SB642: Bill Text

SB642,,95 3. The processing of personal data for purposes of profiling, where such profiling presents a reasonably foreseeable risk of any of the following:

SB642,,96 a. Unfair or deceptive treatment of, or unlawful disparate impact on, consumers.

SB642,,97 b. Financial, physical, or reputational injury to consumers.

SB642,,98 c. Physical or other intrusion upon the solitude or seclusion, or the private affairs or concerns, of consumers, where such intrusion would be offensive to a reasonable person.

SB642,,99 d. Other substantial injury to consumers.

SB642,,100 4. The processing of sensitive data.

SB642,,101 5. Any processing activities involving personal data that present a heightened risk of harm to consumers.

SB642,,102 (b) Data protection assessments conducted under par. (a) shall identify and weigh the benefits that may flow, directly and indirectly, from the processing to the controller, the consumer, other stakeholders, and the public against the potential risks to the rights of the consumer associated with such processing, as mitigated by safeguards that can be employed by the controller to reduce such risks. The use of deidentified data and the reasonable expectations of consumers, as well as the context of the processing and the relationship between the controller and the consumer whose personal data will be processed, shall be factored into this assessment by the controller.

SB642,,103 (c) The attorney general may request, pursuant to a civil investigative demand issued under sub. (10) (a), that a controller disclose any data protection assessment that is relevant to an investigation conducted by the attorney general, and the controller shall make the data protection assessment available to the attorney general. The attorney general may evaluate the data protection assessment for compliance with the responsibilities set forth in sub. (3). Data protection assessments shall be confidential and not subject to the right of inspection and copying under s. 19.35 (1). The disclosure of a data protection assessment pursuant to a request from the attorney general shall not constitute a waiver of attorney-client privilege or work product protection with respect to the assessment and any information contained in the assessment.

SB642,,104 (d) A single data protection assessment may address a comparable set of processing operations that include similar activities.

SB642,,105 (e) Data protection assessments conducted by a controller for the purpose of compliance with other laws or regulations may comply under this section if the assessments have a reasonably comparable scope and effect.

SB642,,106 (f) Data protection assessment requirements shall apply to processing activities created or generated after January 1, 2024, and are not retroactive.

SB642,,107 (6) Processing deidentified data; exemptions. (a) A controller in possession of deidentified data shall do all of the following:

SB642,,108 1. Take reasonable measures to ensure that the data cannot be associated with an individual.

SB642,,109 2. Publicly commit to maintaining and using deidentified data without attempting to reidentify the data.

SB642,,110 3. Contractually obligate any recipients of the deidentified data to comply with all provisions of this section.

SB642,,111 (b) Nothing in this section shall be construed to require a controller or processor to do any of the following:

SB642,,112 1. Reidentify deidentified data or pseudonymous data.

SB642,,113 2. Maintain data in identifiable form.

SB642,,114 3. Collect, obtain, retain, or access any data or technology, in order to be capable of associating an authenticated consumer request with personal data.

SB642,,115 (c) Nothing in this section shall be construed to require a controller or processor to comply with an authenticated consumer rights request under sub. (2) if all of the following are true:

SB642,,116 1. The controller is not reasonably capable of associating the request with the personal data or it would be unreasonably burdensome for the controller to associate the request with the personal data.

SB642,,117 2. The controller does not use the personal data to recognize or respond to the specific consumer who is the subject of the personal data, or associate the personal data with other personal data about the same specific consumer.

SB642,,118 3. The controller does not sell the personal data to any 3rd party or otherwise voluntarily disclose the personal data to any 3rd party other than a processor, except as otherwise permitted in this subsection.

SB642,,119 (d) The consumer rights contained in subs. (2) (a) 1. to 4. and (3) shall not apply to pseudonymous data in cases where the controller is able to demonstrate any information necessary to identify the consumer is kept separately and is subject to effective technical and organizational controls that prevent the controller from accessing such information.

SB642,,120 (e) A controller that discloses pseudonymous data or deidentified data shall exercise reasonable oversight to monitor compliance with any contractual commitments to which the pseudonymous data or deidentified data is subject and shall take appropriate steps to address any breaches of those contractual commitments.

SB642,,121 (7) Limitations. (a) Nothing in this section shall be construed to restrict a controller’s or processor’s ability to do any of the following:

SB642,,122 1. Comply with federal, state, or local laws, rules, or regulations.

SB642,,123 2. Comply with a civil, criminal, or regulatory inquiry, investigation, subpoena, or summons by federal, state, local, or other governmental authorities.

SB642,,124 3. Cooperate with law enforcement agencies concerning conduct or activity that the controller or processor reasonably and in good faith believes may violate federal, state, or local laws, rules, or regulations.

SB642,,125 4. Investigate, establish, exercise, prepare for, or defend legal claims.

SB642,,126 5. Provide a product or service specifically requested by a consumer or the parent or guardian of a child, perform a contract to which the consumer is a party, including fulfilling the terms of a written warranty, or take steps at the request of the consumer prior to entering into a contract.

SB642,,127 6. Take immediate steps to protect an interest that is essential for the life or physical safety of the consumer or of another individual, and where the processing cannot be manifestly based on another legal basis.

SB642,,128 7. Prevent, detect, protect against, or respond to security incidents, identity theft, fraud, harassment, malicious or deceptive activities, or any illegal activity; preserve the integrity or security of systems; or investigate, report, or prosecute those responsible for any such action.

SB642,,129 8. Engage in public or peer-reviewed scientific or statistical research in the public interest that adheres to all other applicable ethics and privacy laws and is approved, monitored, and governed by an institutional review board, or similar independent oversight entities that determine all of the following:

SB642,,130 a. If the deletion of the information is likely to provide substantial benefits that do not exclusively accrue to the controller.

SB642,,131 b. The expected benefits of the research outweigh the privacy risks.

SB642,,132 c. If the controller has implemented reasonable safeguards to mitigate privacy risks associated with research, including any risks associated with reidentification.

SB642,,133 9. Assist another controller, processor, or 3rd party with any of the obligations under this section.

SB642,,134 (b) The obligations imposed on controllers or processors under this section shall not restrict a controller’s or processor’s ability to collect, use, or retain data to do any of the following:

SB642,,135 1. Conduct internal research to develop, improve, or repair products, services, or technology.

SB642,,136 2. Effectuate a product recall.

SB642,,137 3. Identify and repair technical errors that impair existing or intended functionality.

SB642,,138 4. Perform internal operations that are reasonably aligned with the expectations of the consumer or reasonably anticipated on the basis of the consumer’s existing relationship with the controller or are otherwise compatible with processing data in furtherance of the provision of a product or service specifically requested by a consumer or the performance of a contract to which the consumer is a party.

SB642,,139 (c) The obligations imposed on controllers or processors under this section shall not apply where compliance by the controller or processor with this section would violate an evidentiary privilege under ch. 905. Nothing in this section shall be construed to prevent a controller or processor from providing personal data concerning a consumer to a person covered by an evidentiary privilege under ch. 905 as part of a privileged communication.

SB642,,140 (d) A controller or processor that discloses personal data to a 3rd-party controller or processor, in compliance with the requirements of this section, is not in violation of this section if the 3rd-party controller or processor that receives and processes such personal data is in violation of this section, provided that, at the time of disclosing the personal data, the disclosing controller or processor did not have actual knowledge that the recipient intended to commit a violation. A 3rd-party controller or processor receiving personal data from a controller or processor in compliance with the requirements of this section is likewise not in violation of this section for the transgressions of the controller or processor from which it receives such personal data.

SB642,,141 (e) Nothing in this section shall be construed as an obligation imposed on controllers and processors that adversely affects the rights or freedoms of any persons, such as exercising the right of free speech pursuant to the First Amendment to the U.S. Constitution, or applies to the processing of personal data by a person in the course of a purely personal or household activity.

SB642,,142 (f) Personal data processed by a controller pursuant to this subsection may not be processed for any purpose other than those expressly listed in this subsection unless otherwise allowed by this section. Personal data processed by a controller pursuant to this subsection may be processed to the extent that such processing is both of the following:

SB642,,143 1. Reasonably necessary and proportionate to the purposes listed in this subsection.

SB642,,144 2. Adequate, relevant, and limited to what is necessary in relation to the specific purposes listed in this subsection. Personal data collected, used, or retained pursuant to par. (b) shall, where applicable, take into account the nature and purpose or purposes of such collection, use, or retention. Such data shall be subject to reasonable administrative, technical, and physical measures to protect the confidentiality, integrity, and accessibility of the personal data and to reduce reasonably foreseeable risks of harm to consumers relating to such collection, use, or retention of personal data.

SB642,,145 (g) If a controller processes personal data pursuant to an exemption in this section, the controller bears the burden of demonstrating that such processing qualifies for the exemption and complies with the requirements in par. (f).

SB642,,146 (h) Processing personal data for the purposes expressly identified in par. (a) shall not solely make an entity a controller with respect to such processing.

SB642,,147 (8) Scope; exemptions. (a) This section applies to persons that conduct business in this state or produce products or services that are targeted to residents of this state and who satisfy either of the following:

SB642,,148 1. During a calendar year, the person controls or processes personal data of at least 100,000 consumers.

SB642,,149 2. The person controls or processes personal data of at least 25,000 consumers and derives over 50 percent of gross revenue from the sale of personal data.

SB642,,150 (b) This section shall not apply to any of the following:

SB642,,151 1. An association, authority, board, department, commission, independent agency, institution, office, society, or other body in state or local government created or authorized to be created by the constitution or any law.

SB642,,152 2. Financial institutions, affiliates of financial institutions, or data subject to Title V of the federal Gramm-Leach-Bliley Act, 15 USC 6801 et seq.

SB642,,153 3. A covered entity or business associate governed by HIPAA or HITECH.

SB642,,154 4. A nonprofit organization.

SB642,,155 5. An institution of higher education.

SB642,,156 6. The entity under contract under s. 153.05 (2m) (a) and its contractors.

SB642,,157 7. The data organization under contract under s. 153.05 (2r) and its contractors.

SB642,,158 (c) The following information and data are exempt from this section:

SB642,,159 1. Any health care information or record that is governed by HIPAA, HITECH, Cures Act, or any other federal law governing the use, disclosure, access or creation of health care information or records, including any derived, identifiable, de-identifiable, confidential or non-confidential health care information or records as defined by such federal laws.

SB642,,160 2. Any health care information or record that is governed by s. 51.30, 146.816, 146.82, 146.83, or 146.84, chapter 153, or other Wisconsin law governing the use, disclosure, access or creation of health care information or records, including any derived, identifiable, de-identifiable, confidential or non-confidential health care information or records as defined by such Wisconsin laws.

SB642,,161 3. Any of the following:

SB642,,162 a. Identifiable private information for purposes of the federal policy for the protection of human subjects under 45 CFR Part 46.

SB642,,163 b. Identifiable private information that is otherwise information collected as part of human subjects research pursuant to the good clinical practice guidelines issued by the International Council for Harmonisation of Technical Requirements for Pharmaceuticals for Human Use or under 21 CFR Parts 50 and 56.

SB642,,164 c. Personal data used or shared in research conducted in accordance with the requirements set forth in this section, or other research conducted in accordance with applicable law.

SB642,,165 4. Information and documents created for purposes of the federal Health Care Quality Improvement Act of 1986, 42 USC 11101 et seq.

SB642,,166 5. Patient safety work product for purposes of the federal Patient Safety and Quality Improvement Act, 42 USC 299b-21 et seq.

SB642,,167 6. Information originating from, and intermingled to be indistinguishable with, or information treated in the same manner as information exempt under this paragraph.

SB642,,168 7. The collection, maintenance, disclosure, sale, communication, or use of any personal information bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living by a consumer reporting agency, furnisher, or user that provides information for use in a consumer report, and by a user of a consumer report, but only to the extent that such activity is regulated by and authorized under the federal Fair Credit Reporting Act, 15 USC 1681 et seq.

SB642,,169 8. Personal data collected, processed, sold, or disclosed in compliance with the federal Driver’s Privacy Protection Act of 1994, 18 USC 2721 et seq.

SB642,,170 9. Personal data regulated by the federal Family Educational Rights and Privacy Act, 20 USC 1232g et seq.

SB642,,171 10. Personal data collected, processed, sold, or disclosed in compliance with the federal Farm Credit Act, 12 USC 2001 et seq.

SB642,,172 11. Data processed or maintained for any of the following purposes:

SB642,,173 a. In the course of an individual applying to, employed by, or acting as an agent or independent contractor of a controller, processor, or 3rd party, to the extent that the data is collected and used within the context of that role.

SB642,,174 b. As the emergency contact information of an individual under this section used for emergency contact purposes.

SB642,,175 c. That is necessary to retain to administer benefits for another individual relating to an individual described in subd. 15. a. and used for the purposes of administering those benefits.

SB642,,176 12. Personal data collected, processed, and maintained in compliance with the Children’s Online Privacy Protection Act of 1998, 15 USC 6501 et seq., as amended, and regulations thereto.

SB642,,177 (9) Violations. (a) The attorney general shall have exclusive authority to enforce violations of this section.

SB642,,178 (b) 1. Prior to initiating any action under this section, the attorney general shall provide a controller or processor 30 days’ written notice identifying the specific provisions of this section the attorney general, on behalf of a consumer, alleges have been or are being violated. If within the 30 days the controller or processor cures the noticed violation and provides the attorney general an express written statement that the alleged violations have been cured and that no such further violations shall occur, no action for statutory damages shall be initiated against the controller or processor.

SB642,,179 2. If a controller or processor continues to violate this section in breach of an express written statement provided to the consumer under this section, the attorney general may initiate an action and seek damages for up to $7,500 for each violation under this section.

SB642,,180 (c) Nothing in this section shall be construed as providing the basis for, or be subject to, a private right of action to violations of this section or under any other law.

SB642,,181 (10) Enforcement. (a) The attorney general retains exclusive authority to enforce this section by bringing an action in the name of the state, or on behalf of persons residing in the state. The attorney general may issue a civil investigative demand to any controller or processor believed to be engaged in, or about to engage in, any violation of this section, and by the civil investigative demand the attorney general may compel the attendance of any officers or agents of the controller or processor, examine the officers or agents of the controller or processor under oath, require the production of any books or papers that the attorney general deems relevant or material to the inquiry, and issue written interrogatories to be answered by the officers or agents of the controller or processor.

SB642,,182 (b) Any controller or processor that violates this section is subject to an injunction and liable for a forfeiture of not more than $7,500 for each violation.

SB642,,183 (c) Notwithstanding s. 814.04 (1), the attorney general may recover reasonable expenses incurred in investigating and preparing the case, including attorney fees, of any action initiated under this section.