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Kentucky Consumer Privacy Act joins US privacy landscape
The state follows New Jersey and New Hampshire in passing comprehensive privacy legislation in 2024
Alexis Kateifides
Director, Regulatory Intelligence
April 8, 2024
On April 4, 2024, the Kentucky Consumer Privacy Act (KCPA) was signed into law by the Governor of Kentucky. The law becomes the third passed in the United States in 2024 following New Jersey and New Hampshire and will take effect on January 1, 2026.
The KCPA will introduce the requirement for Data Protection Impact Assessments (DPIAs) for certain processing activities as well as a range of consumer rights, and opt-in consent for processing sensitive data, among other things. Continue reading this blog to learn more about some of the key requirements of the KCPA.
Who does the Kentucky Consumer Privacy Act (KCPA) apply to?
The KCPA will apply to businesses that operate in Kentucky or that produce products or services that are targeted to residents of Kentucky. For the KCPA to be applicable, businesses must also meet an application threshold where, during a calendar year, they control or process personal data of at least:
100,000 consumers
OR
25,000 consumers and derive over 50% of gross revenue from the sale of personal data
There are a range of organizational exemptions to the KCPA which must be considered. The law will not apply to entities including, but not limited to:
City, state agency or any political subdivision of Kentucky
Financial institutions, their affiliates, or data subject to the Gramm-Leach-Bliley Act (GLBA)
Covered entities or business associates pursuant to the Health Insurance Portability and Accountability Act (HIPAA)
Non-profit organizations
Institutions of higher education
What are the key requirements of the KCPA?
The KCPA mirrors many requirements found across existing state privacy laws in the US. The law includes a range of consumer rights, conditions for valid consent including opt-in consent for sensitive data, and rules for performing DPIAs.
Consumer rights
As with most modern privacy laws, the KCPA offers consumers a wide range of rights to exercise in relation to their personal information. In the case of a child, a parent or guardian can exercise these rights on their behalf.
The rights outlined by the KCPA include:
The right to confirm processing
The right to access
The right to correction
The right to deletion
The right to data portability
The right to opt out of:
The sale of personal data
Profiling
Targeted advertising
Organizations will have 45 days to respond to a consumer rights request with the possibility of a 45-day extension where reasonable. Organizations will also have 45 days to inform consumers of a declined request as well as the justification for declining the request.
Consent
Under the KCPA, consent is defined as “a clear affirmative act signifying a consumer's freely given, specific, informed, and unambiguous agreement to process personal data relating to the consumer.” This can be given via a written statement, electronic means, or another unambiguous affirmative action.
Furthermore, processing sensitive data – which includes, but not limited to, information relating to racial or ethnic origin, religious beliefs, mental or physical health diagnosis, sexual orientation, or citizenship or immigration status – operates on an opt-in basis, meaning that organizations must obtain consent from the individual prior to processing.
Privacy notices
Organizations will be required to provide consumers with “a reasonably accessible, clear, and meaningful privacy notice”. Such disclosures should include information describing:
The categories of personal data
The purpose for processing
How consumers can exercise their rights
How a consumer can appeal an organization’s decision to refuse a consumer rights request
The categories of personal data shared with third parties
The categories of third parties
Data Protection Impact Assessments
Under the KCPA, organizations will be required to conduct and document DPIAs for specific processing activities. These include:
Processing for targeted advertising
The sale of personal data
Processing for profiling, where the profiling presents a reasonably foreseeable risk of:
Unfair or deceptive treatment of consumers
Financial, physical, or reputational injury to consumers
Intrusions on the private affairs or concerns of consumers
Processing sensitive data
Processing that presents a heightened risk of harm to consumers
Like other US state privacy laws, a DPIA under the KCPA should identify and weigh the benefits of the processing against the potential risks to the consumer. Additionally, a single Data Protection Impact Assessment (DPIA) can fulfill this requirement for a group of similar processing activities. This is true if these activities include comparable assessments conducted in accordance with other laws and if those assessments have a scope and effect that are reasonably equivalent. The data protection assessment requirement will only apply to processing activities created on or after June 1, 2026.
Enforcement and penalties
The Kentucky Attorney General will have the sole authority to enforce violations of the KCPA and will provide organizations a 30-day cure period to remedy violations of the law. Failure to remedy violations within 30 days can result in monetary penalties of up to $7,500 per violation. Money accrued via such penalties will be deposited into a Consumer Privacy Fund. There is no private right of action.
Next steps and how to prepare for the KCPA
The Kentucky Consumer Privacy Act will take effect on January 1, 2026, giving organizations a little under two years to prepare for its requirements. Ensuring your consumer rights request processes and privacy notices align with the obligations of the KCPA will be a good starting place for organizations needing to comply with the law. Furthermore, ensuring your data protection assessment processes match the KCPA’s requirements ahead of June 1, 2026 can be seen as a best practice although not an immediate priority.
Learn more about how the OneTrust Privacy & Data Governance cloud can help you to get your privacy program up to speed with the KCPA.
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