Virginia Consumer Data Protection Act

What you need to know about the VCDPA:

To Whom Does VCDPA Apply?

The VCDPA applies to for-profit entities that:

  1. Conduct business in or provide commercial products or services that are targeted to residents of Virginia (consumers), and 
  2. Annually controls or processes the personal information of either:
    1. 100,000 residents; or
    2. At least 25,000 consumers and derives at least 50% of gross revenue from the sale of personal information.
Where Does VCDPA NOT Apply?
  • Exempt Entities: Exempt entities include:

    • State government entities;
    • GLBA-covered entities;
    • HIPAA-covered entities and business associates;
    • Non-profits; and
    • Higher education institutions.

    Exempt Data: The VCDPA exempts a long list of 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;
    • Various forms of credit data regulated by the FCRA; and
    • Data covered by a wide variety of other federal laws including Fair Credit Reporting Act; and
    • Data covered by a wide variety of other federal laws including the Family Educational Rights and Privacy Act, Farm Credit Act, and Driver’s Privacy Protection Act.

    Exempt Use Cases: The VCDPA 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 another individual in relation to the provision of benefits.

    In addition, the VCDPA 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 Colorado’s Data Privacy Law

What Constitutes Personal Information?

The VCDPA covers “personal data,” also called personal information or PI, which Virginia has 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 Personal Information?

Virginia definition of sensitive PI consists of:

  • Racial or ethnic origin;
  • Religious beliefs;
  • Mental or physical diagnosis;
  • Sexual orientation;
  • Citizenship or immigration status;
  • PI from a known child;
  • Precise geolocation data;
  • Genetic or biometric data for the purpose of identification.
Any Other Categories of Data I Should Think About?

Where a controller processes de-identified data, the VCDPA requires them 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 VCDPA.

Additionally, Virginia 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: Yes!

Is Consent Needed for Any Other Processing?

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

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?

Under the VCDPA, a privacy notice must include (among other requirements):

  • The categories of PI processed;
  • The purpose for processing PI;
  • Categories of PI shared with third parties;
  • Categories of third parties with which PI is shared;
  • The categories of PI shared with third parties;
  • Description of targeted advertising and selling activities including a procedure for opting out of the processing for these purposes; and
  • The methods for a consumer to exercise their rights (see below) and appeal a decision on their rights request.
What Constitutes Sale of PI?

Virginia defines “sale” as the exchange of personal information for monetary consideration by the controller to a third party.

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 VCDPA Be Enforced?

Virginia’s Attorney General (AG) is the sole enforcement authority for VCDPA. Under the law, 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). The AG may seek injunctive relief (the company must stop certain behaviors) and/or civil penalties, with fines up to $7,500 per violation plus attorney’s fees, investigative costs, and any other relief the court determines appropriate.

Data Privacy is Just Good Business