March 2024

1. Governing Texts

The Act relative to the expectation of privacy ('the Act') was signed by the Governor of New Hampshire on March 6, 2024. The Act will take effect on January 1, 2025.

1.1. Key acts, regulations, directives, bills

• the Act

1.2. Guidelines

The New Hampshire Attorney General (AG) has not issued any guidelines on the Act.

1.3. Case law

Not applicable.

2. Scope of Application

2.1. Personal scope

The Act applies to persons that conduct business in New Hampshire or persons that produce products or services that are targeted to residents of the state that during a one-year period (§507-H:2 of the Act):

• controlled or processed the personal data of not less than 35,000 unique consumers, excluding personal data controlled or processed solely for the purpose of completing a payment transaction; or

• controlled or processed the personal data of not less than 10,000 unique consumers and derived more than 25% of their gross revenue from the sale of personal data.

The Act clarifies that it does not apply to (§507-H:3(I) of the Act):

• body, authority, board, bureau, commission, district or agency of the State of New Hampshire or of any political subdivision of New Hampshire;

• non-profit organizations;

• institutions of higher education;

• national securities association that is registered under §78o-3 of the Securities Exchange Act of 1934, as amended;

• financial institution or data subject to Title V of the Gramm-Leach-Bliley Act, 15 U.S.C. 6801 et seq.; or

• a covered entity or business associate, as defined in Part 160.103(b) of Subchapter C of Subtitle A of Title 45 of the Code of Federal Regulation ('C.F.R.')

2.2. Territorial scope

The Act applies to persons that conduct business in New Hampshire or persons that produce products or services that are targeted to residents of the State (§507-H:2 of the Act).

2.3. Material scope

This Act applies to personal data. Personal data is defined as any information that is linked or reasonably linkable to an identified or identifiable individual.

The Act does not apply to information including (§507-H:3 (II) of the Act):

• protected health information under the Health Insurance Portability and Accountability Act of 1996 ('HIPAA');

• patient-identifying information for purposes of §290dd–2 of Part D Subchapter III- A of Chapter 6A of Title 42 of the U.S. Code;

• identifiable private information for purposes of the federal policy for the protection of human subjects under Part 46 of Subchapter A of Subtitle A of Title 45 of the C.F.R.;

• identifiable private information that is otherwise information collected as part of human subjects research pursuant to the good clinical practice guidelines issued by the International Council for Harmonization of Technical Requirements for Pharmaceuticals for Human Use;

• information and documents created for purposes of the Health Care Quality Improvement Act of 1986;

• information derived from any of the health care-related information listed in this subsection that is de-identified in accordance with the requirements for de-identification pursuant to HIPAA;

• the collection, maintenance, disclosure, sale, communication or use of any personal information bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics or mode of living by a consumer reporting agency, furnisher or user that provides information for use in a consumer report, and by a user of a consumer report, but only to the extent that such activity is regulated by and authorized under the Fair Credit Reporting Act;

• personal data collected, processed, sold or disclosed in compliance with the Driver's Privacy Protection Act of 1994;

• personal data regulated by the Family Educational Rights and Privacy Act;

• personal data collected, processed, sold or disclosed in compliance with the Farm Credit Act; and

• data processed or maintained in the course of an individual applying to, employed by or acting as an agent or independent contractor of a controller, processor or third party, to the extent that the data is collected and used within the context of that role; as the emergency contact information of an individual under the Act is used for emergency contact purposes; or, that is necessary to retain to administer benefits for another individual relating to the individual who is the subject of the information under HIPPA and used to administer such benefits. 

Furthermore, §507-H:10 (V)(b) of the Act provides that the Act does not apply to any person's processing of personal data in the course of such person's purely personal or household activities.

3. Data Protection Authority | Regulatory Authority 

3.1. Main regulator for data protection

The New Hampshire AG is the regulator for the Act

3.2. Main powers, duties and responsibilities

The New Hampshire AG has exclusive authority to enforce violations under the Act (§507-H:11(I) of the Act).

4. Key Definitions

Data controller: individual who, or legal entity that, alone or jointly with others determines the purpose and means of processing personal data (§507-H:1(IX) of the Act).

Data processor: individual who, or legal entity that, processes personal data on behalf of a controller (§507-H:1(XXII) of the Act).

Personal data: any information that is linked or reasonably linkable to an identified or identifiable individual, and does not include de-identified data or publicly available information (§507-H:1(XIX) of the Act).

Sensitive data: personal data that includes data revealing racial or ethnic origin, religious beliefs, mental or physical health condition or diagnosis, sex life, sexual orientation or citizenship or immigration status; the processing of genetic or biometric data for the purpose of uniquely identifying an individual; personal data collected from a known child; or precise geolocation data (§507-H:1(XXVIII) of the Act).

Health data: the Act does not provide for a specific definition for the term 'health data' but notes that 'protected health information' has the same meaning as provided in HIPAA.

Biometric data: means data generated by automatic measurements of an individual's biological characteristics, such as a fingerprint, a voiceprint, eye retinas, irises or other unique biological patterns, or characteristics that are used to identify a specific individual. Biometric data does 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 (§507-H:1(IV) of the Act).

Pseudonymization: the Act does not define 'pseudonymization' however, 'pseudonymous data' is defined as personal data that cannot be attributed to a specific individual without the use of additional information, provided such additional information is kept separately and is subject to appropriate technical and organizational measures to ensure that the personal data is not attributed to an identified or identifiable individual (§507-H:1(XXV) of the Act).

5. Legal Bases

According to the Act, personal data processed by controllers may be processed to the extent that such processing is reasonably necessary and proportionate, as well as adequate, relevant, and limited to what is necessary (§507-H:10(VI) of the Act).

5.1. Consent

Consent is defined as 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 (§507-H:1(VII) of the Act).

Consent does 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

• an agreement obtained through the use of deceptive design patterns.

When processing personal data for purposes that are neither reasonably necessary to, nor compatible with, the disclosed purposes for processing, controllers must obtain the consumer's consent (§507-H:6(I)(b) of the Act).

Controllers must also not process personal data for purposes of targeted advertising or sell the consumer's personal data without the consumer's consent, under circumstances where a controller has actual knowledge, and willfully disregards, that the consumer is at least 13 years of age but younger than 16 years of age (§507-H:6(I)(g) of the Act).

§507-H:6(I)(f) of the Act provides that controllers must provide an effective mechanism for consumers to revoke their consent that is at least as easy as the mechanism by which the consumer provided their consent and, upon revocation of such consent, cease to process the personal data as soon as practicable, but not later than 15 days after the receipt of such request.

5.2. Contract with the data subject

The Act does not specifically provide that personal data can be processed for the performance of a contract with a consumer. However, the Act provides that nothing may restrict a controller or a processor to provide a product or service requested by a consumer or perform under a contract to which a consumer is a party, including fulfilling the terms of a written warranty (§507-H:10(I)(f) of the Act). The Act also provides that nothing may restrict a controller or processor to take steps at the request of a consumer prior to entering into a contract (§507-H:10(I)(g) of the Act).

5.3. Legal obligations

The Act does not specifically provide that personal data can be processed based on legal obligations. However, the Act provides that nothing may restrict a controller or a processor to (§507-H:10(I)(a)-(d) of the Act):

• comply with federal, state or municipal ordinances or regulations;

• comply with a civil, criminal or regulatory inquiry, investigation, subpoena, or summons by federal, state, municipal, or other governmental authorities;

• 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; and

• investigate, establish, exercise, prepare for or defend legal claims.

5.4. Interests of the data subject

The Act does not specifically provide that personal data can be processed based on the interest of consumers. However, the Act provides that nothing may restrict a controller or processor to 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 (§507-H:10(I)(h) of the Act).

Furthermore, the Act provides that the obligations imposed on controllers or processors shall not restrict a controller's or processor's ability to collect, use or retain data for internal use to 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 (§507-H:10(II)(d) of the Act).

5.5. Public interest

The Act does provide that nothing may restrict the ability of the controller and processor to process personal data for reasons of the public interest in the area of public health, community health, or population health, but solely to the extent that processing is (§507-H:10(I)(L) of the Act):

• subject to suitable and specific measures to safeguard the rights of the consumer whose personal data is being processed; and

• under the responsibility of a professional subject to confidentiality obligations under federal, state, or local law.

Additionally, the Act provides that it does not restrict a controller or processor's ability to 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 (§507-H:10(I)(j) of the Act):

• whether the deletion of the information is likely to provide substantial benefits that do not exclusively accrue to the controller;

• the expected benefits of the research outweigh the privacy risks; and

• whether the controller has implemented reasonable safeguards to mitigate privacy risks associated with research, including any risks associated with re-identification;

5.6. Legitimate interests of the data controller

The Act does not specifically provide that personal data can be processed based on the legitimate interests of a data controller. However, the Act provides that controllers and processors can 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 (507-H:10(I)(i) of the Act).

Furthermore, the Act provides that the obligations imposed on controllers or processors shall not restrict a controller's or processor's ability to collect, use or retain data for internal use to (§507-H:10(II)(a)-(c) of the Act)

• conduct internal research to develop, improve, or repair products, services, or technology;

• effectuate a product recall; or

• identify and repair technical errors that impair existing or intended functionality.

5.7. Legal bases in other instances

The Act provides that its requirements do not restrict a controller or processor's ability to assist another controller, processor, or third party with any obligations under the Act (§507-H:10(I)(k) of the Act).

Additionally, the Act stipulates that controllers or processors are not required to comply with the provisions of the Act in cases where compliance by the controller or processor would violate an evidentiary privilege under the laws of New Hampshire. Controllers or processors are not forbidden from providing personal data concerning a consumer to a person covered by an evidentiary privilege under the laws of New Hampshire as part of a privileged communication (§507-H:10(III) of the Act).

6. Principles

The following principles apply to personal data processing by controllers (§507-H:6(I)(a)-(c) of the Act):

Data minimization: Controllers must 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.

Purpose limitation: Controllers must not process personal data for purposes that are neither reasonably necessary to, nor compatible with, the disclosed purposes for which such personal data is processed, as disclosed to the consumer, unless the controller obtains the consumer's consent.

Confidentiality and integrity: Controllers must establish, implement and maintain reasonable administrative, technical and physical data security practices to protect the confidentiality, integrity and accessibility of personal data appropriate to the volume and nature of the personal data at issue.

7. Controller and Processor Obligations

Under the Act, controllers and processors have specific obligations with regard to de-identified data. Controllers in possession of de-identified data must (§507-H:9(I) of the Act):

• take reasonable measures to ensure that the data cannot be associated with an individual;

• publicly commit to maintaining and using de-identified data without attempting to reidentify the data; and

• contractually obligate any recipients of the de-identified data to comply with all provisions of the Act.

Furthermore, nothing in the Act shall be construed to require a controller or processor to re-identify de-identified data or pseudonymous data or maintain data in identifiable form, or collect, obtain, retain, or access any data or technology, in order to be capable of associating an authenticated consumer request with personal data (§507-H:9(II) of the Act).

In addition, nothing in the Act shall be construed to require a controller or processor to comply with an authenticated consumer rights request if the controller (§507-H:9 (III) of the Act):

• is not reasonably capable of associating the request with the personal data or it would be unreasonably burdensome for the controller to associate the request with the personal data;

• does not use the personal data to recognize or respond to the specific consumer who is the subject of the personal data, or associate the personal data with other personal data about the same specific consumer; and

• does not sell the personal data to any third party or otherwise voluntarily disclose the personal data to any third party other than a processor, except as otherwise permitted.

Furthermore, controllers that disclose pseudonymous data or de-identified data must exercise reasonable oversight to monitor compliance with any contractual commitments to which the pseudonymous data or de-identified data is subject and must take appropriate steps to address any breaches of those contractual commitments (§507-H:9(V) of the Act).

7.1. Data processing notification

The Act does not specifically provide for data processing notification.

7.2. Data transfers

The Act does not specifically address cross-border data transfers but defines the 'sale of personal data' as the exchange of personal data for monetary or other valuable consideration by the controller to a third party. This does not include (§507-H:1(XXVII) of the Act):

• the disclosure of personal data to a processor that processes the personal data on behalf of the controller;

• 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 where the consumer directs the controller to disclose the personal data or intentionally uses the controller to interact with a third party;

• the disclosure of personal data that the consumer intentionally made available to the general public via a channel of mass media, 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 merger, acquisition, bankruptcy or other transaction, or a proposed merger, acquisition, bankruptcy or other transaction, in which the third party assumes control of all or part of the controller's assets.

Furthermore, a controller or processor that discloses personal data to a processor or third-party controller in accordance with the Act shall not be deemed to have violated the same if the processor or third-party controller that receives and processes such data violates the Act, provided, at the time the disclosing controller or processor disclosed such personal data, the disclosing controller or processor did not have actual knowledge that the receiving processor or third-party controller would violate the Act (§507:H-10(IV) of the Act).

Additionally, a third-party controller or processor receiving personal data from a controller or processor in compliance with the Act is likewise not in violation of said sections for the transgressions of the controller or processor from which such third-party controller or processor receives such personal data (§507:H-10(IV) of the Act).

7.3. Data processing records

The Act does not specifically oblige controllers or processors to create and maintain data processing records. 

7.4. Data protection impact assessment

Controllers must conduct a DPA for each of its processing activities that presents a heightened risk of harm to a consumer (§507-H:8(I) of the Act). The following processing activities present a heightened risk of harm to a consumer:

• the processing of personal data for the purposes of targeted advertising;

• the sale of personal data;

• the processing of personal data for the purposes of profiling, where such profiling presents a reasonably foreseeable risk of unfair or deceptive treatment of, or unlawful disparate impact on, consumers, financial, physical or reputational injury to consumers, a physical or other intrusion upon the solitude or seclusion, or the private affairs or concerns, of consumers, where such intrusion would be offensive to a reasonable person, or other substantial injury to consumers; and

• the processing of sensitive data.

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 such processing, as mitigated by safeguards that can be employed by the controller to reduce such risks (§507-H:8(II) of the Act).

Controllers must factor into assessments (§507-H:8(II) of the Act):

• the use of de-identified data;

• the reasonable expectations of consumers; and

• the context of the processing and the relationship between the controller and the consumer whose personal data will be processed.

Data protection assessment requirements will apply to processing activities created or generated after July 1, 2024, and are not retroactive (§507-H:8 (VI) of the Act). Additionally, a single assessment may address a comparable set of processing operations that includes similar activities (§507-H:8 (IV) of the Act).

Additionally, if a controller conducts a data protection assessment for the pupose of complying with another applicable law or regulation, the data protection assessment shall be deemed to satisfy the requirements under the Act if it is reasonably similar in scope and effect to the data protection assessment that would otherwise be conducted pursuant to the Act (§507-H:8 (V) of the Act).

7.5. Data protection officer appointment

The Act does not specifically address data protection appointments.

7.6. Data breach notification

The Act does not specifically provide for breach notification requirements. However, in accordance with §507-H:7(I)(b) of the Act, processors must assist controllers in meeting the obligations of the controller in relation to the notification of a breach of security or of the system of the processor.

Please see our New Hampshire - Data Breach for further information

7.7. Data retention

The Act does not specifically address data retention.

7.8. Children's data

The Act adopts the same definition of the term 'child' under COPPA, which considers a child as an individual younger than 13 years of age. The personal data collected from a known child is considered a category of 'sensitive data' (§507-H:1(XXVIII) of the Act).

Additionally, §507-H:6(I)(d) of the Act provides that controllers must not process the sensitive data of a known child without processing such data in accordance with COPPA.

§507-H:4(II) of the Act provides that in the case of processing personal data of a known child, the parent or legal guardian may exercise such consumer rights on the child's behalf.

7.9. Special categories of personal data

Controllers must not process sensitive data without obtaining the consumer's consent, or, in the case of processing the sensitive data of a known child, without processing such data in accordance with COPPA (§507-H:6(I)(d) of the Act).

Please see the definition of sensitive data in the definitions section above.

7.10. Controller and processor contracts

§507-H:7(I) of the Act states that processors must adhere to the instructions of a controller and shall assist the controller in meeting the controller's obligations under the Act and that this assistance includes:

• taking into account the nature of processing and the information available to the processor, by appropriate technical and organizational measures, insofar as is reasonably practicable, to fulfill the controller's obligation to respond to consumer rights requests;

• taking into account the nature of processing and the information available to the processor, by assisting the controller in meeting the controller's obligations in relation to the security of processing the personal data and in relation to the notification of a breach of security or of the system of the processor, in order to meet the controller's obligations; and

• providing necessary information to enable the controller to conduct and document data protection assessments.

Regarding contracts between controllers and processors, §507-H:7(II) of the Act states that a contract between a controller and a processor shall govern the processor's data processing procedures with respect to processing performed on behalf of the controller.

This contract is binding and clearly set forth the following:

• instructions for processing data;

• the nature and purpose of processing;

• the type of data subject to processing;

• the duration of processing and the rights and obligations of both parties;

In addition, the contract must require:

• the processor to ensure that each person processing personal data is subject to a duty of confidentiality with respect to the data;

• at the controller's discretion, 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;

• upon the reasonable request of the controller, make available to the controller all information in its possession necessary to demonstrate the processor's compliance with the Act;

• after providing the controller an opportunity to object, engage any subcontractor pursuant to a written contract that requires the subcontractor to meet the obligations of the processor with respect to the personal data; and

• allow, and cooperate with, reasonable assessments by the controller or the controller's designated assessor, or the processor may arrange for a qualified and independent assessor to conduct an assessment of the processor's policies and technical and organizational measures in support of the obligations under the Act, using an appropriate and accepted control standard or framework and assessment procedure for such assessments. The processor shall provide a report of such assessment to the controller upon request.

According to §507-H:7(III) of the Act, controllers or processors are not relieved from the liabilities imposed on the controller or processor by virtue of such controller's or processor's role in the processing relationship, as described by the Act.

Determining whether a person is acting as a controller or processor with respect to a specific processing of data is a fact-based determination that depends upon the context in which personal data is to be processed. A person that is not limited in such person's processing of personal data pursuant to a controller's instructions, or who fails to adhere to such instructions, is 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 remains a processor. If a processor begins, alone or jointly with others, determining the purposes and means of the processing of personal data, the processor is a controller with respect to such processing and may be subject to enforcement action (§507-H:7(IV) of the Act)

8. Data Subject Rights

Under the Act, consumers may exercise their rights by a secure and reliable means established by the secretary of state and described to the consumer in the controller's privacy notice (§507-H:4(II) of the Act).The Act states a controller must not discriminate against a consumer for exercising any of the consumer rights, including denying goods or services, charging different prices or rates for goods or services or providing a different level of quality of goods or services to the consumer (§507-H:6(I)(g) of the Act).

Regarding processing the personal data of a known child, the parent or legal guardian may exercise such rights on behalf of the child (§507-H:4(II) of the Act).

In the case of processing the personal data of a consumer subject to a guardianship, conservatorship, or other protective arrangement, the guardian or the conservator of the consumer may exercise such rights on behalf of that consumer (§507-H:4(II) of the Act).

Response time

Under the Act, controllers must respond to the consumer without undue delay, but not later than 45 days after receipt of the request. This may be extended by an additional 45 days when reasonably necessary, considering the complexity and number of the consumer's requests, provided the controller informs the consumer of any such extension within the initial 45-day response period and the reason for the extension (§507:H-4(III)(a) of the Act).

Authentication

If a controller is unable to authenticate a request to exercise any consumer rights using commercially reasonable efforts, the controller shall not be required to comply with a request to initiate an action and must provide notice to the consumer that the controller is unable to authenticate the request until the consumer provides the additional information reasonably necessary to authenticate the consumer and their request to exercise their rights (§507:H-4(III)(d) of the Act).

Declining requests and appeals

If a controller declines to take action regarding a consumer's request, the controller shall inform the consumer without undue delay, but not later than 45 days after the receipt of the request, of the justification for declining to take action and instructions on how to appeal the decision (§507:H-4(III)(b) of the Act).

Information provided in response to a consumer request must be provided free of charge, once per consumer during any 12-month period. 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 bears the burden of demonstrating the manifestly unfounded, excessive, or repetitive nature of the request (§507:H-4(III)(c) of the Act).

Appeals

Controllers must 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 60 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 methods through which the consumer may contact the New Hampshire AG to submit a complaint (§507:H-4(IV) of the Act).

Exceptions 

This does not apply to pseudonymized data in cases where the controller is able to demonstrate that any information necessary to identify the consumer is kept separately and is subject to effective technical and organizational controls that prevent the controller from accessing such information (§507-H:9(IV) of the Act)

8.1. Right to be informed

Controllers must provide consumers with a reasonably accessible, clear, and meaningful privacy notice (§507-H:6(III) of the Act). The privacy notice must include:

• the categories of personal data processed by the controller;

• the purposes for processing personal data;

• how consumers may exercise their consumer rights, including how a consumer may appeal a controller's decision with regard to the consumer's request;

• the categories of personal data the controller shares with third parties, if any;

• the categories of third-parties, if any, with which the controller shares personal data; and

• an active electronic mail address or other online mechanism that the consumer may use to contact the controller.

Furthermore, if a controller sells the personal data of a consumer to third parties or processes personal data for targeted advertising, the controller must clearly and conspicuously disclose such processing, as well as the manner in which a consumer may exercise the right to opt-out of such processing. (§507-H:6(IV) of the Act)

Additionally, controllers must establish and describe one or more secure and reliable means for consumers to submit a request to exercise their consumer rights in the privacy notice (§507:H6(V) of the Act).

8.2. Right to access

Consumers have the right to be able to confirm whether or not a controller is processing the consumer's personal data and access such personal data, unless such confirmation or access would require the controller to reveal a trade secret (§507-H:4(I)(a) of the Act)

8.3. Right to rectification

Consumers have the right to correct inaccuracies in the consumer's personal data, taking into account the nature of the personal data and the purposes of the processing of the consumer's personal data (§507-H:4 (I)(b) of the Act)

8.4. Right to erasure

Consumers have a right to request personal data provided by or obtained about them to be deleted (§507-H:4(I)(c) of the Act)

Furthermore, a controller that has 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 by 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 data for any other purpose, or opting the consumer out of the processing of such personal data (§507:H-4(III)(e) of the Act).

8.5. Right to object/opt-out

Under the Act, consumers have the right to opt-out of the processing of personal data for the purposes of (§507-H:4 (I)(e) of the Act):

• targeted advertising;

• the sale of personal data with exception to cases when a consumer's decision to opt-out of the sale of such personal data conflicts with the consumer's existing controller-specific privacy setting or voluntary participation in a controller's bona fide loyalty, rewards, premium features, discounts, or club card program, as mentioned in §507-H:6 of the Act; or

• profiling in furtherance of solely automated decisions that produce legal or similarly significant effects concerning the consumer.

As mentioned in the section on the right to be informed, controllers must establish and describe one or more secure and reliable means for consumers to submit a request to exercise their consumer rights in the privacy notice. This can include the following (§507-H:6 (V)(a)(1)(A) and (V)(a)(1)(B) of the Act):

• providing a clear and conspicuous link on the controller's website to a webpage that enables a consumer or an agent of the consumer to opt-out of targeted advertising or the sale of their personal data; or

• through an opt-out preference signal sent, with the consumer's consent, by a platform, technology, or mechanism to the controller indicating such consumer's intent to opt-out of any such processing or sale of data no later than January 1, 2025. Such platform, technology, or mechanism must:

  • not unfairly disadvantage another controller;

  • not make use of a default setting but, rather, require the consumer to make an affirmative, freely given, and unambiguous choice to opt-out of any processing of such consumer's personal data;

  • be consumer-friendly and easy to use by the average consumer;

  • be as consistent as possible with any other similar platform, technology, or mechanism required by any federal or state law or regulation; and

  • enable the consumer to accurately determine whether the consumer is a resident of New Hampshire and whether the consumer has made a legitimate request to opt-out of any sale of their personal data or targeted advertising.

If a controller responds to a consumer opt-out request received pursuant to the aforementioned by informing the consumer of a charge for the use of any product or service, the consumer shall present the terms of any financial incentive offered for the retention, use, sale, or sharing of the consumer's personal data (§507-H:6(V)(b) of the Act).

8.6. Right to data portability

Consumers are able to obtain a copy of the consumer's personal data processed 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 controller without hindrance, where the processing is carried out by automated means, provided such controller will not be required to reveal any trade secret (§507-H:4(I)(d) of the Act)

8.7. Right not to be subject to automated decision-making

Under the Act, 'profiling' is defined as 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 (§507-H:1(XXIII) of the Act).

As mentioned above in the section on the right to object/opt-out, consumers have the right to opt-out of the processing of personal data for the purposes of profiling in furtherance of solely automated decisions that produce legal or similarly significant effects concerning the consumer (§507-H:4(I)(e) of the Act).

8.8. Other rights

Not applicable.

9. Penalties

§507-H:11 (I) of the Act states that the New Hampshire AG has exclusive authority to enforce violations of the Act. The New Hampshire AG shall and may, between the period of January 1, 2025, to December 31, 2025, prior to initiating any action for a violation under the Act, issue a notice of violation to the controller if the New Hampshire AG determines that a cure is possible (§507-H:11(II) of the Act).

From January 1, 2026, the New Hampshire AG, in determining whether to grant a controller or processor the opportunity to cure an alleged violation described under the Act, the New Hampshire AG may consider:

• the number of violations;

• the size and complexity of the controller or processor;

• the nature and extent of the controller's or processor's processing activities;

• the substantial likelihood of injury to the public;

• the safety of persons or property; and

• whether such alleged violation was likely caused by human or technical error.

Lastly, the Act states that it does not provide the basis for, or be subject to, a private right of action for violations under the Act or any other law (§507-H:11(IV) of the Act).

9.1 Enforcement decisions

Not applicable.