Utah Consumer Privacy Act

What you need to know about the UCPA:

To Whom Does the UCPA Apply?

The UCPA applies to for-profit entities that:

  1. Conduct business or provide commercial products or services that are targeted to residents of Utah (consumers), and 
  2. Has an annual revenue of at least $25 million, and
  3. Annually control or process PI of either:
    1. 100,000 unique residents; or
    2. 25,000 unique residents and derives more than 50% of gross revenue from the sale of PI.
Where Does UCPA NOT Apply?

Exempt Entities: Exempt entities include:

  • Non-profits;
  • State government entities;
  • Higher education Institutions;
  • Air carriers;
  • GLBA-covered entities;
  • HIPAA-covered entities and business associates; and
  • Tribal nations.

Exempt Data: Oregon exempts a long list of personal information, including but not limited to:

  • Protected Health Information (PHI) under HIPAA;
  • GLBA-covered data;
  • Various federally and internationally protected health and patient information, including that protected by the Common Rule, human subject data, and more;
  • Various forms of credit reporting data regulated by the Fair Credit Reporting Act; and
  • Data covered by a variety of other federal laws including FERPA, Farm Credit Act, and the DPPA.

Exempt Use Cases: The UCPA is not applicable to processing PI in an employment or commercial (B2B) context.

Additionally, Utah 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;
  • Performing internal operations;
  • Internal activities related to security incidents, identity theft, fraud, and other malicious or illegal activity;
  • Protecting health and safety; and
  • Activities related to fulfilling a contract with a consumer.

Key Components of Utah’s Data Privacy Law

What Constitutes PI Under UCPA?

The UCPA covers “personal data,” or PI, which is defined as any information that is linked or reasonably linkable to an identified or identifiable natural person. The definition exempts de-identified and information made publicly available by government records, the media, or the consumer.

What Constitutes Sensitive PI Under UCPA?

Utah’s definition of sensitive PI consists of:

  • Racial or ethnic origin (with exceptions);
  • Religious beliefs;
  • information regarding medical history, mental or physical health condition, or medical treatment or diagnosis by a health care professional;
  • Sexual orientation;
  • Citizenship or immigration status
  • Specific geolocation data (with exceptions); and
  • Genetic or biometric data for identification purposes.
Any Other Categories of Data I Should Think About?

Where a controller processes de-identified data, the UCPA 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 the UCPA.

Additionally, Utah 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 Data?

In a word, NO!

The UCPA grants Utah consumers the right to opt out of the processing of their sensitive PI, as opposed to requiring consent. However, the law also requires that the controller provide the consumer with clear notice and an opportunity to opt out prior to processing the information.

Is Consent Needed for Any Other Processing?

Parental consent is required to process PI from a known child (under 13) in accordance with COPPA.

What Needs to Be Included in the Privacy Notice?

Under the UCPA, a privacy notice must include:

  • The categories of PI processed;
  • The purpose for processing PI;
  • The categories of third parties with which PI is shared;
  • The categories of PI that are shared with third parties;
  • Privacy rights;
  • Methods for a consumer to exercise their privacy rights (see below); and
  • Description of selling and targeted advertising activities including a procedure for opting out of the processing for these purposes.
What Constitutes “Sale” of PI?

Utah defines “sale” as an exchange of PI for monetary consideration by the controller to a third party, , more limited than many state privacy laws that also include “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 that the consumer intentionally made available to the public, and the disclosure of PI as part of a merger or bankruptcy.

How Will the UCPA Be Enforced?

The Utah Attorney General (AG) is the sole enforcement authority for UCPA. Under the UCPA the AG may bring an enforcement action after providing a 30-day notice and an opportunity for the business to cure the alleged violation(s). Actions can be brought that seek civil penalties, with fines up to $7,500 for each violation.

Data Privacy is Just Good Business