasonable measures to ensure the data cannot be associated with an individual; publicly commit to maintaining such data without an attempt to re-identify it; and contractually obligate any recipients of the data to comply with MCPDA.

MCPDA also exempts pseudonymous data from access, correction, and deletion rights requests where the controller can show it keeps information that would allow the data to be re-identified separate and subject to technical and organizational controls that prevent its use for re-identification.

Is Consent Needed to Process Sensitive PI?

In a word: YES!

Is Consent Needed for Any Other Processing?

Parental consent is required to process PI about a known child (under 13) in accordance with COPPA, and individual consent is required to sell the PI of minors ages of 13 through 15 or use it for targeted advertising.

Consent is also required for secondary use of information that is not necessary or compatible with the purpose for collection and hasn’t been noticed to the consumer.

What Needs to Be Included in the Privacy Notice?

A privacy notice must include:

  • Categories of PI processed;
  • Business purpose for processing PI;
  • Categories of PI shared with third parties;
  • Categories of third parties with which PI is shared;
  • Methods for a consumer to exercise their privacy rights (see below) and appeal a rights decision; and
  • An active email address or other electronic method for a consumer to contact the company.
What Constitutes “Sale” of PI?

Montana defines “sale” to include exchange for monetary or other valuable consideration.

There are limits on the definition of “sale” to ensure that certain business functions are not unintentionally impeded by this law. Examples of activities deemed not to be a sale include: the disclosure of PI to provide a product or service requested by the consumer, the disclosure of PI to an affiliate, disclosure of PI intentionally made public, and the disclosure of PI as part of a merger or bankruptcy.

How Will the MCDPA be Enforced?

The Montana Attorney General (AG) will have the sole enforcement authority. Notably, Montana does not list the financial penalty for violations. The AG may bring an enforcement action after providing a 60-day notice and an opportunity for the business to cure the alleged violation(s); the cure period will end April 1, 2026.

Data Privacy is Just Good Business