April 2024

1. Governing Texts

On April 4, 2024, the Governor of Kentucky signed the Kentucky Consumer Data Protection Act (KCDPA). The KCDPA will enter into effect on January 1, 2026.

1.1. Key acts, regulations, directives, bills

On April 4, 2024, the Governor of Kentucky signed the Kentucky Consumer Data Protection Act (KCDPA). The KCDPA will enter into effect on January 1, 2026.

1.2. Guidelines

Not applicable.

1.3. Case law

Not applicable.

2. Scope of Application

2.1. Personal scope

The KCDPA applies to persons that conduct business in Kentucky or produce products or services that are targeted to residents in Kentucky and that during a calendar year control or process personal data of at least (§2(1) of the KCDPA):

• 100,000 consumers; or

• 25,000 consumers and derive over 50 percent of gross revenue from the sale of personal data.

The KCDPA does not apply to any (§2(2) of the KCDPA):

• city, state agency, or any political subdivision of the state;

• financial institutions, their affiliates, or data subject to Title V of the federal Gramm-Leach-Bliley Act (GLBA);

• covered entity or business associate governed by the privacy, security, and breach notification rules issued by the U.S. Department of Health and Human Services and established pursuant to the Health Insurance Portability and Accountability Act (HIPAA);

• non-profit organizations;

• institutions of higher education;

• organizations that:

  • do not provide net earnings to, or operate in any manner that benefits any of the officers, employees, or shareholders of the entity; and

  • is an entity such as those recognized under Chapter 304.47-060(1)(3) Kentucky Revised Statutes, so long as the entity collects, processes, uses, or shares data solely in relation to identifying, investigating, or assisting:

    •  law enforcement agencies in connection with suspected insurance-related criminal or fraudulent acts; or

    • first responders in connection with catastrophic events; or

• small telephone entities as defined in Chapter 278.516 Kentucky Revised Statutes, a Tier III commercial mobile radio service (CMRS) provider as defined in Chapter 65.7621 of the Kentucky Revised Statutes, or a municipality-owned utility that does not sell or share personal data with any third-party processor.

2.2. Territorial scope

The KCDPA applies to persons who conduct business in Kentucky or produce products or services that are targeted to residents of Kentucky (§2(1) of the KCDPA).

2.3. Material scope

The KCDPA outlines that it shall not be construed as an obligation imposed on controllers and processors that adversely affects the privacy or other rights or freedoms of any persons, including but not limited to the right of free speech pursuant to the First Amendment of the U.S. Constitution, or applies to the processing of personal data by a person in the course of purely personal or household activities (§8(5) of the  KCDPA).

The KCDPA does not apply to data or information that is (§2(3) of the KCDPA):

• protected health information under HIPPA;

• health records;

• patient identifying information for purposes of § 2.11 of Title 42 of the Code of Federal Regulations (CFR) ;

• identifiable private information for purposes of the federal policy for the protection of human subjects under Part 46 of the CFR;

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

• patient safety work product for purposes of the federal Patient Safety and Quality Improvement Act of 2005;

• the collection, maintenance, disclosure, sale, communication, or use of any personal information bearing on a consumer's creditworthiness, 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 federal Fair Credit Reporting Act (FCRA);

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

• personal data regulated by the federal Family Educational Rights and Privacy Act 1974; and

• data processed or maintained:

  1. in the course of an individual applying to or 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;

  2. as the emergency contact information of an individual used for emergency contact purposes; or

  3. that is necessary to retain to administer benefits for another individual as outlined in point one and used for the purposes of administering those benefits.

3. Data Protection Authority | Regulatory Authority 

3.1. Main regulator for data protection

The Kentucky Attorney General (AG) is the regulator responsible for enforcement of the KCDPA (§9(1) of the KCDPA).

3.2. Main powers, duties and responsibilities

The AG will have exclusive authority to enforce violations of the KCDPA. The AG may enforce the KCDPA by bringing an action in the name of the Commonwealth of Kentucky or on behalf of persons residing in the Commonwealth. The KCDPA also states that the AG will have all powers and duties granted to the AG under Chapter 15 of the Kentucky Revised Statutes to investigate and prosecute any violation of the KCDPA. The AG may demand any information, documentary material, or physical evidence from any controller or processor believed to be engaged in, or about to engage in, any violation of the KCDPA (§9(1) of the KCDPA).

4. Key Definitions

Data controller: A controller is defined as a natural or legal person who, alone or jointly with others, determines the purpose and means of processing personal data (§1(8) of the KCDPA).

Data processor: Is defined as a natural or legal entity that processes personal data on behalf of a controller (§1(22) of the KCDPA).

Personal data: Is defined as any information that is linked or reasonably linkable to an identified or identifiable natural person. Personal data does not include de-identified data or publicly available information (§1(19) of the KCDPA).

Sensitive data: Is defined as a category of personal data that includes (§1(28) of the KCDPA).

• personal data indicating racial or ethnic origin, religious beliefs, mental or physical health diagnosis, sexual orientation, or citizenship or immigration status;

• the processing of genetic or biometric data that is processed for the purpose of uniquely identifying a specific natural person;

• the personal data collected from a known child; or

• precise geolocation data.

Health data: The KCDPA defines a 'health record' as a record, other than for financial or billing purposes, relating to an individual, kept by a health care provider as a result of the professional relationship established between the health care provider and the individual (§1(13) of the KCDPA).

Biometric data: Is defined as data generated by automatic measurements of an individual's biological characteristics, such as a fingerprint, 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 physical or digital photograph, a video or audio recording, or data generated therefrom, unless that data is generated to identify a specific individual or information collected, used, or stored for health care treatment, payment, or operations under Health Insurance Portability and Accountability Act (HIPPA) (§1(3) of the KCDPA).

Pseudonymization: 'Pseudonymous data' is defined as personal data that cannot be attributed to a specific natural person without the use of additional information, provided that the 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 natural person (§1(25) of the KCDPA).

5. Legal Bases

Personal data processed under the KCDPA shall not be processed for any purpose other than those expressly listed under Section 8 of the KCDPA unless otherwise allowed by the KCDPA. Personal data processed by a controller under this section may be processed to the extent that such processing is (§8(6) of the KCDPA):

• reasonably necessary and proportionate to the purposes listed in the KCDPA; and

• adequate, relevant, and limited to what is necessary in relation to the specific purposes listed in the KCDPA.

Furthermore, personal data collected, used, or retained shall, where applicable, take into account the nature and purpose(s) of such collection, use, or retention. The data shall be subject to reasonable administrative, technical, and physical measures to protect the confidentiality, integrity, and accessibility of personal data and to reduce reasonably foreseeable risks of harm to consumers relating to the collection, use, or retention of personal data (§8(6) of the KCDPA).

If a controller processes personal data pursuant to an exemption outlined in the KCDPA, the controller bears the burden of demonstrating that such processing qualifies for the exemption and complies with the necessary requirements (§8(7) of the KCDPA).

5.1. Consent

'Consent' is defined as a clear affirmative act signifying a consumer's freely given, specific, informed, and unambiguous agreement to process personal data relating to the consumer. Consent may include a written statement, written by electronic means, or any other unambiguous affirmative action (§1(6) of the KCDPA).

In particular, the KCDPA provides that outlines that a controller must except as otherwise provided in the KCDPA, not process personal data for purposes that are neither reasonably necessary to nor compatible with the disclosed purposes for which the personal data is processed as disclosed to the consumer, unless the controller obtains the consumer's consent (§4(b) of the KCDPA).

Sensitive Data

Controllers must not process sensitive data concerning a consumer without obtaining the consumer's consent or, in the case of the processing of sensitive data collected from a known child, process the data in accordance with the COPPA (§4(1)(e) of the KCDPA).

5.2. Contract with the data subject

The KCDPA states that any provision of a contract that attempts to limit the rights provided in the KCDPA will be void and unenforceable (§4(2) of the KCDPA). The KCDPA also highlights that nothing within the section may restrict a controller or processor from providing a service or product to a consumer or legal guardian or performing a contract (§8(2) of the KCDPA).

5.3. Legal obligations

The requirements under the KCDPA do not interfere with a controller's or processor's ability to (§8(2) of the KCDPA):

• comply with federal, state, or local laws;

• comply with civil, criminal, or regulatory inquiries, subpoenas, or summons, by federal, state, local, or other government authorities;

• cooperate with law enforcement agencies concerning conduct or activities that may violate federal, state, or local laws, rules, or regulations; and

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

5.4. Interests of the data subject

The KCDPA outlines that nothing may restrict a controller or processor from taking immediate steps to protect an interest that is essential for the life or physical safety of the consumer or another natural person, and where the processing cannot be manifestly based on another legal basis (§8(2) of the KCDPA).

5.5. Public interest

The KCDPA states that the obligations should not prohibit controllers or processors from engaging in public or peer-reviewed scientific or statistical research in the public interest as detailed in the KCDPA (§8(1) of the KCDPA).

The KCDPA mentions it should not be construed to 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, or similar independent oversight entities that determine §8(1) of the KCDPA):

• if 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

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

The KCDPA also does not prevent a controller or processor from assisting another controller, processor, or third party with any required obligations under the section (§8(1) of the KCDPA).

5.6. Legitimate interests of the data controller

The KCDPA states that it shall not be construed to restrict a controller or processor's ability to 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 incidents (§8(1) of the KCDPA).

5.7. Legal bases in other instances

The obligations imposed on controllers or data processors under the KCDPA do not apply where compliance would violate an evidentiary privilege under Kentucky law or prevent a controller or processor from providing personal data concerning a consumer to a person covered by an evidentiary privilege under Kentucky law as part of a privileged communication (§8(3) of the KCDPA).

6. Principles

The KCDPA outlines data protection principles including (§4 of the KCDPA):

• Data minimization: Controllers must limit the collection of personal data to what is considered adequate, relevant, and reasonably necessary for the purposes for which the data is processed as disclosed to the consumer.

• Purpose limitation: Controllers must not process personal data for purposes that are neither reasonably necessary nor compatible with the disclosed purposes for which the 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.

A controller must not discriminate against a consumer for exercising any of the consumer rights contained in the KCDPA, including denying goods or services, charging different prices or rates for goods or services, or providing a different level of quality of goods and services to the consumer. The KCDPA also mentions that nothing in the legislation must be construed to require a controller to provide a product or service that requires the personal data of a consumer that the controller does not collect or maintain, or to prohibit a controller from offering a different price, rate, level, quality, or selection of goods or services to a consumer, including an offer of goods or services for no fee if the offer is related to a consumer's voluntary participation in a bona fide loyalty, rewards, premium features, discounts, or club card program (§4 of the KCDPA).

Sensitive Data

According to the KCDPA a controller shall not process sensitive data concerning a consumer without obtaining the consumer's consent, or, in the case of the processing of sensitive data collected from a known child, data should be processed in accordance with COPPA.

7. Controller and Processor Obligations

The KCDPA also should not be construed to require a controller or processor to comply with an authenticated consumer rights request according to §3 of the KCDPA if for (§7(3) of the KCDPA):

• the controller 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; and

• the controller 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.

De-identified data and pseudonymous data

When processing de-identified data, the controller in possession of the data is responsible for (§7(1) of the KCDPA):

• taking reasonable measures to ensure the data cannot be associated to a natural person;

• making a public commitment to maintain and use de-identified data and making no attempts to re-identify the data; and

• contractually obligating any third parties who receive the de-identified data to comply with the KCDPA.

The KCDPA should not be construed to require a controller or processor to for (§7(2) of the KCDPA):

• 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.

A controller that discloses pseudonymous data or de-identified data shall exercise reasonable oversight to monitor compliance with any contractual commitments to which the pseudonymous data or de-identified data is subject and shall take appropriate steps to address any breaches of those contractual commitments (§7(5) of the KCDPA).

7.1. Data processing notification

 Not applicable.

7.2. Data transfers

The KCDPA does not specifically address data transfers, but defines the 'sale of personal data' as the means of exchange of personal data for monetary consideration by the controller to a third party, except for activities that include (§1(27) of the KCDPA):

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

• disclosure of personal data to a third party for the purposes of providing a product or service requested by the consumer;

• disclosure or transfer of personal data to an affiliate of the controller;

• disclosure of information that the consumer has intentionally made available to the general public via the mass media and did not restrict to a specific audience; or

• 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.

Furthermore, the KCDPA states that a controller or processor that discloses personal data to a processor or third-party controller in accordance with the legislation shall not be deemed to have violated the same if the processor or third-party controller that receives and processes such personal data violates said sections, 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 intended to commit a violation. In addition, a third-party controller or processor receiving personal data from a controller or processor in compliance with this legislation 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 (§8(4) of the KCDPA).

7.3. Data processing records

 Not applicable.

7.4. Data protection impact assessment

Controllers shall conduct and document a data protection impact assessment (DPIA) for each of the following activities involving the processing of personal data:

• targeted advertising;

• selling of personal data;

• profiling where the profiling presents a reasonably foreseeable risk of:

  • unfair or deceptive treatment of consumers or disparate impact on consumers;

  • financial, physical, or reputational injury to consumers;

  • physical or other intrusion upon the private affairs or concerns where an intrusion would be offensive to a reasonable person; or

  • other substantial injury to consumers.

• processing sensitive data; and

• any processing of personal data that presents a heightened risk of harm to consumers.

The DPIA shall identify and weigh the benefits that may flow, directly or indirectly, from the processing to the controller, the consumer, other stakeholders, and the public against 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 risk. The use of de-identified data and the reasonable expectations of consumers, as well as the context of the processing of personal data and the relationship between the controller and the consumer whose personal data will be processed, should be factored into the DPIA by the controller (§6(2) of the  KCDPA).

The AG may request pursuant to an investigative demand, that a controller disclose relevant DPIA relevant to an investigation conducted by the AG. The AG may also evaluate the DPIA for compliance with the KCDPA (§6(3) of the  KCDPA).

Importantly, a single DPIA may address a comparable set of processing operations that include similar activities (§6(6) of the KCDPA). DPIA requirement will apply to processing activities created or generated on or after June 1, 2026 (§6(8) of the KCDPA).

7.5. Data protection officer appointment

 Not applicable.

7.6. Data breach notification

The KCDPA does not provide for breach notification requirements. For further information see Kentucky – Data Breach.

7.7. Data retention

 Not applicable.

7.8. Children's data

Controllers that comply with the verifiable parental consent requirements of the COPPA are also considered to be compliant with any obligation to retain parental consent under the KCDPA (§2(4) of the KCDPA).

A child is defined as an individual under the age of 13 (§1(5) of the KCDPA).

A controller must not process sensitive data concerning a consumer without obtaining the consumer's consent, or, in the case of the processing of sensitive data collected from a child, process the data in accordance with COPPA (§4(1)(e) of the KCDPA).

7.9. Special categories of personal data

The KCDPA states that special categories of personal data shall not be processed without consent (§4(1)(e) of the KCDPA).

7.10. Controller and processor contracts

A processor shall adhere to the instructions of a controller and shall assist the controller in meeting obligations under the KCDPA. Taking into account the nature of processing and the information available to the processor, obligations shall include (§5(1) of the KCDPA):

• by appropriate technical and organizational measures, insofar as this is reasonably practicable, assistance with fulfilling the controller's obligation to respond to consumer rights requests;

• 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 the security of the system of the processor pursuant to breach notification requirements; and

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

Contract requirements

Contracts between controllers and processors shall govern the processor's data processing procedures with respect to processing performed on behalf of the controller. The contract is binding and shall clearly set forth the instructions for processing personal data, the duration of the processing, and the rights and obligations of both parties. The contract should also include requirements that the processors must (§5(2) of the KCDPA):

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

• at the controller's direction, 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 necessary to demonstrate the processor's compliance with the obligations within the KCDPA;

• allow and cooperate with, reasonable assessments by the controller or the controller's designated assessor – alternatively, 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 obligations under the KCDPA using appropriate and accepted control standard or framework and assessment procedure for assessments, which must be provided to the controller upon request; and

• engaging in any subcontract pursuant to a written contract that requires the subcontractor to meet the obligations of the processor with respect to the personal data.

The KCDPA notes that nothing in Section 5 shall be read to relieve a controller or processor from the liabilities imposed on it by its role in the processing relationship as defined by the KCDPA (§5(4) of the KCDPA).

Determining if a person is acting as a controller or processor with respect to a specific processing of data is a determination of the facts based on the context in which personal data is processed (§5(4) of the KCDPA).

8. Data Subject Rights

A consumer may invoke their rights granted under the KCDPA at any time by submitting a request to the controller (§3(1) of the  KCDPA). A child's parent or legal guardian may submit a request on the child's behalf for personal data that belongs to their child (§3(1) of the KCDPA).

A controller must not process personal data in violation of state and federal laws that prohibit unlawful discrimination against consumers (§4(1)(d) of the KCDPA).

Discrimination

The KCDPA also highlights that a controller shall not discriminate against a consumer for exercising any of the consumer rights provided, 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. This should not be construed to require a controller to provide a product or service that requires the personal data of a consumer that the controller does not collect or maintain or prohibit a controller from offering a different price, rate, level, quality, or selection of goods or services to a consumer, including offering goods or services for no fee, if the offer is related to a consumer's voluntary participation in a bona fide loyalty, rewards, premium features, discounts, or club card program (§4(1)(e) of the KCDPA).

Timeline

Controllers must respond to consumers without undue delay but in all cases within 45 days of receiving a request. A controller can extend the timeline by an additional 45 days when reasonably necessary taking into consideration the complexity and number of the consumer's requests, so long as the controller informs the consumer within the initial 45-day response period and provides the reason for the extension (§3(3)(a) of the  KCDPA). The information in the response must be provided free of charge, at least twice annually per consumer. In the event of excessive, repetitive, technically infeasible, or manifestly unfounded requests, a fee may be charged to cover the administrative costs of complying with or declining the request. The controller bears the burden of demonstrating the excessive, repetitive, technically infeasible, or manifestly unfounded nature of the request (§3(3)(c) of the  KCDPA)

Where a controller refuses to action a consumer's request, the controller must inform the consumer within the initial 45-day timeframe. When notifying the consumer of the refusal, the controller must provide a reason for declining to action and provide instructions on how to appeal decisions (§3(3)(b) of the  KCDPA).

Authentication

A controller is not required to comply with a request if they are unable to authenticate the request using reasonable efforts and may request additional the consumer provide the additional information reasonably necessary to authenticate themselves and the request (§3(3)(d) of the  KCDPA). The KCDPA does not require a controller or data processor to comply with an authenticated consumer request if (§7(3) of the KCDPA):

• if the controller is not reasonably capable of associating the request with the consumer's personal data or it would be unreasonably burdensome to do so;

• the personal data is not used to recognize or respond to the consumer or is not associated with other personal data about the consumer; and

• the personal data is not sold or shared with other third parties with the exception of a data processor as permitted under the KCDPA.

Exceptions

The rights granted under the KCDPA to consumers do not apply to pseudonymous data where the controller is able to demonstrate that information needed to identify the consumer is kept separately and subject to appropriate technical and organizational measures to ensure the data is not used to identify the consumer (§7(4) of the KCDPA).

Appeals

A controller shall establish a process for consumers to appeal decisions where a controller refuses to action a consumer's rights within a reasonable time after the consumer's receipt of the controller’s denial to action the request (§3(4) of the KCDPA). The KCDPA requires the appeal process to be conspicuously available to consumers and similar to the process for submitting a request to exercise the consumer's rights (§3(4) of the KCDPA).

Within 60 days of receiving an appeal, the controller must 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 decisions. Where the appeal is denied the control must provide the customer with an online or other method to contact the AG to file a complaint (§3(4) of the KCDPA).

8.1. Right to be informed

A controller will comply with an authenticated consumer request to exercise the right to confirm if a controller is processing the consumer’s personal data and to access the personal data unless the confirmation and access would require the controller to reveal a trade secret (§3(2)(a) of the KCDPA).

The KCDPA states that a controller must provide consumers with a reasonably accessible, clear, and meaningful privacy notice which includes (§4(3) of the KCDPA):

• the categories of personal data processed;

• the purposes for processing personal data;

• how to exercise rights granted under the KCDPA and appeal decisions;

• the categories of personal data shared with third parties (if applicable); and

• the categories of third parties with whom personal data is shared (if applicable).

If a controller sells personal data to third parties or processes personal data for targeted advertising, the controller shall clearly and conspicuously disclose this activity, as well as the manner in which a consumer may exercise the right to opt out of processing (§4(4) of the  KCDPA).

Lastly, the privacy notice should include one or more secure and reliable methods for consumers to submit a request to exercise their consumer rights. The different ways to submit a request by a consumer should take into account the ways in which consumers normally interact with the controller, the need for secure and reliable communication of such requests, and the ability of the controller to authenticate the identity of the consumer making the request (§4(5) of the KCDPA).

A consumer should not be required to create a new account to exercise rights however, an existing account can be utilized (§4(5) of the KCDPA).

8.2. Right to access

A controller must comply with an authenticated consumer request to exercise the right to confirm whether or not a controller is processing the consumer's personal data and accessing the personal data unless the confirmation and access would require the controller to reveal a trade secret (§3(2)(a) of the KCDPA).

8.3. Right to rectification

A consumer has the right to correct inaccuracies in their personal data however, taking into account the nature and purpose of personal data processing (§3(2)(b) of the KCDPA).

8.4. Right to erasure

A consumer has the right to request the deletion of personal data provided by or obtained about the consumer (§3(2)(c) of the KCDPA).

Where a controller receives information about a consumer from a source other than the consumer, the controller will be in compliance with the request to delete information by (§3(3)(e) of the KCDPA):

• keeping a record of the deletion request and other data necessary to ensure the data remains deleted and is not used for any other purpose provided in the KCDPA; or

• opting the consumer out of processing for any purpose except those exempted under §2 of the KCDPA.

8.5. Right to object/opt-out

The KCDPA grants consumers the right to opt-out of processing of their personal data for several purposes including (§3(2)(e) of the KCDPA):

• targeted advertising;

• the sale of personal data; or

• profiling to further decisions that produce legal or other similarly significant effects concerning the consumer.

8.6. Right to data portability

A consumer has the right to a copy of their personal data provided to the controller (§3(2)(d) of the KCDPA). The KCDPA also highlights that such copy of the data must be provided in a portable and, as much as technically feasible, a readily useable format that allows the consumer to transmit the data to another controller without hindrance, where the processing is carried out by automated means (§3(2)(d) of the KCDPA).

Importantly, the controller is not required to reveal any trade secrets during this process (§3(2)(d) of the KCDPA).

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

The KCDPA does not expressly provide for the right not to be subject to automated decision-making, however, it defines 'profiling' as any form of automated processing performed on personal data to evaluate, analyze, or predict personal aspects related to an identified or identifiable natural person's economic situation, health, personal preferences, interests, reliability, behavior, location, or movements (§1(23) of the KCDPA).

So far as automated decision-making falls within the definition of 'profiling,' consumers have the right to opt-out of the processing as mentioned in the section above.

8.8. Other rights

 Not applicable.

9. Penalties

The KCDPA does not provide for a private right of action (§9(4) of the KCDPA).

The KCDPA highlights that before initiating any action for violation of the Act, the AG will provide a controller or processor with 30 days to cure the potential violation. If within thirty days the controller or processor provides a written statement to the AG stating that the alleged violations have been cured and no further violations will occur, no action for damages will be initiated under the KCDPA (§9(2) of the KCDPA).

A trust and agency account is created and will be known as the 'consumer privacy fund' (§10 of the KCDPA). All civil penalties collected resulting from violations of the KCDPA will be deposited into the fund and used by the Office of the AG to enforce the KCDPA (§10 of the KCDPA).

If a controller or data processor continues to violate the KCDPA following the cure period of 30 days or breaches an express written statement provided to the AG, the AG may initiate an action and seek damages for up to $7,500 for each continued violation (§9(3) of the KCDPA). Additionally, the AG may recover any reasonable expenses incurred due to investigating and preparing for the case including court costs, attorney's fees, and any other relief order by the court for violations of the KCDPA (§9(5) of the KCDPA).

9.1 Enforcement decisions

Not applicable.