House Commerce - 2024-05-06 - 8:30AM
Resumen
TLDRLe document détaille les délibérations de la commission sur le projet de loi h121 relatif à la confidentialité des données. Parmi les principaux points abordés, on note des modifications sur la définition des données biométriques, qui n'incluent plus les photographies et enregistrements sauf s'ils servent à identifier une personne. Le projet renforce la protection des données des mineurs, exigeant un consentement explicite pour leur collecte et traitement. Un point majeur est l'interdiction de la vente des données sensibles, même avec consentement. Le ciblage publicitaire est également abordé, limitant les publicités ciblées aux interactions avec le site même d'une entreprise, sauf consentement. Les seuils d'applicabilité de la loi sont augmentés initialement puis réduits progressivement. Une attention particulière est portée sur les courtiers en données, insistant sur l'utilisation légitime des informations. Enfin, le projet de loi introduit un droit d'action privée permettant des dommages-intérêts statutaires sous certaines conditions, avec une application progressive des modifications jusqu'en 2029.
Para llevar
- 🔍 La définition des données biométriques exclut les simples photographies à moins qu'elles ne soient utilisées pour identifier.
- 🛑 La vente de données sensibles est totalement interdite.
- 👶 Le consentement est requis pour le traitement des données de mineurs.
- 📊 Les seuils pour appliquer la loi augmentent puis sont réduits progressivement.
- 🛡️ La loi impose des obligations de vérification de l'utilisation légitime aux courtiers en données.
- 📈 Le ciblage publicitaire doit être basé sur la première partie, sauf consentement.
- ⚖️ Le droit d'action privée inclut des dommages-intérêts statutaires après des violations non corrigées.
- 📑 Les nouvelles règles seront implémentées progressivement de 2025 à 2029.
- 🔄 Les modifications apportées par le Sénat sont partiellement acceptées dans le projet final.
- 🕒 Un échéancier progressif est établi pour les nouvelles obligations de conformité.
Cronología
- 00:00:00 - 00:05:00
Introduction des discussions du comité sur la confidentialité des données avec l'Attorney John Gray. Il présente une version modifiée du projet de loi h121, mettant en lumière les changements récents liés à la confidentialité des données par rapport à la version du Sénat, notamment des modifications non substantielles concernant les définitions.
- 00:05:00 - 00:10:00
Spécifications sur les données biométriques : les photographies et enregistrements ne sont plus inclus à moins qu'ils ne soient utilisés pour identifier un individu, clarifiant ainsi les données sensibles. Accent sur une meilleure protection consistant à harmoniser les législations nationales tout en permettant des transferts d'images sans entrave. Changements relatifs au traitement des données des mineurs pour minimiser les risques.
- 00:10:00 - 00:15:00
Clarification sur l'information de géolocalisation, reformulée pour se conformer aux pratiques des autres États tout en étant plus protectrice. Vérification des exclusions concernant les informations disponibles publiquement et confirmation que la génération de données biométriques sans consentement ne sera pas considérée comme publique.
- 00:15:00 - 00:20:00
Discussion sur la nécessité d'inclure des tatouages et autres caractéristiques physiques dans les données biométriques. L'accent est mis sur la distinction entre identification passive par photo et collecte active d'informations sensibles. Préoccupation sur la suppression des blessures mentales dans la protection des données des mineurs.
- 00:20:00 - 00:25:00
Suppression des blessures mentales de la section concernant le préjudice aux mineurs. Discussion sur l'implication de l'exclusion des résidents temporaires des protections. Continuité sur les exigences de protection pour les mineurs connus. Ajustements mineurs sur les catégories de données sensibles et les pratiques de commerce.
- 00:25:00 - 00:30:00
On discute de la commercialisation des données personnelles, s'inspirant des propositions du Sénat mais gardant des protections importantes pour éviter les échanges non monétaires de données. Inclusion des déclarations fiscales dans les informations financières sensibles, et élargissement de la protection pour les mineurs.
- 00:30:00 - 00:35:00
Modification majeure pour inclure les données des mineurs de plus de 13 ans comme sensibles et requérant un consentement direct, sans nécessiter celui des parents, pour se conformer à d'autres législations récentes. Ajustement des publicités ciblées pour autoriser celles de première partie mais avec restrictions pour les mineurs avec consentement opt-in.
- 00:35:00 - 00:40:00
Limitations de l'applicabilité des lois avec des seuils augmentés progressivement pour permettre une mise en œuvre phasée de la réglementation sur la confidentialité des données. Ajustements des exemptions pour les organisations à but non lucratif suivant le modèle du Sénat, concentré sur l'utilisation institutionnelle des données.
- 00:40:00 - 00:45:00
Les droits des consommateurs sur les données sont clarifiés avec une note sur la non-obligation de suppression en cas d'exigence légale. Les obligations des contrôleurs sont précisées, notamment en matière de limitation de la collecte des données selon les nécessités raisonnables, éliminant les publicités ciblées de première partie nécessitant un opt-in.
- 00:45:00 - 00:50:00
Changement majeur impliquant l'interdiction de la vente de données sensibles, s'alignant sur les pratiques du Maryland et créant des implications significatives pour la conformité des entreprises. Discussions sur les implications d'interdiction ou de consentement en matière de publicité et de vente de données de mineurs.
- 00:50:00 - 00:55:00
Révision des obligations des contrôleurs concernant les données des mineurs, intégration de principes plus stricts liés à la durée et à la finalité de la conservation des données. Clarifications sur l'authentification et la localisation IP pour vérifier la résidence pour les droits de données régionales.
- 00:55:00 - 01:00:00
Ajustements linguistiques pour rendre la législation plus cohérente, notamment en ce qui concerne la connaissance délibérée des consommateurs mineurs, renforçant l'alignement avec d'autres lois existantes. Maintien des exclusions de géolocalisation et de la collecte de données non essentielles dans d'autres sections législatives pour d'autres lois comme le Kids Code.
- 01:00:00 - 01:05:00
Adaptation de la réglementation du courtage de données avec la suppression des options d'opt-out individuelles pour favoriser les études et recommandations futures sur la faisabilité d'un opt-out général facilité par l'État, impliquant différentes agences pour établir rapport et recommandations.
- 01:05:00 - 01:10:00
Démonstration des changements des pénalités pour le non-respect de l'enregistrement des courtiers en données avec des amendes accrues mais avec une période d'attente étendue à 30 jours pour des ajustements. Nouvelle obligation de vérification des licences d'utilisation pour les courtiers en données avant la diffusion des informations.
- 01:10:00 - 01:15:55
Implémentation phasée des seuils d'applicabilité et des droits d'action privés : initialement basés sur la protection des consommateurs déjà en place, évoluant vers des dommages-intérêts potentiels statutaires pour les violations de données sensibles et des mineurs. L'analyse de ces nouveaux cadres commence en 2027 avec un suivi complet requis.
Mapa mental
Preguntas frecuentes
Quels changements ont été apportés à la définition des données biométriques ?
La définition exclut désormais les photographies, enregistrements audio ou vidéo et leurs dérivés, sauf s'ils sont générés pour identifier une personne spécifique.
Qu'indique le projet de loi sur la collecte de données de mineurs ?
Il exige le consentement pour toute collecte ou traitement de données provenant de mineurs identifiés.
Comment le projet de loi traite-t-il la vente de données sensibles ?
La vente de données sensibles est interdite, même avec consentement.
Y a-t-il des exceptions à la déclaration publique de certaines informations ?
Les données biométriques collectées par une entreprise à l'insu du consommateur ne sont pas considérées comme des informations publiquement disponibles.
Comment le projet de loi définit-il le ciblage publicitaire ?
Le ciblage publicitaire basé sur les interactions avec des sites distincts d'une entreprise nécessite un consentement, sauf pour la publicité du premier parti.
Quelles modifications ont été apportées au seuil d'applicabilité de la loi ?
Les seuils ont été augmentés initialement et seront réduits progressivement sur plusieurs années.
Quel est le statut de la vente de données des mineurs ?
La vente des données des mineurs est interdite lorsque l'entreprise sait ou évite délibérément de savoir que l'utilisateur est mineur.
Quelles sont les nouvelles obligations pour les courtiers en données ?
Ils doivent s'assurer que les informations personnelles sont utilisées à des fins légitimes et ne pas les fournir s'ils ont des raisons de croire qu'elles seront utilisées illégalement.
Comment le projet de loi aborde-t-il le droit privé d'action ?
Il introduit des dommages-intérêts statutaires disponibles après notification et échec à corriger une violation.
Quand les exemptions et nouvelles règles prendront-elles effet ?
Les changements s'appliqueront progressivement à partir de juillet 2025, avec des étapes d'ajustement jusqu'en 2029.
Ver más resúmenes de vídeos
- 00:00:00of May
- 00:00:026 house Commerce and committee on the
- 00:00:06committee on Commerce and economic
- 00:00:08development um
- 00:00:118:30ish and we'll start with
- 00:00:15um Attorney John gr do a walkthrough of
- 00:00:23h121 uh John Gray office of legislative
- 00:00:26Council I will screen share
- 00:00:30yeah that's pretty
- 00:00:33good okay
- 00:00:35so you guys have seen this many times
- 00:00:38but it's been a little while um we're
- 00:00:41jumping back into Data privacy the
- 00:00:44highlighting that you're going to see
- 00:00:45here is the changes relative to the
- 00:00:46version as passed out by you guys passed
- 00:00:49out by the house um not against what the
- 00:00:53Senate has done and obviously that's
- 00:00:54still ongoing my understanding is that
- 00:00:57this language is being considered and
- 00:00:58this is what you see in the Stream range
- 00:01:00head at the top um for inclusion in s289
- 00:01:05so with that I will jump in and I will
- 00:01:06call out where there are changes some of
- 00:01:08it you won't see and I will try to call
- 00:01:10that out others should be in
- 00:01:12highlighting when I say that you won't
- 00:01:14see it it's a deletion so the first
- 00:01:17piece is just the first definition
- 00:01:18previously was abortion this is a
- 00:01:20cleanup change to remove that because
- 00:01:22there were no other references that
- 00:01:23pulled in that term so it wasn't
- 00:01:25necessary to call it out it's not a
- 00:01:27substantive change this doesn't affect
- 00:01:29anything about reproductive health or
- 00:01:30the like this is just cleanliness
- 00:01:33basically tidiness for the document
- 00:01:36um there is a change to biometric data
- 00:01:39so this is a fairly substantive one this
- 00:01:42is essentially accepting what Senate
- 00:01:45Economic Development proposed um to the
- 00:01:48definition of biometric data you may
- 00:01:49recall that previously this list of and
- 00:01:52just to reorient biometric data is a
- 00:01:54kind of sensitive data so we're talking
- 00:01:55about opin consent for this kind of
- 00:01:57processing uh previously biometric data
- 00:02:00included as
- 00:02:01subdivisions seven or romanet 7 and 8 uh
- 00:02:05photographs depictions images recordings
- 00:02:07and then data derived from those pieces
- 00:02:10what you see now is those have been
- 00:02:11pulled out um and replaced with
- 00:02:13biometric data does not include those
- 00:02:15digital or physical physical photographs
- 00:02:17audio or video recordings or any data
- 00:02:19generated from those photographs or
- 00:02:21recordings unless and this is key unless
- 00:02:24such data is generated to identify a
- 00:02:25specific individual so what this is
- 00:02:26meant to say is just regular images and
- 00:02:30the like are not meant to be picked up
- 00:02:31by the definition of biometric data
- 00:02:33that's not going to be sensitive data
- 00:02:34that requires opt-in however if people
- 00:02:36are generating the face templates that
- 00:02:39you see above um or other things from
- 00:02:41those photographs or recordings that
- 00:02:43would be a kind of biometric data so
- 00:02:44this is a nice separation um aligned
- 00:02:48with other states allows you to get at
- 00:02:49the kind of harm that you were trying to
- 00:02:51get at I think with those previous
- 00:02:53categories but avoids essentially
- 00:02:56cutting off um a lot of transfers of
- 00:03:00images depictions recording so I think
- 00:03:02that this is a safer position a Le a
- 00:03:05more defensible position to be in and
- 00:03:06still lets you get at the same kinds of
- 00:03:08harms that you were trying to get
- 00:03:11at we'll jump down to uh heightened risk
- 00:03:15of harm to miners there's one change
- 00:03:17here which you won't
- 00:03:19see yes heighten risk of harm to a minor
- 00:03:22um in speaking with others this
- 00:03:25subdivision B about processing personal
- 00:03:28data of a minor in a manner presents a
- 00:03:30reasonably foreseeable risk of financial
- 00:03:32physical or reputational injury uh this
- 00:03:35is previously contemplated emotional and
- 00:03:37mental injury to the minor out of a
- 00:03:40concern that uh these might be too
- 00:03:43expansive uh to put you kind of in a
- 00:03:45more defensible place those have been
- 00:03:47removed and to align with the approach
- 00:03:48in other stacees and I think that this
- 00:03:49is also aligning with kids code although
- 00:03:52admittedly I don't know as much about
- 00:03:54hit code to say um but this is kind of a
- 00:03:57a safety type change it still preserves
- 00:03:59other kinds of injury here including
- 00:04:03importantly reputational injury which is
- 00:04:06sort of in the same vein but more
- 00:04:07precise than just what is mental injury
- 00:04:10to a minor
- 00:04:13sure uh I can jump down
- 00:04:16to precise geolocation data uh this
- 00:04:20aligns essentially with the approach
- 00:04:22taken in other states except that we use
- 00:04:24a radius of 1,850 Ft which is broader uh
- 00:04:28so it's more protective than than what
- 00:04:30other states use it's from Toy 1750 I
- 00:04:33think that California uses 1850 um
- 00:04:36basically the previous definition you
- 00:04:37had captured this same content except
- 00:04:40that had it had a line that um in effect
- 00:04:44and it's interesting that no one really
- 00:04:46went into this uh there was a line in
- 00:04:48the previous draft that essentially made
- 00:04:50any data generated from a phone uh
- 00:04:53precise gation data whether or not it
- 00:04:56was used or could be used to identify
- 00:04:58specific location of a consumer so that
- 00:05:00has been pulled out I don't think that
- 00:05:02was probably anyone's actual intent so
- 00:05:05this aligns with other states this is um
- 00:05:08still getting at the same kind of data
- 00:05:09that you want to get
- 00:05:15it publicly available information this
- 00:05:18is
- 00:05:19a
- 00:05:22change um to add in a new piece to make
- 00:05:26clear that biometric data that is
- 00:05:27collected by a business about a consumer
- 00:05:30without that consumer's knowledge would
- 00:05:32not be publicly available information so
- 00:05:33this is you know someone's just taking a
- 00:05:35picture you're sitting in a cafeteria
- 00:05:37whatever it is it's you can be seen
- 00:05:39there but if people start generating
- 00:05:41biometric data from that um that would
- 00:05:44not be considered publicly available
- 00:05:45information just because you happen to
- 00:05:46be sitting um out in public they had to
- 00:05:49take that step to create the biometric
- 00:05:51data and this is a way of ensuring that
- 00:05:54because as you'll recall publicly
- 00:05:55available information is not part of the
- 00:05:57category of personal data which means it
- 00:05:59is not not regulated under the act so if
- 00:06:02biometric
- 00:06:03data otherwise met the common sense uh
- 00:06:07understanding what publicly available
- 00:06:08information was you can imagine that all
- 00:06:10kinds of bace scraping and just people
- 00:06:12sitting out on a sidewalk and and
- 00:06:14capturing folks would be not picked up
- 00:06:17at all by the act so this is a way um of
- 00:06:20making sure that you do get at those
- 00:06:22kinds of biometric data and this is
- 00:06:24consistent with I know that Maryland
- 00:06:26just did this it may be that other
- 00:06:28states are taking this approach but this
- 00:06:31is a newer piece I believe but one that
- 00:06:34is consistent with the intent that you
- 00:06:36guys have had and I think is more
- 00:06:37protective of
- 00:06:40consumers can I ask as we're going along
- 00:06:42or do we need to wait until we get
- 00:06:45through the
- 00:06:46document I think it's fine to address it
- 00:06:48go ahead y okay thanks so on the on the
- 00:06:52publicly available information does not
- 00:06:54include biometric data collected could
- 00:06:57it do we need the word biometric there
- 00:06:59does not include data collected by a
- 00:07:01business about a consumer without the
- 00:07:03consumer's knowledge or is that we do
- 00:07:05need Biometrics because if you have just
- 00:07:08generally data collected without the
- 00:07:10consumer's knowledge that really is kind
- 00:07:12of Common Sense understanding of what
- 00:07:14publicly available is so we're not
- 00:07:16trying to restrict um people can take
- 00:07:20pictures
- 00:07:21or capture folks out in public you don't
- 00:07:24have an expectation of privacy in public
- 00:07:27in that sense so we're not trying to
- 00:07:29disrupt it so that anywhere you go
- 00:07:31people
- 00:07:32cannot do things you know about you they
- 00:07:35can't uh capture your speech or the like
- 00:07:37we just don't want them to use that
- 00:07:39information in particular ways I'm
- 00:07:42saying we it's you guys you guys don't
- 00:07:43want them to use information in
- 00:07:45particular ways that are threatening to
- 00:07:47Consumers um but we don't want to run
- 00:07:50into Free Speech concerns with just
- 00:07:52folks um out and about regularly
- 00:07:55understood publicly available
- 00:07:56information they can no longer collect
- 00:07:58it they can no longer trans we're not
- 00:08:00trying to cause that huge alteration in
- 00:08:03how um public interaction works that's
- 00:08:06not what this is meant to do this is
- 00:08:07just meant to get at a specific kind of
- 00:08:10heightened uh harm and as we talked
- 00:08:13about with the category of biometric
- 00:08:14data we're also talking about something
- 00:08:16that requires a little bit of a step
- 00:08:18right um those facial templates and
- 00:08:20fingerprinting and the like that's not
- 00:08:22something that you just immediately have
- 00:08:25by virtue of being out in public that's
- 00:08:27a step taken to identif by someone on
- 00:08:30the basis of information does that make
- 00:08:31sense yeah that's much thank you I
- 00:08:34appreciate that j a question um as long
- 00:08:38as we're jumping in I was looking at the
- 00:08:40biometric data and the things that
- 00:08:42you're collecting and it struck me that
- 00:08:45maybe included in that we should include
- 00:08:48tattoos and other body
- 00:08:51decorations H
- 00:08:54um so that's interesting uh it's
- 00:08:58definitely something that could be used
- 00:08:59to identify a person
- 00:09:01ums do it all the
- 00:09:04time right
- 00:09:08um data generated from the technological
- 00:09:10processing of an individual's unique
- 00:09:12biological physical
- 00:09:14characteristics that's linked or Reason
- 00:09:20linkable so I think it would depend uh I
- 00:09:23get like as this is set up the tattoos
- 00:09:26would not be picked up as just
- 00:09:29physical photographs a physical
- 00:09:31photograph but
- 00:09:34um trying to think of What technological
- 00:09:36processing of that would be that allows
- 00:09:40for reasonable linking that's beyond
- 00:09:41just a photograph because we are trying
- 00:09:44to accept the syic compromise here of
- 00:09:47excluding those photographs and I think
- 00:09:49it's clear from a from a photograph that
- 00:09:51you can just look um and make an
- 00:09:54identification of tattoos if it was
- 00:09:56something that went beyond that um
- 00:10:01so I I guess maybe the third piece here
- 00:10:02is to your point any data generated from
- 00:10:04that photographs um to identify a
- 00:10:07specific individual so if that was the
- 00:10:09purpose of doing it then I think there
- 00:10:11is an argument that it's not excluded
- 00:10:12under this
- 00:10:14B3 um but we're not trying to prohibit
- 00:10:17the photograph itself it's just meant to
- 00:10:20be
- 00:10:21if people are essentially setting up a
- 00:10:23database of identification on those
- 00:10:26purposes I think that's what we're
- 00:10:27excluding but we're not otherwise
- 00:10:29excluding including the
- 00:10:30photograph I don't know if that's a
- 00:10:33satisfactory
- 00:10:34answer wouldn't tattoo be the same thing
- 00:10:37as like um normally identifiable things
- 00:10:40like hair color eye color right it is a
- 00:10:43kind of physical characteristic that is
- 00:10:45reasonably linkable to an individual so
- 00:10:46that's it's captured in the concept I'm
- 00:10:48just trying to like this right here it's
- 00:10:51it is a unique characteristic that can
- 00:10:54be linked to them very obviously I'm
- 00:10:55just trying to draw out how that would
- 00:10:57be different than a fingerprint a
- 00:11:00fingerprint you take an active Step
- 00:11:02Beyond taking a picture of someone right
- 00:11:04and we're saying the picture is excluded
- 00:11:06the fingerprint it's obvious that we
- 00:11:08take a step to do that I'm trying to
- 00:11:09think about what the extra Step Beyond
- 00:11:11photograph is for tattoos because it's
- 00:11:14so obvious that from a t from a picture
- 00:11:16we can just identify a particular person
- 00:11:19um so I think it goes to something like
- 00:11:22are we
- 00:11:23generating similar to face mapping
- 00:11:25geometry or templates uh are we
- 00:11:28generating data for the specific
- 00:11:30purposes of identification I think this
- 00:11:32is what this concept does pick up if
- 00:11:35you're generating for the specific
- 00:11:37purposes of identification but doesn't
- 00:11:39otherwise limit just the photograph
- 00:11:42person who happens to have tattoos
- 00:11:44that's a non-exhaustive list right this
- 00:11:46is just it is it is non exhaustive but I
- 00:11:48think it is important to say B does
- 00:11:50definitively exclude from the concept
- 00:11:52digital or physical photographs and
- 00:11:54audio or video reporing so we're not
- 00:11:55saying it might fit under the
- 00:11:58non-exhaust of list it is excluded under
- 00:12:01B definitively and we're just talking
- 00:12:03about picking up that extra step taken
- 00:12:06to identify a specific
- 00:12:09individual um I don't know where this
- 00:12:11was now I lost my place but we took out
- 00:12:14mental and um psychological injuries
- 00:12:18you're talking about heighten risk of
- 00:12:20harm to a minor sorry you're
- 00:12:26good yes from B and I'd just like to
- 00:12:31flag for future reference that we're
- 00:12:34doing a whole lot in um Health Care to
- 00:12:37have parity between mental health and
- 00:12:40physical health and from my
- 00:12:43perspective that takes away some of the
- 00:12:47mental
- 00:12:48injury and the significance of that so
- 00:12:52no I I totally took the point um and and
- 00:12:55if we're working so hard in one area
- 00:12:59it's unfortunate that we can't also have
- 00:13:03parody in this and I'd like that to be
- 00:13:05flagged them on the record and uh to to
- 00:13:09your point um what we're talking about
- 00:13:11when we talk about hiding risk of har to
- 00:13:12a minor is that controllers offering
- 00:13:15online product Services um to known
- 00:13:18miners or reason that they should know
- 00:13:20essentially um are minor so when they're
- 00:13:22reaching out to those miners we're
- 00:13:24talking about them needing to take steps
- 00:13:25to taking reasonable care to avoid this
- 00:13:28kind of harm
- 00:13:30um and it's very clear that emotional
- 00:13:33kinds of harm are major pieces of what
- 00:13:36goes on with kids if not the major thing
- 00:13:39that happens for kids so I think that's
- 00:13:42completely fair I hope that the
- 00:13:43reputational injury Point um can take up
- 00:13:47some of those same pieces but within a
- 00:13:48more cabined area but that's completely
- 00:13:52Fair
- 00:13:54mental that's one of the most dramatic
- 00:13:56impacts that you can have from these
- 00:13:57pieces I'm guessing kids probably are
- 00:14:00more concerned about that than the
- 00:14:01financial impacts of them so so I don't
- 00:14:04I don't know what else to do besides
- 00:14:07shout it out yep I I think this is for
- 00:14:10alignment purposes um I understand I I
- 00:14:15just want people to know how I feel
- 00:14:17about that and one more thing at the
- 00:14:21very very beginning and I'm just going
- 00:14:23backwards because I thought we were
- 00:14:24waiting to the end but I don't um we
- 00:14:27initially had just
- 00:14:30residents right that it covered residen
- 00:14:33MH and um could we also include
- 00:14:37temporary resident it was just another
- 00:14:40thing I'd like to just bring up so we
- 00:14:42had I think months ago we went through
- 00:14:44the process of considering this and
- 00:14:46there was concerned
- 00:14:47about
- 00:14:50essentially businesses then needing to
- 00:14:52check as people the compliance piece of
- 00:14:55it seemed unclear how people would be
- 00:14:57aware when someone's going in in and out
- 00:14:59and the regular kind of check-ins that
- 00:15:01would be required and additionally some
- 00:15:03concern about well I don't really think
- 00:15:05you have extr territorial application
- 00:15:07there which could raise constitutional
- 00:15:08concerns because they're in the state
- 00:15:10we're talking about conduct that affects
- 00:15:12them here I think that the committee had
- 00:15:14reasonably decided to back away from
- 00:15:16that out of fears about practical
- 00:15:18implementation and those kind of well if
- 00:15:21you started accidentally having extra
- 00:15:22territorial application raising those
- 00:15:25constitutional implications so I think
- 00:15:27it was a nice decision on the commit
- 00:15:29like a conservative decision on the
- 00:15:31committee's part not to embark on that
- 00:15:34and no other state is doing it but it is
- 00:15:36definitely a cool idea yeah just fly
- 00:15:39again it okay thank
- 00:15:46you um we can jump so we were talking
- 00:15:49about publicly available information I
- 00:15:50think that we got through this piece
- 00:15:51about excluding biometric data um again
- 00:15:54that's making sure that biometric data
- 00:15:56uh that's collected without a consumer's
- 00:15:58consent without their knowledge um sorry
- 00:16:00not without consent without their
- 00:16:01knowledge um is picked up by the
- 00:16:04protections of the ACT that's the idea
- 00:16:06behind
- 00:16:07this the change that you see here to
- 00:16:09sale of personal
- 00:16:11data is one concession
- 00:16:13to what Senate Economic Development
- 00:16:17proposed uh you guys previously had
- 00:16:19language here that's much more extensive
- 00:16:21as to what exchange is and it
- 00:16:23specifically called out oral
- 00:16:25communication as one of the means by
- 00:16:27which personal data could be trans
- 00:16:29transferred so this is a concession to
- 00:16:31Senate Economic Development I will say I
- 00:16:34think that substantively this is the
- 00:16:37same thing um but I know that this has
- 00:16:39been a back and forth between I know
- 00:16:42that when Senate Economic Development
- 00:16:43looked at this piece they were concerned
- 00:16:45about it and they did not like that oral
- 00:16:47communication was called out and I said
- 00:16:50exchange encompasses oral communication
- 00:16:53so you may think that you are not
- 00:16:55getting that picked up but you should
- 00:16:59um at least I think it is a reasonable
- 00:17:01read to say that that would be picked up
- 00:17:03under exchange um so this is a
- 00:17:06concession and I guess what you could
- 00:17:07say you're losing in doing this is that
- 00:17:10you don't definitively state that that
- 00:17:12is the case um but it is conceptually
- 00:17:15possible under this it will be up to
- 00:17:16courts as to how they read this so maybe
- 00:17:19I overstated that it definitively should
- 00:17:21be I think it is a defensible reading of
- 00:17:24what exchange is um but this is a
- 00:17:26concession to Senate Economic
- 00:17:28Development apprach to this um but we
- 00:17:30otherwise do maintain a piece that
- 00:17:32Senate Economic Development cut which is
- 00:17:35this commercial purposes piece uh which
- 00:17:38I think we've talked about this before
- 00:17:39this was related to approaches taken in
- 00:17:42California about concerns that folks
- 00:17:45were exchanging consumers personal data
- 00:17:47to third parties for nonmonetary
- 00:17:51consideration
- 00:17:53um things like what you see here such as
- 00:17:56inducing another person to rent
- 00:17:57subscribe to
- 00:17:59certain things exchange products or
- 00:18:01enabling certain commercial transactions
- 00:18:03I still take the position that I took
- 00:18:06last time I talked about this which is I
- 00:18:08think that these pieces should be picked
- 00:18:10up under other valuable
- 00:18:12consideration um but given that other
- 00:18:15states felt necessary to call this out I
- 00:18:18take it that there is a real problem
- 00:18:19with this piece and that's why we've
- 00:18:21included that here that is not disrupted
- 00:18:23this was dropped Inc economic
- 00:18:24development but it is maintained here in
- 00:18:26you guys' tra so I would say the
- 00:18:29definition that you now have for sale of
- 00:18:30personal data reflects one concession to
- 00:18:32Senate economic development but not a
- 00:18:34full concession on this piece it's very
- 00:18:37anthropological reading
- 00:18:42J me would be
- 00:18:45proud I don't see why it would yeah but
- 00:18:49I you know as I've said many times I
- 00:18:51just live in a world of words and not
- 00:18:54out there in reality I guess
- 00:18:58fine
- 00:18:59reality very much how I
- 00:19:01feel particularly when this is how I'm
- 00:19:04spending my
- 00:19:08time reality
- 00:19:12uh
- 00:19:15uh yes sensitive data one tweak here um
- 00:19:19this is the approach so we're talking
- 00:19:21about opin consent for processing of
- 00:19:23sensitive data this is the deemed list
- 00:19:25of categories um Financial information
- 00:19:29and we've added here this is what Senate
- 00:19:30Economic Development did including a
- 00:19:32consumer's tax return so this would be
- 00:19:34deemed financial information
- 00:19:38um so you can say concession but I'm
- 00:19:40assuming this is consistent with you
- 00:19:42with what you guys would want to do here
- 00:19:43as
- 00:19:46well uh another change here and this is
- 00:19:50pretty substantive uh this previously
- 00:19:53was personal data collected from a known
- 00:19:55child so under 13 sensitive data this is
- 00:19:58now personal data collected from a known
- 00:19:59minor this is the approach that Maryland
- 00:20:02just took in their most most recently
- 00:20:04passed bill um to
- 00:20:07protect all data of minor um so
- 00:20:09requiring opt-in consent for processing
- 00:20:11of these pieces I should say that of all
- 00:20:14the states that we've seen pass uh
- 00:20:16Maryland is the one I think has kind of
- 00:20:19generated the most controversy so there
- 00:20:21are many things we did not pick up from
- 00:20:23Maryland's approaches and I can talk
- 00:20:25about those when we get here but those
- 00:20:26that we thought were nice additions from
- 00:20:29a consumer protective angle we've tried
- 00:20:31to add here um and I think that this is
- 00:20:33a nice one the piece that we needed to
- 00:20:35ensure we did not disrupt in doing this
- 00:20:37is uh one of the big constitutional
- 00:20:40concerns is ensuring that you don't
- 00:20:41require parental consent for teenagers
- 00:20:44to do particular pieces and so if what
- 00:20:46you had was a mechanism that requires
- 00:20:49consent um for minors by parents that
- 00:20:51would be problematic but what we have is
- 00:20:53parental consent required for children
- 00:20:56but not for minors who are not children
- 00:20:59so that's kids 13 to 17 through 17 so in
- 00:21:04this case they can provide their own
- 00:21:05consent they don't have to have parental
- 00:21:06consent if they did require parental
- 00:21:09consent that would really complicate
- 00:21:10doing this piece but I think that we're
- 00:21:12in a safe place to do
- 00:21:17this John we we dropped Jay from
- 00:21:21sensitive yes sorry thank you um we
- 00:21:24previously had uh a call out here for
- 00:21:29uh sensitive data that essentially
- 00:21:31photographs depictions of people naked
- 00:21:35or undergarment cloud is I think the
- 00:21:38language that we had which was based on
- 00:21:39federal language because we've added
- 00:21:41some new data minimization language
- 00:21:43which will I guess it's beyond data
- 00:21:45minimization language because we've
- 00:21:46added new principles at controller
- 00:21:48obligations related to the sell of
- 00:21:50sensitive data we have dropped this
- 00:21:52piece otherwise you would be prohibiting
- 00:21:55all kinds of potential you might Free
- 00:21:58Speech concerns in including this
- 00:22:00particular piece so we've dropped that
- 00:22:02and I think this is a more defensible
- 00:22:03place to be um and it's tied to the
- 00:22:06changes that you're going to see at the
- 00:22:07controller
- 00:22:09obligations before you go on can I go
- 00:22:11back to that minor thing I couldn't find
- 00:22:13my U mute button fast enough before you
- 00:22:16jump to J sorry um in kids code I know
- 00:22:21this is what you were just talking about
- 00:22:22I think but I just want to
- 00:22:25confirm who consents or to what in the
- 00:22:30in the
- 00:22:32um in the data collection piece is that
- 00:22:36what we were talking about aligning with
- 00:22:37the two
- 00:22:39bills so I I don't honestly know the
- 00:22:42latest on kids code but what's required
- 00:22:44under this is that um opin consent is
- 00:22:48required for known miners um so anyone
- 00:22:52under 18 but it is important the known
- 00:22:54qualifier this is not saying that people
- 00:22:56need to start taking a ative steps to
- 00:22:59determine whether or not someone is a
- 00:23:00minor that's that would be impermissible
- 00:23:04um what's what's happening is if the
- 00:23:07business already knows um that the
- 00:23:09person is a minor they will need to have
- 00:23:11consent for that um
- 00:23:15collection or any kind of processing of
- 00:23:17this instu data which includes
- 00:23:19collection yeah and and I I I guess I
- 00:23:23took away you were saying like 13 14 15
- 00:23:27year olds can opt in on their own that's
- 00:23:31apparent is not required to do you know
- 00:23:3416 17 18 like that makes perfect sense
- 00:23:36to me it's that 13 14 15 that I okay
- 00:23:40okay just wanted to be fully
- 00:23:42understanding this one thank you yep yep
- 00:23:44it's from 13 through yeah 13 and older
- 00:23:47is someone who will provide their own
- 00:23:49consent under the ACT
- 00:24:00I think we did so we did make changes to
- 00:24:02targeted advertising um we previously
- 00:24:04had a more restrictive piece related to
- 00:24:09um a concept of targeted advertising to
- 00:24:11miners that
- 00:24:14um basically prohibited or required
- 00:24:17consent for even first party uh targeted
- 00:24:20advertising we have dropped that this is
- 00:24:22a concession we still do have a more
- 00:24:25fome more robust concept of what
- 00:24:27targeted advertising is here than what's
- 00:24:30in say Connecticut um so what we have
- 00:24:33here is um and I can talk about this
- 00:24:35again targeting of an advertisement to a
- 00:24:37consumer based on consumer's activity
- 00:24:39with one of our businesses distinctly
- 00:24:40branded websites Etc other than that
- 00:24:44controller distinctly branded website um
- 00:24:46with which the consumer is intentionally
- 00:24:48interacting so what this permits is
- 00:24:49essentially first-party
- 00:24:51advertising um but it does not it also
- 00:24:55prohib it I say prohibits it requires
- 00:24:57opt down this is a kind of advertising
- 00:25:00that requires sorry opt out for any
- 00:25:03consumer under the ACT opt in for minor
- 00:25:06so there's a difference between the two
- 00:25:07sets of categories for this kind of
- 00:25:10advertising what is stronger here than
- 00:25:13in say Connecticut is we have this
- 00:25:15reference to distinctly branded websites
- 00:25:18and what this means is a company
- 00:25:21theoretically under Connecticut's could
- 00:25:24own a host of different websites right
- 00:25:27but their brand bred differently I think
- 00:25:30that theoretically under Connecticut's
- 00:25:32um Advertising based on any of the
- 00:25:35activity across their different
- 00:25:36Affiliated websites regardless of The
- 00:25:38Branding um would not constitute
- 00:25:40targeted advertising because we have
- 00:25:42this specific language about distinctly
- 00:25:44branded website if a group owned a bunch
- 00:25:47of websites but they were distinctly
- 00:25:49branded uh if you started
- 00:25:52using the activity of the consumer
- 00:25:54across those different branded websites
- 00:25:56they're still owned by the same group
- 00:25:57but they're different ly branded um that
- 00:26:00could not be used to generate targeted
- 00:26:01advertising so basically this is meant
- 00:26:03to get at businesses you can Target
- 00:26:06Advertising based on what a consumer
- 00:26:08would readily understand to be a
- 00:26:10first-party interaction they go to a
- 00:26:12website they see that your name is on it
- 00:26:14they go to another website maybe it's
- 00:26:16slightly different but they still see
- 00:26:17that you know your logo is there so they
- 00:26:19know who they're dealing with that's the
- 00:26:21idea behind this concept is it preserves
- 00:26:24um businesses ability to Target
- 00:26:26advertising on the basis of consumer
- 00:26:28visiting them but otherwise is not meant
- 00:26:30to facilitate just broad uh reach
- 00:26:33targeted
- 00:26:37advertising and this is I I should say
- 00:26:39so this is a just to reorient this is a
- 00:26:43concession in part but maintaining some
- 00:26:46of the stronger Provisions that you guys
- 00:26:48had when you passed this out relative to
- 00:26:50other states um and when we get to the
- 00:26:52data minimization principle I will make
- 00:26:54clear how the changes there mean that
- 00:26:58there is no disruption to targeted
- 00:27:00advertising uh RIT
- 00:27:04large okay we are on the applicability
- 00:27:07section page
- 00:27:0915
- 00:27:11uh what you guys had when you passed out
- 00:27:14uh this bill you had control or process
- 00:27:18the personal data of not fewer than
- 00:27:196,000
- 00:27:21uh 500 yeah
- 00:27:246,000 and uh half of that for your
- 00:27:28second uh piece related to gross revenue
- 00:27:31what we've done is to start with
- 00:27:34expanded uh or raise the numerical
- 00:27:37threshold so fewer businesses are
- 00:27:38subject to the ACT it's going to be a
- 00:27:40step down over a number of years and
- 00:27:42we'll come to those at the very end but
- 00:27:43the idea is that when this first goes
- 00:27:45into effect higher thresholds a year out
- 00:27:48lower thresholds and then a year out
- 00:27:49from that the lowest thresholds kind of
- 00:27:52getting closer to where you guys first
- 00:27:54had passed the bill um and a change from
- 00:27:5720% to 20 5% of gross
- 00:27:59revenue and I should call out when
- 00:28:01Senate Economic Development made these
- 00:28:03changes they did land on this 25,000
- 00:28:05figure so this is again a concession to
- 00:28:08them but they had a different structure
- 00:28:10here to just say any business regardless
- 00:28:12of excuse me numerical threshold um that
- 00:28:15derives more than 50% of gross revenue
- 00:28:17which may be a small bucket of
- 00:28:20businesses that actually made that does
- 00:28:23this impact data Brokers at
- 00:28:25all so um
- 00:28:30yes I mean it affects them in the same
- 00:28:32way that it affects anyone um if you had
- 00:28:36a I I think the key piece will
- 00:28:38be the gross revenue threshold but it
- 00:28:41just depends on how many consumers data
- 00:28:45Brokers are processing the data of those
- 00:28:48consumers without an empirical picture
- 00:28:50of how big those are um it's the same
- 00:28:54question that would apply to anyone else
- 00:28:56right it's do they meet these thresholds
- 00:28:58and so the the easiest answer is just to
- 00:29:00say in year one fewer folks are going to
- 00:29:02be subject to this whether that means
- 00:29:04fewer data Brokers are subject to this
- 00:29:06I'm not sure it could that was my
- 00:29:09question I should have asked it
- 00:29:10differently does it ease restrictions on
- 00:29:12data Brokers e easier than what we have
- 00:29:15right now on them that's my question but
- 00:29:17we probably don't have that information
- 00:29:19yeah so it doesn't ease the restrictions
- 00:29:21it's just whether or not they're subject
- 00:29:24and without knowing the picture
- 00:29:26of how many they process now I'm
- 00:29:28guessing someone who's a data broker
- 00:29:29probably processes a lot of consumers so
- 00:29:32they may in every instance be subject to
- 00:29:34this um but it is theoretically the case
- 00:29:37that fewer data Brokers will be subject
- 00:29:39to this in year one and I think that
- 00:29:40that is the compromise that you guys are
- 00:29:42striking is a a phase in approach in
- 00:29:45recognition of the claims folks have
- 00:29:48raised and the approach that the Senate
- 00:29:50has taken to how are we rolling this out
- 00:29:52I think this is a concession in
- 00:29:56part thank you
- 00:30:01uh exemptions I think that we only have
- 00:30:03one addition here and this is a
- 00:30:07essentially a slight modification to an
- 00:30:09exemption that was accepted in Senate
- 00:30:11economic development in the Senate there
- 00:30:14had been a entity level exemption for
- 00:30:16what is the equivalent of this new
- 00:30:18exemption this is an exemption for
- 00:30:20information so it's data level that is
- 00:30:23processed for purposes of compliance
- 00:30:25enrollment or degree degree verification
- 00:30:27or research Services by and this is
- 00:30:29important it's a nonprofit organization
- 00:30:31that is established to provide
- 00:30:33enrollment data reporting services on
- 00:30:34behalf of postsecondary schools um so
- 00:30:38there are two pieces that make this
- 00:30:41exemption restrictive one is the kind of
- 00:30:44nonprofit to which this is available
- 00:30:46it's only for those that are established
- 00:30:47for this particular purpose so I don't
- 00:30:49imagine this is picking up a lot of
- 00:30:50nonprofits these are folks who are
- 00:30:52established to provide enrollment data
- 00:30:53reporting to postsecondary schools they
- 00:30:56may do other things as well but Ong
- 00:30:58their purposes they're established to
- 00:30:59provide that enrollment data reporting
- 00:31:01services and it's only data level it's
- 00:31:04for information that is processed for
- 00:31:06specific purposes as well so those are
- 00:31:07the two restrictions kind of nonprofit
- 00:31:09and what the information is processed
- 00:31:11for admittedly Research Services is a
- 00:31:15broad category so I I will flag that but
- 00:31:18I think given that you have the two
- 00:31:20pieces together for particular purposes
- 00:31:23and only a narrow set of nonprofits the
- 00:31:27hope is that this is restrictive enough
- 00:31:28to permit those folks who are providing
- 00:31:31degree verification to jobs and schools
- 00:31:34to continue to operate without needing
- 00:31:36to worry about um this piece um and this
- 00:31:39was a concession
- 00:31:46uh we jump down to Consumer personal
- 00:31:50data rights um this is really cleanup
- 00:31:52changes that you see here in two this is
- 00:31:54the same content as what was here before
- 00:31:56but I think it's worded a bit more clear
- 00:31:58I'm happy to talk about this if you want
- 00:31:59to but it's the same as what's before so
- 00:32:01I don't know that we need to go into
- 00:32:02this it's just easier to read
- 00:32:05now uh there is a substantive change to
- 00:32:09this subdivision 4 on line six but I
- 00:32:10think this is consistent with everyone's
- 00:32:12expectation this is making clear uh and
- 00:32:14this should be comforting to Industry
- 00:32:16that if they have a requirement under
- 00:32:18law to retain personal data um they are
- 00:32:21not required to delete the personal data
- 00:32:22at consumer
- 00:32:24request but I think that was probably
- 00:32:26already in the ACT elsewhere this just
- 00:32:29makes it clear in the consumer data
- 00:32:31rights that that's the case uh
- 00:32:33subdivision 5 again this is just
- 00:32:35reordering this is not a substantive
- 00:32:37change this is just making it a bit
- 00:32:38easier to read this particular
- 00:32:42section the real biggest substantive
- 00:32:44changes come in the next section so this
- 00:32:47is the heart of the updates that have
- 00:32:48been made
- 00:32:50here uh I this is not a substantive
- 00:32:54change this is just making it easier to
- 00:32:55read the
- 00:32:56section d duties of controllers this is
- 00:32:58where the real meat of the changes are
- 00:33:02um the first
- 00:33:03piece when you guys sent
- 00:33:06out the section 2419 you had data
- 00:33:09minimization principles here that said
- 00:33:11something like shall process only as
- 00:33:14reasonbly necessary and proportionate to
- 00:33:15provide products or
- 00:33:17services or for another disclosed
- 00:33:19purpose that is compatible with those
- 00:33:21disclosed purposes or if they obtain
- 00:33:23consent they could do it for another
- 00:33:25purpose the point that folks raised
- 00:33:28fairly uh when this reached the Senate
- 00:33:31was that because the processing is tied
- 00:33:34to that restriction on what is reasonbly
- 00:33:37necessary and proportionate is tied to
- 00:33:40the product or service offered because
- 00:33:42someone's going to a website not to
- 00:33:43receive targeted advertising that
- 00:33:46technically uh businesses would could
- 00:33:49require opin to to engage in targeted
- 00:33:52advertising I don't think that that was
- 00:33:54you guys' intention so this was
- 00:33:55something that was uh resolved on the
- 00:33:58Senate side in a different manner than
- 00:33:59you see here I don't necessarily have to
- 00:34:01go into it but they changed away from
- 00:34:03products or services to go toward what
- 00:34:06is reasonbly necessary reasonbly
- 00:34:07necessary and proportionate to um
- 00:34:10disclosed purposes now what I would say
- 00:34:12about that is they did solve the concern
- 00:34:14about requiring opin for targeted
- 00:34:16advertising but what that regime
- 00:34:19produces is basically as long as a
- 00:34:21business discloses their set of purposes
- 00:34:23to
- 00:34:24you they can do what they want for those
- 00:34:27purposes now it's meant to be what's
- 00:34:28reasonbly necessary and proportionate to
- 00:34:30those purposes
- 00:34:32um but I don't know how strong of a
- 00:34:35restriction that is um to me that
- 00:34:37language about what is reasonbly
- 00:34:39necessary and proportionate and I can
- 00:34:40talk about this language now what is
- 00:34:42reasonbly necessary and proportionate
- 00:34:43makes more sense when we talk about
- 00:34:44limiting
- 00:34:45collection um it's easier to say what is
- 00:34:48recently necessary to collect the data
- 00:34:50to provide a particular service than to
- 00:34:51say what is really been necessary to
- 00:34:53process for a particular purpose so what
- 00:34:55we have here is a slightly different
- 00:34:58data minimization principle but I think
- 00:35:00this is the most intuitive one that I
- 00:35:03have seen uh yet and this is in part
- 00:35:06pulled from Maryland but we do not
- 00:35:08accept all of their changes um because
- 00:35:11they do have some uh Stronger
- 00:35:14prohibitions that we did not want to
- 00:35:15adopt here so what does this say this
- 00:35:17says a controller shall limit the
- 00:35:18collection of personal data to what is
- 00:35:20reasonably necessary and proportionate
- 00:35:21to provide or maintain a specific
- 00:35:23product or service requested by the
- 00:35:25consumer to the data pertains so this is
- 00:35:28saying uh a consumer goes to a business
- 00:35:30they go to their website they purchase
- 00:35:32something something they offer up their
- 00:35:34data to that business now what the
- 00:35:37business has to do is limit the
- 00:35:39collection of that data only to what's
- 00:35:40required what is reasonably necessary
- 00:35:42and it allows them to make that
- 00:35:43determination it's not a strictly
- 00:35:45necessary bar it's what's reasonably
- 00:35:47necessary to provide that product or
- 00:35:49service so that's the consumer making an
- 00:35:52exchange with the business saying I'm
- 00:35:53handing over information and I receive
- 00:35:55what I want in return and now the cap
- 00:35:58the restriction on the business is not
- 00:36:00what was in the previous draft that it
- 00:36:02the Restriction is on the
- 00:36:04processing what's reasonbly necessary
- 00:36:06and proportionate to those purposes now
- 00:36:08that they have that limited data they
- 00:36:10can do not as they please but they can
- 00:36:12process that data for the purposes that
- 00:36:14they disclose and we'll come to the
- 00:36:16restriction on that piece but I think
- 00:36:18that this is a more intuitive concept of
- 00:36:20data minimization consumer engages in
- 00:36:23consensual exchange of information for a
- 00:36:25particular product or service and the
- 00:36:26business now that they receed that data
- 00:36:28can use the data for the purposes that
- 00:36:30they have
- 00:36:32disclosed
- 00:36:34um the I can pause so that's
- 00:36:38like I can use this example in the past
- 00:36:40like the Walgreens your you free to give
- 00:36:44them your shop there they have your
- 00:36:47information they know what you like so
- 00:36:49you get cou funds an online coupon
- 00:36:52that's might be yep
- 00:36:55yep um
- 00:36:58yeah and I will talk more about this
- 00:37:00when we get to the Shell Nots which
- 00:37:01we'll get to shortly because there's a
- 00:37:03there's an interaction with that piece
- 00:37:05but I think that this is fairly clear
- 00:37:08language as to what businesses are
- 00:37:09restricted and doing here um and is
- 00:37:13avoids the targeted advertising problem
- 00:37:15this does not produce you know they can
- 00:37:17collect data and then they can engage in
- 00:37:19targeted advertising on that basis they
- 00:37:21may collect less data than they were
- 00:37:22going to collect before because now they
- 00:37:24have to limit that to what is necessary
- 00:37:26to provide the product or service but
- 00:37:27they can continue to engage in targeted
- 00:37:29advertising and given that they're going
- 00:37:31to engage in targeted advertising on the
- 00:37:33basis of what you went there to purchase
- 00:37:35or receive the information that they
- 00:37:37receive from that exchange is going to
- 00:37:39be what they need to engage in targeted
- 00:37:41advertising so I think this is a fair
- 00:37:44compromise from my
- 00:37:46perspective um the changes you see here
- 00:37:49at 3 and four this is again kind of a
- 00:37:50tidiness change this used to be one big
- 00:37:54subdivision broken it out to make it a
- 00:37:55little bit clearer how the revocation of
- 00:37:58consent is a separate
- 00:38:00piece so what shall a controller not do
- 00:38:03um this is the other data minimization
- 00:38:05principle tied to this they shall not
- 00:38:06process personal data for a purpose not
- 00:38:08disclosed in the Privacy notice unless
- 00:38:11the controller obtains the consumer's
- 00:38:12consent or the purpose is reasonbly
- 00:38:14necessary to and compatible with the
- 00:38:15disclosed purpose so this means the
- 00:38:18business can engage in the processing of
- 00:38:20any disclosed purpose um that's in that
- 00:38:23privacy notice if they want to go beyond
- 00:38:26that they need to obtain consent unless
- 00:38:28essentially the purpose they want to go
- 00:38:30to that's not disclosed is sort of
- 00:38:32already implied it's reasonably
- 00:38:34necessary to and compatible with a
- 00:38:35disclosed purpose so what businesses
- 00:38:38will do they're going to provide the
- 00:38:39Privacy notice they can process with the
- 00:38:42limited data that they collect for the
- 00:38:44purposes that are set out in that
- 00:38:45privacy notice and then if they want to
- 00:38:47go beyond that they'll obtain consent
- 00:38:49for another piece and that is just a way
- 00:38:51of maintaining the notice provisions of
- 00:38:53the ACT a consumer just needs to be on
- 00:38:55notice what their data is being protect
- 00:38:57uh processed for but otherwise it's sort
- 00:38:59of business as usual and the constraints
- 00:39:02are on selection and then specific
- 00:39:05restraints on what can be done with
- 00:39:06sensitive data so I would say the broad
- 00:39:08effect of this is that for personal data
- 00:39:11writ large what the ACT does is create a
- 00:39:14notice regime for consumers and then for
- 00:39:17sensitive data special kinds of
- 00:39:19restrictions apply that's kind of the
- 00:39:20idea here is that businesses can operate
- 00:39:23with set of personal data without
- 00:39:25needing to make large modifications what
- 00:39:27they do but they do have to take
- 00:39:29different steps for sensitive
- 00:39:33data okay so maintain from the previous
- 00:39:36draft controllers shall not process sens
- 00:39:38of data without first obtaining consent
- 00:39:40um or if cons is a child uh processing
- 00:39:43in accordance with
- 00:39:45CA here is a this is probably the
- 00:39:48biggest update of this change um and
- 00:39:52this is you know beyond just cleanup
- 00:39:55changes or compromise struct with the
- 00:39:57Senate this is a real step out this is
- 00:40:00something that Maryland does this is a
- 00:40:02Prohibition on selling sensitive data
- 00:40:04full stop this is uh for processing
- 00:40:06sensitive data in so all kinds of
- 00:40:09processing of sensitive data require
- 00:40:11consent um but for sensitive data we're
- 00:40:13selling saying if you sell it that's
- 00:40:16just prohibited under this act so that's
- 00:40:18part of why we dropped one of the
- 00:40:20categories that we had under sensitive
- 00:40:21data um and tightened up the other
- 00:40:24pieces but this is a big step so I just
- 00:40:27want to pause here and say that this is
- 00:40:28the
- 00:40:29biggest change I think in this draft um
- 00:40:33and if you guys want to talk about it
- 00:40:35you know go for it but just wanted to
- 00:40:37recognize that and not speed through
- 00:40:40this Stephanie is it okay I keep jumping
- 00:40:43in sorry go ahead go ahead Ed I was just
- 00:40:46gonna say I like this a lot and I
- 00:40:48appreciate the
- 00:40:49um the understanding of what we were
- 00:40:52asking for and figuring out how to get
- 00:40:54it onto language
- 00:40:58Y and there's a way of seeing this as
- 00:41:00you know selling is a kind of processing
- 00:41:03so basically what you're saying is two
- 00:41:04tells you that consent is required but
- 00:41:07for this one Cate for this one kind of
- 00:41:10processing uh we go a step further and
- 00:41:12just say even in this case consent is
- 00:41:14insufficient and I think it makes sense
- 00:41:16intuitively if we think about it that we
- 00:41:18don't want our biometric data our um tax
- 00:41:22returns or our account numbers with
- 00:41:24their passwords sold to people it's an
- 00:41:26in concept that I think is not hard to
- 00:41:29understand um but I do just want to flag
- 00:41:31that this is a new kind of uh
- 00:41:34prohibition that again Maryland is doing
- 00:41:36this um but it is to be seen how this
- 00:41:39will I don't think it's confusing how it
- 00:41:41works but it will be seen how folks
- 00:41:42react to
- 00:41:45this um the piece that you see here in
- 00:41:48four is
- 00:41:49substantively the same as what's in the
- 00:41:52draft that you guys passed out um
- 00:41:55Marilyn goes further than this and had a
- 00:41:56full prohibition on processing uh miners
- 00:42:00data for these purposes I think you
- 00:42:02could have real first amendment concerns
- 00:42:05for the targeted advertising piece um
- 00:42:08and the point about selling the
- 00:42:10consumer's personal data this is in a
- 00:42:12way
- 00:42:16already actually this is a good point
- 00:42:21um we could conceivably drop C here uh
- 00:42:25because it should already be picked up
- 00:42:26by three what four is saying is without
- 00:42:29cons you have to get consent to process
- 00:42:31personal data of a known minor for the
- 00:42:33purposes of Target advertising profiling
- 00:42:35or selling that consumer's personal data
- 00:42:37but we already have a Prohibition on
- 00:42:39selling sensitive data which includes
- 00:42:42the data of minors so I think we
- 00:42:45actually should do that drop 4 C does
- 00:42:47that make sense to you guys just
- 00:42:49to yeah
- 00:42:52uh we aren't trying to permit selling of
- 00:42:55minor data with consent and I think that
- 00:42:58you could read this to say
- 00:43:03that the the the one difference I would
- 00:43:06say here is there is a slight difference
- 00:43:09in sensitive data we
- 00:43:11say selling
- 00:43:13the uh we
- 00:43:15say data of a known minor and in this
- 00:43:19case we say the controller knows or
- 00:43:22consciously avoids knowing is a minor so
- 00:43:24there could technically be a broader
- 00:43:26category captured here right
- 00:43:31um so we could say in this this is
- 00:43:35interesting
- 00:43:39uh maybe that's a fair compromise to
- 00:43:43take but does does that difference make
- 00:43:44sense that if we dropped C it would mean
- 00:43:49that uh folks could sell the data of
- 00:43:53minors if they did not definitively know
- 00:43:56that that consumer was a
- 00:43:58minor under what we have here in four
- 00:44:01we're saying they have to obtain consent
- 00:44:03to sell minor if
- 00:44:05they consciously avoid knowing which is
- 00:44:08slightly different than if they do
- 00:44:10definitively
- 00:44:12know um but that you know given that
- 00:44:16you're outright prohibiting the sell the
- 00:44:18selling
- 00:44:20of known minors maybe that's a fair
- 00:44:24compromise to strike but I will let you
- 00:44:25guys figure that out
- 00:44:29does that concern make
- 00:44:31sense the categories aren't exactly the
- 00:44:34same technically you're you have a
- 00:44:36smaller category of consumers who going
- 00:44:38to fit into that known
- 00:44:41minor prohibition selective
- 00:44:46data so is it okay Stephanie go ahead
- 00:44:51yeah so we've been talking about a full
- 00:44:54prohibition on selling
- 00:44:58data of a minor right throughout two
- 00:45:00different bills I guess we've been
- 00:45:02talking about that and I know you're not
- 00:45:04an expert on your on both of
- 00:45:07them but just for the committee and what
- 00:45:09you're saying is if we drop
- 00:45:12C A A Minor's data could be sold if the
- 00:45:17minor agreed to
- 00:45:19it no so if we drop C uh what it what it
- 00:45:24means is a business could sell the data
- 00:45:27of a minor that they did not
- 00:45:28definitively know was a minor um that
- 00:45:32that's what it means uh but they are
- 00:45:34prohibited from selling the data of a
- 00:45:36minor that they know to be a minor a
- 00:45:38consumer that they know to be a minor
- 00:45:41okay and then sorry go ahead yeah the
- 00:45:44the the ostrich defense that we've been
- 00:45:46talking about right should have known is
- 00:45:49that anywhere else I know that it's here
- 00:45:52consciously avoids knowing but because
- 00:45:55that I think that's important I think
- 00:45:58that's an important piece of this that
- 00:46:01we use a lot in Vermont and that
- 00:46:05um because we don't want to require data
- 00:46:08collection to figure out if somebody for
- 00:46:11sure is a minor we know that they
- 00:46:13collect the data enough to know who
- 00:46:16they're targeting and roughly what age
- 00:46:18they are if not exactly what age they
- 00:46:20are by their birthday and all of that we
- 00:46:22know that that's already happening in a
- 00:46:23lot of instances
- 00:46:25so I want to make sure that that
- 00:46:27consciously avoids knowing stays in
- 00:46:31there so so that piece is staying the
- 00:46:33question is whether or not to drop C and
- 00:46:36I would say if you just include c as is
- 00:46:39right now I think it would be a
- 00:46:41defensible position for a business to
- 00:46:43say I mean they might lose this but I
- 00:46:46could see the argument that they say
- 00:46:48look you prohibit selling sensitive dat
- 00:46:49in three but then in four you say that
- 00:46:51we
- 00:46:52can obtain consent essentially to sell
- 00:46:55some minor yeah yeah so they're at the
- 00:46:58very least they intention I mean you
- 00:47:01could
- 00:47:02so I think it's easier to drop C and
- 00:47:06maybe uh that will be a happier place
- 00:47:10for businesses to be given the other
- 00:47:13pieces here um because then they know
- 00:47:15that they aren't going to be on a
- 00:47:17violation for selling the data of a
- 00:47:19minor that they don't know to be a minor
- 00:47:20it's only in cases where they definiely
- 00:47:22do know them to be um the other I'm
- 00:47:25trying to think of a way if you wanted
- 00:47:26to oberved exactly this you could say
- 00:47:29something like selling the consumer
- 00:47:31personal data
- 00:47:34of of a
- 00:47:36minor that is not dependably known to be
- 00:47:40a minor but it just starts to read very
- 00:47:42oddly and produce like
- 00:47:44strange it's almost like you're
- 00:47:46incentivizing them to take steps not to
- 00:47:48know if someone is a minor um so that
- 00:47:51they can then continue to sell the data
- 00:47:54so I don't think we want to have that
- 00:47:56intent
- 00:47:58umone agree to take yeah yeah I think
- 00:48:01it's g toct with 289 to so okay so let's
- 00:48:04just cleaner to pull it it's definitely
- 00:48:06easier to drop it we don't want to
- 00:48:09conflict with
- 00:48:16289 um do you have a comment what did
- 00:48:19you have a comment kind but not
- 00:48:22yet I'm thinking
- 00:48:25okay uh the
- 00:48:27what you see here in six we had this in
- 00:48:29an earlier draft and then deleted this
- 00:48:32on the basis that what we currently have
- 00:48:34is seven probably captures a lot of this
- 00:48:37um but this is an easy piece to include
- 00:48:40I don't think it makes a huge Su to the
- 00:48:42dis the difference that it does make is
- 00:48:44it's saying if someone violates uh stor
- 00:48:47federal laws that prohibit unlawful
- 00:48:48discrimination uh that would be picked
- 00:48:50up as a violation of this act if they're
- 00:48:52processing personal data in violation of
- 00:48:53those pieces I don't really see this is
- 00:48:56a huge substance of addition uh this is
- 00:48:58largely captured by whatson 7 but for
- 00:49:00consistent consistency with other states
- 00:49:03maybe it's worth maintaining this call
- 00:49:05out um clean up flow through changes in
- 00:49:09seven that's that's really your biggest
- 00:49:11changes here we will get down to other
- 00:49:13pieces
- 00:49:15um we're talking here on page 33 about
- 00:49:20what a controller needs to do to provide
- 00:49:22mechanisms for consumers to exercise
- 00:49:25their rights this this is
- 00:49:28uh authentic authentication of a
- 00:49:31consumer's request and what the new
- 00:49:33language that you see here is is
- 00:49:35clarifying is that use of an IP address
- 00:49:38to estimate the consumer's location is
- 00:49:40sufficient to determine their residency
- 00:49:42and that's a piece that you would want
- 00:49:43for those authentication requests if
- 00:49:46they're in fact a Vermont resident and
- 00:49:48can exercise this act so this is a just
- 00:49:50to make clear um what businesses can do
- 00:49:53to authenticate
- 00:49:58on 34
- 00:50:00um we've updated language throughout the
- 00:50:03draft that used to say actually knows or
- 00:50:05willfully disregards to instead say
- 00:50:07knows or consciously avoids knowing
- 00:50:09that's meant to be conceptually the
- 00:50:11equivalent of that language this is
- 00:50:13language you see here that's already in
- 00:50:15Title 9 so that's one of the reasons for
- 00:50:16the changes and also um the willfully
- 00:50:20disregards uh just a plain English
- 00:50:23reading of it not a legal reading to me
- 00:50:26would seem to imply potentially a
- 00:50:28knowledge standard and therefore not
- 00:50:31be adding anything beyond actually NOS
- 00:50:34um so I think this is also a bit clearer
- 00:50:36than what actually knows or willfully
- 00:50:38disregards means um but at the very
- 00:50:40least it's conceptually the same as what
- 00:50:42other states are doing it's just using
- 00:50:43Vermont language to describe the same
- 00:50:47piece so this is your duties of
- 00:50:49controllers to miners the changes that
- 00:50:51you see here or that you won't see here
- 00:50:54because they're
- 00:50:55deletion um relate to alignment with
- 00:50:58kids
- 00:51:00code uh so the first piece here this
- 00:51:03used to say sh not process a minor
- 00:51:05personal data for any purose other than
- 00:51:07a processing purpose that is reasonably
- 00:51:08necessary for this has been upgraded to
- 00:51:10strictly necessary and the same piece
- 00:51:12you see in three processing a minor
- 00:51:15personal data for longer than is
- 00:51:16strictly necessary to provide the online
- 00:51:17service product for feature so in both
- 00:51:20cases making it more restrictive as to
- 00:51:22what is required in dealing with minor
- 00:51:23personal data for these online platforms
- 00:51:26um what is not visible here is previous
- 00:51:29subdivisions four and five this is for
- 00:51:32alignment with kids code I think that
- 00:51:33you guys are dealing with this be so
- 00:51:35they've been dropped here but previously
- 00:51:37four
- 00:51:38said um there's either geolocation or uh
- 00:51:44processing gosh
- 00:51:47um I can find it um
- 00:51:57yes uh the previous rep yes using system
- 00:52:01design features to extend use and
- 00:52:03collecting a minor precise geolocation
- 00:52:05data I understand that those are being
- 00:52:07taken up in 289 and so they don't need
- 00:52:10to be dealt with here so they've been
- 00:52:11dropped here not to
- 00:52:14duplicate otherwise this section is
- 00:52:16largely the same as before do these are
- 00:52:19processors this Remains the
- 00:52:23Same uh you're almost there same updates
- 00:52:29for actually knows or willly disregards
- 00:52:31to knows or consciously avoids knowing
- 00:52:32throughout the
- 00:52:35draft this is a cleanup change you're
- 00:52:38seeing uh on Section 2425 G identified
- 00:52:42data uh the intent was to have this take
- 00:52:46reasonable measures language in the
- 00:52:47draft as passed out we' made this update
- 00:52:49to the definition of deidentified data
- 00:52:51and then I forgot to add this here so
- 00:52:53this is just cleaning up uh to make
- 00:52:56clear there is no difference between the
- 00:52:58definition of deidentified data and
- 00:52:59what's required under this particular
- 00:53:01section this is consistent with the
- 00:53:03intent that you guys had as passed
- 00:53:07out
- 00:53:09um okay construction of duties of
- 00:53:11controllers and processors there is a
- 00:53:15couple changes here we used to have a
- 00:53:16subdivision four this is what we're
- 00:53:18saying this chapter shall not be conr to
- 00:53:20restrict entities abilities to engage in
- 00:53:23particular ordinary course or internal
- 00:53:25purposes
- 00:53:27we previously had a subdivision 4 that
- 00:53:28said shall not be construed to restrict
- 00:53:30um the ability to essentially act in
- 00:53:32accordance with a contract under
- 00:53:362421b with a state or local government
- 00:53:40entity um the reason that this is been
- 00:53:42deleted and I think this is included at
- 00:53:44lobbyist request is that language
- 00:53:47technically doesn't
- 00:53:49accomplish anything for them even uh so
- 00:53:54it's Superfluous uh technically just to
- 00:53:57explain why it is Superfluous those
- 00:53:59local government entities would be
- 00:54:01exempt from the act under our exemptions
- 00:54:03and therefore there would be no contract
- 00:54:05under
- 00:54:072421b by which a entity would need to
- 00:54:11comply um in addition because anyone
- 00:54:14acting under a contract with the local
- 00:54:16government or government entity would
- 00:54:21um not be acting as a controller even if
- 00:54:24you think of that government entity as
- 00:54:26being exempt and and they're asking
- 00:54:27themselves well the person I'm working
- 00:54:29with is exempt but I may not be because
- 00:54:32they're under a contract working with
- 00:54:33that person they're not determining the
- 00:54:34purposes of processing they're therefore
- 00:54:36not a controller um and if they're not a
- 00:54:39controller then they aren't going to be
- 00:54:41subject to the obligations of this act
- 00:54:43so I think that language is just a perlu
- 00:54:45it's not needed here the change you see
- 00:54:48at five is in relation to the changes we
- 00:54:51just talked about with um data
- 00:54:54minimization so this says sh be to
- 00:54:56restrict ability to provide a product or
- 00:54:58service specifically requested by the
- 00:54:59consumer um that's fine but we want to
- 00:55:02make clear that the data minimization
- 00:55:04principle that limits collection of data
- 00:55:06to what is reasonably necessary and
- 00:55:08proportionate to providing that product
- 00:55:09or service is maintained so this call
- 00:55:11out to consistent with subdivision 24/19
- 00:55:14A1 is meant to do that it clarifies yes
- 00:55:18of course you can provide the product or
- 00:55:19service but that doesn't mean you can
- 00:55:20just do whatever you want in terms of
- 00:55:21data collection you've got to comply
- 00:55:23with 2419 a I think even if if you
- 00:55:26didn't include that that should be clear
- 00:55:30intent um but this makes it even clearer
- 00:55:32that that is the
- 00:55:35case
- 00:55:36uh guess I'm running out of time but we
- 00:55:39are almost there we have you until
- 00:55:42night okay great um that's great so we
- 00:55:47have language here this is drawn from
- 00:55:49Colorado um I don't think you have to
- 00:55:52have this but this is nice to have this
- 00:55:54so chapter shall not be construed to
- 00:55:55require controller processor or consumer
- 00:55:57health data controller to implement an
- 00:56:00age verification or age gating system or
- 00:56:03otherwise affirmatively collect the age
- 00:56:04of consumers that first sentence this is
- 00:56:07tied to that knows or consciously avoids
- 00:56:11knowing we are not imposing a
- 00:56:13requirement that businesses investigate
- 00:56:15and determine folks's age um it's meant
- 00:56:18to preserve basically do they have do
- 00:56:20they already have knowledge or do they
- 00:56:22have a reasonable basis already on which
- 00:56:24they should know that someone's uh
- 00:56:27a minor we're not asking them to take
- 00:56:28additional steps for instance Maryland
- 00:56:31is doing knows or should know is a minor
- 00:56:34and that is potentially more dangerous
- 00:56:36because that could be taken to mean that
- 00:56:39businesses should engage in discovering
- 00:56:41whether or not someone is a minor and so
- 00:56:43you may have constitutional concerns
- 00:56:44here this language is nice you are
- 00:56:46limiting um you are protecting yourself
- 00:56:49from liability including language like
- 00:56:50this and then the second sentence goes
- 00:56:52even further a controller processor
- 00:56:54consumer health data controller that
- 00:56:55chooses to conduct commercially
- 00:56:57reasonable age estimation to determine
- 00:56:59which consumers or miners is not liable
- 00:57:01for an erroneous age estimation so if
- 00:57:03they're doing commercially reasonable
- 00:57:05efforts to determine age um they're not
- 00:57:07going to be liable on that basis so this
- 00:57:09is
- 00:57:11again trying to protect businesses
- 00:57:14ability to continue to operate as they
- 00:57:15are and then just calling out that if
- 00:57:17you do know or you have a strong basis
- 00:57:18for knowing um in those cases apply the
- 00:57:21extra
- 00:57:24protections and again we be the first to
- 00:57:26do this this is what Colorado is doing
- 00:57:28as well
- 00:57:30um although I should say I'm not sure
- 00:57:32that the Colorado language is new I'm
- 00:57:35not sure that it's actually uh passed or
- 00:57:38been signed yet but this is consistent
- 00:57:40with the approach that I think that they
- 00:57:41are taking there so changes to the
- 00:57:44enforcement section um what we have here
- 00:57:48is an enforcement section that relies on
- 00:57:51in subsection a the underlying Consumer
- 00:57:54Fraud protection statute so this
- 00:57:55provides for both AG enforcement and the
- 00:57:58underlying private right of action
- 00:57:59already existing in uh pedal 9 which is
- 00:58:03under 2461 subsection
- 00:58:06B uh and this language that you'll see
- 00:58:10is consistent with what the kid kids
- 00:58:12code language does so uh you have that
- 00:58:14piece AG has the same authority to adopt
- 00:58:16rules to implement this section as under
- 00:58:18chapter 63 which is your consumer
- 00:58:20protection um chapter we maintain the
- 00:58:24Cure period 60-day cure period you guys
- 00:58:26have seen this language before
- 00:58:29um same pieces for consideration and a
- 00:58:32requirement of reporting
- 00:58:34on uh
- 00:58:39notices I'll take a look at your email
- 00:58:41and oh yeah you know how to do this for
- 00:58:45um so this should be pretty familiar to
- 00:58:48you guys but just to call out you had an
- 00:58:50insection PR built out this you're going
- 00:58:54to see multiple enforcement sections in
- 00:58:55the Bill and we'll come to those but
- 00:58:57this first one which is what's going to
- 00:58:58be immediately in effect is just relying
- 00:59:00on the underlying existing private right
- 00:59:03of action in Title
- 00:59:059 last piece of the act confidentially
- 00:59:07of consumer health data this is just a
- 00:59:10cleanup change to subdivision 3 this
- 00:59:12previously said any Healthcare facility
- 00:59:13mental health facility or reproductive
- 00:59:15or sexual health facility because those
- 00:59:18facilities are kinds of healthcare
- 00:59:19facility this is just adding them as
- 00:59:21including any mental health facility so
- 00:59:23it's a way of preserving the call out to
- 00:59:25those particular pieces to say we are
- 00:59:27definitively saying um establishing a
- 00:59:29virtual boundary around mental health
- 00:59:31facilities or reproductive or sexual
- 00:59:32health facilities um is prohibited under
- 00:59:35this section but just cleaning up to say
- 00:59:38that is a kind of healthcare facility
- 00:59:39that's what the including any language
- 00:59:41is
- 00:59:42for for publication and public education
- 00:59:45and Outreach just one tweak to what you
- 00:59:47guys passed out which is to say on page
- 00:59:5058 that the Attorney General may have
- 00:59:52the assistance sorry there's two changes
- 00:59:55when you guys test this out you test the
- 00:59:58attorney general and accd with engaging
- 01:00:00in this effort the understanding is that
- 01:00:02accd doesn't really want to be doing
- 01:00:04this the references to accd um have been
- 01:00:07pulled out and instead it's casting the
- 01:00:10AG with that education Outreach however
- 01:00:13under the subsection e that you see here
- 01:00:15the AG may have the assistance of the
- 01:00:17Vermont law and graduate school in
- 01:00:18developing that education Outreach and
- 01:00:20Assistance programs this was on the
- 01:00:22basis that they I think want to do this
- 01:00:25but I can't so much speak to that
- 01:00:27piece and and again I think the
- 01:00:30testimony throughout has been that the
- 01:00:32AG has the capacity to engage in this
- 01:00:34effort so I don't think that the removal
- 01:00:36of ACD accd is a dramatic impact on
- 01:00:40whether or not this is achievable I
- 01:00:41think it's actually just aligning with
- 01:00:42folks's actual intent like what they
- 01:00:44want to
- 01:00:49do good
- 01:00:52um okay big changes in section three to
- 01:00:56the data broker section this is
- 01:00:59basically to accept essentially all of
- 01:01:01the changes that Economic Development
- 01:01:03made here um this is rolling
- 01:01:07back I'll go through this to show what
- 01:01:10happened
- 01:01:11um
- 01:01:14but the ultimate effect of the language
- 01:01:16that you have here
- 01:01:18is just to require additional civil
- 01:01:21penalties and fees related to
- 01:01:24registration and then to require one new
- 01:01:27burden on data Brokers which is data
- 01:01:29credentialing but does not include the
- 01:01:32opt out language um that had been passed
- 01:01:34out of here so and requires sorry also
- 01:01:38notice a data broker security breach
- 01:01:39which I think has been the kind of big
- 01:01:41request all along from the AG's offices
- 01:01:43to ensure that we capture notice of
- 01:01:45these particular kinds of security
- 01:01:46breaches so there are new substantive
- 01:01:48Provisions if this act if this bill
- 01:01:51passes there are new obligations imposed
- 01:01:53on data Brokers by the section but we
- 01:01:55are not rolling out um the individual
- 01:01:59and general opt out pieces and the
- 01:02:01reason for that
- 01:02:02is one concession to Senate Economic
- 01:02:05Development two folks's complaint um
- 01:02:08that there's some tension between the
- 01:02:10opt out in the data broker section and
- 01:02:12the um language that's in the data
- 01:02:15Privacy Act the ultimate place that that
- 01:02:18landed was making the data broker
- 01:02:19section look an awful lot like the pront
- 01:02:22data privacy act at which point they
- 01:02:24sort of become super
- 01:02:26because if they're subject to the m data
- 01:02:27Privacy Act they're already going to
- 01:02:29have to comply with that so I have
- 01:02:31another provision that does it um and
- 01:02:33additionally from my perspective the
- 01:02:35negotiation that was happening on the
- 01:02:37optout piece was having substantive
- 01:02:40effects on what was happening in the
- 01:02:41Vermont data Privacy Act and I am
- 01:02:43guessing that that was not the intent
- 01:02:45was to allow the data broker negotiation
- 01:02:47to drag down the data privacy act so
- 01:02:50this is a a weighing of priorities as
- 01:02:53well additionally given that you
- 01:02:56prohibit the sell of sensitive selling
- 01:02:58of sensitive data um that's a dramatic
- 01:03:01impact on data Brokers and so I think
- 01:03:04the changes that you made to the
- 01:03:05controller obligations already has a
- 01:03:07pretty dramatic impact
- 01:03:09um for data Brokers you can see beyond
- 01:03:12that data broker security breach uh
- 01:03:13notice what's required
- 01:03:15is these additional penalties for
- 01:03:18failure to file information or emitting
- 01:03:20required information or filing
- 01:03:22materially false information this is uh
- 01:03:25what you guys had accept one more
- 01:03:27concession to Senate Economic
- 01:03:29Development you guys had the penalties
- 01:03:32um kick in after five business days and
- 01:03:35what Senate Economic Development
- 01:03:36proposed was after 30 business days so
- 01:03:38significantly longer period given that
- 01:03:41you are
- 01:03:42including the substantive modifications
- 01:03:44the prohibition on prohibiting selling
- 01:03:46sensitive data in the data Privacy Act
- 01:03:48and given that you have rolled
- 01:03:50back uh
- 01:03:54the there a choice for you guys but I
- 01:03:57think if you're trying to make
- 01:03:58concessions just in an economic
- 01:04:00development to reflect a real compromise
- 01:04:01here while you're still getting things
- 01:04:03that you want I think that this is maybe
- 01:04:05an easy one to do but it is worth saying
- 01:04:08that those penalties wouldn't kick in
- 01:04:09for failure for omission of required
- 01:04:11information or for filing materially
- 01:04:13incorrect information until a whole
- 01:04:15month after that failure but I think
- 01:04:17that I didn't understand anyone to be
- 01:04:19taking objection to this particular
- 01:04:22piece he that
- 01:04:29I'll say I don't love it but I can be
- 01:04:30okay with it is that
- 01:04:33fair I mean the reality is once the
- 01:04:35information is out there it's out there
- 01:04:37and it's really hard to pull it back and
- 01:04:40more damage can happen the longer it's
- 01:04:42out there
- 01:04:43but so to respond to that this is just
- 01:04:46about registration pieces this is not
- 01:04:48about um what data Brokers are actually
- 01:04:50doing with your information this is if a
- 01:04:52data broker emits required information
- 01:04:54from their registration form or if they
- 01:04:56file misleading information in the
- 01:04:58registration form when do penalties for
- 01:05:00those kinds of registration failures
- 01:05:02kick in it's not about it's not related
- 01:05:04to Consumers um except to the extent the
- 01:05:07consumer is denied the information they
- 01:05:08need by the registry essentially so this
- 01:05:12this I don't think implicates those
- 01:05:14concerns great thank you I appreciate
- 01:05:17that
- 01:05:20clarification so what what remains of
- 01:05:24the
- 01:05:27section we still have this credentialing
- 01:05:29piece and what this is and I don't think
- 01:05:31we ever really talked in substance about
- 01:05:33this um so it was only recently that I
- 01:05:36kind of realized the value ad of this
- 01:05:37but maybe it's been apparent to you guys
- 01:05:39all along um we focused so much on the
- 01:05:41opt out we didn't talk much about this
- 01:05:43particular
- 01:05:44subsection this imposes on data Brokers
- 01:05:46a requirement that they maintain
- 01:05:47reasonable procedures to ensure that BPI
- 01:05:50is used for legitimate purposes um
- 01:05:53including requiring prospective users to
- 01:05:55identify themselves certify the purposes
- 01:05:57for which that information is sought and
- 01:05:59certify that it won't be used for other
- 01:06:01purposes that the data broker make
- 01:06:03reasonable efforts to verify the
- 01:06:04identity of new users and the uses
- 01:06:07certified by those users prior to
- 01:06:09Furnishing the information so this is
- 01:06:11imposing obligations in advance of
- 01:06:12turning over that information um and
- 01:06:14requiring that data Brokers not furnish
- 01:06:16the BPI if they have reasonable grounds
- 01:06:18for believing that it will be not used
- 01:06:20for a legitimate and legal purpose so
- 01:06:22you can imagine if they have all kinds
- 01:06:24of indications that
- 01:06:26and it's like through the I don't know
- 01:06:28exactly what the mechanism would be but
- 01:06:29if they have strong indications that
- 01:06:31someone is engaging in criminal Behavior
- 01:06:34the like this would say you can't you're
- 01:06:35prohibited from turning over that
- 01:06:37information um so these are substance of
- 01:06:39additions um but we don't have the opt
- 01:06:42out pieces and previously there was an
- 01:06:45exemption section in this section
- 01:06:472448 given that you have pulled back the
- 01:06:51popped out we have eliminated the
- 01:06:54exemptions I the exemptions to be a
- 01:06:56request for exemption from the opt out
- 01:06:59provisions and so in the absence of
- 01:07:00those opt out Provisions I don't think
- 01:07:02you need them anymore
- 01:07:06um section four this is a data broker
- 01:07:09study and this is tied to the removal of
- 01:07:11that uh those opt out
- 01:07:14pieces uh what this says is that the
- 01:07:16Secretary of State on before January 1st
- 01:07:19of next year shall in collaboration with
- 01:07:22the with ads and the AG review and
- 01:07:24report findings and recommendations to
- 01:07:26Committees of jurisdiction um concerning
- 01:07:28mechanisms for for my consumers to opt
- 01:07:30out of the collection retention and sale
- 01:07:32of broker personal information basically
- 01:07:34this is a study to look at the previous
- 01:07:36language that was in the section that
- 01:07:37has now been pulled out um because some
- 01:07:39of the testimony that's been purchased
- 01:07:40at the secretary of state would not have
- 01:07:42capacity to implement the general opt
- 01:07:43out and if that's the case the opt out
- 01:07:47section doesn't get you very far an
- 01:07:48individual opt out is unlikely to be
- 01:07:50particularly effective with data Brokers
- 01:07:52because there is no direct relationship
- 01:07:54between the consumer and the data broker
- 01:07:56you really need the general opt out is
- 01:07:58my understanding to achieve anything
- 01:08:00with data Brokers and so this is a way
- 01:08:02of gathering data and coming back with a
- 01:08:04plan with the Secretary of State who
- 01:08:06will be the one in position to say
- 01:08:09whether or not essentially this is
- 01:08:10achievable and what it would take to do
- 01:08:11that so that's what the study is meant
- 01:08:12to do they'll have to include um they'll
- 01:08:16have to look to that individual opt out
- 01:08:18um they have to consider rules
- 01:08:20procedures and framework for
- 01:08:21implementing the this is essentially the
- 01:08:23general opt out the accessible deletion
- 01:08:25mechanism that California is
- 01:08:27offering um how to design and Implement
- 01:08:29that state facilitated General optout
- 01:08:31operational cost mitigation of security
- 01:08:33risks which we understand is a large
- 01:08:35portion of the cost that would be
- 01:08:37incurred and other relevant
- 01:08:40considerations uh section five so now
- 01:08:43we're jumping into what you're going to
- 01:08:45see is duplicative sections of pieces
- 01:08:46before and these are sunsets of previous
- 01:08:49Provisions so I'll walk through those
- 01:08:51section five is a part of your tiered
- 01:08:53roll out of the applicability threat
- 01:08:55thresholds so um the first threshold is
- 01:08:59going to come into effect when the ACT
- 01:09:00comes into effect in 2025 so J uh July
- 01:09:031st 2025 this Section 5 would not go
- 01:09:06into effect until a year later in 2026
- 01:09:08and this is lowering the thresholds from
- 01:09:1125k to
- 01:09:1212.5k and then for the gross revenue
- 01:09:15piece if a business has controlled to
- 01:09:17process personal data of not fewer than
- 01:09:186250 consumers 6250 consumers and derive
- 01:09:22more than 20% of first Revenue so that's
- 01:09:24for your 2026 a middle step in your
- 01:09:27applicability threshold so a step down
- 01:09:30um where and where is the the the date
- 01:09:32where are the dates they'll come at the
- 01:09:34very end okay thanks good um the next
- 01:09:37section you see section six this is
- 01:09:39stepping down again and this is for
- 01:09:422027 um so you're going from those new
- 01:09:44thresholds that we just walked through
- 01:09:46to half of those um 6,250 consumers and
- 01:09:50for your gross revenue piece
- 01:09:523,125 this is basically ending up in
- 01:09:552027 with the thresholds that you guys
- 01:09:58had proposed starting with and just to
- 01:10:01call out again the thresholds that you
- 01:10:03proposed starting with in July 1 2025
- 01:10:05that 25k threshold is what Senate
- 01:10:08Economic Development has so you can see
- 01:10:10this as in a way stepping starting with
- 01:10:13what Senate Economic Development has
- 01:10:14proposed for thresholds with some
- 01:10:16modifications and then stepping down
- 01:10:18over the course of two years to um the
- 01:10:21thresholds that you guys had proposed on
- 01:10:22this side
- 01:10:26section seven this is another sunsetting
- 01:10:28provision for the enforcement pieces so
- 01:10:31the roll out first in July 1 2025 is for
- 01:10:35Reliance on the Consumer Fraud statutes
- 01:10:37meaning both AG enforcement and the
- 01:10:39underlying private right of action and
- 01:10:41then uh what this does is it removes the
- 01:10:44Cure period um so when we start we're
- 01:10:48going to have a cure period permissible
- 01:10:50for AG
- 01:10:51action that's what you see in subsection
- 01:10:53C and we're going to have reporting from
- 01:10:55the AG on that curing after 18 months so
- 01:10:59this would come into effect January 1 of
- 01:11:03uh
- 01:11:062027
- 01:11:10um yes I need to check that I think I've
- 01:11:14done this yep I'll need to check this
- 01:11:16piece uh this will be after 18 months
- 01:11:20this will be
- 01:11:22removed and then in 20
- 01:11:2620
- 01:11:29see on July 1
- 01:11:322026 the private right of action in
- 01:11:35statute uh so not Reliance on the
- 01:11:37underlying statute but
- 01:11:40and a specific developed private right
- 01:11:43of action would be made available in
- 01:11:45July 1 2026 let me walk through what
- 01:11:47this does this is you already have the
- 01:11:50underlying private R of action in the
- 01:11:52Consumer Fraud statutes this is and and
- 01:11:54what's important to call out about that
- 01:11:56is the underlying right doesn't
- 01:11:58contemplate statutory damages it
- 01:12:00contemplates actual damages meaning the
- 01:12:02folks need to prove their damages under
- 01:12:04the underlying right if you have
- 01:12:06statutory damages meaning that someone
- 01:12:07can seek something like the greater of a
- 01:12:09thousand or actual damages it means that
- 01:12:11a consumer has more incentive to go to
- 01:12:12court to enforce their rights so what
- 01:12:14this private right of action coming into
- 01:12:16effect in July 1 2026 would do is
- 01:12:20to make statutory damages available so
- 01:12:23folks could know that they're going to
- 01:12:24get the Thousand if they win their case
- 01:12:27um that or the or the actual damages but
- 01:12:30to call out what you see here in C the P
- 01:12:33would only be available for specific
- 01:12:34kinds of violations and this is
- 01:12:37reflecting the approach that Senate
- 01:12:38Health and Welfare is taking which is a
- 01:12:40consumer who is harmed by violations of
- 01:12:42subdivisions 2419 B2 2419 B3 or section
- 01:12:462428 may bring in action for that
- 01:12:48alleged violation so 2419 B2 is
- 01:12:51processing sensitive data without
- 01:12:53consent so if there's a violation of app
- 01:12:55which is a big bucket that includes
- 01:12:56things like Health Data biometric data
- 01:12:58and the like or if there's a violation
- 01:13:00of 2419 B3 which is uh selling sensitive
- 01:13:03data or section 2428 which is your
- 01:13:07consumer health data specific section
- 01:13:08which is things like the prohibition on
- 01:13:10geofencing violations for any of those
- 01:13:12sections would trigger this private
- 01:13:14right of would make this private right
- 01:13:15of action available with statutory
- 01:13:17damages um and that would be available
- 01:13:21if the consumer notifies the consumer
- 01:13:23the the business of that violation and
- 01:13:26then within 60 days following receive of
- 01:13:27the notice the business fails to cure
- 01:13:29the violation or we're talking about a
- 01:13:31situation where no cure is possible like
- 01:13:33prohibitions on geofencing you may not
- 01:13:35be able to cure that um and here's this
- 01:13:38is the same language that you guys had
- 01:13:39in the language that you passed out so
- 01:13:40this is the statutory damages that I was
- 01:13:42talking about the greater of a thousand
- 01:13:43or actual damages and then a requirement
- 01:13:46for a report on disclosure of those
- 01:13:50pieces uh finally section nine is
- 01:13:53rolling back this private right of
- 01:13:54action after 3 years so this would
- 01:13:56eliminate it after data collection could
- 01:13:58happen and we could see what the effects
- 01:13:59of it are so in
- 01:14:012029 that statutory damages private R
- 01:14:05action would go away um I'm going to try
- 01:14:07to just wrap up because I know Rick
- 01:14:08needs to hop in the seat uh this is your
- 01:14:10effective date section I will go through
- 01:14:12this again when I go back to my office
- 01:14:14because I think the Cure period phase
- 01:14:16out may need one more year but I will
- 01:14:19check that and uh if you have anything
- 01:14:21please email me or I'm happy to answer
- 01:14:23it now but do want to let Rick hop in
- 01:14:25the chair if I can
- 01:14:27okay thanks so much just fling uh
- 01:14:31sometimes when we do these uh kind of um
- 01:14:34you know like we're establishing the
- 01:14:35private right of action and then we're
- 01:14:37getting rid of it you know with
- 01:14:39different effective bids we have like a
- 01:14:41report back yes are we did I miss that
- 01:14:45we're doing a report for the for the pr
- 01:14:47here we're doing annually owner report
- 01:14:49to submit a report disclosing number of
- 01:14:51actions number of violations broken down
- 01:14:53by statutory basis proportion proceeding
- 01:14:55to trial most frequent violators um any
- 01:14:58other matters STS relevant
- 01:15:00yep what I'm sorry what's the date on
- 01:15:02the report that would be an so once that
- 01:15:04comes into effect which it comes into
- 01:15:06effect July 1 2026 it's annually on oner
- 01:15:08before February 1st so the first report
- 01:15:10you would get is February 1st 2027 and
- 01:15:13you would receive that until this is
- 01:15:14phased out in
- 01:15:182029
- 01:15:20perect thank you so much joh really
- 01:15:22appreciate all your work on this
- 01:15:27terrific I will uh drop the 4 C piece
- 01:15:30that was intention and I will confirm
- 01:15:32the Cure fiod phe out okay I can be back
- 01:15:35with that later
- 01:15:36today right thank you see you guys
- 01:15:40appreciate okay so um
- 01:15:44does I kind of feel like we should keep
- 01:15:46plotting along if anyone needs to take a
- 01:15:47break go ahead and um would I take a
- 01:15:50five minute break yeah May let's take a
- 01:15:52five minute break then
- confidentialité des données
- données biométriques
- mineurs
- vente de données
- ciblage publicitaire
- courtiers en données
- droit privé d'action
- législation
- consentement
- protection des consommateurs