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Home Source documents Regulatory Reform Subcommittee, Florida House of Representatives (2021-03-10)

Regulatory Reform Subcommittee, Florida House of Representatives (2021-03-10)

Summary

A meeting packet for the Florida House Regulatory Reform Subcommittee containing HB 969 and HB 971 of the 2021 session. HB 969, a consumer data privacy bill, defines terms such as aggregate consumer information, biometric information and business purpose. It would cover businesses that collect consumers' personal information and either have global annual gross revenues above $25 million, handle the personal information of 50,000 or more consumers, households or devices, or derive 50 percent or more of revenue from selling or sharing it. HB 971 would create a public records exemption for proprietary information, such as trade secrets, submitted under the privacy law, and would take effect with HB 969.

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“Regulatory Reform Subcommittee, Florida House of Representatives (2021-03-10).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2021-03-10-3101-regulatory-reform-subcommittee-meeting-packets-fn-rrs-a5fd33d8e9/, SHA-256 1989bdd50ecba81244b52a2fa61f6b65c9741d712863e17c23f59ecf5bc97dc7.

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101 (a) "Aggregate consumer information" means information

102] that relates to a group or category of consumers, from which the

103} identity of an individual consumer has been removed and is not

104] reasonably capable of being directly or indirectly associated or

105} linked with, any consumer or household, including via a device.

106 The term does not include one or more individual consumer

107 records that have been deidentified.

108 (bo) “Biometric information" means an individual's

109] physiological, biological, or behavioral characteristics,

110 including an individual's deoxyribonucleic acid (DNA), that can

111} be used, singly or in combination with each other or with other

112] identifying data, to establish individual identity. The term

113 includes, but is not limited to, imagery of the iris, retina,

114} fingerprint, face, hand, palm, vein patterns, and voice

115] recordings, from which an identifier template, such as a

116} faceprint, a minutiae template, or a voiceprint, can be

117 extracted, and keystroke patterns or rhythms ait patterns or
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126 b. Does business in this state;

127 c. Collects personal information about consumers, or is

128] the entity on behalf of which such information is collected;

129 d. Determines the purposes and means of processing

130] personal information about consumers alone or jointly with

L3t others; and

132 e. Satisfies one or more of the following thresholds:

133 (I) Has global annual gross revenues in excess of $25

134] million, as adjusted in January of every odd-numbered year to

135] reflect any increase in the Consumer Price Index.

136 (II) Annually buys, receives for the business's commercial

137] purposes, sells, or shares for commercial purposes, the personal

138 information of 50,000 or more consumers, households, or devices.

139 (III) Derives 50 percent or more of its global annual

140} revenues from selling or sharing personal information about

141 consumers.

142 2. Any entity that controls or is controlled by a business

143) and that shares common branding with the business. As used in

144) this subparagraph, the term:

145 a. "Control" means:

146 (I) Ownership of, or the power to vote, more than 50

147| percent of the outstanding shares of any class of voting

148] security of a business;

149 (II) Control in any manner over the election of a majority

150} of the directors, or of individuals exercising similar

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151 functions; or

152 (III) The power to exercise a controlling influence over

153] the management of a company.

154 b. "Common branding" means a shared name, servicemark, or

L55 trademark.

156 (d) "Business purpose" means the use of personal

157} information for the operational purpose of a business or service

158] provider, or other notified purposes, provided that the use of

159] personal information is reasonably necessary and proportionate

160| to achieve the operational purpose for which the personal

161} information was collected or processed or for another

162| operational purpose that is compatible with the context in which

163] the personal information was collected. The term includes:

164 1. Auditing relating to a_ current interaction with a

165] consumer and concurrent transactions, including, but not limited

166] to, counting ad impressions to unique visitors, verifying

167} positioning and quality of ad impressions, and auditing

168} compliance with this specification and other standards.

169 2. Detecting security incidents; protecting against

170} malicious, deceptive, fraudulent, or illegal activity; and

171] prosecuting those responsible for that activity.

172 3. Debugging to identify and repair errors that impair

173] existing intended functionality.

174 4. Short-term, transient use, provided that the personal

175] information is not disclosed to another third party and is not

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176) used to build a profile about a consumer or otherwise alter an

177 individual consumer's experience outside the current

178 interaction, including, but not limited to, the contextual

179} customization of ads shown as part of the same interaction.

180 5. Performing services on behalf of the business or

181] service provider, including maintaining or servicing accounts,

182] providing customer service, processing or fulfilling orders and

183} transactions, verifying customer information, processing

184] payments, providing financing, providing analytic services, or

185|} providing similar services on behalf of the business or service

186] provider.
187 6. Undertaking internal research for technological

188} development and demonstration.

189 7. Undertaking activities to verify or maintain the

190} quality or safety of a service or device that is owned,

191 manufactured, manufactured for, or controlled by the business,

192] and to improve, upgrade, or enhance the service or device that

193 is owned, manufactured, manufactured for, or controlled by the

194 business.

195 (e) "Collect" means to buy, rent, gather, obtain, receive,

196} or access any personal information pertaining to a consumer by

197 any tieans. The term includes, but is mot limited to, actively’ or

198) passively receiving information from the consumer or by

199| observing the consumer's behavior.

200 (f£) "Commercial purposes" means to advance the commercial

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201] or economic interests of a person, such as inducing another

202 person to buy, rent, lease, join, subscribe to, provide, or

203] exchange products, goods, property, information, or services, or

204] directly or indirectly enabling or effecting a commercial

205 transaction.

206 (gq) "Consumer" means a natural person who resides in or is

207} domiciled in this state, however identified, including by any

208] unique identifier, and who is:

209 1. In this state for other than a temporary or transitory

210} purpose; or

211 2. Domiciled in this state but resides outside this state

212) for a temporary or transitory purpose.

213 (h) "Deidentified" means information that does not

214] reasonably identify, relate to, or describe a particular

215] consumer, or is not reasonably capable of being directly or

216] indirectly associated or linked with a particular consumer,

217) provided that a business that uses deidentified information:

218 1. Implements technical safeguards that prohibit

219| reidentification of the consumer to whom the information may

220} pertain.

221 2. Implements business processes that specifically

222| prohibit reidentification of the information.

223 3. Implements business processes to prevent inadvertent

224 release of deidentified information.

225 4. Does not attempt to reidentify the information.

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226 (i) "Department" means the Department of Legal Affairs.

227 (j) “Health insurance information" means a consumer's

228 insurance policy number or subscriber identification number, or

229) any unique identifier used by a health insurer to identify the

230} consumer, or any information in the consumer's application and

231} claims history, including any appeals records, if the

232] information is reasonably capable of being directly or

233| indirectly associated or linked with a consumer or household,

234} including via a device, by a business or service provider.

235 (k) "Homepage" means the introductory page of an Internet

236| website and any Internet webpage where personal information is

237} collected. In the case of a mobile application, the homepage is

238|} the application's platform page or download page, a link within

239} the application, such as the "About" or "Information"

240| application configurations, or settings page, and any other

241 location that allows consumers to review the notice required by

242 subsection (9), including, but not limited to, before

243] downloading the application.

244 (1) "Person" means an individual, proprietorship, firm,

245} partnership, joint venture, syndicate, business trust, company,

246| corporation, limited liability company, association, committee,

247} and any other organization or group of persons acting in

248 concert.

249 (m) "Personal information" means information that

250 identifies, relates to, or describes a particular consumer or

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251} household, or is reasonably capable of being directly or

252 indirectly associated or linked with, a particular consumer or

253 household.

254 1. The term includes, but is not limited to, the
255 following:
256 a. Identifiers such as a real name, alias, postal address,

257) unique identifier, online identifier, internet protocol address,

258 email address, account name, social security number, driver

259} license number, passport number, or other similar identifiers.

260 b. Information that identifies, relates to, or describes,

261 or could be associated with, a particular individual, including,

262} but not limited to, a name, signature, social security number,

263 physical characteristics or description, address, telephone

264| number, passport number, driver license or state identification

265 card number, insurance policy number, education, employment,

266} employment history, bank account number, credit card number,

267 debit card number, or any other financial information, medical

268 information, or health insurance information.

269 c. Characteristics of protected classifications under

270 state or federal law.

271 d. Commercial information, including records of personal

2712 property, products or services purchased, obtained, or

273|/ considered, or other purchasing or consuming histories or

274 tendencies.

275 e. Biometric information.

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276 f. Internet or other electronic network activity

Z2ij information, including, but not limited to, browsing history,

278| search history, and information regarding a consumer's

279] interaction with an Internet website, application, or

280 advertisement.

281 g. Geolocation data.

282 h. Audio, electronic, visual, thermal, olfactory, or

283 similar information.

284 i. Professional or employment-related information.

285 j. Education information that is not publicly available,

286| personally identifiable information as defined in the Family

287| Educational Rights and Privacy Act, 20 U.S.C. s. 1232(g) and 34

288] C.F.R. part 99.

289 k. Inferences drawn from any of the information identified

290] in this paragraph to create a profile about a consumer

291 reflecting the consumer's preferences, characteristics,

292| psychological trends, predispositions, behavior, attitudes,

293| intelligence, abilities, and aptitudes.

294 2. The term does not include consumer information that is:

295 a. Publicly and lawfully made available from federal,

296] state, or local government records.

297 b. Deidentified or aggregate consumer information.

298 (n) "Probabilistic identifier" means the identification of

299) a consumer or a device to a degree of certainty of more probable

300] than not based on any categories of personal information

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301 included in, or similar to, the categories listed under

302| paragraph (m).

303 (o) "Processing" means any operation or set of operations

304 that are performed on personal data or on sets of personal data,

305) whether or not by automated means.

306 (p) "Pseudonymize" means the processing of personal

307 information in a manner that renders the personal information no

308 longer attributable to a specific consumer without the use of

309} additional information, provided that the additional information

310} is kept separately and is subject to technical and

311] organizational measures to ensure that the personal information

312 is not attributed to an identified or identifiable consumer.

313 (q) "Research" means scientific, systematic study and

314 observation, including, but not limited to, basic research or

315 applied research that is in the public interest and that adheres

316} to all other applicable ethics and privacy laws or studies

317) conducted in the public interest in the area of public health.

318] Research with personal information that may have been collected

¢ a consu in e course o e consumer's interactions
319 from mer th — th ! t ie

320} with a business's service or device for other purposes must be:

321 1. Compatible with the business purpose for which the

322| personal information was collected.

323 2. Subsequently pseudonymized and deidentified, or

324| deidentified and in the aggregate, such that the information

325} does not reasonably identify, relate to, or describe, or is not

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326| capable of being directly or indirectly associated or linked

327 with, a particular consumer.

328 3. Made subject to technical safeguards that prohibit

329| reidentification of the consumer to whom the information may

330} pertain.
331 4. Subject to business processes that specifically

332) prohibit reidentification of the information.

333 5. Made subject to business processes to prevent

334 inadvertent release of deidentified information.

335 6. Protected from any reidentification attempts.

336 7. Used solely for research purposes that are compatible

337] with the context in which the personal information was collected

338 and not used for any commercial purpose.

339 8. Subjected by the business conducting the research to

340) additional security controls that limit access to the research

341] data to only those individuals in a business necessary to carry

342 out the research purpose.

343 (x) "Sell" means to sell, rent, release, disclose,

344 disseminate, make available, transfer, or otherwise communicate

345) orally, in writing, or by electronic or other means, a

346] consumer's personal information by a business to another

347| business or a third party for monetary or other valuable

348 consideration.

349 (s) "Service" means work or labor furnished in connection

350} with the sale or repair of goods.

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351 (t) "Service provider" means a sole proprietorship,

352] partnership, limited liability company, corporation,

353] association, or other legal entity that is organized or operated

354| for the profit or financial benefit of its shareholders or other

355| owners, that processes information on behalf of a business and

356} to which the business discloses a consumer's personal

357| information for a business purpose pursuant to a written

358] contract, provided that the contract prohibits the entity

359] receiving the information from retaining, using, or disclosing

360} the personal information for any purpose other than for the

361] specific purpose of performing the services specified in the

362 contract for the business, or as otherwise permitted by this

363] section, including retaining, using, or disclosing the personal

364] information for a commercial purpose other than providing the

365] services specified in the contract with the business.

366 (u) "Share" means to share, rent, release, disclose,

367 disseminate, make available, transfer, or access a consumer's

368] personal information for advertising. The term includes:

369 1. Allowing a third party to use or advertise to a

370] consumer based on a consumer's personal information without

371] disclosure of the personal information to the third party.

372 2. Monetary transactions, nonmonetary transactions, and

373 transactions for other valuable consideration between a business

374 and a third party for advertising for the benefit of a business.

375 {(v) "Third party" means a person who is not any of the

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376 following:

S77 1. A business that collects personal information from

378 consumers under this section.

379 2. A person to whom the business discloses personal

380] information about consumers for a business purpose pursuant to a

381 written contract.

382 (w) “Unique identifier" means a persistent identifier that

383| can be used to recognize a consumer, a family, or a device that

384| is linked to a consumer or family, over time and across

385| different services, including, but not limited to, a device

386 identifier; an Internet Protocol address; cookies, beacons,

387| pixel tags, mobile ad identifiers, or similar technology;

388] customer number, unique pseudonym, or user alias; telephone

389] numbers, or other forms of persistent or probabilistic

390} identifiers which can be used to identify a particular consumer

391] or device. As used in this paragraph, the term "family" means a

392] custodial parent or guardian and any minor children of whom the

393] parent or guardian has custody, or a household.

394 (x) "Verifiable consumer request" means a request that is

395} made by a consumer, by a consumer on behalf of the consumer's

396] minor child, or by a natural person or a person authorized by

397 the consumer to act on the consumer's behalf, and that the

398| business can reasonably verify pursuant to rules adopted by the

399} department to be the consumer about whom the business has

400} collected personal information. A business is not obligated to

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401] provide information to the consumer if the business cannot

402] verify that the consumer making the request is the consumer

403] about whom the business has collected information or is a person

404 authorized by the consumer to act on the consumer's behalf.

405 (2) PRIVACY POLICY FOR PERSONAL INFORMATION.—

406 (a) A business that collects personal information about

407 consumers shall maintain an online privacy policy, make such

408] policy available on its Internet website, and update the

409 information at least once every 12 months. The online privacy

410] policy must include the following information:

411 1. Any Florida-specific consumer privacy rights.

412 2. A list of the categories of personal information the

413] business collects or has collected about consumers.

414 3. Of the categories identified in subparagraph 2., a list

415} that identifies which categories of personal information the

416 business sells or shares or has sold or shared about consumers.

417 If the business does not sell or share personal information, the

418 business shall disclose that fact.

419 4. Of the categories identified in subparagraph 2., a list

420| that identifies which categories of personal information the

421 business discloses or shares or has disclosed or shared about

422 consumers for a business purpose. If the business does not

423| disclose or share personal information for a business purpose,

424 the business shall disclose that fact.

425 o. The right to opt-out of the sale or sharing to third

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426), Parties and the ability to request deletion or correction of

427 certain personal information.

428 {b) A consumer has the right to request that a business

429) that collects personal information disclose to the consumer the

430] categories and specific pieces of personal information the

431 business collects from or about consumers.

432 (c) A business that collects personal information shall,

433] at or before the point of collection, inform consumers of the

434 categories of personal information to be collected and the

435| purposes for which the categories of personal information will

436 be used.

437 (d) A business may not collect additional categories of

438] personal information or use personal information collected for

439| additional purposes without providing the consumer with notice

440 consistent with this section.

441 (e) A business shall provide the information specified in

442) paragraph (b) to a consumer only upon receipt of a verifiable

443 consumer request.

444 (f) A business shall provide and follow a retention

445} schedule that prohibits the use and retention of personal

446| information after satisfaction of the initial purpose for

447| collecting or obtaining such information, or after the duration

448) of a contract, or 1 year after the consumer's last interaction

449} with the business, whichever occurs first. This paragraph does

450] not apply to biometric information used for ticketing purposes

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451} and does not apply if such information is only kept for the time

452 related to the duration of the ticketed event.

453 (3) CONSUMER RIGHT TO REQUEST COPY OF PERSONAL DATA

454 COLLECTED .—

455 (a) A consumer has the right to request that a business

456] that collects personal information about the consumer disclose

457 the personal information that has been collected by the

458 business.

459 (bob) A business that receives a verifiable consumer request

460] from a consumer to access personal information shall promptly

461 take steps to disclose and deliver, free of charge to the

462 consumer, the personal information required by this section. The

463} information may be delivered by mail or electronically, and if

464} provided electronically, the information must be in a portable

465 and, to the extent technically feasible, readily useable format

466 that allows the consumer to transmit this information to another

467| entity without hindrance. A business may provide personal

468 information to a consumer at any time, but may not be required

469| to provide personal information to a consumer more than twice in

470} a 12-month period.

471 (c) A business shall disclose the following to the

472| consumer:

473] 1. The specific pieces of personal information it has

474 collected about the consumer.

475 2. The categories and sources from which it collected the

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476| consumer's personal information.

477 3. The business or commercial purpose for collecting or

478| selling the consumer's personal information.

479 4, The categories of third parties which the business

480] shares the consumer's personal information.

481 (d) A business that collects personal information about a

482] consumer shall disclose the information specified in paragraph

483 (a) to the consumer upon receipt of a verifiable consumer

484 request from the consumer.

485 (e) This subsection does not require a business to do the

486 following:

487 1. Retain any personal information about a consumer

488] collected for a single one-time transaction if, in the ordinary

489| course of business, that information about the consumer is not

490] retained.
491 2, Reidentify or otherwise link any data that, in the

492 ordinary course of business, is not maintained in a manner that

493] would be considered personal information.

494 (4) RIGHT TO HAVE PERSONAL INFORMATION DELETED OR

495 CORRECTED .—

496 (a) A consumer has the right to request that a business

497| delete any personal information about the consumer which the

498

business has collected from the consumer.

499 (bob) A business that receives a verifiable consumer request

500 from_a consumer to delete the consumer's personal information

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501} shall delete the consumer's personal information from its

502] records and direct any service providers to delete the

503} consumer's personal information from their records.

504 {c) A business or a service provider may not be required

505] to comply with a consumer's request to delete the consumer's

506] personal information if it is necessary for the business or

507} service provider to maintain the consumer's personal information

508} to do any of the following:

509 1. Complete the transaction for which the personal

510] information was collected.

511 2. Fulfill the terms of a_written warranty or product

512 recall conducted in accordance with federal law.

513 3. Provide a good or service requested by the consumer, or

514) reasonably anticipated within the context of a business' ongoing

515} business relationship with the consumer, or otherwise perform a

516| contract between the business and the consumer.

517 4. Detect security incidents, protect against malicious,

918] deceptive, fraudulent, or illegal activity; or prosecute those

519] responsible for that activity.

520 5. Debug to identify and repair errors that impair

521] existing intended functionality.

o22 6. Engage in public or peer-reviewed scientific,

523 historical, or statistical research in the public interest that

524] adheres to all other applicable ethics and privacy laws when the

525] business' deletion of the information is likely to render

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526} impossible or seriously impair the achievement of such research,

527| if the consumer has provided informed consent.

528 7. Enable solely internal uses that are reasonably aligned

529] with the expectations of the consumer based on the consumer's

530} relationship with the business.

53:1 8. Comply with a legal obligation.

532 9. Otherwise internally use the consumer's personal

533] information in a lawful manner that is compatible with the

534] context in which the consumer provided the information.

535 (d) A consumer has the right to request a business that

536| maintains inaccurate personal information about the consumer to

537) correct the inaccurate personal information, taking into account

538] the nature of the personal information and the purposes of the

539] processing of the personal information. A business that receives

540} a verifiable consumer request to correct inaccurate personal

541 information shall use commercially reasonable efforts to correct

542| the inaccurate personal information as directed by the consumer.

543 (5) RIGHT TO REQUEST PERSONAL DATA SOLD OR SHARED.—

544 (a) A consumer has the right to request that a business

545| that sells or shares personal information about the consumer, or

546] discloses such information for a business purpose, to disclose

547 to the consumer:

548 1. The categories of personal information about the

549 consumer the business sold or shared.

550 2. The categories of third parties to which the personal

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551 information about the consumer was sold or shared by category of

552] personal information for each category of third parties to which

553} the personal information was sold or shared.

554 3. The categories of personal information about the

555] consumer that the business disclosed for a business purpose.

556 (b) A business that sells or shares personal information

557 about consumers or discloses such information for a business

558] purpose shall disclose the information specified in paragraph

509 (a) to the consumer upon receipt of a verifiable consumer

560} request from the consumer.

561 (c) A third party may not sell or share personal

562 information about a consumer that has been sold or shared to the

563] third party by a business unless the consumer has received

564] explicit notice and is provided an opportunity to opt-out.

565 (6) RIGHT TO OPT-OUT OF THE SALE OR SHARING OF PERSONAL

566 INFORMATION TO THIRD PARTIES.—

567 (a) A consumer has the right at any time to direct a

568| business that sells or shares personal information about the

569] consumer to third parties to not sell or share the consumer's

570} personal information. This right may be referred to as the right

571] to opt-out.

512 (o) A business that sells or shares personal information

573] to third parties shall provide notice to consumers that this

574 information may be sold and shared and that consumers have the

575| right to opt-out of the sale or sharing of their personal

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576 information.

ST] (c) Notwithstanding paragraph (a), a business may not sell

578 or share the personal information of a consumer if the business

579) has actual knowledge that the consumer is not 16 years of age or

580 older, unless the consumer, in the case of consumers between 13

581 and 15 years of age, or the consumer's parent or guardian, in

582 the case of consumers who are 12 years of age or younger, has

583] affirmatively authorized the sale or sharing of the consumer's

584) personal information. A business that willfully disregards the

585} consumer's age is deemed to have had actual knowledge of the

5986] consumer's age. This right may be referred to as the right to

588 (d) A business that has received direction from _a_ consumer

589| prohibiting the sale or sharing of the consumer's personal

590} information or that has not received consent to sell or share a

591] minor consumer's personal information is prohibited from selling

592] or sharing the consumer's personal information after its receipt

593 of the consumer's direction, unless the consumer subsequently

594] provides express authorization for the sale or sharing of the

595 consumer's personal information.

596 (e) A business does not sell personal information when:

597 1. A consumer uses or directs the business to

598 intentionally disclose personal information or uses the business

599} to intentionally interact with a third party, provided the third

600} party does not also sell the personal information, unless that

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601} disclosure would be consistent with the provisions of this

602 section. An intentional interaction occurs when the consumer

603); intends to interact with the third party, via one or more

604] deliberate interactions. Hovering over, muting, pausing, or

605} closing a given piece of content does not constitute a

606| consumer's intent to interact with a third party.

607 2. The business uses or shares an identifier fora

608] consumer who has opted out of the sale or sharing of the

609] consumer's personal information for the purposes of alerting

610} third parties that the consumer has opted out of the sale or

611 sharing of the consumer's personal information.

612 3. The business uses or shares with a service provider

613] personal information of a consumer that is necessary to perform

614| a business purpose if both of the following conditions are met:

615 a. The business has provided notice that the personal

616} information of the consumer is being used or shared in its terms

617 and conditions consistent with subsection (9).

618 b. The service provider does not further collect, sell,

619| share, or use the personal information of the consumer except as

620} necessary to perform the business purpose.

621 4. The business transfers to a third party the personal

622 information of a consumer as an asset that is part of a merger,

623} acquisition, bankruptcy, or other transaction in which the third

624) party assumes control of all or part of the business, provided

625| that information is used or shared consistently with subsections

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626 (3) and (5). If a third party materially alters how it uses or

627 shares the personal information of a consumer in a manner that

628| is materially inconsistent with the promises made at the time of

629) collection, it shall provide prior notice of the new or changed

630} practice to the consumer. The notice must be sufficiently

631} prominent and robust to ensure that existing consumers can

632| easily exercise their choices consistently with this subsection.

633 (f£) A business does not share personal information when:

634 1. A consumer uses or directs the business to

635] intentionally disclose personal information or intentionally

636] interact with one or more third parties.

637 2. The business uses or shares an identifier for a

638} consumer who has opted-out of sharing the consumer's personal

639) information for the purposes of alerting persons that the

640| consumer has opted-out of sharing the consumer's personal

641 information.

642 (7) DISCRIMINATION AGAINST CONSUMERS WHO EXERCISE THEIR

643] RIGHTS.—

644 (a)1l. A business may not discriminate against a consumer

645) who exercised any of the consumer's rights under this section.

646| Discrimination under this subparagraph includes, but is not

647 limited to:

648 a. Denying goods or services to the consumer.

649 b. Charging different prices or rates for goods or

650} services, including through the use of discounts or other

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651| benefits or imposing penalties.

652 c. Providing a different level or quality of goods or

653 services to the consumer.

654 d. Suggesting that the consumer will receive a different

655} price or rate for goods or services or a different level or

656| quality of goods or services.

657 2. This paragraph does not prohibit a business from

658] charging a consumer a different price or rate, or from providing

659] a different level or quality of goods or services to the

660 consumer, if that difference is reasonably related to the value

661| provided to the business by the consumer's data,

662 (b)1. A business may offer financial incentives, including

663} payments to consumers as compensation, for the collection, sale,

664} or deletion of personal information.

665 2. A business may offer a different price, rate, level, or

666] quality of goods or services to the consumer if the price or

667| difference is directly related to the value provided to the

668} business by the consumer's personal information.

669 3. A business that offers any financial incentives shall

670} notify consumers of the financial incentives.

671 4. A business may enter a consumer into a financial

672) incentive program only if the consumer gives the business prior

673 consent that clearly describes the material terms of the

674 financial incentive program. The consent may be revoked by the

675| consumer at any time.

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676 5. A business may not use financial incentive practices

677 that are unjust, unreasonable, coercive, or usurious in nature.

678 (8) REQUESTS FOR PERSONAL INFORMATION.—

679 (a) To comply with this subsection, a business shall, ina

680| form that is reasonably accessible to consumers, make available

681] two or more methods for submitting verifiable consumer reguests,

682] including, but not limited to, a toll-free number and, if the

683] business maintains an Internet website, a link on the homepage

684| of the website. The business may not require the consumer to

685 create an account with the business in order to make a

686] verifiable consumer request.

687 (bo) The business shall deliver the information required or

688| act on the request in subsections (3) through (6) to a consumer

689| free of charge within 45 days after receiving a verifiable

690} consumer request. The response period may be extended once by 30

691) additional days when reasonably necessary, taking into account

692] the complexity of the consumer's requests, provided the business

693} informs the consumer of any such extension within the initial

694 45-day response period along with the reason for the extension.

695] The information must be delivered in a readily usable format

696 that allows the consumer to transmit the information from one

697) entity to another entity without hindrance.

698 (c) If a third party assumes control of all or part of a

699| business and acquires a consumer's personal information as part

700} of the transfer, and the third party materially alters how it

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701| uses a consumer's personal information or shares the information

702) ain a manner that is materially inconsistent with the promises

703) made at the time of collection, the third party must provide

704] prior notice of the new or changed practice to the customer. The

705] notice must be sufficiently prominent and robust to ensure that

706| existing consumers can easily exercise their choices.

707 (d) Any contract between a business and a service provider

708| must prohibit the service provider from:

709 1. Selling or sharing the personal information;

710 2. Retaining, using, or disclosing the personal

711 information for any purpose other than for the business purposes

712) specified in the contract for the business, including retaining,

713] using, or disclosing the personal information for a commercial

714] purpose other than the business purposes specified in the

715 contract with the business;

716 3. Retaining, using, or disclosing the information outside

717!) of the direct business relationship between the service provider

718 and the business; or

TLS 4. Combining the personal information that the service

720} provider receives from or on behalf of the business with

721| personal information that it receives from or on behalf of

722| another person or entity or that the service provider collects

723 from its own interaction with the consumer, provided that the

724) service provider may combine personal information to perform any

725| business purpose.

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726 (e) Any contract between a business and a third party must

f27| prohibit the third party that receives «4 consumer's personal

728| information from the following:

429 1. Selling or sharing the personal information.

730 2. Retaining, using, or disclosing the personal

731| information for any purpose other than the specific purpose of

732| performing the services specified in the contract, including

733| retaining, using, or disclosing the personal information for a

734| commercial purpose other than providing the services specified

735 in the contract.

736 3. Retaining, using, or disclosing the personal

737| information for any purpose other than for the specific purpose

738| of performing the services specified in the contract, including

739| retaining, using, or disclosing the personal information for a

740} commercial purpose other than providing the services specified

741 in the contract.

742 4, Retaining, using, or disclosing the information outside

743| of the direct business relationship between the person and the

744 business.
745

746| The contract must include a certification made by the person or

747| entity receiving the personal information stating that the

748] person or entity understands and will comply with the

749! restrictions under this paragraph.

750 (f) Any contract between a business and a third party or

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751] between a business and a service provider for receiving personal

752| information must include a provision that any contract between a

753| third party and any subcontractor or between a service provider

754| and any subcontractor must require the subcontractor to meet the

755) obligations of the third party or service provider with respect

756| to personal information.

737 (g) A third party or service provider or any subcontractor

758] thereof who violates any of the restrictions imposed upon it

759| under this section is liable for any violations. A business that

760| discloses personal information to a third party or service

761] provider in compliance with this section is not liable if the

762! person receiving the personal information uses it in violation

763 of the restrictions under this section, provided that at the

764) time of disclosing the personal information, the business does

765} not have actual knowledge or reason to believe that the person

766 intends to commit such a violation.

767 (9) FORM TO OPT-OUT OF SALE OR SHARING OF PERSONAL

768 INFORMATION .—

769 (a) A business shall, in a form that is reasonably

770 accessible to consumers:

771 1. Provide a clear and _ conspicuous link on the business's

772 Internet homepage, entitled "Do Not Sell or Share My Personal

773) Information," to an Internet webpage that enables a consumer, or

774| a person authorized by the consumer, to opt-out of the sale or

775| sharing of the consumer's personal information. A business may

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776| not require a consumer to create an account in order to direct

777 the business not to sell the consumer's personal information.

778 2. Include a_ description of a_consumer's rights along with

779| a separate link to the "Do Not Sell or Share My Personal

780) Information" Internet webpage in:

781 a. Its online privacy policy or policies.
782 b. Any Florida-specific consumer privacy rights.
7183 3. Ensure that all individuals responsible for handling

784| consumer inguiries about the business's privacy practices or the

785/ business's compliance with this section are informed of all

786| requirements in subsection (6) and this subsection and how to

787) direct consumers to exercise their rights subsection (6) and

788 this subsection.

789 4, For consumers who opt-out of the sale or sharing of

790! their personal information, refrain from selling or sharing

791| personal information collected by the business about the

792 consumer.

793 5. For consumers who opted-out of the sale or sharing of

794 their personal information, respect the consumer's decision to

795) opt-out for at least 12 months before requesting that the

796| consumer authorize the sale of the consumer's personal

797 information.

798 6. Use any personal information collected from the

799 consumer in connection with the submission of the consumer's

800} opt-out request solely for the purposes of complying with the

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801] opt-out request.

802 {o) This subsection does not require a business to include

803] the required links and text on the homepage that the business

804] makes available to the public generally, if the business

805} maintains a_ separate and additional homepage that is dedicated

806] to Florida consumers and that includes the required links and

807 text, and the business takes reasonable steps to ensure that

808| Florida consumers are directed to the homepage for Florida

809| consumers and not the homepage made available to the public

810} generally.

811 (c) A consumer may authorize another person to opt-out of

812] the sale or sharing of the consumer's personal information on

813] the consumer's behalf, and a business shall comply with an opt-

814] out request received from a person authorized by the consumer to

815) act on the consumer's behalf, pursuant to rules adopted by the

816] department.

818 (a) This section does not restrict any business' or third

819] party's ability to do any of the following:

820 1. Comply with federal, state, or local laws.

821 2. Comply with a civil, criminal, or regulatory inquiry,

822 investigation, subpoena, or summons by federal, state, or local

823 authorities.

824 3. Cooperate with law enforcement agencies concerning

825 conduct or activity that the business, service provider, or

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826] third party reasonably and in good faith believes may violate

827 federal, state, or local law.

828 4. Exercise legal rights or privileges.

829 5. Collect, use, retain, sell, or disclose deidentified

830] personal information or aggregate consumer information. If a

831] business uses deidentified information, the business shall:

832 a. Implement technical safeguards that prohibit

833) reidentification of the consumer to whom the information may

834 pertain;

835 b. Implement business processes that specifically prohibit

836 reidentification of the information;

837 c. Implement business processes to prevent inadvertent

838 release of deidentified information; and

839 dad. Not attempt to reidentify the information.
840 (b) This section does not apply to:
841 1. A business that collects or discloses its employees’

842] personal information, so long as the business is collecting or

843} disclosing such information within the scope of its role as an

844 employer.
845 2. Health information that is collected by a covered

846] entity or business associate governed by the privacy, security,

847 and breach notification rules issued by the United States

848] Department of Health and Human Services in 45 C.F.R. parts 160
849| and 164.

850 3. A covered entity governed by the privacy, security, and

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851] breach notification rules issues by the United States Department

852 of Health and Human Services in 45 C.F.R. parts 160 and 164, to

853] the extent the provider or covered entity maintains patient

854 information in the same manner as medical information or

855] protected health information as described in subparagraph 2.

856 4. Information collected as part of a clinical trial

857} subject to the Federal Policy for the Protection of Human

858] Subjects pursuant to good clinical practice guidelines issued by

859 the International Council for Harmonisation of Technical

860] Requirements for Pharmaceuticals for Human Use or pursuant to

861] human subject protection requirements of the United States Food

862| and Drug Administration.

863 5. Sale or sharing of personal information to or froma

864] consumer reporting agency if that information is to be reported

865] in or used to generate a consumer report as defined by 15 U.S.C.

866 s. 1681(a), and if use of that information is limited by the

867} federal Fair Credit Reporting Act, 15 U.S.C. s. 1681 et seq.

868 6. Personal information collected, processed, sold, or

869} disclosed pursuant to the Gramm-Leach-Bliley Act, 15 U.S.C. s.

870} 6801 et seq. and implementing regulations.

871 7. Personal information collected, processed, sold, or

872] disclosed pursuant to the federal Driver's Privacy Protection

873] Act of 1994, 18 U.S.C. s. 2721 et. seq.

874 8. Education information covered by the Family Educational

875} Rights and Privacy Act, 20 U.S.C. s. 1232(g) and 34 C.F.R. part

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876] 99

877 9. Information collected as part of public or peer-

878 reviewed scientific or statistical research in the public

879] interest.
880 (11) CONTRACTS.—Any provision of a contract or agreement

881} of any kind that waives or limits in any way a consumer's rights

882} under this section, including, but not limited to, any right to

883] a remedy or means of enforcement, is deemed contrary to public

884] policy and is void and unenforceable. This section does not

885} prevent a consumer from declining to request information from a

886} business, declining to opt-out of a business's sale or sharing

887! of the consumer's personal information, or authorizing a

888} business to sell or share the consumer's personal information

889] after previously opting out. This subsection only applies to

890] contracts entered into after January 1, 2022.

891 (12) PRIVATE CAUSE OF ACTION.—A consumer whose

892 nonencrypted and nonredacted personal information or e-mail

893} address, in combination with a password or security question and

894 answer that would allow access to the account, is subject to an

895 unauthorized access and exfiltration, theft, or disclosure as a

896] result of a business' violation of the duty to implement and

897] maintain reasonable security procedures and practices

898) sppropriate to the mature of the information fo protect the

899| personal information may bring a civil action for any of the

900 following:

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901 (a) Damages in an amount not less than $100 and not

902 greater than $750 per consumer per incident or actual damages,

903] whichever is greater.

904 (b) Injunctive or declaratory relief, as the court deems
905] proper.

906 (13) ENFORCEMENT AND IMPLEMENTATION .—

907 (a) If the department has reason to believe that any

908] business, service provider, or other person or entity is in

909} violation of this section and that proceedings would be in the

910| public interest, the department may bring an action against such

911] business, service provider, or other person or entity and may

912 seek a civil penalty of not more than $2,500 for each

913) unintentional violation or $7,500 for each intentional

914] violation. Such fines may be tripled if the violation involves a

O15 consumer who is 16 years of age or younger.

916 (b) The department may adopt rules to implement this

917 section.

918 (c) A business may be found to be in violation of this

919} section if it fails to cure any alleged violation within 30 days

920| after being notified in writing by the department of the alleged

921} noncompliance.

922 Section 3. This act shall take effect January 1, 2022.

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HB 969 by Rep. McFarland
Consumer Data Privacy

AMENDMENT SUMMARY
March 10, 2021

Amendment 1 by Rep. McFarland (line 375):
The amendment:
¢ Clarifies the definition of “third party,” and
¢ Clarifies the definition of “unique identifier” by including “linked to a consumer or family”
as used elsewhere in the bill.

Amendment 2 by Rep. McFarland (line 504):
The amendment:
e Allows consumers to self-correct information if the business provides a mechanism,
¢ Clarifies that business records may be retained for an existing legal dispute, and
e Provides that businesses and service providers are not required to delete personal
information under certain circumstances.

Amendment 3 by Rep. McFarland (line 597):
The amendment clarifies that certain intentional actions do not qualify as selling personal
information.

Amendment 4 by Rep. McFarland (line 687):

The amendment:
e Removes requirements that certain provisions be included in third party contracts,
e Removes two duplicate provisions, and
e Clarifies the time period for complying with a consumer request.

Amendment 5 by Rep. McFarland (line 840):
The amendment:
e Adds the words “business associate” to conform with language used in other parts of the
bill, and
e Adds applicants, interns, and volunteers to the list of types of employees that are
included under the employer exception.
Oo wa WD OO F W NY FH

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COMMITTEE/SUBCOMMITTEE AMENDMENT

Bill No. HB 969 (2021)
Amendment No. 1

COMMITTEE/SUBCOMMITTEER ACTION

ADOPTED __ (Y/N)

ADOPTED AS AMENDED __ (Y/N)

ADOPTED W/O OBJECTION —_— (Y/N)

FAILED TO ADOPT __ (Y/N)

WITHDRAWN __ (Y/N)

OTHER _

Committee/Subcommittee hearing bill: Regulatory Reform
Subcommittee

Representative McFarland offered the following:

Amendment
Remove lines 375-393 and insert:

(v) "Third party" means a person who is not any of the
p M4 per

following:

1. The business that collects personal information from

consumers under this section.

2. A service provider to whom the business discloses

personal information about consumers for a business purpose

pursuant to a written contract.

(w) "Unique identifier" means a persistent identifier that

can be used to recognize a consumer, a family, or a device that

is linked to a consumer or family, over time and across

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COMMITTEE/SUBCOMMITTEE AMENDMENT

Bill No. HB 969 (2021)
Amendment No. Il

different services, including, but not limited to, a device

identifier; an Internet Protocol address; cookies, beacons,

pixel tags, mobile ad identifiers, or similar technology;

customer number, unique pseudonym, or user alias; telephone

numbers, or other forms of persistent or probabilistic

identifiers that can be used to identify a particular consumer,

family, or device that is linked to a consumer or family. As

used in this paragraph, the term "family" means a custodial

parent or guardian and any minor children of whom the parent or

guardian has custody, or a household.

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COMMITTEE/SUBCOMMITTEE AMENDMENT

Bill No. HB 969 (2021)
Amendment No. 2

COMMITTEE/SUBCOMMITTEE ACTION

ADOPTED _ (Y/N)
ADOPTED AS AMENDED __ (Y/N)
ADOPTED W/O OBJECTION __ (Y/N)
FAILED TO ADOPT __ (Y/N)
WITHDRAWN __ (Y/N)
OTHER

Committee/Subcommittee hearing bill: Regulatory Reform
Subcommittee

Representative McFarland offered the following:

Amendment
Remove lines 504-542 and insert:

(c) A business or a service provider acting pursuant to

its contract with the business or another service provider may

not be required to comply with a consumer's request to delete

the consumer's personal information if it is reasonably

necessary for the business or service provider to maintain the

consumer's personal information to do any of the following:

1. Complete the transaction for which the personal

information was collected.

2. Fulfill the terms of a written warranty or product

recall conducted in accordance with federal law.

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COMMITTEE/SUBCOMMITTEE AMENDMENT

Bill No. HB 969 (2021)
Amendment No. 2

3. Provide a good or service requested by the consumer, or

reasonably anticipated within the context of a business' ongoing

business relationship with the consumer, or otherwise perform a

contract between the business and the consumer.

4. Detect security incidents, protect against malicious,

deceptive, fraudulent, or illegal activity; or prosecute those

responsible for that activity.

5. Debug to identify and repair errors that impair

existing intended functionality.

6. Engage in public or peer-reviewed scientific,

historical, or statistical research in the public interest that

adheres to all other applicable ethics and privacy laws when the

business' deletion of the information is likely to render

impossible or seriously impair the achievement of such research,

if the consumer has provided informed consent.

7. Enable solely internal uses that are reasonably aligned

with the expectations of the consumer based on the consumer's

relationship with the business.

8. Comply with a legal obligation.

9. As reasonably needed to protect the business’s

interests against existing disputes, legal action, or

governmental investigations.

10. Otherwise internally use the consumer's personal

information in a lawful manner that is compatible with the

context in which the consumer provided the information.

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COMMITTEE/SUBCOMMITTEE AMENDMENT

Bill No. HB 969 (2021)
Amendment No. 2

(d) A consumer has the right to make a request to correct

inaccurate personal information to a business that maintains

inaccurate personal information about the consumer, while taking

into account the nature of the personal information and the

purposes of the processing of the personal information. A

business that receives a verifiable consumer request to correct

inaccurate personal information shall use commercially

reasonable efforts to correct the inaccurate personal

information as directed by the consumer. If a business maintains

a_self-service mechanism to allow a consumer to correct certain

personal information, the business may require the consumer to

correct their own personal information through such mechanism.

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COMMITTEE/SUBCOMMITTEE AMENDMENT

Bill No. HB 969 (2021)
Amendment No. 3

COMMITTEE/SUBCOMMITTEE ACTION

ADOPTED _ (Y/N)

ADOPTED AS AMENDED __ (Y/N)

ADOPTED W/O OBJECTION _ (Y/N)

FAILED TO ADOPT _ (Y/N)

WITHDRAWN _ (Y/N)

OTHER a

Committee/Subcommittee hearing bill: Regulatory Reform
Subcommittee

Representative McFarland offered the following:

Amendment

Remove lines 597-606 and insert:

1. A consumer uses or directs the business to

intentionally disclose personal information or uses the business

to intentionally interact with a third party. An intentional

interaction occurs when the consumer intends to interact with

the third party, via one or more deliberate interactions.

Hovering over, muting, pausing, or closing a given piece of

content does not constitute a consumer's intent to interact with

a third party.

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COMMITTEE/SUBCOMMITTEE AMENDMENT

Bill No. HB 969 (2021)
Amendment No. 4

COMMITTEE/SUBCOMMITTEE ACTION

ADOPTED — (Y/N)

ADOPTED AS AMENDED _ (Y/N)

ADOPTED W/O OBJECTION _— (Y/N)

FAILED TO ADOPT oe (Y/N)

WITHDRAWN —_ (Y/N)

OTHER _

Committee/Subcommittee hearing bill: Regulatory Reform
Subcommittee

Representative McFarland offered the following:

Amendment
Remove lines 687-756 and insert:

(b) The business shall deliver the information required or

act on the request in subsections (3) through (5) to a consumer

free of charge within 45 days after receiving a verifiable

consumer request. The response period may be extended once by 30

additional days when reasonably necessary, taking into account

the complexity of the consumer's requests, provided the business

informs the consumer of any such extension within the initial

45-day response period along with the reason for the extension.

The information must be delivered in a readily usable format

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Bill No. HB 969 (2021)
Amendment No. 4

that allows the consumer to transmit the information from one

entity to another entity without hindrance.

(c) If a third party assumes control of all or part of a

business, acquires a consumer's personal information as part of

the transfer, and the third party materially alters how it uses

a consumer's personal information or shares the information ina

manner that is materially inconsistent with the promises made at

the time of collection, the third party must provide prior

notice of the new or changed practice to the customer. The

notice must be sufficiently prominent and robust to ensure that

existing consumers can easily exercise their rights under

subsections (3) through (6).

(d) Any contract between a business and a service provider

must prohibit the service provider from:

1. Selling or sharing the personal information;

2. Retaining, using, or disclosing the personal

information for any purpose, commercial or otherwise, other than

for the business purposes specified in the contract with the

business; or

3. Combining the personal information that the service

provider receives from or on behalf of the business with

personal information that it receives from or on behalf of

another person or entity or that the service provider collects

from its own interaction with the consumer, provided that the

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40
41
42
43
44
45
46
47]
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49
50

COMMITTEE/SUBCOMMITTEE AMENDMENT

Bill No. HB 969 (2021)
Amendment No. 4

service provider may combine personal information to perform any

business purpose.

(e) A third party that receives a consumer's personal

information is prohibited from:

1. Selling or sharing the personal information.

2. Retaining, using, or disclosing the information outside

of the direct business relationship between the person and the

business.

(f) A third party or a service provider must reguire any

subcontractor to meet the same obligations of such third party

or service provider with respect to personal information.

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10
11
12
13
14
15
16

COMMITTEE/SUBCOMMITTEE AMENDMENT
Bill No. HB 969 (2021)

Amendment No. 5

COMMITTEE/SUBCOMMITTEE ACTION

ADOPTED __ (Y/N)

ADOPTED AS AMENDED __ (Y/N)

ADOPTED W/O OBJECTION __ (Y/N)

FAILED TO ADOPT __ (Y/N)

WITHDRAWN _ (Y/N)

OTHER ee

Committee/Subcommittee hearing bill: Regulatory Reform
Subcommittee

Representative McFarland offered the following:

Amendment
Remove lines 840-855 and insert:

(b) This section does not apply to:

1. A business that collects or discloses its employees',

applicants’, interns’, or volunteers’ personal information, so

long as the business is collecting or disclosing such

information within the scope of its role as an employer.

2. Health information that is collected by a covered

entity or business associate governed by the privacy, security,

and breach notification rules issued by the United States

Department of Health and Human Services in 45 C.F.R. parts 160

and 164.

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17
18
19
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22
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COMMITTEE/SUBCOMMITTEE AMENDMENT

Bill No. HB 969 (2021)
Amendment No. 5

3. A covered entity or business associate governed by the

privacy, security, and breach notification rules issues by the

United States Department of Health and Human Services in 45

C.F.R. parts 160 and 164, to the extent the covered entity or

business associate maintains patient information in the same

manner as medical information or protected health information as

described in subparagraph 2.

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HOUSE OF REPRESENTATIVES STAFF ANALYSIS

BILL #: HB 971 Pub. Rec./Consumer Data Privacy
SPONSOR(S): McFarland
TIED BILLS: HB 969 IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Regulatory Reform Subcommittee Wright (Ww) Anstead rn.

2) Government Operations Subcommittee

3) Commerce Committee

SUMMARY ANALYSIS

As technologies that capture and analyze data proliferate, so, too, do businesses’ abilities to contextualize
consumer data. Businesses use it for a range of purposes. The European Union, California, and a few other
states have enacted data privacy regulations to protect such data and give consumers more control over how
their information is used.

HB 969, to which this bill is linked, gives certain consumer rights related to personal information, including:
e The right to access personal information collected on them by a business,
e The right to delete or correct their personal information, and
e The right to opt-out of the sale of sharing of their personal information to third parties.

The Department of Legal Affairs (DLA), upon belief that any business, service provider, or other person or
entity is in violation of the consumer data requirement provisions, and that proceedings would be in the public
interest, may bring an action against a business, service provider, or other person or entity. DLA may seek a
civil penalty of not more than $2,500 for each unintentional violation or $7,500 for each intentional violation,
and triple the amount if the violation involves a consumer who is 16 years of age or younger.

This bill, which is linked to the passage of HB 969, provides that all information received by the department
pursuant to a notification of a security breach or a violation of certain statutory requirements, or received by the
department pursuant to an investigation by the department or a law enforcement agency, is confidential and
exempt. The bill provides that the information may be released during an active investigation:

e In the furtherance of official duties and responsibilities;

e For print, publication, or broadcast to notify the public of a data breach; or

¢ To another governmental entity in the furtherance of its official duties and responsibilities.

Once an investigation is completed, the following information will remain confidential and exempt:
e All information to which another public records exemption applies,

Personal information,

A computer forensic report,

Information that would otherwise reveal weaknesses in a business's data security, and

Information that would otherwise disclose a business's proprietary information.

o *# @ @

Per the Open Government Sunset Review Act, this exemption will be automatically repealed on October 2,
2027, unless reenacted by the Legislature.

Article |, s. 24(c) of the Florida Constitution requires a two-thirds vote of the members present and
voting for final passage of a newly created or expanded public record or public meeting exemption.
The bill creates a public record exemption; thus, it requires a two-thirds vote for final passage.

This document does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0971.RRS.DOCX
DATE: 3/6/2021
FULL ANALYSIS
|. SUBSTANTIVE ANALYSIS

A. EFFECT OF PROPOSED CHANGES:

Public Records

Article |, s. 24(a) of the State Constitution sets forth the state’s public policy regarding access to
government records. This section guarantees every person a right to inspect or copy any public record
of the legislative, executive, and judicial branches of government. The Legislature, however, may
provide by general law for the exemption of records from the requirements of Article |, section 24(a).'
The general law must state with specificity the public necessity justifying the exemption and must be no
more broad than necessary to accomplish its purpose.”

Public policy regarding access to government records is addressed further in the Florida Statutes.
Section 119.07(1), F.S., guarantees every person a right to inspect and copy any state, county, or
municipal record. Furthermore, the Open Government Sunset Review Act? provides that a public record
or public meeting exemption may be created or maintained only if it serves an identifiable public
purpose. In addition, it may be no broader than is necessary to meet one of the following purposes:

e Allow the state or its political subdivisions to effectively and efficiently administer a
governmental program, which administration would be significantly impaired without the
exemption.

e Protect sensitive personal information that, if released, would be defamatory or would
jeopardize an individual’s safety; however, only the identity of an individual may be exempted
under this provision.

e Protect trade or business secrets.*

The Open Government Sunset Review Act requires the automatic repeal of a newly created exemption
on October 2nd of the fifth year after creation or substantial amendment, unless the Legislature
reenacts the exemption.®

Consumer Data Privacy

As technologies that capture and analyze data proliferate, so, too, do businesses' abilities to
contextualize consumer data. Businesses use it for a range of purposes, including better understanding
day-to-day operations, making more informed business decisions and learning about their customers.®

The European Union, several other countries, California, and a few other states have enacted data
privacy regulations to protect such data and give consumers more control over how their information is
used. Florida does not have a broad data privacy law, but there is a law which governs what actions
must be taken by certain government and business entities in the event of a data breach of personal
information.’

Department of Legal Affairs

The Office of the Attorney General, also known as the Department of Legal Affairs (DLA), provides a
wide variety of legal services, including defending the state in civil litigation cases, representing the

1 Art. |, s. 24(c), FLA. CONST.

2 Art. |, s. 24(c), FLA. CONST.

3 Section 119.15, F.S.

4 Section 119.15(6)(b), F.S.

5 Section 119.15(3), F.S.

§ Max Freedman, How Businesses Are Collecting Data (And What They’re Doing With It), Business News Daily (Jun. 17, 2020)
https://www.businessnewsdaily.com/10625-businesses-collecting-data.html.

7S. 501.171, F.S.

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DATE: 3/6/2021
people of Florida in criminal appeals in state and federal courts, protecting rights of children,
consumers, and victims through its various protection programs, and investigating and litigating against
businesses that seek to limit competition and defraud taxpayers.®

HB 969 (2021)

HB 969, to which this bill is linked, gives certain consumer rights related to personal information,
including:

e The right to access personal information collected on them by a business,

e The right to delete or correct their personal information, and

e The right to opt-out of the sale of sharing of their personal information to third parties.

A “business” is a for profit entity that does business in Florida, collects and controls personal
information, and satisfies one or more of the following thresholds:
e Has global annual gross revenues in excess of $25 million, as adjusted in January of every odd-
numbered year to reflect any increase in the Consumer Price Index.
e Annually buys, receives for the business's commercial purposes, sells, or shares for commercial
purposes, the personal information of 50,000 or more consumers, households, or devices.
e¢ Derives 50 percent or more of its global annual revenues from selling or sharing personal
information about consumers.

Under the bill, personal information is information that identifies, relates to, or describes a particular
consumer or household, or is reasonably capable of being directly or indirectly associated or linked
with, a particular consumer or household. The term does not include public information from
government records; or deidentified or aggregate consumer information.

The bill proscribes certain operational requirements on businesses with respect to collecting, selling, or
sharing personal information with service providers or third parties.

DLA, upon belief that any business, service provider, or other person or entity is in violation and that
proceedings would be in the public interest, may bring an action against a business, service provider,
or other person or entity. DLA may seek a civil penalty of not more than $2,500 for each unintentional
violation or $7,500 for each intentional violation, and triple the amount if the violation involves a
consumer who is 16 years of age or younger.

Effect of the Bill

The bill provides that all information received by the department pursuant to a notification of a security
breach or a violation of certain statutory requirements, or received by the department pursuant to an
investigation by the department or a law enforcement agency, is confidential and exempt. °

During an active investigation, information made confidential and exempt may be disclosed by DLA:
e Inthe furtherance of official duties and responsibilities;
e For print, publication, or broadcast if the department determines that such release would assist
in notifying the public or locating or identifying a person that the department believes to be a
victim of a data breach or improper use or disposal of customer records, except that information
made confidential and exempt after an investigation may not be released in this manner; or

8 OPPAGA, Office of the Attorney General (Department of Legal Affairs,
https://oppaga.fl.gov/ProgramSummary/ProgramDetail?programNumber=1026 (last visited Mar. 7, 2021).
° There is a difference between records the Legislature designates exempt from public record requirements and those the Legislature
deems confidential and exempt. A record classified as exempt from public disclosure may be disclosed under certain circumstances.
See WFTY, Inc. v. Sch. Bd. of Seminole, 874 So.2d 48, 53 (Fla. 5th DCA 2004), review denied 892 So.2d 1015 (Fla. 2004); City of
Rivera Beach v. Barfield, 642 So.2d 1135 (Fla. 4th DCA 1994); Williams v. City of Minneola, 575 So.2d 683, 687 (Fla. 5'" DCA 1991). If
the Legislature designates a record as confidential and exempt from public disclosure, such record may not be released by the
custodian of public records, to anyone other than the persons or entities specifically designated in statute. See Op. Att'y Gen. Fla.
1985).
Sronege NAME: h0971.RRS.DOCX PAGE: 3
DATE: 3/6/2021
To another governmental entity in the furtherance of its official duties and responsibilities.

Once an investigation is completed or once an investigation ceases to be active, the following
information received by DLA will remain confidential and exempt:

All information to which another public records exemption applies,

Personal information,

A computer forensic report,

Information that would otherwise reveal weaknesses in a business's data security, and
Information that would otherwise disclose a business's proprietary information.

The term "proprietary information" means information that:

Is owned or controlled by the business,

Is intended to be private and is treated by the business as private because disclosure would
harm the business or its business operations,

Has not been disclosed except as required by law or a private agreement that provides that the
information will not be released to the public,

Is not publicly available or otherwise readily ascertainable through proper means from another
source in the same configuration as received by DLA, and

Includes trade secrets and competitive interests.

The provision is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and
will stand repealed on October 2, 2027, unless reviewed and saved from repeal through reenactment
by the Legislature.

The bill will become effective on the same date that HB 969 (2021) or similar legislation takes effect, if
such legislation is adopted in the same legislative session or an extension thereof and becomes a law.

B. SECTION DIRECTORY:

Section 1: Creates a public records exemption for investigations related to s. 501.173, F.S.
Section 2: Provides a public necessity statement as required by the Florida Constitution.
Section 3: Provides an effective date of the same date that HB 969 (2021) or similar legislation

takes effect, if such legislation is adopted in the same legislative session or an extension
thereof and becomes law.

ll. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT

A. FISCAL IMPACT ON STATE GOVERNMENT:

1. Revenues:

None.

2. Expenditures:

See Fiscal Comments.

B. FISCAL IMPACT ON LOCAL GOVERNMENTS:

1. Revenues:

None.

2. Expenditures:

None.

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DATE: 3/6/2021
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.

D. FISCAL COMMENTS:

The bill may have a minimal fiscal impact on DLA because agency staff responsible for complying with
public records requests may require training related to the creation of the public records exemptions.
DLA could incur costs associated with redacting the exempt information prior to releasing a record. The
costs, however, would be absorbed by existing resources, as they are part of the day-to-day
responsibilities of agencies

lil. COMMENTS
A. CONSTITUTIONAL ISSUES:

1. Applicability of Municipality/County Mandates Provision:

Not applicable. The bill does not appear to require counties or municipalities to take an action
requiring the expenditure of funds, reduce the authority that counties or municipalities have to raise
revenue in the aggregate, nor reduce the percentage of state tax shared with counties or
municipalities.

2. Other:
Vote Requirement

Article |, section 24(c) of the Florida Constitution requires a two-thirds vote of the members present
and voting for final passage of a newly created or expanded public record or public meeting
exemption. The bill expands a public record exemption; thus, it requires a two-thirds vote for final
passage.

Public Necessity Statement

Article |, section 24(c) of the Florida Constitution requires a public necessity statement for a newly
created or expanded public record or public meeting exemption. The bill expands a public record
exemption; thus, it includes a public necessity statement.

Breadth of Exemption

Article 1, section 24(c) of the Florida Constitution requires a newly created or expanded public record
or public meeting exemption to be no broader than necessary to accomplish the stated purpose of
the law. The bill creates a public records exemption for sensitive investigative materials and personal
information, which does not appear to be broader than necessary to accomplish its purpose.

B. RULE-MAKING AUTHORITY:

None.

C. DRAFTING ISSUES OR OTHER COMMENTS:
None.

IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES

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FLORIODA H O US E O F REP RES EN TA TIVE S

HB 971 2021

1 A bill to be entitled

2 An act relating to public records; amending s.

3 501.173, F.S.; providing an exemption from public

4 records requirements for information relating to

i] investigations by the Department of Legal Affairs and
6 law enforcement agencies of certain data privacy

7 violations; providing for future legislative review

8 and repeal of the exemption; providing a statement of
9 public necessity; providing a contingent effective

10 date.

11

12} Be It Enacted by the Legislature of the State of Florida:
13
14 Section 1. Subsection (14) is added to section 501.173,

15 Florida Statutes, as created by HB 969, 2021 Regular Session, to
16} read:

17 501.173 Consumer data privacy.—
18 (14) PUBLIC RECORDS EXEMPTION.—
19 (a) All information received by the department pursuant to

20] a notification of a security breach or a violation under this

21) section, or received by the department pursuant to an

22 investigation by the department or a law enforcement agency, is

23] confidential and exempt from s. 119.07(1) and s. 24(a), Art. I

24 of the State Constitution, until such time as the investigation

25] is completed or ceases to be active. This exemption shall be

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HB 971 2021

26 construed in conformity with s. 119.071(2)(c).

27 (bo) During an active investigation, information made

28) confidential and exempt pursuant to paragraph (a) may be

29| disclosed by the department:

30 1. In the furtherance of official duties and

31] responsibilities;

32 2. For print, publication, or broadcast if the department

33] determines that such release would assist in notifying the

34] public or locating or identifying a person that the department

35] believes to be a victim of a data breach or improper use or

36] disposal of customer records, except that information made

37] confidential and exempt by paragraph (c) may not be released

38] pursuant to this subparagraph; or

39 3. To another governmental entity in the furtherance of

40} its official duties and responsibilities.

4} (c) Upon completion of an investigation or once an

42| investigation ceases to be active, the following information

43) received by the department shall remain confidential and exempt

44 from s. 119,0/7(1) ands. 24(a), Art. I of the State

45 Constitution:

46 1. All information to which another public records

47) exemption applies.

48 2. Personal information.

49 3. A computer forensic report.

50 4. Information that would otherwise reveal weaknesses in a
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FLO RIODA HO US E O F R EP RES EN TATHEIV ES

HB 971 2021

51] business's data security.

52 5. Information that would disclose a business's

53} proprietary information.

54 (d) For purposes of this subsection, the term "proprietary

55 information" means information that:

56 1. Is owned or controlled by the business.

57 2. Is intended to be private and is treated by the

58} business as private because disclosure would harm the business

59} or its business operations.

60 3. Has not been disclosed except as required by law or a

61] private agreement that provides that the information will not be

62] released to the public.

63 4. Is not publicly available or otherwise readily

64} ascertainable through proper means from another source in the

65) same configuration as received by the department.

66 5. Includes:
67 a. Trade secrets as defined in s. 688.002.
68 b. Competitive interests, the disclosure of which would

69 impair the competitive business of the business who is the

70| subject of the information.

71 (e) This subsection is subject to the Open Government

72 Sunset Review Act in accordance with s. 119.15 and shall stand

73) repealed on October 2, 2027, unless reviewed and saved from

74) repeal through reenactment by the Legislature.

aS Section 2. The Legislature finds that it is a public

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FLORtIODA H OU S E O F REP RES EN TAT IV ES

HB 971 2021

76| necessity that all information received by the Department of

77| Legal Affairs pursuant to a notification of a violation of s.

78] 501.173, Florida Statutes, or received by the department

79) pursuant to an investigation by the department or a law

80] enforcement agency, be made confidential and exempt from s.

81 119.07(1), Florida Statutes, ands. 24(a), Article I of the

82] State Constitution for the following reasons:

83 (1) A notification of a violation of s. 501.173, Florida

84) Statutes, may result in an investigation of such violation. The

85} premature release of such information could frustrate or thwart

86] the investigation and impair the ability of the department to

87| setifectively and efficiently administer sw 501.173, Florida

88 Statutes. In addition, release of such information before

89] completion of an active investigation could jeopardize the

90} ongoing investigation.

91 (2) The Legislature finds that it is a public necessity to

92) continue to protect from public disclosure all information to

93) which another public record exemption applies once an

94] investigation is completed or ceases to be active. Release of

95] such information by the department would undo the specific

96] statutory exemption protecting that information.

97 (3) An investigation of a data privacy violation is likely

98} to result in the gathering of sensitive personal information,

99) including social security numbers, identification numbers, and

100] personal financial information. Such information could be used

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101] for the purpose of identity theft. In addition, release of such

102| information could subject possible victims of data privacy

103 violations to further harm.

104 (4) Notices received by the department and information

105] received during an investigation of a data breach are likely to

106} contain proprietary information, including trade secrets, about

107} the security of the breached system. The release of the

108] proprietary information could result in the identification of

109 vulnerabilities. In addition, a trade secret derives

110] independent, economic value, actual, or potential, from being

111} generally unknown to, and not readily ascertainable by, other

112] persons who might obtain economic value from its disclosure or

113} use. Allowing public access to proprietary information,

114] including a trade secret, through a public records request could

115] destroy the value of the proprietary information and cause a

116} financial loss to the business submitting the information.

117] Release of such information could give business competitors an

118] unfair advantage and weaken the position of the entity supplying

119] the proprietary information in the marketplace.

120 Section 3. This act shall take effect on the same date
121) that HB 969 or similar legislation takes effect, if such
122) legislation is adopted in the same legislative session or an

123 extension thereof and becomes a law.

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