The “Colorado Effect?” Status Check on Colorado’s Privacy Rulemaking

Colorado is set to formally enter a rulemaking process which may establish de facto interpretations for privacy protections across the United States. With the passage of the Colorado Privacy Act (CPA) in 2021, Colorado, along with Virginia, Utah, and Connecticut, became part of an emerging group of states adopting privacy laws that share a similar framework and many core definitions with a legislative model developed (though never enacted) in Washington State. However, while the general model of legislation seen in the CPA is similar to recently enacted state privacy laws, the CPA stands alone in providing authority to the state Attorney General to issue regulations. 

Because no other similar state law has provided for this type of interpretative authority, regulations issued by the Colorado Attorney General could have far-reaching implications for how both businesses and regulators in other jurisdictions come to interpret key state privacy rights and protections. Colorado’s pre-rulemaking process recently concluded, revealing a range of possible directions that formal rulemaking could take. Below, we assess key priorities and areas of significant divergence that have been brought into focus both through public comments from stakeholders and questions posed by the Attorney General.

The Rulemaking Process

The CPA grants broad discretionary rulemaking authority to the Colorado Attorney General to issue regulations to help implement the Act. In April 2022, Colorado Attorney General Phil Weiser released a set of pre-rulemaking considerations containing a series of questions for public comment. This document offered the first hints as to the specific

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