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Florida: Digital Bill of Rights - state privacy protections

The Florida Digital Bill of Rights (the Bill of Rights) was introduced, on March 3, 2023, to the Florida State Senate. Since then, the Bill of Rights has passed both State House, and was signed by the Governor of Florida, Ron DeSantis, on June 6, 2023. The Bill of Rights introduces obligations for both applicable controllers and processors, as well as consumer rights, and will enter into effect on July 1, 2024. OneTrust DataGuidance Research breaks down the key provisions.

Davel5957 / Signature collection / istockphoto.com

Definitions

The Bill of Rights contains definitions for terms, including 'consumer,' 'personal data,' 'sensitive data,' 'biometric data,' 'consent,' 'processing,' and 'child.' Among the notable definitions provided in the Bill of Rights is 'controller,' which is much narrower in scope when compared with other US State privacy legislation, and applies to sole proprietorships, partnerships, limited liability companies, corporations, associations, or legal entities that make in excess of $1 billion in global gross annual revenues, among other things. Correspondingly, 'processor' refers to a person who processes personal data on behalf of a controller.

Importantly, personal data denotes any information, including sensitive data, which is linked or reasonably linkable to an identified or identifiable individual. The term includes pseudonymous data when the data is used by a controller and/or processor in conjunction with additional information that reasonably links the data to an identified or identifiable individual but does not include de-identified data or publicly available information. On the other hand, pseudonymous data means any 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.

Further to the above, the Bill of Rights defines 'consumer' as an individual who is a resident of or is domiciled in Florida and acting only in an individual or household context. The term does not include an individual acting in a commercial or employment context. Furthermore, 'sensitive data' refers to a category of personal data that includes any of the following:

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

Scope

Section 501.703 of the Digital Bill of Rights states that it applies to a person who:

  • conducts business in this state or produces a product or service used by residents of this state; and
  • processes or engages in the sale of personal data.

However, the Digital Bill of Rights does not apply to any of the following, among others:

  • a state agency or a political subdivision of the state;
  • a financial institution or data subject to Title V of the Gramm-Leach-Bliley Act (GLBA);
  • a covered entity or business associate governed by the Health Insurance Portability and Accountability Act of 1996 Privacy and Security Rules (the Privacy and Security Rules) established under the Health Insurance Portability and Accountability Act of 1996 (HIPAA);
  • a non-profit organization; and
  • a postsecondary education institution.

In addition, the processing of personal data by a person in the course of a purely personal or household activity or solely for measuring or reporting advertising performance, reach, or frequency will not be covered by the Digital Bill of Rights. More generally, the Digital Bill of Rights outlines specific information that will be exempt from its scope including:

  • protected health information under the HIPPA;
  • health records;
  • 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; and
  • 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.

Consumer rights

A consumer is entitled to exercise their consumer rights at any time by submitting a request to a controller which 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.

Submission format

With regard to the submission of consumer requests, a controller is required to establish two or more methods to enable consumers to submit a request and the methods must be secure, reliable, and clearly and conspicuously accessible. The methods must also take into account:

  • the ways in which consumers normally interact with the controller;

  • the necessity for secure and reliable communications of these requests; and
  • the ability of the controller to authenticate the identity of the consumer making the request.

Importantly, 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.

Rights

The consumer rights provided within the Bill of Rights include the right to:

  • confirm whether a controller is processing personal data and accessing the personal data;
  • correct inaccuracies in personal data, taking into account the nature of the personal data and the purposes of the processing;
  • delete any or all personal data provided by or obtained about the consumer;
  • obtain a copy of personal data in a portable and, to the extent technically feasible, readily usable format if the data is available in a digital format;
  • opt out of the processing of the personal data for purposes of:
    • targeted advertising;
    • the sale of personal data; or
    • profiling in furtherance of a decision that produces a legal or similarly significant effect concerning a consumer;
  • opt out of the collection of sensitive data, including precise geolocation data, or the processing of sensitive data; and
  • to opt out of the collection of personal data collected through the operation of a voice recognition or facial recognition feature.

Regarding deletion requests, the Bill of Rights clarifies that a controller who obtained personal data from a source other than the consumer is considered in compliance with a deletion request by doing any of the following:

  • deleting the personal data, retaining a record of the deletion request and the minimum data necessary for the purpose of ensuring that the consumer's personal data remains deleted from the business's records, and not using the retained data for any other purpose under this part; or
  • opting the consumer out of the processing of that personal data for any purpose other than a purpose exempt under the Bill of Rights.

Responses to consumer requests

The Bill of Rights establishes provisions for complying with consumer rights requests, stipulating that controllers must respond to consumers without undue delay, and in any case, no later than 45 days after receipt of a request. The timeframe for a response may be extended by an additional 15 days where reasonably necessary, considering the complexity and number of consumer requests. However, in such cases, the consumer must be informed of the extension within the original 45-day timeframe, together with the reason for the extension. Ultimately, a controller must provide the consumer with notice within 60 days after the request is received that the controller has complied with the consumer's request.

Equally, where a controller cannot take action regarding the consumer's request, the controller must inform the consumer without undue delay, which may not be later than 45 days after the date of receipt of the request. A justification for the inability to take action on the request must also be provided along with instructions on how to appeal the decision.

In regard to authentication, the controller is not required to comply with a consumer request if they cannot authenticate it. However, the controller must make a reasonable effort to request that the consumer provide additional information that may be reasonably necessary to authenticate the same. If a controller maintains a self-service mechanism to allow a consumer to correct certain personal data, the controller may deny the consumer's request and require the consumer to correct their own personal data through such mechanisms.

The information provided to consumers in response to requests must be provided free of charge up to twice during any 12-month period per person. However, controllers may charge a reasonable fee, or decline to act, where the consumer request is manifestly unfounded, excessive, repetitive, and bears the burden of demonstrating the same.

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.

Controller obligations

The Bill of Rights stipulates that 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. In addition, a controller is prohibited from processing personal data for a purpose that is neither reasonably necessary nor compatible with the purpose for which the personal data is processed, as disclosed to the consumer unless they obtain the consumers consent or it is otherwise provided within the Bill of Rights.

Privacy notices

A privacy notice must be accessible and clear, updated at least annually, and include the following information:

  • the categories of personal data processed by the controller, including, if applicable, any sensitive data processed by the controller;
  • the purpose of processing personal data;
  • how consumers may exercise their rights, including the process by which a consumer may appeal a decision;
  • the categories of personal data that the controller shares with third parties (if applicable);
  • the categories of third parties with whom the controller shares personal data (if applicable); and
  • a description of the methods by which consumers can submit requests to exercise their consumer rights under.

In addition, where a controller engages in the sale of biometric data, the controller must provide a notice stating: 'NOTICE: This website may sell your biometric personal data,' and be in line with the above.

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.

In line with the above, a controller may not collect additional categories of personal information or use personal information collected for additional purposes without providing the consumer with notice consistent with the above.

Data security

The Bill of Rights notes that in order to protect the confidentiality, integrity, and accessibility of personal data, the controller must establish, implement, and maintain reasonable administrative, technical, and physical data security practices appropriate to the volume and nature of the personal data at issue.

DPAs

Controllers must conduct and document a Data Protection Assessment (DPA) where processing involves the following activities:

  • 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;
    • a 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.

Further to the above, the DPA must 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 including: (i) the use of deidentified data; (ii) the reasonable expectations of consumers; (iii) the context of the processing; and (vi) the relationship between the controller and the consumer whose personal data will be processed.

A DPA conducted by a controller for the purpose of compliance with any other law or regulation may constitute compliance with the requirements of the Bill of Rights if the assessment has a reasonably comparable scope and effect. Additionally, a single DPA may address a comparable set of processing operations that include similar activities. Importantly, this requirement is applicable to processing activities generated after January 1, 2023.

Furthermore, disclosure of a DPA compliance with a request from the Attorney General (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.

Recognition features

A device that has a voice recognition feature, a facial recognition feature, a video recording feature, an audio recording feature, or any other electronic, visual, thermal, or olfactory feature that collects data may not use those features for the purpose of surveillance by the controller, processor, or affiliate of a controller or processor when such features are not in active use by the consumer unless otherwise expressly authorized by the consumer.

Search engine

Uniquely, the Bill of Rights states a controller that operates a search engine must make available, in an easily accessible location on the webpage which does not require a consumer to log in or register to read, an up-to-date, plain language, description of the main parameters that are individually or collectively the most significant in determining ranking and the relative importance of those main parameters, including the prioritization or de-prioritization of political partisanship or political ideology in search results. In addition, algorithms are not required to be disclosed nor is any other information that, with reasonable certainty, would enable deception of or harm to consumers through the manipulation of search results.

Prohibition against discrimination

The Bill of Rights provides that controllers shall not process personal data in violation of state and federal laws that prohibit unlawful discrimination against consumers. Similarly, controllers must not discriminate against a consumer for exercising their consumer rights, including by way of denying goods or services to consumers, charging different prices or rates for goods and services, or providing a different level or quality of goods or services to the consumer. Nevertheless, a controller may offer financial incentives, including payments to consumers as compensation, for processing of personal data if the consumer gives the controller prior consent that clearly describes the material terms of the financial incentive program and provided that such incentive practices are not unjust, unreasonable, coercive, or usurious in nature. Importantly, consent may be revoked by the consumer at any time.

De-identified, pseudonymous data, and aggregate consumer information

The Bill of Rights specifies that a controller processing de-identified data must:

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

  • maintain and use the data in deidentified form - a controller may not attempt to reidentify the data, except solely for the purpose of determining whether its deidentification processes satisfy the requirements within the Bill of Rights;
  • contractually obligate any recipient of the deidentified data to comply with this part; and
  • implement business processes to prevent the inadvertent release of deidentified data.

The Bill of Rights clarifies that none of its provisions may be construed to require the controller or processor to:

  • re-identify de-identified 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; and
  • comply with authenticated consumer requests with personal data 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 a third party or otherwise voluntarily disclose the personal data to a third party other than a processor, except as otherwise authorized under the Bill of Rights.

Furthermore, the Bill of Rights 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. To this end, 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.

Sensitive data

The Bill of Rights prohibits the processing or sale of sensitive data without obtaining the consumer's consent, or, in the case of processing or selling the sensitive data of a known child between 13 and 18 years of age or in accordance with Children's Online Privacy Protection Act (COPPA), without affirmative authorization.

A person who engages in the sale of sensitive personal data must provide a notice which states: 'NOTICE: This website may sell your sensitive personal data.'

Processor obligations

Processors are required to adhere to the instructions of a controller and assist them in meeting or complying with their obligations under the Bill of Rights, including:

  • assisting the controller in responding to consumer rights requests submitted pursuant by using appropriate technical and organizational measures, as reasonably practicable, taking into account the nature of the processing and the information available to the processor;
  • assisting the controller with regard to complying with the requirement relating to the security of processing and to the breach notification, 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.

More specifically on vendor management, the controller-processor relationships must be governed by a contract with respect to the processing performed on behalf of the controller. The contract must include information regarding:

  • clear instructions for processing data;
  • the nature and purpose of processing;
  • the type of data subject to processing;
  • the duration of processing;
  • the rights and obligations of both parties; and
  • a requirement that the processor:
    • 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, upon reasonable request, all information in the processor's possession necessary to demonstrate the processor's compliance with this part;
    • 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.

In determining whether a person is acting as a controller or processor with respect to specific processing of data, the Bill of Rights explains that it is a fact-based determination that depends upon the context in which personal data is to be processed. To this end, a processor that continues to adhere to a controller's instructions with respect to the specific processing of personal data remains a processor.

Importantly, the above should not be construed to relieve a controller or processor from the liabilities imposed on the controller or processor by virtue of their role in the processing relationship.

Limitations

The Bill of Rights provides an exemption for certain uses of personal information. Specifically, the Bill of Rights clarifies that the controller's and processor's ability to comply with the following will not be restricted by the Bill of Rights:

  • complying with federal, or state laws, or rules, or regulations;
  • complying with a civil, criminal, or regulatory inquiry, investigation, subpoena, or summons by federal, state, municipal, or other governmental authorities;
  • investigating, establishing, exercising, preparing for, or defending legal claims;
  • providing 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 taking steps at the request of the consumer before entering into a contract;
  • preventing, detecting, protecting against, or responding to security incidents, identity theft, fraud, harassment, malicious or deceptive activities, or any illegal activity; and
  • preserving the integrity or security of systems or investigating, reporting, or prosecuting those responsible for breaches of system security.

The Bill of Rights also does not prevent a controller or processor from providing personal data to a person covered by an evidentiary privilege under Florida law as part of a privileged communication and should not be viewed as adversely affecting rights or freedoms, including the right of free speech.

In addition, obligations imposed on a controller or processor will not restrict their ability to collect, use, or retain personal data for internal use to:

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

The Bill of Rights also highlights instances in which controller or processor obligations do not apply, namely where it would violate an evidentiary privilege under Florida law.

Correspondingly, where a controller or processor discloses personal data to a third-party controller or processor, in compliance with the requirements of the Bill of Rights, it is not in violation if said third party processes the personal data in violation of the same, provided that, at the time of disclosing the personal data, the disclosing controller or processor did not have actual knowledge that the recipient would commit a violation. Correspondingly, a third-party controller or processor receiving personal data from a controller or processor in compliance with the requirements of the Bill of Rights is likewise not liable for the offenses of the controller or processor from which it receives such personal data.

Specific to personal data processing under Sections 501.716, 501.717, and 501.718 of the Bill of Rights (i.e. limitations), a controller is only permitted to process such personal data for the purposes specified in those Sections. Further, personal information in those Sections can only be processed to the extent that it is:

  • reasonably necessary and proportionate to the purpose; and
  • adequate, relevant, and limited to what is necessary in relation to the specific purposes; and
  • done to assist another controller, processor, or third party with any of the purposes specified.

In addition, the controller or processor must consider the nature and purpose of the collection, use, or retention of personal data. 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 relating to the personal data.

A controller or processor must also adopt and implement a retention schedule that prohibits the use or retention of personal data that is not exempt, as outline above, after the satisfaction of the initial purpose for which the information was collected or obtained, after the expiration or termination of the contract on which the information was collected or obtained, or two years after the last consumer interaction. There are specific circumstances in which this will not apply, including where providing a good or service requested by the consumer, or reasonably anticipating the request of such good or service within the context of a controller's ongoing business relationship with the consumer.

Finally, controllers processing personal data pursuant to any for the exemptions above bear the burden of demonstrating that the processing qualifies for the exemption and complies with the requirements outlined above.

Pre-emption

The Bill of Rights clarifies that it supersedes all rules, regulations, codes, ordinances, and other laws adopted by a city, county, city and county, municipality, or local agency regarding the collection, processing, sharing, or sale of consumer personal data by a controller or processor.

Enforcement

The Department of Legal Affairs (the Department) has exclusive authority to enforce the Bill of Rights. The Bill of Rights confirms that the Department will adopt rules to implement the same, including standards for authenticated consumer requests, enforcement, data security, and authorized persons who may act on a consumer's behalf.

Notably, if the Department believes that a person is in violation of the Bill of Rights, it can bring an action against such person for unfair or deceptive act or practices. The Department may first notify the person in writing of the alleged violation, after which it may grant a 45-day period to cure the alleged violation and issue a letter of guidance. The 45-day cure period does not apply to an alleged violation involving a Florida consumer who is a known child, and the controller wilfully disregarded the consumer's age or is deemed to have actual knowledge of the consumer's age. In addition to other remedies, the Department may collect a civil penalty of up to $50,000 per violation. Importantly, the Bill of Rights clarifies that it does not establish a private right of action.

Keshawna Campbell Manager - Privacy Research
[email protected]