Bill Text: NJ S1389 | 2024-2025 | Regular Session | Introduced
Bill Title: Requires notification to consumers of collection and disclosure of personal data by certain entities.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Passed) 2024-01-09 - Withdrawn Because Approved P.L.2023, c.266. [S1389 Detail]
Download: New_Jersey-2024-S1389-Introduced.html
STATE OF NEW JERSEY
221st LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2024 SESSION
Sponsored by:
Senator TROY SINGLETON
District 7 (Burlington)
Co-Sponsored by:
Senators Greenstein and Pou
SYNOPSIS
Requires notification to consumers of collection and disclosure of personal data by certain entities.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel.
An Act concerning online services, consumers, and personal data and supplementing Title 56 of the Revised Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. As used in P.L. , c. (C. ) (pending before the Legislature as this bill):
"Affiliate" means a legal entity that controls, is controlled by, or is under common control with another legal entity. For the purposes of this definition, "control" means: the ownership of or the power to vote, more than 50 percent of the outstanding shares of any class of voting security of a company; the control in any manner over the election of a majority of the directors or individuals exercising similar functions; or the power to exercise a controlling influence over the management or policies of a company.
"Biometric data" means data generated by automatic or technological processing, measurements, or analysis of an individual's biological, physical, or behavioral characteristics, including, but not limited to, fingerprint, voiceprint, eye retinas, irises, facial mapping, facial geometry, facial templates, or other unique biological, physical, or behavioral patterns or characteristics that are used or intended to be used, singularly or in combination with each other or with other personal data, to identify a specific individual. "Biometric data" shall not include: a digital or physical photograph; an audio or video recording; or any data generated from a digital or physical photograph, or an audio or video recording, unless such data is generated to identify a specific individual.
"Child" shall have the same meaning as provided in COPPA.
"Consent" means a clear affirmative act signifying a consumer's freely given, specific, informed and unambiguous agreement to allow the processing of personal data relating to the consumer. "Consent" may include a written statement, including by electronic means, or any other unambiguous affirmative action. "Consent shall not include: acceptance of a general or broad terms of use or similar document that contains descriptions of personal data processing along with other, unrelated information; hovering over, muting, pausing, or closing a given piece of content; or agreement obtained through the use of dark patterns.
"Consumer" means an identified person who is a resident of this State acting only in an individual or household context. "Consumer" shall not include a person acting in a commercial or employment context.
"Controller" means an individual, or legal entity that, alone or jointly with others determines the purpose and means of processing personal data.
"COPPA" means the federal Children's Online Privacy Protection Act, 15 U.S.C. s.6501 et seq., and any rules, regulations, guidelines, and exceptions thereto, as may be amended from time to time.
"Dark pattern" means a user interface designed or manipulated with the substantial effect of subverting or impairing user autonomy, decision-making, or choice, and includes, but is not limited to, any practice the United States Federal Trade Commission refers to as a "dark pattern."
"Decisions that produce legal or similarly significant effects concerning the consumer" means decisions that result in the provision or denial of financial or lending services, housing, insurance, education enrollment or opportunity, criminal justice, employment opportunities, health care services, or access to essential goods and services.
"De-identified data" means: data that cannot be reasonably used to infer information about, or otherwise be linked to, an identified or reasonably identifiable individual, or a device linked to such an individual, if the controller that possesses the data: (1) takes reasonable measures to ensure that the data cannot be associated with an individual, (2) publicly commits to maintain and use the data only in a de-identified fashion and not to attempt to re-identify the data, and (3) contractually obligates any recipients of the information to comply with the requirements of this paragraph.
"Designated request address" means an electronic mail address, Internet website, or toll-free telephone number that a consumer may use to request the information required to be provided pursuant to section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill).
"Personal data" means any information that is linked or reasonably linkable to an identified or identifiable person. "Personal data" shall not include de-identified data or publicly available information.
"Precise geolocation data" means information derived from technology, including, but not limited to, global positioning system level latitude and longitude coordinates or other mechanisms, that directly identifies the specific location of an individual with precision and accuracy within a radius of 1,750 feet. "Precise geolocation data" does not include the content of communications, or any data generated by or connected to advanced utility metering infrastructure systems or equipment for use by a utility.
"Process" or "processing" means an operation or set of operations performed, whether by manual or automated means, on personal data or on sets of personal data, such as the collection, use, storage, disclosure, analysis, deletion, or modification of personal data, and also includes the actions of a controller directing a processor to process personal data.
"Processor" means a person, private entity, public entity, agency, or other entity that processes personal data on behalf of the controller.
"Profiling" means any form of automated processing performed on personal data to evaluate, analyze or predict personal aspects related to an identified or identifiable individual's economic situation, health, personal preferences, interests, reliability, behavior, location or movements.
"Publicly available information" means information that is lawfully made available from federal, State, or local government records, or widely-distributed media or information that a controller has a reasonable basis to believe a consumer has lawfully made available to the general public and has not restricted to a specific audience.
"Sale" means the sharing, disclosing, or transferring of personal data for monetary or other valuable consideration by the controller to a third party. "Sale" shall not include:
The disclosure of personal data to a processor that only processes the personal data on the controller's behalf;
The disclosure of personal data to a third party for the purposes of providing a product or service requested by the consumer;
The disclosure or transfer of personal data to an affiliate of the controller;
The disclosure of personal data that the consumer intentionally made available to the general public through a mass media channel and did not restrict to a specific audience; or
The disclosure or transfer of personal data to a third party as an asset that is part of a proposed or actual merger, acquisition, bankruptcy, or other transaction in which the third party assumes control of all or part of the controller's assets.
"Sensitive data" means personal data revealing racial or ethnic origin; religious beliefs; mental or physical health condition, treatment, or diagnosis; financial information; sex life or sexual orientation; citizenship or immigration status; status as transgender or non-binary; genetic or biometric data that may be processed for the purpose of uniquely identifying an individual; personal data collected from a known child; or precise geolocation data.
"Targeted advertising" means displaying an advertisements to a consumer where the advertisement is selected based on personal data obtained or inferred from that consumer's activities over time and across nonaffiliated Internet web sites or online applications to predict such consumer's preferences or interests. "Targeted advertising" shall not include: advertisements based on activities within a controller's own internet websites or online applications; advertisements based on the context of a consumer's current search query, visit to an internet website or online application; advertisements directed to a consumer in response to the consumer's request for information or feedback; or processing personal data solely to measure or report advertising frequency, performance, or reach.
"Third party" means a person, private entity, public entity, agency, or entity other than the consumer, controller, or affiliate or processor of the controller.
"Trade secret" has the same meaning as section 2 of P.L.2011, c.161 (C.56:15-2).
"Verified request" means the process through which a consumer may submit a request to exercise a right or rights established in P.L. , c. (C. ) (pending before the Legislature as this bill), and by which a controller can reasonably authenticate the request and the consumer making the request using commercially reasonable means.
2. Notwithstanding any State law, rule, regulation, or order to the contrary, the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill) shall only apply to controllers that conduct business in the State or produce products or services that are targeted to residents of the State, and that during a calendar year either:
a. control or process the personal data of at least 100,000 consumers, excluding personal data processed solely for the purpose of completing a payment transaction; or
b. control or process the personal data of at least 25,000 consumers and the controller derives revenue, or receives a discount on the price of any goods or services, from the sale of personal data.
3. a. A controller shall provide to a consumer a reasonably accessible, clear, and meaningful privacy notice that shall include, but may not be limited to:
(1) the categories of the personal data that the controller processes;
(2) the purpose for processing personal data;
(3) the categories of all third parties to which the controller may disclose a consumer's personal data;
(4) the categories of personal data that the controller shares with third parties, if any;
(5) how consumers may exercise their consumer rights, including the controller's contact information and how a consumer may appeal a controller's decision with regard to the consumer's request;
(6) the process by which the controller notifies consumers of material changes to the notification required to be made available pursuant to this subsection, along with the effective date of the notice; and
(7) an active electronic mail address or other online mechanism that the consumer may use to contact the controller.
b. If a controller sells personal data to third parties or processes personal data for the purposes of targeted advertising, the sale of personal data, or profiling in furtherance of decisions that produce legal or similarly significant effects concerning a consumer, the controller shall clearly and conspicuously disclose such sale or processing, as well as the manner in which a consumer may exercise the right to opt out of such sale or processing, a description of the process for a consumer to review and make requests pursuant to section 4 of this act, P.L. , c. (C. ) (pending before the Legislature as this bill).
c. A controller shall not:
(1) require a consumer to create a new account in order to exercise a right; or
(2) based solely on the exercise of a right and unrelated to feasibility or the value of a service, increase the cost of, or decrease the availability of, the product or service.
4. a. A controller that receives a verified request from a consumer shall provide a response to the consumer within 45 days of the controller's receipt of the request . The controller may extend the response period by 45 additional days where reasonably necessary, considering the complexity and number of the consumer's requests, provided that the controller informs the consumer of any such extension within the initial 45-day response period and the reason for the extension and shall provide the information for all disclosures of personal data that occurred in the prior 12 months.
b. This section shall not apply to personal data collected prior to the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill) unless the controller continues to process such information thereafter.
c. If a controller declines to take action regarding the consumer's request, the controller shall inform the consumer without undue delay, but not later than 45 days after receipt of the request, of the justification for declining to take action and instructions for how to appeal the decision.
d. Information provided in response to a consumer request shall be provided by a controller, free of charge, once per consumer during any twelve-month period, except that, for a second or subsequent identical request within a 12-month period, the controller may charge an amount calculated pursuant to regulations. If requests from a consumer are manifestly unfounded, excessive, or repetitive, the controller may charge the consumer a reasonable fee to cover the administrative costs of complying with the request or decline to act on the request. The controller shall bear the burden of demonstrating the manifestly unfounded, excessive or repetitive nature of the request.
e. If a controller is unable to authenticate a request to exercise any of the rights afforded under section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill) using commercially reasonable efforts, the controller shall not be required to comply with a request to initiate an action pursuant to this section and shall provide notice to the consumer that the controller is unable to authenticate the request to exercise such right or rights until such consumer provides additional information reasonably necessary to authenticate such consumer and such consumer's request to exercise such right or rights. A controller shall not be required to authenticate an opt-out request it honors, but a controller may deny an opt-out request if the controller has a good faith, reasonable and documented belief that such request is fraudulent. If a controller denies an opt-out request because the controller believes such request is fraudulent, the controller shall send a notice to the person who made such request disclosing that such controller believes such request is fraudulent, why such controller believes such request is fraudulent and that such controller shall not comply with such request.
f. A controller shall establish a process for a consumer to appeal the controller's refusal to take action on a request within a reasonable period of time after the consumer's receipt of the decision. The appeal process shall be conspicuously available and similar to the process for submitting requests to initiate action pursuant to this section. Not later than 45 days after receipt of an appeal, a controller shall inform the consumer in writing of any action taken or not taken in response to the appeal, including a written explanation of the reasons for the decisions. If the appeal is denied, the controller shall also provide the consumer with an online mechanism, if available, or other method through which the consumer may contact the Division of Consumer Affairs in the Department of Law and Public Safety to submit a complaint.
5. A controller shall be prohibited from discriminating against a consumer if the consumer chooses to opt out of the processing for sale, targeted advertising, or profiling in furtherance of decisions that produce legal or similarly significant effects of the consumer's personal data pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill). The provisions of this section shall not prohibit the controller's ability to offer consumers discounts, loyalty programs, or other incentives for the sale of the consumer's personal data, or to provide different services to consumers that are reasonably related to the value of the relevant data, provided that the controller has clearly and conspicuously disclosed to the consumer that the offered discounts, programs, incentives, or services include the sale or processing of personal data that the consumer otherwise has a right to opt out of.
6. A
waiver of the requirements of, or an agreement that does not comply with, the
provisions of P.L. , c. (C. ) (pending before the Legislature as
this bill) shall be void and unenforceable.
7. a. A consumer shall have the right to:
(1) confirm whether a controller processes the consumer's personal data and accesses such personal data, provided that nothing in this paragraph shall require a controller to provide the data to the consumer in a manner that would reveal the controller's trade secrets;
(2) correct inaccuracies in the consumer's personal data, taking into account the nature of the information and the purposes of the processing of the information;
(3) delete personal data concerning the consumer;
(4) obtain a copy of the consumer's personal data held by the controller in a portable and, to the extent technically feasible, readily usable format that allows the consumer to transmit the data to another entity without hindrance, provided that nothing in this paragraph shall require a controller to provide the data to the consumer in a manner that would reveal the controller's trade secrets; and
(5) opt out of the processing of personal data for the purposes of (a) targeted advertising; (b) the sale of personal data; or (c) profiling in furtherance of decisions that produce legal or similarly significant effects concerning the consumer.
b. A controller that has lawfully obtained personal data about a consumer from a source other than the consumer shall be deemed in compliance with a consumer's request to delete such data pursuant to this subsection by:
(1) retaining a record of the deletion request and the minimum data necessary for the purpose of ensuring the consumer's personal data remains deleted from the controller's records and not using such retained information for any other purpose pursuant to the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill); or
(2) deleting such personal data.
8. a. A consumer may designate another person to serve as the consumer's authorized agent and act on the consumer's behalf to opt out of the processing and sale of the consumer's personal data. A consumer may designate an authorized agent using technology, including a link to an Internet website, an Internet browser setting or extension, or a global setting on an electronic device, that allows the consumer to indicate the consumer's intent to opt-out of the collection and processing for the purpose of any sale of data or for the purpose of targeted advertising or for profiling in furtherance of decisions that produce legal or similarly significant effects concerning a consumer. A controller shall comply with an opt-out request received from an authorized agent under this subsection if the controller is able to verify, with commercially reasonable effort, the identity of the consumer and the authorized agent's authority to act on the consumer's behalf.
b. (1) Beginning not later than four months following the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), a controller that processes personal data for purposes of targeted advertising, the sale of personal data, or profiling in furtherance of decisions that produce legal or similarly significant effects concerning a consumer shall allow consumers to exercise the right to opt-out of such processing through a user-selected universal opt-out mechanism.
(2) The platform, technology, or mechanism shall:
(a) not permit its manufacturer to unfairly disadvantage another controller;
(b) not make use of a default setting that opts-in a consumer to the processing or sale of personal data, unless the controller has determined that the consumer has selected such default setting and the selection clearly represents the consumer's an affirmative, freely given, and unambiguous choice to opt-out of any processing of such consumer's personal data pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill);
(c) be consumer-friendly, clearly described, and easy to use by the average consumer;
(d) be as consistent as possible with any other similar platform, technology, or mechanism required by any federal or state law or regulation; and
(e) enable the controller to accurately determine whether the consumer is a resident of this State and whether the consumer has made a legitimate request to opt out of the processing of personal data for the purposes of any sale of such consumer's personal data or targeted advertising; and
(3) Controllers shall inform consumers about the opt-out choices available under P.L. , c. (C. ) (pending before the Legislature as this bill).
c. The Division of Consumer
Affairs in the Department of Law and Public Safety may adopt rules and
regulations that detail the technical specifications for one or more universal
opt-out mechanisms that clearly communicate a consumer's affirmative, freely
given, and unambiguous choice to opt out of the processing of personal data
pursuant to P.L. , c. (C. ) (pending before the Legislature as
this bill), including regulations that permit the controller to accurately
authenticate the consumer as a resident of this state and determine that the
mechanism represents a legitimate request to opt out of the processing of
personal data pursuant to
P.L. , c. (C. ) (pending
before the Legislature as this bill). The division may update the rules that
detail the technical specifications for the mechanisms from time to time to
reflect the means by which consumers interact with controllers.
9. a. A controller shall:
(1) limit the collection of personal data to what is adequate, relevant, and reasonably necessary in relation to the purposes for which such data is processed, as disclosed to the consumer;
(2) except as otherwise provided in P.L. , c. (C. ) (pending before the Legislature as this bill), not process personal data for purposes that are neither reasonably necessary to, nor compatible with, the purposes for which such personal data is processed, as disclosed to the consumer, unless the controller obtains the consumer's consent;
(3) take reasonable measures to establish, implement, and maintain administrative, technical, and physical data security practices to protect the confidentiality, integrity, and accessibility of personal data and to secure personal data during both storage and use from unauthorized acquisition. The data security practices shall be appropriate to the volume and nature of the personal data at issue;
(4) not process sensitive data concerning a consumer without first obtaining the consumer's consent, or, in the case of the processing of personal data concerning a known child, without processing such data in accordance with COPPA;
(5) not process personal data in violation of the laws of this State and federal laws that prohibit unlawful discrimination against consumers;
(6) provide an effective mechanism for a consumer to revoke the consumer's consent under this section that is at least as easy as the mechanism by which the consumer provided the consumer's consent and, upon revocation of such consent, cease to process the data as soon as practicable, but not later than 15 days after the receipt of such request;
(7) not process the personal data of a consumer for purposes of targeted advertising, the sale of the consumer's personal data, or profiling in furtherance of decisions that produce legal or similarly significant effects concerning a consumer without the consumer's consent, under circumstances where a controller has actual knowledge, or willfully disregards, that the consumer is at least 13 years of age but younger than 17 years of age;
(8) specify the express purposes for which personal data are processed; and
(9) not conduct processing that presents a heightened risk of harm to a consumer without conducting and documenting a data protection assessment of each of its processing activities that involve personal data acquired on or after the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill) that present a heightened risk of harm to a consumer.
b. Data protection assessments shall identify and weigh the benefits that may flow, directly and indirectly, from the processing to the controller, the consumer, other stakeholders, and the public against the potential risks to the rights of the consumer associated with the processing, as mitigated by safeguards that the controller can employ to reduce the risks. The controller shall factor into this assessment the use of de-identified data and the reasonable expectations of consumers, as well as the context of the processing and the relationship between the controller and the consumer whose personal data will be processed. A controller shall make the data protection assessment available to the Division of Consumer Affairs in the Department of Law and Public Safety upon request. The division may evaluate the data protection assessment for compliance with the duties contained in this section and with other laws. Data protection assessments shall be confidential and exempt from public inspection under P.L.1963 c.3 (C.47:1A-1 et al.). The disclosure of a data protection assessment pursuant to a request from the division under this section shall not constitute a waiver of any attorney-client privilege or work-product protection that might otherwise exist with respect to the assessment and any information contained in the assessment.
c. For the purposes of this section, "heightened risk" includes:
(1) processing personal data for purposes of targeted advertising or for profiling if the profiling presents a reasonably foreseeable risk of: unfair or deceptive treatment of, or unlawful disparate impact on, consumers; financial or physical injury to consumers; a physical or other intrusion upon the solitude or seclusion, or the private affairs or concerns, of consumers if the intrusion would be offensive to a reasonable person; or other substantial injury to consumers;
(2) selling personal data; and
(3) processing sensitive data.
10. Nothing in P.L. , c. (C. ) (pending before the Legislature as this bill) shall apply to:
a. protected health information collected by a covered entity or business associate subject to the privacy, security, and breach notification rules issued by the United States Department of Health and Human Services, Parts 160 and 164 of Title 45 of the Code of Federal Regulations, established pursuant to the "Health Insurance Portability and Accountability Act of 1996," Pub.L.104-191, and the "Health Information Technology for Economic and Clinical Health Act," 42 U.S.C. s.17921 et seq.;
b. a financial institution or an affiliate of a financial institution that is subject to Title V of the federal "Gramm-Leach-Bliley Act," 15 U.S.C. s.6801 et seq., and the rules and implementing regulations promulgated thereunder;
c. the secondary market institutions identified in 15 U.S.C. s.6809(3)(D) and 12 C.F.R. s.1016.3(l)(3)(iii);
d. an insurance institution subject to P.L.1985, c.179 (C.17:23A-1 et seq.);
e. the sale of a consumer's personal data by the New Jersey Motor Vehicle Commission that is permitted by the federal "Drivers' Privacy Protection Act of 1994," 18 U.S.C. s.2721 et seq.;
f. personal data collected, processed, sold, or disclosed by a consumer reporting agency, as defined in 15 U.S.C. s.1681a(f), if the collection, processing, sale, or disclosure of the personal data is limited, governed, and collected, maintained, disclosed, sold, communicated, or used only as authorized by the federal "Fair Credit Reporting Act," 15 U.S.C. s.1681 et seq., and implementing regulations;
g. any State agency as defined in section 2 of P.L.1971, c.182 (C.52:13D-13), any political subdivision, and any division, board, bureau, office, commission, or other instrumentality created by a political subdivision; or
h. personal data that is collected, processed, or disclosed, as part of research conducted in accordance with the Federal Policy for the protection of human subjects pursuant to 45 C.F.R. Part 46 or the protection of human subjects pursuant to 21 C.F.R. Parts 50 and 56.
11. Nothing in P.L. , c. (C. ) (pending before the Legislature as this bill) shall require an operator to:
a. re-identify de-identified data;
b. collect, retain, use, link, or combine personal data concerning a consumer that it would not otherwise collect, retain, use, link, or combine in the ordinary course of business.
12. a. Nothing in P.L. , c. (C. ) (pending before the Legislature as this bill) shall be construed to restrict a controller's or processor's ability to:
(1) comply with federal or State law or regulations;
(2) comply with a civil, criminal or regulatory inquiry, investigation, subpoena or summons by federal, State, municipal or other governmental authorities;
(3) cooperate with law enforcement agencies concerning conduct or activity that the controller or processor reasonably and in good faith believes may violate federal, State or municipal ordinances or regulations;
(4) investigate, establish, exercise, prepare for or defend legal claims;
(5) provide a product or service specifically requested by a consumer;
(6) perform under a contract to which a consumer is a party, including fulfilling the terms of a written warranty;
(7) take steps at the request of a consumer prior to entering into a contract;
(8) take immediate steps to protect an interest that is essential for the life or physical safety of the consumer or another individual, and where the processing cannot be manifestly based on another legal basis;
(9) prevent, detect, protect against or respond to security incidents, identity theft, fraud, harassment, malicious or deceptive activities or any illegal activity, preserve the integrity or security of systems or investigate, report or prosecute those responsible for any such action;
(10) engage in public or peer-reviewed scientific or statistical research in the public interest that adheres to all other applicable ethics and privacy laws and is approved, monitored and governed by an institutional review board that determines, or similar independent oversight entities that determine,
(a) whether the deletion of the information is likely to provide substantial benefits that do not exclusively accrue to the controller,
(b) the expected benefits of the research outweigh the privacy risks, and
(c) whether the controller has implemented reasonable safeguards to mitigate privacy risks associated with research, including any risks associated with re-identification;
(11) assist another controller, processor, or third party with any of the obligations under P.L. , c. (C. ) (pending before the Legislature as this bill); or
(12) personal data for reasons of public interest in the area of public health, community health, or population health, but solely to the extent that such processing is
(a) subject to suitable and specific measures to safeguard the rights of the consumer whose personal data is being processed, and
(b) under the responsibility of a professional subject to confidentiality obligations under federal, State or local law.
b. The obligations imposed on controllers or processors under P.L. , c. (C. ) (pending before the Legislature as this bill) shall not restrict a controller's or processor's ability to collect, use or retain data for internal use to:
(1) conduct internal research to develop, improve, or repair products, services, or technology;
(2) effectuate a product recall;
(3) identify and repair technical errors that impair existing or intended functionality; or
(4) perform internal operations that are reasonably aligned with the expectations of the consumer or reasonably anticipated based on the consumer's existing relationship with the controller, or are otherwise compatible with processing data in furtherance of the provision of a product or service specifically requested by a consumer or the performance of a contract to which the consumer is a party. Personal data collected, used, or retained pursuant to this subsection shall, where applicable, take into account the nature and purpose or purposes of such collection, use or retention. Such data shall be subject to reasonable administrative, technical, and physical measures to protect the confidentiality, integrity, and accessibility of the personal data and to reduce reasonably foreseeable risks of harm to consumers relating to such collection, use, or retention of personal data.
c. The obligations imposed on controllers or processors under P.L. , c. (C. ) (pending before the Legislature as this bill) shall not apply where compliance by the controller or processor with the provisions of law would violate an evidentiary privilege under the laws of this State. Nothing in P.L. , c. (C. ) (pending before the Legislature as this bill) shall be construed to prevent a controller or processor from providing personal data concerning a consumer to a person covered by an evidentiary privilege under the laws of the State as part of a privileged communication.
d. Personal data that are processed by a controller pursuant to an exception provided by this section:
(1) shall not be processed for any purpose other than a purpose expressly listed in this section; and
(2) shall be processed solely to the extent that the processing is necessary, reasonable, and proportionate to the specific purpose or purposes listed in this section.
e. If a controller processes personal data pursuant to an exemption in this section, the controller bears the burden of demonstrating that such processing qualifies for the exemption and complies with the requirements in this section.
f. Processing personal data for the purposes expressly identified in this section shall not solely make a legal entity a controller with respect to such processing if such entity would not otherwise meet the definition of a controller.
13. a. Controllers and processors shall meet their respective obligations established under P.L. , c. (C. ) (pending before the Legislature as this bill).
b. Processors shall adhere to the instructions of the controller and assist the controller to meet its obligations under this act. Taking into account the nature of processing and the information available to the processor, the processor shall assist the controller by:
(1) taking appropriate technical and organizational measures, insofar as possible, for the fulfillment of the controller's obligation to respond to consumer requests to exercise their rights under this act;
(2) helping to meet the controller's obligations in relation to the security of processing the personal data and in relation to notification of a breach of the security of the system; and
(3) providing information to the controller necessary to enable the controller to conduct and document any data protection assessments required by section 9 of P.L. , c. (C. ) (pending before the Legislature as this bill). The controller and processor are each responsible for only the measures allocated to them.
c. Notwithstanding the instructions of the controller, a processor shall:
(1) ensure that each person processing the personal data is subject to a duty of confidentiality with respect to the data; and
(2) engage a subcontractor pursuant to a written contract in accordance with subsection e. of this section that requires the subcontractor to meet the obligations of the processor with respect to the personal data.
d. Taking into account the context of processing, the controller and the processor shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk and establish a clear allocation of the responsibilities between them to implement the measures.
e. Processing by a processor shall be governed by a contract between the controller and the processor that is binding on both parties and that sets forth:
(1) the processing instructions to which the processor is bound, including the nature and purpose of the processing;
(2) the type of personal data subject to the processing, and the duration of the processing;
(3) the requirements imposed by this subsection and subsections c. and d. of this section; and
(4) the following requirements:
(a) At the discretion of the controller, the processor shall delete or return all personal data to the controller as requested at the end of the provision of services, unless retention of the personal data is required by law;
(b) (i) The processor shall make available to the controller all information necessary to demonstrate compliance with the obligations in this act; and
(ii) The processor shall allow for, and contribute to, reasonable assessments and inspections by the controller or the controller's designated assessor. Alternatively, the processor may, with the controller's consent, arrange for a qualified and independent assessor to conduct, at least annually and at the processor's expense, an assessment of the processor's policies and technical and organizational measures in support of the obligations under this act using an appropriate and accepted control standard or framework for the assessment as applicable. The processor shall provide a report of the assessment to the controller upon request.
f. In no event may a contract relieve a controller or a processor from the liabilities imposed on them by virtue of its role in the processing relationship as defined by P.L. , c. (C. ) (pending before the Legislature as this bill).
g. Determining whether a person is acting as a controller or processor with respect to a specific processing of data shall be a fact-based determination that depends upon the context in which personal data are to be processed. A person that is not limited in its processing of personal data pursuant to a controller's instructions, or that fails to adhere to the instructions, shall be deemed a controller and not a processor with respect to a specific processing of data. A processor that continues to adhere to a controller's instructions with respect to a specific processing of personal data shall remain a processor. If a processor begins, alone or jointly with others, determining the purposes and means of the processing of personal data, it shall be deemed a controller with respect to the processing.
14. a. It shall be an unlawful practice and violation of P.L.1960, c.39 (C.56:8-1 et seq.) for a controller to violate the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill).
b. Until the first day of the 18th month next following the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill), prior to bringing an enforcement action before an administrative law judge or a court of competent jurisdiction in this State, the Division of Consumer Affairs in the Department of Law and Public Safety shall issue a notice to the controller if a cure is deemed possible. If the operator controller fails to cure the alleged violation of P.L. , c. (C. ) (pending before the Legislature as this bill) within 30 days after receiving notice of alleged noncompliance from the division, such enforcement action may be brought.
15. The Director of the Division of Consumer Affairs in the Department of Law and Public Safety shall promulgate rules and regulations, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), necessary to effectuate the purposes of P.L. , c. (C. ) (pending before the Legislature as this bill).
16. The Office of the Attorney General shall have sole and exclusive authority to enforce a violation of P.L. , c. (C. ) (pending before the Legislature as this bill). Nothing in P.L. , c. (C. ) (pending before the Legislature as this bill) shall be construed as providing the basis for, or subject to, a private right of action for violations of P.L. , c. (C. ) (pending before the Legislature as this bill) or under any other law.
17.
This act shall take effect on the 365th
day following the date of enactment, except that the Director of the Division
of Consumer Affairs may take any anticipatory administrative action in advance
as shall be necessary for the implementation of this act.
STATEMENT
This bill imposes requirements on certain entities (i.e., controllers) that determine the purposes and means of processing personal data. However, the provisions of the bill would only apply to controllers, which conduct business in the State or produce products or services that are targeted to residents of the State, and which control or process the personal data of a minimum number of consumers each year.
The bill requires a controller to provide notice to consumers of the collection and disclosure of "personal data," as that term is defined in the bill, to third parties. The bill also sets forth various requirements concerning the information that is required to be included in this notice. The bill also imposes other requirements and limitations on controllers regarding the processing of personal data, including limiting the collection and processing of personal data, taking reasonable measures to protect personal data, and obtaining consumer consent before processing certain data. Specifically, the bill imposes additional restrictions on the processing of sensitive data, as defined in the bill, or the processing of a child's personal data.
Additionally, the bill requires a controller that processes personal data for purposes of targeted advertising, the sale of personal data, or profiling in furtherance of decisions that produce legal or similarly significant effects concerning a consumer to allow consumers to exercise the right to opt-out of such processing through a user-selected universal opt-out mechanism. The bill permits a consumer to authorize another person to act on the consumer's behalf to opt out of the sale of personal data. The bill prohibits a controller from discriminating against a consumer if the consumer chooses to opt out of the processing for sale, targeted advertising, or profiling in furtherance of decisions that produce legal or similarly significant effects of the consumer's personal data, provided certain exceptions.
The bill requires a controller to complete data protection assessments, as described in the bill, and to make such assessments available to the Division of Consumer Affairs.
The bill provides that a processor, in addition to a controller, has certain duties under the bill. A processor is required to cooperate with a controller so that a controller remains in compliance with the bill.
Under the bill, the consumers of a controller may submit a verified request to exercise any rights established under the bill. The bill requires a controller to respond to each verified request within 45 days, except as extended in certain circumstances. Any information provided in response to a verified request would be provided free of charge, except that a controller may charge a fee for a second or subsequent request submitted within a 12-month period. The bill also requires a controller to establish a process for consumers to appeal the controller's refusal to take action on a request.
The bill also establishes certain consumer rights concerning personal data, including the right to: confirm whether a controller may process or access the consumer's personal data; correct inaccuracies in the consumer's personal data; delete personal data concerning the consumer; obtain a copy of the consumer's personal data held by the controller in a portable format; and opt out of the processing of personal data for the purposes of (i) targeted advertising; (ii) the sale of personal data; or (iii) profiling in furtherance of decisions that produce legal or similarly significant effects concerning the consumer.
