Consumer rights are front and centre across all three laws
The Florida Digital Bill of Rights (FDBR), Oregon Consumer Privacy Act (OCPA), and Texas Data Privacy and Security Act (TDPSA) grant consumers similar rights.
Access : Consumers can access their personal data held by businesses.
Correction : Consumers can correct inaccurate data.
Deletion : Consumers may request data deletion.
Opt-Out : Consumers can opt-out of the sale of their personal data and targeted advertising.
Oregon Consumer Privacy Act (OCPA)
The Oregon Consumer Privacy Act (OCPA), signed into law on June 23, 2023, and effective as of July 1, 2024, grants Oregonians new rights regarding their personal data and imposes obligations on businesses. Starting July 1, 2025, authorities will enforce provisions that require data protection assessments, and businesses must recognize universal opt-out mechanisms by January 1, 2026. In Oregon, the OCPA applies to business that :
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Either conduct business in Oregon or offer products and services to Oregon residents
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Control or process the personal data of 100,000 consumers or more, or
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Control or process the data of 25,000 or more consumers while receiving over 25% of their gross revenues from selling personal data.
Exemptions include public bodies like state and local governments, financial institutions, and insurers that operate under specific financial regulations. The law also excludes protected health information covered by HIPAA and other specific federal regulations.
Business obligations
Data Protection Assessments : Businesses must conduct data protection assessments for high-risk processing activities, such as those involving sensitive data or targeting children.
Consent for Sensitive Data : Businesses must secure explicit consent before collecting, processing, or selling sensitive personal data, such as racial or ethnic origin, religious beliefs, health information, biometric data, and geolocation.
Universal Opt-out : Starting January 1, 2025, businesses must acknowledge universal opt-out mechanisms, like the Global Privacy Control, that allow consumers to opt out of data collection and processing activities.
Enforcement
The Oregon Attorney General can issue fines up to $7,500 per violation. There is no private right of action.
Unique characteristics of the OCPA
The OCPA differs from other state privacy laws by requiring affirmative opt-in consent for processing sensitive and children’s data, and by including nonprofit organisations under its scope. It also requires global browser opt-out mechanisms starting in 2026.
Florida Digital Bill of Rights (FDBR)
The Florida Digital Bill of Rights (FDBR) became law on June 6, 2023, and it came into effect on July 1, 2024. This law targets businesses with substantial operations or revenues tied to digital activities and seeks to protect the personal data of Florida residents by granting them greater control over their information and imposing stricter obligations on businesses. It applies to entities that :
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Conduct business in Florida or provide products or services targeting Florida residents,
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Have annual global gross revenues exceeding $1 billion,
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Receive 50% or more of their revenues from digital advertising or operate significant digital platforms such as app stores or smart speakers with virtual assistants.
Exemptions include governmental entities, nonprofits, financial institutions covered by the Gramm-Leach-Bliley Act, and entities covered by HIPAA.
Business obligations
Data Security Measures : Companies are required to implement reasonable data security measures to protect personal data from unauthorised access and breaches.
Handling Sensitive Data : Explicit consent is required for processing sensitive data, which includes information like racial or ethnic origin, religious beliefs, and biometric data.
Non-Discrimination : Entities must ensure they do not discriminate against consumers who exercise their privacy rights.
Data Minimisation : Businesses must collect only necessary data.
Vendor Management : Businesses must ensure that their processors and vendors also comply with the FDBR, regarding the secure handling and processing of personal data.
Enforcement
The Florida Attorney General can impose fines of up to $50,000 per violation, with higher penalties for intentional breaches.
Unique characteristics of the FDBR
Unlike broader privacy laws such as the California Consumer Privacy Act (CCPA), which apply to a wider range of businesses based on lower revenue thresholds and the volume of data processed, the FDBR distinguishes itself by targeting large-scale businesses with substantial revenues from digital advertising. The FDBR also emphasises specific consumer rights related to modern digital interactions, reflecting the evolving landscape of online privacy concerns.
Texas Data Privacy and Security Act (TDPSA)
The Texas Data Privacy and Security Act (TDPSA), signed into law on June 16, 2023, and effective as of July 1, 2024, enhances data protection for Texas residents. The TDPSA applies to entities that :
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Conduct business in Texas or offer products or services to Texas residents.
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Engage in processing or selling personal data.
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Do not fall under the classification of small businesses according to the U.S. Small Business Administration’s criteria, which usually involve employee numbers or average annual receipts.
The law excludes state agencies, political subdivisions, financial institutions compliant with the Gramm-Leach-Bliley Act, and entities compliant with HIPAA.
Business obligations
Data Protection Assessments : Businesses must conduct data protection assessments for processing activities that pose a heightened risk of harm to consumers, such as processing for targeted advertising, selling personal data, or profiling.
Consent for Sensitive Data : Businesses must get explicit consent before collecting, processing, or selling sensitive personal data, such as racial or ethnic origin, religious beliefs, health information, biometric data, and geolocation.
Companies must have adequate data security practices based on the personal information they handle.
Data Subject Access Requests (DSARs) : Businesses must respond to consumer requests regarding their personal data (e.g., access, correction, deletion) without undue delay, but no later than 45 days after receipt of the request.
Sale of Data : If businesses sell personal data, they must disclose these practices to consumers and provide them with an option to opt out.
Universal Opt-Out Compliance : Starting January 1, 2025, businesses must recognise universal opt-out mechanisms like the Global Privacy Control, enabling consumers to opt out of data collection and processing activities.
Enforcement
The Texas Attorney General can impose fines up to $25,000 per violation. There is no private right of action.
Unique characteristics of the TDPSA
The TDPSA stands out for its small business carve-out, lack of specific thresholds based on revenue or data volume, and requirements for recognising universal opt-out mechanisms starting in 2025. It also mandates consent for processing sensitive data and includes specific measures for data protection assessments and privacy notices.