Bill Text: NJ A3255 | 2020-2021 | Regular Session | Introduced
Bill Title: Requires certain businesses to notify customers of certain information concerning the collection and sale of personally identifiable information and to allow customers to opt-in to collection and sale.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2020-02-25 - Introduced, Referred to Assembly Science, Innovation and Technology Committee [A3255 Detail]
Download: New_Jersey-2020-A3255-Introduced.html
Sponsored by:
Assemblyman JOHN J. BURZICHELLI
District 3 (Cumberland, Gloucester and Salem)
SYNOPSIS
Requires certain businesses to notify customers of certain information concerning the collection and sale of personally identifiable information and to allow customers to opt-in to collection and sale.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning certain businesses and personally identifiable information and supplementing Title 56 of the Revised Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. As used in P.L. , c. (C. ) (pending before the Legislature as this bill):
"Aggregate consumer information" means information that relates to a group or category of consumers, from which individual consumer identities have been removed, that is not linked or reasonably linkable to any consumer or household, including through use of a device. "Aggregate consumer information" does not mean one or more individual consumer records that have been deidentified.
"Biometric data" means an individual's physiological, biological, or behavioral characteristics, such as an individual's deoxyribonucleic acid, fingerprint, voice print, retina or iris image or other unique physical representation, that can be used, singly or in combination with each other or with other identifying data, to establish an individual's identity.
"Business" means a sole proprietorship, partnership, limited liability company, corporation, association, or other legal entity that is organized or operated for the profit or financial benefit of its shareholders or other owners that collects consumers' personally identifiable information or on the behalf of which that information is collected and that alone, or jointly with others, determines the purposes and means of the processing of consumers' personally identifiable information, that does business in this State, and that satisfies one or more of the following thresholds:
have an annual gross revenue of $25,000,000 or more;
derive 50 percent or more of its annual revenue from selling the personally identifiable information of consumers; or
alone, or in combination, annually buys, receives, sells, or shares for commercial purposes the personally identifiable information of at least 50,000 consumers.
"Business" shall include any entity that controls or is controlled by a business and that shares a common branding with the business.
"Business purpose" means the use of personally identifiable information for the business's or a service provider's operational purposes, or other notified purposes, pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill), provided that the use of personally identifiable information shall be reasonably necessary and proportionate to achieve the operational purpose for which the personally identifiable information was collected or processed or for another operational purpose that is compatible with the context in which the personally identifiable information was collected, which shall include, but not be limited to:
auditing related to a current interaction with the consumer and concurrent transactions, including, but not limited to, counting ad impressions to unique visitors, verifying positioning and quality of ad impressions, and auditing compliance with this specification and other standards;
detecting security incidents, protecting against malicious, deceptive, fraudulent, or illegal activity, and prosecuting those responsible for that activity;
debugging to identify and repair errors that impair existing intended functionality;
short-term, transient use, provided that the personally identifiable information is not disclosed to another third party and is not used to build a profile about a consumer or otherwise alter an individual consumer's experience outside the current interaction, including, but not limited to, the contextual customization of advertisements shown as part of the same interaction;
performing services on behalf of the business or service provider, including maintaining or servicing accounts, providing customer service, processing or fulfilling orders and transactions, verifying customer information, processing payments, providing financing, providing advertising or marketing services, providing analytic services, or providing similar services on behalf of the business or service provider;
undertaking internal research for technological development and demonstration; and
undertaking activities to verify or maintain the quality or safety of a service or device that is owned, manufactured, manufactured for, or controlled by the business, and to improve, upgrade, or enhance the service or device that is owned, manufactured, manufactured for, or controlled by the business.
"Collects" means buying, renting, gathering, obtaining, receiving, or accessing any personally identifiable information pertaining to a consumer by any means.
"Commercial purposes" means to advance a person's commercial or economic interests, such as by inducing another person to buy, rent, lease, join, subscribe to, provide, or exchange products, goods, property, information, or services, or enabling or effecting, directly or indirectly, a commercial transaction. "Commercial purposes" shall not include engaging in speech that State or federal courts have recognized as noncommercial speech, including political speech and journalism.
"Consumer" means a natural person who is a New Jersey resident.
"Deidentified information" means information that cannot reasonably identify, relate to, describe, be capable of being associated with, or be linked, directly or indirectly, to a particular consumer, provided that a business that uses deidentified information has:
implemented technical safeguards that prohibit reidentification of the consumer to whom the information pertains;
implemented business processes that specifically prohibit reidentification of the information;
implemented business process to prevent inadvertent release of deidentified information; and
makes no attempt to reidentify the information.
"Designated request address" means a mailing address, electronic mail address, Internet website, toll-free telephone number, or other applicable contact information that a consumer may use to request the information required to be provided pursuant to section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill).
"Device" means any physical object that is capable of connecting to the Internet, either directly or indirectly, or to another device.
"Family" means a custodial parent or guardian and any minor children over which the parent or guardian has custody.
"Person" means an individual, proprietorship, firm, partnership, joint venture, syndicate, business trust, corporation, limited liability company, association, committee, or any other organization or group of persons acting in concert.
"Personally identifiable information" means any information that personally identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, to a consumer or household, including, but not limited to:
identifiers such as a real name, alias, postal address, unique personal identifier, online identifier, internet protocol address, electronic mail address, account name, social security number, driver's license number, passport number, or other similar identifiers;
characteristics of protected classifications under State or federal law;
commercial information, including records of personal property, products or services purchased, obtained, or considered, or other purchasing or consuming histories or tendencies;
biometric information;
Internet or other electronic network activity information, including, but not limited to, browsing history, search history, and information regarding a consumer's interaction with an Internet website, application, or advertisement;
geolocation data;
audio, electronic, visual, thermal, olfactory, or similar information;
professional or employment-related information;
education records, defined as information that is not publicly available personally identifiable information, as defined in the "Family Educational Rights and Privacy Act of 1974," (20 U.S.C. s.1232g); and
inferences drawn from any of the information identified in this subdivision to create a profile about a consumer reflecting the consumer's preferences, characteristics, psychological trends, predispositions, behavior, attitudes, intelligence, abilities, and aptitudes.
"Personally identifiable information" does not include publicly available information or aggregate consumer information.
"Probabilistic identifier" means the identification of a consumer for a device to a degree of certainty of more probable than not based on any categories of personally identifiable information included in, or similar to, the categories enumerated in the definition of personally identifiable information.
"Processing" means any operation or set of operations that are performed on personally identifiable information, whether or not by automated means.
"Pseudonymize" or "pseudonymization" means the processing of personally identifiable information in a manner that renders the personally identifiable information no longer attributable to a specific consumer without the use of additional information, provided that the additional information is kept separately and is subject to technical and organizational measures to ensure that the personally identifiable information is not attributed to an identified or identifiable consumer.
"Publicly available information" means information that is lawfully made available from federal, State, or local government records, or widely-distributed media.
"Research" means scientific, systematic study and observation, including basic research or applied research that is in in the public interest in the area of public health. Research with personally identifiable information that may have been collected from a consumer in the course of the consumer's interactions with a business service or device for other purposes shall be:
compatible with the business purpose for which the personally identifiable information was collected;
subsequently pseudonymized and deidentified, or deidentified and in the aggregate, so that the information cannot reasonably identify, relate to, describe, be capable of being associated with, or be linked, directly or indirectly, to a particular consumer;
made subject to technical safeguards that prohibit reidentification of the consumer to whom the information may pertain;
subject to business processes that specifically prohibit reidentification of the information;
made subject to business processes to prevent inadvertent release of deidentified information;
protected from any reidentification attempts;
used solely for research purposes that are compatible with the context in which the personally identifiable information was collected;
not be used for any commercial purpose; and
subjected by the business conducting the research to additional security controls that limit access to the research data to only those individuals in a business as are necessary to carry out the research purpose.
"Sell," "selling," "sale," or "sold," means selling, renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or by electronic or other means, a consumer's personally identifiable information by the business to another business or a third party for monetary or other valuable consideration. "Sell," "selling," "sale," or "sold" shall not include a business selling personally identifiable information when:
a consumer uses or directs the business to intentionally disclose personally identifiable information or uses the business to intentionally interact with a third party, provided the third party does not also sell the personally identifiable information, unless that disclosure would be consistent with the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill). An intentional interaction occurs when the consumer intends to interact with the third party, through one or more deliberate interactions. Hovering over, muting, pausing, or closing a given piece of content does not constitute a consumer's intent to interact with a third party;
the business uses or shares an identifier for a consumer who has opted out of the sale of the consumer's personally identifiable information for the purposes of alerting third parties that the consumer has opted out of the sale of the consumer's personally identifiable information;
the business uses or shares with a service provider personally identifiable information of a consumer that is necessary to perform a business purpose if both of the following conditions are met:
the business has provided notice of that personally identifiable information being used or shared in its terms and conditions consistent with P.L. , c. (C. ) (pending before the Legislature as this bill); and
the service provider does not further collect, sell, or use the personally identifiable information of the consumer except as necessary to perform the business purpose;
the business transfers to a third party the personally identifiable information of a consumer as an asset that is part of a merger, acquisition, bankruptcy, or other transaction in which the third party assumes control of all or part of the business, provided that information is used or shared consistently with section 4 and section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill).
"Service" or "services" means work, labor, and services, including services furnished in connection with the sale or repair of goods.
"Service provider" means a sole proprietorship, partnership, limited liability company, corporation, association, or other legal entity that is organized or operated for the profit or financial benefit of its shareholders or other owners, that processes information on behalf of a business and to which the business discloses a consumer's personally identifiable information for a business purpose pursuant to a written contract, provided that the contract prohibits the entity receiving the information from retaining, using, or disclosing the personally identifiable information for any purpose other than for the specific purpose of performing the services specified in the contract for the business, or as otherwise permitted by P.L. , c. (C. ) (pending before the Legislature as this bill), including retaining, using, or disclosing the personally identifiable information for a commercial purpose other than providing the services specified in the contract with the business.
"Third party" means a person who is not any of the following:
the business that collects personally identifiable information from a consumer pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill);
a person to whom the business discloses a consumer's personally identifiable information for a business purpose pursuant to a written contract, provided that the contract:
prohibits the person receiving the personally identifiable information from:
selling the personally identifiable information;
retaining using, or disclosing the personally identifiable information for any purpose other than for the specific purpose of performing the services specified in the contract, including retaining, using, or disclosing the personally identifiable information for a commercial purpose other than providing the services specified in the contract;
retaining using, or disclosing the personally identifiable information outside of the direct business relationship between the person and the business; and
includes a certification made by the person receiving the personally identifiable information that the person understands the restrictions on selling, retaining, using, or disclosing the personally identifiable information.
"Unique identifier" or "unique personal identifier" means a persistent identifier that can be used to recognize a consumer, a family, or a device that is linked to a consumer or family, over time and across different services, including, but not limited to, a device identifier; an Internet Protocol address; browser cookies, network beacons, pixel tags, mobile advertisement identifiers, or similar tracking technology; customer number, unique pseudonym, or user alias; telephone numbers, or other forms of persistent or probabilistic identifiers that can be used to identify a particular consumer or device.
"Verifiable consumer request" means a request that is made by a consumer, by a consumer on behalf of the consumer's minor child, or by a natural person or a person registered with the Secretary of State, authorized by the consumer to act on the consumer's behalf, and that the business can reasonably verify, pursuant to regulations adopted by the Attorney General pursuant to section 15 of P.L. , c. (C. ) (pending before the Legislature as this bill) to be the consumer about whom the business has collected personally identifiable information.
2. a. A business shall be prohibited from collecting or selling a consumer's personally identifiable information unless a consumer affirmatively opts in to the collection, pursuant to section 9 of P.L. , c. (C. ) (pending before the Legislature as this bill). A business shall not require a consumer to create an account in order to direct the business not to collect or sell the consumer's personally identifiable information.
b. A consumer shall have the right to request that a business that collects a consumer's personally identifiable information disclose to that consumer the categories and specific pieces of personally identifiable information the business has collected.
c. A business that collects a consumer's personally identifiable information shall, at or before the point of collection, inform consumers as to the categories of personally identifiable information to be collected and the purposes for which the categories of personally identifiable information shall be used. A business shall not collect additional categories of personally identifiable information or use personally identifiable information collected for additional purposes without providing the consumer with notice consistent with this section.
d. A business shall provide the information specified in subsection b. of this section to a consumer only upon receipt of a verifiable consumer request.
e. A business that receives a verifiable consumer request from a consumer to access personally identifiable information shall promptly take steps to disclose and deliver, free of charge to the consumer, the personally identifiable information required by this section. The information may be delivered by mail or electronically, and if provided electronically, the information shall be in a portable and, to the extent technically feasible, readily usable format that allows the consumer to transmit this information to another entity without hindrance. A business may provide personally identifiable information to a consumer at any time, but shall not be required to provide personally identifiable information to a consumer more than twice in a 12-month period.
f. A business is not obligated to provide information to the consumer pursuant to sections 2 through 5 of P.L. , c. (C. ) (pending before the Legislature as this bill) if the business cannot verify, pursuant to regulations adopted by the Attorney General pursuant to section 15 of P.L. , c. (C. ) (pending before the Legislature as this bill), that the consumer making the request is the consumer about whom the business has collected information or is a person authorized by the consumer to act on such consumer's behalf.
g. This section shall not require a business to retain any personally identifiable information collected for a single, one-time transaction, if the personally identifiable information is not sold or retained by the business or to reidentify or otherwise link information that is not maintained in a manner that would be considered personally identifiable information.
3. a. A consumer shall have the right to request that a business delete any personally identifiable information about the consumer that the business has collected from the consumer.
b. A business that collects personally identifiable information about consumers shall disclose, pursuant to section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill), the consumer's right to request the deletion of the consumer's personally identifiable information.
c. A business that receives a verifiable consumer request from a consumer to delete the consumer's personally identifiable information pursuant to subsection a. of this section shall delete the consumer's personally identifiable information from its records and direct any service providers to delete the consumer's personally identifiable information from their records.
d. A business or a service provider shall not be required to comply with a consumer's request to delete the consumer's personally identifiable information if it is necessary for the business or service provider to maintain the consumer's personally identifiable information in order to:
(1) complete the transaction for which the personally identifiable information was collected, fulfill the terms of a written warranty or product recall conducted in accordance with federal law, provide a good or service requested by the consumer, or reasonably anticipated within the context of a business' ongoing business relationship with the consumer, or otherwise perform a contract between the business and the consumer;
(2) detect security incidents, protect against malicious, deceptive, fraudulent, or illegal activity; or prosecute those responsible for that activity;
(3) debug to identify and repair errors that impair existing intended functionality;
(4) exercise free speech, ensure the right of another consumer to exercise that consumer's right of free speech, or exercise another right provided for by law;
(5) engage in public or peer-reviewed scientific, historical, or statistical research in the public interest that adheres to all other applicable ethics and privacy laws, when the business' deletion of the information is likely to render impossible or seriously impair the achievement of such research, if the consumer has provided informed consent;
(6) to enable solely internal uses that are reasonably aligned with the expectations of the consumer based on the consumer's relationship with the business;
(7) comply with a legal obligation; or
(8) otherwise use the consumer's personally identifiable information, internally, in a lawful manner that is compatible with the context in which the consumer provided the personally identifiable information.
4. a. A consumer shall have the right to request that a business that collects personally identifiable information about the consumer disclose to the consumer the following:
(1) the categories of personally identifiable information it has collected about that consumer;
(2) the categories of sources from which the personally identifiable information is collected;
(3) the business or commercial purpose for collecting or selling personally identifiable information;
(4) the categories of third parties with whom the business shares personally identifiable information; and
(5) the specific pieces of personally identifiable information it has collected about that consumer.
b. A business that collects personally identifiable information about a consumer shall disclose to the consumer, pursuant to paragraph (3) of subsection a. of section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill), the information specified in subsection a. of this section upon receipt of a verifiable consumer request from the consumer.
c. A business that collects personally identifiable information about a consumer shall disclose, pursuant to subparagraph (b) of paragraph (5) of subsection a. of section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill):
(1) the categories of personally identifiable information it has collected about consumers;
(2) the categories of sources from which the personally identifiable information is collected;
(3) the business or commercial purpose for collecting or selling personally identifiable information;
(4) the categories of third parties with whom the business shares personally identifiable information; and
(5) that a consumer has the right to request the specific pieces of personally identifiable information the business has collected about that consumer.
d. This section shall not require a business to do the following:
(1) retain any personally identifiable information about a consumer collected for a single one-time transaction if, in the ordinary course of business, that information about the consumer is not retained; and
(2) reidentify or otherwise link any data that, in the ordinary course of business, is not maintained in a manner that would be considered personally identifiable information.
5. a. A consumer shall have the right to request that a business that sells the consumer's personally identifiable information, or that discloses it for a business purpose, disclose to that consumer:
(1) the categories of personally identifiable information that the business collected about the consumer;
(2) the categories of personally identifiable information that the business sold about the consumer and the categories of third parties to whom the personally identifiable information was sold, by category or categories of personally identifiable information for each category of third parties to whom the personally identifiable information was sold; and
(3) the categories of personally identifiable information that the business disclosed about the consumer for a business purpose.
b. A business that sells personally identifiable information about a consumer, or that discloses a consumer's personally identifiable information for a business purpose, shall disclose, pursuant to paragraph (4) of subsection a. of section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill), the information specified in subsection a. of this section to the consumer upon receipt of a verifiable consumer request from the consumer.
c. A business that sells consumers' personally identifiable information, or that discloses consumers' personally identifiable information for a business purpose, shall disclose, pursuant to subparagraph (c) of paragraph (5) of subsection a. of section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill):
(1) the category or categories of consumers' personally identifiable information it has sold, or if the business has not sold consumers' personally identifiable information, it shall disclose that fact; and
(2) the category or categories of consumers' personally identifiable information it has disclosed for a business purpose, or if the business has not disclosed the consumers' personally identifiable information for a business purpose, it shall disclose that fact.
d. A third party shall not sell personally identifiable information about a consumer that has been sold to the third party by a business unless the consumer has received explicit notice and is provided an opportunity to exercise the right to opt-in pursuant to section 6 of P.L. , c. (C. ) (pending before the Legislature as this bill).
6. a. A business that sells consumers' personally identifiable information to third parties shall provide notice to consumers, pursuant to subsection a. of section 9 of P.L. , c. (C. ) (pending before the Legislature as this bill), that this information may be sold and that consumers have the "right to refuse to opt-in" of the sale of their personally identifiable information to third parties.
b. A consumer shall have the right, at any time, to direct a business that sells personally identifiable information about the consumer to third parties not to sell the consumer's personally identifiable information. This right may be referred to as the "right to opt-out."
c. If a third party materially alters how it uses or shares the personally identifiable information of a consumer in a manner that is materially inconsistent with the promises made at the time of collection, it shall provide prior notice of the new or changed practice to the consumer. The notice shall be sufficiently prominent and robust to ensure that existing consumers can easily exercise their choices consistently with the provisions of this section.
d. A third party that violates any of the restrictions provided in P.L. , c. (C. ) (pending before the Legislature as this bill) shall be liable for the violations. A business that discloses personally identifiable information to a third party in compliance with the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill) shall not be liable under P.L. , c. (C. ) (pending before the Legislature as this bill) if the third party receiving the personally identifiable information uses it in violation of the restrictions provided in P.L. , c. (C. ) (pending before the Legislature as this bill), provided that, at the time of disclosing the personally identifiable information, the business does not have actual knowledge, or reason to believe, that the third party intends to commit a violation.
7. a. (1) A business shall not discriminate against a consumer because the consumer exercised any of the consumer's rights pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill), including, but not limited to, by:
(a) denying goods or services to the consumer;
(b) charging different prices or rates for goods or services, including through the use of discounts or other benefits or imposing penalties;
(c) providing a different level or quality of goods or services to the consumer; or
(d) suggesting that the consumer will receive a different price or rate for goods or services or a different level or quality of goods or services.
(2) Nothing in this subsection prohibits a business from charging a consumer a different price or rate, or from providing a different level or quality of goods or services to the consumer, if that difference is reasonably related to the value provided to the business by the consumer's personally identifiable information.
b. (1) A business may offer financial incentives, including payments to consumers as compensation, for the collection of personally identifiable information, the sale of personally identifiable information, or the deletion of personally identifiable information. A business may also offer a different price, rate, level, or quality of goods or services to the consumer if that price or difference is directly related to the value provided to the business by the consumer's personally identifiable information.
(2) A business that offers any financial incentives pursuant to this subsection shall notify consumers of the financial incentives in a manner that is consistent with the provisions of section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill).
(3) A business may enter a consumer into a financial incentive program only if the consumer gives the business prior opt-in consent pursuant to section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill) that clearly describes the material terms of the financial incentive program, and which may be revoked by the consumer at any time.
(4) A business shall not use financial incentive practices that are unjust, unreasonable, coercive, or usurious in nature.
8. a. In order to comply with P.L. , c. (C. ) (pending before the Legislature as this bill), a business shall, in a form that is reasonably accessible to a consumer:
(1) (a) make available to consumers two or more designated request addresses for information required to be disclosed pursuant to section 4 and section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill), including, at a minimum, a toll-free telephone number. A business that operates exclusively online and has a direct relationship with a consumer from whom it collects personally identifiable information shall only be required to provide an electronic mail address for submitting requests for information required to be disclosed pursuant to section 4 and section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill);
(b) if the business maintains an Internet website, make the Internet website available to a consumer to submit requests for information required to be disclosed pursuant to section 4 and section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill);
(2) disclose and deliver the required information to a consumer free of charge within 45 days of receiving a verifiable consumer request from the consumer. The business shall promptly take steps to determine whether the request is a verifiable consumer request, but this requirement shall not extend the business's duty to disclose and deliver the information within 45 days of receipt of the consumer's request. The time period to provide the required information may be extended once by an additional 45 days when reasonably necessary, provided the consumer is provided notice of the extension within the first 45-day period. The disclosure shall cover the 12-month period preceding the business' receipt of the verifiable consumer request and shall be made in writing and delivered through the consumer's account with the business, if the consumer maintains an account with the business, or by mail or electronically at the consumer's option if the consumer does not maintain an account with the business, in a readily usable format that allows the consumer to transmit this required information from one entity to another entity without hindrance. The business may require authentication of the consumer that is reasonable in light of the nature of the personally identifiable information requested, but shall not require the consumer to create an account with the business in order to make a verifiable consumer request. If the consumer maintains an account with the business, the business may require the consumer to submit the request through that account;
(3) for the purposes of subsection b. of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill):
(a) identify the consumer, associate the information provided by the consumer in the verifiable consumer request to any personally identifiable information previously collected by the business about the consumer;
(b) identify by category or categories the personally identifiable information collected about the consumer in the preceding 12 months by reference to the enumerated category or categories in subsection c. of this section that most closely describes the personally identifiable information collected;
(4) for the purposes of subsection b. of section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill):
(a) identify the consumer and associate the information provided by the consumer in the verifiable consumer request to any personally identifiable information previously collected by the business about the consumer;
(b) identify by category or categories the personally identifiable information of the consumer that the business sold in the preceding 12 months by reference to the enumerated category in subsection c. of this section that most closely describes the personally identifiable information, and provide the categories of third parties to whom the consumer's personally identifiable information was sold in the preceding 12 months by reference to the enumerated category or categories in subsection c. of this section that most closely describes the personally identifiable information sold. The business shall disclose the information in a list that is separate from the list generated for the purposes of subparagraph (c) of this paragraph;
(c) identify by category or categories the personally identifiable information of the consumer that the business disclosed for a business purpose in the preceding 12 months by reference to the enumerated category or categories in subsection c. of this section that most closely describes the personally identifiable information, and provide the categories of third parties to whom the consumer's personally identifiable information was disclosed for a business purpose in the preceding 12 months by reference to the enumerated category or categories in subsection c. of this section that most closely describes the personally identifiable information disclosed. The business shall disclose the information in a list that is separate from a list generated for the purposes of subparagraph (b) of this paragraph;
(5) disclose the following information in its online privacy policy or policies if the business has an online privacy policy or policies and in any State-specific description of consumers' privacy rights, or if the business does not maintain those policies, on its Internet website and update that information at least once every 12 months:
(a) a description of a consumer's rights pursuant to sections 2 through 5 and section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill) and one or more designated methods for submitting requests;
(b) for the purposes of subsection c. of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill), a list of the categories of personally identifiable information it has collected about consumers in the preceding 12 months by reference to the enumerated category or categories in subsection c. of this section that most closely describe the personally identifiable information collected;
(c) for the purposes of paragraphs (1) and (2) of subsection c. of section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill), two separate lists:
(i) one of which shall be a list of the categories of personally identifiable information it has sold about consumers in the preceding 12 months by reference to the enumerated category or categories in subsection c. of this section that most closely describe the personally identifiable information sold, or if the business has not sold consumers' personally identifiable information in the preceding 12 months, the business shall disclose that fact; and
(ii) one of which shall be a list of the categories of personally identifiable information it has disclosed about consumers for a business purpose in the preceding 12 months by reference to the enumerated category in subsection c. of this section that most closely describe the personally identifiable information disclosed, or if the business has not disclosed consumers' personally identifiable information for a business purpose in the preceding 12 months, the business shall disclose that fact;
(6) ensure that all individuals responsible for handling consumer inquiries about the business' privacy practices or the business' compliance with P.L. , c. (C. ) (pending before the Legislature as this bill) are informed of all requirements in sections 2 through 5 and section 7 of P.L. , c. (C. ) (pending before the Legislature as this bill), and this section, and how to direct consumers to exercise their rights under those sections;
(7) use any personally identifiable information collected from the consumer in connection with the business' verification of the consumer's request solely for the purposes of verification.
b. A business is not obligated to provide the information required by section 4 and section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill) to the same consumer more than twice in a 12-month period.
c. The categories of personally identifiable information required to be disclosed pursuant to section 4 and section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill) shall follow the definition of personally identifiable information in section 1 of P.L. , c. (C. ) (pending before the Legislature as this bill).
9. a. A business that is required to comply with section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill) shall, in a form that is reasonably accessible to consumers:
(1) provide two clear and conspicuous links on the business's Internet homepage, titled "I Permit This Business To Collect My Personally Identifiable Information" and "I Permit This Business To Sell My Personally Identifiable Information," to an Internet webpage that enables a consumer, or a person authorized by the consumer, to opt-in to the collection or sale of the consumer's personally identifiable information;
(2) include a description of a consumer's rights pursuant to section 6 of P.L. , c. (C. ) (pending before the Legislature as this bill) in its online privacy policy or policies if the business has an online privacy policy or policies, including any State-specific description of a consumer's privacy rights;
(3) ensure that all individuals responsible for handling consumer inquiries about the business's privacy practices or the business's compliance with P.L. , c. (C. ) (pending before the Legislature as this bill) are informed of all requirements in section 6 of P.L. , c. (C. ) (pending before the Legislature as this bill) and this section and how to direct consumers to exercise their rights under those sections;
(4) for consumers who exercise their right not to opt-in to the collection or sale of their personally identifiable information, refrain from collecting or selling any of the consumer's personally identifiable information;
(5) for a consumer who has not opted in to the collection or sale of the consumer's personally identifiable information, respect the consumer's decision not to opt-in for at least 12 months before requesting that the consumer authorize the sale of the consumer's personally identifiable information; and
(6) use any personally identifiable information collected from the consumer in connection with the submission of the consumer's request not to opt-in to the sale of the consumer's personally identifiable information solely for the purposes of complying with the request.
b. Nothing in P.L. , c. (C. ) (pending before the Legislature as this bill) shall be construed to require a business to comply with P.L. , c. (C. ) (pending before the Legislature as this bill) by including the required links and text on the homepage that the business makes available to the public generally, if the business maintains a separate and additional homepage that is dedicated to State consumers and that includes the required links and text, and the business takes reasonable steps to ensure that State consumers are directed to the homepage for State consumers and not the homepage made available to the public generally.
c. A consumer may authorize another person solely to refuse to opt-in of the sale of the consumer's personally identifiable information on the consumer's behalf, and a business shall comply with an opt-in request received from a person authorized by the consumer to act on the consumer's behalf, pursuant to regulations adopted by the Attorney General under section 15 of P.L. , c. (C. ) (pending before the Legislature as this bill).
10. a. The obligations imposed on a business pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) shall not restrict a business's ability to:
(1) comply with federal, State, or local laws;
(2) comply with a civil, criminal, or regulatory inquiry, investigation, subpoena, or summons by federal, State, or local authorities;
(3) cooperate with law enforcement agencies concerning conduct or activity that the business, service provider, or third party reasonably and in good faith believes may violate federal, State, or local law;
(4) exercise or defend legal claims;
(5) collect, use, retain, sell, or disclose consumer information that is deidentified or in the aggregate consumer information;
(6) collect or sell a consumer's personally identifiable information if every aspect of that commercial conduct takes place wholly outside of the State. For the purposes of P.L. , c. (C. ) (pending before the Legislature as this bill), "commercial conduct takes place wholly outside of the State" means if the business collected a consumer's personally identifiable information while the consumer was outside of the State, no part of the sale of the consumer's personally identifiable information occurred in the State, and no personally identifiable information collected while the consumer was in the State is sold. This paragraph shall not permit a business from storing, including on a device, personally identifiable information about a consumer when the consumer is in the State and then collecting that personally identifiable information when the consumer and stored personally identifiable information is outside of the State.
b. The obligations imposed on businesses pursuant to section 4 and section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill) shall not apply where compliance by the business with P.L. , c. (C. ) (pending before the Legislature as this bill) would violate an evidentiary privilege under State law and shall not prevent a business from providing the personally identifiable information of a consumer to a person covered by an evidentiary privilege under State law as part of a privileged communication.
c. (1) The provisions of P.L. , c. (C. ) (pending before the Legislature as this bill) shall not apply to any of the following:
(a) protected health information collected by a covered entity or business associate subject to the privacy, security, and breach notification rules issued by the United States Department of Health and Human Services, Parts 160 and 164 of Title 45 of the Code of Federal Regulations, established pursuant to the federal "Health Insurance Portability and Accountability Act of 1996," Pub.L.104-191, and the federal "Health Information Technology for Economic and Clinical Health Act," (42 U.S.C. s.17921 et seq.);
(b) a covered entity governed by the privacy, security, and breach notification rules issued by the United States Department of Health and Human Services, Parts 160 and 164 of Title 45 of the Code of Federal Regulations, established pursuant to the federal "Health Insurance Portability and Accountability Act of 1996," Pub.L.104-191, to the extent the provider or covered entity maintains patient information in the same manner as medical information or protected health information as described in subparagraph (a) of this paragraph;
(c) information collected as part of a clinical trial subject to the Federal Policy for the Protection of Human Subjects, also known as the Common Rule, pursuant to good clinical practice guidelines issued by the International Council for Harmonisation of Technical Requirements for Pharmaceuticals for Human Use or pursuant to human subject protection requirements of the United States Food and Drug Administration.
(2) For purposes of this subsection, the definitions of "business associate," "covered entity," and "protected health information" in 45 C.F.R. s.160.103 shall apply.
d. (1) Nothing in P.L. , c. (C. ) (pending before the Legislature as this bill) shall be construed to apply to an activity involving the collection, maintenance, disclosure, sale, communication, or use of any personally identifiable information bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living by a "consumer reporting agency," as defined in 15 U.S.C. s.1681a, by a furnisher of information, as set forth in 15 U.S.C. s.1681s-2, who provides information for use in a "consumer report," as defined in 15 U.S.C. s.1681a, and by a user of a consumer report as set forth in 15 U.S.C. s.1681b.
(2) The provisions of paragraph (1) of this subsection shall apply only to the extent that activity involving the collection, maintenance, disclosure, sale, communication, or use of information by that agency, furnisher, or user is subject to regulation under the federal Fair Credit Reporting Act, 15 U.S.C. s.1681 et seq., and the information is not used, communicated, disclosed, or sold except as authorized by the Fair Credit Reporting Act.
e. Nothing in P.L. , c. (C. ) (pending before the Legislature as this bill) shall be construed to apply to a financial institution or an affiliate of a financial institution that is subject to Title V of the federal "Gramm-Leach-Bliley Act of 1999," 15 U.S.C. s.6801 et seq., and the rules and implementing regulations promulgated thereunder.
f. Nothing in P.L. , c. (C. ) (pending before the Legislature as this bill) shall be construed to apply to the sale of a consumer's personally identifiable information by the New Jersey Motor Vehicle Commission that is permitted by the federal "Drivers' Privacy Protection Act of 1994," Pub.L.103-322.
h. (1) The provisions of P.L. , c. (C. ) (pending before the Legislature as this bill) shall not apply to any of the following:
(a) personally identifiable information that is collected by a business about a natural person in the course of the natural person acting as a job applicant to, an employee of, owner of, director of, officer of, medical staff member of, or contractor of that business to the extent that the natural person's personally identifiable information is collected and used by the business solely within the context of the natural person's role or former role as a job applicant to, an employee of, owner of, director of, officer of, medical staff member of, or a contractor of that business;
(b) personally identifiable information that is collected by a business that is emergency contact information of the natural person acting as a job applicant to, an employee of, owner of, director of, officer of, medical staff member of, or contractor of that business to the extent that the personally identifiable information is collected and used solely within the context of having an emergency contact on file;
(c) personally identifiable information that is necessary for the business to retain to administer benefits for another natural person relating to the natural person acting as a job applicant to, an employee of, owner of, director of, officer of, medical staff member of, or contractor of that business to the extent that the personally identifiable information is collected and used solely within the context of administering those benefits.
(2) For the purposes of this subsection:
(a) "contractor" means a natural person who provides any service to a business pursuant to a written contract;
(b) "director" means a natural person designated in the articles of incorporation as such or elected by the incorporators and natural persons designated, elected, or appointed by any other name or title to act as directors, and their successors;
(c) "medical staff member" means a licensed physician and surgeon, dentist, or podiatrist, licensed pursuant to State law;
(d) "officer" means a natural person elected or appointed by the board of directors to manage the daily operations of a corporation, such as a chief executive officer, president, secretary, or treasurer;
(e) "owner" means a natural person who has one of the following:
(i) ownership of, or the power to vote, more than 50 percent of the outstanding shares of any class of voting security of a business;
(ii) control in any manner over the election of a majority of the directors or of individuals exercising similar functions; or
(iii) the power to exercise a controlling influence over the management of a company.
(3) This subsection shall not apply to subsection b. of section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill).
(4) The provisions of this subsection shall become inoperative one year after the date of enactment of P.L. , c. (C. ) (pending before the Legislature as this bill).
i. Notwithstanding a business's obligations to respond to and honor consumer rights requests pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill):
(1) a time period for a business to respond to any verified consumer request may be extended by up to 90 additional days where necessary, taking into account the complexity and number of the requests. The business shall inform the consumer of any such extension within 45 days of receipt of the request, together with the reasons for the delay;
(2) if the business does not take action on the request of the consumer, the business shall inform the consumer, without delay and at the latest within the time period permitted of response by this section, of the reasons for not taking action and any rights the consumer may have to appeal the decision to the business;
(3) if requests from a consumer are manifestly unfounded or excessive, in particular if requests number in excess of twice a year, a business may either charge a reasonable fee, taking into account the administrative costs of providing the information or communication or taking the action requested, or refuse to act on the request and notify the consumer of the reason for refusing the request. The business shall bear the burden of demonstrating to the Attorney General that any verified consumer request is manifestly unfounded or excessive.
j. A business that discloses personally identifiable information to a service provider shall not be liable under P.L. , c. (C. ) (pending before the Legislature as this bill) if the service provider receiving the personally identifiable information uses it in violation of the restrictions set forth in P.L. , c. (C. ) (pending before the Legislature as this bill), provided that, at the time of disclosing the personally identifiable information, the business does not have actual knowledge, or reason to believe, that the service provider intends to commit such a violation. A service provider shall likewise not be liable under P.L. , c. (C. ) (pending before the Legislature as this bill) for the obligations of a business for which it provides services as set forth in this title.
k. The provisions of P.L. , c. (C. ) (pending before the Legislature as this bill) shall not be construed to require a business to collect personally identifiable information that it would not otherwise collect in the ordinary course of its business, retain personally identifiable information for longer than it would otherwise retain such information in the ordinary course of its business, or reidentify or otherwise link information that is not maintained in a manner that would be considered personally identifiable information.
l. The rights afforded to consumers and the obligations imposed on the business in P.L. , c. (C. ) (pending before the Legislature as this bill) shall not adversely affect the rights and freedoms of other consumers.
m. (1) The obligations imposed on businesses by sections 2 through 5 and sections 8 through 9 of P.L. , c. (C. ) (pending before the Legislature as this bill) shall not apply to personally identifiable information reflecting a written or verbal communication or a transaction between the business and the consumer, where the consumer is a natural person who is acting as an employee, owner, director, officer, or contractor of a company, partnership, sole proprietorship, non-profit, or government agency and whose communications or transaction with the business occur solely within the context of the business conducting due diligence regarding, or providing or receiving a product or service to or from such company, partnership, sole proprietorship, non-profit, or government agency.
(2) For the purposes of this subsection:
(a) "contractor" means a natural person who provides any service to a business pursuant to a written contract;
(b) "director" means a natural person designated in the articles of incorporation as such or elected by the incorporators and natural persons designated, elected, or appointed by any other name or title to act as directors, and their successors;
(c) "officer" means a natural person elected or appointed by the board of directors to manage the daily operations of a corporation, such as a chief executive officer, president, secretary, or treasurer;
(d) "owner" means a natural person who has one of the following:
(i) ownership of, or the power to vote, more than 50 percent of the outstanding shares of any class of voting security of a business;
(ii) control in any manner over the election of a majority of the directors or of individuals exercising similar functions; or
(iii) the power to exercise a controlling influence over the management of a company.
(3) This subsection shall become inoperative one year after the date of enactment of P.L. , c. (C. ) (pending before the Legislature as this bill).
11. a. On or before six months after the date of enactment of P.L. , c. (C. ) (pending before the Legislature as this bill), the Attorney General shall solicit broad public participation and adopt regulations, pursuant to section 15 of P.L. , c. (C. ) (pending before the Legislature as this bill) to further the purposes of P.L. , c. (C. ) (pending before the Legislature as this bill), including, but not limited to, the following areas:
(1) updating as needed additional categories of personally identifiable information to those enumerated in section 1 of P.L. , c. (C. ) (pending before the Legislature as this bill) in order to address changes in technology, data collection practices, obstacles to implementation, and privacy concerns;
(2) updating as needed the definition of unique identifiers pursuant to section 1 of P.L. , c. (C. ) (pending before the Legislature as this bill) to address changes in technology, data collection, obstacles to implementation, and privacy concerns, and additional categories to the definition of designated methods for submitting requests to facilitate a consumer's ability to obtain information from a business pursuant to section 8 of P.L. , c. (C. ) (pending before the Legislature as this bill);
(3) establishing any exceptions necessary to comply with State or federal law, including, but not limited to, those relating to trade secrets and intellectual property rights, within one year of passage of P.L. , c. (C. ) (pending before the Legislature as this bill) and as needed thereafter;
(4) establishing rules and procedures for the following:
(a) to facilitate and govern the submission of a request by a consumer to opt-in or opt-out of the sale of personally identifiable information pursuant to section 6 of P.L. , c. (C. ) (pending before the Legislature as this bill).
(b) to govern business compliance with a consumer's opt-in or opt-out request; and
(c) for the development and use of a recognizable and uniform opt-in logo or button by all businesses to promote consumer awareness of the opportunity to opt-in of the sale of personally identifiable information;
(5) adjusting the monetary threshold in the definition of "business," pursuant to section 1 of P.L. , c. (C. ) (pending before the Legislature as this bill), in January of every odd-numbered year to reflect any increase in the federal Consumer Price Index, as defined in section 16 of P.L.2007, c.335 (C.39:2A-36.1);
(6) establishing rules, procedures, and any exceptions necessary to ensure that the notices and information that businesses are required to provide pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) are provided in a manner that may be easily understood by the average consumer, are accessible to consumers with disabilities, and are available in the language primarily used to interact with the consumer, including establishing rules and guidelines regarding financial incentive offerings, within one year of passage of P.L. , c. (C. ) (pending before the Legislature as this bill) and as needed thereafter;
(7) establishing rules and
procedures to further the purposes of section 4 and section 5 of P.L. ,
c. (C. ) (pending before the Legislature as this bill) and to
facilitate a consumer's or the consumer's authorized agent's ability to obtain
information pursuant to section 8 of P.L. , c. (C. ) (pending before
the Legislature as this bill), with the goal of minimizing the administrative
burden on consumers, taking into account available technology, security
concerns, and the burden on the business, to govern a business's determination
that a request for information received from a consumer is a verifiable
consumer request, including treating a request submitted through a
password-protected account maintained by the consumer with the business while
the consumer is logged into the account as a verifiable consumer request and
providing a mechanism for a consumer who does not maintain an account with the
business to request information through the business's authentication of the
consumer's identity, within one year of passage of P.L. , c. (C. )
(pending before the Legislature as this bill)and as needed thereafter.
12. Any provision of a contract or agreement of any kind that purports to waive or limit in any way a consumer's rights pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill), including, but not limited to, any right to a remedy or means of enforcement, shall be deemed contrary to public policy and shall be void and unenforceable. The provisions of this section shall not prevent a consumer from declining to request information from a business, declining to opt-in or opt-out of a business's sale of the consumer's personally identifiable information, or authorizing a business to sell the consumer's personally identifiable information after previously opting out.
13. a. A business or third party may seek the opinion of the Attorney General for guidance on how to comply with the provisions of P.L. , c. (C. ) (pending before the Legislature as this bill).
b. A business shall be in violation of P.L. , c. (C. ) (pending before the Legislature as this bill) if it fails to cure any alleged violation within 30 days after being notified of alleged noncompliance.
14. It shall be an unlawful practice and violation of P.L.1960, c.39 (C.56:8-1 et seq.) for a business or service provider to violate any provision of P.L. , c. (C. ) (pending before the Legislature as this bill).
15. The Attorney General, in consultation with the Director of the Division of Consumer Affairs in the Department of Law and Public Safety, shall promulgate rules and regulations, pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), necessary to effectuate the purposes of P.L. , c. (C. ) (pending before the Legislature as this bill).
16. This act shall take effect immediately.
STATEMENT
This bill requires that certain businesses, as defined in the bill, are to follow certain requirements concerning the collection of a consumer's personally identifiable information, as defined in the bill. A business is to be prohibited from collecting a consumer's personally identifiable information unless a consumer affirmatively opts in to the collection,. A business is not to require a consumer to create an account in order to direct the business not to sell the consumer's personally identifiable information. A consumer is to have the right to request that a business that collects a consumer's personally identifiable information disclose to that consumer the categories and specific pieces of personally identifiable information the business has collected. A business that collects a consumer's personally identifiable information is to, at or before the point of collection, inform consumers as to the categories of personally identifiable information to be collected and the purposes for which the categories of personally identifiable information shall be used. A business is not to collect additional categories of personally identifiable information or use personally identifiable information collected for additional purposes without providing the consumer with notice consistent with this section.
The bill provides that a business that receives a verifiable consumer request from a consumer to access personally identifiable information is to promptly take steps to disclose and deliver, free of charge to the consumer, the personally identifiable information required by this section. The information may be delivered by mail or electronically, and if provided electronically, the information is to be in a portable and, to the extent technically feasible, readily useable format that allows the consumer to transmit this information to another entity without hindrance. A business may provide personally identifiable information to a consumer at any time, but is not to be required to provide personally identifiable information to a consumer more than twice in a 12-month period.
The bill provides that a consumer is to have the right to request that a business delete any personally identifiable information about the consumer that the business has collected from the consumer. A business that receives a verifiable consumer request from a consumer to delete the consumer's personally identifiable information is to delete the consumer's personally identifiable information from its records and direct any service providers to delete the consumer's personally identifiable information from their records.
A business or a service provider is not to be required to comply with a consumer's request to delete the consumer's personally identifiable information if it is necessary for the business or service provider to maintain the consumer's personally identifiable information in order to perform certain tasks listed in the bill.
The bill provides that a consumer is to have the right to request that a business that collects and sells personally identifiable information about the consumer disclose to the consumer certain information listed in the bill.
The bill provides that a third party is not to sell personally identifiable information about a consumer that has been sold to the third party by a business unless the consumer has received explicit notice and is provided an opportunity to exercise the right to opt-in pursuant to the bill.
The bill provides that a business that sells consumers' personally identifiable information to third parties shall provide notice to consumers that this information may be sold and that consumers have the "right not to opt-in" to the sale of their personally identifiable information. A consumer shall have the right, at any time, to direct a business that sells personally identifiable information about the consumer to third parties not to sell the consumer's personally identifiable information. This right may be referred to as the "right to opt-out."
The bill provides that a business shall not discriminate against a consumer because the consumer exercised any of the consumer's rights pursuant to the bill.
A business may charge a consumer a different price or rate, or provide a different level or quality of goods or services to the consumer, if that difference is reasonably related to the value provided to the business by the consumer's personally identifiable information. A business may also offer financial incentives, including payments to consumers as compensation, for the collection of personally identifiable information, the sale of personally identifiable. A business is to notify consumers of financial incentives.
The bill provides that a business is to, in a form that is reasonably accessible to a consumer, make available certain information concerning how a consumer may submit a request to a business for information concerning their personally identifiable information. A business is not obligated to provide the information required by the bill to the same consumer more than twice in a 12-month period.
The bill provides that a business subject to the provisions of the bill provide to consumers certain information as described in the bill.
The bill provides that the obligations imposed on businesses pursuant to the bill are not to restrict a business' ability to undertake certain action as provided in the bill.
The bill provides that the obligations imposed on businesses pursuant to the bill are not to apply in certain instances listed in the bill.
The bill provides that a business or third party may seek the opinion of the Attorney General for guidance on how to comply with the provisions of the bill. A business is to be in violation of the bill if it fails to cure any alleged violation within 30 days after being notified of alleged noncompliance.
The bill requires that, on or before six months after the date of enactment of the bill, the Attorney General shall solicit broad public participation and adopt regulations to further the purposes of the bill, including certain actions as provided in the bill.
The bill prohibits any provision of a contract or agreement of any kind from waiving or limiting in any way a consumer's rights pursuant to the bill, including, but not limited to, any right to a remedy or means of enforcement, and is to be deemed contrary to public policy and shall be void and unenforceable.
The bill provides that it is to be an unlawful practice and violation of the consumer fraud act for a business or service provider to violate any provision of the bill, which is punishable by a monetary penalty of not more than $10,000 for a first offense and not more than $20,000 for a subsequent offense.
