If you’re doing business in both Canada and the United States, you’ve probably already discovered this truth: one privacy strategy just won’t work for both countries. In fact, trying to apply the same rules on both sides of the border is like using the same key for two different locks. You might force it to turn, but you’re risking real damage.

Let’s walk through the most important differences between these two privacy landscapes and explore what you need to know to navigate both successfully.

Consent isn’t one-size-fits-all

Here’s where things get interesting. In Canada, privacy law really comes down to consent. It’s the foundation of everything, and getting it right is crucial. Sometimes consent can be implied, but when you’re dealing with sensitive data or using information in ways people wouldn’t expect, you need express consent. That means using clear language, separate privacy notices, and no bundling multiple uses under one checkbox. And don’t confuse getting a yes with getting informed consent. It’s not the same.

Now, the U.S. is a different story entirely. It’s more like a patchwork of rules. Most state privacy laws follow what’s called a business purpose model, which means if you’re using personal information for a legitimate business purpose, you might not need consent at all. Yet there are exceptions – some states treat health data and children’s information as sensitive and require opt-in consent. The tricky part is that what counts as “sensitive data” changes from state to state, so you really need to understand which privacy laws apply to your company.

Consent doesn’t end here. Canada also has rules about commercial electronic messages under CASL. If someone gives you express consent, it doesn’t expire. But implied consent? That’s only good for two years.

In the U.S., CAN-SPAM applies, and the focus is on honoring opt-outs quickly. Text message marketing is a different beast entirely – that’s opt-in only, no exceptions.

What companies should do:

  • Build separate consent strategies for both the U.S. and Canada
  • Avoid bundling consent for multiple uses
  • Know your state privacy laws and provincial legal requirements

Cookies: Way More Than Just Pop-Up Banners

Here’s where things get sticky. In both the U.S. and Canada, implementing cookie consent banners is best practice even when they’re not technically required. But like everything else in privacy, there are exceptions.

Canada doesn’t mandate cookie banners across the board – however many companies are using cookie banners to comply with Quebec Law 25.  And in a nutshell, under Law 25, that means if you’re using technology, like cookies, to collect personal information from Quebec residents to identify, profile, or locate users, you must seek express consent.  This means your company will need to implement a cookie consent banner, and one that requires opt-in consent.

In the U.S., like Canada, cookie consent is complicated. That’s because cookie banners are not technically required under state privacy laws, however the California Consumer Privacy Act (CCPA) does require notice at or before the point of collection. This ambiguity has caused some to interpret this to mean that a cookie banner is necessary, while others believe it is not necessary. What’s driving broader adoption, though, is litigation tied to pixel tracking and consent gaps, especially as regulators look more closely at dark patterns, symmetry in choice, and the privacy rights process.

If your company does have a cookie banner, it needs to:

  • Be visible, easy to understand, and accurate​
  • List the types of cookies used on your website​
  • Include language that describes the purpose of each cookie​
  • Offer users options to exercise rights, giving equal choice between accept and reject​
  • Allow users to manage the cookie settings from the cookie banner​
  • Be formatted without “dark patterns,” e.g., font/color/box shape discrepancies that push the consumer to “accept” rather than “reject” cookies ​
  • Link to your privacy notice

Cross-Border Transfers Are More Than Just a Technical Detail

Canadian privacy laws generally let companies store personal information outside Canada. But here’s where it gets interesting: some provinces have their own rules. British Columbia and Nova Scotia, for example, require their public sector organizations to keep data within the country. In Quebec, Law 25 does not mandate local storage, but it imposes strict requirements on how personal information is handled. Whenever data leaves Quebec, even to another Canadian province, organizations must complete a Transfer Risk Assessment (TRA) to ensure the destination provides a level of protection equivalent to Quebec standards. Companies must document data flows and ensure their contracts reflect these requirements.

Here’s something that catches a lot of people off guard: storing Canadian data on servers run by U.S. cloud providers doesn’t eliminate risk, even if those servers are physically located in Canada. Thanks to the U.S. CLOUD Act, American authorities can access data stored abroad by U.S.-based companies if a court issues a warrant or subpoena for a criminal investigation. Authorities do not need user consent or notification. Some service providers may agree to notify customers through their terms of service, but they are not legally required to do so.

To reduce this risk, Canadian companies should encrypt sensitive data and maintain control over their encryption keys. Encryption makes unauthorized disclosure significantly more difficult. Hosting highly sensitive data on Canadian-owned servers is another strategy companies may consider to maintain greater control over their data.

In the U.S., the new DOJ rule creates similar obligations for U.S. companies. If data, especially biometric, genomic, or other sensitive types, is shared with vendors connected to restricted foreign countries, new transfer restrictions may apply. Companies must not only know their direct vendors but also carefully map any sub-processors and data pathways. Without clear visibility into these relationships, businesses risk unknowingly violating cross-border data transfer rules.

Health and Employee Data: Two High-Risk Areas, Two Approaches

In Canada, health data is governed provincially and taken seriously. Each province may require a Privacy Impact Assessment (PIA) before launching a health-related tool, like a fitness or period tracking app. Regulatory enforcement has been active, with some health apps blocked from use until a PIA is completed.

In the U.S., the approach is different. HIPAA applies narrowly to specific healthcare providers and insurers, which leaves a lot of health-related data without much protection. That’s changing with newer state laws like Washington’s My Health My Data Act, which expanded protections to cover wellness and reproductive health information and requires opt-in consent for collection.

Employee privacy also splits across the border.

In Canada, common law creates an expectation of privacy, even without a federal law. Provinces like Alberta and British Columbia have their own employee privacy rules. Ontario requires companies with 25 or more employees to publish internal monitoring policies. Meanwhile, in the U.S., only California’s CCPA covers employee data. But a misstep here still creates legal risk.

Why U.S. and Canadian Businesses Can’t Ignore AI Governance

Neither the U.S. nor Canada has a comprehensive national AI law yet, but that doesn’t mean companies can relax. Regulators are already focusing on how companies use artificial intelligence, and new laws are being developed on both sides of the border.

In Canada, Ontario’s Working for Workers Act (Bill 149), effective January 2026, will require companies to notify job candidates if AI is used in the hiring process. At the federal level, Canada’s proposed Artificial Intelligence and Data Act (AIDA) is also moving forward. While it is not final yet, the focus will be on regulating automated decision-making that impacts individuals. Companies will need to demonstrate transparency, fairness, and control over how AI systems are used.

The U.S. is following a similar patchwork approach. Colorado has passed its own AI law, scheduled to take effect in 2026. The Federal Trade Commission (FTC) is already using its authority to investigate unfair and deceptive AI practices. If your AI systems handle personal data or influence decisions, regulators are watching.

What organizations should do now:

  • Set clear rules for how your internal teams can use AI tools
  • Draft an internal AI use policy that defines allowable use cases
  • Prohibit staff from uploading sensitive data into public tools like OpenAI
  • Evaluate whether models used in products or services are fair, secure, ethical and properly disclosed to users
  • Assign responsibility for governance and ethical reviews

Privacy Notices Are More Than Fine Print

In Canada, privacy notices have a clear job. They need to tell people what data you collect, why you collect it, where it goes, and how you protect it. If that data leaves Canada or Quebec, users need to be told about it. Notices also need to include contact details and point people to the right privacy authority if they have concerns.

In the U.S., the rules depend on where your business operates. California’s CCPA requires detailed disclosures across 11 categories of data, including what is collected, whether it is shared, and if it is sold. States like Washington have extra requirements for health data. Oregon expects companies that claim to honor privacy rights to spell out exactly what they are doing.

One detail businesses often miss is that U.S. regulators are using the contact information listed in privacy notices to submit complaints and questions. If no one is monitoring that inbox or if messages are ignored, it can quickly turn into a bigger problem.

A good privacy notice is not just about boilerplate copy. It needs to clearly explain key details to meet legal requirements in Canada, the U.S., or both.

Every privacy notice should include:

  • What personal information you collect
  • Why you collect it
  • Where the data goes and who you share it with/sell it to
  • Where the data is stored
  • Whether data leaves Canada, Quebec, or the U.S.
  • Clear contact information for privacy rights inquiries
  • Links to the relevant privacy authority if applicable to your jurisdiction

Two Countries, Two Systems, No Privacy Shortcuts

Canada and the United States may be close neighbors, but their privacy laws do not overlap neatly. Canadian privacy law is based on consent as the primary foundation. In contrast, U.S. privacy laws rely on opt-outs, business purposes, and a growing patchwork of state legal requirements.

If you do business in both countries, a unified approach won’t cut it. Privacy programs must respect the unique laws in each country. Success really comes down to knowing where the rules align and where they diverge. In the privacy world, getting it “almost right” can still lead to some pretty costly mistakes.

Downloadable Resource

State Privacy Laws Comparison Guide

 

Stay ahead of state privacy laws with our guide—clear definitions, key dates, and crucial compliance tips!

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Need Help? Ready to Make Privacy Compliance Easier?

Privacy compliance across borders is complex, and the risk of missteps is real. Yet it is possible to get it right with the proper guidance. At Red Clover Advisors, we help businesses build privacy programs that work on both sides of the border. If you are ready to turn privacy compliance into a business advantage, we are ready to help.