Revised Colorado Privacy Act rules: Enforcement won’t infringe on press freedom

By Jeffrey A. Roberts
CFOIC Executive Director

Draft rules implementing a new Colorado consumer privacy law have been revised to address news organizations’ concerns about how the law could affect journalism activities.

A new version, released by the office of Attorney General Phil Weiser on Dec. 21, explicitly says that nothing in the Colorado Privacy Act or the rules themselves gives the AG or a district attorney any enforcement powers “that would infringe upon rights protected by the United States Constitution or Colorado Constitution, including the right to freedom of speech or freedom of the press.”

The revised language also clarifies that the law exempts data maintained for noncommercial purposes, defined to include “political speech and journalism.”

Credit: iStock, anyaberkut

Enacted by the legislature in Senate Bill 21-190, the Colorado Privacy Act is designed to give consumers more control over how businesses use their personal information. Once the rules go into effect July 1, consumers will have the right to opt out of the sale and processing of their personal data for purposes such as targeted advertising. The law gives consumers the right to access, correct and delete personal data.    

Unlike similar laws enacted in California and Virginia, the Colorado law does not contain specific exemptions for journalism. That prompted written concerns submitted to the AG’s office in the fall by leaders of Colorado Public Radio, KMGH-TV, KUNC and Aspen Public Radio. Tim Regan-Porter, CEO of the Colorado Press Association, testified during a November rulemaking hearing.

“The lack of an exemption for newsgathering … will threaten the journalism that holds corporations, governments, politicians, criminals and other powerful people accountable,” wrote Dean Littleton, KMGH-TV’s general manager and vice president. “In the end, all Coloradans will suffer.”

Littleton and Stewart Vanderwilt, CPR’s president and CEO, worried about the law’s impact on journalists’ ability to gather data while reporting on matters of public concern.

The AG’s office also made changes to the rule’s definition of “publicly available information” following a letter from RELX Group, which owns LexisNexis and other data tools. As previously written, the rules exempted from the definition “inferences made exclusively from multiple independent sources of publicly available information.”

The sentence, which the AG deleted in the revised rules, raised “significant concerns regarding restrictions on free speech because it places unconstitutional limitations on the use of publicly available information under the First Amendment,” a RELX official commented. “Use of public records (is) constitutionally protected, and that protection extends to inferences made from public records.”

The definition of publicly available information not affected by the law now also includes “publicly available information that has been inextricably combined with non-publicly available personal data.” The AG added the word “inextricably” after RELX contended the rule “would significantly hamper the beneficial use of public records in almost all applications.”

Another hearing on the draft rules is scheduled for 10 a.m. Feb. 1. Additional written comments must be submitted by Jan. 18 to be considered for revisions at the hearing.

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