Privacy Lawyers for New Mexico

Online platforms can modify their terms of service and privacy policies without advance notice if: (1) Their terms explicitly allow such changes, and (2) Users continue using the platform after changes are made. However, modifications may still be challenged if they are unconscionable or violate privacy laws, particularly if they significantly impact user rights or data protection. While platforms may have the right to make unannounced changes, the enforceability depends on the specific modifications and their compliance with applicable regulations.

There are myriad laws that govern privacy. In the U.S. there are the U.S. Privacy Act, HIPPA for health info, GLBA for financial, COPPA protecting children, and now more States are adding privacy laws. In 2023 alone, new consumer privacy laws will be effective in California, Colorado, Connecticut, Utah, and Virginia. Doing business internationally? The GDPR in the EU is recognized as something of a gold standard for individual privacy. The GDPR created ongoing obligations for maintains and updating privacy implementation. Companies located anywhere, not just the EU, must appoint a Data Protection Officer (“DPO”) if they have to carry out large scale, regular and systematic monitoring of people, for example online behavior tracking or large scale processing of sensitive (special category) data or data relating to crimes and criminal convictions.

A Data Processing Agreement (DPA) is a legally binding document that governs the relationship between the data controller and data processor in compliance with data protection laws such as the General Data Protection Regulation (GDPR). Here are the key provisions that should be included: 1. Scope and Purpose • Clearly define the purpose of the data processing and the nature of the data being processed. • Specify the categories of data subjects (customers, employees). • Outline the types of personal data involved. 2. Roles and Responsibilities • Define the roles of the parties (controller vs. processor). • State that the processor will act only on the documented instructions of the controller. 3. Compliance with Laws • A commitment to comply with applicable data protection laws and regulations, such as the GDPR or CCPA. 4. Confidentiality • Ensure that the processor’s personnel are subject to confidentiality obligations. • Prohibit unauthorized access or sharing of data. 5. Security Measures • Require the processor to implement appropriate technical and organizational measures to protect personal data (encryption, access controls). • Include procedures for detecting and responding to data breaches. 6. Sub-processors • Outline conditions for engaging sub-processors ( prior authorization or notification). • Ensure sub-processors comply with the same data protection obligations. 7. Data Subject Rights • Require the processor to assist the controller in responding to data subject requests (access, correction, deletion). 8. Data Transfers • Specify the conditions for transferring personal data outside the European Economic Area (EEA) or other restricted jurisdictions. • Include safeguards such as Standard Contractual Clauses (SCCs) or Binding Corporate Rules (BCRs). 9. Data Breach Notification • Oblige the processor to notify the controller promptly in the event of a personal data breach. • Provide details on how incidents will be managed. 10. Audit Rights • Grant the controller or its appointed auditor the right to inspect and audit the processor’s compliance. 11. Retention and Deletion of Data • Specify the duration of processing. • Require the processor to delete or return personal data after the end of the contract or processing period. 12. Liability and Indemnification • Allocate liability for breaches or non-compliance. • Include indemnification provisions if appropriate. 13. Termination and Consequences • Address the conditions for terminating the DPA. • Define the post-termination obligations (data return or deletion). 14. Jurisdiction and Governing Law • Specify the governing law and jurisdiction for resolving disputes. 15. Annexes or Schedules • Include detailed annexes to provide additional information, such as: • A list of sub-processors. • A description of technical and organizational measures. • A record of processing activities. Legal Review Always consult a legal expert to ensure that the DPA aligns with the applicable laws and the specific needs of the parties involved.

You are smart to consider GDPR, but also should consider US Privacy Policies in connection with the agreement. There are several states the already have GDPR level of privacy policies and over 20 states with bills introduced as well. A well formed policy will consider the data collected, where it is stored and how it is transferred, who has access to the data, the purpose of the data for use in the app, the ability to sell or reuse the data for additional purposes, and when the data should be deleted. This process should be contemplated and consistent within employee manuals, data access procedures, and implemented in master services agreements across all vendors, subcontractors, and suppliers. One final note is that you need to practice what you write, because a published privacy policy that is not followed may be considered a deceptive trade practice by the FTC resulting in fines on top of the costs of a breach.

As an online business collecting customer data in Texas, you're right to be concerned about data protection compliance. Data privacy regulations depend on where your customers are and your volume of business. A Data Processing Agreement is a contract between a data controller (you, as the business owner) and a data processor (any third party that processes personal data on your behalf). It establishes the rights and obligations of each party regarding the processing of personal data. It helps ensure compliance with applicable data protection laws. It also discloses to your customers which companies are processing their data. Whether you need a DPA depends on several factors: Third-party services: If you use services like payment processors, cloud storage providers, email marketing platforms, or website hosting that access your customers' personal data, you likely need DPAs with these service providers. Applicable laws: While Texas doesn't have a comprehensive data privacy law like California's CCPA, it does have the new Texas Data Security and Privacy Act, which likely impacts you if your company earns 25%+ of its revenue from selling consumer data or hits other revenue thresholds. Laws in other states and in the EU also might apply. Industry standards: DPAs have become standard practice for demonstrating data protection compliance, regardless of strict legal requirements. Benefits of Implementing a DPA: Even if not strictly required by law in Texas, DPAs offer significant benefits: (1) clarify responsibilities between your business and service providers; (2) reduce legal liability through contractual protections; (3) increase customer trust by demonstrating a commitment to data protection; (4) preparation for evolving data protection laws; and (5) a potential competitive advantage over businesses without such protections. As data privacy regulations evolve, implementing DPAs now positions your business ahead of compliance requirements while building customer trust through demonstrated commitment to data protection. I use one in my practice. You should speak with an attorney who can provide a detailed DPA analysis based on your industry and customers.