USA – WASHINGTON Trends and Developments Contributed by: Amy Weston, Eva Novick, Brian Esler and Lauren Fricke, Miller Nash LLP
Immediate priority checklist • Audit all website and app user flows for potential “dark patterns”. • Designate a point person responsible for respond - ing to consumer rights requests within the legally mandated timelines, and implement practical steps for verifying requestor identity and handling fraudu - lent rights requests. • Update breach response plans to include scenarios involving the broadened definition of health data. • Schedule annual privacy training for all employees, with specialised training for marketing and product development teams. • Conduct regular audits of security practices to establish a pattern of best practices. • Put in place regular, and no less frequently than annual, review of privacy notices and internal poli - cies. Conclusion: Building Trust as a Competitive Advantage The data privacy landscape in Washington for 2026 is complex, but also presents an opportunity. Organisa - tions that view privacy compliance merely as a legal burden will struggle with costs and litigation. Given the Attorney General’s enforcement posture, the availabil - ity of attorneys’ fees and treble damages, and evolv - ing expectations that businesses honour universal consumer rights to access, delete, correct and opt out of the sale of health data, companies face mate - rial exposure if they cannot demonstrate explainability, auditable consent, vendor oversight, and defensible design of privacy interfaces for AI-related and tradi - tional processing. Companies that proactively adopt transparent and respectful data practices will build deeper trust with their customers. This trust is becom - ing a measurable competitive differentiator. By invest - ing in robust privacy programmes now, companies are not just avoiding fines but are also future-proofing business operations, enhancing brand reputation and fostering lasting customer loyalty in an era where data stewardship is paramount.
Actionable Recommendations for 2026 Conduct a “Privacy Maturity Audit”
This goes beyond a data map to assess policies, ven - dor contracts, website user experience, and employee training against current enforcement priorities. Review retention and deletion schedules to ensure data mini - misation over time. Develop detailed, test incident response “playbooks” and conduct tabletop exer - cises. Consider routine privacy impact assessments for all new products, marketing initiatives and ven - dor onboarding to align with the evolving “reasona - bleness” standard. The goal is not perfection – it is prioritisation. Identify your single greatest compliance gap and draft a concrete remediation plan to address it immediately with defined ownership and timelines. Review your vendor contracts Next, revamp your vendor contracts. Ensure that every agreement with a service provider that touches personal data includes explicit requirements for: • assisting with consumer rights requests; Regulators increasingly treat vendor practices as an extension of the business itself, and enforcement actions reflect that reality. Although Washington does not have specific statutory requirements for vendor contracts outside the MHMDA, Washington busi - nesses can leverage broader requirements in other state privacy laws for a standard vendor contract framework. Design privacy interfaces defensively and transparently Implement clear, layered and consumer-friendly pri - vacy interfaces. Design your website and app privacy controls with the assumption that they will be exhibits in a court proceeding. Use plain language, make opt- out paths as easy as opt-in, and document all con - sumer choices meticulously. Well-designed interfaces are not just compliance tools – they are reputational safeguards. • mandatory breach notification; and • the right to audit vendor compliance.
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