Montana Consumer Data Privacy Act (MCDPA) 

Who is excluded from compliance with the Montana Consumer Data Privacy Act? 

• The Montana Consumer Data Privacy Act (MCDPA)  excludes several types of entities and of data as follows: 

  • government entities; 
  • nonprofit organizations;
  • institutions of higher education;
  • registered securities associations as regulated by the Federal Securities Exchange Act of 1934;
  • financial institutions or their affiliates regulated by Title V of the Gramm-Leach-Bliley Act;
  • entities or their business associates covered by HIPAA;
  • protected health information covered by HIPAA;
  • identifiable private information regulated by federal and state laws; 
  • personal information covered by and/or processed as mandated by laws such as the Driver's Privacy Protection Act of 1994, the Family Educational Rights and Privacy Act of 1974, the Farm Credit Act of 1993, or the Airline Deregulation Act of 1978 
  • personal information related to a consumer’s credit details;
  • personal information processed in connection with employment or employment related benefits.
  
  
  

How can I keep my organization compliant with the Montana Consumer Data Privacy Act? 

There are several controller obligations under the Montana Consumer Data Privacy Act, meaning that you are required to do the following: 

• limit the collection of personal data to what is adequate, relevant, and reasonably necessary in relation to the purposes for which you process personal data;
• establish, implement, and maintain reasonable administrative, technical, and physical data security practices to protect the confidentiality, integrity, and accessibility of personal data appropriate to the volume and nature of the personal data at issue; and
• provide an effective mechanism for a consumer to revoke their consent; the mechanism has to be at least as easy as the mechanism by which they provided their consent;
• on revocation of the consent, cease to process the personal data as soon as practicable, but not later than 45 days after the receipt of the request;
• provide consumers with a reasonably accessible, clear, and meaningful privacy notice that includes:
  • the categories of personal data you process;
  • the purpose(s) for processing personal data;
  • the categories of personal data that you share with third parties, and the categories of third parties you share personal data with, if any;
  • an active e-mail address or other mechanism that the consumer may use to contact you;
  • a description of how consumers may exercise their rights, including how a consumer may appeal your decision regarding their consumer request.
• establish and describe in your privacy notice one or more secure and reliable means for consumers to submit a request to exercise their consumer rights considering the ways in which consumers normally interact with you, the need for secure and reliable communication of consumer requests, and your ability to verify the identity of the consumer making the request. As regards identity verification, you are not allowed to require a consumer to create a new account to exercise consumer rights but may require a consumer to use an existing account.

In addition to these, you are restricted from doing the following: 

• except as otherwise provided in the law, you cannot process personal data for purposes that are not reasonably necessary to or compatible with the disclosed purposes for which you process personal data unless you obtain the consumer's consent;
• processing sensitive data of a consumer without obtaining their consent or, in the case of the processing of sensitive data concerning a known child, without processing the sensitive data in accordance with the Children's Online Privacy Protection Act of 1998;
• processing personal data in violation of the laws of Montana and of federal laws that prohibit you from unlawfully discriminating against consumers;
• processing of personal data of a consumer for the purposes of targeted advertising or selling the consumer's personal data without their consent under circumstances in which you have actual knowledge that the consumer is at least 13 years of age but younger than 16 years of age; 
• discriminating against a consumer for exercising any of their consumer rights, including denying goods or services, charging different prices or rates for goods or services, or providing a different level of quality of goods or services.

Processor duties under the Montana Consumer Data Privacy Act (MCDPA) require that as a processor, you adhere to a controller's instructions and assist the controller in meeting their obligations. Your personal data processing activity done on behalf of the controller has to be governed by a contract between yourself and the controller, which must be “binding and clearly set forth instructions for processing data, the nature and purpose of processing, the type of data subject to processing, the duration of processing, and the rights and obligations of both parties.”

In addition to the above obligations, as a controller you are required to conduct and document a data protection assessment for each of your processing activities that present a heightened risk of harm to consumers, which is understood as: 

• “the processing of personal data for the purposes of targeted advertising;
• the sale of personal data;
• the processing of personal data for the purposes of profiling in which the profiling presents a foreseeable risk of:
  • unfair or deceptive treatment of or unlawful disparate impact on consumers;
  • financial, physical, or reputational injury to consumers;
  • a physical or other form of intrusion on the solitude or seclusion or the private affairs or concerns of consumers in which the intrusion would be offensive to a reasonable person; or
• other substantial injury to consumers; and
• the processing of sensitive data.”

Another significant obligation of data controllers relates to universal opt out mechanisms. Just like several other consumer privacy laws across the United States, Montana grants consumers the right to designate another person to serve as their authorized agent and act on their behalf to opt out of the processing of personal data for one or more of the purposes of targeted advertising; the sale of the consumer's personal data; or profiling in furtherance of solely automated decisions that produce legal or similarly significant effects concerning the consumer. Said authorized agent can be designated “by way of a technology, including but not limited to an internet link or a browser setting, browser extension, or global device setting indicating a customer's intent to opt out of such processing,” i.e. GPC signals, and as a data controller you have to comply with an opt-out request received from an authorized agent if you are able to verify, with commercially reasonable effort, the identity of the consumer and the authorized agent's authority to act on the consumer's behalf.

The opt out methods mandated by the Montana Consumer Data Privacy Act (MCDPA) have to do the following: 

• provide a clear and conspicuous link on your internet website to an internet web page that enables a consumer, or an agent of the consumer, to opt out of the targeted advertising or sale of personal data; and
• no later than January 1, 2025, allow a consumer to opt out of any processing of their personal data for the purposes of targeted advertising, or any sale of such personal data through an opt-out preference signal sent with their (the consumer's) consent, to the controller by a platform, technology, or mechanism that:
  • cannot unfairly disadvantage another controller;
  • cannot make use of a default setting, instead requiring consumers to make an affirmative, freely given and unambiguous choice to opt out of any processing of their personal data; 
  • has to be consumer-friendly and easy to use by the average consumer;
  • has to be consistent with any federal or state law or regulation; and
  • has to allow you to accurately determine whether the consumer is a resident of Montana and whether they have made a legitimate request to opt out of any sale of personal data or targeted advertising. 

What data access rights does the Montana Consumer Data Privacy Act grant? 

Under the Montana Consumer Data Privacy Act (MCDPA), consumers have to be allowed to do the following:

• confirm whether you are processing their personal data and access the personal data, unless such confirmation or access would require you to reveal a trade secret;
• correct inaccuracies in their personal data, considering the nature of the personal data and the purposes of the processing of the consumer's personal data;
• delete personal data;
• obtain a copy of their personal data previously provided to you in a portable and, to the extent technically feasible, readily usable format that allows them to transmit the personal data to another controller without hindrance when the processing is carried out by automated means, provided that you are not required to reveal any trade secret; 
• opt out of the processing of their personal data for the purposes of:
  • targeted advertising;
  • the sale of the consumer's personal data;
  • profiling in furtherance of solely automated decisions that produce legal or similarly significant effects concerning the consumer.

Consequently, similar to other US privacy laws, consumers have the following rights under Montana’s Consumer Data Privacy Act: 

• The Right to Know
• The Right to Access
• The Right to Correct
• The Right to Delete
• The Right to Data Portability
• The Right to Opt Out of personal data processing for the purposes of targeted advertising, the sale of personal data, or profiling in furtherance of a decision that produces a legal or similarly significant effect concerning the consumer.

How to address data subject access requests under the Montana Consumer Data Privacy Act?

The Montana Consumer Data Privacy Act mandates a period of 45 days for replying to a consumer request, which can be extended by an additional 45 days “when reasonably necessary, considering the complexity and number of the consumer's requests,” provided you inform the consumer of the extension within the initial 45-day response period and the reason for the extension.

If you refuse to act on a consumer request, you must inform the consumer “without undue delay, but not later than 45 days after receipt of the request, of the justification for declining to act and provide instructions for how to appeal the decision.” Any information provided in response to a consumer request has to be provided free of charge, once for each consumer during any 12-month period; however, if a consumer’s requests are “manifestly unfounded, excessive, technically infeasible, or repetitive,” you may charge “a reasonable fee to cover the administrative costs of complying with the request or decline to act on the request,” but bear the responsibility of demonstrating that the consumer’s requests were unfounded, excessive, technically infeasible, or repetitive.

Before answering the consumer’s request you have to authenticate this and if you are unable to do so, “using commercially reasonable efforts,” then you are not required to comply with the request and you have to inform the consumer that you are unable to authenticate their request until they provide additional information “reasonably necessary to authenticate the consumer and the consumer's request to exercise the consumer's rights.”

In the case of an opt-out request, you may not be required to authenticate this type of request and you may deny such a request if you have a “good faith, reasonable, and documented belief that the request is fraudulent” but you must inform the person that sent the request that you believe the request is fraudulent and that you cannot comply with the request.

You are also required to establish a process for a consumer to appeal your refusal to act on a request within a reasonable period after the consumer's receipt of the decision. According to the text of Montana’s privacy law, “the appeal process must be conspicuously available and like the process for submitting requests to initiate action” and no later than 60 days after receipt of an appeal, you have to inform the consumer in writing of any action taken or not taken in response to the appeal, including a written explanation of the reasons for the decisions. If the appeal is denied, you have to also provide the consumer with an online mechanism, if available, or other method through which the consumer may contact the Attorney General to submit a complaint. 

Enforcement and penalties

The enforcing authority of the Montana Consumer Data Privacy Act (MCDPA)  is the Attorney General. Prior to initiating any action, the AG will issue a notice of violation to the controller allowing for a 60 day cure period, after which “if the controller fails to correct the violation within 60 days of receipt of the notice of violation, the attorney general may bring an action pursuant to this section,” but there is no monetary value mentioned by the text of the law for violation. Also noteworthy is that the 60 day cure period will expire April 1, 2026, which means that after this date the Attorney General will not have to provide any notice of violation and will be able to pursue enforcement right away. 

Data Subject Rights - GDPR vs. the Montana Consumer Data Privacy Act

FAQs about the Montana Consumer Data Privacy Act