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Financial Services Law Insights and Observations

Oregon is 11th state to enact comprehensive privacy legislation

Privacy, Cyber Risk & Data Security State Issues State Legislation Oregon Consumer Protection

Privacy, Cyber Risk & Data Security

On July 18, the Oregon governor signed SB 619 (the Act) to establish a framework for controlling and processing consumer personal data in the state. Oregon follows California, Colorado, Connecticut, Virginia, Utah, Iowa, Indiana, Tennessee, Montana, and Texas in enacting comprehensive consumer privacy measures. Last month, Florida also enacted privacy legislation, but the requirements focus on specific digital controllers with global gross annual revenues of more than $1 billion.

Highlights of the Act include:

  • Applicability. The Act applies to persons conducting business or producing products or services intentionally directed at Oregon residents that either control or process personal data of more than 100,000 consumers per calendar year (“other than personal data controlled or processed solely for the purpose of completing a payment transaction”) or earn 25 percent or more of their gross revenue from the sale of personal data and process or control the personal data of 25,000 consumers or more. Additionally, the Act provides several exemptions, including financial institutions and their affiliates, data governed by the Gramm-Leach-Bliley Act and certain other federal laws, nonprofit organizations, and protected health information processed by a covered entity in compliance with the Health Insurance Portability and Accountability Act, among others. The Act does not apply to personal information collected in the context of employment or business-to-business relationships.
  • Consumer rights. Under the Act, consumers will be able to access their personal data, make corrections, request deletion of their data, and obtain a copy of their data in a portable format. Consumers will also be able to opt out of the processing of personal information for targeted advertising, the sale of personal information, or profiling “in furtherance of decisions that produce legal effects or effects of similar significance.” Data controllers also will be required to obtain a consumer’s consent to process sensitive personal information or, in the case of a known child, obtain consent from the child’s parent or lawful guardian. Additionally, the Act requires opt-in consent for using the personal data of a youth 13 to 15 years old for targeted advertising or profiling. The Act makes clear that consent means “an affirmative act by means of which a consumer clearly and conspicuously communicates the consumer’s freely given, specific, informed and unambiguous assent to another person’s act or practice.” This does not include the use of an interface “that has the purpose or substantial effect of obtaining consent by obscuring, subverting or impairing the consumer’s autonomy, decision-making or choice.” Controllers that receive a consent revocation from a consumer must process the revocation within 15 days.
  • Controller responsibilities. Among the Act’s requirements, data controllers will be responsible for (i) responding to consumer requests within 45 days after receiving a request (a 45-day extension may be granted when reasonably necessary upon notice to the consumer); (ii) providing clear and meaningful privacy notices; (iii) disclosing to consumers when their personal data is sold to third parties or processed for targeted advertising, and informing consumers how they may opt out; (iv) limiting the collection of data to what is adequate, relevant, and reasonably necessary for a specified purpose and securing personal data from unauthorized access; (v) conducting and retaining data protection assessments where there is a heightened risk of harm and ensuring deidentified data cannot be associated with a consumer; and (vi) avoiding unlawful discrimination.
  • Data processing agreements. The Act stipulates that processors must follow a controller’s instructions and help meet the controller’s obligations concerning the processing of personal data. The Act also sets forth obligations relating to contracts between a controller and a processor. Processors that engage a subcontractor must ensure the subcontractor meets the processor’s obligations with respect to personal data under the processor’s contract with the controller. 
  • Private right of action and state attorney general enforcement. The Act does not provide a private right of action to consumers. Instead, the Oregon attorney general may investigate violations and seek civil penalties of no more than $7,500 per violation. Before initiating such action, the attorney general may grant the controller 30 days to cure the violation. 

The Act takes effect July 1, 2024.