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Suppose a person living in Colorado is a registered member of a church. In this church, certain “blessings” are considered contingent on your membership. Membership is recorded on a digital system.

This church also considers donations to it a commandment.

It also has over 100,000 members.

Suppose this person wanted to officially leave the church and request that this membership data be deleted. Is the church in question obligated under the Colorado Privacy Act to comply with said request?

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  • No time for a full answer now, but the AG's FYI is coag.gov/resources/colorado-privacy-act and the law just took effect this past Saturday (obviously, no case law yet, but the statute and the rules related to it are in place).
    – ohwilleke
    Commented Jul 7, 2023 at 13:48
  • In almost all cases for these types of laws, there're provisions for when the business/other entity must keep (at least some of) the records for other reasons - receipts for donations for accounting or tax related purposes, for instance. There may be any number and types of records considered essential in some way or another - "right to be forgotten" laws are not absolute (not if well written, anyways). Commented Jul 8, 2023 at 2:09

1 Answer 1

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Probably not.

The Act applies to:

(1) EXCEPT AS SPECIFIED IN SUBSECTION (2) OF THIS SECTION, THIS PART 13 APPLIES TO A CONTROLLER THAT: (a) CONDUCTS BUSINESS IN COLORADO OR PRODUCES OR DELIVERS COMMERCIAL PRODUCTS OR SERVICES THAT ARE INTENTIONALLY TARGETED TO RESIDENTS OF COLORADO; AND (b) SATISFIES ONE OR BOTH OF THE FOLLOWING THRESHOLDS: (I) CONTROLS OR PROCESSES THE PERSONAL DATA OF ONE HUNDRED THOUSAND CONSUMERS OR MORE DURING A CALENDAR YEAR; OR (II) DERIVES REVENUE OR RECEIVES A DISCOUNT ON THE PRICE OF GOODS OR SERVICES FROM THE SALE OF PERSONAL DATA AND PROCESSES OR CONTROLS THE PERSONAL DATA OF TWENTY-FIVE THOUSAND CONSUMERS OR MORE.

Colo. Rev. Stat. § 6-1-1304(1).

The Rules contain the following related definition:

“Commercial product or service” as referred to in C.R.S. § 6-1-1304(1)(a) means a product or service bought, sold, leased, joined, provided, subscribed to, or delivered in exchange for monetary or other valuable consideration in the course of a Controller’s business, vocation, or occupation.

There is no case law on point, but generally speaking a house of worship or a church is not considered a business, so it is probably not within the scope of the Act.

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  • I think this is correct. Even if it weren't, though, the First Amendment would likely require the same outcome.
    – bdb484
    Commented Jul 7, 2023 at 20:38
  • @bdb484 Not convinced. Neutral stuff can apply to churches too.
    – ohwilleke
    Commented Jul 7, 2023 at 21:41
  • It must be both neutral and "generally applicable," or else it must satisfy strict scrutiny. Here, the law isn't generally applicable because it includes a whole list of exceptions, permitting some entities to do what religious entities may not. Tandon v. Newsom, 141 S. Ct. 1294, 1296 (2021) (“Government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise.”).
    – bdb484
    Commented Jul 7, 2023 at 22:37
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    Beyond that, I think telling a church who it may and may not keep on its membership rolls would trigger an Establishment Clause analysis, which would probably be far harsher.
    – bdb484
    Commented Jul 7, 2023 at 22:43
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    @bdb484 - Right to assembly is a far different thing than "must keep/remove them from a physical record of the membership". Besides which, here the balancing is between two different expressions of right to assembly - the other half is the member's desire to not be associated. Commented Jul 8, 2023 at 2:20

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