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c. Physical or other intrusion upon the solitude or seclusion, or the private
17affairs or concerns, of consumers, where such intrusion would be offensive to a
18reasonable person.
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d. Other substantial injury to consumers.
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4. The processing of sensitive data.
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5. Any processing activities involving personal data that present a heightened
22risk of harm to consumers.
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(b) Data protection assessments conducted under par. (a) shall identify and
24weigh the benefits that may flow, directly and indirectly, from the processing to the
25controller, the consumer, other stakeholders, and the public against the potential
1risks to the rights of the consumer associated with such processing, as mitigated by
2safeguards that can be employed by the controller to reduce such risks. The use of
3deidentified data and the reasonable expectations of consumers, as well as the
4context of the processing and the relationship between the controller and the
5consumer whose personal data will be processed, shall be factored into this
6assessment by the controller.
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(c) The attorney general may request, pursuant to a civil investigative demand
8issued under sub. (10) (a), that a controller disclose any data protection assessment
9that is relevant to an investigation conducted by the attorney general, and the
10controller shall make the data protection assessment available to the attorney
11general. The attorney general may evaluate the data protection assessment for
12compliance with the responsibilities set forth in sub. (3). Data protection
13assessments shall be confidential and not subject to the right of inspection and
14copying under s. 19.35 (1). The disclosure of a data protection assessment pursuant
15to a request from the attorney general shall not constitute a waiver of attorney-client
16privilege or work product protection with respect to the assessment and any
17information contained in the assessment.
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(d) A single data protection assessment may address a comparable set of
19processing operations that include similar activities.
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(e) Data protection assessments conducted by a controller for the purpose of
21compliance with other laws or regulations may comply under this section if the
22assessments have a reasonably comparable scope and effect.
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(f) Data protection assessment requirements shall apply to processing
24activities created or generated after January 1, 2024, and are not retroactive.
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1(6) Processing deidentified data; exemptions. (a) A controller in possession
2of deidentified data shall do all of the following:
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1. Take reasonable measures to ensure that the data cannot be associated with
4an individual.
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2. Publicly commit to maintaining and using deidentified data without
6attempting to reidentify the data.
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3. Contractually obligate any recipients of the deidentified data to comply with
8all provisions of this section.
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(b) Nothing in this section shall be construed to require a controller or processor
10to reidentify deidentified data or pseudonymous data; maintain data in identifiable
11form; or collect, obtain, retain, or access any data or technology, in order to be capable
12of associating an authenticated consumer request with personal data.
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(c) Nothing in this section shall be construed to require a controller or processor
14to comply with an authenticated consumer rights request under sub. (2) if all of the
15following apply:
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1. The controller is not reasonably capable of associating the request with the
17personal data or it would be unreasonably burdensome for the controller to associate
18the request with the personal data.
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2. The controller does not use the personal data to recognize or respond to the
20specific consumer who is the subject of the personal data, or associate the personal
21data with other personal data about the same specific consumer.
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3. The controller does not sell the personal data to any 3rd party or otherwise
23voluntarily disclose the personal data to any 3rd party other than a processor, except
24as otherwise permitted in this subsection.
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1(d) The consumer rights contained in subs. (2) (a) 1. to 4. and (3) shall not apply
2to pseudonymous data in cases where the controller is able to demonstrate any
3information necessary to identify the consumer is kept separately and is subject to
4effective technical and organizational controls that prevent the controller from
5accessing such information.
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(e) A controller that discloses pseudonymous data or deidentified data shall
7exercise reasonable oversight to monitor compliance with any contractual
8commitments to which the pseudonymous data or deidentified data is subject and
9shall take appropriate steps to address any breaches of those contractual
10commitments.
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11(7) Limitations. (a) Nothing in this section shall be construed to restrict a
12controller's or processor's ability to do any of the following:
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1. Comply with federal, state, or local laws, rules, or regulations.
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2. Comply with a civil, criminal, or regulatory inquiry, investigation, subpoena,
15or summons by federal, state, local, or other governmental authorities.
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3. Cooperate with law enforcement agencies concerning conduct or activity that
17the controller or processor reasonably and in good faith believes may violate federal,
18state, or local laws, rules, or regulations.
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4. Investigate, establish, exercise, prepare for, or defend legal claims.
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5. Provide a product or service specifically requested by a consumer, perform
21a contract to which the consumer is a party, including fulfilling the terms of a written
22warranty, or take steps at the request of the consumer prior to entering into a
23contract.
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16. Take immediate steps to protect an interest that is essential for the life or
2physical safety of the consumer or of another individual, and where the processing
3cannot be manifestly based on another legal basis.
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7. Prevent, detect, protect against, or respond to security incidents, identity
5theft, fraud, harassment, malicious or deceptive activities, or any illegal activity;
6preserve the integrity or security of systems; or investigate, report, or prosecute
7those responsible for any such action.
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8. Engage in public or peer-reviewed scientific or statistical research in the
9public interest that adheres to all other applicable ethics and privacy laws and is
10approved, monitored, and governed by an institutional review board, or similar
11independent oversight entities that determine all of the following:
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a. If the deletion of the information is likely to provide substantial benefits that
13do not exclusively accrue to the controller.
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b. The expected benefits of the research outweigh the privacy risks.
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c. If the controller has implemented reasonable safeguards to mitigate privacy
16risks associated with research, including any risks associated with reidentification.
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9. Assist another controller, processor, or 3rd party with any of the obligations
18under this section.
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(b) The obligations imposed on controllers or processors under this section shall
20not restrict a controller's or processor's ability to collect, use, or retain data to do any
21of the following:
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1. Conduct internal research to develop, improve, or repair products, services,
23or technology.
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2. Effectuate a product recall.
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13. Identify and repair technical errors that impair existing or intended
2functionality.
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4. Perform internal operations that are reasonably aligned with the
4expectations of the consumer or reasonably anticipated on the basis of the
5consumer's existing relationship with the controller or are otherwise compatible
6with processing data in furtherance of the provision of a product or service
7specifically requested by a consumer or the performance of a contract to which the
8consumer is a party.
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(c) The obligations imposed on controllers or processors under this section shall
10not apply where compliance by the controller or processor with this section would
11violate an evidentiary privilege under ch. 905. Nothing in this section shall be
12construed to prevent a controller or processor from providing personal data
13concerning a consumer to a person covered by an evidentiary privilege under ch. 905
14as part of a privileged communication.
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(d) A controller or processor that discloses personal data to a 3rd-party
16controller or processor, in compliance with the requirements of this section, is not in
17violation of this section if the 3rd-party controller or processor that receives and
18processes such personal data is in violation of this section, provided that, at the time
19of disclosing the personal data, the disclosing controller or processor did not have
20actual knowledge that the recipient intended to commit a violation. A 3rd-party
21controller or processor receiving personal data from a controller or processor in
22compliance with the requirements of this section is likewise not in violation of this
23section for the transgressions of the controller or processor from which it receives
24such personal data.
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1(e) Nothing in this section shall be construed as an obligation imposed on
2controllers and processors that adversely affects the rights or freedoms of any
3persons, such as exercising the right of free speech pursuant to the First Amendment
4to the U.S. Constitution, or applies to the processing of personal data by a person in
5the course of a purely personal or household activity.
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(f) Personal data processed by a controller pursuant to this subsection may not
7be processed for any purpose other than those expressly listed in this subsection
8unless otherwise allowed by this section. Personal data processed by a controller
9pursuant to this subsection may be processed to the extent that such processing is
10both of the following:
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1. Reasonably necessary and proportionate to the purposes listed in this
12subsection.
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2. Adequate, relevant, and limited to what is necessary in relation to the
14specific purposes listed in this subsection. Personal data collected, used, or retained
15pursuant to par. (b) shall, where applicable, take into account the nature and purpose
16or purposes of such collection, use, or retention. Such data shall be subject to
17reasonable administrative, technical, and physical measures to protect the
18confidentiality, integrity, and accessibility of the personal data and to reduce
19reasonably foreseeable risks of harm to consumers relating to such collection, use,
20or retention of personal data.
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(g) If a controller processes personal data pursuant to an exemption in this
22section, the controller bears the burden of demonstrating that such processing
23qualifies for the exemption and complies with the requirements in par. (f).
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(h) Processing personal data for the purposes expressly identified in par. (a)
25shall not solely make an entity a controller with respect to such processing.
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1(8) Scope; exemptions. (a) This section applies to persons that conduct
2business in this state or produce products or services that are targeted to residents
3of this state and who satisfy either of the following:
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1. During a calendar year, the person controls or processes personal data of at
5least 100,000 consumers.
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2. The person controls or processes personal data of at least 25,000 consumers
7and derives over 50 percent of gross revenue from the sale of personal data.
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(b) This section shall not apply to any of the following:
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1. An association, authority, board, department, commission, independent
10agency, institution, office, society, or other body in state or local government created
11or authorized to be created by the constitution or any law.
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2. Financial institutions or data subject to Title V of the federal
13Gramm-Leach-Bliley Act,
15 USC 6801 et seq.
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3. A covered entity or business associate governed by the privacy, security, and
15breach notification rules issued by the federal department of health and human
16services,
45 CFR Parts 160 and
164 established pursuant to the federal Health
17Insurance Portability and Accountability Act of 1996, and the federal Health
18Information Technology for Economic and Clinical Health Act.
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4. A nonprofit organization.
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5. An institution of higher education.
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(c) The following information and data are exempt from this section:
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1. Protected health information under the federal Health Insurance Portability
23and Accountability Act of 1996.
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2. Patient health care records, as defined in s. 146.81 (4).
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3. Treatment records, as defined in s. 51.30 (1) (b).
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14. Patient identifying information for purposes of
42 USC 290dd-2.
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5. Any of the following:
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a. Identifiable private information for purposes of the federal policy for the
4protection of human subjects under
45 CFR Part 46.
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b. Identifiable private information that is otherwise information collected as
6part of human subjects research pursuant to the good clinical practice guidelines
7issued by the International Council for Harmonisation of Technical Requirements
8for Pharmaceuticals for Human Use or under
21 CFR Parts 50 and
56.
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c. Personal data used or shared in research conducted in accordance with the
10requirements set forth in this section, or other research conducted in accordance with
11applicable law.
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6. Information and documents created for purposes of the federal Health Care
13Quality Improvement Act of 1986,
42 USC 11101 et seq.
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7. Patient safety work product for purposes of the federal Patient Safety and
15Quality Improvement Act,
42 USC 299b-21 et seq.
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8. Information derived from any of the health care-related information listed
17in this paragraph that is deidentified in accordance with the requirements for
18deidentification pursuant to the federal Health Insurance Portability and
19Accountability Act of 1996.
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9. Information originating from, and intermingled to be indistinguishable
21with, or information treated in the same manner as information exempt under this
22paragraph that is maintained by a covered entity or business associate as defined by
23the federal Health Insurance Portability and Accountability Act of 1996 or a program
24or a qualified service organization as defined by
42 USC 290dd-2.
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110. Information used only for public health activities and purposes as
2authorized by the federal Health Insurance Portability and Accountability Act of
31996.
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11. The collection, maintenance, disclosure, sale, communication, or use of any
5personal information bearing on a consumer's credit worthiness, credit standing,
6credit capacity, character, general reputation, personal characteristics, or mode of
7living by a consumer reporting agency, furnisher, or user that provides information
8for use in a consumer report, and by a user of a consumer report, but only to the extent
9that such activity is regulated by and authorized under the federal Fair Credit
10Reporting Act,
15 USC 1681 et seq.
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12. Personal data collected, processed, sold, or disclosed in compliance with the
12federal Driver's Privacy Protection Act of 1994,
18 USC 2721 et seq.
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13. Personal data regulated by the federal Family Educational Rights and
14Privacy Act,
20 USC 1232g et seq.
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14. Personal data collected, processed, sold, or disclosed in compliance with the
16federal Farm Credit Act,
12 USC 2001 et seq.
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15. Data processed or maintained for any of the following purposes:
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a. In the course of an individual applying to, employed by, or acting as an agent
19or independent contractor of a controller, processor, or 3rd party, to the extent that
20the data is collected and used within the context of that role.
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b. As the emergency contact information of an individual under this section
22used for emergency contact purposes.
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c. That is necessary to retain to administer benefits for another individual
24relating to an individual described in subd. 15. a. and used for the purposes of
25administering those benefits.
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1(d) Controllers and processors that comply with the verifiable parental consent
2requirements of the Children's Online Privacy Protection Act,
15 USC 6501 et seq.,
3shall be deemed compliant with any obligation to obtain parental consent under this
4section.
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5(9) Violations. (a) The attorney general shall have exclusive authority to
6enforce violations of this section.
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(b) 1. Prior to initiating any action under this section, the attorney general shall
8provide a controller or processor 30 days' written notice identifying the specific
9provisions of this section the attorney general, on behalf of a consumer, alleges have
10been or are being violated. If within the 30 days the controller or processor cures the
11noticed violation and provides the attorney general an express written statement
12that the alleged violations have been cured and that no further violations shall occur,
13no action for statutory damages shall be initiated against the controller or processor.
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2. If a controller or processor continues to violate this section in breach of an
15express written statement provided to the consumer under this section, the attorney
16general may initiate an action and seek damages for up to $7,500 for each violation
17under this section.
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(c) Nothing in this section shall be construed as providing the basis for, or be
19subject to, a private right of action to violations of this section or under any other law.
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20(10) Enforcement. (a) The attorney general retains exclusive authority to
21enforce this section by bringing an action in the name of the state, or on behalf of
22persons residing in the state. The attorney general may issue a civil investigative
23demand to any controller or processor believed to be engaged in, or about to engage
24in, any violation of this section, and by the civil investigative demand the attorney
25general may compel the attendance of any officers or agents of the controller or
1processor, examine the officers or agents of the controller or processor under oath,
2require the production of any books or papers that the attorney general deems
3relevant or material to the inquiry, and issue written interrogatories to be answered
4by the officers or agents of the controller or processor.
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(b) Any controller or processor that violates this section is subject to an
6injunction and liable for a forfeiture of not more than $7,500 for each violation.
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(c) Notwithstanding s. 814.04 (1), the attorney general may recover reasonable
8expenses incurred in investigating and preparing the case, including attorney fees,
9of any action initiated under this section.
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10(11) Local preemption. No city, village, town, or county may enact or enforce
11an ordinance that regulates the collection, processing, or sale of personal data.
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12Section
2.
Effective date.
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(1)
This act takes effect on January 1, 2024.