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Proposed Substitute HB 2742 (H-4322.1)

Summary

A summary of Proposed Substitute HB 2742 (H-4322.1), followed by the text of the bill. The summary states that the bill applies to controllers and processors of personal data that conduct business in Washington or produce products or services targeted to residents of Washington and control or process personal data of 100,000 consumers or more, or derive over 50 percent of gross revenue from the sale of personal data and process or control personal data of 25,000 consumers or more. It lists consumer rights to access, correct and delete personal data, data portability, and opting out of processing for targeted advertising, sale or profiling. The bill text ends with the provision that the act takes effect July 31, 2021.

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“Proposed Substitute HB 2742 (H-4322.1).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2020-02-05-a26543-d212598-2742-pshb-h-4322-1-f70b727639/, SHA-256 374db8e8f268969ab3d68a5f1c8d81ec684bab84e2ad2b37e4bf63161cf185c5.

Full text

                                         Proposed Substitute HB 2742 (H-4322.1) (Rep. Hudgins)

Current Version of the Bill:
   ■ Applies to controllers and processors of personal data which are legal entities that conduct business
      in Washington or produce products or services that are targeted to residents of Washington and:
          ▪ Control or process personal data of 100,000 consumers or more; or
          ▪ Derive over 50 percent of gross revenue from the sale of personal data and process or
               control personal data of 25,000 consumers or more.
   ■ Does not apply to state and local government, municipal corporations, personal data and
      information regulated under enumerated state and federal laws, and data maintained for
      employment records purposes.
   ■ Defines responsibilities of controllers and processors in accordance with their roles in processing
      personal data.
   ■ Sets for the following consumer rights with regard to personal data:
          ▪ The right to confirm if a controller is processing a consumer's data and the right to access
               that data;
          ▪ The right to correct inaccurate personal data;
          ▪ The right to delete personal data;
          ▪ The right to data portability;
          ▪ The right to opt out of the processing of personal data for purposes of targeted advertising,
               the sale of personal data, or profiling in furtherance of decisions that produce legal effects
               or similarly significant effects concerning a consumer.
   ■ Requires controllers to take reasonable steps to notify third parties of consumer requests, unless
      certain conditions apply.
   ■ Specifies the process and timeline a controller must follow in taking action on or otherwise
      responding to a consumer request for exercising of consumer rights.
   ■ Requires controllers to establish an internal process by which consumers may appeal a refusal to
      act on a request to exercise consumer rights and sets forth certain requirements with regard to the
      internal appeal process.
   ■ Provides a process by which a controller must submit information related to consumer appeals to
      the Attorney General.
   ■ Specifies that controllers and processors are not required to reidentify deidentified data or maintain
      data in identifiable form solely for the purpose of complying with this act.
   ■ Defines the circumstances under which controllers and processors do not have to comply with
      authenticated consumer requests to access, correct, delete, or port personal data.
   ■ Provides that the rights of access, correction, deletion, and data portability do not apply to
      pseudonymous data where a controller is able to demonstrate that it is not in a position to identify
      the consumer.
   ■ Requires controllers that use pseudonymous or deidentified data to exercise reasonable oversight
      to monitor compliance and to take appropriate steps to address any breaches of contractual
      commitments to which pseudonymous or deidentified data are subject.
   ■ Requires controllers to:
          ▪ Provide a privacy notice that meets specified requirements;
          ▪ Limit collection of personal data to what is reasonably necessary to the specified and
               express purposes;
          ▪ Limit collection of personal data to what is adequate, relevant, and reasonably necessary
               to the specified and express purposes; and
          ▪ Establish, implement, and maintain reasonable data security practices.
   ■ Prohibits controllers from:
          ▪ Processing personal data for purposes that are not reasonably necessary to or compatible
               with the specified and express purposes;
          ▪ Discriminating against a consumer for exercising personal data rights; or
          ▪ Processing a consumer's sensitive data without the consumer's consent.

                                                                                                           1
                                         Proposed Substitute HB 2742 (H-4322.1) (Rep. Hudgins)

   ■   Requires controllers to conduct a data protection assessment of each personal data processing
       activity and to make data protection assessments available to the Attorney General upon request.
   ■   Provides several exemptions to the obligations imposed on controllers and processors, such as
       complying with state and federal laws and regulations, providing a service requested by a
       consumer, conducting internal research and development, and performing internal operations that
       are reasonably aligned with consumer expectations.
   ■   Requires that processing pursuant to an exemption is necessary, reasonable, and proportionate to
       the specified exemption
   ■   Prohibits controllers relying on one of the specified exemptions from processing personal data for
       any other purposes.
   ■   Provides that any violation of this chapter does not serve as the basis for a private right of action
       under this act or any other law.
   ■   Provides that the Attorney General has exclusive authority to enforce these provisions and sets
       forth civil penalties of up to $7,500 per violation.
   ■   Preempts local laws or regulations regarding processing of personal data.
   ■   Directs the Office of Privacy and Data Protection to conduct a study on the development of global-
       opt out technologies and submit a report and recommendations to the Legislature.
   ■   Directs the Attorney General to compile and submit to the Legislature a report evaluating the
       liability and enforcement provisions of this act and the effectiveness of the Attorney General's
       efforts to enforce this act.
   ■   Authorizes the Governor to enter into agreements with British Columbia, California, and Oregon
       for the purpose of sharing personal data for joint research initiatives.
   ■   Sets forth requirements for controllers and processors that use facial recognition services,
       including:
            ▪ Third-party testing of the services for accuracy and unfair performance;
            ▪ Developing and implementing a plan to address identified performance differences;
            ▪ Testing of the services in operational conditions prior to deployment;
            ▪ Providing documentation that explains the capabilities and limitations of the services;
            ▪ Conspicuous notice where facial recognition services are deployed in a public space;
            ▪ Consumer consent prior to enrolling an image in a facial recognition service, unless
                specified circumstances permit a controller enrolling a consumer's image without the
                consumer's consent;
            ▪ Meaningful human review when using facial recognition services to make decisions that
                produce legal effects or similarly significant effects on consumers; and
            ▪ Periodic training for all operators of facial recognition services.
   ■   Takes effect July 31, 2021.

Proposed Substitute (H-4322.1) Compared to HB 2742:
   ■   Modifies the intent language related to the Office of Privacy and Data Protection.
   ■   Modifies the definitions of "affiliate," "authenticate," "decision that produce legal effects,"
       "deidentified data," "identification," "persistent tracking," "sale," "specific geolocation data," and
       "verification."
   ■   Specifies that the bill applies to legal entities that control or process personal data of 100,000 or
       more consumers during a calendar year.
   ■   Exempts personal data used or shared in research, healthcare information regulated by specified
       federal laws, and personal data collected or processed pursuant to the federal Farm Credit Act.
   ■   Clarifies that a processor that continues to adhere to a controller's instructions with respect to
       specific processing remains a processor.
   ■   Removes the requirement for a controller to notify third parties of a consumer's personal data
       rights request.

                                                                                                            2
                                     Proposed Substitute HB 2742 (H-4322.1) (Rep. Hudgins)

■   Removes the requirement for the Attorney General to make information related to consumer
    appeals publicly available on its website.
■   Modifies the provision related to a controller's use of pseudonymous data to state that consumer
    personal data rights do not apply to pseudonymous data if the controller is able to demonstrate
    that any information necessary to identify the consumer is kept separately and is subject to
    technical and organizational controls that prevent the controller from accessing such information.
■   Requires controllers to provide consumers with secure and reliable means of submitting personal
    data rights requests.
■   Modifies the provision prohibiting discrimination against consumers who exercise personal data
    rights and allows a controller to offer different prices or rates of service to a consumer who
    voluntarily participates in a loyalty or reward program.
■   Prohibits the sale of a consumer's personal data collected as part of a loyalty program to a third-
    party controller unless:
         ▪ the sale is reasonably necessary to provide the consumer with a benefit;
         ▪ the sale is clearly disclosed in the terms of the loyalty program; and
         ▪ the third party uses the personal data only to facilitate the provision of benefit to which
             the consumer is entitled.
■   Removes the requirement for controllers to conduct data protection assessments for each of their
    processing activities and specifies the activities for which controllers must conduct data
    protection assessments.
■   Removes provisions authorizing processing of personal data pursuant to a consumer's consent
    where a data protection assessment determines that the risk of privacy harm to consumer
    outweighs the benefits of processing to the controller, other stakeholders, or the public.
■   Permits data protection assessments conducted by a controller for the purpose of complying with
    other laws to qualify as the assessments required in this act, if the assessments are similar in
    scope and effect.
■   Removes the authorization for controllers and processors to allocate liability by contract.
■   Removes the requirement for the Office of Privacy and Data Protection to conduct a study on opt-
    out technology.
■   Provides that making available an application programming interface for accuracy and bias
    testing does not require the disclosure of proprietary data, trade secrets, or other information, if
    doing so would increase the risk of cyberattacks.
■   Clarifies that facial recognition services must be tested for unfair performance differences across
    distinct subpopulations as defined by visually detectable characteristics or other protected
    characteristics.
■   Requires disclosure of independent testing methodology and data to a processor in a manner that
    allows full reproduction of the testing of a facial recognition service.
■   Requires annual, rather than biannual, review of facial recognition databases used by a
    controller's facial recognition service.
■   Removes the requirement to remove facial templates that are more than three years old from any
    database used by a controller's facial recognition service.
■   Modifies the requirement to test a facial recognition service in operational conditions by making
    the requirement applicable only to those controllers that use a facial recognition service to make
    decisions that produce legal or similarly significant effects on consumers.
■   Exempts from the requirements of the bill voluntary facial recognition services used to verify
    aviation passengers' identity in connection services regulated by certain federal laws.
■   Requires airlines to disclose and obtain a customer consent prior to capturing an image.
■   Prohibits airlines from retaining any images captured with the exempt facial recognition service
    for more than 24 hours
■   Makes grammatical and technical corrections, such as correcting "business" to "controller" and
    eliminating the effective date for the removed OPDP study.

                                                                                                      3
1        AN ACT Relating to the management and oversight of personal data;
2    adding a new chapter to Title 19 RCW; prescribing penalties; and
3    providing an effective date.


4    BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:


 5       NEW SECTION.   Sec. 1.   SHORT TITLE. This act may be known and
 6   cited as the Washington privacy act.


 7       NEW SECTION. Sec. 2. LEGISLATIVE FINDINGS. (1) The legislature
 8   finds that the people of Washington regard their privacy as a
 9   fundamental right and an essential element of their individual
10   freedom. Washington's Constitution explicitly provides the right to
11   privacy, and fundamental privacy rights have long been and continue
12   to be integral to protecting Washingtonians and to safeguarding our
13   democratic republic.
14       (2) Ongoing advances in technology have produced an exponential
15   growth in the volume and variety of personal data being generated,
16   collected, stored, and analyzed, which presents both promise and
17   potential peril. The ability to harness and use data in positive ways
18   is driving innovation and brings beneficial technologies to society;
19   however, it has also created risks to privacy and freedom. The
20   unregulated   and  unauthorized  use   and  disclosure   of  personal
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 1   information and loss of privacy can have devastating impacts, ranging
 2   from financial fraud, identity theft, and unnecessary costs, to
 3   personal time and finances, to destruction of property, harassment,
 4   reputational damage, emotional distress, and physical harm.
 5       (3) Given that technological innovation and new uses of data can
 6   help solve societal problems and improve quality of life, the
 7   legislature seeks to shape responsible public policies where
 8   innovation and protection of individual privacy coexist. The
 9   legislature notes that our federal authorities have not developed or
10   adopted into law regulatory or legislative solutions that give
11   consumers control over their privacy. In contrast, the European
12   Union's general data protection regulation has continued to influence
13   data privacy policies and practices of those businesses competing in
14   global markets. In the absence of federal standards, Washington and
15   other states across the United States are analyzing elements of the
16   European Union's general data protection regulation to enact state-
17   based data privacy regulatory protections.
18       (4) With this act, Washington state will be among the first tier
19   of states giving consumers the ability to protect their own rights to
20   privacy and requiring companies to be responsible custodians of data
21   as technological innovations emerge. This act does so by explicitly
22   providing consumers the right to access, correction, and deletion of
23   personal data, as well as the right to opt out of the collection and
24   use of personal data for certain purposes. These rights will add to,
25   and not subtract from, the consumer protection rights that consumers
26   already have under Washington state law.
27       (5) Additionally, this act imposes affirmative obligations upon
28   companies   to   safeguard   personal    data   and   provide  clear,
29   understandable, and transparent information to consumers about how
30   their personal data are used. It strengthens compliance and
31   accountability by requiring data protection assessments in the
32   collection and use of personal data. Finally, it empowers the state
33   attorney general to obtain and evaluate a company's data protection
34   assessments, to impose penalties where violations occur, and to
35   prevent against future violations.
36       (6) The legislature also encourages the state office of privacy
37   and data protection to monitor the development of universal privacy
38   controls that communicate a consumer's affirmative, freely given, and
39   unambiguous choice to opt out of the processing of personal data
40   concerning the consumer for the purposes of targeted advertising, the
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1    sale of personal data, or profiling in furtherance of decisions that
2    produce   legal  effects   concerning   the consumer  or   similarly
3    significant effects concerning consumers.


 4       NEW SECTION.    Sec. 3.    DEFINITIONS. The definitions in this
 5   section apply throughout this chapter unless the context clearly
 6   requires otherwise.
 7       (1) "Affiliate" means a legal entity that controls, is controlled
 8   by, or is under common control with, that other legal entity. For
 9   these purposes, "control" or "controlled" means ownership of, or the
10   power to vote, more than fifty percent of the outstanding shares of
11   any class of voting security of a company; control in any manner over
12   the election of a majority of the directors or of individuals
13   exercising similar functions; or the power to exercise a controlling
14   influence over the management of a company.
15       (2) "Authenticate" means to use reasonable means to determine
16   that a request to exercise any of the rights in section 6 (1) through
17   (4) of this act is being made by the consumer who is entitled to
18   exercise such rights with respect to the personal data at issue.
19       (3) "Business associate" has the same meaning as in Title 45
20   C.F.R., established pursuant to the federal health insurance
21   portability and accountability act of 1996.
22       (4) "Child" means any natural person under thirteen years of age.
23       (5) "Consent" means a clear affirmative act signifying a freely
24   given, specific, informed, and unambiguous indication of a consumer's
25   agreement to the processing of personal data relating to the
26   consumer, such as by a written statement, including by electronic
27   means, or other clear affirmative action.
28       (6) "Consumer" means a natural person who is a Washington
29   resident acting only in an individual or household context. It does
30   not include a natural person acting in a commercial or employment
31   context.
32       (7) "Controller" means the natural or legal person which, alone
33   or jointly with others, determines the purposes and means of the
34   processing of personal data.
35       (8) "Covered entity" has the same meaning as in Title 45 C.F.R.,
36   established pursuant to the federal health insurance portability and
37   accountability act of 1996.
38       (9) "Decisions that produce legal effects concerning a consumer
39   or similarly significant effects concerning a consumer" means
     Code Rev/JO:eab                   3                       H-4322.1/20
 1   decisions that result in the provision or denial of financial and
 2   lending services, housing, insurance, education enrollment, criminal
 3   justice, employment opportunities, health care services, or access to
 4   basic necessities, such as food and water.
 5       (10) "Deidentified data" means data that cannot reasonably be
 6   used to infer information about, or otherwise be linked to, an
 7   identified or identifiable natural person, or a device linked to such
 8   person, provided that the controller that possesses the data: (a)
 9   Takes reasonable measures to ensure that the data cannot be
10   associated with a natural person; (b) publicly commits to maintain
11   and use the data only in a deidentified fashion and not attempt to
12   reidentify the data; and (c) contractually obligates any recipients
13   of the information to comply with all provisions of this subsection.
14       (11) "Enroll," "enrolled," or "enrolling" means the process by
15   which a facial recognition service creates a facial template from one
16   or more images of a consumer and adds the facial template to a
17   gallery used by the facial recognition service for identification,
18   verification, or persistent tracking of consumers. It also includes
19   the act of adding an existing facial template directly into a gallery
20   used by a facial recognition service.
21       (12) "Facial recognition service" means technology that analyzes
22   facial features and is used for the identification, verification, or
23   persistent tracking of consumers in still or video images.
24       (13) "Facial template" means the machine-interpretable pattern of
25   facial features that is extracted from one or more images of a
26   consumer by a facial recognition service.
27       (14) "Health care facility" has the same meaning as in RCW
28   70.02.010.
29       (15) "Health care information" has the same meaning as in RCW
30   70.02.010.
31       (16) "Health care provider" has the same meaning as in RCW
32   70.02.010.
33       (17) "Identification" means the use of a facial recognition
34   service by a controller to determine whether an unknown consumer
35   matches any consumer whose identity is known to the controller and
36   who has been enrolled by reference to that identity in a gallery used
37   by the facial recognition service.
38       (18) "Identified or identifiable natural person" means a person
39   who can be readily identified, directly or indirectly.


     Code Rev/JO:eab                   4                       H-4322.1/20
 1       (19) "Meaningful human review" means review or oversight by one
 2   or more individuals who are trained in accordance with section 17(9)
 3   of this act and who have the authority to alter the decision under
 4   review.
 5       (20) "Ongoing surveillance" means tracking the physical movements
 6   of a specified individual through one or more public places over
 7   time, whether in real time or through application of a facial
 8   recognition service to historical records. It does not include a
 9   single recognition or attempted recognition of an individual if no
10   attempt is made to subsequently track that individual's movement over
11   time after the individual has been recognized.
12       (21) "Persistent tracking" means the use of a facial recognition
13   service to track the movements of a consumer on a persistent basis
14   without identification or verification of that consumer. Such
15   tracking becomes persistent as soon as:
16       (a) The facial template that permits the tracking uses a facial
17   recognition service for more than forty-eight hours after the first
18   enrolling of that template; or
19       (b) The data created by the facial recognition service in
20   connection with the tracking of the movements of the consumer are
21   linked to any other data such that the consumer who has been tracked
22   is identified or identifiable.
23       (22)(a) "Personal data" means any information that is linked or
24   reasonably linkable to an identified or identifiable natural person.
25   "Personal data" does not include deidentified data or publicly
26   available information.
27       (b) For purposes of this subsection, "publicly available
28   information" means information that is lawfully made available from
29   federal, state, or local government records.
30       (23) "Process" or "processing" means any operation or set of
31   operations which are performed on personal data or on sets of
32   personal data, whether or not by automated means, such as the
33   collection,   use,  storage,   disclosure,   analysis, deletion,  or
34   modification of personal data.
35       (24) "Processor" means a natural or legal person who processes
36   personal data on behalf of a controller.
37       (25) "Profiling" means any form of automated processing of
38   personal data to evaluate, analyze, or predict personal aspects
39   concerning an identified or identifiable natural person's economic


     Code Rev/JO:eab                   5                       H-4322.1/20
 1   situation, health, personal preferences, interests, reliability,
 2   behavior, location, or movements.
 3       (26) "Protected health information" has the same meaning as in
 4   Title 45 C.F.R., established pursuant to the federal health insurance
 5   portability and accountability act of 1996.
 6       (27) "Pseudonymous data" means personal data that cannot be
 7   attributed to a specific natural person without the use of additional
 8   information, provided that such additional information is kept
 9   separately and is subject to appropriate technical and organizational
10   measures to ensure that the personal data are not attributed to an
11   identified or identifiable natural person.
12       (28) "Recognition" means the use of a facial recognition service
13   to determine whether:
14       (a) An unknown consumer matches any consumer who has been
15   enrolled in a gallery used by the facial recognition service; or
16       (b) An unknown consumer matches a specific consumer who has been
17   enrolled in a gallery used by the facial recognition service.
18       (29)(a) "Sale," "sell," or "sold" means the exchange of personal
19   data for monetary or other valuable consideration by the controller
20   to a third party.
21       (b) "Sale" does not include the following: (i) The disclosure of
22   personal data to a processor who processes the personal data on
23   behalf of the controller; (ii) the disclosure of personal data to a
24   third party with whom the consumer has a direct relationship for
25   purposes of providing a product or service requested by the consumer;
26   (iii) the disclosure or transfer of personal data to an affiliate of
27   the controller; (iv) the disclosure of information that the consumer
28   (A) intentionally made available to the general public via a channel
29   of mass media, and (B) did not restrict to a specific audience; or
30   (v) the disclosure or transfer of personal data to a third party as
31   an asset that is part of a merger, acquisition, bankruptcy, or other
32   transaction in which the third party assumes control of all or part
33   of the controller's assets.
34       (30) "Security or safety purpose" means physical security,
35   protection of consumer data, safety, fraud prevention, or asset
36   protection.
37       (31) "Sensitive data" means (a) personal data revealing racial or
38   ethnic origin, religious beliefs, mental or physical health condition
39   or diagnosis, sexual orientation, or citizenship or immigration
40   status; (b) the processing of genetic or biometric data for the
     Code Rev/JO:eab                   6                       H-4322.1/20
 1   purpose of uniquely identifying a natural person; (c) the personal
 2   data from a known child; or (d) specific geolocation data. "Sensitive
 3   data" is a form of personal data.
 4       (32) "Serious criminal offense" means any felony under chapter
 5   9.94A RCW or an offense enumerated by Title 18 U.S.C. Sec. 2516.
 6       (33) "Specific geolocation data" means information derived from
 7   technology, including, but not limited to, global positioning system
 8   level latitude and longitude coordinates or other mechanisms, that
 9   directly identifies the specific location of a natural person with
10   the precision and accuracy below one thousand seven hundred fifty
11   feet.   Specific   geolocation    data  excludes    the   content  of
12   communications.
13       (34) "Targeted advertising" means displaying advertisements to a
14   consumer where the advertisement is selected based on personal data
15   obtained from a consumer's activities over time and across
16   nonaffiliated web sites or online applications to predict such
17   consumer's preferences or interests. It does not include advertising:
18   (a) Based on activities within a controller's own web sites or online
19   applications; (b) based on the context of a consumer's current search
20   query or visit to a web site or online application; or (c) to a
21   consumer in response to the consumer's request for information or
22   feedback.
23       (35) "Third party" means a natural or legal person, public
24   authority, agency, or body other than the consumer, controller,
25   processor, or an affiliate of the processor or the controller.
26       (36) "Verification" means the use of a facial recognition service
27   by a controller to determine whether a consumer is a specific
28   consumer whose identity is known to the controller and who has been
29   enrolled by reference to that identity in a gallery used by the
30   facial recognition service.

31       NEW SECTION.   Sec. 4.    JURISDICTIONAL SCOPE. (1) This chapter
32   applies to legal entities that conduct business in Washington or
33   produce products or services that are targeted to residents of
34   Washington, and that satisfy one or more of the following thresholds:
35       (a) During a calendar year, controls or processes personal data
36   of one hundred thousand consumers or more; or
37       (b) Derives over fifty percent of gross revenue from the sale of
38   personal data and processes or controls personal data of twenty-five
39   thousand consumers or more.
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 1       (2) This chapter does not apply to:
 2       (a) State and local governments;
 3       (b) Municipal corporations;
 4       (c) Information that meets the definition of:
 5       (i) Protected health information for purposes of the federal
 6   health insurance portability and accountability act of 1996 and
 7   related regulations;
 8       (ii) Health care information for purposes of chapter 70.02 RCW;
 9       (iii) Patient identifying information for purposes of 42 C.F.R.
10   Part 2, established pursuant to 42 U.S.C. Sec. 290dd-2;
11       (iv) Identifiable private information for purposes of the federal
12   policy for the protection of human subjects, 45 C.F.R. Part 46;
13   identifiable private information that is otherwise information
14   collected as part of human subjects research pursuant to the good
15   clinical practice guidelines issued by the international council for
16   harmonisation; the protection of human subjects under 21 C.F.R. Parts
17   50 and 56; or personal data used or shared in research conducted in
18   accordance with one or more of the requirements set forth in this
19   subsection;
20       (v) Information and documents created specifically for, and
21   collected and maintained by:
22       (A) A quality improvement committee for purposes of RCW
23   43.70.510, 70.230.080, or 70.41.200;
24       (B) A peer review committee for purposes of RCW 4.24.250;
25       (C) A quality assurance committee for purposes of RCW 74.42.640
26   or 18.20.390;
27       (D) A hospital, as defined in RCW 43.70.056, for reporting of
28   health care-associated infections for purposes of RCW 43.70.056, a
29   notification of an incident for purposes of RCW 70.56.040(5), or
30   reports regarding adverse events for purposes of RCW 70.56.020(2)(b);
31       (vi) Information and documents created for purposes of the
32   federal health care quality improvement act of 1986, and related
33   regulations;
34       (vii) Patient safety work product for purposes of 42 C.F.R. Part
35   3, established pursuant to 42 U.S.C. Sec. 299b-21 through 299b-26; or
36       (viii) Information that is (A) deidentified in accordance with
37   the requirements for deidentification set forth in 45 C.F.R. Part
38   164, and (B) derived from any of the health care-related information
39   listed in this subsection (2)(c);


     Code Rev/JO:eab                   8                       H-4322.1/20
 1       (d) Information originating from, and intermingled to be
 2   indistinguishable with, information under (c) of this subsection that
 3   is maintained by:
 4       (i) A covered entity or business associate as defined by the
 5   health insurance portability and accountability act of 1996 and
 6   related regulations;
 7       (ii) A health care facility or health care provider as defined in
 8   RCW 70.02.010; or
 9       (iii) A program or a qualified service organization as defined by
10   42 C.F.R. Part 2, established pursuant to 42 U.S.C. Sec. 290dd-2;
11       (e) Information used only for public health activities and
12   purposes as described in 45 C.F.R. Sec. 164.512;
13       (f)(i) An activity involving the collection, maintenance,
14   disclosure, sale, communication, or use of any personal information
15   bearing on a consumer's credit worthiness, credit standing, credit
16   capacity, character, general reputation, personal characteristics, or
17   mode of living by a consumer reporting agency, as defined in Title 15
18   U.S.C. Sec. 1681a(f), by a furnisher of information, as set forth in
19   Title 15 U.S.C. Sec. 1681s-2, who provides information for use in a
20   consumer report, as defined in Title 15 U.S.C. Sec. 1681a(d), and by
21   a user of a consumer report, as set forth in Title 15 U.S.C. Sec.
22   1681b.
23       (ii) (f)(i) of this subsection shall apply only to the extent
24   that such activity involving the collection, maintenance, disclosure,
25   sale, communication, or use of such information by that agency,
26   furnisher, or user is subject to regulation under the fair credit
27   reporting act, Title 15 U.S.C. Sec. 1681 et seq., and the information
28   is not collected, maintained, used, communicated, disclosed, or sold
29   except as authorized by the fair credit reporting act;
30       (g) Personal data collected and maintained for purposes of
31   chapter 43.71 RCW;
32       (h) Personal data collected, processed, sold, or disclosed
33   pursuant to the federal Gramm-Leach-Bliley act (P.L. 106-102), and
34   implementing regulations, if the collection, processing, sale, or
35   disclosure is in compliance with that law;
36       (i) Personal data collected, processed, sold, or disclosed
37   pursuant to the federal driver's privacy protection act of 1994 (18
38   U.S.C. Sec. 2721 et seq.), if the collection, processing, sale, or
39   disclosure is in compliance with that law;


     Code Rev/JO:eab                   9                       H-4322.1/20
 1       (j) Personal data regulated by the federal family educations
 2   rights and privacy act, 20 U.S.C. Sec. 1232g and its implementing
 3   regulations;
 4       (k) Personal data regulated by the student user privacy in
 5   education rights act, chapter 28A.604 RCW;
 6       (l) Personal data collected, processed, sold, or disclosed
 7   pursuant to the federal farm credit act of 1971 (as amended in 12
 8   U.S.C. Sec. 2001-2279cc) and its implementing regulations (12 C.F.R.
 9   Part 600 et seq.) if the collection, processing, sale, or disclosure
10   is in compliance with that law; or
11       (m) Data maintained for employment records purposes.
12       (3) Controllers that are in compliance with the verifiable
13   parental consent mechanisms under the children's online privacy
14   protection act, Title 15 U.S.C. Sec. 6501 through 6506 and its
15   implementing regulations, shall be deemed compliant with any
16   obligation to obtain parental consent under this chapter.


17       NEW SECTION.    Sec. 5.    RESPONSIBILITY ACCORDING TO ROLE. (1)
18   Controllers and processors are responsible for meeting their
19   respective obligations established under this chapter.
20       (2) Processors are responsible under this chapter for adhering to
21   the instructions of the controller and assisting the controller to
22   meet its obligations under this chapter. Such assistance shall
23   include the following:
24       (a) Taking into account the nature of the processing, the
25   processor shall assist the controller by appropriate technical and
26   organizational measures, insofar as this is possible, for the
27   fulfillment of the controller's obligation to respond to consumer
28   requests to exercise their rights pursuant to section 6 of this act;
29   and
30       (b) Taking into account the nature of processing and the
31   information available to the processor, the processor shall assist
32   the controller in meeting the controller's obligations in relation to
33   the security of processing the personal data and in relation to the
34   notification of a breach of the security of the system pursuant to
35   RCW 19.255.010; and shall provide information to the controller
36   necessary to enable the controller to conduct and document any data
37   protection assessments required by section 9 of this act.
38       (3) Notwithstanding the instructions of the controller, a
39   processor shall:
     Code Rev/JO:eab                  10                       H-4322.1/20
 1       (a) Implement and maintain reasonable security procedures and
 2   practices to protect personal data, taking into account the context
 3   in which the personal data are to be processed;
 4       (b) Ensure that each person processing the personal data is
 5   subject to a duty of confidentiality with respect to the data; and
 6       (c) Engage a subcontractor only after providing the controller
 7   with an opportunity to object and pursuant to a written contract in
 8   accordance with subsection (5) of this section that requires the
 9   subcontractor to meet the obligations of the processor with respect
10   to the personal data.
11       (4) Processing by a processor shall be governed by a contract
12   between the controller and the processor that is binding on both
13   parties and that sets out the processing instructions to which the
14   processor is bound, including the nature and purpose of the
15   processing, the type of personal data subject to the processing, the
16   duration of the processing, and the obligations and rights of both
17   parties. In addition, the contract shall include the requirements
18   imposed by this subsection and subsection (3) of this section, as
19   well as the following requirements:
20       (a) At the choice of the controller, the processor shall delete
21   or return all personal data to the controller as requested at the end
22   of the provision of services, unless retention of the personal data
23   is required by law;
24       (b)(i) The processor shall make available to the controller all
25   information necessary to demonstrate compliance with the obligations
26   in this chapter; and (ii) the processor shall allow for, and
27   contribute to, reasonable audits and inspections by the controller or
28   the controller's designated auditor; alternatively, the processor
29   may, with the controller's consent, arrange for a qualified and
30   independent auditor to conduct, at least annually and at the
31   processor's expense, an audit of the processor's policies and
32   technical and organizational measures in support of the obligations
33   under this chapter using an appropriate and accepted control standard
34   or framework and audit procedure for such audits as applicable, and
35   shall provide a report of such audit to the controller upon request.
36       (5) In no event shall any contract relieve a controller or a
37   processor from the liabilities imposed on them by virtue of its role
38   in the processing relationship as defined by this chapter.
39       (6) Determining whether a person is acting as a controller or
40   processor with respect to a specific processing of data is a fact-
     Code Rev/JO:eab                  11                       H-4322.1/20
 1   based determination that depends upon the context in which personal
 2   data are to be processed. A person that is not limited in its
 3   processing of personal data pursuant to a controller's instructions,
 4   or that fails to adhere to such instructions, is a controller and not
 5   a processor with respect to a specific processing of data. A
 6   processor that continues to adhere to a controller's instructions
 7   with respect to a specific processing of personal data remains a
 8   processor. If a processor begins, alone or jointly with others,
 9   determining the purposes and means of the processing of personal
10   data, it is a controller with respect to such processing.


11       NEW SECTION.  Sec. 6.   CONSUMER PERSONAL DATA RIGHTS. Consumers
12   may exercise the rights set forth in this section by submitting a
13   request, at any time, to a controller specifying which rights the
14   consumer wishes to exercise. In the case of processing personal data
15   concerning a known child, the parent or legal guardian of the known
16   child shall exercise the rights of this chapter on the child's
17   behalf. Except as provided in this chapter, the controller must
18   comply with a request to exercise the rights pursuant to subsections
19   (1) through (5) of this section.
20       (1) Right of access. A consumer has the right to confirm whether
21   or not a controller is processing personal data concerning the
22   consumer and access such personal data.
23       (2) Right to correction. A consumer has the right to correct
24   inaccurate personal data concerning the consumer, taking into account
25   the nature of the personal data and the purposes of the processing of
26   the personal data.
27       (3) Right to deletion. A consumer has the right to delete
28   personal data concerning the consumer.
29       (4) Right to data portability. When exercising the right to
30   access personal data pursuant to subsection (1) of this section, a
31   consumer has the right to obtain personal data concerning the
32   consumer, which the consumer previously provided to the controller,
33   in a portable and, to the extent technically feasible, readily usable
34   format that allows the consumer to transmit the data to another
35   controller without hindrance, where the processing is carried out by
36   automated means.
37       (5) Right to opt out. A consumer has the right to opt out of the
38   processing of personal data concerning such consumer for purposes of
39   targeted advertising, the sale of personal data, or profiling in
     Code Rev/JO:eab                  12                       H-4322.1/20
 1   furtherance of decisions that produce legal effects concerning a
 2   consumer or similarly significant effects concerning a consumer.
 3       (6) Responding to consumer requests. (a) A controller must inform
 4   a consumer of any action taken on a request under subsections (1)
 5   through (5) of this section without undue delay and in any event
 6   within forty-five days of receipt of the request. That period may be
 7   extended once by forty-five additional days where reasonably
 8   necessary, taking into account the complexity and number of the
 9   requests. The controller must inform the consumer of any such
10   extension within forty-five days of receipt of the request, together
11   with the reasons for the delay.
12       (b) If a controller does not take action on the request of a
13   consumer, the controller must inform the consumer without undue delay
14   and at the latest within forty-five days of receipt of the request of
15   the reasons for not taking action and instructions for how to appeal
16   the decision with the controller as described in subsection (7) of
17   this section.
18       (c) Information provided under this section must be provided by
19   the controller free of charge, up to twice annually to the consumer.
20   Where requests from a consumer are manifestly unfounded or excessive,
21   in particular because of their repetitive character, the controller
22   may either: (i) Charge a reasonable fee to cover the administrative
23   costs of complying with the request, or (ii) refuse to act on the
24   request. The controller bears the burden of demonstrating the
25   manifestly unfounded or excessive character of the request.
26       (d) A controller is not required to comply with a request to
27   exercise any of the rights under subsections (1) through (4) of this
28   section if the controller is unable to authenticate the request using
29   commercially reasonable efforts. In such cases, the controller may
30   request the provision of additional information reasonably necessary
31   to authenticate the request.
32       (7)(a) Controllers must establish an internal process whereby
33   consumers may appeal a refusal to take action on a request to
34   exercise any of the rights under subsections (1) through (5) of this
35   section within a reasonable period of time after the consumer's
36   receipt of the notice sent by the controller under subsection (6)(b)
37   of this section.
38       (b) The appeal process must be conspicuously available and as
39   easy to use as the process for submitting such requests under this
40   section.
     Code Rev/JO:eab                  13                       H-4322.1/20
 1       (c) Within thirty days of receipt of an appeal, a controller must
 2   inform the consumer of any action taken or not taken in response to
 3   the appeal, along with a written explanation of the reasons in
 4   support thereof. That period may be extended by sixty additional days
 5   where reasonably necessary, taking into account the complexity and
 6   number of the requests serving as the basis for the appeal. The
 7   controller must inform the consumer of any such extension within
 8   thirty days of receipt of the appeal, together with the reasons for
 9   the delay. The controller must also provide the consumer with an
10   email address or other online mechanism through which the consumer
11   may submit the appeal, along with any action taken or not taken by
12   the controller in response to the appeal and the controller's written
13   explanation of the reasons in support thereof, to the attorney
14   general.
15       (d) When informing a consumer of any action taken or not taken in
16   response to an appeal pursuant to (c) of this subsection, the
17   controller must clearly and prominently ask the consumer whether the
18   consumer consents to having the controller submit the appeal, along
19   with any action taken or not taken by the controller in response to
20   the appeal and must, upon request, provide the controller's written
21   explanation of the reasons in support thereof, to the attorney
22   general. If the consumer provides such consent, the controller must
23   submit such information to the attorney general.


24       NEW SECTION.      Sec. 7.      PROCESSING DEIDENTIFIED DATA OR
25   PSEUDONYMOUS DATA. (1) This chapter does not require a controller or
26   processor to do any of the following solely for purposes of complying
27   with this chapter:
28       (a) Reidentify deidentified data;
29       (b) Comply with an authenticated consumer request to access,
30   correct, delete, or port personal data pursuant to section 6 (1)
31   through (4) of this act, if all of the following are true:
32       (i)(A) The controller is not reasonably capable of associating
33   the request with the personal data, or (B) it would be unreasonably
34   burdensome for the controller to associate the request with the
35   personal data;
36       (ii) The controller does not use the personal data to recognize
37   or respond to the specific consumer who is the subject of the
38   personal data, or associate the personal data with other personal
39   data about the same specific consumer; and
     Code Rev/JO:eab                  14                       H-4322.1/20
 1       (iii) The controller does not sell the personal data to any third
 2   party or otherwise voluntarily disclose the personal data to any
 3   third party other than a processor, except as otherwise permitted in
 4   this section; or
 5       (c) Maintain data in identifiable form, or collect, obtain,
 6   retain, or access any data or technology, in order to be capable of
 7   associating an authenticated consumer request with personal data.
 8       (2) The rights contained in section 6 (1) through (4) of this act
 9   do not apply to pseudonymous data in cases where the controller is
10   able to demonstrate any information necessary to identify the
11   consumer is kept separately and is subject to effective technical and
12   organizational controls that prevent the controller from accessing
13   such information.
14       (3) A controller that uses pseudonymous data or deidentified data
15   must exercise reasonable oversight to monitor compliance with any
16   contractual   commitments   to   which  the   pseudonymous   data  or
17   deidentified data are subject, and must take appropriate steps to
18   address any breaches of contractual commitments.


19       NEW SECTION.    Sec. 8.     RESPONSIBILITIES OF CONTROLLERS. (1)
20   Transparency.
21       (a) Controllers shall provide consumers with a reasonably
22   accessible, clear, and meaningful privacy notice that includes:
23       (i) The categories of personal data processed by the controller;
24       (ii) The purposes for which the categories of personal data are
25   processed;
26       (iii) How and where consumers may exercise the rights contained
27   in section 6 of this act, including how a consumer may appeal a
28   controller's action with regard to the consumer's request;
29       (iv) The categories of personal data that the controller shares
30   with third parties, if any; and
31       (v) The categories of third parties, if any, with whom the
32   controller shares personal data.
33       (b) If a controller sells personal data to third parties or
34   processes personal data for targeted advertising, it must clearly and
35   conspicuously disclose such processing, as well as the manner in
36   which a consumer may exercise the right to opt out of such
37   processing, in a clear and conspicuous manner.
38       (c) Controllers shall establish, and shall describe in the
39   privacy notice, one or more secure and reliable means for consumers
     Code Rev/JO:eab                  15                       H-4322.1/20
 1   to submit a request to exercise their rights under this chapter. Such
 2   means shall take into account the ways in which consumers interact
 3   with the controller, the need for secure and reliable communication
 4   of such requests, and the controller's ability to authenticate the
 5   identity of the consumer making the request. Controllers shall not
 6   require a consumer to create a new account in order to exercise a
 7   right, but a controller may require a consumer to use an existing
 8   account to exercise the consumer's rights under this chapter.
 9       (2) Purpose specification. A controller's collection of personal
10   data must be limited to what is reasonably necessary in relation to
11   the purposes for which such data are processed, as disclosed to the
12   consumer.
13       (3) Data minimization. A controller's collection of personal data
14   must be adequate, relevant, and limited to what is reasonably
15   necessary in relation to the purposes for which such data are
16   processed, as disclosed to the consumer.
17       (4) Avoid secondary use. Except as provided in this chapter, a
18   controller may not process personal data for purposes that are not
19   reasonably necessary to, or compatible with, the purposes for which
20   such personal data are processed, as disclosed to the consumer,
21   unless the controller obtains the consumer's consent.
22       (5) Security. A controller shall establish, implement, and
23   maintain reasonable administrative, technical, and physical data
24   security practices to protect the confidentiality, integrity, and
25   accessibility of personal data. Such data security practices shall be
26   appropriate to the volume and nature of the personal data at issue.
27       (6) Nondiscrimination. A controller may not process personal data
28   in violation of state and federal laws that prohibit unlawful
29   discrimination against consumers. A controller shall not discriminate
30   against a consumer for exercising any of the rights contained in this
31   chapter, including denying goods or services to the consumer,
32   charging different prices or rates for goods or services, and
33   providing a different level of quality of goods and services to the
34   consumer. This subsection shall not prohibit a controller from
35   offering a different price, rate, level, quality, or selection of
36   goods or services to a consumer, including offering goods or services
37   for no fee, if the offering is in connection with a consumer's
38   voluntary participation in a bona fide loyalty, rewards, premium
39   features, discounts, or club card program. A controller may not sell
40   personal data to a third-party controller as part of such a program
     Code Rev/JO:eab                  16                       H-4322.1/20
 1   unless: (a) The sale is reasonably necessary to enable the third
 2   party to provide a benefit to which the consumer is entitled; (b) the
 3   sale of personal data to third parties is clearly disclosed in the
 4   terms of the program; and (c) the third party uses the personal data
 5   only for purposes of facilitating such benefit to which the consumer
 6   is entitled and does not retain or otherwise use or disclose the
 7   personal data for any other purpose.
 8       (7) Sensitive data. Except as otherwise provided in this act, a
 9   controller may not process sensitive data concerning a consumer
10   without obtaining the consumer's consent, or, in the case of the
11   processing of personal data concerning a known child, without
12   obtaining consent from the child's parent or lawful guardian, in
13   accordance with the children's online privacy protection act
14   requirements.
15       (8) Nonwaiver of consumer rights. Any provision of a contract or
16   agreement of any kind that purports to waive or limit in any way a
17   consumer's rights under this chapter shall be deemed contrary to
18   public policy and shall be void and unenforceable.


19       NEW SECTION.      Sec. 9.      DATA PROTECTION ASSESSMENTS. (1)
20   Controllers must conduct and document a data protection assessment of
21   each of the following processing activities involving personal data:
22       (a) The processing of personal data for purposes of targeted
23   advertising;
24       (b) The sale of personal data;
25       (c) The processing of personal data for purposes of profiling,
26   where such profiling presents a reasonably foreseeable risk of: (i)
27   Unfair or deceptive treatment of, or disparate impact on, consumers;
28   (ii) financial, physical, or reputational injury to consumers; (iii)
29   a physical or other intrusion upon the solitude or seclusion, or the
30   private affairs or concerns, of consumers, where such intrusion would
31   be offensive to a reasonable person; or (iv) other substantial injury
32   to consumers;
33       (d) The processing of sensitive data; and
34       (e) Any processing activities involving personal data that
35   present a heightened risk of harm to consumers.
36       Such data protection assessments must take into account the type
37   of personal data to be processed by the controller, including the
38   extent to which the personal data are sensitive data, and the context
39   in which the personal data are to be processed.
     Code Rev/JO:eab                  17                       H-4322.1/20
 1       (2) Data protection assessments conducted under subsection (1) of
 2   this section must identify and weigh the benefits that may flow
 3   directly and indirectly from the processing to the controller,
 4   consumer, other stakeholders, and the public against the potential
 5   risks to the rights of the consumer associated with such processing,
 6   as mitigated by safeguards that can be employed by the controller to
 7   reduce such risks. The use of deidentified data and the reasonable
 8   expectations of consumers, as well as the context of the processing
 9   and the relationship between the controller and the consumer whose
10   personal data will be processed, must be factored into this
11   assessment by the controller.
12       (3) The attorney general may request, in writing, that a
13   controller disclose any data protection assessment that is relevant
14   to an investigation of the controller conducted by the attorney
15   general. The controller must make a data protection assessment
16   available to the attorney general upon such a request. The attorney
17   general may evaluate the data protection assessments for compliance
18   with the responsibilities contained in section 8 of this act and with
19   other laws including, but not limited to, chapter 19.86 RCW. Data
20   protection assessments are confidential and exempt from public
21   inspection and copying under chapter 42.56 RCW. The disclosure of a
22   data protection assessment pursuant to a request from the attorney
23   general under this subsection does not constitute a waiver of the
24   attorney-client privilege or work product protection with respect to
25   the assessment and any information contained in the assessment.
26       (4) Data protection assessments conducted by a controller for the
27   purpose of compliance with other laws or regulations may qualify
28   under this section if they have a similar scope and effect.

29       NEW SECTION.   Sec. 10.   LIMITATIONS AND APPLICABILITY. (1) The
30   obligations imposed on controllers or processors under this chapter
31   do not restrict a controller's or processor's ability to:
32       (a) Comply with federal, state, or local laws, rules, or
33   regulations;
34       (b) Comply with a civil, criminal, or regulatory inquiry,
35   investigation, subpoena, or summons by federal, state, local, or
36   other governmental authorities;
37       (c) Cooperate with law enforcement agencies concerning conduct or
38   activity that the controller or processor reasonably and in good


     Code Rev/JO:eab                  18                       H-4322.1/20
 1   faith believes may violate federal, state, or local laws, rules, or
 2   regulations;
 3       (d) Investigate, establish, exercise, prepare for, or defend
 4   legal claims;
 5       (e) Provide a product or service specifically requested by a
 6   consumer, perform a contract to which the consumer is a party, or
 7   take steps at the request of the consumer prior to entering into a
 8   contract;
 9       (f) Protect the vital interests of the consumer or of another
10   natural person;
11       (g) Prevent, detect, protect against, or respond to security
12   incidents, identity theft, fraud, harassment, malicious or deceptive
13   activities, or any illegal activity; preserve the integrity or
14   security of systems; or investigate, report, or prosecute those
15   responsible for any such action;
16       (h) Process personal data for reasons of public interest in the
17   areas of public health, or generalizable scientific, historical, or
18   statistical research, but solely to the extent that the processing is
19   (i) subject to suitable and specific measures to safeguard the rights
20   of the consumer; and (ii) under the responsibility of a professional
21   subject to confidentiality obligations under federal, state, or local
22   law; or
23       (i) Assist another controller, processor, or third party with any
24   of the obligations under this subsection.
25       (2) The obligations imposed on controllers or processors under
26   this chapter do not restrict a controller's or processor's ability to
27   collect, use, or retain data to:
28       (a) Conduct internal research to improve, repair, or develop
29   products, services, or technology;
30       (b) Identify and repair technical errors that impair existing or
31   intended functionality; or
32       (c) Perform internal operations that are reasonably aligned with
33   the expectations of the consumer based on the consumer's existing
34   relationship with the controller, or are otherwise compatible with
35   processing in furtherance of the provision of a product or service
36   specifically requested by a consumer or the performance of a contract
37   to which the consumer is a party.
38       (3) The obligations imposed on controllers or processors under
39   this chapter do not apply where compliance by the controller or
40   processor with this chapter would violate an evidentiary privilege
     Code Rev/JO:eab                  19                       H-4322.1/20
 1   under Washington law and do not prevent a controller or processor
 2   from providing personal data concerning a consumer to a person
 3   covered by an evidentiary privilege under Washington law as part of a
 4   privileged communication.
 5       (4) A controller or processor that discloses personal data to a
 6   third-party   controller  or   processor   in   compliance  with   the
 7   requirements of this chapter is not in violation of this chapter if
 8   the recipient processes such personal data in violation of this
 9   chapter, provided that, at the time of disclosing the personal data,
10   the disclosing controller or processor did not have actual knowledge
11   that the recipient intended to commit a violation. A third-party
12   controller or processor receiving personal data from a controller or
13   processor in compliance with the requirements of this chapter is
14   likewise not in violation of this chapter for the obligations of the
15   controller or processor from which it receives such personal data.
16       (5) Obligations imposed on controllers and processors under this
17   chapter shall not:
18       (a) Adversely affect the rights or freedoms of any persons, such
19   as exercising the right of free speech pursuant to the First
20   Amendment to the United States Constitution; or
21       (b) Apply to the processing of personal data by a natural person
22   in the course of a purely personal or household activity.
23       (6) Personal data that are processed by a controller pursuant to
24   this section must not be processed for any purpose other than those
25   expressly listed in this section. Personal data that are processed by
26   a controller pursuant to this section may be processed solely to the
27   extent that such processing is: (i) Necessary, reasonable, and
28   proportionate to the purposes listed in this section; and (ii)
29   adequate, relevant, and limited to what is necessary in relation to
30   the specific purpose or purposes listed in this section. Furthermore,
31   personal data that are collected, used, or retained pursuant to
32   subsection (2) of this section must, insofar as possible, taking into
33   account the nature and purpose or purposes of such collection, use,
34   or retention, be subjected to reasonable administrative, technical,
35   and physical measures to protect the confidentiality, integrity, and
36   accessibility of the personal data, and to reduce reasonably
37   foreseeable risks of harm to consumers relating to such collection,
38   use, or retention of personal data.
39       (7) If a controller processes personal data pursuant to an
40   exemption in this section, the controller bears the burden of
     Code Rev/JO:eab                  20                       H-4322.1/20
1    demonstrating that such processing qualifies for the exemption and
2    complies with the requirements in subsection (6) of this section.
3        (8) Processing personal data solely for the purposes expressly
4    identified in subsection (1)(a) through (d) or (g) of this section
5    does not, by itself, make an entity a controller with respect to such
6    processing.

 7       NEW SECTION.    Sec. 11.   LIABILITY. (1) Any violation of this
 8   chapter shall not serve as the basis for, or be subject to, a private
 9   right of action under this chapter or under any other law. This does
10   not relieve any party from any duties or obligations imposed, or to
11   alter any independent rights that consumers have under other laws,
12   chapter 19.86 RCW, the Washington state Constitution, or the United
13   States Constitution.
14       (2) Where more than one controller or processor, or both a
15   controller and a processor, involved in the same processing, is in
16   violation of this chapter, the liability must be allocated among the
17   parties according to principles of comparative fault.


18       NEW SECTION. Sec. 12. ENFORCEMENT. (1) The attorney general has
19   exclusive authority to enforce this chapter by bringing an action in
20   the name of the state, or as parens patriae on behalf of persons
21   residing in the state.
22       (2) Any controller or processor that violates this chapter is
23   subject to an injunction and liable for a civil penalty of not more
24   than seven thousand five hundred dollars for each violation.


25       NEW SECTION.   Sec. 13.   CONSUMER PRIVACY ACCOUNT. The consumer
26   privacy account is created in the state treasury. All receipts from
27   the imposition of civil penalties under this chapter must be
28   deposited into the account except for the recovery of costs and
29   attorneys' fees accrued by the attorney general in enforcing this
30   chapter. Moneys in the account may be spent only after appropriation.
31   Moneys in the account may only be used for the purposes of the office
32   of privacy and data protection as created under RCW 43.105.369, and
33   may not be used to supplant general fund appropriations to the
34   agency.


35       NEW SECTION.  Sec. 14.   PREEMPTION. This chapter supersedes and
36   preempts laws, ordinances, regulations, or the equivalent adopted by
     Code Rev/JO:eab                  21                       H-4322.1/20
1    any local entity regarding    the   processing   of   personal   data   by
2    controllers or processors.


3        NEW SECTION. Sec. 15. ATTORNEY GENERAL REPORT. (1) The attorney
4    general shall compile a report evaluating the liability and
5    enforcement provisions of this chapter including, but not limited to,
6    the effectiveness of its efforts to enforce this chapter, and any
7    recommendations for changes to such provisions.
8        (2) The attorney general shall submit the report to the governor
9    and the appropriate committees of the legislature by July 1, 2022.


10       NEW SECTION. Sec. 16. JOINT RESEARCH INITIATIVES. The governor
11   may enter into agreements with the governments of the Canadian
12   province of British Columbia and the states of California and Oregon
13   for the purpose of sharing personal data or personal information by
14   public   bodies  across   national  and   state   borders to enable
15   collaboration for joint data-driven research initiatives. Such
16   agreements must provide reciprocal protections that the respective
17   governments agree appropriately safeguard the data.


18       NEW SECTION.   Sec. 17.   FACIAL RECOGNITION. (1) Processors that
19   provide   facial  recognition   services   must  make   available   an
20   application programming interface or other technical capability,
21   chosen by the processor, to enable controllers or third parties to
22   conduct legitimate, independent, and reasonable tests of those facial
23   recognition services for accuracy and unfair performance differences
24   across distinct subpopulations: PROVIDED, That making such an
25   application programming interface or other technical capability
26   available does not require the disclosure of proprietary data, trade
27   secrets, intellectual property, or other information, or if doing so
28   would   increase  the   risk   of   cyberattacks  including,   without
29   limitation, cyberattacks related to unique methods of conducting
30   business, data unique to the product or services, or determining
31   prices or rates to be charged for services. Such subpopulations are
32   defined by visually detectable characteristics, such as (a) race,
33   skin tone, ethnicity, gender, age, or disability status, or (b) other
34   protected characteristics that are objectively determinable or self-
35   identified by the individuals portrayed in the testing dataset. If
36   the results of that independent testing identify material unfair
37   performance differences across subpopulations and the methodology,
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 1   data, and results are disclosed in a manner that allow full
 2   reproduction of the testing directly to the processor, who, acting
 3   reasonably, determines that the methodology and results of that
 4   testing are valid, then the processor must develop and implement a
 5   plan to mitigate the identified performance differences. Nothing in
 6   this subsection prevents a processor from prohibiting the use of the
 7   processor's   facial  recognition   service   by  a   competitor for
 8   competitive purposes.
 9       (2) Processors that provide facial recognition services must
10   provide documentation that includes general information that:
11       (a) Explains the capabilities and limitations of the services in
12   plain language; and
13       (b) Enables testing of the services in accordance with this
14   section.
15       (3) Processors that provide facial recognition services must
16   prohibit, in the contract required by section 5 of this act, the use
17   of   facial  recognition   services  by   controllers  to  unlawfully
18   discriminate under federal or state law against individual consumers
19   or groups of consumers.
20       (4) Controllers must provide a conspicuous and contextually
21   appropriate notice whenever a facial recognition service is deployed
22   in a physical premise open to the public that includes, at minimum,
23   the following:
24       (a) The purpose or purposes for which the facial recognition
25   service is deployed; and
26       (b) Information about where consumers can obtain additional
27   information about the facial recognition service including, but not
28   limited to, a link to any applicable online notice, terms, or policy
29   that provides information about where and how consumers can exercise
30   any rights that they have with respect to the facial recognition
31   service.
32       (5) Controllers must obtain consent from a consumer prior to
33   enrolling an image of that consumer in a facial recognition service
34   used in a physical premise open to the public.
35       (6) As an exception to subsection (5) of this section,
36   controllers may enroll an image of a consumer in a facial recognition
37   service for a security or safety purpose without first obtaining
38   consent from that consumer, provided that all of the following
39   requirements are met:


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 1       (a) The controller must hold a reasonable suspicion, based on a
 2   specific incident, that the consumer has engaged in criminal
 3   activity, which includes, but is not limited to, shoplifting, fraud,
 4   stalking, or domestic violence;
 5       (b) Any database used by a facial recognition service for
 6   identification, verification, or persistent tracking of consumers for
 7   a security or safety purpose must be used solely for that purpose and
 8   maintained separately from any other databases maintained by the
 9   controller;
10       (c) The controller must review any such database used by the
11   controller's facial recognition service no less than annually to
12   remove facial templates of consumers whom the controller no longer
13   holds a reasonable suspicion that they have engaged in criminal
14   activity; and
15       (d) The controller must establish an internal process whereby a
16   consumer may correct or challenge the decision to enroll the image of
17   the consumer in a facial recognition service for a security or safety
18   purpose.
19       (7) Controllers using a facial recognition service to make
20   decisions that produce legal effects on consumers or similarly
21   significant effects on consumers must ensure that those decisions are
22   subject to meaningful human review.
23       (8) Prior to deploying a facial recognition service in the
24   context in which it will be used, controllers using a facial
25   recognition service to make decisions that produce legal effects on
26   consumers or similarly significant effects on consumers must test the
27   facial recognition service in operational conditions. Controllers
28   must take commercially reasonable steps to ensure best quality
29   results by following all reasonable guidance provided by the
30   developer of the facial recognition service.
31       (9) Controllers using a facial recognition service must conduct
32   periodic training of all individuals that operate a facial
33   recognition service or that process personal data obtained from the
34   use of facial recognition services. Such training shall include, but
35   not be limited to, coverage of:
36       (a) The capabilities and limitations of the facial recognition
37   service;
38       (b) Procedures to interpret and act on the output of the facial
39   recognition service; and


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 1       (c) The meaningful human review requirement for decisions that
 2   produce legal effects on consumers or similarly significant effects
 3   on consumers, to the extent applicable to the deployment context.
 4       (10) Controllers shall not knowingly disclose personal data
 5   obtained from a facial recognition service to a law enforcement
 6   agency, except when such disclosure is:
 7       (a) Pursuant to the consent of the consumer to whom the personal
 8   data relates;
 9       (b) Required by federal, state, or local law in response to a
10   court order, court-ordered warrant, or subpoena or summons issued by
11   a judicial officer or grand jury;
12       (c) Necessary to prevent or respond to an emergency involving
13   danger of death or serious physical injury to any person, upon a good
14   faith belief by the controller; or
15       (d) To the national center for missing and exploited children, in
16   connection with a report submitted thereto under Title 18 U.S.C. Sec.
17   2258A.
18       (11) Controllers that deploy a facial recognition service must
19   respond to a consumer request to exercise the rights specified in
20   section 6 of this act and must fulfill the duties identified in
21   section 8 of this act.
22       (12) Voluntary facial recognition services used to verify an
23   aviation passenger's identity in connection with services regulated
24   by the secretary of transportation under Title 49 U.S.C. Sec. 41712
25   and exempt from state regulation under Title 49 U.S.C. Sec.
26   41713(b)(1) are exempt from section 18 of this act. Images captured
27   by an airline must not be retained for more than twenty-four hours
28   and, upon request of the attorney general, airlines must certify that
29   they do not retain the image for more than twenty-four hours. An
30   airline facial recognition service must disclose and obtain consent
31   from the customer prior to capturing an image.

32       NEW SECTION. Sec. 18. Sections 1 through 17 and 19 of this act
33   constitute a new chapter in Title 19 RCW.


34      NEW SECTION.   Sec. 19.   This act takes effect July 31, 2021.

                                   --- END ---




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