Support Centre

You have out of 5 free articles left for the month

Signup for a trial to access unlimited content.

Start Trial

Continue reading on DataGuidance with:

Free Member

Limited Articles

Create an account to continue accessing select articles, resources, and guidance notes.

Free Trial

Unlimited Access

Start your free trial to access unlimited articles, resources, guidance notes, and workspaces.

Nebraska - Data Protection Overview
Back

Nebraska - Data Protection Overview

May 2024

1. Governing Texts

1.1. Key acts, regulations, directives, bills

On April 18, 2024, the Governor of Nebraska approved the Nebraska Data Privacy Act (NDPA) which marked the State's first comprehensive privacy legislation.

The NDPA will enter into effect on January 1, 2025.

1.2. Guidelines

The Attorney General (AG) has not yet issued any guidance.

1.3. Case law

Not applicable.

2. Scope of Application

2.1. Personal scope

The NDPA applies to a person that (§3(1) of the NDPA):

  • conducts business in this state or produces a product or service consumed by Nebraska residents;
  • processes or engages in the sale of personal data; and
  • is not a small business as determined under the federal Small Business Act of 1953, as such act existed on January 1, 2024, except to the extent that §18 of NDPA is applicable.

The NDPA does not apply to (§3(2) of the NDPA):

Further, any requirement imposed on a controller or processor shall not apply where compliance with the requirement by the controller or processor, as applicable, would violate an evidentiary privilege under any law of this state.

2.2. Territorial scope

The NDPA is applicable to persons who conduct business in Nebraska or produce products or services that are targeted to residents of Nebraska (§3(1) of the NDPA).

2.3. Material scope

The NDPA does not apply to several categories of information, including (§4 of the NDPA):

  • protected health information under the HIPPA;
  • health records;
  • patient identifying information for purposes of §§290dd-2 of Title 42 of the U.S. Code, as part of the Public Health Service Act;
  • information and documents created for purposes of the Health Care Quality Improvement Act of 1986;
  • personal data used or shared in research conducted pursuant to the NDPA or other research conducted in accordance with applicable Nebraska law;
  • personal data bearing on a consumer's creditworthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living by a consumer reporting agency or furnisher that provides information for use in a consumer report, or by a user of a consumer report, but only to the extent that the activity is regulated by and authorized under the Fair Credit Reporting Act of 1970 (FCRA);
  • personal data regulated by the Family Educational Rights and Privacy Act 1974 (FERPA);
  • data processed or maintained during an individual applying to, being 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; and
  • data processed or maintained as the emergency contact information of an individual under this part which is used for emergency contact purposes.

The NDPA does not apply to the processing of personal data by a person during a purely personal or household activity (§26(5) of the NDPA).

3. Data Protection Authority | Regulatory Authority 

3.1. Main regulator for data protection

The AG has the exclusive authority to enforce the NDPA (§19 of the NDPA).

3.2. Main powers, duties and responsibilities

Duty to inform and to receive complaints

The AG must include on its website information on (§20(1) of the NDPA):

  • the responsibilities of a controller;
  • the responsibilities of a processor; and
  • a consumer's rights.

Furthermore, the AG must provide an online mechanism through which a consumer may submit a complaint under the NDPA (§20(1) of the NDPA).

Investigative powers

If the AG has reasonable cause to believe that a controller or processor has engaged in or is engaging in a violation of the NDPA, the AG may issue a civil investigative demand and request the disclosure of any DPA relevant to an investigation. The AG may evaluate the DPA for compliance with the NDPA. Importantly, this does not apply to criminal prosecutions (§21 of the NDPA).

Whenever the AG believes that any person may be in possession, custody, or control of any tangible document or recording that they believe to be relevant to the subject matter of an investigation, the AG may, prior to the institution of a civil proceeding under such act, execute in writing an investigative demand requiring such person to produce such documentary material and permit inspection and copying thereof (§23(1) of the NDPA). The NDPA outlines specific requirements for such demands.

If the person fails to comply with any civil investigative demand, or whenever satisfactory copying or reproduction of any such material cannot be done, and such person refuses to surrender such material, the AG may file a petition for a court order (§23(8) of the NDPA).

4. Key Definitions

Data controller: An individual or other person who, alone or jointly with others, determines the purpose and means of processing personal data (§2(8) of the NDPA).

Data processor: A person who processes personal data on behalf of a controller. The NDPA further clarifies that determining whether a person is acting as a controller or processor with respect to specific processing of data is a fact-based determination that depends on the context in which personal data is to be processed (§2(24) of the NDPA). A processor that continues to adhere to a controller's instructions with respect to specific processing of personal data remains in the role of a processor (§15(4) of the NDPA).

Personal data: Any information, including sensitive data, that is linked or reasonably linkable to an identified or identifiable individual, and includes pseudonymous data when the data is used by a controller or processor in conjunction with additional information that reasonably links the data to an identified or identifiable individual. Personal data does not include de-identified data or publicly available information (§2(20) of the NDPA).

Sensitive data: A category of personal data, and includes (§2(30) of the NDPA):

  • personal data revealing racial or ethnic origin, religious beliefs, mental or physical health diagnosis, sexual orientation, or citizenship or immigration status;
  • genetic or biometric data that is processed for the purpose of uniquely identifying an individual;
  • personal data collected from a known child; or
  • precise geolocation data.

Health data: The NDPA does not define 'health data,' but provides that 'protected health information' has the same meaning as in the HIPAA (§2(26) of the NDPA). Furthermore 'health record' means any written, printed, or electronically recorded material maintained by a health care provider in the course of providing health care services to an individual that concerns the individual and the services provided to such individual, and includes (§2(15) of the NDPA):

  • the substance of any communication made by an individual to a health care provider in confidence during or in connection with the provision of health care services; or
  • information otherwise acquired by the health care provider about an individual in confidence and in connection with health care services provided to the individual.

Biometric data: Data that is generated to identify a specific individual through an automatic measurement of a biological characteristic of such individual and includes: fingerprint, voice print, retina image, iris image, or unique biological pattern or characteristic (§2(3)(a) of the NDPA).

Definition excludes:

  • data generated to identify a specific individual, any physical or digital photograph, video or audio recording, or data generated from a physical or digital photograph; or
  • information collected, used, or stored for health care treatment, payment, or operations under the HIPAA.

Pseudonymization: Any personal information that cannot be attributed to a specific individual 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 individual (§2(27) of the NDPA).

Data subject: The NDPA does not provide a definition for 'data subject'; however, 'consumer' is defined as an individual who is a resident of or is domiciled in Nebraska acting only in an individual or household context. The term does not include an individual acting in a commercial or employment context (§2(7) of the NDPA).

5. Legal Bases

Personal data processed by a controller under §26 - 29 of the NDPA (i.e. exemptions) is only permitted to be processed to the extent that it is (§29(1) of the NDPA):

  • reasonably necessary and proportionate to the purposes listed in §26 - 29 of the NDPA; and
  • adequate, relevant, and limited to what is necessary in relation to the specific purposes listed in §26 - 29 of the NDPA.

In such cases of processing, the controller bears the burden of demonstrating that the processing of the personal data qualifies for the exemption and complies with the requirements of §26 - 29 (§29(3) of the NDPA). The NDPA clarifies that processing of personal data by an entity for the purposes under §26 of the NDPA does not solely make the entity a controller for the processing of the data (§29(4) of the NDPA).

5.1. Consent

Unless otherwise provided under the NDPA, the controller must not process personal data for a purpose that is neither reasonably necessary to nor compatible with the disclosed purpose for which the personal data is processed, as disclosed to the consumer, unless consumer consent is obtained (§12(2)(a) of the NDPA).

Consent is defined as a clear and affirmative act signifying a consumer's freely given, specific, informed, and unambiguous agreement to process personal data relating to the consumer, including a statement written by electronic means or any other unambiguous affirmative action by the consumer (§2(6)(a) of the NDPA).

Consent, however, does not include (§2(6)(b) of the NDPA):

  • acceptance of a general or broad term of use or similar document that contains a description 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 a dark pattern.

5.2. Contract with the data subject

The NDPA provides that nothing provided within may restrict a controller or processor's ability to provide a product or service specifically requested by a consumer or the parent or guardian of a child, perform a contract to which the consumer is a party, including fulfilling the terms of a written warranty, or take steps at the request of the consumer before entering into a contract (§26(1)(e) of the NDPA).

5.3. Legal obligations

The NDPA provides an exemption for certain uses of personal information. Specifically, the NDPA clarifies that the controller's and processor's ability to comply with the following will not be restricted by the NDPA (§26(1)(a) - (d) of the NDPA):

  • comply with federal, state, or local laws, rules, or regulations;
  • comply with a civil, criminal, or regulatory inquiry, investigation, subpoena, or summons by federal, state, local, or other governmental authorities;
  • cooperate with any law enforcement agency concerning conduct or activity that the controller or processor reasonably and in good faith believes may violate any federal, state, or local law, rule, or regulation; and
  • investigate, establish, exercise, prepare for, or defend legal claims.

5.4. Interests of the data subject

The NDPA provides that nothing provided within may restrict the ability of controllers or processors to take immediate steps to protect an interest that is essential for the life or physical safety of the consumer or of another individual and in which the processing cannot be manifestly based on another legal basis (§26(1)(f) of the NDPA).

5.5. Public interest

The NDPA provides that nothing provided within may restrict the ability of controllers or processors 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 entity that determines whether (§26(1)(i) of the NDPA):

  • 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
  • the controller has implemented reasonable safeguards to mitigate privacy risks associated with research, including any risks associated with reidentification.

5.6. Legitimate interests of the data controller

The NDPA does not explicitly address the legitimate interest of the controller.

However, the NDPA provides that nothing within may restrict the ability of the controllers and processors to (§26(1)(g) - (h) of the NDPA):

  • prevent, detect, protect against, or respond to security incidents, identity theft, fraud, harassment, malicious or deceptive activities, or any illegal activity; and
  • preserve the integrity or security of systems or investigate, report, or prosecute those responsible for breaches of system security.

Furthermore, the NDPA provides that the requirements imposed on any controller or processor under the NDPA must not restrict a controller's or processor's ability to collect, use, or retain data to (§27 of the NDPA):

  • conduct internal research to develop, improve, or repair products, services, or technology;
  • effect a product recall;
  • identify and repair technical errors that impair existing or intended functionality; or
  • perform internal operations that:
    • are reasonably aligned with the expectations of the consumer;
    • are 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.

In addition, the NPDA will not be construed to require a controller, processor, third party, or consumer to disclose a trade secret (§26(4) of the NDPA):

Such collection, use, or retention of personal data must consider the nature and purpose of such processing. The personal data must 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 (§29(2) of the NDPA).

5.7. Legal bases in other instances

The NDPA provides that nothing provided within may prevent a controller or processor from providing personal data concerning a consumer to a person covered by an evidentiary privilege under the laws of this state as part of a privileged communication (§26(6) of the NDPA).

6. Principles

The NDPA provides for a purpose limitation and minimization principles by requiring the controller to limit the collection of personal data to what is adequate, relevant, and reasonably necessary in relation to the purposes for which that personal data is processed, as disclosed to the consumer (§12(1)(a) of the NDPA). In the same vein, the controller must not process personal data that is not compatible with or necessary for the disclosed purposes without consent as outlined in the section on consent above (§12(2)(b) of the NDPA).

Furthermore, the NPDA establishes the principle of confidentiality, integrity, and accessibility of personal data, by requiring the controller to establish, implement, and maintain reasonable administrative, technical, and physical data security practices that are appropriate to the volume and nature of the personal data at issue (§12(1)(b) of the NDPA).

The NDPA outlines a principle of non-discrimination by prohibiting the controller:

  • to process personal data in violation of state and federal laws that prohibit unlawful discrimination against consumers (§12(2)(b) of the NDPA); and
  • to discriminate against a consumer for exercising any of the consumer under the NDPA, including by denying a good or service, charging a different price or rate for a good or service, or providing a different level of quality of a good or service to the consumer (§12(2)(c) of the NDPA).

7. Controller and Processor Obligations

De-identified data

The NDPA specifies that a controller processing de-identifies data must (§17(1) of the NDPA):

  • take reasonable measures to ensure that the data cannot be associated with an individual;
  • publicly commit to maintaining and using deidentified data without attempting to reidentify the data; and
  • contractually obligate any recipient of the deidentified data to comply with the NDPA.

The NDPA clarifies that none of its provisions may be construed to require the controller or processor to (§17(2) of the NDPA):

  • reidentify de-identified data or pseudonymous data;
  • maintain data in an identifiable form or obtain, retain, or access any data or technology for the purpose of allowing them to associate a consumer request with personal data; or
  • comply with an authenticated consumer request, if 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;
    • 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 by the NDPA.

Furthermore, any controller that discloses 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 take the appropriate steps to address any breaches of the same contractual commitments (§17(4) of the NDPA).

7.1. Data processing notification

The NDPA does not expressly provide notification requirements for data processing.

7.2. Data transfers

The NDPA does not specifically address data transfers but defines the sale of personal data for monetary or other valuable consideration by the controller to a third party. Importantly, the NDPA confirms that the term does not include (§2(29) of the NDPA):

  • 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 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:
    • intentionally made available to the general public through a mass media channel; and
    • did not restrict to a specific audience; or
  • disclosure or transfer of personal data to a third party as an asset in which the third party assumes control of all or part of the controller's assets that is part of a proposed or actual merger, acquisition, bankruptcy, or other transaction.

A controller or processor that discloses personal data to a third-party controller or processor, in compliance with the NDPA, does not violate the NDPA if the third-party controller or processor that receives and processes that personal data is in violation of the NDPA, if at the time of the data's disclosure, the disclosing controller or processor did not have actual knowledge that the recipient intended to commit a violation (§28(1) of the NDPA).

In the same vein, a third-party controller or processor that receives personal data from a controller or processor in compliance with the requirements of the NDPA does not violate the NDPA for the transgressions of the controller or processor from which the third-party controller or processor received the personal data (§28(2) of the NDPA).

7.3. Data processing records

The NDPA does not explicitly outline a requirement to maintain records of processing.

7.4. Data protection impact assessment

Controllers must conduct and document a data protection assessment (DPA) for the following processing activities (§16(1) of the NDPA):

  • the processing of personal data for targeted advertising;
  • the sale of personal data;
  • the processing of personal data for purposes of profiling, if 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;
    • physical or other intrusions upon the solitude or seclusion, or the private affairs or concerns, of consumers, if such intrusion would be offensive to a reasonable person; or
    • other substantial injuries to consumers;
  • the processing of sensitive data; and
  • any processing activities involving personal data which present a heightened risk of harm to consumers.

Under the NDPA a single DPA may address a comparable set of processing operations that include similar activities (§16(5) of the NDPA). In addition, a DPA conducted by a controller for the purpose of compliance with other laws or regulations may constitute compliance with the requirements of this section if the DPA has a reasonably comparable scope and effect (§16(6) of the NDPA).

Furthermore, a DPA must (§16(2) of the NDPA):

  • identify and weigh the direct or indirect benefits that may flow 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 that processing, as mitigated by safeguards that can be employed by the controller to reduce such risks; and
  • factor into the assessment:
    • the use of deidentified data;
    • the reasonable expectations of consumers;
    • the context of the processing; and
    • the relationship between the controller and the consumer whose personal data will be processed.

A DPA must be made available to the AG pursuant to a civil investigative demand (§16(3) of the NDPA). Importantly, A DPA is confidential and exempt from disclosure as a public record. However, its disclosure, in compliance with a request from the AG, does not constitute a waiver of attorney-client privilege or work-product protection with respect to the assessment and any information contained in the assessment (§16(4) of the NDPA).

7.5. Data protection officer appointment

The NDPA does not address the appointment of data protection officers.

7.6. Data breach notification

The NDPA states that data processors must adhere to the instructions of a controller and assist them in meeting their obligations under the NDPA, including, considering 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 of the system of the processor to meet the controller's obligations (§15(1) of the NDPA).

For further information see Nebraska – Data Breach.

7.7. Data retention

The NDPA does not expressly address data retention requirements.

7.8. Children's data

Under the NDPA, a child is an individual younger than 13 years of age (§2(5) of the NDPA). A controller must not process sensitive data of a child, without processing that data in accordance with the Children's Online Privacy Protection Act of 1998 (COPPA) (§12(2)(d) of the NDPA).

A controller or processor that complies with the authenticated parental consent requirements of the COPPA with respect to data collected online, is considered to be in compliance with any requirement to obtain parental consent under the NDPA (§6 of the NDPA).

7.9. Special categories of personal data

The NDPA prohibits the controller from processing the sensitive data of a consumer without obtaining the consumer's consent, or in case of processing the sensitive data of a child without processing that data in accordance with the COPPA (§12(2)(d) of the NDPA).

Furthermore, a small business, as defined under the Small Business Act, must not engage in the sale of personal data that is sensitive data without receiving prior consent from the consumer (§18(1) of the NDPA).

7.10. Controller and processor contracts

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. The contract must include (§15(2) of the NDPA):

  • clear instructions for processing data;
  • nature and purpose of processing;
  • type of data subject to processing;
  • duration of processing;
  • rights and obligations of both parties; and
  • requirement that the processor shall:
    • 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 after the provision of the service is completed, unless retention of the personal data is required by law;
    • make available to the controller, on reasonable request, all information in the processor's possession necessary to demonstrate the processor's compliance with the requirements of the NPDA;
    • allow, and cooperate with, reasonable assessments by the controller or the controller's designated assessor; and
    • engage any subcontractor pursuant to a written contract that requires the subcontractor to meet the requirements of the processor with respect to the personal data.

Irrespective of the above, a 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 requirements under the NDPA using an appropriate and accepted control standard or framework and assessment procedure. The processor shall provide a report of the assessment to the controller on request (§15(3) of the NDPA).

Importantly, the NDPA clarifies that these provisions cannot be construed to relieve a controller or a processor from the liabilities imposed on the controller or processor by virtue of the role of the controller or processor in the processing relationship as described in the NDPA (§15(3) of the NDPA).

In determining whether a person is acting as a controller or processor with respect to a specific processing of data is, following the NDPA, a fact-based determination that depends on the context in which personal data is to be processed. A processor that continues to adhere to a controller's instructions with respect to specific processing of personal data remains in the role of a processor (§15(4) of the NDPA).

Additionally, processors must adhere to the instructions of controllers and assist the same in meeting their obligations under the NDPA, which includes (§15(1) of the NDPA):

  • assisting the controller in responding to consumer rights requests by using appropriate technical and organizational measures, as reasonably practicable, taking into account the nature of processing and the information available to the processor;
  • assisting the controller with regard to complying with the requirement relating to the security of processing personal data and to the notification of a breach of security of the processor's system relating to an operator's or driver's license, taking into account the nature of processing and the information available to the processor; and
  • providing necessary information to enable the controller to conduct and document DPAs.

8. Data Subject Rights

Pursuant to §7(1) of the NDPA, a consumer may exercise their consumer rights at any time by submitting a request to a controller that specifies the consumer rights that the consumer wishes to exercise. With respect to the processing of children's personal data, a parent or legal guardian of the child may exercise these rights on behalf of the child. Importantly, any provision of a contract or agreement that waives or limits in any way a consumer right described is contrary to public policy and is void and unenforceable (§10 of the NDPA).

The NDPA prohibits the controller from discriminating against a consumer for exercising any of the consumer rights under the NDPA, including by denying a good or service, charging a different price or rate for a good or service, or providing a different level of quality of a good or service to the consumer (§12(2)(c) of the NDPA).

Where the consumer has exercised their right to opt out or the offer is related to a consumer's voluntary participation in a bona fide loyalty, reward, premium feature, discount, or club card program, §12(2)(c) of the NDPA must not be understood as requiring a controller to (§12(3) of the NDPA):

  • 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 a good or service to a consumer, including offering a good or service for no fee.

Submission format

The controller must put in place two or more secure and reliable methods, as described under §11 of the NDPA, allowing the consumer to exercise their right, and taking into account:

  • the ways in which consumers normally interact with the controller;
  • the necessity for secure and reliable communications of those requests; and
  • the ability of the controller to authenticate the identity of the consumer making the request.

In addition, a controller may not require a consumer to create a new account to exercise the consumer's rights but may require a consumer to use an existing account. A controller must also provide a mechanism on its website for a consumer to submit a request for information required to be disclosed. A controller that operates exclusively online and has a direct relationship with a consumer from whom they collect personal data may also provide an email address for the submission of requests (§11(2) - (4) of the NDPA).

Timeline

The controller must comply with the request submitted by a consumer without undue delay within 45 days after the date of receipt of the request. The controller may extend the response period once by 45 days when reasonably necessary, considering the complexity and number of the consumer's requests. In this case, the controller must inform the consumer within the initial 45 days of receiving the request and provide a reason for the extension (§8(2) of the NDPA).

If the controller declines to comply with the request, they must inform the consumer within 45 days providing justification and instructions on how to appeal the decision to the AG. Such an appeal process must be established by the controller pursuant to §9 of the NDPA.

Fees

The NDPA establishes that information provided in response to a consumer request must be provided by a controller, free of charge, twice annually for each consumer. Where requests from a consumer are manifestly unfounded, excessive, technically infeasible, 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. However, the controller bears the burden of demonstrating the manifestly unfounded, excessive, technically infeasible, or repetitive nature of the request (§8(4) of the NDPA).

Authentication

Where a controller is unable to authenticate a request using commercially reasonable efforts, the controller may not be required to comply and request the consumer to provide additional information reasonably necessary to authenticate the consumer and the consumer's request (§8(5) of the NDPA).

Appeals

A controller must establish a process for a consumer to appeal a refusal to take action on a request within a reasonable period of time. The appeal process must be conspicuously available and similar to the process for initiating action to exercise consumer rights. A controller must also inform the consumer in writing of any action taken or not taken in response to an appeal within 60 days after the date of receipt of the appeal, including a written explanation of the reason or reasons for the decision. If the controller denies the appeal, the consumer must be provided with an online mechanism through which to contact the AG to submit a complaint (§9 of the NDPA).

Exemptions

Importantly, the NDPA confirms that consumer rights do not apply to pseudonymous data or aggregate consumer information in cases in which the controller is able to demonstrate that any information necessary to identify the consumer is kept separate and is subject to effective technical and organizational controls that prevent the controller from accessing the information (§17(3) of the NDPA).

8.1. Right to be informed

The NDPA includes a consumer right to confirm whether a controller is processing the consumer's data (§7(2)(a) of the NDPA).

Furthermore, the NDPA provides a requirement for the controllers to provide consumers with a reasonably accessible and clear privacy notice that includes (§13 of the NDPA):

  • the categories of personal data processed by the controller, including, if applicable, any sensitive data processed by the controller;
  • the purpose for processing personal data;
  • how a consumer may exercise a consumer right, including the process by which a consumer may appeal a controller's decision with regard to the consumer's request;
  • any category of personal data that the controller shares with any third party (if applicable);
  • any category of third party with whom the controller shares personal data party (if applicable); and
  • a description of each method required through which a consumer may submit a request to exercise a consumer right.

With regard to the sale of data to third parties by the controller or the processing of personal data for targeted advertising, the data controller must clearly and conspicuously disclose the same and the manner in which a consumer may exercise the right to opt-out (§14 of the NDPA).

8.2. Right to access

The NDPA includes a consumer right to access personal data (§7(2)(a) of the NDPA).

8.3. Right to rectification

The consumer has 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 (§7(2)(b) of the NDPA).

8.4. Right to erasure

The consumer has the right to delete personal data provided by or obtained about the consumer (§7(2)(c) of the NDPA).

Furthermore, a controller that has obtained personal data about a consumer from a source other than the consumer complies with a consumer's deletion request by (§8(6) of the NDPA):

  • retaining a record of the deletion request and the minimum data necessary for the purpose of ensuring the consumer's personal data remains deleted and not using the retained 6 data for any other purpose under the NDPA; or
  • opting the consumer out of the processing of that personal data for any purpose other than a purpose that is exempt under the NDPA.

8.5. Right to object/opt-out

The consumer has the right to opt-out of the processing of personal data for purposes of (§7(2)(e) of the NDPA):

  • targeted advertising;
  • the sale of personal data; or
  • profiling in furtherance of a decision that produces a legal or similarly significant effect concerning the consumer.

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 of the consumer's personal data, by using a technology, including a link to an Internet website, an Internet browser setting or extension, or a global setting on an electronic device. A controller must comply with such an opt-out 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 (§11(5) of the NDPA).

A controller is not required to comply with an opt-out request received from an authorized agent under this subsection if (§11(5)(a) – (d) of the NDPA):

  • the request is not communicated in a clear and unambiguous manner;
  • the controller is not able to verify, with commercially reasonable effort, that the consumer is a resident of Nebraska;
  • the controller does not possess the ability to process the request; or
  • the controller does not process similar or identical requests the controller receives from consumers for the purpose of complying with similar or identical laws or regulations of another state.

8.6. Right to data portability

If the data is available in a digital format and the processing is completed by automated means, the consumer has the right to obtain a copy of their consumer's personal data that the consumer previously provided to 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 (§7(2)(d) of the NDPA).

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

However, profiling is defined as any form of solely 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 (§2(25) of the NDPA).

Furthermore, the consumer has the right to opt-out of the processing of personal data for purposes of, among others, profiling in furtherance of a decision that produces a legal or similarly significant effect concerning the consumer (§7(2)(e)(iii) of the NDPA).

8.8. Other rights

No further information.

9. Penalties

The NDPA supersedes and preempts any ordinance, resolution, rule, or other regulation adopted by a political subdivision regarding the processing of personal data by a controller or processor (§30 of the NDPA)

The Attorney General may bring an action against a person who violates the NDPA, to (§24(2) of the NDPA):

  • recover a civil penalty;
  • restrain or enjoin the person from violating the NDPA; or
  • recover the civil penalty and seek injunctive relief.

Before bringing such action, the AG must notify the controller or processor in writing, not later than 30-days before bringing the action, identifying the specific provisions of the NDPA the AG have been or are being violated. The Attorney General may not bring an action against the controller or processor if (§22 of the NDPA):

  • within the 30-day period, the identified violation is cured; and
  • the controller or processor provides:
    • a written statement and supportive documentation that the alleged violation is cured; and
    • an express written statement that the controller or processor will not commit any such violation after the alleged violation has been cured.

A person who violates the NDPA following the cure period described above or who breaches a written statement provided to the AG is liable for a civil penalty in an amount not to exceed $7,500 for each violation. Importantly, the NDPA clarifies that it does not establish a private right of action (§25 of the NDPA).

9.1 Enforcement decisions

Not applicable.