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Maryland Online Data Privacy Act
Friday, May 24, 2024

On May 9, 2024, Governor Wes Moore signed the Maryland Online Data Privacy Act (MODPA) into law. MODPA applies to any person who conducts business in Maryland or provides products or services targeted to Maryland residents and, during the preceding calendar year:

  1. Controlled or processed the personal data of at least 35,000 consumers (excluding personal data solely for the purpose of completing a payment transaction); or
  2. Controlled or processed the personal data of at least 10,000 consumers and derived more than 20 percent of its gross revenue from the sale of personal data.

MODPA does not apply to financial institutions subject to Gramm-Leach-Bliley or registered national securities associations. It also contains exemptions for entities governed by HIPAA.

Under MODPA, consumers have the right to access their data, correct inaccuracies, request deletion, obtain a list of those who have received their personal data, and rights to opt-out of processing for targeted advertising, the sale of personal data, and profiling in furtherance of solely automated decisions. The data controller must provide this information to the consumer free of charge once during any 12-month period unless the requests are excessive, in which case the controller may charge a reasonable fee or decline to honor the request.

MODPA prohibits a controller – defined as “a person who determines the purpose and means of processing personal data” – from selling “sensitive data.” MODPA defines “sensitive data” to include genetic or biometric data, children’s personal data, and precise geolocation data. “Sensitive data” also means personal data that includes data revealing a consumer’s:

  • Racial or ethnic origin
  • Religious beliefs
  • Consumer health data
  • Sex life
  • Sexual orientation
  • Status as transgender or nonbinary
  • National origin, or
  • Citizenship or immigration status

A MODPA controller also may not process “personal data” in ways that violate discrimination laws. Under MODPA, “personal data” is any information that is linked or can be reasonably linked to an identified or identifiable consumer but not de-identified data or “publicly available information.” However, MODPA contains an exception if the processing is for (1) self-testing to prevent or mitigate unlawful discrimination; (2) diversifying an applicant, participant, or customer pool, or (3) a private club or group not open to the public.

MODPA has a data minimization requirement as well. Controllers must limit the collection of personal data to that which is reasonably necessary and proportionate to provide or maintain the specific product or service the consumer requested.

A violation of MODPA constitutes an unfair, abusive, or deceptive (UDAP) trade practice, which the Maryland Attorney General can prosecute. Each violation may incur a civil penalty of up to $10,000 for each violation and up to $25,000 for each repeated violation. Additionally, a person committing a UDAP violation is guilty of a misdemeanor, punishable by a fine of up to $1,000 or imprisonment of up to one year, or both. MODPA does not allow a consumer to pursue a UDAP claim for a MODPA violation, although it also does not prevent a consumer from pursuing any other legal remedies. MODPA will take effect October 1, 2025, with enforcement beginning April 1, 2026.

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