Enrolled Copy

S.B. 227

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CONSUMER PRIVACY ACT

22022 GENERAL SESSION

3STATE OF UTAH

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Chief Sponsor: Kirk A. Cullimore

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House Sponsor: Brady Brammer

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LONG TITLE

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General Description:

9This bill enacts the Utah Consumer Privacy Act.

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Highlighted Provisions:11This bill:12< defines terms;

13< provides consumers the right to:14

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access and delete certain personal data maintained by certain businesses; and15

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opt out of the collection and use of personal data for certain purposes;

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requires certain businesses that control and process consumers' personal data to:17

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safeguard consumers' personal data;

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provide clear information to consumers regarding how the consumers' personal

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data are used; andC

accept and comply with a consumer's request to exercise the consumer's rights

under this bill;< creates a right for a consumer to know what personal data a business collects, how
the business uses the personal data, and whether the business sells the personal data;< upon request and subject to exceptions, requires a business to delete a consumer's
personal data or stop selling the consumer's personal data;< allows the Division of Consumer Protection to accept and investigate consumer
complaints regarding the processing of personal data;< authorizes the Office of the Attorney General to take enforcement action andimpose penalties; andS.B. 22730

< makes technical changes.

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Money Appropriated in this Bill:

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None
Other Special Clauses:
This bill provides a special effective date.

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Utah Code Sections Affected:

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AMENDS:

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Enrolled Copy

13-2-1, as last amended by Laws of Utah 2021, Chapter 266
ENACTS:39

13-61-101, Utah Code Annotated 1953

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13-61-102, Utah Code Annotated 1953

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13-61-103, Utah Code Annotated 1953

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13-61-201, Utah Code Annotated 1953

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13-61-202, Utah Code Annotated 1953

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13-61-203, Utah Code Annotated 195345

13-61-301, Utah Code Annotated 1953

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13-61-302, Utah Code Annotated 1953

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13-61-303, Utah Code Annotated 1953

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13-61-304, Utah Code Annotated 1953

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13-61-305, Utah Code Annotated 1953

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13-61-401, Utah Code Annotated 1953

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13-61-402, Utah Code Annotated 1953

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13-61-403, Utah Code Annotated 1953

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13-61-404, Utah Code Annotated 1953

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Be it enacted by the Legislature of the state of Utah:

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Section 1. Section 13-2-1 is amended to read:57

13-2-1. Consumer protection division established -- Functions.

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S.B. 227(1) There is established within the Department of Commerce the Division of Consumer
Protection.

60(2) The division shall administer and enforce the following:

61(a) Chapter 5, Unfair Practices Act;62(b) Chapter 10a, Music Licensing Practices Act;63(c) Chapter 11, Utah Consumer Sales Practices Act;64(d) Chapter 15, Business Opportunity Disclosure Act;65(e) Chapter 20, New Motor Vehicle Warranties Act;

66(f) Chapter 21, Credit Services Organizations Act;67(g) Chapter 22, Charitable Solicitations Act;68(h) Chapter 23, Health Spa Services Protection Act;69(i) Chapter 25a, Telephone and Facsimile Solicitation Act;70(j) Chapter 26, Telephone Fraud Prevention Act;

71(k) Chapter 28, Prize Notices Regulation Act;72(l) Chapter 32a, Pawnshop and Secondhand Merchandise Transaction Information Act;73(m) Chapter 34, Utah Postsecondary Proprietary School Act;

74(n) Chapter 34a, Utah Postsecondary School State Authorization Act;75(o) Chapter 41, Price Controls During Emergencies Act;76(p) Chapter 42, Uniform Debt-Management Services Act;

77(q) Chapter 49, Immigration Consultants Registration Act;

78(r) Chapter 51, Transportation Network Company Registration Act;

79(s) Chapter 52, Residential Solar Energy Disclosure Act;80(t) Chapter 53, Residential, Vocational and Life Skills Program Act;81(u) Chapter 54, Ticket Website Sales Act;82(v) Chapter 56, Ticket Transferability Act; [and]83(w) Chapter 57, Maintenance Funding Practices Act[.]; and84(x) Chapter 61, Utah Consumer Privacy Act.

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Section 2. Section 13-61-101 is enacted to read:-3-

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CHAPTER 61. UTAH CONSUMER PRIVACY ACT

87Part 1. General Provisions

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13-61-101. Definitions.

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As used in this chapter:

90(1) "Account" means the Consumer Privacy Restricted Account established in Section

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13-61-403.

92(2) "Affiliate" means an entity that:

93(a) controls, is controlled by, or is under common control with another entity; or

94(b) shares common branding with another entity.

95(3) "Aggregated data" means information that relates to a group or category of96

consumers:

97(a) from which individual consumer identities have been removed; and98(b) that is not linked or reasonably linkable to any consumer.

99(4) "Air carrier" means the same as that term is defined in 49 U.S.C. Sec. 40102.

100(5) "Authenticate" means to use reasonable means to determine that a consumer's

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request to exercise the rights described in Section 13-61-201 is made by the consumer who is102

entitled to exercise those rights.

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(6) (a) "Biometric data" means data generated by automatic measurements of anindividual's unique biological characteristics.
(b) "Biometric data" includes data described in Subsection (6)(a) that are generated by106

automatic measurements of an individual's fingerprint, voiceprint, eye retinas, irises, or any

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other unique biological pattern or characteristic that is used to identify a specific individual.

108(c) "Biometric data" does not include:

109(i) a physical or digital photograph;

110(ii) a video or audio recording;111(iii) data generated from an item described in Subsection (6)(c)(i) or (ii);

112(iv) information captured from a patient in a health care setting; or113(v) information collected, used, or stored for treatment, payment, or health care-4-

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operations as those terms are defined in 45 C.F.R. Parts 160, 162, and 164.

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S.B. 227(7) "Business associate" means the same as that term is defined in 45 C.F.R. Sec.
160.103.

117(8) "Child" means an individual younger than 13 years old.

118(9) "Consent" means an affirmative act by a consumer that unambiguously indicates119

the consumer's voluntary and informed agreement to allow a person to process personal data

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related to the consumer.

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(10) (a) "Consumer" means an individual who is a resident of the state acting in an
individual or household context.

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(b) "Consumer" does not include an individual acting in an employment or commercial
context.

125(11) "Control" or "controlled" as used in Subsection (2) means:126(a) ownership of, or the power to vote, more than 50% of the outstanding shares of any

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class of voting securities of an entity;

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(b) control in any manner over the election of a majority of the directors or of theindividuals exercising similar functions; or130(c) the power to exercise controlling influence of the management of an entity.

131(12) "Controller" means a person doing business in the state who determines the132

purposes for which and the means by which personal data are processed, regardless of whether

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the person makes the determination alone or with others.

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(13) "Covered entity" means the same as that term is defined in 45 C.F.R. Sec.
160.103.

136(14) "Deidentified data" means data that:

137(a) cannot reasonably be linked to an identified individual or an identifiable individual;

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and

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(b) are possessed by a controller who:

140(i) takes reasonable measures to ensure that a person cannot associate the data with an141

individual;-5-

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143(ii) publicly commits to maintain and use the data only in deidentified form and not
attempt to reidentify the data; and

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Enrolled Copy(iii) contractually obligates any recipients of the data to comply with the requirements
described in Subsections (14)(b)(i) and (ii).

146(15) "Director" means the director of the Division of Consumer Protection.

147(16) "Division" means the Division of Consumer Protection created in Section 13-2-1.

148(17) "Governmental entity" means the same as that term is defined in Section

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63G-2-103.

150(18) "Health care facility" means the same as that term is defined in Section 26-21-2.

151(19) "Health care provider" means the same as that term is defined in Section 26-21-2.

152(20) "Identifiable individual" means an individual who can be readily identified,153

directly or indirectly.

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(21) "Institution of higher education" means a public or private institution of higher
education.

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(22) "Local political subdivision" means the same as that term is defined in Section
11-14-102.

158(23) "Nonprofit corporation" means:

159(a) the same as that term is defined in Section 16-6a-102; or160(b) a foreign nonprofit corporation as defined in Section 16-6a-102.

161(24) (a) "Personal data" means information that is linked or reasonably linkable to an

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identified individual or an identifiable individual.

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(b) "Personal data" does not include deidentified data, aggregated data, or publicly
available information.

165(25) "Process" means an operation or set of operations performed on personal data,

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including collection, use, storage, disclosure, analysis, deletion, or modification of personal

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data.

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(26) "Processor" means a person who processes personal data on behalf of a controller.

169(27) "Protected health information" means the same as that term is defined in 45 C.F.R.

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Sec. 160.103.

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S.B. 227(28) "Pseudonymous data" means personal data that cannot be attributed to a specificindividual without the use of additional information, if the additional information is:

173(a) kept separate from the consumer's personal data; and174(b) subject to appropriate technical and organizational measures to ensure that the175

personal data are not attributable to an identified individual or an identifiable individual.

176(29) "Publicly available information" means information that a person:

177(a) lawfully obtains from a record of a governmental entity;

178(b) reasonably believes a consumer or widely distributed media has lawfully made179

available to the general public; or

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(c) if the consumer has not restricted the information to a specific audience, obtains
from a person to whom the consumer disclosed the information.

182(30) "Right" means a consumer right described in Section 13-61-201.

183(31) (a) "Sale," "sell," or "sold" means the exchange of personal data for monetary184

consideration by a controller to a third party.

185(b) "Sale," "sell," or "sold" does not include:

186(i) a controller's disclosure of personal data to a processor who processes the personal

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data on behalf of the controller;

188(ii) a controller's disclosure of personal data to an affiliate of the controller;

189(iii) considering the context in which the consumer provided the personal data to the190

controller, a controller's disclosure of personal data to a third party if the purpose is consistent191

with a consumer's reasonable expectations;192(iv) the disclosure or transfer of personal data when a consumer directs a controller to:

193(A) disclose the personal data; or

194(B) interact with one or more third parties;

195(v) a consumer's disclosure of personal data to a third party for the purpose of196

providing a product or service requested by the consumer or a parent or legal guardian of a197

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198(vi) the disclosure of information that the consumer:

199(A) intentionally makes available to the general public via a channel of mass media;

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and

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(B) does not restrict to a specific audience; or202(vii) a controller's transfer of personal data to a third party as an asset that is part of a203

proposed or actual merger, an acquisition, or a bankruptcy in which the third party assumes

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control of all or part of the controller's assets.

205(32) (a) "Sensitive data" means:

206(i) personal data that reveals:

207(A) an individual's racial or ethnic origin;

208(B) an individual's religious beliefs;

209(C) an individual's sexual orientation;

210(D) an individual's citizenship or immigration status; or

211(E) information regarding an individual's medical history, mental or physical health

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condition, or medical treatment or diagnosis by a health care professional;(ii) the processing of genetic personal data or biometric data, if the processing is for the214

purpose of identifying a specific individual; or215(iii) specific geolocation data.

216(b) "Sensitive data" does not include personal data that reveals an individual's:

217(i) racial or ethnic origin, if the personal data are processed by a video communication

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service; or(ii) if the personal data are processed by a person licensed to provide health care under

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Title 26, Chapter 21, Health Care Facility Licensing and Inspection Act, or Title 58,

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Occupations and Professions, information regarding an individual's medical history, mental or222

physical health condition, or medical treatment or diagnosis by a health care professional.

223(33) (a) "Specific geolocation data" means information derived from technology,

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including global position system level latitude and longitude coordinates, that directly

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identifies an individual's specific location, accurate within a radius of 1,750 feet or less.

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226(b) "Specific geolocation data" does not include:

227(i) the content of a communication; or228(ii) any data generated by or connected to advanced utility metering infrastructure229

systems or equipment for use by a utility.

230(34) (a) "Targeted advertising" means displaying an advertisement to a consumer

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where the advertisement is selected based on personal data obtained from the consumer's

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activities over time and across nonaffiliated websites or online applications to predict the233

consumer's preferences or interests.

234(b) "Targeted advertising" does not include advertising:235(i) based on a consumer's activities within a controller's website or online application

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or any affiliated website or online application;(ii) based on the context of a consumer's current search query or visit to a website or
online application;(iii) directed to a consumer in response to the consumer's request for information,
product, a service, or feedback; or241(iv) processing personal data solely to measure or report advertising:242(A) performance;

243(B) reach; or

244(C) frequency.

245(35) "Third party" means a person other than:246(a) the consumer, controller, or processor; or247(b) an affiliate or contractor of the controller or the processor.

248(36) "Trade secret" means information, including a formula, pattern, compilation,

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program, device, method, technique, or process, that:(a) derives independent economic value, actual or potential, from not being generally

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known to, and not being readily ascertainable by proper means by, other persons who can

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obtain economic value from the information's disclosure or use; and253(b) is the subject of efforts that are reasonable under the circumstances to maintain the-9-

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information's secrecy.

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Section 3. Section 13-61-102 is enacted to read:

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13-61-102. Applicability.

257(1) This chapter applies to any controller or processor who:

258(a) (i) conducts business in the state; or259(ii) produces a product or service that is targeted to consumers who are residents of the260

state;

261(b) has annual revenue of $25,000,000 or more; and262(c) satisfies one or more of the following thresholds:

263(i) during a calendar year, controls or processes personal data of 100,000 or more

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consumers; or(ii) derives over 50% of the entity's gross revenue from the sale of personal data andcontrols or processes personal data of 25,000 or more consumers.

267(2) This chapter does not apply to:268(a) a governmental entity or a third party under contract with a governmental entity269

when the third party is acting on behalf of the governmental entity;

270(b) a tribe;

271(c) an institution of higher education;

272(d) a nonprofit corporation;

273(e) a covered entity;

274(f) a business associate;

275(g) information that meets the definition of:276(i) protected health information for purposes of the federal Health Insurance Portability

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and Accountability Act of 1996, 42 U.S.C. Sec. 1320d et seq., and related regulations;

278(ii) patient identifying information for purposes of 42 C.F.R. Part 2;279(iii) identifiable private information for purposes of the Federal Policy for the

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Protection of Human Subjects, 45 C.F.R. Part 46;(iv) identifiable private information or personal data collected as part of human- 10 -

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subjects research pursuant to or under the same standards as:

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(A) the good clinical practice guidelines issued by the International Council for
Harmonisation; or

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(B) the Protection of Human Subjects under 21 C.F.R. Part 50 and Institutional Review
Boards under 21 C.F.R. Part 56;

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(v) personal data used or shared in research conducted in accordance with one or moreof the requirements described in Subsection (2)(g)(iv);

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S.B. 227(vi) information and documents created specifically for, and collected and maintainedby, a committee listed in Section 26-1-7;

291(vii) information and documents created for purposes of the federal Health Care

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Quality Improvement Act of 1986, 42 U.S.C. Sec. 11101 et seq., and related regulations;293(viii) patient safety work product for purposes of 42 C.F.R. Part 3; or294(ix) information that is:295(A) deidentified in accordance with the requirements for deidentification set forth in 45

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C.F.R. Part 164; and

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(B) derived from any of the health care-related information listed in this Subsection(2)(g);(h) information originating from, and intermingled to be indistinguishable with,300

information under Subsection (2)(g) that is maintained by:

301(i) a health care facility or health care provider; or302(ii) a program or a qualified service organization as defined in 42 C.F.R. Sec. 2.11;

303(i) information used only for public health activities and purposes as described in 45

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C.F.R. Sec. 164.512;

305(j) (i) an activity by:

306(A) a consumer reporting agency, as defined in 15 U.S.C. Sec. 1681a;

307(B) a furnisher of information, as set forth in 15 U.S.C. Sec. 1681s-2, who provides

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information for use in a consumer report, as defined in 15 U.S.C. Sec. 1681a; or(C) a user of a consumer report, as set forth in 15 U.S.C. Sec. 1681b;- 11 -

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Enrolled Copy(ii) subject to regulation under the federal Fair Credit Reporting Act, 15 U.S.C. Sec.
1681 et seq.; and(iii) involving the collection, maintenance, disclosure, sale, communication, or use ofany personal data bearing on a consumer's:

314(A) credit worthiness;

315(B) credit standing;316(C) credit capacity;

317(D) character;

318(E) general reputation;

319(F) personal characteristics; or

320(G) mode of living;

321(k) a financial institution or an affiliate of a financial institution governed by, or

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personal data collected, processed, sold, or disclosed in accordance with, Title V of the323

Gramm-Leach-Bliley Act, 15 U.S.C. Sec. 6801 et seq., and related regulations;

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(l) personal data collected, processed, sold, or disclosed in accordance with the federal
Driver's Privacy Protection Act of 1994, 18 U.S.C. Sec. 2721 et seq.;(m) personal data regulated by the federal Family Education Rights and Privacy Act,
20 U.S.C. Sec. 1232g, and related regulations;(n) personal data collected, processed, sold, or disclosed in accordance with the federal

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Farm Credit Act of 1971, 12 U.S.C. Sec. 2001 et seq.;

330(o) data that are processed or maintained:

331(i) in the course of an individual applying to, being employed by, or acting as an agent

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or independent contractor of a controller, processor, or third party, to the extent the collection

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and use of the data are related to the individual's role;

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(ii) as the emergency contact information of an individual described in Subsection(2)(o)(i) and used for emergency contact purposes; or(iii) to administer benefits for another individual relating to an individual described in
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S.B. 227(p) an individual's processing of personal data for purely personal or household
purposes; or340(q) an air carrier.

341(3) A controller is in compliance with any obligation to obtain parental consent under342

this chapter if the controller complies with the verifiable parental consent mechanisms under343

the Children's Online Privacy Protection Act, 15 U.S.C. Sec. 6501 et seq., and the act's

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implementing regulations and exemptions.

345(4) This chapter does not require a person to take any action in conflict with the federal

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Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. Sec. 1320d et seq., or

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related regulations.

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Section 4. Section 13-61-103 is enacted to read:349

13-61-103. Preemption -- Reference to other laws.

350(1) This chapter supersedes and preempts any ordinance, resolution, rule, or other351

regulation adopted by a local political subdivision regarding the processing of personal data by

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a controller or processor.

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(2) Any reference to federal law in this chapter includes any rules or regulations
promulgated under the federal law.
Section 5. Section 13-61-201 is enacted to read:

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Part 2. Rights Relating to Personal Data
13-61-201. Consumer rights -- Access -- Deletion -- Portability -- Opt out ofcertain processing.

359(1) A consumer has the right to:360(a) confirm whether a controller is processing the consumer's personal data; and361(b) access the consumer's personal data.

362(2) A consumer has the right to delete the consumer's personal data that the consumer

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provided to the controller.
(3) A consumer has the right to obtain a copy of the consumer's personal data, that theconsumer previously provided to the controller, in a format that:- 13 -

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366(a) to the extent technically feasible, is portable;

367(b) to the extent practicable, is readily usable; and368(c) allows the consumer to transmit the data to another controller without impediment,

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where the processing is carried out by automated means.
(4) A consumer has the right to opt out of the processing of the consumer's personal
data for purposes of:372(a) targeted advertising; or373(b) the sale of personal data.

374(5) Nothing in this section requires a person to cause a breach of security system as375

defined in Section 13-44-102.

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Section 6. Section 13-61-202 is enacted to read:377

13-61-202. Exercising consumer rights.

378(1) A consumer may exercise a right by submitting a request to a controller, by means

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prescribed by the controller, specifying the right the consumer intends to exercise.
(2) In the case of processing personal data concerning a known child, the parent orlegal guardian of the known child shall exercise a right on the child's behalf.

382(3) In the case of processing personal data concerning a consumer subject to383

guardianship, conservatorship, or other protective arrangement under Title 75, Chapter 5,

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Protection of Persons Under Disability and Their Property, the guardian or the conservator of385

the consumer shall exercise a right on the consumer's behalf.

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Section 7. Section 13-61-203 is enacted to read:387

13-61-203. Controller's response to requests.

388(1) Subject to the other provisions of this chapter, a controller shall comply with a

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consumer's request under Section 13-61-202 to exercise a right.
(2) (a) Within 45 days after the day on which a controller receives a request to exercise
a right, the controller shall:

392(i) take action on the consumer's request; and393(ii) inform the consumer of any action taken on the consumer's request.

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S.B. 227(b) The controller may extend once the initial 45-day period by an additional 45 days if

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reasonably necessary due to the complexity of the request or the volume of the requests

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received by the controller.

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(c) If a controller extends the initial 45-day period, before the initial 45-day period
expires, the controller shall:

399(i) inform the consumer of the extension, including the length of the extension; and400(ii) provide the reasons the extension is reasonably necessary as described in

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Subsection (2)(b).

402(d) The 45-day period does not apply if the controller reasonably suspects the403

consumer's request is fraudulent and the controller is not able to authenticate the request before404

the 45-day period expires.

405(3) If, in accordance with this section, a controller chooses not to take action on a406

consumer's request, the controller shall within 45 days after the day on which the controller

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receives the request, inform the consumer of the reasons for not taking action.

408(4) (a) A controller may not charge a fee for information in response to a request,

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unless the request is the consumer's second or subsequent request during the same 12-month410

period.

411412(b) (i) Notwithstanding Subsection (4)(a), a controller may charge a reasonable fee tocover the administrative costs of complying with a request or refuse to act on a request, if:

413(A) the request is excessive, repetitive, technically infeasible, or manifestly unfounded;

414(B) the controller reasonably believes the primary purpose in submitting the request

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was something other than exercising a right; or(C) the request, individually or as part of an organized effort, harasses, disrupts, or
imposes undue burden on the resources of the controller's business.
(ii) A controller that charges a fee or refuses to act in accordance with this Subsection

419(4)(b) bears the burden of demonstrating the request satisfied one or more of the criteria

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described in Subsection (4)(b)(i).

421(5) If a controller is unable to authenticate a consumer request to exercise a right- 15 -

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described in Section 13-61-201 using commercially reasonable efforts, the controller:

423(a) is not required to comply with the request; and424(b) may request that the consumer provide additional information reasonably necessary

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to authenticate the request.
Section 8. Section 13-61-301 is enacted to read:

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Part 3. Requirements for Controllers and Processors

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13-61-301. Responsibility according to role.

429(1) A processor shall:

430(a) adhere to the controller's instructions; and431(b) taking into account the nature of the processing and information available to the432

processor, by appropriate technical and organizational measures, insofar as reasonably

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practicable, assist the controller in meeting the controller's obligations, including obligations

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related to the security of processing personal data and notification of a breach of security

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system described in Section 13-44-202.

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(2) Before a processor performs processing on behalf of a controller, the processor andcontroller shall enter into a contract that:438(a) clearly sets forth instructions for processing personal data, the nature and purpose439

of the processing, the type of data subject to processing, the duration of the processing, and the440

parties' rights and obligations;

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(b) requires the processor to ensure each person processing personal data is subject to a
duty of confidentiality with respect to the personal data; and(c) requires the processor to engage any subcontractor pursuant to a written contract444

that requires the subcontractor to meet the same obligations as the processor with respect to the445

personal data.

446(3) (a) Determining whether a person is acting as a controller or processor with respect447

to a specific processing of data is a fact-based determination that depends upon the context in

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which personal data are to be processed.

449(b) A processor that adheres to a controller's instructions with respect to a specific- 16 -

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processing of personal data remains a processor.

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Section 9. Section 13-61-302 is enacted to read:452

13-61-302. Responsibilities of controllers -- Transparency -- Purpose specification453

and data minimization -- Consent for secondary use -- Security -- Nondiscrimination --454

Nonretaliation -- Nonwaiver of consumer rights.

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(1) (a) A controller shall provide consumers with a reasonably accessible and clear
privacy notice that includes:

457(i) the categories of personal data processed by the controller;

458(ii) the purposes for which the categories of personal data are processed;

459(iii) how consumers may exercise a right;

460(iv) the categories of personal data that the controller shares with third parties, if any;

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and

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(v) the categories of third parties, if any, with whom the controller shares personal data.

463(b) If a controller sells a consumer's personal data to one or more third parties or464

engages in targeted advertising, the controller shall clearly and conspicuously disclose to the465

consumer the manner in which the consumer may exercise the right to opt out of the:466(i) sale of the consumer's personal data; or

467(ii) processing for targeted advertising.

468(2) (a) A controller shall establish, implement, and maintain reasonable administrative,

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technical, and physical data security practices designed to:

470(i) protect the confidentiality and integrity of personal data; and471(ii) reduce reasonably foreseeable risks of harm to consumers relating to the processing472of personal data.

473(b) Considering the controller's business size, scope, and type, a controller shall use

474

data security practices that are appropriate for the volume and nature of the personal data at

475

issue.

476
477(3) Except as otherwise provided in this chapter, a controller may not process sensitive
data collected from a consumer without:- 17 -

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Enrolled Copy(a) first presenting the consumer with clear notice and an opportunity to opt out of theprocessing; or(b) in the case of the processing of personal data concerning a known child, processing

481

the data in accordance with the federal Children's Online Privacy Protection Act, 15 U.S.C.

482

Sec. 6501 et seq., and the act's implementing regulations and exemptions.

483(4) (a) A controller may not discriminate against a consumer for exercising a right by:

484(i) denying a good or service to the consumer;

485(ii) charging the consumer a different price or rate for a good or service; or486(iii) providing the consumer a different level of quality of a good or service.

487(b) This Subsection (4) does not prohibit a controller from offering a different price,488

rate, level, quality, or selection of a good or service to a consumer, including offering a good or

489

service for no fee or at a discount, if:490(i) the consumer has opted out of targeted advertising; or491(ii) the offer is related to the consumer's voluntary participation in a bona fide loyalty,

492
493
494
495

rewards, premium features, discounts, or club card program.
(5) A controller is not required to provide a product, service, or functionality to a
consumer if:(a) the consumer's personal data are or the processing of the consumer's personal data496

is reasonably necessary for the controller to provide the consumer the product, service, or

497

functionality; and498(b) the consumer does not:499(i) provide the consumer's personal data to the controller; or500(ii) allow the controller to process the consumer's personal data.

501(6) Any provision of a contract that purports to waive or limit a consumer's right under502

this chapter is void.

503

Section 10. Section 13-61-303 is enacted to read:504

13-61-303. Processing deidentified data or pseudonymous data.

505(1) The provisions of this chapter do not require a controller or processor to:- 18 -

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S.B. 227506(a) reidentify deidentified data or pseudonymous data;

507(b) maintain data in identifiable form or obtain, retain, or access any data or technology

508

for the purpose of allowing the controller or processor to associate a consumer request with509

personal data; or

510
511

(c) comply with an authenticated consumer request to exercise a right described in
Subsections 13-61-202(1) through (3), if:

512
513

(i) (A) the controller is not reasonably capable of associating the request with thepersonal data; or

514
515

(B) it would be unreasonably burdensome for the controller to associate the request
with the personal data;

516(ii) the controller does not:517(A) use the personal data to recognize or respond to the consumer who is the subject of518

the personal data; or

519(B) associate the personal data with other personal data about the consumer; and520(iii) the controller does not sell or otherwise disclose the personal data to any third521

party other than a processor, except as otherwise permitted in this section.

522(2) The rights described in Subsections 13-61-201(1) through (3) do not apply to523

pseudonymous data if a controller demonstrates that any information necessary to identify a524

consumer is kept:

525(a) separately; and526(b) subject to appropriate technical and organizational measures to ensure the personal527

data are not attributed to an identified individual or an identifiable individual.

528
529

(3) A controller who uses pseudonymous data or deidentified data shall take reasonable
steps to ensure the controller:

530
531

(a) complies with any contractual obligations to which the pseudonymous data or
deidentified data are subject; and

532
533

(b) promptly addresses any breach of a contractual obligation described in Subsection(3)(a).

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Enrolled Copy

534

Section 11. Section 13-61-304 is enacted to read:535

13-61-304. Limitations.

536(1) The requirements described in this chapter do not restrict a controller's or

537

processor's ability to:538(a) comply with a federal, state, or local law, rule, or regulation;

539(b) comply with a civil, criminal, or regulatory inquiry, investigation, subpoena, or

540

summons by a federal, state, local, or other governmental entity;

541(c) cooperate with a law enforcement agency concerning activity that the controller or

542

processor reasonably and in good faith believes may violate federal, state, or local laws, rules,

543

or regulations;

544(d) investigate, establish, exercise, prepare for, or defend a legal claim;

545(e) provide a product or service requested by a consumer or a parent or legal guardian546

of a child;

547(f) perform a contract to which the consumer or the parent or legal guardian of a child548

is a party, including fulfilling the terms of a written warranty or taking steps at the request of549

the consumer or parent or legal guardian before entering into the contract with the consumer;

550(g) take immediate steps to protect an interest that is essential for the life or physical

551
552
553
554
555

safety of the consumer or of another individual;(h) (i) detect, prevent, protect against, or respond to a security incident, identity theft,
fraud, harassment, malicious or deceptive activity, or any illegal activity; or(ii) investigate, report, or prosecute a person responsible for an action described in
Subsection (1)(h)(i);556(i) (i) preserve the integrity or security of systems; or557(ii) investigate, report, or prosecute a person responsible for harming or threatening the

558
559

integrity or security of systems, as applicable;(j) if the controller discloses the processing in a notice described in Section 13-61-302,

560

engage in public or peer-reviewed scientific, historical, or statistical research in the public

561

interest that adheres to all other applicable ethics and privacy laws;- 20 -

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S.B. 227562(k) assist another person with an obligation described in this subsection;

563(l) process personal data to:564(i) conduct internal analytics or other research to develop, improve, or repair a

565

controller's or processor's product, service, or technology;

566(ii) identify and repair technical errors that impair existing or intended functionality; or567(iii) effectuate a product recall;

568(m) process personal data to perform an internal operation that is:569(i) reasonably aligned with the consumer's expectations based on the consumer's

570

existing relationship with the controller; or571(ii) otherwise compatible with processing to aid the controller or processor in

572

providing a product or service specifically requested by a consumer or a parent or legal

573

guardian of a child or the performance of a contract to which the consumer or a parent or legal

574

guardian of a child is a party; or

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576
577
578

(n) retain a consumer's email address to comply with the consumer's request to exercise
a right.
(2) This chapter does not apply if a controller's or processor's compliance with thischapter:

579(a) violates an evidentiary privilege under Utah law;

580(b) as part of a privileged communication, prevents a controller or processor from581

providing personal data concerning a consumer to a person covered by an evidentiary privilege

582

under Utah law; or583(c) adversely affects the privacy or other rights of any person.

584(3) A controller or processor is not in violation of this chapter if:

585(a) the controller or processor discloses personal data to a third party controller or

586

processor in compliance with this chapter;

587(b) the third party processes the personal data in violation of this chapter; and588(c) the disclosing controller or processor did not have actual knowledge of the third589

party's intent to commit a violation of this chapter.

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Enrolled Copy

(4) If a controller processes personal data under an exemption described in Subsection591(1), the controller bears the burden of demonstrating that the processing qualifies for the592

exemption.

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594

(5) Nothing in this chapter requires a controller, processor, third party, or consumer todisclose a trade secret.

595

Section 12. Section 13-61-305 is enacted to read:596

13-61-305. No private cause of action.

597

A violation of this chapter does not provide a basis for, nor is a violation of this chapter

598
599

subject to, a private right of action under this chapter or any other law.
Section 13. Section 13-61-401 is enacted to read:

600

Part 4. Enforcement

601

13-61-401. Investigative powers of division.

602(1) The division shall establish and administer a system to receive consumer

603
604
605

complaints regarding a controller's or processor's alleged violation of this chapter.
(2) (a) The division may investigate a consumer complaint to determine whether thecontroller or processor violated or is violating this chapter.

606(b) If the director has reasonable cause to believe that substantial evidence exists that a607

person identified in a consumer complaint is in violation of this chapter, the director shall refer608

the matter to the attorney general.

609
610

(c) Upon request, the division shall provide consultation and assistance to the attorney
general in enforcing this chapter.

611

Section 14. Section 13-61-402 is enacted to read:612

13-61-402. Enforcement powers of the attorney general.

613(1) The attorney general has the exclusive authority to enforce this chapter.

614(2) Upon referral from the division, the attorney general may initiate an enforcement

615
616
617

action against a controller or processor for a violation of this chapter.
(3) (a) At least 30 days before the day on which the attorney general initiates anenforcement action against a controller or processor, the attorney general shall provide the- 22 -

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controller or processor:(i) written notice identifying each provision of this chapter the attorney general alleges

620

the controller or processor has violated or is violating; and621(ii) an explanation of the basis for each allegation.

622(b) The attorney general may not initiate an action if the controller or processor:

623(i) cures the noticed violation within 30 days after the day on which the controller or

624

processor receives the written notice described in Subsection (3)(a); and625(ii) provides the attorney general an express written statement that:

626(A) the violation has been cured; and627(B) no further violation of the cured violation will occur.

628(c) The attorney general may initiate an action against a controller or processor who:

629(i) fails to cure a violation after receiving the notice described in Subsection (3)(a); or630(ii) after curing a noticed violation and providing a written statement in accordance631

with Subsection (3)(b), continues to violate this chapter.

632(d) In an action described in Subsection (3)(c), the attorney general may recover:633(i) actual damages to the consumer; and634(ii) for each violation described in Subsection (3)(c), an amount not to exceed $7,500.

635(4) All money received from an action under this chapter shall be deposited into the

636
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Consumer Privacy Account established in Section 13-61-403.
(5) If more than one controller or processor are involved in the same processing in

638

violation of this chapter, the liability for the violation shall be allocated among the controllers

639

or processors according to the principles of comparative fault.

640

Section 15. Section 13-61-403 is enacted to read:641

13-61-403. Consumer Privacy Restricted Account.

642(1) There is created a restricted account known as the "Consumer Privacy Account."

643(2) The account shall be funded by money received through civil enforcement actions

644
645

under this chapter.
(3) Upon appropriation, the division or the attorney general may use money deposited- 23 -

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647
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649
650

Enrolled Copy

into the account for:(a) investigation and administrative costs incurred by the division in investigating
consumer complaints alleging violations of this chapter;(b) recovery of costs and attorney fees accrued by the attorney general in enforcing thischapter; and651(c) providing consumer and business education regarding:652(i) consumer rights under this chapter; and653(ii) compliance with the provisions of this chapter for controllers and processors.

654(4) If the balance in the account exceeds $4,000,000 at the close of any fiscal year, the655

Division of Finance shall transfer the amount that exceeds $4,000,000 into the General Fund.

656

Section 16. Section 13-61-404 is enacted to read:657

13-61-404. Attorney general report.

658(1) The attorney general and the division shall compile a report:

659(a) evaluating the liability and enforcement provisions of this chapter, including the660

effectiveness of the attorney general's and the division's efforts to enforce this chapter; and661(b) summarizing the data protected and not protected by this chapter including, with662

reasonable detail, a list of the types of information that are publicly available from local, state,663

and federal government sources.

664
665
666

(2) The attorney general and the division may update the report as new information
becomes available.
(3) The attorney general and the division shall submit the report to the Business and667

Labor Interim Committee before July 1, 2025.

668

Section 17. Effective date.

669

This bill takes effect on December 31, 2023.

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