While some state legislators are still putting away their holiday decorations, New Hampshire legislators introduced new data privacy legislation, New Hampshire House Bill 1680. The legislation is similar to the California Consumer Privacy Act (which we’ve written extensively about before, including here and here). It grants consumers access, portability, transparency, non-discrimination, deletion, and opt-out-of-sale rights (or opt-into-sale rights for minor consumers) with respect to their personal information.
Notably, NH HB 1680 does not reflect several of the amendments which partially mitigated the constitutional and operational concerns raised by the CCPA. For example, it regulates as personal information all information “capable” of being associated with a consumer or household, whereas California’s definition is now tied to information “reasonably capable” of being associated with a consumer or household. The NH legislation retains limitations on the scope of publicly available information that is excluded from the definition of personal information. By way of other examples, NH HB 1680 does not provide exceptions for employment or business-to-business related data.
There are also important differences with the California law. Notably, the New Hampshire bill would provide consumers with a private right of action in the event that personal information is (1) not encrypted and redacted, and (2) subject to unauthorized exfiltration that is the result of a business’s failure to maintain reasonable data security measures. This is a broader concept of a private right of action than the CCPA. In addition to not reflecting some of the clarifying amendments to the CCPA from September, the New Hampshire private right of action for data breaches is based on any personal information as defined under that privacy bill. In contrast, the CCPA provides a private right of action only if the information that is subject to unauthorized exfiltration is regulated by California’s data security law — a much smaller category of information that is limited to certain enumerated data elements.
New Hampshire’s is the first data privacy bill we have seen this season, but it’s worth noting that Virginia and Illinois have introduced their own bills. Additionally, several states, including Washington and New York, had proposed privacy bills in the 2019 legislative session. Stay tuned for more information.