SB642: Bill Text

SB642,,47 (y) “Third party” means a person or 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, other than a consumer, controller, processor, or an affiliate of the processor or the controller.

SB642,,48 (z) “Trade secret” has the meaning given in s. 134.90.

SB642,,49 (2) Personal data rights; consumers. (a) A consumer may invoke the consumer rights authorized under this subsection at any time by submitting a request to a controller specifying the consumer rights the consumer wishes to invoke. A known child’s parent or legal guardian may invoke such consumer rights on behalf of the child regarding processing personal data belonging to the known child. A controller shall comply with an authenticated consumer request to exercise any of the following rights:

SB642,,50 1. To confirm whether or not a controller is processing the consumer’s personal data and to access such personal data, unless such confirmation or access would require the controller to reveal a trade secret.

SB642,,51 2. To correct inaccuracies in the consumer’s personal data, taking into account the nature of the personal data and the purposes of the processing of the consumer’s personal data.

SB642,,52 3. To delete personal data provided by or obtained about the consumer.

SB642,,53 4. To obtain a copy of the consumer’s personal data that the consumer previously provided to the controller in a portable and, to the extent technically feasible, readily usable format that allows the consumer to transmit the data to another controller without hindrance, where the processing is carried out by automated means, provided such controller shall not be required to reveal any trade secret.

SB642,,54 5. To opt out of the processing of the personal data for purposes of targeted advertising, the sale of personal data, or profiling in furtherance of decisions that produce legal or similarly significant effects concerning the consumer.

SB642,,55 (b) 1. Except as otherwise provided in this section, a controller shall comply with a request by a consumer to exercise the consumer rights authorized under par. (a).

SB642,,56 2. A controller shall respond to a consumer without undue delay, but in all cases within 45 days of receipt of a request submitted under par. (a). The response period may be extended once by 45 additional days when reasonably necessary, taking into account the complexity and number of the consumer’s requests, so long as the controller informs the consumer of any such extension within the initial 45-day response period, together with the reason for the extension.

SB642,,57 3. If a controller declines to take action regarding a consumer’s request, the controller shall inform the consumer without undue delay, but in all cases and at the latest within 45 days of receipt of the request, of the justification for declining to take action and instructions for how to appeal the decision under par. (c).

SB642,,58 4. Information provided in response to a consumer request shall be provided by a controller free of charge, once annually per consumer. If requests from a consumer are manifestly unfounded, technically infeasible, excessive, or repetitive, the controller may charge the consumer a reasonable fee to cover the administrative costs of complying with the request or decline to act on the request. The controller bears the burden of demonstrating the manifestly unfounded, technically infeasible, excessive, or repetitive nature of the request.

SB642,,59 5. If a controller is unable to authenticate the request using commercially reasonable efforts, the controller may not be required to comply with a request to initiate an action under par. (a) and may request that the consumer provide additional information reasonably necessary to authenticate the consumer and the consumer’s request.

SB642,,60 6. A controller that has obtained personal data about a consumer from a source other than the consumer shall be deemed in compliance with a consumer’s request to delete the personal data under par. (a) 3. by doing any of the following:

SB642,,61 a. Deleting the personal data, retaining a record of the request and the minimum data necessary to ensure the consumer’s personal data remains deleted from the controller’s records, and not using the retained data for any other purpose.

SB642,,62 b. Not processing the consumer’s personal data except as otherwise authorized under this section.

SB642,,63 (c) A controller shall establish a process for a consumer to appeal the controller’s refusal to take action on a request within a reasonable period of time after the consumer’s receipt of the decision pursuant to par. (b) 3. The appeal process shall be conspicuously available and similar to the process for submitting requests to initiate action under par. (a). Within 60 days of receipt of an appeal, a controller shall 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, the controller shall 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.

SB642,,64 (3) Data controller responsibilities; transparency. (a) 1. A controller shall limit the collection of personal data to what is adequate, relevant, and reasonably necessary in relation to the purposes for which such data is processed, as disclosed to the consumer.

SB642,,65 2. Except as otherwise provided in this section, a controller may not process personal data for purposes that are not reasonably necessary to and not compatible with the disclosed purposes for which such personal data is processed, as disclosed to the consumer, unless the controller obtains the consumer’s consent.

SB642,,66 3. A controller shall establish, implement, and maintain reasonable administrative, technical, and physical data security practices to protect the confidentiality, integrity, and accessibility of personal data. Such data security practices shall be appropriate to the volume and nature of the personal data at issue.

SB642,,67 4. A controller may not process personal data in violation of state and federal laws that prohibit unlawful discrimination against consumers. A controller may not discriminate against a consumer for exercising any of the consumer rights contained in this section, including denying goods or services, charging different prices or rates for goods or services, or providing a different level of quality of goods and services to the consumer. Nothing in this subdivision shall be construed to require a controller to provide a product or service that requires the personal data of a consumer that the controller does not collect or maintain, or to prohibit a controller from offering a different price, rate, level, quality, or selection of goods or services to a consumer, including offering goods or services for no fee, if the consumer has exercised his or her right to opt out under sub. (2) (a) 5. or the offer is related to a consumer’s voluntary participation in a bona fide loyalty, rewards, premium features, discounts, or club card program.

SB642,,68 5. A controller may not process sensitive data concerning a consumer without obtaining the consumer’s consent, or, in the case of the processing of sensitive data concerning a known child, without processing such data in accordance with the federal Children’s Online Privacy Protection Act, 15 USC 6501 et seq.

SB642,,69 (b) Any provision of a contract or agreement that purports to waive or limit consumer rights under sub. (2) is void and unenforceable.

SB642,,70 (c) A controller shall provide consumers with a reasonably accessible, clear, and meaningful privacy notice that includes all of the following:

SB642,,71 1. The categories of personal data processed by the controller.

SB642,,72 2. The purpose of processing personal data.

SB642,,73 3. How consumers may exercise their consumer rights under sub. (2), including how a consumer may appeal a controller’s decision with regard to the consumer’s request.

SB642,,74 4. The categories of personal data that the controller shares with 3rd parties, if any.

SB642,,75 5. The categories of 3rd parties, if any, with whom the controller shares personal data.

SB642,,76 (d) If a controller sells personal data to 3rd parties or processes personal data for targeted advertising, the controller shall clearly and conspicuously disclose such processing, as well as the manner in which a consumer may exercise the right to opt out of such processing.

SB642,,77 (e) A controller shall establish, and shall describe in a privacy notice, one or more secure and reliable means for consumers to submit a request to exercise their consumer rights under this section. Such means shall take into account the ways in which consumers normally interact with the controller, the need for secure and reliable communication of such requests, and the ability of the controller to authenticate the identity of the consumer making the request. Controllers may not require a consumer to create a new account in order to exercise consumer rights under sub. (2) but may require a consumer to use an existing account.

SB642,,78 (4) Responsibility according to role; controller and processor. (a) A processor shall adhere to the instructions of a controller and shall assist the controller in meeting its obligations under this section. Such assistance shall include the following:

SB642,,79 1. Taking into account the nature of processing and the information available to the processor, by appropriate technical and organizational measures, insofar as this is reasonably practicable, to fulfill the controller’s obligation to respond to consumer rights requests under sub. (2).

SB642,,80 2. Taking into account the nature of processing and the information available to the processor, by assisting the controller in meeting the controller’s obligations in relation to the security of processing the personal data and in relation to giving notice of unauthorized acquisition of personal information under s. 134.98.

SB642,,81 3. Providing necessary information to enable the controller to conduct and document data protection assessments under sub. (5).

SB642,,82 (b) A contract between a controller and a processor shall govern the processor’s data processing procedures with respect to processing performed on behalf of the controller. The contract shall 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. The contract shall also include requirements that the processor shall do all of the following:

SB642,,83 1. Ensure that each person processing personal data is subject to a duty of confidentiality with respect to the data.

SB642,,84 2. At the controller’s direction, delete or return all personal data to the controller as requested at the end of the provision of services, unless retention of the personal data is required by law.

SB642,,85 3. Upon the reasonable request of the controller, make available to the controller all information in its possession necessary to demonstrate the processor’s compliance with the obligations in this section.

SB642,,86 4. At least one of the following:

SB642,,87 a. Allow, and cooperate with, reasonable assessments by the controller or the controller’s designated assessor.

SB642,,88 b. Arrange for a qualified and independent assessor to conduct an assessment of the processor’s policies and technical and organizational measures in support of the obligations under this section using an appropriate and accepted control standard or framework and assessment procedure for such assessments. The processor shall provide a report of such assessment to the controller upon request.

SB642,,89 5. Engage any subcontractor pursuant to a written contract in accordance with par. (c) that requires the subcontractor to meet the obligations of the processor with respect to the personal data.

SB642,,90 (c) Nothing in this section shall be construed to relieve a controller or a processor from the liabilities imposed on it by virtue of its role in the processing relationship as defined by this section.

SB642,,91 (d) Determining whether a person is acting as a controller or processor with respect to a specific processing of data is a fact-based determination that depends upon the context in which personal data is to be processed. A processor that continues to adhere to a controller’s instructions with respect to a specific processing of personal data remains a processor.

SB642,,92 (5) Data protection assessments. (a) A controller shall conduct and document a data protection assessment of each of the following processing activities involving personal data:

SB642,,93 1. The processing of personal data for purposes of targeted advertising.

SB642,,94 2. The sale of personal data.

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.