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Privacy Comparison: 2SSB 6281 and SHB 2742 — Definitions and Relevant Bill Provisions

Summary

A privacy comparison of 2SSB 6281 and SHB 2742, prepared by Yelena Baker (OPR nonpartisan staff) for the ITED Committee and dated February 21, 2020. It sets out the provisions of the two bills in side-by-side columns, with a column of relevant bill provisions. The definitions section gives the definition of child as a person under thirteen years of age in one column and under eighteen years of age in the other. A joint research initiatives entry says the governor may enter into agreements with the governments of the Canadian province of British Columbia and the states of California and Oregon for sharing personal data.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Cite this document

“Privacy Comparison: 2SSB 6281 and SHB 2742 — Definitions and Relevant Bill Provisions.” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2020-02-26-a26766-d217984-privacy-comparison-2ssb-6281-and-shb-2742-02-92630c8a3f/, SHA-256 ad716672130b44ea0dcc3eb9c8b1ef45763f17eceee5230ec1a3c8155136c59d.

Full text

                                                              PRIVACY COMPARISON: 2SSB 6281 and SHB 2742


     Definitions                                2SSB 6281                                   SHB 2742                             Relevant bill provisions
       Section 3
                            "Child" means any natural person under          "Child" means any natural person under         Sec. 3(34)
 "Child"                    thirteen years of age.                          eighteen years of age.                         Personal data from a known child is
                                                                                                                           included in the definition of "sensitive
                                                                                                                           data"

                                                                                                                           Sec. 6
                                                                                                                           In the case of processing personal data
                                                                                                                           of a known child, the parent or legal
                                                                                                                           guardian of the known child shall
                                                                                                                           exercise the consumer personal data
                                                                                                                           rights on the child's behalf.

                                                                                                                           Sec. 8(7)
                                                                                                                           Controllers may not process sensitive
                                                                                                                           data without consumer consent or
                                                                                                                           parental consent (in accordance with
                                                                                                                           COPPA), in the case of processing
                                                                                                                           personal data of a child.

                            "Consumer" means a natural person who           "Consumer" means a natural person who
 "Consumer"                 is a Washington resident acting only in an      is a Washington resident acting only in an     Used throughout the bill
                            individual or household context. It does not    individual or household context. It does not
                            include a natural person acting in a            include a natural person acting in an
                            commercial or employment context.               employment context.

                            "Deidentified data" means data that cannot      "Deidentified data" means data that cannot     "Personal data" does not include
 "Deidentified              reasonably be used to infer information         be used to infer information about, or         deidentified data.
 data"                      about, or otherwise be linked to, an            otherwise be linked to, an identified or
                            identified or identifiable natural person, or   identifiable natural person, or a device       Sec. 7(1)
                            a device linked to such person, provided        linked to such person, provided that the       Controllers or processors are not
                            that the controller that possesses the data:    controller that possesses the data:            required to reidentify deidentified data
                            (a) Takes reasonable measures to ensure         (a) Takes measures to ensure that the          solely to comply with this act.
                            that the data cannot be associated with a       data cannot be associated with a natural
                            natural person;                                 person, device, or household;                  Sec. 7(3)
                            (b) publicly commits to maintain and use        (b) publicly commits to maintain and use       Controllers using deidentified data must
                            the data only in a deidentified fashion and     the data only in a deidentified fashion and    exercise reasonable oversight to
                            not attempt to reidentify the data; and         not attempt to reidentify the data; and        monitor compliance with any contractual
                                                                                                                           commitments to which deidentified data


Prepared by Yelena Baker (OPR nonpartisan staff) for the ITED Committee              1                                                                   February 21, 2020
                                                              PRIVACY COMPARISON: 2SSB 6281 and SHB 2742


                            (c) contractually obligates any recipients of   (c) contractually obligates any recipients of   are subject and must take appropriate
                            the information to comply with all              the information to comply with all              steps to address any breaches of
 "Deidentified              provisions of this subsection.                  provisions of this subsection.                  contractual commitments.
 data"
 (cont'd)                                                                                                                   Sec. 9(2)
                                                                                                                            The use of deidentified data must be
                                                                                                                            factored into a data protection
                                                                                                                            assessment by a controller when
                                                                                                                            identifying and weighing the benefits
                                                                                                                            from the processing to the controller,
                                                                                                                            consumer, other stakeholders, and the
                                                                                                                            public against the potential risks to
                                                                                                                            consumer rights.

                            "Personal data" means any information           "Personal data" means any information
 "Personal data"            that is linked or reasonably linkable to an     that is linked or reasonably linkable to an     Used throughout the bill
                            identified or identifiable natural person.      identified or identifiable natural person.
                            "Personal data" does not include                "Personal data" does not include
                            deidentified data or publicly available         deidentified data or publicly available
                            information.                                    information.

                            "Publicly available information" means          "Publicly available information" means
                            information that is lawfully made available     information that is lawfully made available
                            from federal, state, or local government        from federal, state, or local government
                            records.                                        records and not combined with personal
                                                                            data obtained from sources other than
                                                                            federal, state, or local government records.

                            "Pseudonymous data" means personal              "Pseudonymous data" means personal              Sec. 7(2)
 "Pseudonymous              data that cannot be attributed to a specific    data that cannot be attributed to a specific    Except for the right to opt out, consumer
 data"                      natural person without the use of               natural person without the use of               personal data rights do not apply to
                            additional information, provided that such      additional information, provided that such      pseudonymous data where the
                            additional information is kept separately       additional information is not readily           controller is able to demonstrate any
                            and is subject to appropriate technical and     available and is subject to appropriate         information necessary to identify the
                            organizational measures to ensure that the      technical and organizational measures to        consumer is kept separately and is
                            personal data are not attributed to an          ensure that the personal data cannot            subject to effective technical and
                            identified or identifiable natural person.      reasonably be attributed to an identified or    organizational controls that prevent the
                                                                            identifiable natural person.                    controller from accessing such
                                                                                                                            information.




Prepared by Yelena Baker (OPR nonpartisan staff) for the ITED Committee              2                                                                  February 21, 2020
                                                              PRIVACY COMPARISON: 2SSB 6281 and SHB 2742


                            "Sale," "sell," or "sold" means the              "Sale," "sell," or "sold" means selling,         Sec. 4(1)(b)
 "Sale"                     exchange of personal data for monetary or        renting, releasing, disclosing,                  A legal entity is subject to the
                            other valuable consideration by the              disseminating, making available,                 obligations in this act if it derives over
                            controller to a third party.                     transferring, or otherwise communicating         50% of gross revenue from the sale of
                                                                             personal data, orally, in writing, or by         personal data and processes or controls
                                                                             electronic means, for monetary or other          personal data of at least 25,000
                                                                             valuable consideration, or otherwise for a       consumers.
                                                                             commercial purpose by a controller to a
                                                                             third party.                                     Sec. 4(2)
                                                                                                                              "Sale" is used in several exemptions.
                            "Sale" does not include the following:           "Sale" does not include the following:
                                                                                                                              Sec. 6(5)
                            (i) The disclosure of personal data to a         (i) The processing of personal data by a         A consumer has the right to opt out of
                            processor who processes the personal             processor who processes the personal             the sale of personal data.
                            data on behalf of the controller;                data on behalf of the controller pursuant to
                                                                             a contract;                                      Sec. 8(1)
                                                                                                                              Controllers must clearly disclose
                            (ii) the disclosure of personal data to a        (ii) the disclosure of personal data to a        whether they sell personal data to third
                            third party with whom the consumer has a         third party with whom the consumer has a         parties.
                            direct relationship for purposes of              direct relationship for purposes of
                            providing a product or service requested         providing a product or service requested         Sec. 8(6)
                            by the consumer;                                 by the consumer;                                 A controller may not sell personal data
                                                                                                                              obtained through a loyalty program,
                            (iii) the disclosure or transfer of personal     (iii) the disclosure or transfer of personal     unless specified conditions are met.
                            data to an affiliate of the controller;          data to an affiliate of the controller;
                                                                                                                              Sec. 9(1)
                            (iv) the disclosure of information that the      (iv) the disclosure of information that the      Controllers must conduct and document
                            consumer (A) intentionally made available        consumer (A) intentionally made available        a data protection assessment for each
                            to the general public via a channel of mass      to the general public via a channel of mass      processing activity related to the sale of
                            media, and (B) did not restrict to a specific    media, and (B) did not restrict to a specific    personal data.
                            audience; or                                     audience; or

                            (v) the disclosure or transfer of personal       (v) the disclosure or transfer of personal
                            data to a third party as an asset that is part   data to a third party as an asset that is part
                            of a merger, acquisition, bankruptcy, or         of a merger, acquisition, bankruptcy, or
                            other transaction in which the third party       other transaction in which the third party
                            assumes control of all or part of the            assumes control of all or part of the
                            controller's assets.                             controller's assets.




Prepared by Yelena Baker (OPR nonpartisan staff) for the ITED Committee               3                                                                    February 21, 2020
                                                              PRIVACY COMPARISON: 2SSB 6281 and SHB 2742


    Jurisdictional
        Scope                                                  2SSB 6281                                                  SBH 2742
      Section 4
                               Legal entities that conduct business in Washington or produce   Legal entities that conduct business in Washington or produce
 To whom                       products or services that are targeted to residents of          products or services that are targeted to residents of
 obligations apply             Washington, and that satisfy one or more of the following       Washington.
                               thresholds:

                               (a) During a calendar year, controls or processes personal
                               data of 100,000 consumers or more; or

                               (b) Derives over 50% of gross revenue from the sale of
                               personal data and processes or controls personal data of
                               25,000 consumers or more.


 Exempt entities               (a) State agencies, local governments, or tribes;               (a) State and local governments;
                               (b) Municipal corporations;                                     (b) Municipal corporations;
                                                                                               (c) Legal entities that:
                                                                                                    (i) Have fewer than 10 employees;
                                                                                                    (ii) Have gross annual revenues of less than $5 million;
                                                                                                    (iii) Derive less than 5% of annual gross revenues from the
                                                                                                          sale or monetization of personal data at fair market
                                                                                                          value;
                                                                                                    (iv) Control or process personal data of fewer than 20,000
                                                                                                          consumers; AND
                                                                                                    (v) Do not disclose or share personal data of consumers
                                                                                                          other than:
                                                                                                          (A) As necessary for providing products or services
                                                                                                          requested by consumers; or
                                                                                                          (B) For purposes of selling or monetizing personal data
                                                                                                          within the limits set in (c)(iii) of this subsection.

                               Personal data subject to enumerated federal and state laws,     Personal data subject to enumerated federal and state laws,
 Exempt                        such as HIPAA, FCRA, GLBA, and the Farm Credit Act.             such as HIPAA, FCRA, GLBA, and the Farm Credit Act.
 information
                               Certain information is exempt only to the extent that its       Certain information is exempt only to the extent that its
                               collection or processing is in compliance with the federal or   collection or processing is in substantial compliance with the
                               state law to which the information is subject.                  federal or state law to which the information is subject.



Prepared by Yelena Baker (OPR nonpartisan staff) for the ITED Committee              4                                                              February 21, 2020
                                                              PRIVACY COMPARISON: 2SSB 6281 and SHB 2742



                               Data maintained for employment record purposes is exempt.          Data maintained for employment record purposes is exempt
 Exempt                                                                                           until July 31, 2022.
 information
 (cont'd)                      Institutions of higher education and nonprofit corporations are
                               exempt until July 31, 2024.



 Other                         Controllers that are in compliance with the verifiable parental    n/a
 jurisdictional                consent mechanisms under the Children's Online Privacy
 provisions                    Protection Act (COPPA) shall be deemed compliant with any
                               obligation to obtain parental consent under this chapter




     Responsibility
    according to role                                                 2SSB 6281                                                SHB 2742
        Section 5

                                     Controllers and processors are responsible for meeting their respective obligations. Whether an entity is a processor or a
 Responsibility                      controller with respect to specific processing of personal data is a fact-based determination.
 according to role
                                     Processing by a processor is governed by a contract between the controller and the processor that sets out the processing
                                     instructions and other specified requirements. Processors are responsible for adhering to the instructions of the controller
                                     and assisting the controller in meeting its obligations.

                                     Processors must also implement and maintain reasonable security procedures to protect personal data, ensure
                                     confidentiality of the processing, and engage subcontractors only after certain requirements are met.




Prepared by Yelena Baker (OPR nonpartisan staff) for the ITED Committee              5                                                                 February 21, 2020
                                                              PRIVACY COMPARISON: 2SSB 6281 and SHB 2742


  Consumer rights                                            2SSB 6281                                                      SHB 2742
     Section 6

 Consumer rights                In the case of processing personal data concerning a          Where a controller processes personal data concerning a known
 generally                      known child, the parent or legal guardian of the known        child, the controller must allow the parent or legal guardian of the
                                child shall exercise the rights of this chapter on the        known child to exercise the rights of this chapter on the child's
                                child's behalf.                                               behalf.

                                                                                              Where a controller processes personal data concerning a consumer
                                                                                              subject to guardianship, conservatorship, or other protective
                                                                                              arrangement under chapter 11.130 RCW, the controller must allow
                                                                                              the guardian or the conservator to exercise the rights of this chapter
                                                                                              on the consumer's behalf.

 Consumer rights                The rights of access, correction, deletion, and data portability do not apply to pseudonymous data in cases where the controller
 and pseudonymous               is able to demonstrate any information necessary to identify the consumer is kept separately and is subject to effective
 data                           technical, contractual, and organizational controls that prevent the controller from accessing such information.

                                A consumer has the right to confirm whether or not a controller is processing personal data concerning the consumer and
 Right of access                access such personal data.

                                A consumer has the right to correct inaccurate personal       A consumer has the right to correct inaccurate personal data
 Right to correction            data concerning the consumer, taking into account the         concerning the consumer.
                                nature of the personal data and the purposes of the
                                processing of the personal data.

 Right to deletion              A consumer has the right to delete personal data concerning the consumer.

                                A consumer has the right to obtain personal data concerning the consumer, which the consumer previously provided to the
 Right to data                  controller, in a portable and, to the extent technically feasible, readily usable format that allows the consumer to transmit the
 portability                    data to another controller without hindrance, where the processing is carried out by automated means.

                                A consumer has the right to opt out of the processing of      A consumer has the right to opt out of the processing of personal
 Right to opt out               personal data concerning such consumer for purposes of        data concerning such consumer.
                                targeted advertising, the sale of personal data, or
                                profiling in furtherance of decisions that produce legal
                                effects concerning a consumer or similarly significant
                                effects concerning a consumer.




Prepared by Yelena Baker (OPR nonpartisan staff) for the ITED Committee              6                                                                   February 21, 2020
                                                              PRIVACY COMPARISON: 2SSB 6281 and SHB 2742



 Responding to                  A controller must inform a consumer of any action taken        A controller must inform a consumer of any action taken on a
 consumer requests              on a request without undue delay and in any event within       request without undue delay and in any event within 21 days of
                                45 days of receipt of the request.                             receipt of the request.

                                That period may be extended once by 45 additional days         That period may be extended once by 45 additional days where
                                where reasonably necessary, taking into account the            necessary, taking into account the complexity and number of the
                                complexity and number of the requests.                         requests.

                                The controller must inform the consumer of any such            The controller must inform the consumer of any such extension
                                extension within 45 days of receipt of the request,            within 21 days of receipt of the request, together with the reasons
                                together with the reasons for the delay.                       for the delay.

                                If a controller does not take action on the request of a       If a controller does not take action on the request of a consumer,
                                consumer, the controller must inform the consumer              the controller must inform the consumer without undue delay and at
                                without undue delay and at the latest within 45 days of        the latest within 21 days of receipt of the request of the reasons for
                                receipt of the request of the reasons for not taking action    not taking action and instructions for how to appeal the decision with
                                and instructions for how to appeal the decision with the       the controller.
                                controller.


 Authenticating a               A controller is not required to comply with a request to       A controller is not required to comply with a request to exercise any
 consumer request               exercise any of the rights [other than the right to opt out]   of the rights [other than the right to opt out] if the controller is unable
                                if the controller is unable to authenticate the request        to authenticate the request.
                                using commercially reasonable efforts.

                                In such cases, the controller may request the provision of     In such cases, the controller may request the provision of additional
                                additional information reasonably necessary to                 information necessary to authenticate the request.
                                authenticate the request.


 Charging a fee to              Information provided under this section must be provided by the controller free of charge, up to twice annually to the consumer.
 fulfill a consumer
 request                        Where requests from a consumer are manifestly unfounded or excessive, in particular because of their repetitive character, the
                                controller may either:
                                    (i) Charge a reasonable fee to cover the administrative costs of complying with the request, or
                                    (ii) Refuse to act on the request.

                                The controller bears the burden of demonstrating the manifestly unfounded or excessive character of the request.




Prepared by Yelena Baker (OPR nonpartisan staff) for the ITED Committee                7                                                                     February 21, 2020
                                                              PRIVACY COMPARISON: 2SSB 6281 and SHB 2742



 Notifying third                n/a                                                         A controller must take reasonable steps to communicate a
 parties of                                                                                 consumer's request to correct, delete, or opt out of the processing of
 consumer requests                                                                          personal data to each third party to whom the controller disclosed,
                                                                                            including through sale, the personal data within one year preceding
                                                                                            the consumer's request, unless this proves functionally impractical,
                                                                                            technically infeasible, or involves disproportionate effort.


                                Controllers must establish an internal process whereby      Controllers must establish an internal process whereby consumers
 Internal appeal                consumers may appeal a refusal to take action on a          may appeal a refusal to take action on a request to exercise any of
 process                        request to exercise any of the rights within a reasonable   the rights within 45 days of the consumer's receipt of the notice sent
                                period of time after the consumer's receipt of the notice   by the controller.
                                sent by the controller.


                                The appeal process must be conspicuously available and as easy to use as the process for consumer rights requests.

                                Within 30 days of receipt of an appeal, a controller must inform the consumer of any action taken or not taken in response to the
                                appeal, along with a written explanation of the reasons in support thereof.

                                That period may be extended by 60 additional days where necessary, taking into account the complexity and number of the
                                requests serving as the basis for the appeal. The controller must inform the consumer of any such extension within 30 days of
                                receipt of the appeal, together with the reasons for the delay.

                                The controller must also provide the consumer with an email address or other online mechanism through which the consumer
                                may submit the appeal, along with any action taken or not taken by the controller in response to the appeal and the controller's
                                written explanation of the reasons in support thereof, to the Attorney General.

                                When informing a consumer of any action taken or not taken in response to an appeal, the controller must clearly and
                                prominently ask the consumer whether the consumer consents to having the controller submit the appeal, along with any action
                                taken or not taken by the controller in response to the appeal and must, upon request, provide the controller's written
                                explanation of the reasons in support thereof, to the Attorney General. If the consumer provides such consent, the controller
                                must submit such information to the Attorney General.




Prepared by Yelena Baker (OPR nonpartisan staff) for the ITED Committee             8                                                                 February 21, 2020
                                                              PRIVACY COMPARISON: 2SSB 6281 and SHB 2742


   Responsibilities of
    Controllers and                                                  2SSB 6281                                                    SHB 2742
      Processors
     Sections 7 - 9
                                     Controllers shall provide consumers with a reasonably accessible, clear, and meaningful privacy notice that includes:
 Transparency
                                          (i) The categories of personal data processed by the controller;
                                          (ii) The purposes for which the categories of personal data are processed;
                                          (iii) How and where consumers may exercise the rights, including how a consumer may appeal a controller's action with
                                                regard to the consumer's request;
                                          (iv) The categories of personal data that the controller shares with third parties, if any; and
                                          (v) The categories of third parties, if any, with whom the controller shares personal data.

                                     If a controller sells personal data to third parties or processes personal data for targeted advertising, it must 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, in a clear and conspicuous manner.

                                     Controllers shall establish, and shall describe in the privacy notice, one or more secure and reliable means for consumers to
                                     submit a request to exercise their rights under this chapter. Such means shall take into account the ways in which
                                     consumers interact with the controller, the need for secure and reliable communication of such requests, and the controller's
                                     ability to authenticate the identity of the consumer making the request.

                                     Controllers shall not require a consumer to create a new account in order to exercise a right, but a controller may require a
                                     consumer to use an existing account to exercise the consumer's rights under this chapter.


 Purpose specification               A controller's collection of personal data must be limited to what is reasonably necessary in relation to the purposes for
                                     which such data are processed, as disclosed to the consumer.


 Data minimization                   A controller's collection of personal data must be adequate,        A controller's collection of personal data must be only as
                                     relevant, and limited to what is reasonably necessary in            reasonably necessary to provide services requested by a
                                     relation to the purposes for which such data are processed, as      consumer, to conduct an activity that a consumer has
                                     disclosed to the consumer.                                          requested, or to verify [consumer rights] requests.

                                     Except as provided in this chapter, a controller may not process personal data for purposes that are not reasonably
 Avoid secondary use                 necessary to, or compatible with, the purposes for which such personal data are processed, as disclosed to the consumer,
                                     unless the controller obtains the consumer's consent.




Prepared by Yelena Baker (OPR nonpartisan staff) for the ITED Committee               9                                                                   February 21, 2020
                                                              PRIVACY COMPARISON: 2SSB 6281 and SHB 2742



 Security                            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.


 Nondiscrimination                   A controller may not process personal data in violation of state and federal laws that prohibit unlawful discrimination against
 and responsibilities                consumers. A controller shall not discriminate against a consumer for exercising any of the rights contained in this chapter,
 related to loyalty                  including denying goods or services to the consumer, charging different prices or rates for goods or services, and providing
 programs                            a different level of quality of goods and services to the consumer.

                                     This subsection shall not 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 offering is in connection with a consumer's
                                     voluntary participation in a bona fide loyalty, rewards, premium features, discounts, or club card program.

                                     A controller may not sell personal data to a third-party controller as part of such a program unless: (a) The sale is reasonably
                                     necessary to enable the third party to provide a benefit to which the consumer is entitled; (b) the sale of personal data to
                                     third parties is clearly disclosed in the terms of the program; and (c) the third party uses the personal data only for purposes
                                     of facilitating such benefit to which the consumer is entitled and does not retain or otherwise use or disclose the personal
                                     data for any other purpose.

                                     A controller may not enroll a consumer in a facial recognition       n/a
                                     service in connection with a bona fide loyalty, rewards,
                                     premium features, discounts, or club card program.


 Processing sensitive                Except as otherwise provided in this act, a controller may not       Except as otherwise provided in this act, a controller may
 data                                process sensitive data concerning a consumer without                 not process sensitive data concerning a consumer without
                                     obtaining the consumer's consent, or, in the case of the             obtaining the consumer's consent. Except as otherwise
                                     processing of personal data concerning a known child, without        provided in this act, a controller may not process sensitive
                                     obtaining consent from the child's parent or lawful guardian, in     data of a known child without obtaining consent from the
                                     accordance with the COPPA requirements.                              child's parent or lawful guardian.

 Nonwaiver of                        Any provision of a contract or agreement of any kind that purports to waive or limit in any way a consumer's rights under this
 consumer rights                     chapter shall be deemed contrary to public policy and shall be void and unenforceable.

 Using deidentified or               A controller that uses pseudonymous data or deidentified data must exercise reasonable oversight to monitor compliance
 pseudonymous data                   with any contractual commitments to which the pseudonymous data or deidentified data are subject, and must take
                                     appropriate steps to address any breaches of contractual commitments.




Prepared by Yelena Baker (OPR nonpartisan staff) for the ITED Committee                10                                                                   February 21, 2020
                                                              PRIVACY COMPARISON: 2SSB 6281 and SHB 2742


                                     Controllers must conduct and document a data protection assessment of each of the following processing
 Conducting data                     activities involving personal data:
 protection
 assessments                         (a) The processing of personal data for purposes of targeted advertising;
                                     (b) The sale of personal data;
                                     (c) The processing of personal data for purposes of profiling, where such profiling presents a reasonably foreseeable risk of:
                                          (i) Unfair or deceptive treatment of, or disparate impact on, consumers;
                                          (ii) Financial, physical, or reputational injury to consumers;
                                          (iii) 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; or
                                          (iv) Other substantial injury to consumers;
                                     (d) The processing of sensitive data; and
                                     (e) Any processing activities involving personal data that present a heightened risk of harm to consumers.

                                     Such data protection assessments must take into account the type of personal data to be processed by the controller,
                                     including the extent to which the personal data are sensitive data, and the context in which the personal data are to be
                                     processed.

                                     Data protection assessments must identify and weigh the benefits that may flow directly and indirectly from the processing to
                                     the controller, 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, must be factored into this
                                     assessment by the controller.

                                     The Attorney General may evaluate the data protection assessments for compliance with the responsibilities [of the
                                     controllers and processors] and with other laws including, but not limited to, chapter 19.86 RCW.

                                     Data protection assessments are confidential and exempt from public inspection and copying under chapter 42.56 RCW.

                                     Data protection assessments conducted by a controller for the purpose of compliance with other laws or regulations may
                                     qualify under this section if they have a similar scope and effect

                                     The Attorney General may request, in writing, that a controller   The Attorney General may request, in writing, that a
                                     disclose any data protection assessment that is relevant to an    controller disclose any data protection assessment that is
                                     investigation conducted by the Attorney General.                  relevant to an investigation of the controller conducted by
                                                                                                       the Attorney General.




Prepared by Yelena Baker (OPR nonpartisan staff) for the ITED Committee              11                                                                February 21, 2020
                                                              PRIVACY COMPARISON: 2SSB 6281 and SHB 2742


   Limitations to the
   responsibilities of                                             2SSB 6281                                                     SHB 2742
    controllers and
      processors
                                    This chapter does not require a controller or processor to do any of the following solely for purposes of complying
                                    with this chapter:
 Limitations to the                 (a) Reidentify deidentified data;
 responsibilities of
 controllers and                    (b) Comply with an authenticated consumer request to               (b) Comply with an authenticated consumer request to
 processors                         access, correct, delete, or port personal data, if all of the      access, correct, delete, or port personal data, if all of the
 Sec. 7                             following are true:                                                following are true:
                                         (i) (A) The controller is not reasonably capable of                (i) (A) The controller is not capable of associating the
                                               associating the request with the personal data, or                 request with the personal data, or
                                               (B) it would be unreasonably burdensome for the                    (B) it would be unusually burdensome for the
                                               controller to associate the request with the personal              controller to associate the request with the personal
                                               data;                                                              data;
                                         (ii) The controller does not use the personal data to              (ii) The controller does not use the personal data to
                                               recognize or respond to the specific consumer who                  recognize or respond to the specific consumer who is
                                               is the subject of the personal data, or associate the              the subject of the personal data, or associate the
                                               personal data with other personal data about the                   personal data with other personal data about the
                                               same specific consumer; and                                        same specific consumer; and
                                         (iii) The controller does not sell the personal data to any        (iii) The controller does not sell the personal data to any
                                               third party or otherwise voluntarily disclose the                  third party or otherwise voluntarily disclose the
                                               personal data to any third party other than a                      personal data to any third party other than a
                                               processor, except as otherwise permitted in this                   processor, except as otherwise permitted in this
                                               section; or                                                        section; or

                                    (c) Maintain data in identifiable form, or collect, obtain, retain, or access any data or technology, in order to be capable of
                                    associating an authenticated consumer request with personal data.

 Limitations to the                 The obligations imposed on controllers or processors do not restrict a controller's or processor's ability to:
 responsibilities of                (a) Comply with federal, state, or local laws, rules, or regulations;
 controllers and                    (b) Comply with a civil, criminal, or regulatory inquiry, investigation, subpoena, or summons by federal, state, local, or other
 processors                         governmental authorities;
 Sec. 10                            (c) 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;
                                    (d) Investigate, establish, exercise, prepare for, or defend legal claims;
                                    (e) Provide a product or service specifically requested by a consumer, perform a contract to which the consumer is a party,
                                    or take steps at the request of the consumer prior to entering into a contract;



Prepared by Yelena Baker (OPR nonpartisan staff) for the ITED Committee               12                                                                  February 21, 2020
                                                              PRIVACY COMPARISON: 2SSB 6281 and SHB 2742


                                    The obligations imposed on controllers or processors do not restrict a controller's or processor's ability to:
                                    (f) Take immediate steps to protect an interest that is      (f) Protect the vital interests of the consumer or of another
 Limitations to the                 essential for the life of the consumer or of another natural natural person;
 responsibilities of                person, and where the processing cannot be manifestly
 controllers and                    based on another legal basis;
 processors
 Sec. 10                            (g) Prevent, detect, protect against, or respond to security incidents, identity theft, fraud, harassment, malicious or deceptive
 (cont'd)                           activities, or any illegal activity; preserve the integrity or security of systems; or investigate, report, or prosecute those
                                    responsible for any such action;
                                    (h) Engage in public or peer-reviewed scientific, historical, or (h) Process personal data to conduct ongoing scientific,
                                    statistical research in the public interest that adheres to all        historical, or statistical research in the public interest that
                                    other applicable ethics and privacy laws if the deletion of the adheres to all other applicable ethics and privacy laws and is
                                    information is likely to render impossible or seriously impair         approved, monitored, and governed by an institutional review
                                    the achievement of the research and the consumer provided board or a similar independent oversight entity that
                                    consent; or                                                            determines that:
                                                                                                               (i) The research is likely to provide substantial benefits
                                                                                                                     that do not exclusively accrue to the controller;
                                                                                                               (ii) The expected benefits of the research outweigh the
                                                                                                                     privacy risks; and
                                                                                                               (iii) The controller has implemented reasonable
                                                                                                                     safeguards to mitigate privacy risks associated with
                                                                                                                     research, including any risks associated with
                                                                                                                     reidentification; or
                                    (i) Assist another controller, processor, or third party with any of the obligations under this subsection.

                                    The obligations imposed on controllers or processors under this chapter do not restrict a controller's or
                                    processor's ability to collect, use, or retain data to:

                                    (a) Conduct internal research solely to improve or repair           (a) Conduct internal research to improve, repair, or develop
                                    products, services, or technology;                                  products, services, or technology;

                                    (b) Identify and repair technical errors that impair existing or intended functionality; or

                                    (c) Perform solely internal operations that are reasonably          (c) Perform internal operations that are aligned with the
                                    aligned with the expectations of the consumer based on the          expectations of the consumer based on the consumer's
                                    consumer's existing relationship with the controller, or are        existing relationship with the controller, or are otherwise
                                    otherwise compatible with processing in furtherance of the          compatible with processing in furtherance of the provision of
                                    provision of a product or service specifically requested by a       a product or service specifically requested by a consumer or
                                    consumer or the performance of a contract to which the              the performance of a contract to which the consumer is a
                                    consumer is a party.                                                party.


Prepared by Yelena Baker (OPR nonpartisan staff) for the ITED Committee                13                                                                    February 21, 2020
                                                              PRIVACY COMPARISON: 2SSB 6281 and SHB 2742



 Requirements for                   Personal data that are processed by a controller pursuant to this section must not be processed for any purpose other than
 processing pursuant                those expressly listed in this section.
 to an exemption
 in Sec. 10
                                    Personal data that are processed by a controller pursuant to        Personal data that are processed by a controller pursuant to
                                    this section may be processed solely to the extent that such        this section may be processed solely to the extent that such
                                    processing is:                                                      processing is:

                                          (i) Necessary, reasonable, and proportionate to the               (i) Necessary and proportionate to the purposes listed in
                                              purposes listed in this section; and                              this section; and

                                          (ii) Adequate, relevant, and limited to what is necessary         (ii) Adequate, relevant, and limited to what is necessary
                                               in relation to the specific purpose or purposes listed            in relation to the specific purpose or purposes listed
                                               in this section.                                                  in this section.

                                    Furthermore, personal data that are collected, used, or             Furthermore, personal data that are collected, used, or
                                    retained pursuant to this section must, insofar as possible,        retained pursuant to this section must be subjected to
                                    taking into account the nature and purpose or purposes of           administrative, technical, and physical measures to protect
                                    such collection, use, or retention, be subjected to                 the confidentiality, integrity, and accessibility of the personal
                                    reasonable administrative, technical, and physical measures         data, and to reduce foreseeable risks of harm to consumers
                                    to protect the confidentiality, integrity, and accessibility of     relating to such collection, use, or retention of personal data.
                                    the personal data, and to reduce reasonably foreseeable
                                    risks of harm to consumers relating to such collection, use,
                                    or retention of personal data.


                                    If a controller processes personal data pursuant to an exemption in this section, the controller bears the burden of
                                    demonstrating that such processing qualifies for the exemption and complies with the requirements in subsection (6) of this
                                    section.




Prepared by Yelena Baker (OPR nonpartisan staff) for the ITED Committee                14                                                                    February 21, 2020
                                                              PRIVACY COMPARISON: 2SSB 6281 and SHB 2742


 Commercial use of                                               2SSB 6281                                                      SHB 2742
 facial recognition                                              Section 17                                                     Section 16
      services

 Testing for accuracy             Processors that provide facial recognition services must make       Prior to deploying a facial recognition service, processors that
 and unfair                       available an application programming interface or other             provide facial recognition services must make available an
 performance                      technical capability, chosen by the processor, to enable            application programming interface or other technical
 differences                      controllers or third parties to conduct legitimate, independent,    capability, chosen by the processor, to enable controllers or
                                  and reasonable tests of those facial recognition services for       third parties to conduct legitimate, independent, and
                                  accuracy and unfair performance differences across distinct         reasonable tests of those facial recognition services for
                                  subpopulations:                                                     accuracy and unfair performance differences across distinct
                                                                                                      subpopulations.
                                  PROVIDED, That making such an application programming
                                  interface or other technical capability available does not
                                  require the disclosure of proprietary data, trade secrets,
                                  intellectual property, or other information, or if doing so would
                                  increase the risk of cyberattacks including, without limitation,
                                  cyberattacks related to unique methods of conducting
                                  business, data unique to the product or services, or
                                  determining prices or rates to be charged for services.

                                  Such subpopulations are defined by visually detectable              Such subpopulations are defined by visually detectable
                                  characteristics, such as (a) race, skin tone, ethnicity, gender,    characteristics, such as (a) race, skin tone, ethnicity, gender,
                                  age, or disability status, or (b) other protected characteristics   age, or disability status, or (b) other protected characteristics
                                  that are objectively determinable or self-identified by the         that are objectively determinable or self-identified by the
                                  individuals portrayed in the testing dataset.                       individuals portrayed in the testing dataset.

                                  If the results of that independent testing identify material        If the results of that independent testing identify material
                                  unfair performance differences across subpopulations and the        unfair performance differences across subpopulations and the
                                  methodology, data, and results are disclosed in a manner that       methodology, data, and results are disclosed in a manner that
                                  allow full reproduction of the testing directly to the processor,   allow full reproduction of the testing directly to the processor,
                                  who, acting reasonably, determines that the methodology and         who determines that the methodology and results of that
                                  results of that testing are valid, then the processor must          testing are valid, then the processor must develop and
                                  develop and implement a plan to mitigate the identified             implement a plan to mitigate the identified performance
                                  performance differences.                                            differences.

                                  Nothing in this subsection prevents a processor from                Nothing in this subsection prevents a processor from
                                  prohibiting the use of the processor's facial recognition service   prohibiting the use of the processor's facial recognition service
                                  by a competitor for competitive purposes.                           by a competitor for competitive purposes.




Prepared by Yelena Baker (OPR nonpartisan staff) for the ITED Committee                15                                                                  February 21, 2020
                                                              PRIVACY COMPARISON: 2SSB 6281 and SHB 2742


 Providing                        Processors that provide facial recognition services must provide documentation that includes general information that:
 documentation                    (a) Explains the capabilities and limitations of the services in plain language; and
 about FR                         (b) Enables testing of the services in accordance with this section.

 Prohibiting the use              Processors that provide facial recognition services must prohibit the use of facial recognition services by controllers to
 of FR to unlawfully              unlawfully discriminate under federal or state law against individual consumers or groups of consumers.
 discriminate

                                  Controllers must provide a conspicuous and contextually             Controllers must provide a conspicuous and contextually
 Providing notice of              appropriate notice whenever a facial recognition service is         appropriate notice whenever a facial recognition service is
 the use of FR                    deployed in a physical premise open to the public that              deployed including, at minimum, the following:
                                  includes, at minimum, the following:

                                  (a) The purpose or purposes for which the facial recognition        (a) The purpose or purposes for which the facial recognition
                                  service is deployed; and                                            service is deployed;

                                                                                                      (b) Notification that controllers must obtain a consumer's
                                                                                                      consent prior to enrolling an image of that consumer in a
                                                                                                      facial recognition service and that consent is not required in
                                                                                                      order to obtain entry to a physical place open to the public, or
                                                                                                      to be provided with goods or services without discrimination or
                                                                                                      penalty for not consenting; and

                                  (b) Information about where consumers can obtain additional         (c) Information about where consumers can obtain additional
                                  information about the facial recognition service including, but     information about the facial recognition service including, but
                                  not limited to, a link to any applicable online notice, terms, or   not limited to, a link to any applicable online notice, terms, or
                                  policy that provides information about where and how                policy that provides information about where and how
                                  consumers can exercise any rights that they have with               consumers can exercise any rights that they have with
                                  respect to the facial recognition service.                          respect to the facial recognition service.

                                  Controllers must obtain consent from a consumer prior to            Controllers must obtain consent from a consumer prior to
 Obtaining consumer               enrolling an image of that consumer in a facial recognition         enrolling an image of that consumer in a facial recognition
 consent prior to                 service used in a physical premise open to the public.              service.
 enrolling an image
                                                                                                      Controllers may not deny goods or services, deny entry to a
                                                                                                      physical place open to the public, or otherwise discriminate
                                                                                                      against or penalize a consumer who does not consent to
                                                                                                      enrollment of the consumer's image in a facial recognition
                                                                                                      service.




Prepared by Yelena Baker (OPR nonpartisan staff) for the ITED Committee                16                                                                  February 21, 2020
                                                              PRIVACY COMPARISON: 2SSB 6281 and SHB 2742


                                  Controllers may enroll an image of a consumer in a facial recognition service for a security or safety purpose without
 Enrolling an image               first obtaining consent from that consumer, provided that all the following requirements are met:
 without consent
                                        (a) The controller must hold a reasonable suspicion, based on a specific incident, that the consumer has engaged in
                                            criminal activity, which includes, but is not limited to, shoplifting, fraud, stalking, or domestic violence;
                                        (b) Any database used by a facial recognition service for identification, verification, or persistent tracking of consumers for
                                            a security or safety purpose must be used solely for that purpose and maintained separately from any other databases
                                            maintained by the controller;
                                        (c) The controller must review any such database used by the controller's facial recognition service no less than annually
                                            to remove facial templates of consumers whom the controller no longer holds a reasonable suspicion that they have
                                            engaged in criminal activity; and
                                        (d) The controller must establish an internal process whereby a consumer may correct or challenge the decision to enroll
                                            the image of the consumer in a facial recognition service for a security or safety purpose.

                                                                                                       Controllers that use a facial recognition service for verification
 Notice of image                  n/a                                                                  purposes must provide the consumer with notice as to which
 used for verification                                                                                 image of the consumer the facial recognition service is
                                                                                                       referencing when attempting to verify the consumer's identity.

                                  Controllers using a facial recognition service to make               Controllers using a facial recognition service for the purpose
 Meaningful human                 decisions that produce legal effects on consumers or similarly       of verification, identification, or to make decisions that
 review                           significant effects on consumers must ensure that those              produce legal effects on consumers or similarly significant
                                  decisions are subject to meaningful human review.                    effects on consumers must ensure that those decisions are
                                                                                                       subject to meaningful human review.

                                  Prior to deploying a facial recognition service in the context in which it will be used, controllers using a facial recognition service
 Testing in                       to make decisions that produce legal effects on consumers or similarly significant effects on consumers must test the facial
 operational                      recognition service in operational conditions.
 conditions

                                  Controllers must take commercially reasonable steps to               Controllers must take steps to ensure best quality results by
 Ensuring best                    ensure best quality results by following all reasonable              following all guidance provided by the developer of the facial
 quality results                  guidance provided by the developer of the facial recognition         recognition service.
                                  service.

                                  Controllers using a facial recognition service must conduct          Controllers using a facial recognition service must conduct
 Training                         periodic training of all individuals that operate a facial           annual training of all individuals that operate a facial
                                  recognition service or that process personal data obtained           recognition service or that process personal data obtained
                                  from the use of facial recognition services.                         from the use of facial recognition services.




Prepared by Yelena Baker (OPR nonpartisan staff) for the ITED Committee                17                                                                   February 21, 2020
                                                              PRIVACY COMPARISON: 2SSB 6281 and SHB 2742


 Training                         Such training shall include, but not be limited to, coverage of:   Such training shall include, but not be limited to, coverage of:
 (cont'd)                         (a) The capabilities and limitations of the facial recognition     (a) The capabilities and limitations of the facial recognition
                                  service;                                                           service;
                                  (b) Procedures to interpret and act on the output of the facial    (b) Procedures to interpret and act on the output of the facial
                                  recognition service; and                                           recognition service; and
                                  (c) The meaningful human review requirement for decisions          (c) The meaningful human review requirement for verification,
                                  that produce legal effects on consumers or similarly significant   identification, or decisions that produce legal effects on
                                  effects on consumers, to the extent applicable to the              consumers or similarly significant effects on consumers, to the
                                  deployment context.                                                extent applicable to the deployment context.

                                  Controllers shall not knowingly disclose personal data             Controllers shall not disclose personal data obtained from a
                                  obtained from a facial recognition service to a law                facial recognition service to a law enforcement agency, except
 Disclosing personal              enforcement agency, except when such disclosure is:                when such disclosure is:
 data obtained from
 FR                               (a) Pursuant to the consent of the consumer to whom the personal data relates;
                                  (b) Required by federal, state, or local law in response to a court order, court-ordered warrant, or subpoena or summons
                                  issued by a judicial officer or grand jury;
                                  (c) Necessary to prevent or respond to an emergency involving danger of death or serious physical injury to any person, upon
                                  a good faith belief by the controller; or
                                  (d) To the national center for missing and exploited children.

                                                                                                     No information obtained from or by the use of a facial
 Facial recognition               n/a                                                                recognition service may be received in evidence in any trial,
 data as evidence                                                                                    hearing, or other proceeding in or before any court, grand
                                                                                                     jury, department, officer, agency, regulatory body, legislative
                                                                                                     committee, or other authority subject to the jurisdiction of the
                                                                                                     state of Washington.

 Complying with                   Controllers that deploy a facial recognition service must respond to a consumer request to exercise the rights and fulfill the
 other                            [controller] responsibilities.
 responsibilities

                                  Voluntary facial recognition services used to verify an aviation passenger's identity are exempt.
 Exemption for
 verification of                  Images captured by an airline must not be retained for more than 24 hours and, upon request of the Attorney General, airlines
 aviation passengers              must certify that they do not retain the image for more than twenty-four hours. An airline facial recognition service must
                                  disclose and obtain consent from the customer prior to capturing an image.




Prepared by Yelena Baker (OPR nonpartisan staff) for the ITED Committee              18                                                                   February 21, 2020
                                                              PRIVACY COMPARISON: 2SSB 6281 and SHB 2742


     Preemption                                                2SSB 6281                                                      SHB 2742

 Preemption of                This chapter supersedes and preempts laws, ordinances,               This chapter supersedes and preempts laws, ordinances,
 local regulations            regulations, or the equivalent adopted by any local entity           regulations, or the equivalent adopted by any local entity
                              regarding the processing of personal data by controllers or          regarding the processing of personal data by controllers or
                              processors.                                                          processors.

                                                                                                   This chapter does not supersede or preempt laws, ordinances,
                                                                                                   regulations, or the equivalent adopted by any local entity
                                                                                                   regarding facial recognition.



   Liability and                                             2SSB 6281                                                        SHB 2742
   Enforcement
                           Any violation of this chapter shall not serve as the basis for, or be
 Liability                 subject to, a private right of action under this chapter or under any   n/a
                           other law. This does not relieve any party from any duties or
                           obligations imposed, or to alter any independent rights that
                           consumers have under other laws, chapter 19.86 RCW, the
                           Washington state Constitution, or the United States Constitution.

                           Where more than one controller or processor, or both a controller
                           and a processor, involved in the same processing, is in violation
                           of this chapter, the liability must be allocated among the parties
                           according to principles of comparative fault.

                                                                                                   The legislature finds that the practices covered by this chapter
 Enforcement               The Attorney General has exclusive authority to enforce this            are matters vitally affecting the public interest for the purpose of
 and penalties             chapter by bringing an action in the name of the state, or as           applying the consumer protection act, chapter 19.86 RCW. A
                           parens patriae on behalf of persons residing in the state.              violation of this chapter is not reasonable in relation to the
                                                                                                   development and preservation of business and is an unfair or
                                                                                                   deceptive act in trade or commerce and an unfair method of
                                                                                                   competition for the purpose of applying the consumer
                                                                                                   protection act, chapter 19.86 RCW.

                           Any controller or processor that violates this chapter is subject to    Any controller or processor that violates this chapter is subject
                           an injunction and liable for a civil penalty of not more than $7,500    to an injunction and liable for a civil penalty of not more than
                           for each violation.                                                     $50,000 for each violation or $100,000 for each intentional
                                                                                                   violation.


Prepared by Yelena Baker (OPR nonpartisan staff) for the ITED Committee             19                                                                    February 21, 2020
                                                              PRIVACY COMPARISON: 2SSB 6281 and SHB 2742



     Reports and
      Research                                                   2SSB 6281                                                    SHB 2742
      Initiatives

 Attorney General              The Attorney General shall compile a report evaluating the liability and enforcement provisions of this chapter including, but not
 report                        limited to, the effectiveness of its efforts to enforce this chapter, and any recommendations for changes to such provisions.

                               The Attorney General shall submit the report to the governor and the appropriate committees of the legislature by July 1, 2022.


 Joint research                The governor may enter into agreements with the governments of the Canadian province of British Columbia and the states of
 initiatives                   California and Oregon for the purpose of sharing personal data or personal information by public bodies across national and state
                               borders to enable collaboration for joint data-driven research initiatives. Such agreements must provide reciprocal protections
                               that the respective governments agree appropriately safeguard the data.




Prepared by Yelena Baker (OPR nonpartisan staff) for the ITED Committee             20                                                                 February 21, 2020


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