Three Shortcomings of Nevada’s Newly Amended Privacy Law

Kamran Salour
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Recently, Nevada became the latest state to enact heightened privacy protections for its residents when it announced an amendment to an existing law relating to Internet privacy. [NRS 603A.100]. In essence, the amendment, which is to take effect on October 1, 2019, prohibits an operator of an Internet website or online service to sell the covered information (i.e. personal information) of a Nevada resident upon request.

The amendment has three obvious shortcomings.

Shortcoming No. 1: “Opt-Out” Requirement

First, under the amended law, the default setting allows an operator to sell the personal information of a consumer. The prohibition only applies if the consumer submits a verified request directing the operator not to make any sale of his or her personal information. [NRS 603A.100, §2]

This presumes that Nevada consumers are aware that they have this right and that they will exercise it. This is a big presumption.

Shortcoming No. 2: “Compensation” Requirement

Second, the amended law defines “sale” narrowly. The term “sale” means …“the exchange of covered information for monetary consideration by the operator to a person for the person to license or sell the covered information to additional persons.” [NRS 603A.100, §1.6].

An operator can circumvent the sale prohibition by simply exchanging information to another person or entity for non-monetary consideration.

Shortcoming No. 3: “No Private Right of Action”

Third, the amended law does not establish a private right of action against an operator, under any circumstance. [NRS 603A.100, §7]. Instead, the Attorney General may initiate an appropriate legal proceeding and the district court may issue an injunction or civil penalties not to exceed $5000 per violation.

The lack of private right of action means that Nevada consumers must rely on the Attorney General to hold operators accountable under the newly amended statute; the consumers cannot enforce their rights on their own.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Kamran Salour, Callahan Blaine | Attorney Advertising

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