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# Assembly Bill No. 1027
## CHAPTER 824
An act to amend Sections 22677 and 22945 of, and to add and repeal Sections 22945.7 and 22945.9 of, the Business and Professions Code, relating to social media platforms.
[Approved by Governor October 13, 2023. Filed with Secretary of State October 13, 2023.]
### LEGISLATIVE COUNSEL'S DIGEST
AB 1027, Petrie-Norris. Social media platforms: drug safety policies.
Existing law, the California Consumer Privacy Act of 2018 (CCPA), as amended by the California Privacy Rights Act of 2020, an initiative measure, grants to a consumer various rights with respect to personal information, as defined, that is collected by a business, as defined. The CCPA requires a business that controls the collection of a consumer’s personal information to inform consumers of the categories of personal information collected, the purposes for which the categories of personal information are collected or used, and the length of time the business intends to retain each category of personal information, as specified.
Existing law, the Electronic Communications Privacy Act, generally prohibits a government entity from compelling the production of or access to electronic communication information or electronic device information, as defined, without a search warrant, wiretap order, order for electronic reader records, subpoena, or order for a pen register or trap and trace device, except for emergency situations, as specified. The CCPA grants to a consumer various rights with respect to personal information, as defined, that is collected by a business, as defined, including the right to request that a business delete personal information about the consumer that the business has collected from the consumer. The California Privacy Rights Act of 2020, approved by the voters as Proposition 24 at the November 3, 2020, statewide general election, amended, added to, and reenacted the CCPA.
Existing law requires a social media company, as defined, to submit reports, as specified, starting no later than January 1, 2024, to the Attorney General, including, but not limited to, the current version of the terms of service for each social media platform owned or operated by the company, specified categories of content and what policies the social media company has for that platform to address that content, and data related to violations of the terms of service for each platform. Existing law requires the Attorney General to make all terms of service reports submitted pursuant to those provisions available to the public in a searchable repository on its official internet website.
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# Ch. 824
This bill would add to those categories of content the distribution of controlled substances.
Existing law, until January 1, 2028, requires a social media platform to create and post a policy statement regarding the use of the social media platform to illegally distribute controlled substances, including a general description of its policies and procedures for responding to law enforcement inquiries. Existing law exempts from these requirements a business that generated less than $100,000,000 in gross revenue during the preceding calendar year.
This bill would delete the above-described exemption and would require the policy statement to include a general description of the social media platform’s policy on the retention of electronic communication information and policies and procedures governing when a platform proactively shares relevant information pertaining to distribution of a controlled substance, as specified. The bill would require a social media platform to retain content it has taken down or removed for a violation of its policy related to controlled substances, as specified, for a period of 90 days, except when the platform has a good faith belief that the content is related to the offering, seeking, or receiving of gender-affirming health care, gender-affirming mental health care, or reproductive health care that is lawful under California law.
The bill would specify that it does not alter the rights or obligations established in any other law, including the Electronic Communications Privacy Act and the California Consumer Privacy Act.
The people of the State of California do enact as follows:
SECTION 1. It is the intent of the Legislature that this act is not intended to interfere with the offering, seeking, or receiving of gender-affirming health care, gender-affirming mental health care, or reproductive health care that is lawful under California law.
SEC. 2. Section 22677 of the Business and Professions Code is amended to read:
22677. (a) On a semiannual basis in accordance with subdivision (b), a social media company shall submit to the Attorney General a terms of service report. The terms of service report shall include, for each social media platform owned or operated by the company, all of the following:
(1) The current version of the terms of service of the social media platform.
(2) If a social media company has filed its first report, a complete and detailed description of any changes to the terms of service since the previous report.
(3) A statement of whether the current version of the terms of service define each of the following categories of content, and, if so, the definitions of those categories, including any subcategories:
(A) Hate speech or racism.
(B) Extremism or radicalization.
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(C) Disinformation or misinformation.
(D) Harassment.
(E) Foreign political interference.
(F) Controlled substance distribution.
(4) A detailed description of content moderation practices used by the social media company for that platform, including, but not limited to, all of the following:
(A) Any existing policies intended to address the categories of content described in paragraph (3).
(B) How automated content moderation systems enforce terms of service of the social media platform and when these systems involve human review.
(C) How the social media company responds to user reports of violations of the terms of service.
(D) How the social media company would remove individual pieces of content, users, or groups that violate the terms of service, or take broader action against individual users or against groups of users that violate the terms of service.
(E) The languages in which the social media platform does not make terms of service available, but does offer product features, including, but not limited to, menus and prompts.
(5) (A) Information on content that was flagged by the social media company as content belonging to any of the categories described in paragraph (3), including all of the following:
(i) The total number of flagged items of content.
(ii) The total number of actioned items of content.
(iii) The total number of actioned items of content that resulted in action taken by the social media company against the user or group of users responsible for the content.
(iv) The total number of actioned items of content that were removed, demonetized, or deprioritized by the social media company.
(v) The number of times actioned items of content were viewed by users.
(vi) The number of times actioned items of content were shared, and the number of users that viewed the content before it was actioned.
(vii) The number of times users appealed social media company actions taken on that platform and the number of reversals of social media company actions on appeal disaggregated by each type of action.
(B) All information required by subparagraph (A) shall be disaggregated into the following categories:
(i) The category of content, including any relevant categories described in paragraph (3).
(ii) The type of content, including, but not limited to, posts, comments, messages, profiles of users, or groups of users.
(iii) The type of media of the content, including, but not limited to, text, images, and videos.
(iv) How the content was flagged, including, but not limited to, flagged by company employees or contractors, flagged by artificial intelligence
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software, flagged by community moderators, flagged by civil society partners, and flagged by users.
(v) How the content was actioned, including, but not limited to, actioned by company employees or contractors, actioned by artificial intelligence software, actioned by community moderators, actioned by civil society partners, and actioned by users.
(b) (1) A social media company shall electronically submit a semiannual terms of service report pursuant to subdivision (a), covering activity within the third and fourth quarters of the preceding calendar year, to the Attorney General no later than April 1 of each year, and shall electronically submit a semiannual terms of service report pursuant to subdivision (a), covering activity within the first and second quarters of the current calendar year, to the Attorney General no later than October 1 of each year.
(2) Notwithstanding paragraph (1), a social media company shall electronically submit its first terms of service report pursuant to subdivision (a), covering activity within the third quarter of 2023, to the Attorney General no later than January 1, 2024, and shall electronically submit its second terms of service report pursuant to subdivision (a), covering activity within the fourth quarter of 2023, to the Attorney General no later than April 1, 2024. A social media platform shall submit its third report no later than October 1, 2024, in accordance with paragraph (1).
(c) The Attorney General shall make all terms of service reports submitted pursuant to this section available to the public in a searchable repository on its official internet website.
SEC. 3. Section 22945 of the Business and Professions Code is amended to read:
22945. (a) For purposes of this chapter, the following definitions apply:
(1) (A) “Content” means statements or comments made by users and media that are created, posted, shared, or otherwise interacted with by users on an internet-based service or application.
(B) “Content” does not include media put on a service or application exclusively for the purpose of cloud storage, transmitting files, or file collaboration.
(2) “Controlled substance” has the same meaning as that term is defined in Section 11007 of the Health and Safety Code.
(3) “Social media platform” means a public or semipublic internet-based service or application that has users in California and that meets both of the following criteria:
(A) (i) A substantial function of the service or application is to connect users in order to allow users to interact socially with each other within the service or application.
(ii) A service or application that provides email or direct messaging services shall not be considered to meet this criterion on the basis of that function alone.
(B) The service or application allows users to do all of the following:
(i) Construct a public or semipublic profile for purposes of signing into and using the service.
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(ii) Populate a list of other users with whom an individual shares a social connection within the system.
(iii) Create or post content viewable by other users, including, but not limited to, on message boards, in chat rooms, or through a landing page or main feed that presents the user with content generated by other users.
(4) “Public or semipublic internet-based service or application” excludes a service or application used to facilitate communication within a business or enterprise among employees or affiliates of the business or enterprise, provided that access to the service or application is restricted to employees or affiliates of the business or enterprise using the service or application.
(b) A social media platform that operates in the state shall create, and publicly post on the social media platform’s internet website, a policy statement that includes all of the following:
(1) The social media platform’s policy on the use of the social media platform to illegally distribute a controlled substance.
(2) A general description of the social media platform’s moderation practices that are employed to prevent users from posting or sharing electronic content pertaining to the illegal distribution of a controlled substance. The description shall not include any information that the social media platform believes would compromise operational efforts to identify prohibited content or user activity, or otherwise endanger user safety.
(3) A link to mental health and drug education resources provided by governmental public health authorities.
(4) A link to the social media platform’s reporting mechanism for illegal or harmful content or behavior on the social media platform, if one exists.
(5) A general description of the social media platform’s policies and procedures for responding to law enforcement inquiries, including warrants, subpoenas, and other court orders compelling the production of or access to electronic communication information, as defined in Section 1546 of the Penal Code.
(6) A general description of the social media platform’s policy on the retention of electronic communication information, as defined in Section 1546 of the Penal Code, including how long the platform retains that information.
(7) A general description of the social media platform’s policies and procedures governing when a platform proactively shares relevant information pertaining to the illegal distribution of a controlled substance.
(c) The disclosures required by this section may be posted separately or incorporated within another document or post, including, but not limited to, the terms of service or the community guidelines.
(d) A person or entity operating a social media platform in the state shall do all of the following:
(1) Update the policy statement created pursuant to subdivision (b) as necessary.
(2) Consider consulting with nonprofits, safety advocates, and survivors to assist in developing and supporting the policy statement created pursuant to subdivision (b).
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(3) (A) A social media platform shall retain data on content it has taken action to take down or remove for a violation of a policy prohibiting the unlawful sale, distribution, amplification, or otherwise proliferation of controlled substances and related paraphernalia. A social media platform shall retain the content that violated a policy and the username of the violating account or its user for a period of 90 days.
(B) Notwithstanding subparagraph (A), a social media platform is not required to retain content removed in violation of the policy if there is a good faith belief that the content is related to the offering, seeking, or receiving of gender-affirming health care, gender-affirming mental health care, or reproductive health care that is lawful under California law.
SEC. 4. Section 22945.7 is added to the Business and Professions Code, to read:
22945.7. Nothing in this chapter alters the rights or obligations established in any other law, including, but not limited to, the Electronic Communications Privacy Act (Chapter 3.6 (commencing with Section 1546) of Title 12 of Part 2 of the Penal Code) and the California Consumer Privacy Act of 2018 (Title 1.81.5 (commencing with Section 1798.100) of Part 4 of Division 3 of the Civil Code).
SEC. 5. Section 22945.9 is added to the Business and Professions Code, to read:
22945.9. This chapter shall remain in effect only until January 1, 2028, and as of that date is repealed.
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# ASSEMBLY BILL No. 1282
**Introduced by Assembly Member Lowenthal**
*(Coauthors: Assembly Members Connolly, Muratsuchi, and Villapudua)*
February 16, 2023
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AMENDED IN SENATE SEPTEMBER 1, 2023
AMENDED IN SENATE JUNE 13, 2023
AMENDED IN ASSEMBLY APRIL 20, 2023
AMENDED IN ASSEMBLY APRIL 6, 2023
AMENDED IN ASSEMBLY MARCH 9, 2023
CALIFORNIA LEGISLATURE—2023–24 REGULAR SESSION
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An act to add and repeal Part 4.3 (commencing with Section 5887) of Division 5 of the Welfare and Institutions Code, relating to mental health.
## LEGISLATIVE COUNSEL’S DIGEST
**AB 1282**, as amended, Lowenthal. Mental health: impacts of social media.
Existing law, the Mental Health Services Act, an initiative measure enacted by the voters as Proposition 63 at the November 2, 2004, statewide general election, establishes the Mental Health Services Oversight and Accountability Commission, and authorizes the commission to take specified actions, including advising the Governor or the Legislature regarding actions the state may take to improve care and services for people with mental illness.
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# AB 1282
This bill would require the commission to report to specified policy committees of the Legislature, on or before July 1, 2025, a statewide strategy to understand, communicate, and mitigate mental health risks associated with the use of social media by children and youth. The bill would require the report to include, among other things, (1) the degree to which individuals negatively impacted by social media are accessing and receiving mental health services and (2) recommendations to strengthen children and youth resiliency strategies and California’s use of mental health services to reduce the negative outcomes that may result from untreated mental illness, as specified. The bill would require the commission to explore, among other things, the persons and populations that use social media and the negative mental health risks associated with social media and artificial intelligence, as defined. The bill would repeal these provisions on January 1, 2029.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.
The people of the State of California do enact as follows:
SECTION 1. Part 4.3 (commencing with Section 5887) is added to Division 5 of the Welfare and Institutions Code, to read:
PART 4.3. IMPACTS OF SOCIAL MEDIA AND ARTIFICIAL INTELLIGENCE ON MENTAL HEALTH
5887.
SECTION 1. Part 4.3 (commencing with Section 5888) is added to Division 5 of the Welfare and Institutions Code, to read:
PART 4.3. IMPACTS OF SOCIAL MEDIA AND ARTIFICIAL INTELLIGENCE ON MENTAL HEALTH
5888. As used in this part, the following definitions shall apply:
(a) “Children and youth” means individuals up to 26 years of age.
(b) “Commission” means the Mental Health Services Oversight and Accountability Commission established pursuant to Section 5845.
(c) “Social media” means a social media platform, as defined in Section 22675 of the Business and Professions Code.
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(d) “Artificial intelligence” means a machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations, or decisions influencing real or virtual environments. Artificial intelligence systems use machine- and human-based inputs to do all of the following:
(1) Perceive real and virtual environments.
(2) Abstract those perceptions into models through analysis in an automated manner.
(3) Use model inferences to formulate options for information or action.
5887.1.
(a) The commission shall report to the Senate and Assembly Committees on Health, the Senate Committee on Judiciary, the Assembly Committee on Privacy and Consumer Protection, and other relevant policy committees of the Legislature a statewide strategy to understand, communicate, and mitigate mental health risks associated with the use of social media by children and youth. The report shall include all of the following:
(1) The degree to which individuals negatively impacted by social media are accessing and receiving mental health services.
(2) Recommendations to strengthen children and youth resiliency strategies and California’s use of mental health services to reduce the negative outcomes that may result from untreated mental illness enumerated in subdivision (d) of Section 5840.
(3) Any barriers to receiving the data relevant to completing this report.
(b) In preparing the report, the commission shall explore all of the following:
(1) The types of social media.
(2) The persons and populations that use social media.
(3) Opportunities to support resilience.
(4) Negative mental health risks associated with social media, including all of the following:
(A) Suicide.
(B) Eating disorders.
(C) Self-harm.
(D) Prolonged suffering.
(E) Depression.
(F) Anxiety.
(G) Bullying.
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# AB 1282
1. (H) Substance abuse.
2. (I) Other mental health risks as determined by the commission.
3. (5) The negative health risks associated with artificial
4. intelligence.
5. (c) In formulating this report, the commission shall prioritize
6. the perspectives of children and youth through a robust engagement
7. process with a focus on transition-age youth, at-risk populations,
8. in-need populations and underserved cultural and linguistic
9. populations. The commission shall also consult with the California
10. mental health community, including, but not limited to, consumers,
11. family members, providers, and other subject matter experts.
12. (d) The report shall be submitted on or before July 1, 2025.
13. 5887.2.
14. 5888.2. This part shall remain in effect only until January 1,
15. 2029, and as of that date is repealed.
O
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# ASSEMBLY BILL No. 2839
**Introduced by Assembly Member Pellerin**
February 15, 2024
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An act to amend Section 35 of the Code of Civil Procedure, and to add Section 20012 to the Elections Code, relating to elections.
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## LEGISLATIVE COUNSEL’S DIGEST
**AB 2839**, as introduced, Pellerin. Elections: deceptive media in advertisements.
Existing law prohibits certain distribution of materially deceptive audio or visual media of a candidate within 60 days of an election at which the candidate will appear on the ballot, unless the media includes a disclosure stating that the media has been manipulated, subject to specified exemptions. Existing law authorizes a candidate whose voice or likeness appears in audio or visual media distributed in violation of these provisions to file specified actions, and it requires a court to place such proceedings on the calendar in the order of their date of filing and give the proceedings precedence.
This bill would prohibit a person, committee, or other entity from knowingly distributing an advertisement or other election communication, as defined, that contains certain materially deceptive and digitally altered or digitally created images or audio or video files, as defined, with the intent to influence an election or solicit funds for a candidate or campaign, subject to specified exemptions. The bill would apply this prohibition within 120 days of an election and, in specified cases, 60 days after an election. The bill would authorize a recipient of a materially deceptive and digitally altered or digitally created image or audio or video file distributed in violation of this section, or a
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# The people of the State of California do enact as follows:
## SECTION 1.
Section 35 of the Code of Civil Procedure, as amended by Section 1 of Chapter 343 of the Statutes of 2023, is amended to read:
1. 35. (a) Proceedings in cases involving the registration or denial of registration of voters, the certification or denial of certification of candidates, the certification or denial of certification of ballot measures, election contests, actions under Section 20010 or 20012 of the Elections Code, and actions under Chapter 2 (commencing with Section 21100) of Division 21 of the Elections Code shall be placed on the calendar in the order of their date of filing and shall be given precedence.
2. (b) This section shall remain in effect only until January 1, 2027, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2027, deletes or extends that date.
## SEC. 2.
Section 35 of the Code of Civil Procedure, as amended by Section 2 of Chapter 343 of the Statutes of 2023, is amended to read:
1. 35. (a) Proceedings in cases involving the registration or denial of registration of voters, the certification or denial of certification of candidates, the certification or denial of certification of ballot measures, election contests, actions under Section 20012 of the Elections Code, and actions under Chapter 2 (commencing with Section 21100) of Division 21 of the Elections Code shall be placed on the calendar in the order of their date of filing and shall be given precedence.
2. (b) This section shall become operative January 1, 2027.
## SEC. 3.
Section 20012 is added to the Elections Code, to read:
1. 20012. (a) The Legislature finds and declares as follows:
2. (1) California is entering its first-ever artificial intelligence (AI) election, in which disinformation powered by generative AI will
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# AB 2839
pollute our information ecosystems like never before. Voters will not know what images, audio, or video they can trust.
(2) In a few clicks, using current technology, bad actors now have the power to create a false image of a candidate accepting a bribe, or a fake video of an elections official “caught on tape” saying that voting machines are not secure, or generate an artificial robocall in the Governor’s voice telling millions of Californians their voting site has changed.
(3) In the lead-up to the 2024 presidential elections, candidates and parties are already creating and distributing deepfake images and audio and video content. These fake images or files can skew election results, even if they use older methods of distribution, such as mail, television, telephone, and text, and undermine trust in the ballot counting process.
(4) In order to ensure California elections are free and fair, California must, for a limited time before and after elections, prevent the use of deepfakes and disinformation meant to prevent voters from voting and deceive voters based on fraudulent content.
(b) (1) A person, committee, or other entity shall not, during the time period set forth in subdivision (c), with the intent to influence an election or solicit funds for a candidate or campaign, knowingly distribute an advertisement or other election communication containing materially deceptive and digitally altered or digitally created images or audio or video files of any of the following:
(A) A candidate portrayed as doing or saying something that the candidate did not do or say.
(B) An officer holding an election or conducting a canvass portrayed as doing or saying something in connection with the election that the officer holding an election or conducting a canvass did not do or say.
(C) An elected official portrayed as doing or saying something in connection with the election that the elected official did not do or say.
(D) A voting machine, ballot, voting site, or other elections-related property or equipment portrayed in a materially false way.
(2) Notwithstanding subparagraph (A) of paragraph (1), a candidate may portray themself as doing or saying something that the candidate did not do or say, but only if the image or audio or
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# AB 2839
1. video file includes a disclosure stating “This ____ has been
2. manipulated.” and complies with the following requirements:
3. (A) The blank in the disclosure required by paragraph (2) shall
4. be filled with whichever of the following terms most accurately
5. describes the media:
6. (i) Image.
7. (ii) Audio.
8. (iii) Video.
9. (B) (i) For visual media, the text of the disclosure shall appear
10. in a size that is easily readable by the average viewer and no
11. smaller than the largest font size of other text appearing in the
12. visual media. If the visual media does not include any other text,
13. the disclosure shall appear in a size that is easily readable by the
14. average viewer. For visual media that is video, the disclosure shall
15. appear for the duration of the video.
16. (ii) If the media consists of audio only, the disclosure shall be
17. read in a clearly spoken manner and in a pitch that can be easily
18. heard by the average listener, at the beginning of the audio, at the
19. end of the audio, and, if the audio is greater than two minutes in
20. length, interspersed within the audio at intervals of not greater than
21. two minutes each.
22. (c) The prohibition in subdivision (b) applies only during the
23. following time periods:
24. (1) One hundred twenty days before any election.
25. (2) For elections officials and items set forth in subparagraphs
26. (B) and (C) of paragraph (1) of subdivision (b), 120 days before
27. any election through 60 days after the election, inclusive.
28. (d) (1) A recipient of a materially deceptive and digitally altered
29. or digitally created image or audio or video file distributed in
30. violation of this section, or a candidate or committee participating
31. in the election, may seek injunctive or other equitable relief
32. prohibiting the distribution of the materially deceptive and digitally
33. altered or digitally created image or audio or video file in violation
34. of this section. The court shall also award a prevailing plaintiff
35. reasonable attorney’s fees and costs. An action under this paragraph
36. shall be entitled to precedence in accordance with Section 35 of
37. the Code of Civil Procedure.
38. (2) A recipient of a materially deceptive and digitally altered
39. or digitally created image or audio or video file distributed in
40. violation of this section, or a candidate or committee participating
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# AB 2839
in the election, may bring an action for general or special damages against the person, committee, or other entity that distributed the materially deceptive and digitally altered or digitally created image or audio or video file in violation of this section. The court shall also award a prevailing party reasonable attorney’s fees and costs. This subdivision shall not be construed to limit or preclude a plaintiff from securing or recovering any other available remedy at law or equity.
(3) In any civil action alleging a violation of this section, the plaintiff shall bear the burden of establishing the violation through clear and convincing evidence.
(e) (1) This section does not apply to a radio or television broadcasting station, including a cable or satellite television operator, programmer, or producer, that broadcasts any materially deceptive and digitally altered or digitally created image or audio or video file prohibited by this section as part of a bona fide newscast, news interview, news documentary, or on-the-spot coverage of bona fide news events, if the broadcast clearly acknowledges that content or a disclosure, in a manner that can be easily heard or read by the average listener or viewer, that the materially deceptive audio or visual media does not accurately represent any actual event, occurrence, appearance, speech, or expressive conduct.
(2) This section does not apply to a regularly published newspaper, magazine, or other periodical of general circulation, including an internet or electronic publication, that routinely carries news and commentary of general interest, and that publishes any materially deceptive and digitally altered or digitally created image or audio or video file prohibited by this section, if the publication clearly states that the materially deceptive and digitally altered or digitally created image or audio or video file does not accurately represent any actual event, occurrence, appearance, speech, or expressive conduct.
(3) This section does not apply to a materially deceptive and digitally altered or digitally created image or audio or video file that constitutes satire or parody.
(f) For purposes of this section, the following definitions apply:
(1) “Advertisement” means any general or public communication that is authorized or paid for the purpose of supporting or opposing a candidate for elective office or a ballot
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# AB 2839
measure and that is broadcast by or through television, radio, telephone, or text, or disseminated by print media, including billboards, video billboards or screens, and other similar types of advertising.
1. "Committee" means a committee as defined in Section 82013 of the Government Code.
2. "Election communication" means any general or public communication not covered under "advertisement" that is broadcast by or through television, radio, telephone, or text, or disseminated by print media, including billboards, video billboards or screens, and other similar types of communications, that concerns any of the following:
- (A) A candidate for office or ballot measure.
- (B) Voting or refraining from voting in an election.
- (C) The canvass of the vote.
3. "Materially deceptive and digitally modified or created image or audio or video file" means an image or an audio or video file that has been intentionally manipulated in a manner such that all of the following conditions are met:
- (i) The image or audio or video file is the product of digital manipulation, artificial intelligence, or machine learning, including deep learning techniques, that merges, combines, replaces, or superimposes content onto an image or an audio or video file, or generates an authentic image or an audio or video file that appears authentic.
- (ii) (I) The image or audio or video file represents a false portrayal of a candidate for elective office, an elected official, an elections official, or a voting machine, ballot, voting site, or other elections property or equipment.
- (II) For the purposes of this clause, "a false portrayal of the candidate for elective office, an elected official, an elections official, or a voting machine, ballot, voting site, or other elections property or equipment" means the image or audio or video file would cause a reasonable person to have a fundamentally different understanding or impression of the expressive content of the image or audio or video file than that person would have if the person were hearing or seeing the unaltered, original version of the image or audio or video file.
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(iii) The person, committee, or other entity distributed the image or audio or video file knowing the portrayal of the candidate for elective office, the elected official, the elections official, or the voting machine, ballot, voting site, or other elections property or equipment was false or with a reckless disregard for the true portrayal of the candidate, the elected official, the elections official, or the voting machine, ballot, voting site, or other elections property or equipment. This clause is presumed when an image or audio or video file has been intentionally manipulated to represent a false portrayal of the candidate for elective office, the elected official, the elections official, or the voting machine, ballot, voting site, or other elections property or equipment, but may be rebutted.
(B) “Materially deceptive and digitally modified or created image or audio or video file” does not include any image or audio or video file that contains only minor modifications that do not lead to significant changes to the perceived contents or meaning of the content. Minor changes include changes to brightness or contrast of images, removal of background noise in audio, and other minor changes that do not impact the content of the image or audio or video file.
(5) “Officer holding an election or conducting a canvass” has the same meaning as in Section 18502.
(6) “Recipient” includes a person who views, hears, or otherwise perceives an image or audio or video file that was initially distributed in violation of this section.
(g) The provisions of this section apply regardless of the language used in the advertisement or solicitation. If the language used is not English, the disclosure required by paragraph (2) of subdivision (a) shall appear in the language used in the advertisement or solicitation.
(h) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
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# Assembly Bill No. 302
## CHAPTER 800
An act to add Section 11546.45.5 to the Government Code, relating to automated decision systems.
[Approved by Governor October 13, 2023. Filed with Secretary of State October 13, 2023.]
### LEGISLATIVE COUNSEL'S DIGEST
AB 302, Ward. Department of Technology: high-risk automated decision systems: inventory.
Existing law establishes the Department of Technology within the Government Operations Agency and requires the Director of Technology to supervise the Department of Technology and report directly to the Governor on issues relating to information technology.
This bill would require the department, in coordination with other interagency bodies, to conduct, on or before September 1, 2024, a comprehensive inventory of all high-risk automated decision systems, as defined, that have been proposed for use, development, or procurement by, or are being used, developed, or procured by, state agencies, as defined. The bill would require the comprehensive inventory to include a description of, among other things, the categories of data and personal information the automated decision system uses to make its decisions. On or before January 1, 2025, and annually thereafter, the bill would require the department to submit a report of the above-described comprehensive inventory to specified committees of the Legislature.
The people of the State of California do enact as follows:
### SECTION 1.
Section 11546.45.5 is added to the Government Code, to read:
11546.45.5. (a) For purposes of this section:
(1) “Automated decision system” means a computational process derived from machine learning, statistical modeling, data analytics, or artificial intelligence that issues simplified output, including a score, classification, or recommendation, that is used to assist or replace human discretionary decisionmaking and materially impacts natural persons. “Automated decision system” does not include a spam email filter, firewall, antivirus software, identity and access management tools, calculator, database, dataset, or other compilation of data.
(2) “Board” means any administrative or regulatory board, commission, committee, council, association, or authority consisting of more than one person.
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person whose members are appointed by the Governor, the Legislature, or both.
(3) “Department” means the Department of Technology.
(4) “High-risk automated decision system” means an automated decision system that is used to assist or replace human discretionary decisions that have a legal or similarly significant effect, including decisions that materially impact access to, or approval for, housing or accommodations, education, employment, credit, health care, and criminal justice.
(5) (A) “State agency” means any of the following:
(i) Any state office, department, division, or bureau.
(ii) The California State University.
(iii) The Board of Parole Hearings.
(iv) Any board or other professional licensing and regulatory body under the administration or oversight of the Department of Consumer Affairs.
(B) “State agency” does not include the University of California, the Legislature, the judicial branch, or any board, except as provided in subparagraph (A).
(b) On or before September 1, 2024, the Department of Technology shall conduct, in coordination with other interagency bodies as it deems appropriate, a comprehensive inventory of all high-risk automated decision systems that have been proposed for use, development, or procurement by, or are being used, developed, or procured by, any state agency.
(c) The comprehensive inventory described by subdivision (b) shall include a description of all of the following:
(1) (A) Any decision the automated decision system can make or support and the intended benefits of that use.
(B) The intended uses of any use described in subparagraph (A).
(2) The results of any research assessing the efficacy and relative benefits and harms and alternatives to the automated decision system described by paragraph (1).
(3) The categories of data and personal information the automated decision system uses to make its decisions.
(4) (A) The measures in place, if any, to mitigate the risks, including cybersecurity risk and the risk of inaccurate, unfairly discriminatory, or biased decisions, of the automated decision system.
(B) Measures described by this paragraph may include, but are not limited to, any of the following:
(i) Performance metrics to gauge the accuracy of the system.
(ii) Cybersecurity controls.
(iii) Privacy controls.
(iv) Risk assessments or audits for potential risks.
(v) Measures or processes in place to contest an automated decision.
(d) (1) On or before January 1, 2025, and annually thereafter, the department shall submit a report of the comprehensive inventory described in subdivision (b) to the Assembly Committee on Privacy and Consumer Protection and the Senate Committee on Governmental Organization.
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### Ch. 800
(2) The requirement for submitting a report imposed under paragraph (1) is inoperative on January 1, 2029, pursuant to Section 10231.5.
(3) A report to be submitted pursuant to paragraph (1) shall be submitted in compliance with Section 9795.
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# ASSEMBLY BILL No. 3204
## Introduced by Assembly Member Bauer-Kahan
February 16, 2024
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An act to add Title 1.81.8 (commencing with Section 1798.321) to Part 4 of Division 3 of the Civil Code, relating to data digesters.
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### LEGISLATIVE COUNSEL'S DIGEST
AB 3204, as introduced, Bauer-Kahan. Data digesters.
The California Consumer Privacy Act of 2018 (CCPA) grants a consumer various rights with respect to personal information that is collected or sold by a business. The CCPA defines various terms for these purposes. The California Privacy Rights Act of 2020 (CPRA), approved by the voters as Proposition 24 at the November 3, 2020, statewide general election, amended, added to, and reenacted the CCPA and establishes the California Privacy Protection Agency (agency) and vests the agency with full administrative power, authority, and jurisdiction to enforce the CCPA.
Existing law requires data brokers to register with the agency, pay a registration fee, and provide certain information, prescribes penalties for failure to register as required by these provisions, requires the agency to create a page on its internet website where this registration information is accessible to the public, and creates a fund known as the “Data Brokers’ Registry Fund” that may be used by the agency, upon appropriation, to, among other things, offset the reasonable costs of establishing and maintaining the informational website and the costs incurred by the state courts and the agency in connection with enforcing these provisions, as specified. Existing law defines various terms for
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these purposes, including by incorporating specified definitions provided in the CPRA.
This bill would require data digesters to register with the agency, pay a registration fee, and provide specified information, prescribe penalties for a failure to register as required by these provisions, require the agency to create a page on its internet website where this registration information is accessible to the public, and create a fund known as the “Data Digester Registry Fund” to be administered by the agency to be available for expenditure by the agency, upon appropriation, to offset the reasonable costs of establishing and maintaining the informational website and the costs incurred by the state courts and the agency in connection with enforcing these provisions, as specified. The bill would define “data digester” and incorporate specified definitions provided in the CPRA for these purposes.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.
The people of the State of California do enact as follows:
SECTION 1. Title 1.81.8 (commencing with Section 1798.321) is added to Part 4 of Division 3 of the Civil Code, to read:
# TITLE 1.81.8. DATA DIGESTERS
## 1798.321.
For purposes of this title:
(a) The definitions in Section 1798.140 shall apply unless otherwise specified in this title.
(b) “Data digester” means a business that uses personal information to train artificial intelligence.
## 1798.322.
A fund to be known as the “Data Digester Registry Fund” is hereby created within the State Treasury. The fund shall be administered by the California Privacy Protection Agency. All moneys collected or received by the California Privacy Protection Agency under this title shall be deposited into the Data Digester Registry Fund, to be available for expenditure by the California Privacy Protection Agency, upon appropriation by the Legislature, to offset all of the following costs:
(a) The reasonable costs of establishing and maintaining the informational internet website described in Section 1798.324.
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(b) The costs incurred by the state courts and the California Privacy Protection Agency in connection with enforcing this title, as specified in Section 1798.323.
1798.323. (a) On or before January 31 following each year in which a business meets the definition of data digester as provided in this title, the business shall register with the California Privacy Protection Agency pursuant to the requirements of this section.
(b) In registering with the California Privacy Protection Agency, as described in subdivision (a), a data digester shall do all of the following:
(1) Pay a registration fee in an amount determined by the California Privacy Protection Agency, not to exceed the reasonable costs of establishing and maintaining the informational internet website described in Section 1798.324.
(2) Provide the following information:
(A) The name of the data digester and its primary physical, email, and internet website addresses.
(B) Each category of personal information that the data digester uses to train artificial intelligence, identified by reference to the applicable subparagraph enumerated under paragraph (1) of subdivision (v) of Section 1798.140.
(C) Each category of sensitive personal information that the data digester uses to train artificial intelligence, identified by reference to the applicable paragraph and subparagraph enumerated under subdivision (ae) of Section 1798.140.
(D) Each category of information related to consumers’ receipt of sensitive services, as that term is defined in Section 56.05, that the data digester uses to train artificial intelligence, identified by reference to the specific category of sensitive service enumerated in the definition.
(E) Whether the data digester trains artificial intelligence using the personal information of minors.
(F) Whether and to what extent the data digester or any of its subsidiaries is regulated by any of the following:
(i) The federal Fair Credit Reporting Act (15 U.S.C. Sec. 1681 et seq.).
(ii) The federal Gramm-Leach-Bliley Act (Public Law 106-102) and implementing regulations.
(iii) The federal Driver’s Privacy Protection Act of 1994 (18 U.S.C. Sec. 2721 et seq.).
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# AB 3204
1. (iv) The Insurance Information and Privacy Protection Act
2. Article 6.6 (commencing with Section 791) of Chapter 1 of Part
3. 2 of Division 1 of the Insurance Code).
4. (v) The Confidentiality of Medical Information Act (Part 2.6
5. commencing with Section 56) of Division 1) or the privacy,
6. security, and breach notification rules issued by the United States
7. Department of Health and Human Services, Parts 160 and 164 of
8. Title 45 of the Code of Federal Regulations, established pursuant
9. to the federal Health Insurance Portability and Accountability Act
10. of 1996 (Public Law 104-191).
11. (vi) The privacy of pupil records pursuant to Article 5
12. (commencing with Section 49073) of Chapter 6.5 of Part 27 of
13. Division 4 of Title 2 of the Education Code.
14. (G) Any additional information or explanation the data digester
15. chooses to provide concerning its artificial intelligence training
16. practices.
17. (c) If the California Privacy Protection Agency reasonably
18. believes that a data digester has failed to register within 90 days
19. of the date on which it is required to register under this section,
20. the California Privacy Protection Agency shall provide notice of
21. failure to the data digester and post a copy of the notice on the
22. informational internet website described in Section 1798.324.
23. (d) A data digester that fails to register as required by this section
24. is liable for administrative fines and costs in an administrative
25. action brought by the California Privacy Protection Agency as
26. follows:
27. (1) Administrative fines according to the following schedule:
28. (A) An administrative fine of two hundred dollars ($200) for
29. each day the data digester fails to register as required by this section
30. prior to the date on which notice is posted on the informational
31. internet website pursuant to subdivision (c).
32. (B) An administrative fine of five thousand dollars ($5,000) for
33. each day the data digester fails to register as required by this section
34. beginning the 15th day after notice is posted on the informational
35. internet website pursuant to subdivision (c).
36. (2) An amount equal to the fees that were due during the period
37. it failed to register.
38. (3) Expenses incurred by the California Privacy Protection
39. Agency in the investigation and administration of the action as the
40. court deems appropriate.
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(e) Any penalties, fines, fees, and expenses recovered in an
action prosecuted under subdivision (d) shall be deposited in the
Data Breach Registry Fund, created within the State Treasury
pursuant to Section 1798.322, with the intent that they be used to
fully offset costs incurred by the state courts and the California
Privacy Protection Agency in connection with this title.
1798.324. The California Privacy Protection Agency shall
create a page on its internet website where the registration
information provided by data digesters described in paragraph (2)
of subdivision (b) of Section 1798.323 shall be accessible to the
public.
1798.325. (a) Except as provided in subdivision (b), the
California Privacy Protection Agency may adopt regulations
pursuant to the Administrative Procedure Act (Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title
2 of the Government Code) to implement and administer this title.
(b) Notwithstanding subdivision (a), any regulation adopted by
the California Privacy Protection Agency to establish fees
authorized by this title shall be exempt from the Administrative
Procedure Act (Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code).
1798.326. This title shall not be construed to supersede or
interfere with the operation of the California Consumer Privacy
Act of 2018 (Title 1.81.5 (commencing with Section 1798.100)).
1798.327. An administrative action brought pursuant to this
title alleging a violation of any of the provisions of this title shall
not be commenced more than five years after the date on which
the violation occurred.
O
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# SENATE BILL No. 1047
**Introduced by Senator Wiener**
February 7, 2024
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An act to add Chapter 22.6 (commencing with Section 22602) to Division 8 of the Business and Professions Code, and to add Sections 11547.6 and 11547.7 to the Government Code, relating to artificial intelligence.
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## LEGISLATIVE COUNSEL’S DIGEST
SB 1047, as introduced, Wiener. Safe and Secure Innovation for Frontier Artificial Intelligence Systems Act.
Existing law requires the Secretary of Government Operations to develop a coordinated plan to, among other things, investigate the feasibility of, and obstacles to, developing standards and technologies for state departments to determine digital content provenance. For the purpose of informing that coordinated plan, existing law requires the secretary to evaluate, among other things, the impact of the proliferation of deepfakes, defined to mean audio or visual content that has been generated or manipulated by artificial intelligence that would falsely appear to be authentic or truthful and that features depictions of people appearing to say or do things they did not say or do without their consent, on state government, California-based businesses, and residents of the state.
Existing law creates the Department of Technology within the Government Operations Agency and requires the department to, among other things, identify, assess, and prioritize high-risk, critical information technology services and systems across state government for modernization, stabilization, or remediation.
This bill would enact the Safe and Secure Innovation for Frontier Artificial Intelligence Systems Act to, among other things, require a
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developer of a covered model, as defined, to determine whether it can make a positive safety determination with respect to a covered model before initiating training of that covered model, as specified. The bill would define “positive safety determination” to mean a determination with respect to a covered model, that is not a derivative model, that a developer can reasonably exclude the possibility that the covered model has a hazardous capability, as defined, or may come close to possessing a hazardous capability when accounting for a reasonable margin for safety and the possibility of posttraining modifications.
This bill would require that a developer, before initiating training of a nonderivative covered model, comply with various requirements, including implementing the capability to promptly enact a full shutdown of the covered model until that covered model is the subject of a positive safety determination.
This bill would require a developer of a nonderivative covered model that is not the subject of a positive safety determination to submit to the Frontier Model Division, which the bill would create within the Department of Technology, an annual certification of compliance with these provisions signed by the chief technology officer, or a more senior corporate officer, in a format and on a date as prescribed by the Frontier Model Division. By expanding the scope of the crime of perjury, this bill would impose a state-mandated local program. The bill would also require a developer to report an artificial intelligence safety incident affecting a covered model to the Frontier Model Division in a manner prescribed by the Frontier Model Division.
This bill would require a person that operates a computing cluster, as defined, to implement appropriate written policies and procedures to do certain things when a customer utilizes compute resources that would be sufficient to train a covered model, including assess whether a prospective customer intends to utilize the computing cluster to deploy a covered model. The bill would punish a violation of these provisions with a civil penalty, as prescribed, to be recovered by the Attorney General.
This bill would also create the Frontier Model Division within the Department of Technology and would require the division to, among other things, review annual certification reports from developers received pursuant to these provisions and publicly release summarized findings based on those reports. The bill would authorize the division to assess related fees and would require deposit of the fees into the Frontier Model Division Programs Fund, which the bill would create.
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The bill would make moneys in the fund available for the purpose of these provisions only upon appropriation by the Legislature.
This bill would also require the Department of Technology to commission consultants, as prescribed, to create a public cloud computing cluster, to be known as CalCompute, with the primary focus of conducting research into the safe and secure deployment of large-scale artificial intelligence models and fostering equitable innovation that includes, among other things, a fully owned and hosted cloud platform.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.
The people of the State of California do enact as follows:
## SECTION 1.
This act shall be known, and may be cited, as the Safe and Secure Innovation for Frontier Artificial Intelligence Systems Act.
## SEC. 2.
The Legislature finds and declares all of the following:
(a) California is leading the world in artificial intelligence innovation and research, through companies large and small, as well as through our remarkable public and private universities.
(b) Artificial intelligence, including new advances in generative artificial intelligence, has the potential to catalyze innovation and the rapid development of a wide range of benefits for Californians and the California economy, including advances in medicine, wildfire forecasting and prevention, and climate science, and to push the bounds of human creativity and capacity.
(c) If not properly subject to human controls, future development in artificial intelligence may also have the potential to be used to create novel threats to public safety and security, including by enabling the creation and the proliferation of weapons of mass destruction, such as biological, chemical, and nuclear weapons, as well as weapons with cyber-offensive capabilities.
(d) The state government has an essential role to play in ensuring that California recognizes the benefits of this technology while avoiding the most severe risks, as well as to ensure that artificial
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# Chapter 22.6. Safe and Secure Innovation for Frontier Artificial Intelligence Systems
## 22602. As used in this chapter:
(a) “Advanced persistent threat” means an adversary with sophisticated levels of expertise and significant resources that allow it, through the use of multiple different attack vectors, including, but not limited to, cyber, physical, and deception, to generate opportunities to achieve its objectives that are typically to establish and extend its presence within the information technology infrastructure of organizations for purposes of exfiltrating information or to undermine or impede critical aspects of a mission, program, or organization or place itself in a position to do so in the future.
(b) “Artificial intelligence model” means a machine-based system that can make predictions, recommendations, or decisions influencing real or virtual environments and can use model inference to formulate options for information or action.
(c) “Artificial intelligence safety incident” means any of the following:
(1) A covered model autonomously engaging in a sustained sequence of unsafe behavior other than at the request of a user.
(2) Theft, misappropriation, malicious use, inadvertent release, unauthorized access, or escape of the model weights of a covered model.
(3) The critical failure of technical or administrative controls, including controls limiting the ability to modify a covered model, designed to limit access to a hazardous capability of a covered model.
(4) Unauthorized use of the hazardous capability of a covered model.
(d) “Computing cluster” means a set of machines transitively connected by data center networking of over 100 gigabits that has a theoretical maximum computing capacity of 10^20 integer or
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# SB 1047
floating-point operations per second for training artificial intelligence.
(e) “Covered guidance” means any of the following:
1. Applicable guidance issued by the National Institute of Standards and Technology and by the Frontier Model Division.
2. Industry best practices, including relevant safety practices, precautions, or testing procedures undertaken by developers of comparable models, and any safety standards or best practices commonly or generally recognized by relevant experts in academia or the nonprofit sector.
3. Applicable safety-enhancing standards set by standards setting organizations.
(f) “Covered model” means an artificial intelligence model that meets either of the following criteria:
1. The artificial intelligence model was trained using a quantity of computing power greater than 10^26 integer or floating-point operations in 2024, or a model that could reasonably be expected to have similar performance on benchmarks commonly used to quantify the performance of state-of-the-art foundation models, as determined by industry best practices and relevant standard setting organizations.
2. The artificial intelligence model has capability below the relevant threshold on a specific benchmark but is of otherwise similar general capability.
(g) “Critical harm” means a harm listed in paragraph (1) of subdivision (n).
(h) “Critical infrastructure” means assets, systems, and networks, whether physical or virtual, the incapacitation or destruction of which would have a debilitating effect on physical security, economic security, public health, or safety in the state.
(i)
1. “Derivative model” means an artificial intelligence model that is a derivative of another artificial intelligence model, including either of the following:
- A modified or unmodified copy of an artificial intelligence model.
- A combination of an artificial intelligence model with other software.
2. “Derivative model” does not include an entirely independently trained artificial intelligence model.
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# SB 1047
(j) (1) “Developer” means a person that creates, owns, or otherwise has responsibility for an artificial intelligence model.
(2) “Developer” does not include a third-party machine-learning operations platform, an artificial intelligence infrastructure platform, a computing cluster, an application developer using sourced models, or an end-user of an artificial intelligence model.
(k) “Fine tuning” means the adjustment of the model weights of an artificial intelligence model that has been previously trained by training the model with new data.
(l) “Frontier Model Division” means the Frontier Model Division created pursuant to Section 11547.6 of the Government Code.
(m) “Full shutdown” means the cessation of operation of a covered model, including all copies and derivative models, on all computers and storage devices within custody, control, or possession of a person, including any computer or storage device remotely provided by agreement.
(n) (1) “Hazardous capability” means the capability of a covered model to be used to enable any of the following harms in a way that would be significantly more difficult to cause without access to a covered model:
(A) The creation or use of a chemical, biological, radiological, or nuclear weapon in a manner that results in mass casualties.
(B) At least five hundred million dollars ($500,000,000) of damage through cyberattacks on critical infrastructure via a single incident or multiple related incidents.
(C) At least five hundred million dollars ($500,000,000) of damage by an artificial intelligence model that autonomously engages in conduct that would violate the Penal Code if undertaken by a human.
(D) Other threats to public safety and security that are of comparable severity to the harms described in paragraphs (A) to (C), inclusive.
(2) “Hazardous capability” includes a capability described in paragraph (1) even if the hazardous capability would not manifest but for fine tuning and posttraining modifications performed by third-party experts intending to demonstrate those abilities.
(o) “Machine-learning operations platform” means a solution that includes a combined offering of necessary machine-learning development capabilities, including exploratory data analysis, data preparation, model training and tuning, model review and
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governance, model inference and serving, model deployment and
monitoring, and automated model retraining.
(p) “Model weight” means a numerical parameter established
through training in an artificial intelligence model that helps
determine how input information impacts a model’s output.
(q) “Open-source artificial intelligence model” means an
artificial intelligence model that is made freely available and may
be freely modified and redistributed.
(r) “Person” means an individual, proprietorship, firm,
partnership, joint venture, syndicate, business trust, company,
corporation, limited liability company, association, committee, or
any other nongovernmental organization or group of persons acting
in concert.
(s) “Positive safety determination” means a determination,
pursuant to subdivision (a) or (c) of Section 22603, with respect
to a covered model that is not a derivative model that a developer
can reasonably exclude the possibility that a covered model has a
hazardous capability or may come close to possessing a hazardous
capability when accounting for a reasonable margin for safety and
the possibility of posttraining modifications.
(t) “Posttraining modification” means the modification of the
capabilities of an artificial intelligence model after the completion
of training by any means, including, but not limited to, initiating
additional training, providing the model with access to tools or
data, removing safeguards against hazardous misuse or misbehavior
of the model, or combining the model with, or integrating it into,
other software.
(u) “Safety and security protocol” means documented technical
and organizational protocols that meet both of the following
criteria:
(1) The protocols are used to manage the risks of developing
and operating covered models across their life cycle, including
risks posed by enabling or potentially enabling the creation of
derivative models.
(2) The protocols specify that compliance with the protocols is
required in order to train, operate, possess, and provide external
access to the developer’s covered model.
22603. (a) Before initiating training of a covered model that
is not a derivative model, a developer of that covered model shall
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determine whether it can make a positive safety determination with respect to the covered model.
(1) In making the determination required by this subdivision, a developer shall incorporate all covered guidance.
(2) A developer may make a positive safety determination if the covered model will have lower performance on all benchmarks relevant under subdivision (f) of Section 22602 than either of the following:
(A) A non-covered model that manifestly lacks hazardous capabilities.
(B) Another model that is the subject of a positive safety determination.
(3) Upon making a positive safety determination, the developer of the covered model shall submit to the Frontier Model Division a certification under penalty of perjury that specifies the basis for that conclusion.
(b) Before initiating training of a covered model that is not a derivative model that is not the subject of a positive safety determination, and until that covered model is the subject of a positive safety determination, the developer of that covered model shall do all of the following:
(1) Implement administrative, technical, and physical cybersecurity protections to prevent unauthorized access to, or misuse or unsafe modification of, the covered model, including to prevent theft, misappropriation, malicious use, or inadvertent release or escape of the model weights from the developer’s custody, that are appropriate in light of the risks associated with the covered model, including from advanced persistent threats or other sophisticated actors.
(2) Implement the capability to promptly enact a full shutdown of the covered model.
(3) Implement all covered guidance.
(4) Implement a written and separate safety and security protocol that does all of the following:
(A) Provides reasonable assurance that if a developer complies with its safety and security protocol, either of the following will apply:
(i) The developer will not produce a covered model with a hazardous capability or enable the production of a derivative model with a hazardous capability.
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(ii) The safeguards enumerated in the policy will be sufficient
to prevent critical harms from the exercise of a hazardous capability
in a covered model.
(B) States compliance requirements in an objective manner and
with sufficient detail and specificity to allow the developer or a
third party to readily ascertain whether the requirements of the
safety and security protocol have been followed.
(C) Identifies specific tests and test results that would be
sufficient to reasonably exclude the possibility that a covered model
has a hazardous capability or may come close to possessing a
hazardous capability when accounting for a reasonable margin for
safety and the possibility of posttraining modifications, and in
addition does all of the following:
(i) Describes in detail how the testing procedure incorporates
fine tuning and posttraining modifications performed by third-party
experts intending to demonstrate those abilities.
(ii) Describes in detail how the testing procedure incorporates
the possibility of posttraining modifications.
(iii) Describes in detail how the testing procedure incorporates
the requirement for reasonable margin for safety.
(iv) Provides sufficient detail for third parties to replicate the
testing procedure.
(D) Describes in detail how the developer will meet
requirements listed under paragraphs (1), (2), (3), and (5).
(E) If applicable, describes in detail how the developer intends
to implement the safeguards and requirements referenced in
paragraph (1) of subdivision (d).
(F) Describes in detail the conditions that would require the
execution of a full shutdown.
(G) Describes in detail the procedure by which the safety and
security protocol may be modified.
(H) Meets other criteria stated by the Frontier Model Division
in guidance to achieve the purpose of maintaining the safety of a
covered model with a hazardous capability.
(5) Ensure that the safety and security protocol is implemented
as written, including, at a minimum, by designating senior
personnel responsible for ensuring implementation by employees
and contractors working on a covered model, monitoring and
reporting on implementation, and conducting audits, including
through third parties as appropriate.
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(6) Provide a copy of the safety and security protocol to the Frontier Model Division.
(7) Conduct an annual review of the safety and security protocol to account for any changes to the capabilities of the covered model and industry best practices and, if necessary, make modifications to the policy.
(8) If the safety and security protocol is modified, provide an updated copy to the Frontier Model Division within 10 business days.
(9) Refrain from initiating training of a covered model if there remains an unreasonable risk that an individual, or the covered model itself, may be able to use the hazardous capabilities of the covered model, or a derivative model based on it, to cause a critical harm.
(c) (1) Upon completion of the training of a covered model that is not the subject of a positive safety determination and is not a derivative model, the developer shall perform capability testing sufficient to determine whether the developer can make a positive safety determination with respect to the covered model pursuant to its safety and security protocol.
(2) Upon making a positive safety determination with respect to the covered model, a developer of the covered model shall submit to the Frontier Model Division a certification of compliance with the requirements of this section within 90 days and no more than 30 days after initiating the commercial, public, or widespread use of the covered model that includes both of the following:
(A) The basis for the developer’s positive safety determination.
(B) The specific methodology and results of the capability testing undertaken pursuant to this subdivision.
(d) Before initiating the commercial, public, or widespread use of a covered model that is not subject to a positive safety determination, a developer of the nonderivative version of the covered model shall do all of the following:
(1) Implement reasonable safeguards and requirements to do all of the following:
(A) Prevent an individual from being able to use the hazardous capabilities of the model, or a derivative model, to cause a critical harm.
(B) Prevent an individual from being able to use the model to create a derivative model that was used to cause a critical harm.
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(C) Ensure, to the extent reasonably possible, that the covered model’s actions and any resulting critical harms can be accurately and reliably attributed to it and any user responsible for those actions.
(2) Provide reasonable requirements to developers of derivative models to prevent an individual from being able to use a derivative model to cause a critical harm.
(3) Refrain from initiating the commercial, public, or widespread use of a covered model if there remains an unreasonable risk that an individual may be able to use the hazardous capabilities of the model, or a derivative model based on it, to cause a critical harm.
(e) A developer of a covered model shall periodically reevaluate the procedures, policies, protections, capabilities, and safeguards implemented pursuant to this section in light of the growing capabilities of covered models and as is reasonably necessary to ensure that the covered model or its users cannot remove or bypass those procedures, policies, protections, capabilities, and safeguards.
(f) (1) A developer of a nonderivative covered model that is not the subject of a positive safety determination shall submit to the Frontier Model Division an annual certification of compliance with the requirements of this section signed by the chief technology officer, or a more senior corporate officer, in a format and on a date as prescribed by the Frontier Model Division.
(2) In a certification submitted pursuant to paragraph (1), a developer shall specify or provide, at a minimum, all of the following:
(A) The nature and magnitude of hazardous capabilities that the covered model possesses or may reasonably possess and the outcome of capability testing required by subdivision (c).
(B) An assessment of the risk that compliance with the safety and security protocol may be insufficient to prevent harms from the exercise of the covered model’s hazardous capabilities.
(C) Other information useful to accomplishing the purposes of this subdivision, as determined by the Frontier Model Division.
(g) A developer shall report each artificial intelligence safety incident affecting a covered model to the Frontier Model Division in a manner prescribed by the Frontier Model Division. The notification shall be made in the most expedient time possible and without unreasonable delay and in no event later than 72 hours after learning that an artificial intelligence safety incident has
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```
occurred or learning facts sufficient to establish a reasonable belief
that an artificial intelligence safety incident has occurred.
(h) (1) Reliance on an unreasonable positive safety
determination does not relieve a developer of its obligations under
this section.
(2) A positive safety determination is unreasonable if the
developer does not take into account reasonably foreseeable risks
of harm or weaknesses in capability testing that lead to an
inaccurate determination.
(3) A risk of harm or weakness in capability testing is reasonably
foreseeable, if, by the time that a developer releases a model, an
applicable risk of harm or weakness in capability testing has
already been identified by either of the following:
(A) Any other developer of a comparable or comparably
powerful model through risk assessment, capability testing, or
other means.
(B) By the United States Artificial Intelligence Safety Institute,
the Frontier Model Division, or any independent standard-setting
organization or capability-testing organization cited by either of
those entities.
22064. A person that operates a computing cluster shall
implement appropriate written policies and procedures to do all
of the following when a customer utilizes compute resources that
would be sufficient to train a covered model:
(a) Obtain a prospective customer’s basic identifying
information and business purpose for utilizing the computing
cluster, including all of the following:
(1) The identity of that prospective customer.
(2) The means and source of payment, including any associated
financial institution, credit card number, account number, customer
identifier, transaction identifiers, or virtual currency wallet or
wallet address identifier.
(3) The email address and telephonic contact information used
to verify a prospective customer’s identity.
(4) The Internet Protocol addresses used for access or
administration and the date and time of each access or
administrative action.
(b) Assess whether a prospective customer intends to utilize the
computing cluster to deploy a covered model.
```
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```
(c) Annually validate the information collected pursuant to
subdivision (a) and conduct the assessment required pursuant to
subdivision (b).
(d) Maintain for seven years and provide to the Frontier Model
Division or the Attorney General, upon request, appropriate records
of actions taken under this section, including policies and
procedures put into effect.
(e) Implement the capability to promptly enact a full shutdown
in the event of an emergency.
22605. (a) A developer of a covered model that provides
commercial access to that covered model shall provide a
transparent, uniform, publicly available price schedule for the
purchase of access to that covered model at a given level of quality
and quantity subject to the developer’s terms of service and shall
not engage in unlawful discrimination or noncompetitive activity
in determining price or access.
(b) A person that operates a computing cluster shall provide a
transparent, uniform, publicly available price schedule for the
purchase of access to the computing cluster at a given level of
quality and quantity subject to the developer’s terms of service
and shall not engage in unlawful discrimination or noncompetitive
activity in determining price or access.
22606. (a) If the Attorney General has reasonable cause to
believe that a person is violating this chapter, the Attorney General
shall commence a civil action in a court of competent jurisdiction.
(b) In a civil action under this section, the court may award any
of the following:
(1) (A) Preventive relief, including a permanent or temporary
injunction, restraining order, or other order against the person
responsible for a violation of this chapter, including deletion of
the covered model and the weights utilized in that model.
(B) Relief pursuant to this paragraph shall be granted only in
response to harm or an imminent risk or threat to public safety.
(2) Other relief as the court deems appropriate, including
monetary damages to persons aggrieved and an order for the full
shutdown of a covered model.
(3) A civil penalty in an amount not exceeding 10 percent of
the cost, excluding labor cost, to develop the covered model for a
first violation and in an amount not exceeding 30 percent of the
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cost, excluding labor cost, to develop the covered model for any subsequent violation.
(c) In the apportionment of penalties assessed pursuant to this section, defendants shall be jointly and severally liable.
(d) A court shall disregard corporate formalities and impose joint and several liability on affiliated entities for purposes of effectuating the intent of this section if the court concludes that both of the following are true:
(1) Steps were taken in the development of the corporate structure among affiliated entities to purposely and unreasonably limit or avoid liability.
(2) The corporate structure of the developer or affiliated entities would frustrate recovery of penalties or injunctive relief under this section.
22607. (a) Pursuant to subdivision (a) of Section 1102.5 of the Labor Code, a developer shall not prevent an employee from disclosing information to the Attorney General if the employee has reasonable cause to believe that the information indicates that the developer is out of compliance with the requirements of Section 22603.
(b) Pursuant to subdivision (b) of Section 1102.5 of the Labor Code, a developer shall not retaliate against an employee for disclosing information to the Attorney General if the employee has reasonable cause to believe that the information indicates that the developer is out of compliance with the requirements of Section 22603.
(c) The Attorney General may publicly release any complaint, or a summary of that complaint, pursuant to this section if the Attorney General concludes that doing so will serve the public interest.
(d) Employees shall seek relief for violations of this section pursuant to Sections 1102.61 and 1102.62 of the Labor Code.
(e) Pursuant to subdivision (a) of Section 1102.8 of the Labor Code, a developer shall provide clear notice to all employees working on covered models of their rights and responsibilities under this section.
SEC. 4. Section 11547.6 is added to the Government Code, to read:
11547.6. (a) As used in this section:
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(1) “Hazardous capability” has the same meaning as defined in Section 22602 of the Business and Professions Code.
(2) “Positive safety determination” has the same meaning as defined in Section 22602 of the Business and Professions Code.
(b) The Frontier Model Division is hereby created within the Department of Technology.
(c) The Frontier Model Division shall do all of the following:
(1) Review annual certification reports received from developers pursuant to Section 22603 of the Business and Professions Code and publicly release summarized findings based on those reports.
(2) Advise the Attorney General on potential violations of this section or Chapter 22.6 (commencing with Section 22602) of Division 8 of the Business and Professions Code.
(3) (A) Issue guidance, standards, and best practices sufficient to prevent unreasonable risks from covered models with hazardous capabilities including, but not limited to, more specific requirements on the duties required under Section 22603 of the Business and Professions Code.
(B) Establish an accreditation process and relevant accreditation standards under which third parties may be accredited for a three-year period, which may be extended through an appropriate process, to certify adherence by developers to the best practices and standards adopted pursuant to subparagraph (A).
(4) Publish anonymized artificial intelligence safety incident reports received from developers pursuant to Section 22603 of the Business and Professions Code.
(5) Establish confidential fora that are structured and facilitated in a manner that allows developers to share best risk management practices for models with hazardous capabilities in a manner consistent with state and federal antitrust laws.
(6) (A) Issue guidance describing the categories of artificial intelligence safety events that are likely to constitute a state of emergency within the meaning of subdivision (b) of Section 8558 and responsive actions that could be ordered by the Governor after a duly proclaimed state of emergency.
(B) The guidance issued pursuant to subparagraph (A) shall not limit, modify, or restrict the authority of the Governor in any way.
(7) Appoint and consult with an advisory committee that shall advise the Governor on when it may be necessary to proclaim a
```
---
state of emergency relating to artificial intelligence and advise the Governor on what responses may be appropriate in that event.
(8) Appoint and consult with an advisory committee for open-source artificial intelligence that shall do all of the following:
(A) Issue guidelines for model evaluation for use by developers of open-source artificial intelligence models that do not have hazardous capabilities.
(B) Advise the Frontier Model Division on the creation and feasibility of incentives, including tax credits, that could be provided to developers of open-source artificial intelligence models that are not covered models.
(C) Advise the Frontier Model Division on future policies and legislation impacting open-source artificial intelligence development.
(9) Provide technical assistance and advice to the Legislature, upon request, with respect to artificial intelligence-related legislation.
(10) Monitor relevant developments relating to the safety risks associated with the development of artificial intelligence models and the functioning of markets for artificial intelligence models.
(11) Levy fees, including an assessed fee for the submission of a certification, in an amount sufficient to cover the reasonable costs of administering this section that do not exceed the reasonable costs of administering this section.
(12) (A) Develop and submit to the Judicial Council proposed model jury instructions for actions brought by individuals injured by a hazardous capability of a covered model.
(B) In developing the model jury instructions required by subparagraph (A), the Frontier Model Division shall consider all of the following factors:
(i) The level of rigor and detail of the safety and security protocol that the developer faithfully implemented while it trained, stored, and released a covered model.
(ii) Whether and to what extent the developer’s safety and security protocol was inferior, comparable, or superior, in its level of rigor and detail, to the mandatory safety policies of comparable developers.
(iii) The extent and quality of the developer’s safety and security protocol’s prescribed safeguards, capability testing, and other
---
precautionary measures with respect to the relevant hazardous capability and related hazardous capabilities.
(iv) Whether and to what extent the developer and its agents complied with the developer’s safety and security protocol, and to the full degree, that doing so might plausibly have avoided causing a particular harm.
(v) Whether and to what extent the developer carefully and rigorously investigated, documented, and accurately measured, insofar as reasonably possible given the state of the art, relevant risks that its model might pose.
(d) There is hereby created in the General Fund the Frontier Model Division Programs Fund.
(1) All fees received by the Frontier Model Division pursuant to this section shall be deposited into the fund.
(2) All moneys in the account shall be available, only upon appropriation by the Legislature, for purposes of carrying out the provisions of this section.
SEC. 5. Section 11547.7 is added to the Government Code, to read:
11547.7. (a) The Department of Technology shall commission consultants, pursuant to subdivision (b), to create a public cloud computing cluster, to be known as CalCompute, with the primary focus of conducting research into the safe and secure deployment of large-scale artificial intelligence models and fostering equitable innovation that includes, but is not limited to, all of the following:
(1) A fully owned and hosted cloud platform.
(2) Necessary human expertise to operate and maintain the platform.
(3) Necessary human expertise to support, train, and facilitate use of CalCompute.
(b) The consultants shall include, but not be limited to, representatives of national laboratories, public universities, and any relevant professional associations or private sector stakeholders.
(c) To meet the objective of establishing CalCompute, the Department of Technology shall require consultants commissioned to work on this process to evaluate and incorporate all of the following considerations into its plan:
(1) An analysis of the public, private, and nonprofit cloud platform infrastructure ecosystem, including, but not limited to,
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# SB 1047 — 18 —
1. dominant cloud providers, the relative compute power of each
2. provider, the estimated cost of supporting platforms as well as
3. pricing models, and recommendations on the scope of CalCompute.
4. (2) The process to establish affiliate and other partnership
5. relationships to establish and maintain an advanced computing
6. infrastructure.
7. (3) A framework to determine the parameters for use of
8. CalCompute, including, but not limited to, a process for deciding
9. which projects will be supported by CalCompute and what
10. resources and services will be provided to projects.
11. (4) A process for evaluating appropriate uses of the public cloud
12. resources and their potential downstream impact, including
13. mitigating downstream harms in deployment.
14. (5) An evaluation of the landscape of existing computing
15. capability, resources, data, and human expertise in California for
16. the purposes of responding quickly to a security, health, or natural
17. disaster emergency.
18. (6) An analysis of the state’s investment in the training and
19. development of the technology workforce, including through
20. degree programs at the University of California, the California
21. State University, and the California Community Colleges.
22. (7) A process for evaluating the potential impact of CalCompute
23. on retaining technology professionals in the public workforce.
24. (d) The Department of Technology shall submit, pursuant to
25. Section 9795, an annual report to the Legislature from the
26. commissioned consultants to ensure progress in meeting the
27. objectives listed above.
28. (e) The Department of Technology may receive private
29. donations, grants, and local funds, in addition to allocated funding
30. in the annual budget, to effectuate this section.
31. (f) This section shall become operative only upon an
32. appropriation in a budget act for the purposes of this section.
33. SEC. 6. The provisions of this act are severable. If any
34. provision of this act or its application is held invalid, that invalidity
35. shall not affect other provisions or applications that can be given
36. effect without the invalid provision or application.
37. SEC. 7. This act shall be liberally construed to effectuate its
38. purposes.
39. SEC. 8. The duties and obligations imposed by this act are
40. cumulative with any other duties or obligations imposed under
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```
other law and shall not be construed to relieve any party from any
duties or obligations imposed under other law.
SEC. 9. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.
```
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# SENATE BILL No. 398
**Introduced by Senator Wahab**
**(Coauthor: Senator Limón)**
February 9, 2023
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An act to add and repeal Chapter 4 (commencing with Section 15210) of Part 6 of Division 3 of Title 2 Section 11546.8 of the Government Code, relating to technology.
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## LEGISLATIVE COUNSEL'S DIGEST
SB 398, as amended, Wahab. Department of Technology: advanced technology: research.
Existing law establishes the Department of Technology, within the Government Operations Agency, under the supervision of the Director of Technology. Under existing law, the department is responsible for the approval and oversight of information technology projects. Existing law requires the department to submit various reports to the Legislature, including an annual information technology strategic plan.
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# SB 398
that guides the acquisition, management, and use of information technology by state agencies.
This bill, the ~~Government Services Advanced Technology Act~~, Artificial Intelligence for California Research Act, would require the Department of ~~Justice~~, Technology, upon appropriation by the Legislature, to develop and implement a comprehensive research plan to study the feasibility of using advanced technology to improve state and local government services. The bill would require the research plan to include, among other things, an analysis of the potential benefits and risks of using artificial intelligence technology ~~to assist disaster victims in finding and applying for disaster relief funds and to assist individuals in determining their eligibility for various public benefits programs~~ in government services, as specified. The bill would require the department, on or before January 1, 2026, to provide a report to the Legislature on the findings of its research.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.
The people of the State of California do enact as follows:
## SECTION 1.
Section 11546.8 is added to the Government Code, to read:
### 11546.8.
(a) This section shall be known, and may be cited, as the Artificial Intelligence for California Research Act.
(b) The purpose of this section is to dedicate funds to research the feasibility and risks of using advanced technology, such as artificial intelligence dialogue systems, to improve government services.
(c) Upon appropriation by the Legislature, the Department of Technology shall develop and implement a comprehensive research plan to study the feasibility of using advanced technology to improve government services.
(d) The research plan shall include, but is not limited to, all of the following:
1. An analysis of the potential benefits and risks, including the impacts on equity, efficiency, accuracy, and cost effectiveness, of using artificial intelligence technology in different government services, including the use of artificial intelligence for each of the following:
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(A) Virtual assistants powered by an artificial intelligence language system for unemployment and disability insurance to assist claimants in navigating the unemployment or disability insurance application process, answering questions, and providing real-time status updates.
(B) A rental assistance chatbot to assist renters in finding affordable housing options, assist with the application process for rental assistance programs, and provide real-time updates on their application status.
(C) Assisting disaster victims in finding and applying for disaster relief funds and assisting with navigating the application process.
(D) Assisting individuals in making public records requests, providing information on the required documents and processes, and providing real-time updates on the status of their requests.
(E) Assisting individuals in determining their eligibility for various public benefits programs, such as food stamps, energy assistance, and childcare assistance.
(2) A review of best practices and case studies from other government entities using similar advanced technology and an assessment of their successes and failures.
(3) A thorough cost-benefit analysis of implementing advanced technology in government services, including the costs of implementation, maintenance, and training, and the potential benefits and savings to government operations and the public.
(4) Recommendations for effectively integrating advanced technology into government services, including guidelines for implementation, risk management, and ongoing monitoring and evaluation.
(5) An analysis of any risks to individual privacy and recommendations for mitigating privacy issues in implementation.
(e) On or before January 1, 2026, the Department of Technology shall provide a report to the Legislature, in accordance with Section 9795, on the findings of its research conducted pursuant to this section.
(f) For the purposes of this section, “government services” means public benefits provided by the state or a local government.
(g) This section shall remain in effect only until January 1, 2026, and as of that date is repealed.
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# Chapter 4. Government Services Advanced Technology Act
## 15210.
(a) This act shall be known, and may be cited, as the Government Services Advanced Technology Act.
(b) The purpose of this act is to dedicate funds to research the feasibility and risks of using advanced technology, such as artificial intelligence dialogue systems, to improve government services.
## 15211.
For the purposes of this chapter, "government services" means public benefits provided by the state or a local government.
## 15212.
(a) Upon appropriation by the Legislature, the Department of Justice shall develop and implement a comprehensive research plan to study the feasibility of using advanced technology to improve government services.
(b) The research plan shall include, but is not limited to, all of the following:
1. An analysis of the potential benefits and risks, including the impact on the equity, efficiency, accuracy, and cost-effectiveness, of using artificial intelligence technology in different government services, including the use of artificial intelligence for each of the following:
- (A) Virtual assistants powered by an artificial intelligence language system for unemployment and disability insurance to assist claimants in navigating the unemployment or disability insurance application process, answering questions, and providing real-time status updates.
- (B) A rental assistance chatbot to assist renters in finding affordable housing options, assist with the application process for rental assistance programs, and provide real-time updates on their application status.
- (C) Assisting disaster victims in finding and applying for disaster relief funds and assisting with navigating the application process.
- (D) Assisting individuals in making public records requests, providing information on the required documents and process, and providing real-time updates on the status of their request.
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# SB 398
1. (E) Assisting individuals in determining their eligibility for
2. various public benefits programs, such as food stamps, energy
3. assistance, and child care assistance.
4. (2) A review of best practices and case studies from other
5. government entities using similar advanced technology and an
6. assessment of their successes and failures.
7. (3) A thorough cost-benefit analysis of implementing advanced
8. technology in government services, including the costs of
9. implementation, maintenance, and training, and the potential
10. benefits and savings to government operations and the public.
11. (4) Recommendations for effectively integrating advanced
12. technology into government services, including guidelines for
13. implementation, risk management, and ongoing monitoring and
14. evaluation.
15. (5) An analysis of any risks to individual privacy and
16. recommendations for mitigating privacy issues in implementation.
17. 15213. On or before January 1, 2026, the Department of Justice
18. shall provide a report to the Legislature, in accordance with Section
19. 9795, on the findings of its research conducted pursuant to this
20. chapter.
21. 15214. This chapter shall remain in effect only until January
22. 1, 2026, and as of that date is repealed.
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O |
# Senate Bill No. 848
## CHAPTER 724
An act to add Section 12945.6 to the Government Code, relating to employment.
[Approved by Governor October 10, 2023. Filed with Secretary of State October 10, 2023.]
## LEGISLATIVE COUNSEL'S DIGEST
SB 848, Rubio. Employment: leave for reproductive loss.
Existing law, the California Fair Employment and Housing Act, makes it an unlawful employment practice for an employer to refuse to grant a request by any employee to take up to 5 days of bereavement leave upon the death of a family member.
This bill would additionally make it an unlawful employment practice for an employer to refuse to grant a request by an eligible employee to take up to 5 days of reproductive loss leave following a reproductive loss event, as defined. The bill would require that leave be taken within 3 months of the event, except as described, and pursuant to any existing leave policy of the employer. The bill would provide that if an employee experiences more than one reproductive loss event within a 12-month period, the employer is not obligated to grant a total amount of reproductive loss leave time in excess of 10 days within a 12-month period. Under the bill, in the absence of an existing policy, the reproductive loss leave may be unpaid. However, the bill would authorize an employee to use certain other leave balances otherwise available to the employee, including accrued and available paid sick leave. The bill would make leave under these provisions a separate and distinct right from any right under the California Fair Employment and Housing Act.
The bill would make it an unlawful employment practice for an employer to retaliate against an individual, as described, because of the individual’s exercise of the right to reproductive loss leave or the individual’s giving of information or testimony as to reproductive loss leave, as described. The bill would require the employer to maintain employee confidentiality relating to reproductive loss leave, as specified.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
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# The people of the State of California do enact as follows:
## SECTION 1
Section 12945.6 is added to the Government Code, to read:
### 12945.6
(a) For purposes of this section, the following definitions apply:
1. (A) "Assisted reproduction" means a method of achieving a pregnancy through artificial insemination or an embryo transfer and includes gamete and embryo donation.
(B) "Assisted reproduction" does not include any pregnancy achieved through sexual intercourse.
2. "Employee" means a person employed by the employer for at least 30 days prior to the commencement of the leave.
3. "Employer" means either of the following:
(A) A person who employs five or more persons to perform services for a wage or salary.
(B) The state and any political or civil subdivision of the state, including, but not limited to, cities and counties.
4. "Failed adoption" means the dissolution or breach of an adoption agreement with the birth mother or legal guardian, or an adoption that is not finalized because it is contested by another party. This event applies to a person who would have been a parent of the adoptee if the adoption had been completed.
5. "Failed surrogacy" means the dissolution or breach of a surrogacy agreement, or a failed embryo transfer to the surrogate. This event applies to a person who would have been a parent of a child born as a result of the surrogacy.
6. "Miscarriage" means a miscarriage by a person, by the person's spouse or domestic partner, or by another individual if the person would have been a parent of a child born as a result of the pregnancy.
7. "Reproductive loss event" means the day or, for a multiple-day event, the final day of a failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction.
8. "Reproductive loss leave" means the leave provided by subdivision (b).
9. "Stillbirth" means a stillbirth resulting from a person's pregnancy, the pregnancy of a person's current spouse or domestic partner, or another individual, if the person would have been a parent of a child born as a result of the pregnancy that ended in stillbirth.
10. "Unsuccessful assisted reproduction" means an unsuccessful round of intrauterine insemination or of an assisted reproductive technology procedure. This event applies to a person, the person's current spouse or domestic partner, or another individual, if the person would have been a parent of a child born as a result of the pregnancy.
(b) (1) It shall be an unlawful employment practice for an employer to refuse to grant a request by any employee to take up to five days of reproductive loss leave following a reproductive loss event. If an employee experiences more than one reproductive loss event within a 12-month period,
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# Ch. 724
an employer shall not be obligated to grant a total amount of reproductive loss leave in excess of 20 days within a 12-month period.
(2) The employer shall allow the days an employee takes for reproductive loss leave to be nonconsecutive.
(3) (A) Except as provided in subparagraph (B), reproductive loss leave shall be completed within three months of the event entitling the employee to that leave under paragraph (1).
(B) Notwithstanding subparagraph (A), if, prior to or immediately following a reproductive loss event, an employee is on or chooses to go on leave from work pursuant to Section 12945, 12945.2, or any other leave entitlement under state or federal law, the employee shall complete their reproductive loss leave within three months of the end date of the other leave.
(4) (A) Reproductive loss leave shall be taken pursuant to any existing applicable leave policy of the employer.
(B) If there is no existing applicable leave policy, reproductive loss leave may be unpaid, except that an employee may use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee.
(c) It shall be an unlawful employment practice for an employer to retaliate against an individual, including, but not limited to, refusing to hire, discharging, demoting, fining, suspending, expelling, or discriminating against, an individual because of either of the following:
(1) An individual’s exercise of the right to reproductive loss leave.
(2) An individual’s giving information or testimony as to their own reproductive loss leave, or another person’s reproductive loss leave, in an inquiry or proceeding related to rights guaranteed under this section.
(d) It shall be an unlawful employment practice for an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this section.
(e) The employer shall maintain the confidentiality of any employee requesting leave under this section. Any information provided to the employer pursuant to this section shall be maintained as confidential and shall not be disclosed except to internal personnel or counsel, as necessary, or as required by law.
(f) An employee’s right to reproductive loss leave shall be construed as a separate and distinct right from any right under this part.
## SEC. 2.
The Legislature finds and declares that Section 1 of this act, which adds Section 12945.6 to the Government Code, imposes a limitation on the public’s right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
The confidentiality provisions set forth in Section 1 further the need to protect the privacy rights of employees regarding a reproductive loss, and to protect the enforcement process related to violations of these provisions.
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# Ch. 724
These limitations are needed in order to strike the proper balance between the privacy interests of the employee and the employee’s family, and the public’s right to access.
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# SENATE BILL No. 893
**Introduced by Senator Padilla**
January 3, 2024
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An act to add Chapter 5.1 (commencing with Section 11530) to Part 1 of Division 3 of Title 2 of the Government Code, relating to artificial intelligence.
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## LEGISLATIVE COUNSEL’S DIGEST
**SB 893, as introduced, Padilla. California Artificial Intelligence Research Hub.**
Existing law requires the Secretary of Government Operations to develop a coordinated plan to, among other things, investigate the feasibility of, and obstacles to, developing standards and technologies for state departments to determine digital content provenance. For the purpose of informing that coordinated plan, existing law requires the secretary to evaluate, among other things, the impact of the proliferation of deepfakes, defined to mean audio or visual content that has been generated or manipulated by artificial intelligence that would falsely appear to be authentic or truthful and that features depictions of people appearing to say or do things they did not say or do without their consent, on state government, California-based businesses, and residents of the state.
This bill would require the Government Operations Agency, the Governor’s Office of Business and Economic Development, and the Department of Technology to collaborate to establish the California Artificial Intelligence Research Hub (hub) in the Government Operations Agency. The bill would require the hub to serve as a centralized entity to facilitate collaboration between government agencies, academic institutions, and private sector partners to advance artificial intelligence research and development that seeks to harness the technology’s full potential.
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potential for public benefit while safeguarding privacy, advancing security, and addressing risks and potential harms to society, as prescribed.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.
The people of the State of California do enact as follows:
SECTION 1. This act shall be known as the California Artificial Intelligence Research Hub Act.
SEC. 2. Chapter 5.1 (commencing with Section 11530) is added to Part 1 of Division 3 of Title 2 of the Government Code, to read:
# Chapter 5.1. California Artificial Intelligence Research Hub
11530. (a) As used in this section, “the hub” means the California Artificial Intelligence Research Hub.
(b) The Government Operations Agency, the Governor’s Office of Business and Economic Development, and the Department of Technology shall collaborate to establish the California Artificial Intelligence Research Hub in the Government Operations Agency.
(c) The hub shall serve as a centralized entity to facilitate collaboration between government agencies, academic institutions, and private sector partners to advance artificial intelligence research and development that seeks to harness the technology’s full potential for public benefit while safeguarding privacy, advancing security, and addressing risks and potential harms to society.
(d) The Government Operations Agency, the Governor’s Office of Business and Economic Development, and the Department of Technology shall consult with academic institutions within the state in establishing the hub.
(e) The hub shall do all of the following:
1. (A) Increase lawful access to government data while protecting privacy and safeguarding access to data by developing a streamlined process for researchers to access data collected by state agencies.
(B) In complying with subparagraph (A), the hub shall create a process for eligibility that prioritizes security by limiting who can access the data and for what purpose.
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(2) Support the access to, and development of, artificial
intelligence computing capacity and technology by building out
public computing infrastructure, facilitating access to existing
commercial computing infrastructure, or finding ways to reduce
costs and other economic barriers research institutions may face
in accessing computing infrastructure.
(3) Spur innovation in artificial intelligence applications for the
benefit of the public.
(4) Ensure the development of trustworthy artificial intelligence
technologies with a focus on transparency, fairness, and
accountability.
(5) Provide researchers with increased access to data and
computing resources, education, and training opportunities in
furtherance of applications of artificial intelligence for benefit to
the people of California.
O
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# SENATE BILL No. 896
**Introduced by Senator Dodd**
January 3, 2024
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An act to add Chapter 5.9 (commencing with Section 11549.63) to Part 1 of Division 3 of Title 2 of the Government Code, relating to artificial intelligence.
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## LEGISLATIVE COUNSEL’S DIGEST
**SB 896**, as introduced, Dodd. Artificial Intelligence Accountability Act.
Existing law requires the Secretary of Government Operations to develop a coordinated plan to, among other things, investigate the feasibility of, and obstacles to, developing standards and technologies for state departments to determine digital content provenance. For the purpose of informing that coordinated plan, existing law requires the secretary to evaluate, among other things, the impact of the proliferation of deepfakes, defined to mean audio or visual content that has been generated or manipulated by artificial intelligence that would falsely appear to be authentic or truthful and that features depictions of people appearing to say or do things they did not say or do without their consent, on state government, California-based businesses, and residents of the state.
This bill, the Artificial Intelligence Accountability Act, would, among other things, require the Government Operations Agency, the Department of Technology, and the Office of Data and Innovation to produce a State of California Benefits and Risk of Generative Artificial Intelligence Report that includes certain items, including an examination of the most significant, potentially beneficial uses for deployment of generative artificial intelligence tools by the state, and would require those entities to update the report, as prescribed. The bill would require,
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# SB 896
as often as is deemed appropriate by the Director of Emergency Services, the California Cybersecurity Integration Center, and the State Threat Assessment Center, those entities to perform a joint risk analysis of potential threats posed by the use of generative artificial intelligence to California’s critical energy infrastructure, including those that could lead to mass casualty events and environmental emergencies.
This bill would also require a state agency or department that utilizes generative artificial intelligence to directly communicate with a person, either through an online interface or telephonically, to clearly and in a conspicuous manner identify to that person that the person’s interaction with the state agency or department is being communicated through artificial intelligence.
This bill would also require an automated decisionmaking system, as defined, utilized by a state agency or department to be evaluated for risk potential before adoption, as specified.
Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.
The people of the State of California do enact as follows:
## SECTION 1.
This act shall be known as the Artificial Intelligence Accountability Act.
## SEC. 2.
Chapter 5.9 (commencing with Section 11549.63) is added to Part 1 of Division 3 of Title 2 of the Government Code, to read:
### Chapter 5.9. Artificial Intelligence Tools
#### 11549.63.
The Legislature finds and declares all of the following:
(a) The Legislature recognizes the tremendous potential of artificial intelligence (AI) to improve the lives of its citizens and the functioning of government. However, the Legislature also recognizes that the use of AI must be guided by principles of fairness, transparency, privacy, and accountability to ensure that the rights and opportunities of all Californians are protected in the age of artificial intelligence.
(b) The Legislature further recognizes that generative artificial intelligence (GenAI) enables significant, beneficial uses through its unique capabilities, but GenAI raises novel risks compared to
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conventional AI across critical areas, including democratic and legal processes, biases and equity, public health and safety, and the economy, and requires measures to address insufficiently guarded governmental systems and unintended or emergent harmful effects from this technology. Additionally, because humans have explicit and implicit biases built into our society, GenAI has the capacity to amplify these biases as it learns from input data. Therefore, it is imperative to consider the implications on Californians of, among other categories, different regions, income, races, ethnicities, gender, ages, religions, abilities, and sexual orientation for all GenAI inputs, outputs, and products for both prioritizing implementations that may promote equity and guarding against bias and other negative impacts.
(c) No individual or group should be discriminated against on the basis of race, gender, age, religion, sexual orientation, or any other protected characteristic in the design, development, deployment, or use of AI systems. The unprecedented speed of innovation and deployment of GenAI technologies necessitates proactive guardrails to protect against potential risks or malicious uses, including, but not limited to, bioterrorism, cyberattacks, disinformation, deception, violation of privacy, and discrimination or bias.
(d) The Legislature affirms the importance of transparency in the use of AI systems. The public has the right to know when they are interacting with AI being used by the state and to have a clear and conspicuous identification of that interaction.
(e) The Legislature recognizes that the use of AI systems must be consistent with the protection of privacy and civil liberties and must be guided by a commitment to equity and social justice. It is the intent of the Legislature in enacting this legislation that all AI systems be designed and deployed in a manner that is consistent with state and federal laws and regulations regarding privacy and civil liberties and minimizes bias and promotes equitable outcomes for all Californians.
(f) This act, in addition to the 2022 White House Blueprint for an AI Bill of Rights, executive guidance from the governor, statutory or regulatory requirements, and evolving best practices should guide the decisionmaking of state agencies, departments, and subdivisions in the review, adoption, management, governance, and regulations of automated decisionmaking technologies. Further,
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# SB 896
1. State leadership on adopting these standards and best practices should encourage the private sector to adopt these practices and safeguards.
2. (g) Public colleges and universities should collaborate with the private sector and relevant state agencies to train students to meet the AI workforce development needs of the state, including providing instruction on AI and related ethical, privacy, and security considerations while advancing research on best practices.
3. Further, there is the need for the state to recruit, retain, and train AI professionals in certain state jobs, and agencies should collaborate to facilitate a pipeline and infrastructure to accomplish that goal, including adopting appropriate job classifications and incentive programs.
4. (h) State agencies, departments, and boards should utilize their full range of authority to protect consumers, patients, passengers, and students from fraud, discrimination, and threats to privacy and to address other risks that may arise from the use of GenAI, including risks to financial stability. State agencies, departments, and boards should consider rulemaking and emphasize or clarify if existing regulations and guidance apply to GenAI or other automated decisionmaking systems. They should also clarify any responsibility of regulated entities to conduct due diligence with respect to third-party AI services they use and emphasize or clarify requirements and expectations related to the transparency of AI models and regulated entities' ability to explain their use of AI models.
5. (i) The California Privacy Protection Agency should utilize its existing authority to promulgate automated decisionmaking technology regulations.
## 11549.64. As used in this chapter:
(a) (1) “Automated decision system” means a computational process derived from machine learning, statistical modeling, data analytics, or artificial intelligence that issues simplified output, including a score, classification, or recommendation, that is used to assist or replace human discretionary decisionmaking and materially impacts natural persons.
(2) “Automated decision system” does not mean a spam email filter, firewall, antivirus software, identity and access management tool, calculator, database, dataset, or other compilation of data.
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# SB 896
(b) “Generative artificial intelligence” means the class of artificial intelligence models that emulate the structure and characteristics of input data in order to generate derived synthetic content, including images, videos, audio, text, and other digital content.
(c) “High-risk automated decision system” means an automated decision system that is used to assist or replace human discretionary decisions that have a legal or similarly significant effect, including decisions that materially impact access to, or approval for, housing or accommodations, education, employment, credit, health care, and criminal justice.
(d) “Person” means a natural person.
(e) “Report” means the State of California Benefits and Risk of Generative Artificial Intelligence Report required by Section 11549.65.
11549.65. (a) (1) The Government Operations Agency, the Department of Technology, and the Office of Data and Innovation shall produce a State of California Benefits and Risk of Generative Artificial Intelligence Report that includes all of the following:
(A) An examination of the most significant, potentially beneficial uses for deployment of generative artificial intelligence tools by the state.
(B) An explanation of the potential risks of the uses described in subparagraph (A) to individuals, communities, and government workers with a focus on high-risk uses, including the use of generative artificial intelligence to make a consequential decision affecting access to essential goods and services.
(C) An explanation of risks from bad actors and insufficiently guarded governmental systems, unintended or emergent effects, and potential risks toward democratic and legal processes, public health and safety, and the economy.
(2) The Government Operations Agency, the Department of Technology, and the Office of Data and Innovation shall update the report, as needed, to respond to significant developments and shall, as appropriate, consult with academia, industry experts, and organizations that represent state government employees.
(b) (1) (A) As often as is deemed appropriate by the Director of Emergency Services, the California Cybersecurity Integration Center, and the State Threat Assessment Center, those entities shall perform a joint risk analysis of potential threats posed by the
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use of generative artificial intelligence to California’s critical energy infrastructure, including those that could lead to mass casualty events and environmental emergencies.
(B) The entities described in subparagraph (A) shall develop, in consultation with appropriate external experts from academia and industry, a strategy to assess similar potential threats to other critical infrastructure.
(2) The analysis required by paragraph (1) shall be provided to the Governor, and, if appropriate, public recommendations shall be made reflecting changes to artificial intelligence technology, its applications, and risk management, including further private actions, administrative actions, and collaboration with the Legislature to guard against potential threats and vulnerabilities.
(c) (1) (A) The Government Operations Agency, the Department of General Services, the Department of Technology, and the California Cybersecurity Integration Center shall develop, maintain, and periodically evaluate and revise general guidelines for public sector procurement, uses, and required trainings for the use of generative artificial intelligence, including for high-risk scenarios, and including for consequential decisions affecting access to essential goods and services.
(B) The guidelines required by this paragraph shall build on guidance from the White House publication titled Blueprint for an AI Bill of Rights and the National Institute of Standards and Technology’s AI Risk Management Framework and shall address safety, algorithmic discrimination, data privacy, and notice of when materials are generated by generative artificial intelligence.
(C) The Government Operations Agency shall engage and consult with organizations that represent state government employees and industry experts, including, but not limited to, trust and safety experts, academic researchers, and research institutions in developing the guidelines required by this paragraph.
(2) For purposes of the periodic evaluation and revision required by paragraph (1), the Government Operations Agency, the Department of General Services, the Department of Technology, and the California Cybersecurity Integration Center shall periodically evaluate any need to revise the guidelines and establish a consultative process by which to do so with academia, industry experts, and organizations that represent state government employees.
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1 (d) (1) (A) The Government Operations Agency, the
2 Department of Technology, and the Office of Data and Innovation
3 shall develop, maintain, and periodically evaluate and revise
4 guidelines for state agencies and departments to analyze the impact
5 that adopting a generative artificial intelligence tool may have on
6 vulnerable communities, including criteria to evaluate equitable
7 outcomes in deployment and implementation of high-risk uses.
8 (B) The guidelines required by this paragraph shall inform
9 whether and how a state agency or department deploys a particular
10 generative artificial intelligence tool.
11 (C) The Government Operations Agency shall engage and
12 consult with organizations that represent state government
13 employees and industry experts, including, but not limited to, trust
14 and safety experts, academic researchers, and research institutions
15 in developing the guidelines required by this paragraph.
16 (2) For purposes of the periodic evaluation and revision required
17 by paragraph (1), the Government Operations Agency, the
18 Department of General Services, the Department of Technology,
19 and the California Cybersecurity Integration Center shall
20 periodically evaluate any need to revise the guidelines and establish
21 a consultative process by which to do so with academia, industry
22 experts, and organizations that represent state government
23 employees.
24 (e) The Government Operations Agency, the Department of
25 General Services, and the Department of Technology shall update,
26 as needed, the state’s project approval, procurement, and contract
27 terms to incorporate analysis and feedback obtained pursuant to
28 subdivisions (c) and (d).
29 (f) (1) To assist the Government Operations Agency and the
30 Department of Technology in their efforts to perform any periodic
31 review and update under this section, all state agencies and
32 departments shall, as requested by the Government Operations
33 Agency or the Department of Technology, conduct and submit an
34 inventory of all current high-risk uses of generative artificial
35 intelligence within the agency or department to the Department of
36 Technology, which shall administer the inventory.
37 (2) A state agency or department shall appoint a senior level
38 management personnel who will be responsible for maintaining,
39 conducting, and reporting the results of the inventory described
40 by paragraph (1) to the Department of Technology within 60 days
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of issuance of a request for an inventory pursuant to paragraph (1).
(g) Any state agency or department shall consider procurement and enterprise use opportunities in which generative artificial intelligence can improve the efficiency, effectiveness, accessibility, and equity of government operations consistent with the Government Operations Agency, the Department of General Services, and the Department of Technology’s guidelines for public sector generative artificial intelligence procurement.
(h) (1) The Department of Technology shall establish and maintain the infrastructure to conduct pilot projects of generative artificial intelligence projects, including Department of Technology-approved environments to test those pilot projects.
(2) An environment created pursuant to this subdivision shall be available to any state agency or department to help evaluate generative artificial intelligence tools and services, to further safe, ethical, and responsible implementations, and to inform decisions to use generative artificial intelligence consistent with state guidelines.
(i) (1) By July 1, ____, any state agency or department shall consider pilot projects of generative artificial intelligence applications, in consultation with organizations that represent state government employees and appropriate experts from academia and industry.
(2) A pilot project described by paragraph (1) shall measure both of the following:
(A) How generative artificial intelligence can improve Californians’ experience with, and access to, government services.
(B) How generative artificial intelligence can support state employees in the performance of their duties in addition to any domain-specific impacts to be measured by the state agency or department.
(j) The Government Operations Agency, the Department of General Services, the Department of Technology, the Office of Data and Innovation, and the California Cybersecurity Integration Center shall engage with the Legislature and relevant stakeholders, including historically vulnerable and marginalized communities and organizations that represent state government employees, in the development and revision of any guidelines, criteria, reports, or training pursuant to this section.
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# SB 896
(k) A state agency or department shall support the state government workforce and prepare for the next generation of skills needed to thrive in the generative artificial intelligence economy by complying with both of the following:
1. (1) The Government Operations Agency, the Department of Technology, and any other agencies deemed necessary shall make available trainings for state government worker use of state-approved generative artificial intelligence tools to achieve equitable outcomes and to identify and mitigate potential output inaccuracies, fabricated text, hallucinations, and biases of generative artificial intelligence, while enforcing public privacy and applicable state laws and policies. If appropriate, the Department of Technology and any other agency or department deemed necessary shall collaborate with organizations that represent state government employees and industry experts on developing and providing training.
2. (2) The Government Operations Agency, in consultation with appropriate state agencies and organizations that represent state government employees, shall establish criteria to evaluate the impact of generative artificial intelligence on the state government workforce and provide guidelines on how state agencies and departments can support state government employees to use these tools effectively and respond to these technological advancements.
- (i) Legal counsel for any state agency or department shall consider any potential impact of generative artificial intelligence on regulatory issues under the respective agency’s or department’s authority and recommend necessary updates, if appropriate, as a result of this evolving technology.
11549.66. (a) A state agency or department that utilizes generative artificial intelligence to directly communicate with a person, either through an online interface or telephonically, shall clearly and in a conspicuous manner identify to that person that the person’s interaction with the state agency or department is being communicated through artificial intelligence.
(b) A state agency or department that utilizes generative artificial intelligence to directly communicate with a person shall provide on the state agency’s or department’s internet website clear instructions, or a link to a web page with clear instructions, informing the person how to directly communicate with a person from the state agency or department.
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# SB 896
11549.67. (a) (1) An automated decisionmaking system utilized by a state agency or department shall be evaluated for risk potential before adoption.
(2) A highrisk automated decision system shall receive appropriate consultation, testing, risk identification, and mitigation consistent with this chapter and shall not be adopted or utilized without prior approval of the director of a state agency or department or that person’s designee before being adopted and utilized by a state agency or department.
(b) A highrisk automated decision system that is utilized by a state agency or department shall receive ongoing monitoring and clear organizational oversight. |
# Senate Concurrent Resolution No. 17
## RESOLUTION CHAPTER 135
Senate Concurrent Resolution No. 17—Relative to artificial intelligence.
[Filed with Secretary of State August 23, 2023.]
## LEGISLATIVE COUNSEL’S DIGEST
SCR 17, Dodd. Artificial intelligence.
This measure would affirm the California Legislature’s commitment to President Biden’s vision for a safe AI and the principles outlined in the “Blueprint for an AI Bill of Rights” and would express the Legislature’s commitment to examining and implementing those principles in its legislation and policies related to the use and deployment of automated systems.
**WHEREAS**, The use of technology, data, and automated systems poses significant challenges to democracy and the rights of the public, as evidenced by incidents of unsafe, ineffective, or biased systems in health care, discriminatory algorithms in hiring and credit decisions, and unchecked data collection that threatens privacy and opportunities; and
**WHEREAS**, Automated systems also have the potential to bring about extraordinary benefits, including increasing efficiency in agriculture and revolutionizing industries through data analysis; and
**WHEREAS**, President Joseph R. Biden has affirmed civil rights and democratic values as a cornerstone of his administration and has ordered the federal government to work toward rooting out inequity and advancing civil rights, equal opportunity, and racial justice; and
**WHEREAS**, The White House Office of Science and Technology Policy has developed the “Blueprint for an AI Bill of Rights,” a set of five principles to guide the design, use, and deployment of automated systems in a manner that protects the rights of the public while leveraging the benefits of AI; now, therefore, be it
**Resolved by the Senate of the State of California, the Assembly thereof concurring**, That the California Legislature affirms its commitment to President Biden’s vision for safe AI and the principles outlined in the “Blueprint for an AI Bill of Rights,” including: Safe and Effective Systems, Algorithmic Discrimination Protections, Data Privacy, Notice and Explanation, and Human Alternatives, Consideration, and Fallback; and be it further
**Resolved**, That the California Legislature commits to examining and implementing these principles in its legislation and policies related to the use and deployment of automated systems in the State of California; and be it further
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# Res. Ch. 135
Resolved, That the Secretary of the Senate transmit copies of this resolution to the author for appropriate distribution.
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# Chapter 455
(Senate Bill 541)
AN ACT concerning
# Maryland Online Data Privacy Act of 2024
FOR the purpose of regulating the manner in which a controller or a processor in possession of a consumer’s personal data may process the consumer’s personal data; authorizing a consumer to exercise certain rights in regards to the consumer’s personal data; requiring a controller of personal data to establish a method for a consumer to exercise certain rights in regards to the consumer’s personal data; requiring a controller to comply with a request by a consumer to exercise a certain right in a certain manner, except under certain circumstances; authorizing a consumer to designate an authorized agent to act on the consumer’s behalf to opt out of the processing of the consumer’s personal data; requiring a controller to provide a consumer with a certain privacy notice; requiring a controller that uses a processor to process the personal data of consumers to enter into a contract with the processor that governs the processor’s data processing procedures; requiring a controller to conduct and document a data protection assessment for consumer data processing activities that present a heightened risk of harm to a consumer; making a violation of this Act an unfair, abusive, or deceptive trade practice that is subject to enforcement and penalties under the Maryland Consumer Protection Act; and generally relating to online data privacy.
BY repealing and reenacting, with amendments,
Article – Commercial Law
Section 13–301(14)(xl)
Annotated Code of Maryland
(2013 Replacement Volume and 2023 Supplement)
BY repealing and reenacting, without amendments,
Article – Commercial Law
Section 13–301(14)(xli)
Annotated Code of Maryland
(2013 Replacement Volume and 2023 Supplement)
BY adding to
Article – Commercial Law
Section 13–301(14)(xlii); and 14–4601 through 14–4613 14–4614 to be under the new subtitle “Subtitle 46. Online Data Privacy Act”
Annotated Code of Maryland
(2013 Replacement Volume and 2023 Supplement)
SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF MARYLAND, That the Laws of Maryland read as follows:
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# Article – Commercial Law
## 13–301.
Unfair, abusive, or deceptive trade practices include any:
(14) Violation of a provision of:
(xl) Title 14, Subtitle 13 of the Public Safety Article; [or]
(xli) Title 14, Subtitle 45 of this article; or
(XLII) TITLE 14, SUBTITLE 46 OF THIS ARTICLE; OR
SUBTITLE 46. ONLINE DATA PRIVACY ACT.
## 14–4601.
(A) IN THIS SUBTITLE THE FOLLOWING WORDS HAVE THE MEANINGS INDICATED.
(B) “AFFILIATE” MEANS A PERSON THAT, DIRECTLY OR INDIRECTLY THROUGH ONE OR MORE INTERMEDIARIES, CONTROLS, IS CONTROLLED BY, OR IS UNDER COMMON CONTROL WITH ANOTHER PERSON, SUCH THAT THE PERSON:
~(1) SHARES COMMON BRANDING WITH ANOTHER PERSON; OR~
~(2) CONTROLS, IS CONTROLLED BY, OR IS UNDER COMMON CONTROL WITH ANOTHER PERSON.~
(1) OWNS OR HAS THE POWER TO VOTE MORE THAN 50% OF THE OUTSTANDING SHARES OF ANY VOTING CLASS OF THE OTHER PERSON’S SECURITIES;
(2) HAS THE POWER TO ELECT OR INFLUENCE THE ELECTION OF A MAJORITY OF THE DIRECTORS, MEMBERS, OR MANAGERS OF THE OTHER PERSON;
(3) HAS THE POWER TO DIRECT THE MANAGEMENT OF THE OTHER PERSON; OR
(4) IS SUBJECT TO THE OTHER PERSON’S EXERCISE OF THE POWERS DESCRIBED IN ITEM (1), (2), OR (3) OF THIS SUBSECTION.
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# WES MOORE, Governor Ch. 455
(C) "AUTHENTICATE" MEANS TO USE REASONABLE MEANS TO DETERMINE THAT A REQUEST TO EXERCISE A CONSUMER RIGHT IN ACCORDANCE WITH § 14–4605 OF THIS SUBTITLE IS BEING MADE BY, OR ON BEHALF OF, A CONSUMER WHO IS ENTITLED TO EXERCISE THE CONSUMER RIGHT WITH RESPECT TO THE PERSONAL DATA AT ISSUE.
(D) (1) "BIOMETRIC DATA" MEANS DATA GENERATED BY AUTOMATIC MEASUREMENTS OF THE BIOLOGICAL CHARACTERISTICS OF A CONSUMER THAT CAN BE USED TO UNIQUELY AUTHENTICATE A CONSUMER’S IDENTITY.
(2) "BIOMETRIC DATA" INCLUDES:
(I) A FINGERPRINT;
(II) A VOICE PRINT;
(III) AN EYE RETINA OR IRIS IMAGE; AND
(IV) ANY OTHER UNIQUE BIOLOGICAL CHARACTERISTICS THAT CAN BE USED TO UNIQUELY AUTHENTICATE A CONSUMER’S IDENTITY.
(3) "BIOMETRIC DATA" DOES NOT INCLUDE:
(I) A DIGITAL OR PHYSICAL PHOTOGRAPH;
(II) AN AUDIO OR VIDEO RECORDING; OR
(III) ANY DATA GENERATED FROM A DIGITAL OR PHYSICAL PHOTOGRAPH OR AN AUDIO OR VIDEO RECORDING, UNLESS THE DATA IS GENERATED TO IDENTIFY A SPECIFIC CONSUMER.
(E) "BUSINESS ASSOCIATE" HAS THE MEANING STATED IN HIPAA.
(F) "CHILD" HAS THE MEANING STATED IN COPPA.
(G) (1) "CONSENT" MEANS A CLEAR AFFIRMATIVE ACT SIGNIFYING A CONSUMER’S FREELY GIVEN, SPECIFIC, INFORMED, AND UNAMBIGUOUS AGREEMENT TO ALLOW THE PROCESSING OF PERSONAL DATA RELATING TO THE CONSUMER FOR A PARTICULAR PURPOSE.
(2) "CONSENT" INCLUDES:
(I) A WRITTEN STATEMENT;
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# 2024 LAWS OF MARYLAND
(II) A WRITTEN STATEMENT BY ELECTRONIC MEANS; OR
(III) ANY OTHER UNAMBIGUOUS AFFIRMATIVE ACTION.
(3) "CONSENT" DOES NOT INCLUDE:
(I) ACCEPTANCE OF A GENERAL OR BROAD TERMS OF USE OR SIMILAR DOCUMENT THAT CONTAINS DESCRIPTIONS OF PERSONAL DATA PROCESSING ALONG WITH OTHER UNRELATED INFORMATION;
(II) HOVERING OVER, MUTING, PAUSING, OR CLOSING A PIECE OF CONTENT; OR
(III) AGREEMENT OBTAINED THROUGH THE USE OF DARK PATTERNS.
(H) (1) "CONSUMER" MEANS AN INDIVIDUAL WHO IS A RESIDENT OF THE STATE.
(2) "CONSUMER" DOES NOT INCLUDE:
(I) AN INDIVIDUAL ACTING IN A COMMERCIAL OR EMPLOYMENT CONTEXT; OR
(II) AN INDIVIDUAL ACTING AS AN EMPLOYEE, AN OWNER, A DIRECTOR, AN OFFICER, OR A CONTRACTOR OF A COMPANY, A PARTNERSHIP, A SOLE PROPRIETORSHIP, A NONPROFIT ORGANIZATION, OR A GOVERNMENTAL UNIT WHOSE COMMUNICATIONS OR TRANSACTIONS WITH A CONTROLLER OCCUR ONLY WITHIN THE CONTEXT OF THE INDIVIDUAL'S ROLE WITH THE COMPANY, PARTNERSHIP, SOLE PROPRIETORSHIP, NONPROFIT ORGANIZATION, OR GOVERNMENTAL UNIT.
(I) (1) "CONSUMER HEALTH DATA" MEANS PERSONAL DATA THAT A CONTROLLER USES TO IDENTIFY A CONSUMER'S PHYSICAL OR MENTAL HEALTH STATUS.
(2) "CONSUMER HEALTH DATA" INCLUDES DATA RELATED TO:
(I) GENDER–AFFIRMING CARE TREATMENT; OR
(II) REPRODUCTIVE OR SEXUAL HEALTH CARE.
(J) "CONTROL" MEANS:
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# WES MOORE, Governor Ch. 455
1. OWNERSHIP OF OR THE POWER TO VOTE MORE THAN 50% OF THE OUTSTANDING SHARES OF ANY CLASS OF VOTING SECURITY OF A BUSINESS;
2. ANY MANNER OF CONTROL OVER THE ELECTION OF A MAJORITY OF THE DIRECTORS OF A BUSINESS, OR INDIVIDUALS EXERCISING SIMILAR FUNCTIONS; OR
3. THE POWER TO EXERCISE A CONTROLLING INFLUENCE OVER THE MANAGEMENT OF A BUSINESS.
(K) “CONTROLLER” MEANS A PERSON THAT, ALONE OR JOINTLY WITH OTHERS, DETERMINES THE PURPOSE AND MEANS OF PROCESSING PERSONAL DATA.
(L) (1) “COPPA” MEANS THE FEDERAL CHILDREN’S ONLINE PRIVACY PROTECTION ACT OF 1998 AND THE REGULATIONS, RULES, GUIDANCE, AND EXEMPTIONS ADOPTED UNDER THE ACT, AND AS THE ACT AND THE REGULATIONS, RULES, GUIDANCE, AND EXEMPTIONS MAY BE AMENDED.
(2) “COPPA” INCLUDES REGULATIONS ADOPTED UNDER THE FEDERAL CHILDREN’S ONLINE PRIVACY PROTECTION ACT OF 1998.
(M) “COVERED ENTITY” HAS THE MEANING STATED IN HIPAA.
(N) (1) “DARK PATTERN” MEANS A USER INTERFACE DESIGNED OR MANIPULATED WITH THE SUBSTANTIAL EFFECT OF SUBVERTING USER AUTONOMY, DECISION MAKING, OR CHOICE.
(2) “DARK PATTERN” INCLUDES ANY PRACTICE THE FEDERAL TRADE COMMISSION REFERS TO AS A “DARK PATTERN”.
(O) “DECISIONS THAT PRODUCE LEGAL OR SIMILARLY SIGNIFICANT EFFECTS CONCERNING THE CONSUMER” MEANS DECISIONS THAT RESULT IN THE PROVISION OR DENIAL OF:
1. FINANCIAL OR LENDING SERVICES;
2. HOUSING;
3. INSURANCE;
4. EDUCATION ENROLLMENT OR OPPORTUNITY;
5. CRIMINAL JUSTICE;
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# 2024 LAWS OF MARYLAND
(6) (5) EMPLOYMENT OPPORTUNITIES;
(7) (6) HEALTH CARE SERVICES; OR
(8) (7) ACCESS TO ESSENTIAL GOODS OR SERVICES.
(P) “DE–IDENTIFIED DATA”
~~MEANS DATA THAT CANNOT REASONABLY BE USED TO INFER INFORMATION ABOUT OR OTHERWISE BE LINKED TO AN IDENTIFIED OR IDENTIFIABLE CONSUMER, OR A DEVICE THAT MAY BE LINKED TO AN IDENTIFIED OR IDENTIFIABLE CONSUMER, IF THE CONTROLLER THAT POSSESSES THAT INFORMATION~~
(1) TAKES REASONABLE MEASURES TO ENSURE THAT THE INFORMATION CANNOT BE LINKED WITH A CONSUMER;
(2) COMMITS IN PUBLICLY AVAILABLE TERMS AND CONDITIONS OR IN A PUBLICLY AVAILABLE PRIVACY POLICY TO MAINTAIN AND USE THE INFORMATION IN DE–IDENTIFIED FORM; AND
(3) CONTRACTUALLY OBLIGES ANY RECIPIENTS OF THE INFORMATION TO COMPLY WITH ALL PROVISIONS OF THIS SUBSECTION HAS THE MEANING STATED IN § 14–4401 OF THIS TITLE.
(Q) “GENDER–AFFIRMING TREATMENT” HAS THE MEANING STATED IN § 15–151(A) OF THE HEALTH – GENERAL ARTICLE.
(Q) (R) (1) “GENETIC DATA”
~~MEANS DATA IN ANY FORMAT THAT CONCERNS THE GENETIC CHARACTERISTICS OF A CONSUMER.~~
(2) “GENETIC DATA” INCLUDES:
(I) RAW SEQUENCE DATA THAT RESULTS FROM SEQUENCING OF A CONSUMER’S COMPLETE EXTRACTED DNA OR A PORTION OF THE CONSUMER’S COMPLETE EXTRACTED DNA;
(II) GENOTYPIC AND PHENOTYPIC INFORMATION THAT RESULTS FROM ANALYZING RAW SEQUENCE DATA;
(III) INFORMATION EXTRAPOLATED, DERIVED, OR INFERRED FROM THE ANALYSIS OF RAW SEQUENCE DATA; AND
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# WES MOORE, Governor Ch. 455
~~(IV) SELF-REPORTED HEALTH INFORMATION SUBMITTED TO A DIRECT-TO-CONSUMER GENETIC TESTING COMPANY BY A CONSUMER REGARDING THE CONSUMER'S HEALTH CONDITIONS~~
~~1. THAT IS USED FOR SCIENTIFIC RESEARCH OR PRODUCT DEVELOPMENT; AND~~
~~2. ANALYZED IN CONNECTION WITH THE CONSUMER'S RAW SEQUENCE DATA HAS THE MEANING STATED IN § 14-4401 OF THIS TITLE.~~
**(R) (S) (1) "Geofence" means technology that establishes a virtual geographical boundary.**
(2) "Geofence" includes boundaries that are established or monitored through the use of:
(I) Global positioning technology;
(II) Cell tower connectivity;
(III) Cellular data;
(IV) Radio frequency identification;
(V) Wireless fidelity technology; or
(VI) Any other form of location determination technology.
**(S) (T) "HIPAA" means the federal Health Insurance Portability and Accountability Act of 1996.**
**(T) (U) "Identified or identifiable consumer" means a consumer who can readily be identified, either directly or indirectly.**
**(U) (V) "Mental health facility" means a health care facility in which not less than 70% of health care services offered are mental health services.**
**(V) (W) (1) "Personal data" means any information that is linked or can be reasonably linked to an identified or identifiable consumer.**
(2) "Personal data" does not include:
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# 2024 LAWS OF MARYLAND
(I) DE-IDENTIFIED DATA; OR
(II) PUBLICLY AVAILABLE INFORMATION.
(WW) (XX) (1) "PRECISE GEOLOCATION DATA" MEANS INFORMATION DERIVED FROM TECHNOLOGY THAT CAN PRECISELY AND ACCURATELY IDENTIFY THE SPECIFIC LOCATION OF A CONSUMER WITHIN A RADIUS OF 1,750 FEET.
(2) "PRECISE GEOLOCATION DATA" INCLUDES GLOBAL POSITIONING SYSTEM LEVEL LATITUDE AND LONGITUDE COORDINATES OR OTHER SIMILAR MECHANISMS.
(3) "PRECISE GEOLOCATION DATA" DOES NOT INCLUDE:
(I) THE CONTENT OF COMMUNICATIONS DATA;
(II) DATA GENERATED BY OR CONNECTED TO AN ADVANCED UTILITY METERING INFRASTRUCTURE SYSTEM; OR
(III) DATA GENERATED BY EQUIPMENT USED BY A UTILITY COMPANY.
(XX) (YY) (1) "PROCESS" MEANS AN OPERATION OR SET OF OPERATIONS PERFORMED BY MANUAL OR AUTOMATED MEANS ON PERSONAL DATA.
(2) "PROCESS" INCLUDES COLLECTING, USING, STORING, DISCLOSING, ANALYZING, DELETING, OR MODIFYING PERSONAL DATA.
(YY) (ZZ) "PROCESSOR" MEANS A PERSON THAT PROCESSES PERSONAL DATA ON BEHALF OF A CONTROLLER.
(ZZ) (AA) "PROFILING" MEANS ANY FORM OF AUTOMATED PROCESSING PERFORMED ON PERSONAL DATA TO EVALUATE, ANALYZE, OR PREDICT PERSONAL ASPECTS RELATED TO AN IDENTIFIED OR IDENTIFIABLE CONSUMER'S ECONOMIC SITUATION, HEALTH, DEMOGRAPHIC CHARACTERISTICS, PERSONAL PREFERENCES, INTERESTS, RELIABILITY, BEHAVIOR, LOCATION, OR MOVEMENTS.
(AA) (BB) "PROTECTED HEALTH INFORMATION" HAS THE MEANING STATED IN HIPAA.
(BB) (CC) (1) "PUBLICLY AVAILABLE INFORMATION" MEANS INFORMATION THAT A PERSON:
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# WES MOORE, Governor Ch. 455
1. **LAWFULLY OBTAINS FROM A RECORD OF A GOVERNMENTAL ENTITY;**
2. **REASONABLY BELIEVES A CONSUMER OR WIDELY DISTRIBUTED MEDIA HAVE LAWFULLY MADE AVAILABLE TO THE GENERAL PUBLIC; OR**
3. **IF THE CONSUMER HAS NOT RESTRICTED THE INFORMATION TO A SPECIFIC AUDIENCE, OBTAINS FROM A PERSON TO WHOM THE CONSUMER DISCLOSED THE INFORMATION.**
(2) “PUBLICLY AVAILABLE INFORMATION” DOES NOT INCLUDE BIOMETRIC DATA COLLECTED BY A BUSINESS ABOUT A CONSUMER WITHOUT THE CONSUMER’S KNOWLEDGE.
(DD) (1) “REPRODUCTIVE OR SEXUAL HEALTH CARE” MEANS CARE RELATED TO A HEALTH CARE–RELATED SERVICE OR PRODUCT RENDERED OR PROVIDED CONCERNING A CONSUMER’S REPRODUCTIVE SYSTEM OR SEXUAL WELL–BEING, INCLUDING:
(1) A SERVICE OR PRODUCT PROVIDED RELATED TO AN INDIVIDUAL HEALTH CONDITION, STATUS, DISEASE, DIAGNOSIS, TEST, OR TREATMENT;
(2) A SOCIAL, PSYCHOLOGICAL, BEHAVIORAL, OR MEDICAL INTERVENTION;
(3) A SURGERY OR PROCEDURE;
(4) THE PURCHASE OR USE OF A MEDICATION, INCLUDING A MEDICATION PURCHASED OR USED FOR THE PURPOSES OF AN ABORTION;
(5) A SERVICE OR PRODUCT RELATED TO A BODILY FUNCTION, VITAL SIGN, OR SYMPTOM;
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# 2024 LAWS OF MARYLAND
(6) A MEASUREMENT OF A BODILY FUNCTION, VITAL SIGN, OR SYMPTOM; AND
(7) AN ABORTION, WHETHER SURGICAL OR MEDICAL, AND MEDICAL AND NONMEDICAL SERVICES, PRODUCTS, DIAGNOSTICS, COUNSELING, AND FOLLOW-UP SERVICES FOR AN ABORTION.
(EE) “REPRODUCTIVE OR SEXUAL HEALTH CARE FACILITY” MEANS A HEALTH CARE FACILITY WHERE NOT LESS THAN 70% OF SERVICES OFFERED ARE REPRODUCTIVE OR SEXUAL HEALTH CARE SERVICES.
(FF) (1) “SALE OF PERSONAL DATA” MEANS THE EXCHANGE OF PERSONAL DATA BY A CONTROLLER, A PROCESSOR, OR AN AFFILIATE OF A CONTROLLER OR PROCESSER TO A THIRD PARTY FOR MONETARY OR OTHER VALUABLE CONSIDERATION.
(2) “SALE OF PERSONAL DATA” DOES NOT INCLUDE:
(I) THE DISCLOSURE OF PERSONAL DATA TO A PROCESSOR THAT PROCESSES PERSONAL DATA ON BEHALF OF A CONTROLLER IF LIMITED TO THE PURPOSES OF THE PROCESSING;
(II) THE DISCLOSURE OF PERSONAL DATA TO A THIRD PARTY FOR PURPOSES OF PROVIDING A PRODUCT OR SERVICE AFFIRMATIVELY REQUESTED BY THE CONSUMER;
(III) THE DISCLOSURE OR TRANSFER OF PERSONAL DATA TO AN AFFILIATE OF THE CONTROLLER;
(IV) THE DISCLOSURE OF PERSONAL DATA WHERE THE CONSUMER:
1. DIRECTS THE CONTROLLER TO DISCLOSE THE PERSONAL DATA; OR
2. INTENTIONALLY USES THE CONTROLLER TO INTERACT WITH A THIRD PARTY;
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# WES MOORE, Governor Ch. 455
(V) THE DISCLOSURE OF PERSONAL DATA THAT THE CONSUMER:
1. INTENTIONALLY MADE AVAILABLE TO THE GENERAL PUBLIC THROUGH A CHANNEL OF MASS MEDIA; AND
2. DID NOT RESTRICT TO A SPECIFIC AUDIENCE; OR
(VI) THE DISCLOSURE OR TRANSFER OF PERSONAL DATA TO A THIRD PARTY AS AN ASSET THAT IS PART OF AN ACTUAL OR PROPOSED MERGER, ACQUISITION, BANKRUPTCY, OR OTHER TRANSACTION WHERE THE THIRD PARTY ASSUMES CONTROL OF ALL OR PART OF THE CONTROLLER’S ASSETS.
(GG) “SENSITIVE DATA” MEANS PERSONAL DATA THAT INCLUDES:
(1) DATA REVEALING:
(I) RACIAL OR ETHNIC ORIGIN;
(II) RELIGIOUS BELIEFS;
(III) CONSUMER HEALTH DATA;
(IV) SEX LIFE;
(V) SEXUAL ORIENTATION;
(VI) STATUS AS TRANSGENDER OR NONBINARY;
(VII) NATIONAL ORIGIN; OR
(VIII) CITIZENSHIP OR IMMIGRATION STATUS;
(2) GENETIC DATA OR BIOMETRIC DATA;
(3) PERSONAL DATA OF A CONSUMER THAT THE CONTROLLER KNOWS OR HAS REASON TO KNOW IS A CHILD; OR
(4) PRECISE GEOLOCATION DATA.
(HH) (1) “TARGETED ADVERTISING” MEANS DISPLAYING ADVERTISEMENTS TO A CONSUMER OR ON A DEVICE IDENTIFIED BY A UNIQUE IDENTIFIER, WHERE THE ADVERTISEMENT IS SELECTED BASED ON PERSONAL DATA OBTAINED OR INFERRED FROM THE CONSUMER’S ACTIVITIES OVER TIME AND
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# 2024 LAWS OF MARYLAND
ACROSS NONAFFILIATED WEBSITES OR ONLINE APPLICATIONS THAT ARE UNAFFILIATED WITH EACH OTHER, IN ORDER TO PREDICT THE CONSUMER’S PREFERENCES OR INTERESTS.
(2) “TARGETED ADVERTISING” DOES NOT INCLUDE:
(I) ADVERTISEMENTS BASED ON THE CONTEXT OF A CONSUMER’S CURRENT SEARCH QUERY, VISIT TO A WEBSITE, OR ONLINE APPLICATION;
(II) ADVERTISEMENTS BASED ON A CONSUMER’S ACTIVITIES WITHIN A CONTROLLER’S WEBSITES OR ONLINE APPLICATIONS;
(III) ADVERTISEMENTS DIRECTED TO A CONSUMER IN RESPONSE TO THE CONSUMER’S REQUEST FOR INFORMATION OR FEEDBACK; OR
(IV) PROCESSING PERSONAL DATA SOLELY TO MEASURE OR REPORT ADVERTISING FREQUENCY, PERFORMANCE, OR REACH.
(II) “THIRD PARTY” MEANS A PERSON OTHER THAN THE RELEVANT CONSUMER, CONTROLLER, PROCESSOR, OR AFFILIATE OF THE CONTROLLER OR PROCESSOR OF RELEVANT PERSONAL DATA.
(II) “TRADE SECRET” MEANS INFORMATION THAT:
(I) DERIVES INDEPENDENT ECONOMIC VALUE, ACTUAL OR POTENTIAL, FROM NOT BEING GENERALLY KNOWN TO, AND NOT BEING READILY ASCERTAINABLE BY PROPER MEANS BY, OTHER PERSONS WHO COULD OBTAIN ECONOMIC VALUE FROM THE INFORMATION’S DISCLOSURE OR USE; AND
(II) IS THE SUBJECT OF EFFORTS THAT ARE REASONABLE UNDER THE CIRCUMSTANCES TO MAINTAIN THE SECRECY OF THE INFORMATION.
(2) “TRADE SECRET” INCLUDES A FORMULA, PATTERN, COMPILATION, PROGRAM, DEVICE, METHOD, TECHNIQUE, OR PROCESS HAS THE MEANING STATED IN § 11–1201 OF THIS ARTICLE.
14–4602.
THIS SUBTITLE APPLIES TO A PERSON THAT:
(I) CONDUCTS BUSINESS IN THE STATE; OR
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# WES MOORE, Governor Ch. 455
1. **CONDUCTS BUSINESS IN THE STATE OR PROVIDES PRODUCTS OR SERVICES THAT ARE TARGETED TO RESIDENTS OF THE STATE, AND THAT DURING THE PRECEDING CALENDAR YEAR DID ANY OF THE FOLLOWING:**
(1) CONTROLLED OR PROCESSED THE PERSONAL DATA OF AT LEAST 35,000 CONSUMERS, EXCLUDING PERSONAL DATA CONTROLLED OR PROCESSED SOLELY FOR THE PURPOSE OF COMPLETING A PAYMENT TRANSACTION; OR
(2) CONTROLLED OR PROCESSED THE PERSONAL DATA OF AT LEAST 10,000 CONSUMERS AND DERIVED MORE THAN 20% OF ITS GROSS REVENUE FROM THE SALE OF PERSONAL DATA.
## 14-4603.
(A) THIS SUBTITLE DOES NOT APPLY TO:
(1) A REGULATORY, ADMINISTRATIVE, ADVISORY, EXECUTIVE, APPOINTIVE, LEGISLATIVE, OR JUDICIAL BODY OR INSTRUMENTALITY OF THE STATE, INCLUDING A BOARD, BUREAU, COMMISSION, OR UNIT OF THE STATE OR A POLITICAL SUBDIVISION OF THE STATE;
(2) A NATIONAL SECURITIES ASSOCIATION THAT IS REGISTERED UNDER § 15 OF THE FEDERAL SECURITIES EXCHANGE ACT OF 1934 OR A REGISTERED FUTURES ASSOCIATION DESIGNATED IN ACCORDANCE WITH § 17 OF THE FEDERAL COMMODITY EXCHANGE ACT;
(3) A FINANCIAL INSTITUTION OR AN AFFILIATE OF A FINANCIAL INSTITUTION, OR DATA THAT IS SUBJECT TO TITLE V OF THE FEDERAL GRAMM–LEACH–BLILEY ACT AND REGULATIONS ADOPTED UNDER THAT ACT; OR
(4) A NONPROFIT CONTROLLER THAT PROCESSES OR SHARES PERSONAL DATA SOLELY FOR THE PURPOSES OF ASSISTING:
(I) LAW ENFORCEMENT AGENCIES IN INVESTIGATING CRIMINAL OR FRAUDULENT ACTS RELATING TO INSURANCE; OR
(II) FIRST RESPONDERS IN RESPONDING TO CATASTROPHIC EVENTS.
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# 2024 LAWS OF MARYLAND
**(B) THE FOLLOWING INFORMATION AND DATA ARE EXEMPT FROM THIS SUBTITLE:**
1. **PROTECTED HEALTH INFORMATION UNDER HIPAA;**
2. **PATIENT-IDENTIFYING INFORMATION FOR PURPOSES OF 42 U.S.C. § 290dd–2;**
3. **IDENTIFIABLE PRIVATE INFORMATION THAT IS USED FOR PURPOSES OF THE FEDERAL POLICY FOR THE PROTECTION OF HUMAN SUBJECTS IN ACCORDANCE WITH 45 C.F.R. § 46;**
4. **IDENTIFIABLE PRIVATE INFORMATION TO THE EXTENT THAT IT IS COLLECTED AND USED AS PART OF HUMAN SUBJECTS RESEARCH IN ACCORDANCE WITH THE ICH 36 GOOD CLINICAL PRACTICE GUIDELINES ISSUED BY THE INTERNATIONAL COUNCIL FOR HARMONISATION OF TECHNICAL REQUIREMENTS FOR PHARMACEUTICALS FOR HUMAN USE OR THE PROTECTION OF HUMAN SUBJECTS UNDER 21 C.F.R. §§ 50 AND 56;**
5. **PATIENT SAFETY WORK PRODUCT THAT IS CREATED AND USED FOR PURPOSES OF PATIENT SAFETY IMPROVEMENT IN ACCORDANCE WITH 42 C.F.R. § 3, ESTABLISHED IN ACCORDANCE WITH 42 U.S.C. §§ 299b–21 THROUGH 299b–26;**
6. **(I) INFORMATION TO THE EXTENT IT IS USED FOR PUBLIC HEALTH, COMMUNITY HEALTH, OR POPULATION HEALTH ACTIVITIES AND PURPOSES, AS AUTHORIZED BY HIPAA, WHEN PROVIDED BY OR TO A COVERED ENTITY OR WHEN PROVIDED BY OR TO A BUSINESS ASSOCIATE IN ACCORDANCE WITH THE BUSINESS ASSOCIATE AGREEMENT WITH A COVERED ENTITY;**
**(II) INFORMATION THAT IS A MEDICAL RECORD UNDER § 4–301 OF THE HEALTH – GENERAL ARTICLE IF:**
1. **THE INFORMATION IS HELD BY AN ENTITY THAT IS A COVERED ENTITY OR BUSINESS ASSOCIATE UNDER HIPAA BECAUSE IT COLLECTS, USES, OR DISCLOSES PROTECTED HEALTH INFORMATION; AND**
2. **THE ENTITY APPLIES THE SAME STANDARDS FOR THE COLLECTION, USE, AND DISCLOSURE OF THE INFORMATION AS REQUIRED FOR PROTECTED HEALTH INFORMATION UNDER HIPAA AND MEDICAL RECORDS UNDER § 4–301 OF THE HEALTH – GENERAL ARTICLE, INCLUDING SPECIFIC STANDARDS REGARDING LEGALLY PROTECTED HEALTH CARE; AND**
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# WES MOORE, Governor Ch. 455
### (III) INFORMATION THAT IS DE–IDENTIFIED IN ACCORDANCE WITH THE REQUIREMENTS FOR DE–IDENTIFICATION SET FORTH IN 45 C.F.R. 164.514 THAT IS DERIVED FROM INDIVIDUALLY IDENTIFIABLE HEALTH INFORMATION AS DESCRIBED IN HIPAA OR PERSONAL INFORMATION CONSISTENT WITH THE HUMAN SUBJECT PROTECTION REQUIREMENTS OF THE U.S. FOOD AND DRUG ADMINISTRATION;
(7) THE COLLECTION, MAINTENANCE, DISCLOSURE, SALE, COMMUNICATION, OR USE OF PERSONAL INFORMATION BEARING ON A CONSUMER’S CREDITWORTHINESS, CREDIT STANDING, CREDIT CAPACITY, CHARACTER, GENERAL REPUTATION, PERSONAL CHARACTERISTICS, OR MODE OF LIVING BY A CONSUMER REPORTING AGENCY, FURNISHER, OR USER THAT PROVIDES INFORMATION FOR USE IN A CONSUMER REPORT, AND BY A USER OF A CONSUMER REPORT, BUT ONLY TO THE EXTENT THAT THE ACTIVITY IS REGULATED BY AND AUTHORIZED UNDER THE FEDERAL FAIR CREDIT REPORTING ACT;
(8) PERSONAL DATA COLLECTED, PROCESSED, SOLD, OR DISCLOSED IN COMPLIANCE WITH THE FEDERAL DRIVER’S PRIVACY PROTECTION ACT OF 1994;
(9) PERSONAL DATA REGULATED BY THE FEDERAL FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT;
(10) PERSONAL DATA COLLECTED, PROCESSED, SOLD, OR DISCLOSED IN COMPLIANCE WITH THE FEDERAL FARM CREDIT ACT;
(11) DATA PROCESSED OR MAINTAINED:
(I) IN THE COURSE OF AN INDIVIDUAL APPLYING TO, EMPLOYED BY, OR ACTING AS AN AGENT OR INDEPENDENT CONTRACTOR OF A CONTROLLER, PROCESSOR, OR THIRD PARTY, TO THE EXTENT THAT THE DATA IS COLLECTED AND USED WITHIN THE CONTEXT OF THE ROLE;
(II) AS THE EMERGENCY CONTACT INFORMATION OF A CONSUMER IF THE DATA IS USED FOR EMERGENCY CONTACT PURPOSES; OR
(III) THAT IS:
1. NECESSARY TO RETAIN TO ADMINISTER BENEFITS FOR ANOTHER INDIVIDUAL RELATING TO THE CONSUMER WHO IS THE SUBJECT OF THE INFORMATION UNDER ITEM (I) OF THIS ITEM; AND
2. USED FOR THE PURPOSES OF ADMINISTERING THE BENEFITS;
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# 2024 LAWS OF MARYLAND
(12) PERSONAL DATA COLLECTED, PROCESSED, SOLD, OR DISCLOSED IN RELATION TO PRICE, ROUTE, OR SERVICE BY AN AIR CARRIER SUBJECT TO THE FEDERAL AIRLINE DEREGULATION ACT TO THE EXTENT THIS SUBTITLE IS PREEMPTED BY THE FEDERAL AIRLINE DEREGULATION ACT; AND
(13) PERSONAL DATA BY OR ON BEHALF OF A PERSON REGULATED UNDER THE INSURANCE ARTICLE OR AN AFFILIATE OF SUCH A PERSON, IN FURTHERANCE OF THE BUSINESS OF INSURANCE.
(C) CONTROLLERS AND PROCESSORS THAT COMPLY WITH THE VERIFIABLE PARENTAL CONSENT REQUIREMENTS OF COPPA SHALL BE CONSIDERED COMPLIANT WITH AN OBLIGATION TO OBTAIN PARENTAL CONSENT IN ACCORDANCE WITH THIS SUBTITLE WITH RESPECT TO A CONSUMER WHO IS A CHILD.
## 14-4604.
A PERSON MAY NOT:
(1) PROVIDE AN EMPLOYEE OR A CONTRACTOR ACCESS TO CONSUMER HEALTH DATA UNLESS THE:
(I) THE EMPLOYEE OR CONTRACTOR IS SUBJECT TO A CONTRACTUAL OR STATUTORY DUTY OF CONFIDENTIALITY; OR
(II) CONFIDENTIALITY IS REQUIRED AS A CONDITION OF EMPLOYMENT OF THE EMPLOYEE;
(2) PROVIDE A PROCESSOR ACCESS TO CONSUMER HEALTH DATA UNLESS THE PERSON PROVIDING ACCESS TO THE CONSUMER HEALTH DATA AND THE PROCESSOR COMPLY WITH § 14-4608 OF THIS SUBTITLE; OR
(3) USE A GEOFENCE:
(I) TO IDENTIFY, TRACK, COLLECT DATA FROM, OR SEND A NOTIFICATION TO A CONSUMER REGARDING THE CONSUMER'S CONSUMER HEALTH DATA; AND
(II) WITHIN 1,750 FEET OF A MENTAL HEALTH FACILITY OR REPRODUCTIVE OR SEXUAL HEALTH FACILITY; OR
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# 14-4605.
(A) NOTHING IN THIS SECTION MAY BE CONSTRUED TO REQUIRE A CONTROLLER TO REVEAL A TRADE SECRET.
(B) A CONSUMER SHALL HAVE THE RIGHT TO:
1. CONFIRM WHETHER A CONTROLLER IS PROCESSING THE CONSUMER’S PERSONAL DATA.
2. IF A CONTROLLER IS PROCESSING A CONSUMER’S PERSONAL DATA, ACCESS THE CONSUMER’S PERSONAL DATA.
3. CONSIDERING THE NATURE OF THE CONSUMER’S PERSONAL DATA AND THE PURPOSES OF THE PROCESSING OF THE PERSONAL DATA, CORRECT INACCURACIES IN THE CONSUMER’S PERSONAL DATA.
4. REQUIRE A CONTROLLER TO DELETE PERSONAL DATA PROVIDED BY, OR OBTAINED ABOUT, THE CONSUMER.
5. IF THE PROCESSING OF PERSONAL DATA IS DONE BY AUTOMATIC MEANS, OBTAIN A COPY OF THE CONSUMER’S PERSONAL DATA PROCESSED BY THE CONTROLLER IN A PORTABLE AND, TO THE EXTENT TECHNICALLY FEASIBLE, READILY USABLE FORMAT THAT ALLOWS THE CONSUMER TO EASILY TRANSMIT THE DATA TO ANOTHER CONTROLLER WITHOUT HINDRANCE.
6. OBTAIN A LIST OF THE CATEGORIES OF THIRD PARTIES TO WHICH THE CONTROLLER HAS DISCLOSED THE CONSUMER’S PERSONAL DATA OR A LIST OF THE CATEGORIES OF THIRD PARTIES TO WHICH THE CONTROLLER HAS DISCLOSED ANY CONSUMER’S PERSONAL DATA IF THE CONTROLLER DOES NOT MAINTAIN THIS INFORMATION IN A FORMAT SPECIFIC TO THE CONSUMER.
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# 2024 LAWS OF MARYLAND
## Ch. 455
(7) OPT OUT OF THE PROCESSING OF PERSONAL DATA FOR PURPOSES OF:
(I) TARGETED ADVERTISING;
(II) THE SALE OF PERSONAL DATA; OR
(III) PROFILING IN FURTHERANCE OF SOLELY AUTOMATED DECISIONS THAT PRODUCE LEGAL OR SIMILARLY SIGNIFICANT EFFECTS CONCERNING THE CONSUMER.
(c) (1) A CONTROLLER SHALL ESTABLISH A SECURE AND RELIABLE METHOD FOR A CONSUMER TO EXERCISE A CONSUMER RIGHT UNDER THIS SECTION.
(2) A CONSUMER MAY EXERCISE A CONSUMER RIGHT UNDER THIS SECTION BY THE METHOD ESTABLISHED BY THE CONTROLLER UNDER PARAGRAPH (1) OF THIS SUBSECTION.
(d) (1) A CONSUMER MAY DESIGNATE AN AUTHORIZED AGENT IN ACCORDANCE WITH § 14–4606 OF THIS SUBTITLE TO OPT OUT OF THE PROCESSING OF THE CONSUMER’S PERSONAL DATA UNDER SUBSECTION (B)(7) OF THIS SECTION ON BEHALF OF A CONSUMER.
(2) A PARENT OR LEGAL GUARDIAN OF A CHILD MAY EXERCISE A CONSUMER RIGHT LISTED IN SUBSECTION (B) OF THIS SECTION ON THE CHILD’S BEHALF REGARDING THE PROCESSING OF PERSONAL DATA.
(3) A GUARDIAN OR CONSERVATOR OF A CONSUMER SUBJECT TO A GUARDIANSHIP, CONSERVATORSHIP, OR OTHER PROTECTIVE ARRANGEMENT MAY EXERCISE A CONSUMER RIGHT LISTED IN SUBSECTION (B) OF THIS SECTION ON THE CONSUMER’S BEHALF REGARDING THE PROCESSING OF PERSONAL DATA.
(e) (1) EXCEPT AS OTHERWISE PROVIDED IN THIS SUBTITLE, A CONTROLLER SHALL COMPLY WITH A REQUEST BY A CONSUMER TO EXERCISE A CONSUMER RIGHT LISTED IN THIS SECTION.
(2) (I) A CONTROLLER SHALL RESPOND TO A CONSUMER REQUEST NOT LATER THAN 45 DAYS AFTER THE CONTROLLER RECEIVES THE CONSUMER REQUEST.
(II) A CONTROLLER MAY EXTEND THE COMPLETION PERIOD BY AN ADDITIONAL 45 DAYS IF:
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# WES MOORE, Governor Ch. 455
1. IT IS REASONABLY NECESSARY TO COMPLETE THE REQUEST BASED ON THE COMPLEXITY AND NUMBER OF THE CONSUMER'S REQUESTS; AND
2. THE CONTROLLER INFORMS THE CONSUMER OF THE EXTENSION AND THE REASON FOR THE EXTENSION WITHIN THE INITIAL 45-DAY RESPONSE PERIOD.
(3) IF A CONTROLLER DECLINES TO ACT REGARDING A CONSUMER'S REQUEST, THE CONTROLLER SHALL:
(I) INFORM THE CONSUMER WITHOUT UNDUE DELAY, BUT NOT LATER THAN 45 DAYS AFTER RECEIVING THE REQUEST, OF THE JUSTIFICATION FOR DECLINING TO ACT; AND
(II) PROVIDE INSTRUCTIONS FOR HOW TO APPEAL THE DECISION.
(4) (I) A CONTROLLER SHALL PROVIDE INFORMATION TO A CONSUMER IN RESPONSE TO A CONSUMER'S REQUEST TO EXERCISE RIGHTS UNDER THIS SUBTITLE FREE OF CHARGE ONCE DURING ANY 12-MONTH PERIOD.
(II) IF REQUESTS FROM A CONSUMER ARE MANIFESTLY UNFOUNDED, EXCESSIVE, TECHNICALLY INFEASIBLE, OR REPETITIVE, A CONTROLLER MAY:
1. CHARGE THE CONSUMER A REASONABLE FEE TO COVER THE ADMINISTRATIVE COSTS OF COMPLYING WITH THE REQUEST; OR
2. DECLINE TO ACT ON THE REQUEST.
(III) THE CONTROLLER HAS THE BURDEN OF DEMONSTRATING THE MANIFESTLY UNFOUNDED, EXCESSIVE, TECHNICALLY INFEASIBLE, OR REPETITIVE NATURE OF THE REQUEST.
(5) IF A CONTROLLER IS UNABLE TO AUTHENTICATE A REQUEST TO EXERCISE A CONSUMER RIGHT AFFORDED UNDER SUBSECTION (B)(1) THROUGH (5) OF THIS SECTION USING COMMERCIALLY REASONABLE EFFORTS, THE CONTROLLER:
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# 2024 LAWS OF MARYLAND
(I) MAY NOT BE REQUIRED TO COMPLY WITH A REQUEST TO INITIATE AN ACTION IN ACCORDANCE WITH THIS SECTION; AND
(II) SHALL PROVIDE NOTICE TO THE CONSUMER THAT THE CONTROLLER IS UNABLE TO AUTHENTICATE THE REQUEST TO EXERCISE THE RIGHT UNTIL THE CONSUMER PROVIDES ADDITIONAL INFORMATION REASONABLY NECESSARY TO AUTHENTICATE THE CONSUMER AND THE CONSUMER'S REQUEST TO EXERCISE THE CONSUMER'S RIGHTS.
(6) A CONTROLLER MAY NOT BE REQUIRED TO AUTHENTICATE AN OPT-OUT REQUEST.
(7) A CONTROLLER THAT HAS OBTAINED PERSONAL DATA ABOUT A CONSUMER FROM A SOURCE OTHER THAN THE CONSUMER SHALL BE CONSIDERED COMPLIANT WITH THE CONSUMER'S REQUEST TO DELETE THE CONSUMER'S DATA IN ACCORDANCE WITH SUBSECTION (B)(4) OF THIS SECTION BY RETAINING A RECORD OF THE DELETION REQUEST AND THE MINIMUM DATA NECESSARY FOR THE PURPOSE OF ENSURING THAT THE CONSUMER'S PERSONAL DATA:
(I) REMAINS DELETED FROM THE CONTROLLER'S RECORDS; AND
(II) IS NOT BEING USED FOR ANY OTHER PURPOSE.
(f) (1) A CONTROLLER SHALL ESTABLISH A PROCESS FOR A CONSUMER TO APPEAL THE CONTROLLER'S REFUSAL TO ACT ON A CONSUMER RIGHTS REQUEST WITHIN A REASONABLE PERIOD AFTER THE CONSUMER RECEIVES THE DECISION.
(2) THE APPEAL PROCESS SHALL BE:
(I) CONSPICUOUSLY AVAILABLE; AND
(II) SIMILAR TO THE PROCESS FOR SUBMITTING REQUESTS TO INITIATE AN ACTION IN ACCORDANCE WITH THIS SECTION.
(3) NOT LATER THAN 60 DAYS AFTER RECEIVING AN APPEAL, A CONTROLLER SHALL INFORM THE CONSUMER IN WRITING OF ANY ACTION TAKEN OR NOT TAKEN IN RESPONSE TO THE APPEAL, INCLUDING A WRITTEN EXPLANATION OF THE REASONS FOR THE DECISIONS.
(4) IF A CONTROLLER DENIES AN APPEAL, THE CONTROLLER SHALL PROVIDE THE CONSUMER WITH AN ONLINE MECHANISM, IF AVAILABLE, THROUGH WHICH THE CONSUMER MAY CONTACT THE DIVISION TO SUBMIT A COMPLAINT.
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# 14–4606.
(A) (1) A CONSUMER MAY DESIGNATE AN INDIVIDUAL TO SERVE AS THE CONSUMER’S AUTHORIZED AGENT AND ACT ON THE CONSUMER’S BEHALF TO OPT OUT OF THE PROCESSING OF THE CONSUMER’S PERSONAL DATA FOR ONE OR MORE OF THE PURPOSES SPECIFIED IN § 14–4605(B)(7) OF THIS SUBTITLE.
(2) A CONSUMER MAY DESIGNATE AN AUTHORIZED AGENT BY AN INTERNET LINK OR A BROWSER SETTING, BROWSER EXTENSION, GLOBAL DEVICE SETTING, OR OTHER SIMILAR TECHNOLOGY, INDICATING A CONSUMER’S INTENT TO OPT OUT OF THE PROCESSING OF THE CONSUMER’S PERSONAL DATA.
(B) A CONTROLLER SHALL COMPLY WITH AN OPT–OUT REQUEST RECEIVED FROM AN AUTHORIZED AGENT IF, USING COMMERCIALLY REASONABLE EFFORTS, THE CONTROLLER IS ABLE TO AUTHENTICATE:
(1) THE IDENTITY OF THE CONSUMER; AND
(2) THE AUTHORIZED AGENT’S AUTHORITY TO ACT ON THE CONSUMER’S BEHALF.
# 14–4607.
(A) A CONTROLLER MAY NOT:
~~(1) COLLECT PERSONAL DATA FOR THE SOLE PURPOSE OF CONTENT PERSONALIZATION OR MARKETING WITHOUT THE CONSENT OF THE CONSUMER WHOSE PERSONAL DATA IS COLLECTED;~~
(2) (1) EXCEPT WHERE THE COLLECTION OR PROCESSING IS STRICTLY NECESSARY TO PROVIDE OR MAINTAIN A SPECIFIC PRODUCT OR SERVICE REQUESTED BY THE CONSUMER TO WHOM THE PERSONAL DATA PERTAINS ~~AND UNLESS THE CONTROLLER OBTAINS THE CONSUMER’S CONSENT~~, COLLECT, PROCESS, OR SHARE SENSITIVE DATA CONCERNING A CONSUMER;
(3) (2) SELL SENSITIVE DATA;
(4) (3) PROCESS PERSONAL DATA IN VIOLATION OF STATE OR FEDERAL LAWS THAT PROHIBIT UNLAWFUL DISCRIMINATION;
(5) (4) PROCESS THE PERSONAL DATA OF A CONSUMER FOR THE PURPOSES OF TARGETED ADVERTISING IF THE CONTROLLER KNEW OR SHOULD
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# 2024 LAWS OF MARYLAND
HAVE KNOWN THAT THE CONSUMER IS UNDER THE AGE OF 18 YEARS;
(6) (5) SELL THE PERSONAL DATA OF A CONSUMER IF THE CONTROLLER KNEW OR SHOULD HAVE KNOWN THAT THE CONSUMER IS UNDER THE AGE OF 18 YEARS;
(7) (6) DISCRIMINATE AGAINST A CONSUMER FOR EXERCISING A CONSUMER RIGHT CONTAINED IN THIS SUBTITLE, INCLUDING DENYING GOODS OR SERVICES, CHARGING DIFFERENT PRICES OR RATES FOR GOODS OR SERVICES, OR PROVIDING A DIFFERENT LEVEL OF QUALITY OF GOODS OR SERVICES TO THE CONSUMER;
(8) (7) COLLECT, PROCESS, OR TRANSFER PERSONAL DATA OR PUBLICLY AVAILABLE DATA IN A MANNER THAT UNLAWFULLY DISCRIMINATES IN OR OTHERWISE UNLAWFULLY MAKES UNAVAILABLE THE EQUAL ENJOYMENT OF GOODS OR SERVICES ON THE BASIS OF RACE, COLOR, RELIGION, NATIONAL ORIGIN, SEX, SEXUAL ORIENTATION, GENDER IDENTITY, OR DISABILITY, UNLESS THE COLLECTION, PROCESSING, OR TRANSFER OF PERSONAL DATA IS FOR:
(I) THE CONTROLLER’S SELF-TESTING TO PREVENT OR MITIGATE UNLAWFUL DISCRIMINATION;
(II) THE CONTROLLER’S DIVERSIFYING OF AN APPLICANT, PARTICIPANT, OR CUSTOMER POOL; OR
(III) A PRIVATE CLUB OR GROUP NOT OPEN TO THE PUBLIC, AS DESCRIBED IN § 201(E) OF THE CIVIL RIGHTS ACT OF 1964; OR
(9) (8) UNLESS THE CONTROLLER OBTAINS THE CONSUMER’S CONSENT, PROCESS PERSONAL DATA FOR A PURPOSE THAT IS NEITHER REASONABLY NECESSARY TO, NOR COMPATIBLE WITH, THE DISCLOSED PURPOSES FOR WHICH THE PERSONAL DATA IS PROCESSED, AS DISCLOSED TO THE CONSUMER.
(B) (1) A CONTROLLER SHALL:
(I) LIMIT THE COLLECTION OF PERSONAL DATA TO WHAT IS REASONABLY NECESSARY AND PROPORTIONATE TO PROVIDE OR MAINTAIN A SPECIFIC PRODUCT OR SERVICE REQUESTED BY THE CONSUMER TO WHOM THE DATA PERTAINS;
(II) ESTABLISH, IMPLEMENT, AND MAINTAIN REASONABLE ADMINISTRATIVE, TECHNICAL, AND PHYSICAL DATA SECURITY PRACTICES TO
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# WES MOORE, Governor Ch. 455
PROTECT THE CONFIDENTIALITY, INTEGRITY, AND ACCESSIBILITY OF PERSONAL DATA APPROPRIATE TO THE VOLUME AND NATURE OF THE PERSONAL DATA AT ISSUE; AND
(III) PROVIDE AN EFFECTIVE MECHANISM FOR A CONSUMER TO REVOKE THE CONSUMER’S CONSENT UNDER THIS SECTION THAT IS AT LEAST AS EASY AS THE MECHANISM BY WHICH THE CONSUMER PROVIDED THE CONSUMER’S CONSENT.
(2) IF A CONSUMER REVOKES CONSENT UNDER THIS SECTION, THE CONTROLLER SHALL STOP PROCESSING THE CONSUMER’S PERSONAL DATA AS SOON AS PRACTICABLE, BUT NOT LATER THAN 30 DAYS AFTER RECEIVING THE REQUEST.
(C) NOTHING IN SUBSECTION (A) OR (B) OF THIS SECTION MAY BE CONSTRUED TO:
(1) REQUIRE A CONTROLLER TO PROVIDE A PRODUCT OR SERVICE THAT REQUIRES THE PERSONAL DATA OF A CONSUMER THAT THE CONTROLLER DOES NOT COLLECT OR MAINTAIN; OR
(2) PROHIBIT A CONTROLLER FROM OFFERING A DIFFERENT PRICE, RATE, LEVEL, QUALITY, OR SELECTION OF GOODS OR SERVICES TO A CONSUMER, INCLUDING OFFERING GOODS OR SERVICES FOR NO FEE, IF THE OFFERING IS IN CONNECTION WITH A CONSUMER’S VOLUNTARY PARTICIPATION IN A BONA FIDE LOYALTY, REWARDS, PREMIUM FEATURES, DISCOUNTS, OR CLUB CARD PROGRAM, **PROVIDED THAT THE SELLING OF PERSONAL DATA IS NOT A CONDITION OF PARTICIPATION IN THE PROGRAM.**
(D) A CONTROLLER SHALL PROVIDE A CONSUMER WITH A REASONABLY ACCESSIBLE, CLEAR, AND MEANINGFUL PRIVACY NOTICE THAT INCLUDES:
(1) THE CATEGORIES OF PERSONAL DATA PROCESSED BY THE CONTROLLER, INCLUDING SENSITIVE DATA;
(2) THE CONTROLLER’S PURPOSE FOR PROCESSING PERSONAL DATA;
(3) HOW A CONSUMER MAY EXERCISE THE CONSUMER’S RIGHTS UNDER THIS SUBTITLE, INCLUDING HOW A CONSUMER MAY APPEAL A CONTROLLER’S DECISION REGARDING THE CONSUMER’S REQUEST OR MAY REVOKE CONSENT;
(4) THE CATEGORIES OF THIRD PARTIES WITH WHICH THE CONTROLLER SHARES PERSONAL DATA WITH A LEVEL OF DETAIL THAT ENABLES A
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# 2024 LAWS OF MARYLAND
CONSUMER TO UNDERSTAND ~~WHAT TYPE OF ENTITY EACH THIRD PARTY IS AND, TO THE EXTENT POSSIBLE, HOW EACH THIRD PARTY MAY PROCESS THE PERSONAL DATA~~ THE TYPE OF, BUSINESS MODEL OF, OR PROCESSING CONDUCTED BY EACH THIRD PARTY;
(5) THE CATEGORIES OF PERSONAL DATA, INCLUDING SENSITIVE DATA, THAT THE CONTROLLER SHARES WITH THIRD PARTIES; AND
(6) AN ACTIVE E-MAIL ADDRESS OR OTHER ONLINE MECHANISM THAT A CONSUMER MAY USE TO CONTACT THE CONTROLLER.
(e) (1) IF A CONTROLLER SELLS PERSONAL DATA TO THIRD PARTIES OR PROCESSES PERSONAL DATA FOR TARGETED ADVERTISING OR FOR THE PURPOSES OF PROFILING THE CONSUMER IN FURTHERANCE OF DECISIONS THAT PRODUCE LEGAL OR SIMILARLY SIGNIFICANT EFFECTS, THE CONTROLLER SHALL CLEARLY AND CONSPICUOUSLY DISCLOSE THE SALE OR PROCESSING, AS WELL AS THE MANNER IN WHICH A CONSUMER MAY EXERCISE THE RIGHT TO OPT OUT OF THE SALE OR PROCESSING.
(2) THE DISCLOSURE REQUIRED UNDER PARAGRAPH (1) OF THIS SUBSECTION SHALL BE PROMINENTLY DISPLAYED, AND USE CLEAR, EASY TO UNDERSTAND, AND UNAMBIGUOUS LANGUAGE, TO STATE WHETHER THE CONSUMER’S INFORMATION WILL BE SOLD OR SHARED WITH A THIRD PARTY.
(f) (1) THE PRIVACY NOTICE UNDER SUBSECTION (D) OF THIS SECTION SHALL ESTABLISH ONE OR MORE SECURE AND RELIABLE METHODS FOR A CONSUMER TO SUBMIT A REQUEST TO EXERCISE A CONSUMER RIGHT IN ACCORDANCE WITH THIS SUBTITLE THAT TAKE INTO ACCOUNT:
(I) THE WAYS IN WHICH CONSUMERS NORMALLY INTERACT WITH THE CONTROLLER;
(II) THE NEED FOR SECURE AND RELIABLE COMMUNICATION OF CONSUMER REQUESTS; AND
(III) THE ABILITY OF THE CONTROLLER TO VERIFY THE IDENTITY OF A CONSUMER MAKING THE REQUEST.
(2) (I) A CONTROLLER MAY NOT REQUIRE A CONSUMER TO CREATE A NEW ACCOUNT IN ORDER TO EXERCISE A CONSUMER RIGHT.
(II) A CONTROLLER MAY REQUIRE A CONSUMER TO USE AN EXISTING ACCOUNT TO EXERCISE A CONSUMER RIGHT.
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# (3) A CONTROLLER MAY UTILIZE THE FOLLOWING METHODS TO SATISFY PARAGRAPH (1) OF THIS SUBSECTION:
(I) PROVIDING A CLEAR AND CONSPICUOUS LINK ON THE CONTROLLER’S WEBSITE TO A WEBPAGE THAT ALLOWS A CONSUMER, OR AN AUTHORIZED AGENT OF THE CONSUMER, TO OPT OUT OF THE TARGETED ADVERTISING OR THE SALE OF THE CONSUMER’S PERSONAL DATA; OR
(II) ON OR BEFORE OCTOBER 1, 2025, ALLOWING A CONSUMER TO OPT OUT OF ANY PROCESSING OF THE CONSUMER’S PERSONAL DATA FOR THE PURPOSES OF TARGETED ADVERTISING, OR ANY SALE OF PERSONAL DATA, THROUGH AN OPT–OUT PREFERENCE SIGNAL SENT, WITH THE CONSUMER’S CONSENT, BY A PLATFORM, TECHNOLOGY, OR MECHANISM TO THE CONTROLLER INDICATING THE CONSUMER’S INTENT TO OPT OUT OF THE PROCESSING OR SALE.
# (4) A PLATFORM, TECHNOLOGY, OR MECHANISM USED IN ACCORDANCE WITH PARAGRAPH (3) OF THIS SUBSECTION SHALL:
(I) BE CONSUMER–FRIENDLY AND EASY TO USE BY THE AVERAGE CONSUMER;
(II) USE CLEAR, EASY TO UNDERSTAND, AND UNAMBIGUOUS LANGUAGE;
(III) BE AS CONSISTENT AS POSSIBLE WITH ANY OTHER SIMILAR PLATFORM, TECHNOLOGY, OR MECHANISM REQUIRED BY ANY FEDERAL OR STATE LAW OR REGULATION;
(IV) ENABLE THE CONTROLLER TO REASONABLY DETERMINE WHETHER THE CONSUMER:
1. IS A RESIDENT OF THE STATE; AND
2. HAS MADE A LEGITIMATE REQUEST TO OPT OUT OF ANY SALE OF THE CONSUMER’S PERSONAL DATA OR TARGETED ADVERTISING; AND
(V) REQUIRE A CONSUMER TO MAKE AN AFFIRMATIVE, UNAMBIGUOUS, AND VOLUNTARY CHOICE IN ORDER TO OPT OUT OF ANY PROCESSING OF THE CONSUMER’S PERSONAL DATA.
# (5) A PLATFORM, TECHNOLOGY, OR MECHANISM USED IN ACCORDANCE WITH PARAGRAPH (3) OF THIS SUBSECTION MAY NOT:
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# 2024 Laws of Maryland
(I) UNFAIRLY DISADVANTAGE ANOTHER CONTROLLER; OR
(II) USE A DEFAULT SETTING TO OPT A CONSUMER OUT OF ANY PROCESSING OF THE CONSUMER’S PERSONAL DATA.
(G) (1) IF A CONSUMER’S DECISION TO OPT OUT OF THE PROCESSING OF THE CONSUMER’S PERSONAL DATA FOR THE PURPOSES OF TARGETED ADVERTISING, OR THE SALE OF PERSONAL DATA THROUGH AN OPT-OUT PREFERENCE SIGNAL SENT IN ACCORDANCE WITH SUBSECTION (F)(3) OF THIS SECTION CONFLICTS WITH THE CONSUMER’S EXISTING CONTROLLER-SPECIFIC PRIVACY SETTING OR THE CONSUMER’S VOLUNTARY PARTICIPATION IN A CONTROLLER’S BONA FIDE LOYALTY, REWARDS, PREMIUM FEATURES, DISCOUNTS, OR CLUB CARD PROGRAM, THE CONTROLLER MAY NOTIFY THE CONSUMER OF A CONFLICT AND PROVIDE THE CHOICE TO CONFIRM CONTROLLER-SPECIFIC PRIVACY SETTINGS OR PARTICIPATION IN A PROGRAM LISTED IN THIS PARAGRAPH.
(2) A CONTROLLER THAT RECOGNIZES SIGNALS APPROVED BY OTHER STATES SHALL BE CONSIDERED IN COMPLIANCE WITH THIS SECTION.
## 14–4608.
(A) (1) IF A CONTROLLER USES A PROCESSOR TO PROCESS THE PERSONAL DATA OF CONSUMERS, THE CONTROLLER AND THE PROCESSOR SHALL ENTER INTO A CONTRACT THAT GOVERNS THE PROCESSOR’S DATA PROCESSING PROCEDURES WITH RESPECT TO PROCESSING PERFORMED ON BEHALF OF THE CONTROLLER.
(2) THE CONTRACT SHALL BE BINDING AND SHALL CLEARLY SET FORTH INSTRUCTIONS FOR:
(I) PROCESSING INSTRUCTIONS FOR PROCESSING DATA;
(II) THE NATURE AND PURPOSE OF PROCESSING;
(III) THE TYPE OF DATA SUBJECT TO PROCESSING;
(IV) THE DURATION OF PROCESSING; AND
(V) THE RIGHTS AND OBLIGATIONS OF BOTH PARTIES.
(3) THE CONTRACT SHALL REQUIRE THAT THE PROCESSOR:
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# WES MOORE, Governor Ch. 455
(I) ENSURE THAT EACH PERSON PROCESSING PERSONAL DATA IS SUBJECT TO A DUTY OF CONFIDENTIALITY WITH RESPECT TO THE PERSONAL DATA;
(II) ESTABLISH, IMPLEMENT, AND MAINTAIN REASONABLE ADMINISTRATIVE, TECHNICAL, AND PHYSICAL DATA SECURITY PRACTICES TO PROTECT THE CONFIDENTIALITY, INTEGRITY, AND ACCESSIBILITY OF PERSONAL DATA, CONSIDERING THE VOLUME AND NATURE OF THE PERSONAL DATA;
(III) STOP PROCESSING DATA ON REQUEST BY THE CONTROLLER MADE IN ACCORDANCE WITH A CONSUMER’S AUTHENTICATED REQUEST;
(IV) AT THE CONTROLLER’S DIRECTION, DELETE OR RETURN ALL PERSONAL DATA TO THE CONTROLLER AS REQUESTED AT THE END OF THE PROVISION OF SERVICE, UNLESS RETENTION OF THE PERSONAL DATA IS REQUIRED BY LAW;
(V) ON THE REASONABLE REQUEST OF THE CONTROLLER, MAKE AVAILABLE TO THE CONTROLLER ALL INFORMATION IN THE PROCESSOR’S POSSESSION NECESSARY TO DEMONSTRATE THE PROCESSOR’S COMPLIANCE WITH THE OBLIGATIONS IN THIS SUBTITLE;
(VI) AFTER PROVIDING THE CONTROLLER AN OPPORTUNITY TO OBJECT, ENGAGE A SUBCONTRACTOR TO ASSIST WITH PROCESSING PERSONAL DATA ON THE CONTROLLER’S BEHALF ONLY IN ACCORDANCE WITH A WRITTEN CONTRACT THAT REQUIRES THE SUBCONTRACTOR TO MEET THE PROCESSOR’S OBLIGATIONS REGARDING THE PERSONAL DATA UNDER THE PROCESSOR’S CONTRACT WITH THE CONTROLLER; AND
(VII) ALLOW AND COOPERATE WITH REASONABLE ASSESSMENTS BY THE CONTROLLER, THE CONTROLLER’S DESIGNATED ASSESSOR, OR A QUALIFIED AND INDEPENDENT ASSESSOR ARRANGED FOR BY THE PROCESSOR TO ASSESS THE PROCESSOR’S POLICIES AND TECHNICAL AND ORGANIZATIONAL MEASURES IN SUPPORT OF THE OBLIGATIONS UNDER THIS SUBTITLE.
(4) (I) ON REQUEST, THE PROCESSOR SHALL PROVIDE A REPORT OF AN ASSESSMENT REQUIRED BY PARAGRAPH (3)(V) OF THIS SUBSECTION TO THE CONTROLLER.
(II) AN ASSESSMENT CONDUCTED IN ACCORDANCE WITH PARAGRAPH (3)(V) OF THIS SUBSECTION SHALL BE CONDUCTED USING AN APPROPRIATE AND ACCEPTED CONTROL STANDARD OR FRAMEWORK AND ASSESSMENT PROCEDURE FOR THE ASSESSMENTS.
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# 2024 LAWS OF MARYLAND
(B) (1) ~~IF A CONTROLLER USES A PROCESSOR TO PROCESS THE PERSONAL DATA OF CONSUMERS, THE CONTROLLER SHALL PROVIDE THE PROCESSOR WITH INSTRUCTIONS ON HOW TO PROCESS PERSONAL DATA.~~
(2) A PROCESSOR SHALL:
(I) (1) ADHERE TO THE CONTRACT AND INSTRUCTIONS OF A CONTROLLER;
(II) (2) ASSIST THE CONTROLLER IN MEETING THE CONTROLLER’S OBLIGATIONS UNDER THIS SUBTITLE, INCLUDING, ~~CONSIDERING THE NATURE OF PROCESSING AND THE INFORMATION AVAILABLE TO THE PROCESSOR:~~
1. (I) BY APPROPRIATE TECHNICAL AND ORGANIZATIONAL MEASURES AS MUCH AS REASONABLY PRACTICABLE TO FULFILL THE CONTROLLER’S OBLIGATION TO RESPOND TO CONSUMER RIGHTS REQUESTS, CONSIDERING THE NATURE OF PROCESSING AND THE INFORMATION AVAILABLE TO THE PROCESSOR; AND
2. (II) BY ASSISTING THE CONTROLLER IN MEETING THE CONTROLLER’S OBLIGATIONS IN RELATION TO THE SECURITY OF PROCESSING THE PERSONAL DATA AND IN RELATION TO THE NOTIFICATION OF A BREACH OF THE SECURITY OF A SYSTEM, AS DEFINED IN § 14–3504 OF THIS TITLE; AND
(III) (3) PROVIDE NECESSARY INFORMATION TO ENABLE THE CONTROLLER TO CONDUCT AND DOCUMENT DATA PROTECTION ASSESSMENTS.
(C) NOTHING IN THIS SECTION MAY BE CONSTRUED TO RELIEVE A CONTROLLER OR A PROCESSOR FROM THE LIABILITIES IMPOSED ON THE CONTROLLER OR PROCESSOR BY VIRTUE OF THE CONTROLLER’S OR PROCESSOR’S ROLE IN THE PROCESSING RELATIONSHIP IN ACCORDANCE WITH THIS SECTION.
(D) (1) THE DETERMINATION OF WHETHER A PERSON IS ACTING AS A CONTROLLER OR A PROCESSOR WITH RESPECT TO A SPECIFIC PROCESSING OF DATA IS A FACT–BASED DETERMINATION THAT DEPENDS ON THE CONTEXT IN WHICH PERSONAL DATA IS BEING PROCESSED.
(2) A PERSON IS CONSIDERED TO BE A CONTROLLER IF THE PERSON:
(I) IS NOT LIMITED IN THE PERSON’S PROCESSING OF SPECIFIC PERSONAL DATA IN ACCORDANCE WITH A CONTROLLER’S INSTRUCTIONS; OR
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# WES MOORE, Governor Ch. 455
(II) FAILS TO ADHERE TO A CONTROLLER’S INSTRUCTIONS WITH RESPECT TO A SPECIFIC PROCESSING OF PERSONAL DATA.
(3) A PROCESSOR THAT CONTINUES TO ADHERE TO A CONTROLLER’S INSTRUCTIONS WITH RESPECT TO A SPECIFIC PROCESSING OF PERSONAL DATA REMAINS A PROCESSOR.
(4) IF A PROCESSOR OR THIRD PARTY BEGINS, ALONE OR JOINTLY WITH OTHERS, DETERMINING THE PURPOSES AND MEANS OF THE PROCESSING OF PERSONAL DATA, THE PROCESSOR:
(I) IS A CONTROLLER WITH RESPECT TO THE PROCESSING; AND
(II) MAY BE SUBJECT TO AN ENFORCEMENT ACTION UNDER THIS SUBTITLE.
(E) NOTHING IN THIS SECTION MAY BE CONSTRUED TO ALTER A CONTROLLER’S OBLIGATION TO LIMIT A PERSON’S PROCESSING OF PERSONAL DATA OR TO TAKE STEPS TO ENSURE THAT A PROCESSOR ADHERES TO THE CONTROLLER’S INSTRUCTIONS.
## 14–4609.
(A) IF A THIRD PARTY USES OR SHARES A CONSUMER’S INFORMATION IN A MANNER INCONSISTENT WITH PROMISES MADE TO THE CONSUMER AT THE TIME OF COLLECTION OF THE INFORMATION, THE THIRD PARTY SHALL PROVIDE AN AFFECTED CONSUMER WITH NOTICE OF THE NEW OR CHANGED PRACTICE BEFORE IMPLEMENTING THE NEW OR CHANGED PRACTICE.
(B) THE NOTICE PROVIDED UNDER SUBSECTION (A) OF THIS SECTION SHALL BE PROVIDED IN A MANNER AND AT A TIME REASONABLY CALCULATED TO ALLOW A CONSUMER TO EXERCISE THE RIGHTS PROVIDED UNDER THIS SUBTITLE.
## 14–4610.
(A) IN THIS SECTION, “PROCESSING ACTIVITIES THAT PRESENT A HEIGHTENED RISK OF HARM TO A CONSUMER” MEANS:
(1) THE PROCESSING OF PERSONAL DATA FOR THE PURPOSES OF TARGETED ADVERTISING;
(2) THE SALE OF PERSONAL DATA;
(3) THE PROCESSING OF SENSITIVE DATA; AND
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# 2024 LAWS OF MARYLAND
(4) The processing of personal data for the purposes of profiling, in which the profiling presents a reasonably foreseeable risk of:
(I) Unfair, abusive, or deceptive treatment of a consumer;
(II) Having an unlawful disparate impact on a consumer;
(III) Financial, physical, or reputational injury to a consumer;
(IV) A physical or other intrusion on the solitude or seclusion or the private affairs or concerns of a consumer in which the intrusion would be offensive to a reasonable person; or
(V) Other substantial injury to a consumer.
(B) A controller shall conduct and document, on a regular basis, a data protection assessment for each of the controller’s processing activities that present a heightened risk of harm to a consumer, including an assessment for each algorithm that is used.
(C) (1) A data protection assessment conducted in accordance with this section shall identify and weigh the benefits that may flow directly and indirectly from the processing to the controller, the consumer, other interested parties, and the public against:
(I) The potential risks to the rights of the consumer associated with the processing as mitigated by safeguards that may be employed by the controller to reduce these risks; and
(II) The necessity and proportionality of processing in relation to the stated purpose of the processing.
(2) The controller shall factor into a data protection assessment:
(I) The use of de-identified data;
(II) The reasonable expectations of consumers;
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# WES MOORE, Governor Ch. 455
(III) THE CONTEXT OF THE PROCESSING; AND
(IV) THE RELATIONSHIP BETWEEN THE CONTROLLER AND THE CONSUMER WHOSE PERSONAL DATA WILL BE PROCESSED.
(D) (1) THE DIVISION MAY REQUIRE THAT A CONTROLLER MAKE AVAILABLE TO THE DIVISION A DATA PROTECTION ASSESSMENT THAT IS RELEVANT TO AN INVESTIGATION CONDUCTED BY THE DIVISION.
(2) (I) THE DIVISION MAY EVALUATE A DATA PROTECTION ASSESSMENT FOR COMPLIANCE WITH THE RESPONSIBILITIES ESTABLISHED IN THIS SUBTITLE.
(II) A CONTROLLER’S DATA PROTECTION ASSESSMENT MAY BE USED IN AN ACTION TO ENFORCE THIS SUBTITLE.
(3) A DATA PROTECTION ASSESSMENT IS CONFIDENTIAL AND IS EXEMPT FROM DISCLOSURE UNDER THE FEDERAL FREEDOM OF INFORMATION ACT OR THE PUBLIC INFORMATION ACT.
(E) A SINGLE DATA PROTECTION ASSESSMENT MAY ADDRESS A COMPARABLE SET OF PROCESSING OPERATIONS THAT INCLUDE SIMILAR ACTIVITIES.
(F) IF A CONTROLLER CONDUCTS A DATA PROTECTION ASSESSMENT FOR THE PURPOSE OF COMPLYING WITH ANOTHER APPLICABLE LAW OR REGULATION, THE DATA PROTECTION ASSESSMENT SHALL BE CONSIDERED TO SATISFY THE REQUIREMENTS ESTABLISHED IN THIS SECTION IF THE DATA PROTECTION ASSESSMENT IS REASONABLY SIMILAR IN SCOPE AND EFFECT TO THE DATA PROTECTION ASSESSMENT THAT WOULD OTHERWISE BE CONDUCTED IN ACCORDANCE WITH THIS SECTION.
(G) TO THE EXTENT THAT ANY INFORMATION CONTAINED IN A DATA PROTECTION ASSESSMENT DISCLOSED TO THE DIVISION INCLUDES INFORMATION SUBJECT TO ATTORNEY–CLIENT PRIVILEGE OR WORK PRODUCT PROTECTION, THE DISCLOSURE MAY NOT CONSTITUTE A WAIVER OF THAT PRIVILEGE OR PROTECTION.
(H) A DATA PROTECTION ASSESSMENT CONDUCTED UNDER THIS SECTION:
(1) SHALL APPLY TO PROCESSING ACTIVITIES THAT OCCUR ON OR AFTER OCTOBER 1, 2025; AND
(2) IS NOT REQUIRED FOR PROCESSING ACTIVITIES THAT OCCUR BEFORE OCTOBER 1, 2025.
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# 14-4611.
(A) NOTHING IN THIS SUBTITLE MAY BE CONSTRUED TO REQUIRE A CONTROLLER OR A PROCESSOR TO:
1. RE-IDENTIFY DE-IDENTIFIED DATA;
2. MAINTAIN DATA IN AN IDENTIFIABLE FORM; OR
3. COLLECT, OBTAIN, RETAIN, OR ACCESS ANY DATA OR TECHNOLOGY IN ORDER TO BE CAPABLE OF ASSOCIATING AN AUTHENTICATED CONSUMER REQUEST WITH PERSONAL DATA.
(B) NOTHING IN THIS SUBTITLE MAY BE CONSTRUED TO REQUIRE A CONTROLLER OR PROCESSOR TO COMPLY WITH AN AUTHENTICATED CONSUMER RIGHTS REQUEST IF THE CONTROLLER:
1. IS NOT REASONABLY CAPABLE OF ASSOCIATING THE REQUEST WITH THE PERSONAL DATA OR IT WOULD BE UNREASONABLY BURDENSOME FOR THE CONTROLLER TO ASSOCIATE THE REQUEST WITH THE PERSONAL DATA;
2. DOES NOT USE THE PERSONAL DATA TO RECOGNIZE OR RESPOND TO THE SPECIFIC CONSUMER WHO IS THE SUBJECT OF THE PERSONAL DATA OR ASSOCIATE THE PERSONAL DATA WITH OTHER PERSONAL DATA ABOUT THE SAME SPECIFIC CONSUMER; AND
3. DOES NOT SELL THE PERSONAL DATA TO A THIRD PARTY OR OTHERWISE VOLUNTARILY DISCLOSE THE PERSONAL DATA TO A THIRD PARTY OTHER THAN A PROCESSOR, EXCEPT AS OTHERWISE ALLOWED IN THIS SUBTITLE.
(C)
1. A CONTROLLER THAT DISCLOSES DE-IDENTIFIED DATA SHALL:
i. EXERCISE REASONABLE OVERSIGHT TO MONITOR COMPLIANCE WITH ANY CONTRACTUAL COMMITMENTS TO WHICH THE DE-IDENTIFIED DATA IS SUBJECT; AND
ii. TAKE APPROPRIATE STEPS TO ADDRESS ANY BREACHES OF ANY CONTRACTUAL COMMITMENTS.
2. THE DETERMINATION OF WHETHER OVERSIGHT IS REASONABLE AND WHETHER APPROPRIATE STEPS WERE TAKEN IN ACCORDANCE WITH PARAGRAPH (1) OF THIS SUBSECTION SHALL TAKE INTO ACCOUNT WHETHER THE
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# 14-4612.
(A) NOTHING IN THIS SUBTITLE MAY BE CONSTRUED TO RESTRICT A CONTROLLER’S OR PROCESSOR’S ABILITY TO:
1. COMPLY WITH FEDERAL, STATE, OR LOCAL LAWS OR REGULATIONS;
2. ~~COMPLY WITH A CIVIL, CRIMINAL, OR REGULATORY INQUIRY, INVESTIGATION, SUBPOENA, OR SUMMONS BY A FEDERAL, STATE, LOCAL, OR OTHER GOVERNMENTAL AUTHORITY~~ COMPLY WITH A CIVIL OR CRIMINAL SUBPOENA OR SUMMONS BY A FEDERAL, STATE, LOCAL, OR OTHER JUDICIAL BODY, CRIMINAL, OR REGULATORY INQUIRY, INVESTIGATION, SUBPOENA, OR SUMMONS BY A FEDERAL, STATE, LOCAL, OR OTHER GOVERNMENTAL AUTHORITY;
3. COOPERATE WITH LAW ENFORCEMENT AGENCIES CONCERNING CONDUCT OR ACTIVITY THAT THE CONTROLLER OR PROCESSOR REASONABLY AND IN GOOD FAITH BELIEVES MAY VIOLATE FEDERAL, STATE, OR LOCAL LAWS OR REGULATIONS;
4. INVESTIGATE, ESTABLISH, EXERCISE, PREPARE FOR, OR DEFEND A LEGAL CLAIM;
5. PROVIDE A PRODUCT OR SERVICE SPECIFICALLY REQUESTED BY A CONSUMER;
6. PERFORM UNDER A CONTRACT TO WHICH A CONSUMER IS A PARTY, INCLUDING FULFILLING THE TERMS OF A WRITTEN WARRANTY;
7. TAKE STEPS AT THE REQUEST OF A CONSUMER BEFORE ENTERING INTO A CONTRACT;
8. TAKE IMMEDIATE STEPS TO PROTECT AN INTEREST THAT IS ESSENTIAL FOR THE LIFE OR PHYSICAL SAFETY OF A CONSUMER OR ANOTHER INDIVIDUAL AND WHEN THE PROCESSING CANNOT BE MANIFESTLY BASED ON ANOTHER LEGAL BASIS;
9. PREVENT, DETECT, PROTECT AGAINST, INVESTIGATE, PROSECUTE THOSE RESPONSIBLE, OR OTHERWISE RESPOND TO A SECURITY INCIDENT, IDENTITY THEFT, FRAUD, HARASSMENT, MALICIOUS OR DECEPTIVE ACTIVITY, OR ANY OTHER TYPE OF ILLEGAL ACTIVITY;
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# 2024 LAWS OF MARYLAND
(10) PRESERVE THE INTEGRITY OR SECURITY OF SYSTEMS; OR
(11) ASSIST ANOTHER CONTROLLER, PROCESSOR, OR THIRD PARTY WITH AN OBLIGATION UNDER THIS SUBTITLE.
(B) (1) THIS SUBSECTION DOES NOT APPLY TO AN OBLIGATION REQUIRED UNDER § 14–4611 OF THIS SUBTITLE.
(2) AN OBLIGATION IMPOSED ON A CONTROLLER OR PROCESSOR UNDER THIS SUBTITLE MAY NOT RESTRICT A CONTROLLER’S OR PROCESSOR’S ABILITY TO COLLECT, USE, OR RETAIN PERSONAL DATA FOR INTERNAL USE TO:
(I) EFFECTUATE A PRODUCT RECALL;
(II) IDENTIFY AND REPAIR TECHNICAL ERRORS THAT IMPAIR EXISTING OR INTENDED FUNCTIONALITY; OR
(III) PERFORM INTERNAL OPERATIONS THAT ARE:
1. REASONABLY ALIGNED WITH THE EXPECTATIONS OF THE CONSUMER OR CAN BE REASONABLY ANTICIPATED BASED ON THE CONSUMER’S EXISTING RELATIONSHIP WITH THE CONTROLLER; OR
2. OTHERWISE COMPATIBLE WITH PROCESSING DATA IN FURTHERANCE OF:
A. THE PROVISION OF A PRODUCT OR SERVICE SPECIFICALLY REQUESTED BY A CONSUMER; OR
B. THE PERFORMANCE OF A CONTRACT TO WHICH THE CONSUMER IS A PARTY.
(C) (1) AN OBLIGATION IMPOSED ON A CONTROLLER OR A PROCESSOR UNDER THIS SUBTITLE DOES NOT APPLY WHEN COMPLIANCE BY THE CONTROLLER OR PROCESSOR WITH THE SUBTITLE WOULD VIOLATE AN EVIDENTIARY PRIVILEGE UNDER STATE LAW.
(2) NOTHING IN THIS SUBTITLE MAY BE CONSTRUED TO PREVENT A CONTROLLER OR PROCESSOR FROM PROVIDING PERSONAL DATA CONCERNING A CONSUMER TO A PERSON COVERED BY AN EVIDENTIARY PRIVILEGE UNDER STATE LAW AS PART OF A PRIVILEGED COMMUNICATION.
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# WES MOORE, Governor Ch. 455
**(D) (1) A CONTROLLER OR PROCESSOR THAT DISCLOSES PERSONAL DATA TO A PROCESSOR OR A THIRD–PARTY CONTROLLER IN COMPLIANCE WITH THIS SUBTITLE IS NOT IN VIOLATION OF THIS SUBTITLE IF THE PROCESSOR OR THIRD–PARTY CONTROLLER THAT RECEIVES THE PERSONAL DATA VIOLATES THIS SUBTITLE AND:**
**(I) AT THE TIME THE DISCLOSING CONTROLLER OR PROCESSOR DISCLOSED THE PERSONAL DATA, THE DISCLOSING CONTROLLER OR PROCESSOR DID NOT HAVE ACTUAL KNOWLEDGE THAT THE RECEIVING PROCESSOR OR THIRD–PARTY CONTROLLER WOULD VIOLATE THIS SUBTITLE; AND**
**(II) THE DISCLOSING CONTROLLER WAS, AND REMAINED, IN COMPLIANCE WITH ITS OBLIGATIONS AS THE DISCLOSER OF THE PERSONAL DATA.**
**(2) A THIRD–PARTY CONTROLLER OR PROCESSOR THAT RECEIVES PERSONAL DATA FROM A CONTROLLER OR PROCESSOR IN COMPLIANCE WITH THIS SUBTITLE IS NOT IN VIOLATION OF THIS SUBTITLE FOR THE INDEPENDENT MISCONDUCT OF THE CONTROLLER OR PROCESSOR FROM WHICH THE THIRD–PARTY CONTROLLER OR PROCESSOR RECEIVED THE PERSONAL DATA.**
**(E) NOTHING IN THIS SUBTITLE MAY BE CONSTRUED TO:**
**(1) IMPOSE AN OBLIGATION ON A CONTROLLER OR A PROCESSOR THAT ADVERSELY AFFECTS THE RIGHTS OR FREEDOMS OF ANY PERSON, INCLUDING THE RIGHTS OF A PERSON TO FREEDOM OF SPEECH OR FREEDOM OF THE PRESS AS GUARANTEED IN THE FIRST AMENDMENT TO THE U.S. CONSTITUTION; OR**
**(2) APPLY TO A PERSON’S PROCESSING OF PERSONAL DATA DURING THE PERSON’S PERSONAL OR HOUSEHOLD ACTIVITIES.**
**(F) IF A CONTROLLER OR PROCESSOR PROCESSES PERSONAL DATA IN ACCORDANCE WITH AN EXEMPTION UNDER THIS SECTION, THE CONTROLLER OR PROCESSOR SHALL DEMONSTRATE THAT THE PROCESSING:**
**(1) QUALIFIES FOR AN EXEMPTION; AND**
**(2) COMPLIES WITH THE REQUIREMENTS OF SUBSECTION (G) OF THIS SECTION.**
**(G) PERSONAL DATA PROCESSED BY A CONTROLLER OR PROCESSOR IN ACCORDANCE WITH THIS SECTION:**
**(1) SHALL BE SUBJECT TO REASONABLE ADMINISTRATIVE, TECHNICAL, AND PHYSICAL MEASURES TO:**
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# 2024 LAWS OF MARYLAND
(I) PROTECT THE CONFIDENTIALITY, INTEGRITY, AND ACCESSIBILITY OF THE PERSONAL DATA; AND
(II) REDUCE REASONABLY FORESEEABLE RISKS OF HARM TO CONSUMERS RELATING TO THE COLLECTION, USE, OR RETENTION OF PERSONAL DATA; AND
(2) MAY BE PROCESSED TO THE EXTENT THAT THE PROCESSING IS:
(I) REASONABLY NECESSARY AND PROPORTIONATE TO THE PURPOSES LISTED IN THIS SECTION; AND
(II) ADEQUATE, RELEVANT, AND LIMITED TO WHAT IS NECESSARY IN RELATION TO THE SPECIFIC PURPOSES LISTED IN THIS SECTION.
(H) A PERSON THAT PROCESSES PERSONAL DATA FOR A PURPOSE EXPRESSLY IDENTIFIED IN THIS SECTION MAY NOT BE CONSIDERED A CONTROLLER SOLELY BASED ON THE PROCESSING OF PERSONAL DATA.
## 14-4613.
(A) EXCEPT AS PROVIDED IN SUBSECTION (B) OF THIS SECTION, A VIOLATION OF THIS SUBTITLE IS:
(1) AN UNFAIR, ABUSIVE, OR DECEPTIVE TRADE PRACTICE WITHIN THE MEANING OF TITLE 13 OF THIS ARTICLE; AND
(2) SUBJECT TO THE ENFORCEMENT AND PENALTY PROVISIONS CONTAINED IN TITLE 13 OF THIS ARTICLE, EXCEPT FOR § 13-408 OF THIS ARTICLE.
(B) THIS SECTION DOES NOT PREVENT A CONSUMER FROM PURSUING ANY OTHER REMEDY PROVIDED BY LAW.
## 14-4614.
(A) THIS SECTION APPLIES TO AN ENFORCEMENT ACTION UNDER § 14-4613 OF THIS SUBTITLE FOR AN ALLEGED VIOLATION THAT OCCURS ON OR BEFORE APRIL 1, 2027.
(B) BEFORE INITIATING ANY ACTION UNDER § 14-4613 OF THIS SUBTITLE, THE DIVISION MAY ISSUE A NOTICE OF VIOLATION TO THE CONTROLLER OR PROCESSOR IF THE DIVISION DETERMINES THAT A CURE IS POSSIBLE.
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# (C) (1) IF THE DIVISION ISSUES A NOTICE OF VIOLATION UNDER SUBSECTION (B) OF THIS SECTION, THE CONTROLLER OR PROCESSOR SHALL HAVE AT LEAST 60 DAYS TO CURE THE VIOLATION AFTER RECEIPT OF THE NOTICE.
(2) IF THE CONTROLLER OR PROCESSOR FAILS TO CURE THE VIOLATION WITHIN THE TIME PERIOD SPECIFIED BY THE DIVISION, THE DIVISION MAY BRING AN ENFORCEMENT ACTION UNDER § 14–4613 OF THIS SUBTITLE.
# (D) IN DETERMINING WHETHER TO GRANT A CONTROLLER OR PROCESSOR AN OPPORTUNITY TO CURE AN ALLEGED VIOLATION, THE DIVISION MAY CONSIDER THE FOLLOWING FACTORS:
(1) THE NUMBER OF VIOLATIONS;
(2) THE SIZE AND COMPLEXITY OF THE CONTROLLER OR PROCESSOR;
(3) THE NATURE AND EXTENT OF THE CONTROLLER’S OR PROCESSOR’S PROCESSING ACTIVITIES;
(4) THE LIKELIHOOD OF INJURY TO THE PUBLIC;
(5) THE SAFETY OF PERSONS OR PROPERTY;
(6) WHETHER THE ALLEGED VIOLATION WAS LIKELY CAUSED BY A HUMAN OR TECHNICAL ERROR; AND
(7) THE EXTENT TO WHICH THE CONTROLLER OR PROCESSOR HAS VIOLATED THIS SUBTITLE OR SIMILAR LAWS IN THE PAST.
# SECTION 2. AND BE IT FURTHER ENACTED, That § 14–4612 of the Commercial Law Article, as enacted by Section 1 of this Act, shall be construed to apply only prospectively and may not be applied or interpreted to have any effect on or application to any personal data processing activities before April 1, 2025 2026.
# SECTION 3. AND BE IT FURTHER ENACTED, That, if any provision of this Act or the application thereof to any person or circumstance is held invalid for any reason in a court of competent jurisdiction, the invalidity does not affect other provisions or any other application of this Act that can be given effect without the invalid provision or application, and for this purpose the provisions of this Act are declared severable.
# SECTION 4. AND BE IT FURTHER ENACTED, That this Act shall take effect October 1, 2024 2025.
Approved by the Governor, May 9, 2024. |
# COLORADO DEPARTMENT OF LAW
## Consumer Protection Section
### Colorado Privacy Act Rules
#### 4 CCR 904-3
## PART 1 GENERAL APPLICABILITY
### Rule 1.01 BASIS, SPECIFIC STATUTORY AUTHORITY, AND PURPOSE
The rules in this Part 904-3 are developed pursuant to C.R.S. § 6-1-108(1), which grants the Attorney General the authority to promulgate such rules as may be necessary to administer the provisions of the Colorado Consumer Protection Act, and to C.R.S. § 6-1-1313, which gives the Attorney General authority to promulgate Rules for the purpose of carrying out the Colorado Privacy Act and requires the Attorney General to adopt Rules that detail the technical specifications for one or more Universal Opt-Out Mechanisms that clearly communicate a Consumer’s affirmative, freely given, and unambiguous choice to opt out of the Processing of Personal Data for purposes of Targeted Advertising or the Sale of Personal Data pursuant to C.R.S. §§ 6-1-1306(1)(a)(I)(A) or (1)(a)(I)(B).
These rules are promulgated to establish implementation and operational guidelines for the Colorado Privacy Act, and to help ensure that the Colorado Privacy Act is carried out in a way that is consistent with the intent of the General Assembly, as reflected in the legislative declaration at C.R.S. § 6-1-1302.
### Rule 1.02 SEVERABILITY
If any provision of these Colorado Privacy Act Rules, 4 CCR 904-3, is found to be invalid by a court of competent jurisdiction, the remaining provisions of these rules shall remain in full force and effect.
### Rule 1.03 EFFECTIVE DATE
Except for the provisions that have delayed effective dates as stated in these rules or C.R.S. §§ 6-1-1313 et seq., these rules shall become effective July 1, 2023.
### Rule 1.04 EXEMPTIONS
These Colorado Privacy Act Rules, 4 CCR 904-3, are subject to the applicability requirements and exemptions provided in C.R.S. § 6-1-1304.
## PART 2 DEFINITIONS
### Rule 2.01 AUTHORITY AND PURPOSE
A. The statutory authority for the rules in this Part 2 is C.R.S. §§ 6-1-108(1), 6-1-1303, and 6-1-1313. The purpose of these rules is to define certain undefined terms that are used throughout the Colorado Privacy Act, C.R.S. § 6-1-1301, et seq., and these Colorado Privacy Act Rules, 4 CCR 904-3, including but not limited to certain undefined terms that are used in the definitions set forth in C.R.S. § 6-1-1303. The terms defined by this rule and C.R.S. § 6-1-1303 are capitalized where they appear in the rules to let the reader know to refer back to the definitions. When a term is used in a conventional sense, and is not intended to be a defined term, it is not capitalized.
---
# Rule 2.02 DEFINED TERMS
The following definitions of terms, in addition to those set forth in C.R.S. § 6-1-1303, apply to these Colorado Privacy Act Rules, 4 CCR 904-3, promulgated pursuant to the Colorado Privacy Act, unless the context requires otherwise:
**“Authorized Agent”** as referred to in C.R.S. § 6-1-1306(1)(a)(II) means a person or entity authorized by the Consumer to act on the Consumer’s behalf.
**“Biometric Data”** as referred to in C.R.S. § 6-1-1303(24)(b) means Biometric Identifiers that are used or intended to be used, singly or in combination with each other or with other Personal Data, for identification purposes. Unless such data is used for identification purposes, “Biometric Data” does not include (a) a digital or physical photograph, (b) an audio or video recording, or (c) any data generated from a digital or physical photograph or an audio or video recording.
**“Biometric Identifiers”** means data generated by the technological processing, measurement, or analysis of an individual’s biological, physical, or behavioral characteristics that can be Processed for the purpose of uniquely identifying an individual, including but not limited to a fingerprint, a voiceprint, scans or records of eye retinas or irises, facial mapping, facial geometry, facial templates, or other unique biological, physical, or behavioral patterns or characteristics.
**“Bona Fide Loyalty Program”** as referred to in C.R.S. § 1-6-1308(1)(d) is defined as a loyalty, rewards, premium feature, discount, or club card program established for the genuine purpose of providing Bona Fide Loyalty Program Benefits to Consumers that voluntarily participate in that program, such that the primary purpose of Processing Personal Data through the program is solely to provide Bona Fide Loyalty Program Benefits to participating Consumers.
**“Bona Fide Loyalty Program Benefit”** is defined as an offer of superior price, rate, level, quality, or selection of goods or services provided to a Consumer through a Bona Fide Loyalty Program. Such benefits may be provided directly by a Controller or through a Bona Fide Loyalty Program Partner.
**“Bona Fide Loyalty Program Partner”** is defined as a Third Party that provides Bona Fide Loyalty Program Benefits to Consumers through a Controller’s Bona Fide Loyalty Program, either alone or in partnership with the Controller.
**“Commercial product or service”** as referred to in C.R.S. § 6-1-1304(1)(a) means a product or service bought, sold, leased, joined, provided, subscribed to, or delivered in exchange for monetary or other valuable consideration in the course of a Controller’s business, vocation, or occupation.
**“Controller”** is defined as set forth in C.R.S. § 6-1-1303(7), and means a person that, alone or jointly with others, determines the purposes for and means of Processing Personal Data.
**“Data Broker”** is defined as a Controller that knowingly collects and sells to Third Parties the Personal Data of a Consumer with whom the Controller does not have a direct relationship.
**“Data Right” or “Data Rights”** means the Consumer Personal Data rights granted in C.R.S. § 6-1-1306(1).
**“Disability” or “Disabilities”** has the same meaning as set forth in C.R.S. § 24-85-102(2.3).
**“Employee”** means any person, acting as a job applicant to, or performing labor or services for the benefit of an Employer, including contingent and temporary workers and migratory laborers.
---
# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
"Employer" means every person, entity, firm, partnership, association, corporation, migratory field labor contractor or crew leader, receiver, or other officer of court, and any agent or officer thereof, of the above-mentioned classes, employing any person.
"Employment Records" as referred to in C.R.S. § 6-1-1304(2)(k) means the records of an Employee, maintained by the Employer in the context of the Employer-Employee relationship having to do with hiring, promotion, demotion, transfer, lay-off or termination, rates of pay or other terms of compensation, as well as other information maintained because of the Employer-Employee relationship.
"Human Involved Automated Processing" means the automated processing of Personal Data where a human (1) engages in a meaningful consideration of available data used in the Processing or any output of the Processing and (2) has the authority to change or influence the outcome of the Processing.
"Human Reviewed Automated Processing" means the automated processing of Personal Data where a human reviews the automated processing, but the level of human engagement does not rise to the level required for Human Involved Automated Processing. Reviewing the output of the automated processing with no meaningful consideration does not rise to the level of Human Involved Automated Processing.
"Information that a Controller has a reasonable basis to believe the Consumer has lawfully made available to the general public" as referred to in C.R.S. § 6-1-1303(17)(b) means information that a Consumer has intentionally made available to the general public or information that a Consumer has made available under federal or state law, which may include but is not limited to:
1. Personal Data found in a telephone book, a television or radio program, or a national or local news publication;
2. Personal Data that has been intentionally made available by the Consumer through a website or online service where the Consumer has not restricted the information to a specific audience;
3. A visual observation of an individual's physical presence in a public place by another person, not including data collected by a device in the individual's possession; and
4. A disclosure that has been made to the general public as required by federal, state, or local law.
"Intimate Image" means any visual depiction, photograph, film, video, recording, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, that depicts an identified or identifiable person's private parts, or a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect to be afforded privacy.
"Noncommercial Purpose" as referred to in C.R.S. § 6-1-1304(2)(o) includes, but is not limited to, the following activities when conducted by: (a) a state institution of higher education, as defined in C.R.S. § 23-18-102(10), the state, the judicial department of the state, or a county, city and county, or municipality; or (b) a Processor acting on behalf of one or more of the foregoing:
1. Processing activities related to the delivery of services and benefits;
2. Research purposes;
3. Budgeting;
4. Improving operations or the delivery services or benefits;
5. Auditing operations or service or benefit delivery;
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6. Sharing Personal Data between these categories of entities for any of these purposes; or
7. Any other purpose related to speech that state or federal courts have recognized as noncommercial speech, including political speech and journalism.
"Opt-Out Purpose" or "Opt-Out Purposes" means the categories of Personal Data Processing from which the Consumer may opt out pursuant to C.R.S. § 6-1-1306(1)(a).
"Personal Data" is defined as set forth in C.R.S. § 6-1-1303(17), and (a) means information that is linked or reasonably linkable to an identified or identifiable individual; and (b) does not include de-identified data or Publicly Available Information as used in (17)(b).
"Process" or "Processing" is defined as set forth in C.R.S. § 6-1-1303(18), and means the collection, use, sale, storage, disclosure, analysis, deletion, or modification of Personal Data and includes the actions of a Controller directing a Processor to Process Personal Data.
"Processor" is defined as set forth in C.R.S. § 6-1-1303(19), and means a person that Processes Personal Data on behalf of a Controller.
"Profiling" is defined as set forth in C.R.S. § 6-1-1303(20), and means any form of automated processing of personal data to evaluate, analyze, or predict personal aspects concerning an identified or identifiable individual's economic situation, health, personal preferences, interests, reliability, behavior, location, or movements.
"Publicly Available Information" is defined as set forth in C.R.S. § 6-1-1303(17), and does not include:
1. Any Personal Data obtained or processed in in violation of C.R.S. §§ 18-7-107 or 18-7-801;
2. Biometric Data;
3. Genetic Information; or
4. Nonconsensual Intimate Images known to the Controller.
"Revealing" as referred to in C.R.S. § 6-1-1303(24)(a) includes Sensitive Data Inferences. For example:
1. While precise geolocation information at a high level may not be considered Sensitive Data, precise geolocation data which is used to infer an individual visited a mosque and is used to infer that individual's religious beliefs is considered Sensitive Data under C.R.S. § 6-1-1303(24)(a). Similarly, precise geolocation data which is used to infer an individual visited a reproductive health clinic and is used to infer an individual's health condition or sex life is considered Sensitive Data under C.R.S. § 6-1-1303(24)(a).
2. While web browsing data at a high level may not be considered Sensitive Data, web browsing data which, alone or in combination with other Personal Data, infers an individual's sexual orientation is considered Sensitive Data under C.R.S. § 6-1-1303(24)(a).
"Sensitive Data Inference" or "Sensitive Data Inferences" means inferences made by a Controller based on Personal Data, alone or in combination with other data, which are used to indicate an individual's racial or ethnic origin; religious beliefs; mental or physical health condition or diagnosis; sex life or sexual orientation; or citizenship or citizenship status.
---
# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
### 4 CCR 904-3
"Solely Automated Processing" means the automated processing of Personal Data with no human review, oversight, involvement, or intervention.
"Universal Opt-Out Mechanism" or "Universal Opt-Out Mechanisms" means mechanisms that clearly communicate a Consumer’s affirmative, freely given, and unambiguous choice to opt out of the Processing of Personal Data for purposes of Targeted Advertising or the Sale of Personal Data pursuant to C.R.S. § 6-1-1306 (1)(a)(I)(A) or (1)(a)(I)(B), which meets the technical specifications set forth in 4 CCR 904-3, Rule 5.06 pursuant to C.R.S. § 6-1-1313(2).
## PART 3: CONSUMER DISCLOSURES
### Rule 3.01 AUTHORITY AND PURPOSE
A. The statutory authority for the rules in this Part 3 is C.R.S. §§ 6-1-108(1) and 6-1-1313. The purpose of the rules in Part 3 is to ensure that disclosures, notifications, and other communications to Consumers are clear, accessible, and understandable to Consumers so that Consumers can understand and exercise the full scope of their rights under the Colorado Privacy Act, C.R.S. § 6-1-1303, et seq.
### Rule 3.02 REQUIREMENTS FOR DISCLOSURES, NOTIFICATIONS, AND OTHER COMMUNICATIONS TO CONSUMERS
A. Disclosures, notifications, and other communications to Consumers pursuant to 4 CCR 904-3, Rules 4.02, 4.05(D), 5.03, 6.02, 6.05, and 7.04 must be:
1. Designed to be understandable and accessible to a Controller’s target audiences, including considering the vulnerable age characteristics of the audience and paying particular attention to the vulnerabilities of children. For example, they shall use plain, straightforward language and avoid technical or legal jargon.
2. Reasonably accessible to Consumers with Disabilities, including through the use of digital accessibility tools. For notices provided online, the Controller shall follow generally recognized industry standards, such as the Web Content Accessibility Guidelines, version 2.1 of June 5, 2018, from the World Wide Web Consortium, incorporated herein by reference as described at 4 CCR 904-3, Rule 11.02. In other contexts, the Controller shall provide information on how a Consumer with a Disability may access the disclosure or communication or make a request in an alternative format.
3. Available in the languages in which the Controller in its ordinary course provides web pages, interfaces, contracts, disclaimers, sale announcements, and other information to Consumers. Disclosures and communications sent directly to Consumers must be sent in the language in which the Consumer ordinarily interacts with the Controller.
4. Available through a readily accessible interface regularly used in conjunction with the Controller’s product or service.
5. Provided in a readable format on all devices through which Consumers normally or regularly interact with the Controller, including on smaller screens and through mobile applications, if applicable.
6. Unless otherwise stated, communicated in a manner by which the Controller regularly interacts with Consumers.
7. Straightforward and accurate, and must not be written or presented in a way that is unfair, deceptive, false, or misleading.
---
# PART 4 CONSUMER PERSONAL DATA RIGHTS
## Rule 4.01 AUTHORITY AND PURPOSE
A. The statutory authority for the rules in this Part 4 is C.R.S. §§ 6-1-108(1), 6-1-1306, and 6-1-1313. The purpose of the rules in Part 4 is to clarify the scope of Consumer Personal Data rights, and standards for the processes required to facilitate the exercise of those rights.
## Rule 4.02 SUBMITTING REQUESTS TO EXERCISE PERSONAL DATA RIGHTS
A. Pursuant to C.R.S. § 6-1-1306(1), a Controller’s privacy notice must include specific methods through which a Consumer may submit requests to exercise Data Rights.
B. Any method specified by a Controller pursuant to this rule must comply with each of the following:
1. Consider the ways in which Consumers normally interact with the Controller:
a. A Controller that interacts with Consumers exclusively online and has a direct relationship with a Consumer from whom it collects Personal Data shall only be required to provide an email address for submitting access, correction, deletion, or data portability requests.
b. A Controller that does not fall within subsection 4 CCR 904-3, Rule 4.02(B)(1)(a) shall provide two or more designated methods for submitting a Data Rights request. If a Controller maintains a website, mobile application, or other digital presence, one method for submitting requests shall be through its website, mobile application, or digital interface, such as through a webform;
c. If a Controller interacts with Consumers in person, the Controller shall consider providing an in-person method such as a printed form the Consumer can directly submit or send by mail; a tablet or computer portal that allows the Consumer to complete and submit an online form; or a telephone by which the Consumer can call the Controller’s toll-free number.
2. Enable the Consumer to submit the request to the Controller at any time;
3. Comply with requirements for disclosures, notifications, and other communications to Consumers provided in 4 CCR 904-3, Rule 3.02;
4. Use reasonable data security measures, consistent with 4 CCR 904-3, Rule 6.09, when exchanging information in furtherance of Data Rights requests, considering the volume, scope and nature of Personal Data that may be exchanged; and
5. Be easy for Consumers to execute, requiring a minimal number of steps.
C. The Data Rights request method does not have to be specific to Colorado, so long as the request method:
1. Clearly indicates which rights are available to Colorado Consumers;
2. Provides all Data Rights available to Colorado Consumers;
3. Provides Colorado Consumers a clear understanding of how to exercise their rights; and
4. Meets all other requirements of this part, 4 CCR 904-3, Rule 4.02.
---
# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
D. When a Consumer submits a Data Rights request, a Controller may only collect Personal Data through the request process if the Personal Data is reasonably necessary to Authenticate the Consumer, respond to the request, or effectuate the Data Rights request.
E. A Controller must not require a Consumer to create a new user account to exercise their Data Rights request, but may require a Consumer to use an existing password-protected account.
## Rule 4.03 RIGHT TO OPT OUT
A. A Controller shall comply with an opt-out request by:
1. Ceasing to Process the Consumer’s Personal Data for the Opt-Out Purpose(s) as soon as feasibly possible and without undue delay from the date the Controller receives the request, taking into account the size and complexity of the Controller’s businesses and burden of operationalizing the opt-out.
a. If a Controller does not know the identity of a Consumer submitting an online opt-out request, such that the Controller is unable to opt the Consumer out of the Processing of offline or other connected Personal Data, the Controller may request the additional information necessary to do so subject to 4 CCR 904-3, Rules 4.08 and 5.05.
b. If a Consumer submits a request to exercise more than one Data Right and a Controller is able to complete the opt-out request in a more timely manner than other Data Rights requests, the Controller should complete the opt-out request prior to any other Data Rights request.
2. Maintaining a record of the opt-out request and response, in compliance with 4 CCR 904-3, Rule 6.11.
3. Using agreed upon technical, organizational or other measures or processes to instruct its Processors, pursuant to C.R.S. § 6-1-1305(2)(a), to stop Processing the Personal Data as needed to effectuate the Consumer’s opt-out request.
B. To enable a Consumer to exercise the right to opt out of the Opt-Out Purposes provided in C.R.S. § 6-1-1306(1)(a)(I), a Controller must provide the disclosures required by C.R.S. § 6-1-1308(1)(b).
1. A Controller that Sells Personal Data or Processes Personal Data for Targeted Advertising must also provide a clear and conspicuous method for Consumers to exercise the right to opt out of the Processing of Personal Data for each or all of the Opt-Out Purposes, as applicable.
a. The clear, conspicuous method must be provided either directly or through a link, in a clear, conspicuous, and readily accessible location outside the privacy notice.
2. A Controller Processing Personal Data for Profiling in furtherance of a decision that results in the provision or denial of financial or lending services, housing, insurance, education enrollment or opportunity, criminal justice, employment opportunities, healthcare services, or access to essential goods or services, as subject to the opt-out right provided at C.R.S. § 6-1-1306(1)(a)(I), shall provide a clear and conspicuous method for Consumers to exercise the right to opt out of Processing Personal Data for such Profiling at or before the time such Processing occurs.
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# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
### 4 CCR 904-3
3. Any clear and conspicuous method for Consumers to exercise the right to opt out of Processing for the Opt-Out Purposes, provided pursuant to this section, must comply with the requirements of 4 CCR 904-3, Rule 4.02(B). If a link is used, it must take a Consumer directly to the opt-out method and the link text must provide a clear understanding of its purpose, for example “Colorado Opt-Out Rights,” “Personal Data Use Opt-Out,” “Your Opt-Out Rights,” “Your Privacy Choices,” or “Your Colorado Privacy Choices.”
C. An Authorized Agent may exercise a Consumer’s opt-out right on behalf of the Consumer, so long as the Controller is able to, with commercially reasonable effort, Authenticate the identity of the Consumer and the Authorized Agent’s authority to act on the Consumer’s behalf.
D. A Controller may collect the Consumer’s Personal Data necessary to effectuate the Consumer’s opt-out right, pursuant to 4 CCR 904-3, Rule 4.02(D).
### Rule 4.04 RIGHT OF ACCESS
A. A Controller shall comply with an access request by providing the Consumer all the specific pieces of Personal Data it has collected and maintains about the Consumer that are the subject of the request, including without limitation, any Personal Data that the Controller’s Processors obtained from the Controller in providing services to the Controller.
1. Specific pieces of Personal Data include final Profiling decisions, inferences, derivative data, marketing profiles, and other Personal Data created by the Controller which is linked or reasonably linkable to an identified or identifiable individual.
B. Personal Data provided in response to an access request must:
1. Be provided in a form that is concise, transparent and easily intelligible and in an appropriate, commonly used electronic format, depending on the nature of the data;
2. Be available in the language in which the Consumer interacts with the Controller.
3. Avoid incomprehensible internal codes and, if necessary, include explanations that would allow the average Consumer to make an informed decision of whether to exercise deletion, correction, or opt-out rights.
4. Be provided in compliance with the requirements for disclosures, notifications, and other communications, as described in 4 CCR 904-3, Rule 3.02, as applicable.
C. The Controller shall implement and maintain reasonable data security measures, consistent with 4 CCR 904-3, Rule 6.09, in Processing any documentation relating to a Consumer’s access request.
D. A Controller shall not be required to disclose in response to an access request a Consumer’s government-issued identification number, financial account number, health insurance or medical identification number, an account password, security questions and answers, Biometric Data, or Biometric Identifiers. The Controller shall, however, inform the Consumer with sufficient particularity that it has collected that type of information. For example, a Controller shall respond that it collects “unique Biometric Data including a fingerprint scan” without disclosing the actual fingerprint scan data.
E. If a Consumer exercises the right to access their Personal Data in a portable format pursuant to C.R.S. § 6-1-1306(1)(e) and the Controller determines the manner of response would reveal the Controller’s trade secrets, the Controller must still honor the Consumer’s undiminished right of access.
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# Rule 4.05 RIGHT TO CORRECTION
A. Consumers have the right to correct inaccuracies in their Personal Data subject to C.R.S. § 6-1-1306(c).
B. A Controller shall comply with a Consumer’s correction request by correcting the Consumer’s Personal Data in its existing systems, except archive or backup systems. The Controller shall also use agreed upon technical, organizational, or other measures or processes to instruct its Processors, pursuant to C.R.S. § 6-1-1305(2)(a), to make the necessary corrections in their respective systems.
C. If a Controller or Processor stores any Personal Data on archived or backup systems, it may delay compliance with the Consumer’s correction request with respect to an archived or backup system until that system is restored to an active system or is next accessed or used.
D. If a Consumer submits a request to exercise their right to correct Personal Data and the requested correction to that Personal Data could be made by the Consumer through the Consumer’s account settings, a Controller may respond to the Consumer’s request by providing instructions on how the Consumer may correct the Personal Data so long as:
1. The correction process is not unduly burdensome to the Consumer;
2. The instructions meet all requirements of 4 CCR 904-3, Rule 3.02;
3. The Controller’s response is compliant with the timing requirements set forth in C.R.S. § 6-1-1306(2)(a); and
4. The process described in the instructions enable the Consumer to make the specific requested correction.
E. A Controller may require the Consumer to provide documentation if necessary to determine whether the Personal Data, or the Consumer’s requested correction to the Personal Data, is accurate.
1. When requesting documentation, the Controller must provide the Consumer with a meaningful understanding of why the documentation is necessary.
2. Any documentation provided by the Consumer in connection with the Consumer’s right to correction shall only be Processed by the Controller in considering the accuracy of the Consumer’s Personal Data.
3. The Controller shall implement and maintain reasonable data security measures, consistent with 4 CCR 904-3, Rule 6.09, in Processing any documentation relating to the Consumer’s correction request.
4. If the Controller did not receive the Personal Data directly from the Consumer and has no documentation to support the accuracy of the Personal Data, the Consumer’s assertion of inaccuracy shall be sufficient to establish that the Personal Data is inaccurate.
5. A Controller, having exhausted the steps above may decide not to act upon a Consumer’s correction request if the Controller determines that the contested Personal Data is more likely than not accurate.
---
# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
### 4 CCR 904-3
a. If a Controller denies a Consumer’s correction request based on the Controller’s determination that the contested Personal Data is more likely than not accurate, the Controller must describe in documentation required by 4 CCR 904-3, Rule 6.11(A), the Consumer’s requested correction to the Personal Data, any documentation requested from and provided by the Consumer in support of the correction request, and the reason for the Controller’s determination that the Consumer’s documentation was not sufficient to support the Consumer’s position.
### Rule 4.06 RIGHT TO DELETION
A. A Controller shall comply with a Consumer’s deletion request by:
1. Permanently and completely erasing the Personal Data from its existing systems, except archive or backup systems, or de-identifying the Personal Data such that it cannot reasonably be used to infer information about, or otherwise be linked to, an identified or identifiable individual, or a device linked to such an individual, in accordance with C.R.S. § 6-1-1303(11); and
2. Using agreed upon technical, organizational, or other measures, or processes to instruct its Processors pursuant to C.R.S. § 6-1-1305(2)(b) to delete the Consumer’s Personal Data held by the Processors.
B. Notwithstanding 4 CCR 904-3, Rule 4.06(A), a Controller may maintain records of a Consumer’s deletion request consistent with 4 CCR 904-3, Rule 6.11 and as needed to effectuate the deletion request.
C. If a Controller or Processor stores any Personal Data on archived or backup systems, it may delay compliance with the Consumer’s deletion request with respect to an archived or backup system until that system is restored to an active system or is next accessed or used.
D. A Controller that has obtained Personal Data about a Consumer from a source other than the Consumer shall comply with a Consumer’s deletion request with respect to that Personal Data pursuant to C.R.S. § 6-1-1306(d) by (i) retaining a record of the deletion request and the minimum data necessary for the purpose of ensuring the Consumer’s Personal Data remains deleted from the Consumer’s records and not using such retained data for any other purpose, or (ii) opting the Consumer out of the Processing of such Personal Data for any purpose except for those exempted pursuant to the provisions of C.R.S. § 6-1-1304.
E. If a Controller complies with a deletion request by opting the Consumer out of Processing under 4.06(D) or does not opt the Consumer out of some Processing of Personal Data because the Processing purpose is exempted pursuant to the provisions of C.R.S. § 6-1-1304, the Controller shall provide the Consumer with the categories of Personal Data that were not deleted along with any applicable exception. The Controller shall not use the Consumer’s Personal Data retained for any other purpose than provided for by the applicable exception.
### Rule 4.07 RIGHT TO DATA PORTABILITY
A. To comply with a data portability request, a Controller must transfer to a Consumer the Personal Data it has collected and maintains about the Consumer through a secure method in a commonly used electronic format that, to the extent technically feasible, is readily usable and allows the Consumer to transmit the Personal Data to another entity without hindrance.
B. Pursuant to C.R.S. § 6-1-1306(1)(e), a Controller is not required to provide Personal Data to a Consumer in a manner that would disclose the Controller’s trade secrets. When complying with a
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# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
request to access Personal Data in a portable format, Controllers must provide as much data as possible in a portable format without disclosing the trade secret.
1. For example, if sharing both raw or unedited Personal Data along with related inferences or derived Personal Data in an Excel file would reveal a trade secret, the Controller may provide either set of Personal Data in an Excel file, so long as it is clear to the Consumer that the Controller maintains both types of Personal Data.
## Rule 4.08 AUTHENTICATION
A. Pursuant to C.R.S. § 6-1-1306(1), a Controller shall use a commercially reasonable method for authenticating the identity of every Consumer submitting any Data Right request, and the authority of every Authorized Agent submitting an opt-out request on behalf of a Consumer pursuant to C.R.S. § 6-1-1306(1)(a)(II).
1. To determine if an authentication method is commercially reasonable, the Controller shall consider the Data Rights exercised, the type, sensitivity, value, and volume of Personal Data involved, the level of possible harm that improper access or use could cause to the Consumer submitting the Data Right request and the cost of authentication to the Controller. A Controller must avoid methods that place an unreasonable burden on the Consumer submitting a Data Right request, or Authorized Agent submitting an opt-out request on behalf of a Consumer.
B. When possible, a Controller shall avoid requesting additional Personal Data to Authenticate a Consumer unless the Controller cannot Authenticate the Consumer using the Personal Data already maintained by the Controller.
C. Personal Data obtained to Authenticate a Consumer may only be used to Authenticate the Consumer submitting the Data Right request, pursuant to C.R.S. § 6-1-1306(1), or to Authenticate an Authorized Agent’s authority, pursuant C.R.S. § 6-1-1306(1)(a)(II), and must be deleted as soon as practical after Processing the Consumer’s request, except as required by 4 CCR 904-3, Rule 6.11, or as otherwise required.
D. A Controller shall implement reasonable security measures, consistent with 4 CCR 904-3, Rule 6.09, to protect Personal Data exchanged to Authenticate a Consumer or to Authenticate an Authorized Agent’s authority, considering the type, value, sensitivity, and volume of information exchanged and the level of possible harm improper access or use could cause to the Consumer submitting a Data Right request.
E. A Controller shall not require the Consumer or Authorized Agent to pay a fee for authentication. For example, a Controller may not require a Consumer to provide a notarized affidavit for authentication unless the Controller compensates the Consumer for the cost of notarization.
F. If a Controller cannot Authenticate the Consumer submitting a Data Right request using commercially reasonable efforts, the Controller is not required to comply with the Consumer’s request. The Controller shall inform the Consumer that their identity could not be authenticated, provide information on how to remedy any deficiencies, and may request additional Personal Data if reasonably necessary to Authenticate the Consumer.
## Rule 4.09 RESPONDING TO CONSUMER REQUESTS
A. A Controller must respond to a Consumer’s Data Right request in compliance with the timing provisions of C.R.S. § 6-1-1306(2)(a)-(b).
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# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
### 4 CCR 904-3
B. A Controller does not have to comply with an authenticated Consumer request to access, correct, delete, or provide Personal Data in a portable format, to the extent that the Personal Data at issue meets the requirements of the exceptions in C.R.S. § 6-1-1307(1)(b) and 1307(3).
C. If a Controller decides not to act on a Consumer’s Data Right request, the Controller’s response to the Consumer must include the grounds for denial, including but not limited to (1) any conflict with federal or state law; (2) if the Controller relied on an exception to the Colorado Privacy Act found at C.R.S. § 6-1-1304(2), a description of the exception; (3) the Controller’s inability to Authenticate the Consumer’s identity; (4) any factual basis for a Controller’s good-faith claim that compliance is impossible; or (5) any basis for a good-faith, documented belief that the request is fraudulent or abusive.
1. If a Controller denies a Consumer Data Right request based on inability to Authenticate, the Controller must describe in documentation required by 4 CCR 904-3, Rule 6.11 their reasonable efforts to authenticate and why they were unable to do so.
2. A Controller that decides not to act on a Consumer’s request must also provide instructions on how to appeal the Controller’s decision in accordance with C.R.S. § 6-1-1306(3).
D. When a Controller complies with a Consumer’s Personal Data Right request, the Controller shall also use agreed upon technical, organizational, or other measures or processes, to instruct its Processors, pursuant to C.R.S. § 6-1-1305(2)(a), to fulfill requests relating to Personal Data held by the Processors.
E. Controllers must maintain all documentation as required by 4 CCR 904-3, Rule 6.11 of these rules.
F. If a Consumer or Authorized Agent submits a request to opt out of the Processing of a Consumer’s Personal Data for an Opt-Out Purpose in a manner that is not one of the Controller’s opt-out request methods, or submits a Data Right request that is otherwise deficient in a manner unrelated to the Authentication process, the Controller shall either: (1) treat the request as if it had been submitted in accordance with the Controller’s specified request methods, or (2) provide the Consumer or Authorized Agent that submitted the request with information on how to submit the request or remedy any deficiencies in the request.
## PART 5 UNIVERSAL OPT-OUT MECHANISM
### Rule 5.01 AUTHORITY AND PURPOSE
A. The statutory authority for the rules in Part 5 is C.R.S. §§ 6-1-108(1), 6-1-1306, and 6-1-1313. The purpose of this Part 5 is to provide technical and other specifications for Universal Opt-Out Mechanisms.
### Rule 5.02 RIGHTS EXERCISED
A. Consumers may exercise their right to opt out of the Processing of Personal Data concerning the Consumer for purposes of Targeted Advertising or the Sale of Personal Data through a user-selected Universal Opt-Out Mechanism that meets the technical and other specifications provided in this Rule 5.
B. The purpose of a Universal Opt-Out Mechanism is to provide Consumers with a simple and easy-to-use method by which Consumers can automatically exercise their opt-out rights with all Controllers they interact with without having to make individualized requests with each Controller.
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# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
### 4 CCR 904-3
C. A Universal Opt-Out Mechanism may:
1. Express a Consumer’s choice to opt out of the Processing of Personal Data for both the Processing of Personal Data for purposes of Targeted Advertising and Sale of Personal Data; or
2. Express a Consumer’s choice to opt out of the Processing of Personal Data for only one specific purpose, either Targeted Advertising or Sale of Personal Data alone.
### Rule 5.03 NOTICE AND CHOICE FOR UNIVERSAL OPT-OUT MECHANISMS
A. If a platform, developer, or provider provides a Universal Opt-Out Mechanism, that platform, developer, or provider shall make clear to the Consumer, whether in its configuration or disclosures to the public, that the mechanism is meant to allow the Consumer to exercise the right to opt out of the Processing of Personal Data for one specific purpose, either Targeted Advertising or Sale of Personal Data, or both purposes. These notices provided to the Consumer:
1. Shall comply with the requirements for disclosures and communications to Consumers provided in 4 CCR 904-3, Rule 3.02;
2. If applicable, shall state that the Universal Opt-Out Mechanism has been recognized by the Colorado Attorney General;
3. Shall clearly describe any limitations that may be applicable to the mechanism, for example:
a. That the mechanism will allow a consumer to exercise the opt-out right for only one specific purpose, either Targeted Advertising or Sale of Personal Data; or
b. That the mechanism applies only to a single browser or device.
4. Need not be tailored only to Colorado or refer to Colorado or to any other specific provisions of these rules or the Colorado Privacy Act, provided the mechanism meets the requirements of 4 CCR 904-3, Rule 5.03(A)(1)-(3).
a. Example: A platform, developer, or provider discloses that its Universal Opt-Out Mechanism permits consumers to exercise “any and all opt-out rights available to you under state laws,” and complies with the other requirements of this Rule 5.03(A) but makes no mention of Colorado nor recites any section of these rules or the Colorado Privacy Act. These disclosures satisfy the requirements of this Rule 5.03(A).
B. A valid Universal Opt-Out Mechanism must represent the Consumer’s affirmative, freely given, and unambiguous choice to opt out of the Processing of Personal Data for the purposes listed at C.R.S. § 6-1-1306(1)(a)(IV)(A) and (B). Controllers are not obligated to honor Consumer rights requests for purposes other than those listed at C.R.S. § 6-1-1306(1)(a)(IV)(A) and (B) when transmitted through a Universal Opt-Out Mechanism.
C. The platform, developer, or provider that provides a Universal Opt-Out Mechanism is not obligated to authenticate that a user is a Resident of Colorado. The platform, developer, or provider may provide such authentication capabilities if it chooses.
### Rule 5.04 DEFAULT SETTINGS FOR UNIVERSAL OPT-OUT MECHANISMS
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# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
### 4 CCR 904-3
A. To comply with C.R.S. § 6-1-1313(2), a Universal Opt-Out Mechanism may not be the default setting for a tool that comes pre-installed with a device, such as a browser or operating system.
1. Example: An operating system manufacturer bundles a browser pre-installed with every device shipped with the operating system. The browser sends a Universal Opt-Out Mechanism signal by default and never asks the Consumer to enable this setting. The Consumer’s decision to use this browser does not represent the Consumer’s affirmative, freely given, and unambiguous choice to use the Universal Opt-Out Mechanism because it is a default choice. This is so even if the marketing for the operating system touts its privacy protective features.
2. Example: An operating system manufacturer bundles a browser and apps pre-installed with every device shipped with the operating system. The first time a Consumer runs a browser or app, the operating system asks the Consumer specifically and clearly whether they want to opt out of the Sale of their Personal Data using a Universal Opt-Out Mechanism signal when using the browser or app. No choice is pre-selected, meaning the Consumer is forced to decide. The Consumer’s decision to select “yes” to enable the signal to opt out of the Sale of Personal Data represents the Consumer’s affirmative, freely given, and unambiguous choice to use the Universal Opt-Out Mechanism.
B. Notwithstanding 4 CCR 904-3, Rule 5.04(A), a Consumer’s decision to adopt a tool that does not come pre-installed with a device, such as a browser or operating system, but is marketed as a tool that will exercise a user’s rights to opt out of the Processing of Personal Data using a Universal Opt-Out Mechanism, shall be considered the Consumer’s affirmative, freely given, and unambiguous choice to use a Universal Opt-Out Mechanism. The marketing for such a tool may also describe functionality other than the exercise of opt out rights and it need not refer specifically to opt-out rights for this Rule to apply.
1. Example: A browser manufacturer markets its browser as a “privacy friendly” browser, prominently highlighting that the browser sends a Universal Opt-Out Mechanism signal by default. The browser does not come pre-installed with a device or operating system and must be installed by the Consumer. The Consumer’s decision to use this browser represents the Consumer’s affirmative, freely given, and unambiguous choice to use the Universal Opt-Out Mechanism. The Consumer need not be given an explicit choice about whether to use the Universal Opt-Out Mechanism in this example.
### Rule 5.05 PERSONAL DATA USE LIMITATIONS
A. A platform, developer, or provider providing a Universal Opt-Out Mechanism shall not use, disclose, or retain any Personal Data collected from the Consumer in connection with the Consumer’s utilization of the mechanism for any purpose other than sending or processing the opt-out preference. For example, the fact that a particular device sends a Universal Opt-Out Mechanism may not be used as part of a digital fingerprint to later identify that device.
B. When processing a Universal Opt-Out Mechanism, a Controller may not require the collection of additional Personal Data beyond that which is strictly necessary to authenticate a Consumer is a resident of Colorado determine that the mechanism represents a legitimate request to opt out of the Processing of Personal Data as permitted by C.R.S. § 6-1-1306(1)(a)(IV), or comply with the authentication mandates of the law of another jurisdiction specifically regarding universal opt-out mechanisms or signals.
1. Example: The law of a state other than Colorado obligates Controllers to gather specific pieces of information from a user before the Controller honors the use of a Universal Opt-Out Mechanism by that user. This additional information may be gathered while processing a Universal Opt-Out Mechanism, even if is not otherwise “strictly necessary to
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# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
authenticate a Consumer is a resident of Colorado or determine that the mechanism represents a legitimate request".
C. Notwithstanding 4 CCR 904-3, Rule 5.05(B), a Controller may provide the Consumer with an option to provide additional Personal Data only if it will extend the recognition of the Consumer’s use of the Universal Opt-Out Mechanism across platforms, devices, or offline. For example, a Controller may give the Consumer the option to provide their phone number or email address so that the Universal Opt-Out Mechanism or signal can apply to offline Sale of Personal Data or link the Consumer’s opt-out choice across devices. Any information provided by the Consumer for this purpose shall not be used, disclosed, or retained for any purpose other than processing the opt-out request.
D. The Controller shall implement and maintain reasonable data security measures, consistent with 4 CCR 904-3, Rule 6.09, in Processing any Personal Data relating to the Consumer’s use of a Universal Opt-Out Mechanism.
### Rule 5.06 TECHNICAL SPECIFICATION
A. A Universal Opt-Out Mechanism must allow for Consumers to automatically communicate their opt-out choice with multiple Controllers.
1. The Universal Opt-Out Mechanism may communicate a Consumer’s opt-out choice by sending an opt-out signal. The signal must be in a format commonly used and recognized by Controllers. An example would be an HTTP header field or JavaScript object.
B. The Universal Opt-Out Mechanism must allow Consumers to clearly communicate one or more opt-out choices under C.R.S. § 6-1-1306(1)(a)(IV).
1. The Universal Opt-Out Mechanism may allow for a Consumer to opt out of Processing for one or more of the Opt-Out Purposes.
C. The Universal Opt-Out Mechanism must store, Process, and transmit any Consumer Personal Data using reasonable data security measures, consistent with 4 CCR 904-3, Rule 6.09.
D. A Universal Opt-Out Mechanism must not prevent the Controller’s ability to determine:
1. Whether a Consumer is a Resident of the State of Colorado; or
2. That the Universal Opt-Out Mechanism represents a legitimate request to opt out of the Processing of Personal Data.
E. A Universal Opt-Out Mechanism must not unfairly disadvantage any Controller. For example, a Universal Opt-Out Mechanism may not engage in self-dealing benefiting the creator of the Universal Opt-Out Mechanism over other Controllers.
### Rule 5.07 SYSTEM FOR RECOGNIZING UNIVERSAL OPT-OUT MECHANISMS
A. The Colorado Department of Law shall maintain a public list of Universal Opt-Out Mechanisms that have been recognized to meet the standards of this subsection. The initial list shall be released no later than January 1, 2024 and shall be updated periodically.
B. The goal of the public list is to simplify the options facing Controllers, Consumers, and other actors.
C. To be recognized, a Universal Opt-Out Mechanism must at a minimum meet these standards:
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# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
### 4 CCR 904-3
1. Comply with all of the technical and other specifications of Rule 5; and
2. Not create Consumer or Controller confusion about the similarities and differences between Universal Opt-Out Mechanisms on the public list.
D. The Colorado Department of Law may consider additional factors when determining which Universal Opt-Out Mechanisms to recognize. These include but are not limited to:
1. Commercial adoption by Consumers or Controllers;
2. Ease and cost of use, implementation, and detection by Consumers and Controllers;
3. Whether the Universal Opt-Out Mechanism has been approved by a widely recognized, legitimate standards body after broad multistakeholder participation in the standards-making process; and
4. Whether the Universal Opt-Out Mechanism is based on an open system or standard, and whether such standard is free for adoption by device, operating system, browser, and other manufacturers, Controllers, or Consumers without permission or on fair, reasonable, and non-discriminatory terms.
E. The public list shall describe recognized Universal Opt-Out Mechanisms in enough technical detail to permit Controllers to identify them when used by Consumers.
F. The Colorado Department of Law will allow Controllers six (6) months to recognize a Universal Opt-Out Mechanism once that Mechanism is added to the public list.
### Rule 5.08 OBLIGATIONS ON CONTROLLERS
A. Effective July 1, 2024,
1. A Controller that receives an opt-out request through a Universal Opt-Out Mechanism shall treat such as a valid request to opt out of the Processing of Personal Data for purposes of Targeted Advertising, Sale of Personal Data, or both purposes, as indicated by the mechanism, for the associated browser or device, and, if known, for the Consumer.
2. After receiving a valid opt-out request through the use of a Universal Opt-Out Mechanism, a Controller shall continue to treat the browser, device, and Consumer as having exercised opt-out rights until the Consumer Consents to the Sale of Personal Data or Processing of Personal Data for Targeted Advertising, as specified in 4 CCR 904-3, Rule 5.09.
3. A Controller shall be capable of recognizing any Universal Opt-Out Mechanism reflected in the public list maintained by the Colorado Department of Law pursuant to subsection 4 CCR 904-3, Rule 5.07 provided the Controller has had at least six months' notice of the addition of new mechanisms. For example, in the case of a recognized Universal Opt-Out Mechanism sent as a signal, the Controller must listen for the signal.
B. A Controller may also recognize Universal Opt-Out Mechanisms that are not reflected in the public list maintained by the Colorado Department of Law pursuant to subsection 4 CCR 904-3, Rule 5.07.
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C. Notwithstanding 4 CCR 904-3, Rule 5.08(A), a Controller may choose to honor an opt-out request received through a Universal Opt-Out Mechanism prior to July 1, 2024, pursuant to C.R.S. § 6-1-1306(a)(IV)(A).
D. Unless a Controller is Authenticating a Consumer as permitted by C.R.S. § 6-1-1313(2)(f), a Controller may not require a Consumer to login or otherwise Authenticate themself as a condition of recognizing the Consumer’s use of a Universal Opt-Out Mechanism. A Controller may not subject a Consumer to undertake any authentication actions that are unnecessary or unnecessarily burdensome.
E. A Controller may display in a conspicuous manner if it has Processed the Consumer’s opt-out preference signal. For example, the Controller may display on its website “Opt-Out Preference Signal Honored” when a browser, device, or Consumer utilizing a Universal Opt-Out Mechanism visits the website.
F. Pursuant to C.R.S. § 6-1-1313(2)(f), a Controller may authenticate that the user sending an opt-out request through a Universal Opt-Out Mechanism is a Resident of Colorado, but they are not obligated to do so.
# Rule 5.09 CONSENT AFTER UNIVERSAL OPT-OUT
A. A Controller may enable a Consumer to Consent to Processing that the Consumer has opted-out of using a Universal Opt-Out mechanism, so long as the Controller’s request for Consent complies with the Consent requirements provided in C.R.S. § 6-1-1306(1)(a)(IV)(C), and 4 CCR 904-3, Rule 7.05.
B. A Controller shall not interpret the absence of a Universal Opt-Out Mechanism signal after the Consumer previously utilized a Universal Opt-Out Mechanism as Consent to opt back in.
# PART 6 DUTIES OF CONTROLLERS
## Rule 6.01 AUTHORITY AND PURPOSE
A. The statutory authority for the rules in this Part 6 is C.R.S. §§ 6-1-108(1), 6-1-1308, and 6-1-1313. The purpose of the rules in this Part 6 is to provide clarity on the duties of Controllers concerning the Personal Data of Colorado Consumers.
## Rule 6.02 PRIVACY NOTICE PRINCIPLES
A. A privacy notice shall provide Consumers with a meaningful understanding and accurate expectations of how their Personal Data will be Processed. It shall also inform Consumers about their rights under the Colorado Privacy Act and provide any information necessary for Consumers to exercise those rights.
B. A Controller is not required to provide a separate Colorado-specific privacy notice or section of a privacy notice as long as the Controller’s privacy notice meets all requirements of this section and makes clear that Colorado Consumers are entitled to the rights provided by C.R.S. § 6-1-1306.
C. A privacy notice shall comply with all requirements for disclosures and communications to Consumers provided in 4 CCR 904-3, Rule 3.02.
D. A privacy notice must be clear. Information contained in a privacy notice shall be:
1. Concrete and definitive, avoiding abstract or ambivalent terms that may lead to varying interpretations.
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# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
2. Clearly labeled, such that Consumers seeking to understand a Controller’s Processing activities or how to exercise their Data Rights can easily access the section of the privacy notice containing relevant information.
### E. A privacy notice must be easily accessible. A privacy notice must be:
1. Posted online through a conspicuous link using the word “privacy” on the Controller’s website homepage or on a mobile application’s app store page or download page. A Controller that maintains an application on a mobile or other device shall also include a link to the privacy notice in the application’s settings menu.
a. A Controller that does not operate a website shall make the privacy notice conspicuously available to Consumers through a medium regularly used by the Controller to interact with Consumers. For instance, if a Controller interacts with a Consumer offline, an offline version of the privacy notice must be available to the Consumer.
### F. A privacy notice must be specific. The level of specificity in a privacy notice should enable a Consumer to understand, in advance or at the time of the Processing, the scope of the Controller’s Processing operations, such that a Consumer should not be taken by surprise at a later point about Personal Data that has been collected and the ways in which Personal Data has been Processed.
## Rule 6.03 PRIVACY NOTICE CONTENT
### A. A privacy notice must include the following information:
1. A comprehensive description of the Controller’s online and offline Personal Data Processing practices, including but not limited to the following, linked in a way that gives Consumers a meaningful understanding of how each category of their Personal Data will be used when they provide that Personal Data to the Controller for a specified purpose:
a. The categories of Personal Data Processed, including, but not limited to, whether Personal Data of a Child or other Sensitive Data is Processed.
i. Categories shall be described in a level of detail that provides Consumers a meaningful understanding of the type of Personal Data Processed. For example, categories of Personal Data described at a sufficiently granular level of detail include, but are not limited to: “contact information,” “government issued identification numbers,” “payment information,” “information from Cookies,” “data revealing religious affiliation,” and “medical data.”
b. The Processing purpose described in a level of detail that gives Consumers a meaningful understanding of how each category of their Personal Data is used when provided for that Processing purpose.
c. Whether the Personal Data provided for a specific purpose will be sold or used for Targeted Advertising or Profiling in furtherance of Decisions that Produce Legal or Similarly Significant Effects Concerning a Consumer.
d. Categories of Personal Data that the Controller Sells to or shares with Third Parties, if any.
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# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
### 4 CCR 904-3
e. Categories of Third Parties to whom the Controller sells, or with whom the Controller shares Personal Data, if any. Categories of Third Parties must be described in a level of detail that gives Consumers a meaningful understanding of the type of, business model of, or processing conducted by the Third Party.
i. For example, categories of Third Parties described in a sufficiently granular level of detail include, but are not limited to: "analytics companies," "data brokers," "third-party advertisers," "payment processors," "lenders," "other merchants," and "government agencies."
2. If a Controller’s Processing activity involves the Processing of Personal Data for the purpose of Profiling in furtherance of Decisions that Produce Legal or Similarly Significant Effects Concerning a Consumer, all disclosures required by 4 CCR 904-3, Rule 9.03.
3. A list of the Data Rights available.
4. A description of the methods through which a Consumer may submit requests to exercise Data Rights, as required by C.R.S. § 6-1-1306(1) and 4 CCR 904-3, Rule 4.02, including:
a. Instructions on how to use each method.
b. Instructions on how an Authorized Agent may submit a request to opt out of the Processing of Consumer Personal Data on a Consumer’s behalf pursuant to C.R.S. § 6-1-1306(1)(a)(II).
c. A clear and conspicuous method to exercise the right to opt out of the Processing of Personal Data concerning the Consumer pursuant to C.R.S. § 6-1-1306(1)(a)(I) and (1)(a)(III), or links to any online method, such as a webform or portal, consistent with 4 CCR 904-3, Rule 4.03.
d. A description of the commercially reasonable process the Controller uses to Authenticate the identity of a Consumer exercising a Data Right request or to Authenticate the authority of an Authorized Agent exercising the right to opt out on a Consumer’s behalf.
e. Effective July 1, 2024, an explanation of how requests to opt out using Universal Opt-Out Mechanisms will be processed.
5. If a Controller will delete Sensitive Data Inferences within twenty-four (24) hours pursuant to 4 CCR 904-3, Rule 6.10, a description of the Sensitive Data Inferences subject to this provision and the retention and deletion timeline for such Sensitive Data Inferences.
6. A Controller’s contact information.
7. Instructions on how a Consumer may appeal a Controller’s action in response to the Consumer’s request, as contemplated by C.R.S. § 6-1-1306(3).
8. The date the privacy notice was last updated.
### Rule 6.04 CHANGES TO A PRIVACY NOTICE
A. A Controller shall notify Consumers of material changes to a privacy notice. Such changes to a privacy notice shall be communicated to Consumers in a manner by which the Controller regularly interacts with Consumers.
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1. Material changes may include, but are not limited to, changes to: (1) categories of Personal Data Processed; (2) Processing purposes; (3) a Controller’s identity; (4) the act of sharing of Personal Data with Third Parties; (5) categories of Third Parties Personal Data is shared with; or (6) methods by which Consumers can exercise their Data Rights request.
B. If a material change rises to the level of a secondary use, a Controller must obtain Consent from a Consumer pursuant to 4 CCR 904-3, Rules 7.02-7.05 in order to Process Personal Data that was collected before the change to the privacy notice for that Secondary Use.
# Rule 6.05 LOYALTY PROGRAMS
A. Pursuant to 6-1-1308(1)(d), a Controller is not prohibited from offering Bona Fide Loyalty Program Benefits to a Consumer based on the Consumer’s voluntary participation in a Bona Fide Loyalty Program.
B. If a Consumer exercises their right to delete Personal Data such that it is impossible for the Controller to provide a certain Bona Fide Loyalty Program Benefit to the Consumer, the Controller is no longer obligated to provide that Bona Fide Loyalty Benefit to the Consumer. However, the Controller shall provide any available Bona Fide Loyalty Program Benefit for which the deleted Personal Data is not necessary.
C. If a Consumer exercises their right to opt out of the Sale of Personal Data or Processing of Personal Data for Targeted Advertising, such that the exchange of Personal Data needed to obtain a Bona Fide Loyalty Program Benefit through a Bona Fide Loyalty Program Partner is no longer possible, the Controller is no longer obligated to provide that Bona Fide Loyalty Program Benefit.
1. If the Controller’s Bona Fide Loyalty Program offers Bona Fide Loyalty Program Benefits that are unrelated to the exchange of Personal Data with a Bona Fide Loyalty Program Partner, the Controller shall continue to provide those Benefits to a Consumer who opts out of the Sale of Personal Data or Processing of Personal Data for Targeted Advertising.
2. The sale of Personal Data or Processing of Personal Data for Targeted Advertising that is unrelated to sharing of information with a Bona Fide Loyalty Program Partner is a Secondary Use that requires Consent pursuant to 4 CCR 904-3, Rule 6.08.
D. If a Consumer refuses to Consent to the Processing of Sensitive Data necessary for a personalized Bona Fide Loyalty Program Benefit, the Controller is no longer obligated to provide that personalized Bona Fide Loyalty Program Benefit. However, the Controller shall provide any available, non-personalized Bona Fide Loyalty Program Benefit for which the Sensitive Data is not necessary. A Controller may not condition a Consumer’s participation in a Bona Fide Loyalty Program on the Consumer’s Consent to Process Sensitive Data unless the Sensitive Data is required for all Bona Fide Loyalty Program Benefits.
E. If a Consumer’s decision to exercise a Data Right impacts the Consumer’s membership in a Bona Fide Loyalty Program, the Controller shall notify the Consumer of the impact of the Consumer’s decision in conformance with 4 CCR 904-3, Rule 3.02 and at least twenty-four (24) hours before discontinuing the Consumer’s Bona Fide Loyalty Program Benefit or membership, and must provide a reference or link to the information required by subparagraph F, below.
F. Loyalty Program Disclosures
1. In addition to all other disclosures required by 4 CCR 904-3, Rules 6.03 and 7.03, a Controller maintaining a Bona Fide Loyalty Program must provide the following
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# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
### 4 CCR 904-3
disclosures at the point of program registration, either directly, or in the form of a link to the specific section of a privacy notice or terms and conditions containing such information:
a. The categories of Personal Data or Sensitive Data collected through the Bona Fide Loyalty Program that will be Sold or Processed for Targeted Advertising, if any;
b. Categories of Third Parties that will receive the Consumer’s Personal Data and Sensitive Data, provided in the level the detail described in 4 CCR 904-3, Rule 6.03(a)(1)(e), including whether Personal Data will be provided to Data Brokers;
c. A list of any Bona Fide Loyalty Program Partners, and the Bona Fide Loyalty Program Benefits provided by each Bona Fide Loyalty Program Partner.
d. If a Controller claims that a Consumer’s decision to delete Personal Data makes it impossible to provide a Bona Fide Loyalty Program Benefit, then the Controller shall provide an explanation of why the deletion of Personal Data makes it impossible to provide a Bona Fide Loyalty Program Benefit.
e. If a Controller claims that a Consumer’s Sensitive Data is required for a Bona Fide Loyalty Program Benefit, then the Controller shall provide an explanation of why the Sensitive Data is required for a Bona Fide Loyalty Program Benefit.
2. Bona Fide Loyalty Program terms and requests for Consent to Process Sensitive Data or Personal Data in connection with the Bona Fide Loyalty Program shall also include a link to the Controller’s privacy notice.
G. Example: A Consumer joins a grocery store’s Bona Fide Loyalty Program that includes both personalized and non-personalized Bona Fide Loyalty Program Benefits. The grocery store asks the Consumer for Consent to collect Sensitive Data about the Consumer in order to provide personalized Bona Fide Loyalty Program Benefits. When the Consumer refuses Consent, the Controller gives timely notice to the Consumer that it will not provide the personalized Bona Fide Loyalty Program Benefits, but will continue to provide non-personalized Bona Fide Loyalty Program Benefits. Moving forward, the Controller provides only the non-personalized Bona Fide Loyalty Program Benefits following the Consumer’s decision to continue to refuse Consent to the collection of Sensitive Data. The Controller is not acting impermissibly because the grocery store is still providing all available non-personalized Bona Fide Loyalty Program Benefits and did not condition the Consumer’s participation in the Bona Fide Loyalty Program on the Consumers Consent to process Sensitive Data that is not required for personalized Bona Fide Loyalty Program Benefits.
H. Example: A Consumer joins a hotel chain’s Bona Fide Loyalty Program, which provides points that can be applied to obtain discounts for that hotel chain, and for a popular restaurant chain that is not otherwise affiliated with the hotel chain. The restaurant chain requires the hotel chain to provide the Personal Data of each Consumer who wishes to apply the hotel chain’s points to obtain restaurant discounts. When the Consumer opts out of the Sale of Personal Data and Processing of Personal Data for Targeted Advertising, the Controller is unable to provide the required information to the restaurant chain. The Controller may discontinue the Bona Fide Loyalty Program Benefit that allows Consumers to use points for discounts for the restaurant chain. However, the hotel chain must still provide all available Bona Fide Loyalty Benefits to be used at the hotel chain.
I. Example: A Consumer joins a retailer’s Bona Fide Loyalty Program that offers discounts on products based on the Consumer’s purchase history. The retailer wishes to fund the loyalty
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# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
### 4 CCR 904-3
program, in part, by selling the Consumer's purchase history to a Data Broker. The retailer must obtain the Consumer's consent to Sell the Consumer's Personal Data to the Data Broker because selling Personal Data obtained through a Bona Fide Loyalty Program to a Data Broker is a secondary use.
J. Example: A Consumer exercises their right to opt out of the Processing of Personal Data for Targeted Advertising. An online gaming company gives the Consumer fewer free games through the company's service, arguing that the additional free games are for members of its loyalty program, which requires the use of Personal Data for Targeted Advertising. The company's differential treatment is prohibited if the Processing of Personal Data is not necessary to provide the additional games. However, if the free games are provided by a Bona Fide Loyalty Program Partner that requires the Consumer data for Targeted Advertising through a co-marketing agreement with the Controller, the differential treatment may be appropriate.
### Rule 6.06 PURPOSE SPECIFICATION
A. Controllers shall specify the express purposes for which each category of Personal Data is collected and Processed in both external disclosures to Consumers, including privacy notices required by C.R.S. § 6-1-1308(1), as well as in any internal documentation required by this Part 6.
B. The express purpose must be described in a level of detail that gives Consumers a meaningful understanding of how each category of their Personal Data is used when provided for that Processing purpose.
C. If Personal Data is collected and Processed for more than one purpose, Controllers should specify each unrelated purpose with enough detail to allow Consumers to understand each individual, unrelated purpose.
1. Controllers should not identify one broad purpose to justify numerous Processing activities that are only remotely related.
2. Controllers should not specify one broad purpose to cover potential future Processing activities that are only remotely related.
3. Controllers should not specify so many purposes for which Personal Data could potentially be processed to cover potential future processing activities that the purpose becomes unclear or uninformative.
D. If the Processing purpose has evolved beyond the original express purpose such that it becomes a distinct purpose that is no longer reasonably necessary to or compatible with the original express purpose, the Controller must review and update all related disclosures and documentation as necessary.
### Rule 6.07 DATA MINIMIZATION
A. To ensure all Personal Data collected is reasonably necessary for the specified purpose, Controllers shall carefully consider each Processing purpose and determine the minimum Personal Data that is necessary, adequate, or relevant for the express purpose or purposes.
B. Personal Data should only be kept in a form which allows identification of Consumers for as long as is necessary for the express Processing purpose(s). To ensure that the Personal Data are not kept longer than necessary, adequate, or relevant, Controllers shall set specific time limits for erasure or to conduct a periodic review.
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# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
1. Any Personal Data determined to no longer be necessary, adequate, or relevant to the express Processing purpose(s) shall be deleted by the Controller and any Processors that the Controller has shared the Personal Data with.
2. Biometric Identifiers, a digital or physical photograph of a person, an audio or voice recording containing the voice of a person, or any Personal Data generated from a digital or physical photograph or an audio or video recording held by a Controller shall be reviewed at least once a year to determine if its storage is still necessary, adequate, or relevant to the express Processing purpose. Such assessment shall be documented according to 4 CCR 904-3, Rule 6.11.
3. Sensitive Data for which Controllers no longer have consent to Process, should be deleted or otherwise rendered permanently anonymized or inaccessible within a reasonable period of time after withdrawal of Consent.
C. A Controller shall not collect Personal Data other than those disclosed in its required privacy notice. If the Controller intends to collect additional Personal Data the Controller shall revise its privacy notice, and notify Consumers of the change to its privacy notice pursuant to 4 CCR 904-3, Rule 6.04.
### Rule 6.08 SECONDARY USE
A. The specified Processing purpose is the purpose disclosed to Consumers at or before the time the Personal Data is collected or processed from Consumers. Such disclosure shall be included in any required privacy notice or Consent disclosure.
B. Before Processing Personal Data for purposes that are not reasonably necessary to or compatible with specified Processing purpose(s) disclosed on or after July 1, 2023, the Controller must obtain Consent consistent with C.R.S. § 6-1-1308 and 4 CCR 904-3, Rules 7.02-7.05.
C. When considering if the new Processing purpose is reasonably necessary to or compatible with the original specified purpose(s), Controllers may consider the following, as applicable:
1. The reasonable expectation of an average Consumer concerning how their Personal Data would be Processed once it was collected;
2. The link between the original specified purpose(s) for which the data was collected and the purpose(s) of further Processing;
3. The relationship between the Consumer and the Controller and the context in which the Personal Data was collected;
4. The type, nature, and amount of the Personal Data subject to the new Processing purpose;
5. The type and degree of possible consequence or impact to the Consumer of the new Processing purpose;
6. The identity of the entity conducting the new Processing purposes, e.g., the same or different Controller, or a Third Party; and
7. The existence of additional safeguards for the Personal Data, such as encryption or pseudonymization.
### Rule 6.09 DUTY OF CARE
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# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
A. Personal Data must be Processed in a manner that ensures reasonable and appropriate administrative, technical, organizational, and physical safeguards of Personal Data collected, stored, and Processed.
B. When determining reasonable and appropriate safeguards, Controllers should consider:
1. Applicable industry standards and frameworks;
2. The nature, size, and complexity of the Controller’s organization;
3. The sensitivity and amount of Personal Data;
4. The original source of Personal Data;
5. The risk of harm to Consumers resulting from unauthorized or unlawful access, use, or degradation of the Personal Data; and
6. The burden or cost of safeguards to protect Personal Data from harm assessed in 4 CCR 904-3, Rule 6.09(B)(5).
C. Reasonable and appropriate administrative, technical, organizational, and physical safeguards must be designed to:
1. Protect against unauthorized or unlawful access to or use of Personal Data and the equipment used for the Processing and against accidental loss, destruction, or damage;
2. Ensure the confidentiality, integrity, and availability of Personal Data collected, stored, and Processed;
3. Identify and protect against reasonably anticipated threats to security or the integrity of information; and
4. Oversee compliance with data security policies by the Controller and Processors through reasonable requirements.
D. Reasonable and appropriate administrative, technical, organizational, and physical safeguards to secure Personal Data include but are not limited to those measures provided by C.R.S. § 6-1-713.5 and C.R.S. § 24-73-102, as interpreted by state courts and administrative orders.
## Rule 6.10 DUTY REGARDING SENSITIVE DATA
A. Controllers must obtain Consent to Process Sensitive Data, including Sensitive Data Inferences, consistent with C.R.S. § 6-1-1308(7) and 4 CCR 904-3, Rules 7.02-7.05.
B. Controllers may be exempt from obtaining Consent to Process Sensitive Data Inferences from Consumers over the age of thirteen (13) only if:
1. The Processing purpose of such Personal Data would be obvious to a reasonable Consumer based on the context of the collection and use of the Personal Data, and the relationship between the Controller and Consumer;
2. Sensitive Data Inferences are permanently deleted within twenty-four (24) hours of collection or of the completion of the Processing activity, whichever comes first;
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# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
### 4 CCR 904-3
3. Sensitive Data Inferences are not transferred, sold, or shared with any Processors, Affiliates, or Third-Parties; and
4. The Personal Data and any Sensitive Data Inferences are not Processed for any purpose other than the express purpose disclosed to the Consumer.
C. If a Controller will delete Sensitive Data Inferences within twenty-four (24) hours, pursuant to this section, they must (1) include description of the Sensitive Data Inferences subject to this provision and the retention and deletion timeline for such Sensitive Data Inferences in its privacy notice, pursuant to 4 CCR 904-3, Rule 6.03, and (2) include the details of the deletion and verification process in the Controller’s Data Protection Assessment, pursuant to 4 CCR 904-3, Rule 8.04.
## Rule 6.11 DOCUMENTATION CONCERNING DUTIES OF CONTROLLERS
A. Controllers shall maintain records of all Consumer Data Rights requests made pursuant to C.R.S. § 6-1-1306 for at least twenty-four (24) months. Such records shall include, at a minimum, each of the following:
1. The date of request;
2. The Consumer Data Rights request type;
3. The date of the Controller’s response;
4. The nature of the Controller’s response;
5. The basis for the denial of the request if the request is denied in whole or in part; and
6. The existence and resolution of any Consumer appeal to a denied request.
B. Controllers shall maintain a record of all Data Rights requests made pursuant to C.R.S. § 6-1-1306 with which the Controller has previously complied. Such records shall be retained for at least twenty-four (24) months and shall be made available at the completion of a merger, acquisition, bankruptcy, or other transaction in which a Third Party assumes control of Personal Data to ensure any new Controller continues to recognize the Consumer’s previously exercised Data Rights.
C. Controllers shall maintain documents sufficient to demonstrate compliance with 4 CCR 904-3, Rules 6.07, 6.08, and 7.06 for as long as the Processing activity continues, and for at least twenty-four (24) months after the conclusion of Processing activity.
D. Required records shall be maintained in a readable format, appropriate to the sophistication and size of the Controller’s business.
E. The Controller shall implement and maintain reasonable security procedures and practices, consistent with 4 CCR 904-3, Rule 6.09, in maintaining all required records.
F. Personal Data maintained pursuant to this 4 CCR 904-3, Rule 6.11, where that information is not used for any other purpose, shall not be subject to Data Rights requests.
G. Personal Data maintained for required documentation shall not be used for any other purpose except as reasonably necessary for the business to review and modify its processes for compliance with the Colorado Privacy Act, C.R.S. § 6-1-1301, et seq., and these rules. Personal Data maintained for required documentation shall not be shared with any Third Party except as necessary for such purposes.
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# PART 7 CONSENT
## Rule 7.01 AUTHORITY AND PURPOSE
A. The statutory authority for the rules in this Part 7 is C.R.S. §§ 6-1-108(1), 6-1-1303(5), 6-1-1306, 6-1-1308 and 6-1-1313. The purpose of the rules in this Part 7 is to provide clarity on the requirements to obtain Consent when Consent is required under the statute, including the prohibition against obtaining agreement through the use of Dark Patterns.
## Rule 7.02 REQUIRED CONSENT
A. Pursuant to C.R.S. §§ 6-1-1303(5), 6-1-1306(1)(a)(IV)(C), 6-1-1308(4), and 6-1-1308(7), a Controller must obtain valid Consumer Consent prior to:
1. Processing a Consumer’s Sensitive Data;
2. Processing Personal Data concerning a known Child, in which case the Child’s parent or lawful guardian must provide Consent;
3. Selling a Consumer’s Personal Data, Processing a Consumer’s Personal Data for Targeted Advertising, or Profiling in furtherance of Decisions that Produce Legal or Similarly Significant Effects Concerning a Consumer after the Consumer has exercised the right to opt out of the Processing for those purposes; and
4. Processing Personal Data for purposes that are not reasonably necessary or compatible with, the original specified purposes for which the Personal Data are Processed.
B. Controllers may rely upon valid consent obtained prior to July 1, 2023, to continue to Process a Consumer’s previously collected Personal Data, including Sensitive Data, collected before July 1, 2023. Consent obtained before July 1, 2023, shall be considered valid only if it would comply with the requirements set forth in C.R.S. §§ 6-1-1303(5), 6-1-1306(1)(a)(IV)(C), 6-1-1308(4), and 6-1-1308(7) and Part 7 of these rules.
1. Controllers that do not obtain valid Consent prior to July 1, 2023 to continue to use, store, or otherwise Process Sensitive Data collected prior to this date must obtain valid Consent, as required by C.R.S. §§ 6-1-1303(5), 6-1-1306(1)(a)(IV)(C), 6-1-1308(4), and 6-1-1308(7) and Part 7 of these rules, by July 1, 2024 to continue to Process the previously collected Sensitive Data.
2. If a Controller has collected Personal Data prior to July 1, 2023 and the Processing purpose changes after July 1, 2023 such that it is considered a secondary use pursuant to C.R.S. § 6-1-1308(4) and 4 CCR 904-3, Rule 6.08, the Controller must obtain valid Consent, as required by C.R.S. §§ 6-1-1303(5), 6-1-1306(1)(a)(IV)(C), 6-1-1308(4), and 6-1-1308(7) and Part 7 of these rules, at the time the Processing purpose changes to continue to Process the previously collected Personal Data.
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# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
C. Notwithstanding the above, a Controller Processing Sensitive Data Inferences is not required to obtain Consent for the Processing activity if the Processing falls within the requirements of 4 CCR 904-3, Rule 6.10.
## Rule 7.03 REQUIREMENTS FOR VALID CONSENT
A. To be valid, a Consent must meet each of the following elements: (1) it must be obtained through the Consumer's clear, affirmative action; (2) it must be freely given by the Consumer; (3) it must be specific; (4) it must be informed; and (5) it must reflect the Consumer's unambiguous agreement.
B. Consent must be obtained through the Consumer's clear, affirmative action. For purposes of obtaining valid Consent:
1. A “clear, affirmative action” means a Consumer's Consent is communicated through either (a) deliberate and clear conduct, or (b) a statement that clearly indicates their acceptance of the proposed Processing of their Personal Data.
2. A blanketed acceptance of general terms and conditions, silence, inactivity or inaction, pre-ticked boxes, and other negative option opt-out constructions that require intervention from the Consumer to prevent agreement are not clear affirmative actions for the purposes of valid Consent.
C. Consent must be freely given. For purposes of obtaining valid Consent:
1. Consent is freely given when Consumers may refuse Consent without detriment and withdraw Consent easily at any time.
2. Consent is not freely given when:
a. It reflects acceptance of a general or broad terms of use or similar document that contains descriptions of Personal Data Processing along with other, unrelated information;
b. The performance of a contract is dependent on Consent to Process Personal Data that is not necessary to provide the goods or services contemplated by the contract; or
c. The Controller denies goods, services, discounts, or promotions to a Consumer who chooses not to provide Consent, unless:
i. The Personal Data is necessary to the provision of those goods, services, discounts, or promotions, consistent with 4 CCR 904-3, Rule 6.05; or
ii. The Consent is otherwise required in connection with a Consumer's voluntary participation in a Bona Fide Loyalty Program, consistent with the requirements in 4 CCR 904-3, Rule 6.05.
3. Example: An online dating application's terms and conditions tells users that the application will disclose collected Personal Data, including Sensitive Data revealing sexual orientation, with similar applications for advertising purposes. Consent is required for the disclosure of Sensitive Data with similar applications for advertising purposes. Since users cannot accept the required terms and conditions without the opportunity to
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# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
separately provide or withhold Consent for sharing with similar applications, the Consent is not freely given.
### D. Consent must be specific.
1. When Controllers request Consent to Process Personal Data for more than one Processing purpose, and those Processing purposes are not reasonably necessary to or compatible with one another, Consumers must have the ability to separately Consent to each specific purpose.
a. Controllers may request Consent to Process Personal Data for multiple Processing purposes that are not reasonably necessary to or compatible with one another using a single Consent request as long there is also an option for more granular Consent within the same Consent interface.
2. Consent to Process Personal Data for one specific purpose does not constitute valid Consent to Process Personal Data for other purposes that are not reasonably necessary to or compatible with that specific purpose.
3. The Sale of Sensitive Data to one specific party is not necessary to or compatible with the Sale of Sensitive Data to a different party.
a. Example: A cosmetic retailer asks a customer for Consent to use Sensitive Data revealing the customer’s racial origin in order to provide first-party targeted offers to the customer and to Sell the customer’s racial origin information to Data Brokers. This Consent is not specific as there is no opportunity to provide separate Consent for the two separate Processing purposes. Therefore, Consent in this example would not be valid.
b. Example: In the example above, the Controller requests Consent only to Sell Sensitive Data revealing the customer’s racial origin with commercial partners. The Controller lists “Fashion Co. #1” and “Make Up Co. #1” as commercial partners who will receive Sensitive Data. Consent would be deemed valid for only these two Third Parties because their identity was provided to the Consumer at the time that his or her Consent was collected. Consent would not be deemed valid for Selling with another Third Party whose identity has not been provided.
### E. Consent must be informed.
1. When requesting Consent, a Controller must provide the following information, at a minimum:
a. The Controller’s identity;
b. The plain-language reason that Consent is required;
c. The Processing purpose(s) for which Consent is sought;
d. The categories of Personal Data that the Controller shall Process to effectuate the Processing purpose(s);
e. Names of all Third Parties receiving the Sensitive Data through Sale, if applicable;
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# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
### 4 CCR 904-3
f. A description of the Consumer’s right to withdraw Consent for the identified Processing purpose at any time in accordance with 4 CCR 904-3, Rule 7.07 and details of how and where to do so; and
g. Any disclosures required by 4 CCR 904-3, Rules 6.05 and 9.05.
F. Consent may not be obtained using Dark Patterns as defined in C.R.S § 6-1-1309(9) and prohibited by 4 CCR 904-3, Rule 7.09. Pursuant to C.R.S. § 6-1-1303(5)(c) and 4 CCR 904-3, Rule 7.09, any agreement obtained through Dark Patterns is not valid Consent.
### Rule 7.04 REQUESTS FOR CONSENT
A. Controllers shall provide a simple form or mechanism to enable a Consumer to provide Consent when required, including Consent to Processing purposes from which the Consumer has previously opted out. Such a form or mechanism should be easy for a reasonable Consumer to locate and should comply with the other requirements set forth in Part 7 of these rules.
B. Requests for Consent shall be prominent, concise, and separate and distinct from other terms and conditions, and shall comply with all requirements for disclosures and communications to Consumers set forth in 4 CCR 904-3, Rule 3.02.
C. Any Consent request by a Controller must contain the disclosures required by 4 CCR 904-3, Rule 7.03(E)(1) either directly or through a link. Where possible, the request interface itself should contain the disclosures required by 4 CCR 904-3, Rule 7.03(E)(1)(a)-(d). Alternatively, the Controller may provide the Consumer with a link to a webpage containing the required Consent disclosures, provided the request clearly states the title and heading of the webpage section containing the relevant disclosures. If technically feasible, the request method must also link the Consumer directly to the relevant section of the disclosure.
D. Example: A mobile application requests Consent to Process Sensitive Data. The Consent request provides a link to the application’s privacy notice which contains the required Consent disclosures. However, the Consent request does not direct or bring the Consumer to the relevant section of the privacy notice. Consent is not valid because the Consent request does not clearly indicate the title and section where the Consumer can find the required disclosures and did not link the Consumer directly to the relevant section of the privacy notice.
E. Example: Acme Toy Store collects customer email addresses in order to send customers information about product recalls, and maintains those email addresses in a recall email distribution list. Acme Toy Store wants to Sell the recall email distribution list to a Third Party partner to enable that partner to send those customers promotional materials. Acme Toy Store must obtain customer consent prior to Selling the recall email distribution list because Selling the recall email distribution list is not reasonably necessary to or compatible with providing product recall information. Acme Toy Store emails its customers attaching a revised privacy notice disclosing the new Processing purpose and asks customers to Consent to the new privacy notice, but does not state the new purpose in the email, and does not direct customers to the section of the privacy notice disclosing the secondary purpose. Consent is not valid because the email did not contain the required Consent disclosures or direct the customers to a document containing the required Consent disclosures.
1. Example: Under the same circumstances, Acme Toy Store emails its customers on the recall distribution list informing those customers that Consent is required for the Acme Toy Store to Process email addresses for the secondary purpose of Selling the recall distribution list to a Third Party partner to enable that partner to send promotional materials, providing all other required disclosures and including a mechanism that enables the customers to provide Consent and to revoke Consent through the same user
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# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
### 4 CCR 904-3
interface. Consent is valid because the email contained all required Consent disclosures in an acceptable form.
2. Example: Under the same circumstances, Acme Toy Store emails the product recall email distribution list informing those customers that it would like to use their email addresses for the secondary purpose of Selling the recall distribution list to a Third Party partner as contemplated in section B.2.e. of its privacy notice, explains that it cannot use the customers’ email addresses for that secondary purpose without their consent, and requests the customers’ Consent to Process their email address for that secondary purpose. It then provides a link directly to section B.2.e. of its privacy notice which explains that Acme Toy Store Sells customer email addresses, including those Processed for the purpose of product recall notifications, to marketing partners, in addition to all other disclosures. The email provides a Consent mechanism that enables the customers to provide or revoke consent through the same user interface. Consent is valid because the email and linked page together contained all required disclosures, the email provided the specific section of the relevant disclosures, and the link brought the customers directly to the relevant disclosures.
### Rule 7.05 CONSENT AFTER OPT-OUT
A. The Consumer’s decision to Consent to Processing activities from which the Consumer has previously opted-out using either a Universal Opt-Out Mechanism or directly with a particular Controller is subject to the requirements for Consent under 4 CCR 904-3, Rules 7.03 and 7.04.
B. A Controller that wishes to obtain Consent to Process Personal Data for an Opt-Out Purpose after the Consumer has opted out of Processing for that Purpose shall not request Consent using schemes that cause consent fatigue, such as interface demanding cookie banner renewals, frequency requests, cookie walls, pop-ups, or other any other interstitials that degrade or obstruct the Consumer’s experience on the Controller’s web page or application.
1. A Controller may proactively request Consent to Process Personal Data for an Opt-Out Purpose after the Consumer has opted out, by providing a link to a privacy settings page, menu, or similar interface, or comparable offline method, that enables the Consumer to Consent to the Controller Processing the Personal Data for the Opt-Out Purpose, so long as the request for Consent meets all other requirements for valid Consent under this Part 7.
2. If a Controller has a reasonable belief that a Consumer intended to opt back into the Sale of Personal Data or Processing of Personal Data for Targeted Advertising, the Controller may proactively send a link to a privacy settings page or other method to enable the Consumer to Consent to the Controller Processing the Personal Data for the Opt-Out Purpose directly to a Consumer.
C. If a Controller conspicuously displays the status of the Consumer’s opt-out choice on the website pursuant to 4 CCR 904-3, Rule 5.08(E), the link to provide Consent may appear beside or in conjunction with the Consumer’s opt-out status.
D. If a Consumer has opted-out of the Processing of Personal Data for the Opt-Out Purposes, and then initiates a transaction or attempts to use a product or service inconsistent with the request to opt-out, such as signing up for a Bona Fide Loyalty Program that also involves the Sale of Personal Data to a Bona Fide Loyalty Program Partner, the Controller may request the Consumer’s Consent to Process the Consumer’s Personal Data for that purpose, so long as the request for Consent complies with all provisions of 4 CCR 904-3, Rules 7.03 and 7.04.
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# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
### E.
Example: A Consumer opts out of the use of Personal Data for Sale or Targeted Advertising using a Universal Opt-Out Mechanism. The Consumer visits the website of a fashion retailer that routinely shares Consumer Personal Data for Targeted Advertising. The fashion retailer must obtain the Consumer’s consent because the Consumer has already opted out of Processing for that purpose. The fashion retailer’s website displays a pop-up banner seeking Consent to share the Consumer’s Personal Data for Targeted Advertising. This is not a valid request for Consumer Consent because the request is made through a pop-up banner that degrades or obstructs the Consumer’s experience on the Controller’s web page or application.
### F.
Example: A Consumer opts out of the use of Personal Data for Sale or Targeted Advertising using a Universal Opt-Out Mechanism. The Consumer visits a fashion retailer’s website. The fashion retailer’s homepage contains a message at the top of the webpage that displays the Consumer’s opt-out status, stating, “you have opted out of targeted advertising” next to a link that states “Opt-in to Data Use”. The linked webpage also meets all requirements of 4 CCR 904-3, Rules 7.03 and 7.04. Consent pursuant to this request is valid.
### Rule 7.06 CONSENT FOR CHILDREN
#### A.
When a Controller engages in Processing activities involving the collection and Processing of Personal Data from a known Child or operates a website or business directed to Children or has actual knowledge that it is collecting or maintaining Personal Data from a Child, the Controller must obtain Consent from the parent or lawful guardian of that Child before collecting or Processing the Child’s Personal Data.
#### B.
A Controller Processing the Personal Data of a Child must make reasonable efforts to obtain verifiable parental Consent, taking into consideration available technology. Any method to obtain verifiable parental Consent must be reasonably calculated, in light of available technology, to ensure that the person providing Consent is the Child’s parent or lawful guardian.
#### C.
Reasonably calculated methods for determining that a person Consenting to the Processing of a Child’s Personal Data is the parent or lawful guardian of that Child include, but are not limited to:
1. Providing a Consent form to be signed by the parent or guardian under penalty of perjury and returned to the business by postal mail, facsimile, or electronic scan;
2. Requiring a parent or guardian, in connection with a monetary transaction, to use a credit card, debit card, or other online payment system that provides notification of each discrete transaction to the primary account holder;
3. Having a parent or guardian call a toll-free telephone number staffed by trained personnel;
4. Having a parent or guardian connect to trained personnel via videoconference; and
5. Verifying a parent or guardian’s identity by checking a form of government-issued identification against databases of such information, as long as the parent or guardian’s identification is deleted by the business from its records promptly after such verification is complete.
#### D.
Any Personal Data collected for purposes of verifying the identity of a parent or legal guardian may not be used for any reason other than Processing these verifications.
### Rule 7.07 REFUSING OR WITHDRAWING CONSENT
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# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
A. A Consumer shall be able to refuse or revoke Consent as easily and within a similar number of steps as Consent is affirmatively provided.
B. If Consent is obtained through an electronic interface, the Consumer shall be able to refuse or withdraw Consent through the same or similar electronic interface.
C. When using an electronic interface, and when feasible based on the Consumer’s relationship with the Controller, a Controller may allow Consumers to track what Processing activities they have Consented to or opted out of.
D. There shall be no detriment to a Consumer for refusing or withdrawing Consent, consistent with C.R.S. § 6-1-1308(1)(c)(II), and 4 CCR 904-3, Rule 6.05.
1. Notwithstanding 4 CCR 904-3 Rule 7.07(D), if a Consumer refuses to Consent to, or withdraws consent for the Processing of Sensitive Data or Personal Data strictly necessary for a program, product or service, the Controller is no longer obligated to provide that program, product or service.
E. If a Consumer withdraws Consent for a Processing activity, subject to Consent under C.R.S. §§ 6-1-1306(1)(a)(IV)(C), 1308(4), and 1308(7), the Controller shall cease that Processing activity and, in the notice required by C.R.S. § 6-1-1306(2), provide the Consumer instructions on how to exercise the right to deletion, provide a link to exercise the right to deletion, or inform the Consumer that information regarding the right to delete their Personal Data can be found in the Controller’s privacy notice.
## Rule 7.08 REFRESHING CONSENT
A. When a Consumer has not interacted with a Controller in the prior twenty-four (24) months, the Controller must refresh Consent in compliance with all requirements of this Part 7 to:
1. Continue Processing Sensitive Data pursuant to C.R.S. § 6-1-1308(7); or
2. Continue Processing Personal Data for a Secondary Use pursuant to C.R.S § 1308(4), if the Secondary Use involves Profiling for a decision that results in the provision or denial of financial or lending services, housing, insurance, education enrollment or opportunity, criminal justice, employment opportunities, health-care services, or access to essential goods or services.
B. Controllers are not required to refresh Consent under part A of this section where a Consumer has access and ability to update their opt-out preferences at any time through a user-controlled interface.
C. If a Processing purpose materially evolves such that the new purpose becomes a secondary use pursuant to C.R.S. § 6-1-1308(4), the Consumer’s original Consent is no longer valid, and the Controller must obtain new Consent pursuant to Part 7 of these rules.
## Rule 7.09 USER INTERFACE DESIGN, CHOICE ARCHITECTURE, AND DARK PATTERNS
A. The following principles should be considered when designing a user interface or a choice architecture used to obtain Consent when required under C.R.S. §§ 6-1-1303(5), 6-1-1306(1)(a)(IV)(C), 6-1-1308(4), and 6-1-1308(7):
1. Consent choice options should be presented to Consumers in a symmetrical way that does not impose unequal weight or focus on one available choice over another such that a Consumer’s ability to consent is impaired or subverted.
---
# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
### 4 CCR 904-3
a. Example: One choice should not be presented with less prominent size, font, or styling than the other choice. Presenting an “I accept” button in a larger size than the “I do not accept” button would not be considered equal or symmetrical. Presenting an “I do not accept” button in a greyed-out color while the “I accept” button is presented in a bright or obvious color would not be considered equal or symmetrical.
b. Example: If multiple choices are offered to a Consumer, it should be equally easy to accept or reject all options. Presenting the option to “accept all” when offering a Consumer the choice to Consent to the use of Sensitive Data for multiple purposes without an option to “reject all” would not be considered equal or symmetrical.
2. Consent choice options should avoid the use of emotionally manipulative language or visuals to unfairly, fraudulently, or deceptively coerce or steer Consumer choice or Consent.
a. Example: One choice should not be presented in a way that creates unnecessary guilt or shames the user into selecting a specific choice. Presenting the choices “I accept, I want to help endangered species” vs “No, I don’t care about animals” may be considered unfairly emotionally manipulative.
b. Example: The explanation of the choice to Consumers should not include gratuitous information to emotionally manipulate Consumers. Explaining that a mobile application “helps save lives” when asking for Consent to collect Sensitive Data for Targeted Advertising may be considered deceptively emotionally manipulative if the Targeted Advertising is not critical to the lifesaving functionality of the application.
3. A Consumer’s silence or failure to take an affirmative action should not be interpreted as acceptance or Consent.
a. Example: A Consumer closing a pop-up window which requests Consent without first affirmatively selecting the equivalent of an “I accept” button should not be interpreted as Consent.
b. Example: A Consumer navigating forward on a webpage after a Consent choice has been presented without selecting the equivalent of an “I accept” button should not be interpreted as affirmative Consent.
c. Example: A Consumer continuing to use a Smart TV without replying “I accept” or “I consent” in reply to a verbal request for Consent should not be interpreted as affirmative Consent.
4. Consent choice options should not be presented with a preselected or default option.
a. Example: Checkboxes or radio buttons should not be selected automatically when presented to a Consumer.
5. A Consumer should be able to select either Consent choice option within a similar number of steps. A Consumer’s ability to exercise a more privacy-protective option shall not be unduly longer, more difficult, or time-consuming than the path to exercise a less privacy-protective option.
---
# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
### 4 CCR 904-3
a. Example: Consumers should be presented with all choices at the same time. Presenting an "I accept" button next to a "Learn More" button which requires Consumers to take an extra step before they are given the option of an "I do not accept" button could be considered an unnecessary restriction.
b. Example: Describing the choice before Consumers and placing both the "I accept" and "I do not accept" buttons after a "select preferences" button would not be considered an unnecessary restriction.
6. A Consumer’s expected interaction with a website, application, or product should not be unnecessarily interrupted or intruded upon to request Consent.
a. Example: Consumers should not be interrupted multiple times in one visit to a website to Consent if they have declined the Consent choice offered when they arrived at the page.
b. Example: Consumers should not be redirected away from the content or service they are attempting to interact with because they declined the Consent choice offered, unless Consent to process the requested data is strictly necessary to provide the website or application content or experience.
c. Example: Consumers should not be forced to navigate through multiple pop-ups which cover or otherwise disrupt the content or service they are attempting to interact with because they declined the Consent choice offered.
7. Consent choice options should not include misleading statements, omissions, affirmative misstatements, or intentionally confusing language to obtain Consent.
a. Example: Choices should not be driven by a false sense of urgency. A countdown clock displayed next to a Consent choice option which states "time is running out to Consent to this data use and receive a limited discount" where the discount is not actually limited by time or availability would be considered creating a false sense of urgency.
b. Example: Choices should avoid the use of double negatives when describing Consent choice options to Consumers.
c. Example: Consent choice options should not be presented with confusing or unexpected syntax. "Please do not check this box if you wish to Consent to this data use" would be considered confusing syntax.
d. Example: The language used for choice options should logically follow the question presented to the Consumer. Offering the options of "Yes" or "No" to the question "Do you wish to provide or decline Consent for the described purposes" would be considered an illogical choice option. The choice options "provide" and "decline" would be considered to logically follow the same question.
8. The vulnerabilities or unique characteristics of the target audience of a product, service, or website should be considered when deciding how to present Consent choice options.
a. Example: A website or service that primarily interacts with Consumers under the age of 18 should consider the simplicity of the language used to explain the choice options or the way in which cartoon imagery or endorsements might unduly influence their choice.
---
# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
### 4 CCR 904-3
b. Example: A website or service that primarily interacts with the elderly should consider font size and space between buttons to ensure readability and ease of interaction with design elements.
9. User interface design and Consent choice architecture should operate in a substantially similar manner when accessed through digital accessibility tools.
a. Example: If it takes two clicks for a Consumer to Consent through a website, it should take no more than two actions for a Consumer using a digital accessibility tool to complete the same Consent process.
B. In addition to the principles included in this part 4 CCR 904-3, Rule 7.09(A), Controllers may consider statutes, administrative rules, and administrative guidance concerning Dark Patterns from other jurisdictions when evaluating the appropriateness of the user interface or choice architecture used to obtain required Consent.
C. Controllers shall not use an interface design or choice architecture to obtain required Consent that has been designed or manipulated with the substantial effect of subverting or impairing user autonomy, decision making or choice, or unfairly, fraudulently, or deceptively manipulating or coercing a Consumer into providing Consent.
1. The principles outlined in 4 CCR 904-3, Rule 7.09(A) and (B) are factors to be considered when determining if a consent interface design or choice architecture has been designed or manipulated with the substantial effect of subverting or impairing user autonomy, decision making or choice, or unfairly, fraudulently, or deceptively manipulating or coercing a Consumer into providing Consent.
D. Consent obtained in violation of this part 4 CCR 904-3, Rule 7.09(C) may be considered a Dark Pattern, as defined in C.R.S. § 6-1-1303(9).
E. The fact that a design or practice is commonly used is not, alone, enough to demonstrate that any particular design or practice is not a Dark Pattern.
F. Consent obtained through Dark Patterns does not constitute valid Consent in compliance with C.R.S. §§ 6-1-1303, 6-1-1306, and 6-1-1308.
# PART 8 DATA PROTECTION ASSESSMENTS
## Rule 8.01 AUTHORITY AND PURPOSE
A. The statutory authority for the rules in this Part 8 is C.R.S. §§ 6-1-108(1), 6-1-1309, and 6-1-1313. The purpose of the rules in this Part 8 is to provide clarity on the requirements and timing of data protection assessments.
## Rule 8.02 SCOPE
A. A data protection assessment shall be a genuine, thoughtful analysis of each Personal Data Processing activity that presents a heightened risk of harm to a Consumer, pursuant to C.R.S. § 6-1-1309(3), that: 1) identifies and describes the risks to the rights of consumers associated with the processing; 2) documents measures considered and taken to address and offset those risks, including those duties required by C.R.S. § 6-1-1308; 3) contemplates the benefits of the Processing; and 4) demonstrates that the benefits of the Processing outweigh the risks offset by safeguards in place.
---
# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
B. If a Controller conducts a data protection assessment for the purpose of complying with another jurisdiction’s law or regulation, the assessment shall satisfy the requirements established in this section if such data protection assessment is reasonably similar in scope and effect to the data protection assessment that would otherwise be conducted pursuant to this section.
1. If a data protection assessment conducted for the purpose of complying with another jurisdiction’s law or regulation is not similar in scope and effect to a data protection assessment created pursuant to this section, a Controller may submit that assessment with a supplement that contains any additional information required by this jurisdiction.
C. The depth, level of detail, and scope of data protection assessments should take into account the scope of risk presented, the size of the Controller, amount and sensitivity of Personal Data Processed, Personal Data Processing activities subject to the assessment, and complexity of safeguards applied.
D. A “comparable set of Processing operations” that can be addressed by a single data protection assessment pursuant to C.R.S. § 6-1-1309(5) is a set of similar Processing operations including similar activities that present heightened risks of similar harm to a Consumer.
1. Example: The ACME Toy Store chain is considering using in-store paper forms to collect names, mailing addresses, and birthdays from Children that visit their stores, and using that information to mail a coupon and list of age-appropriate toys to each child during the Child’s birth month and every November. ACME uses the same Processors and Processing systems for each category of mailings across all stores. ACME must conduct and document a data protection assessment because it is Processing Personal Data from known Children, which is Sensitive Data. ACME can use the same data protection assessment for the Processing of Personal Data for the birthday mailing and November mailing across all stores because in each case it is collecting the same categories of Personal Data in the same way for the purpose of sending coupons and age-appropriate toy lists to Children.
### Rule 8.03 STAKEHOLDER INVOLVEMENT
A. A data protection assessment shall involve all relevant internal actors from across the Controller’s organizational structure, and where appropriate, relevant external parties, to identify, assess and address the data protection risks.
### Rule 8.04 DATA PROTECTION ASSESSMENT CONTENT
A. At a minimum, a data protection assessment must include the following information:
1. A short summary of the Processing activity;
2. The categories of Personal Data to be Processed and whether they include Sensitive Data, including Personal Data from a known Child as described in C.R.S. § 6-1-1303(24);
3. The context of the Processing activity, including the relationship between the Controller and the Consumers whose Personal Data will be Processed, and the reasonable expectations of those Consumers;
4. The nature and operational elements of the Processing activity. In determining the level of detail and specificity to provide pursuant to this section, the Controller shall consider the type, amount, and sensitivity of Personal Data Processed, the impacts that operational elements will have on the level of risk presented by the Processing activity, and any relevant unique relationships. Relevant operational elements may include:
---
# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
a. Sources of Personal Data;
b. Technology or Processors to be used;
c. Names or categories of Personal Data recipients, including Third Parties, Affiliates, and Processors that will have access to the Personal Data, the processing purpose for which the Personal Data will be provided to those recipients, and categorical compliance processes that the Controller uses to evaluate that type of recipient;
d. Operational details about the Processing, including planned processes for Personal Data collection, use, storage, retention, and sharing;
e. Specific types of Personal Data to be processed.
5. The core purposes of the Processing activity, as well as other benefits of the Processing that may flow, directly and indirectly to the Controller, Consumer, other expected stakeholders, and the public;
6. The sources and nature of risks to the rights of Consumers associated with the Processing activity posed by the Processing activity. The source and nature of the risks may differ based on the processing activity and type of Personal Data processed. Risks to the rights of Consumers that a Controller may consider in a data protection assessment include, for example, risks of:
a. Constitutional harms, such as speech harms or associational harms;
b. Intellectual privacy harms, such as the creation of negative inferences about an individual based on what an individual reads, learns, or debates;
c. Data security harms, such as unauthorized access or adversarial use;
d. Discrimination harms, such as a violation of federal antidiscrimination laws or antidiscrimination laws of any state or political subdivision thereof, or unlawful disparate impact;
e. Unfair, unconscionable, or deceptive treatment;
f. A negative outcome or decision with respect to an individual’s eligibility for a right, privilege, or benefit related to financial or lending services, housing, insurance, education enrollment or opportunity, criminal justice, employment opportunities, health-care services, or access to essential goods or services;
g. Financial injury or economic harm;
h. Physical injury, harassment, or threat to an individual or property;
i. Privacy harms, such as physical or other intrusion upon the solitude or seclusion or the private affairs or concerns of Consumers, stigmatization or reputational injury;
j. Psychological harm, including anxiety, embarrassment, fear, and other mental trauma; or
---
# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
### 4 CCR 904-3
k. Other detrimental or negative consequences that affect an individual’s private life, private affairs, private family matters or similar concerns, including actions and communications within an individual’s home or similar physical, online, or digital location, where an individual has a reasonable expectation that Personal Data or other data will not be collected, observed, or used.
7. Measures and safeguards the Controller will employ to reduce the risks identified by the Controller pursuant to 4 CCR 904-3, Rule 8.04(A)(6). Measures shall include the following, as applicable:
a. The use of De-identified Data;
b. Measures taken pursuant to the Controller duties in C.R.S. § 6-1-1308, including an overview of data security practices the Controller has implemented, any data security assessments that have been completed pursuant to C.R.S. § 6-1-1308(5), and any measures taken to comply with the consent requirements of 4 CCR 904-3, Rule 7; and
c. Measures taken to ensure that Consumers have access to the rights provided in C.R.S. § 6-1-1306.
8. A description of how the benefits of the Processing outweigh the risks identified pursuant to 4 CCR 904-3, Rule 8.04(A)(6), as mitigated by the safeguards identified pursuant to 4 CCR 904-3, Rule 8.04(A)(7).
a. Contractual agreements in place to ensure that Personal Data in the possession of a Processor or other Third Party remains secure; or
b. Any other practices, policies, or trainings intended to mitigate Processing risks.
9. If a Controller is Processing Personal Data for Profiling as contemplated in C.R.S. § 6-1-1309(2)(a), a data protection assessment of that Processing activity must also comply with 4 CCR 904-3, Rule 9.06;
10. If a Controller is Processing Sensitive Data pursuant to the exception in section 4 CCR 904-3, Rule 6.10, the details of the process implemented to ensure that Personal Data and Sensitive Data Inferences are not transferred and are deleted within twenty-four (24) hours of the Personal Data Processing activity;
11. Relevant internal actors and external parties contributing to the data protection assessment;
12. Any internal or external audit conducted in relation to the data protection assessment, including, the name of the auditor, the names and positions of individuals involved in the review process, and the details of the audit process; and
13. Dates the data protection assessment was reviewed and approved, and names, positions, and signatures of the individuals responsible for the review and approval.
## Rule 8.05 TIMING
A. A Controller shall conduct and document a data protection assessment before initiating a Processing activity that Presents a Heightened Risk of Harm to a Consumer, as defined at C.R.S. § 6-1-1309(2).
---
# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
### 4 CCR 904-3
B. A Controller shall review and update the data protection assessment as often as appropriate considering the type, amount, and sensitivity of Personal Data Processed and level of risk presented by the Processing, throughout the Processing activity's lifecycle in order to: 1) monitor for harm caused by the Processing and adjust safeguards accordingly; and 2) ensure that data protection and privacy are considered as the Controller makes new decisions with respect to the Processing.
C. Data protection assessments containing Processing for Profiling in furtherance of Decisions that Produce Legal or Similarly Significant Effects Concerning a Consumer shall be reviewed and updated at least annually, and include an updated evaluation for fairness and disparate impact and the results of any such evaluation.
D. A new data Processing activity is generated when existing Processing activities are modified in a way that materially changes the level of risk presented. When a new data Processing activity is generated, a data protection assessment must reflect changes to the pre-existing activity and additional considerations and safeguards to offset the new risk level.
1. Modifications that may materially change the level of risk of a Processing activity may include, without limitation, changes to any of the following:
a. The way that existing systems or Processes handle Personal Data;
b. Processing purpose;
c. Personal Data Processed or sources of Personal Data;
d. Method of collection of Personal Data;
e. Personal Data recipients;
f. Processor roles or Processors;
g. Algorithm applied or algorithmic result; or
h. Software or other systems used for Processing.
E. Data protection assessments, including prior versions which have been revised when a new data Processing activity is generated, shall be stored for as long as the Processing activity continues, and for at least three (3) years after the conclusion of the Processing activity. Data protection assessments shall be held in an electronic, transferable form.
F. Data protection assessments shall be required for activities created or generated after July 1, 2023. This requirement is not retroactive.
### Rule 8.06 ATTORNEY GENERAL REQUESTS
A. A Controller shall make the data protection assessment available to the Attorney General within thirty (30) days of the Attorney General’s request.
## PART 9 PROFILING
### Rule 9.01 AUTHORITY AND PURPOSE
---
# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
A. The statutory authority for the rules in this Part 9 is C.R.S. §§ 6-1-108(1), 6-1-1302(1)(c)(II)(B), 6-1-1303, 6-1-1306, 6-1-1309, and 6-1-1313. The purpose of the rules in this Part 9 is to provide clarity on the duties and rights related to Profiling.
### Rule 9.02 SCOPE
A. Controllers have an affirmative obligation to provide clear, understandable, and transparent information to Consumers about how their Personal Data is used, including for Profiling, pursuant to C.R.S. § 6-1-1302(1)(c)(II)(B).
B. Consumers have the right to opt out of Profiling as defined in C.R.S. § 6-1-1303(20) and 4 CCR 904-3, Rule 2.02 when the Profiling is done in furtherance of a decision that results in the provision or denial of financial or lending services, housing, insurance, education enrollment or opportunity, criminal justice, employment opportunities, health-care services, or access to essential goods or services, pursuant to C.R.S. §§ 6-1-1306(1)(a)(I).
C. Controllers must conduct and document a data protection assessment compliant with C.R.S. § 6-1-1309 and Parts 8 and 9 of these rules before Processing Personal Data for Profiling that presents specific, reasonably foreseeable risks contemplated in C.R.S. § 6-1-1309(2)(a).
### Rule 9.03 PROFILING OPT-OUT TRANSPARENCY
A. To ensure that Consumers understand how their Personal Data is used for Profiling in furtherance of Decisions that Produce Legal or Other Similarly Significant Effects Concerning a Consumer, Controllers that Process Personal Data for Profiling for a decision that results in the provision or denial of financial or lending services, housing, insurance, education enrollment or opportunity, criminal justice, employment opportunities, health-care services, or access to essential goods or services and subject to C.R.S. § 6-1-1306(1)(a)(I) shall provide clear, understandable, and transparent information to Consumers in the required privacy notice, including at a minimum:
1. What decision(s) is (are) subject to Profiling;
2. The categories of Personal Data that were or will be Processed as part of the Profiling in Furtherance of Decisions that Produce Legal or Other Similarly Significant Effects;
3. A non-technical, plain language explanation of the logic used in the Profiling process;
4. A non-technical, plain language explanation of how Profiling is used in the decision-making process, including the role of human involvement, if any;
5. If the system has been evaluated for accuracy, fairness, or bias, including the impact of the use of Sensitive Data, and the outcome of any such evaluation;
6. The benefits and potential consequences of the decision based on the Profiling; and
7. Information about how a Consumer may exercise the right to opt out of the Processing of Personal Data concerning the Consumer for Profiling in Furtherance of Decisions that Produce Legal or Other Similarly Significant Effects.
B. Notwithstanding the requirements in 4 CCR 904-3, Rule 9.03(A), nothing in 4 CCR 904-3, Rule 9.03 shall be construed as requiring the Controller to provide information to a Consumer in a manner that would disclose the Controller’s trade secrets.
---
# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
### Rule 9.04 OPTING OUT OF PROFILING IN FURTHERANCE OF DECISIONS THAT PRODUCE LEGAL OR SIMILARLY SIGNIFICANT EFFECTS CONCERNING A CONSUMER
A. Consumers have the right to opt out of Profiling in furtherance of Decisions that Produce Legal or other Similarly Significant Effects Concerning a Consumer through the method specified by the Controller in the required privacy notice, pursuant to C.R.S. § 6-1-1306(1)(a) and 4 CCR 904-3, Rule 4.03.
B. Requests to opt out of Profiling in furtherance of Decisions that Produce Legal or other Similarly Significant Effects Concerning a Consumer based on Solely Automated Processing or Human Reviewed Automated Processing shall be honored pursuant to C.R.S. § 6-1-1306(2).
C. A Controller may decide not to take action on a request to opt out of Profiling in furtherance of Decisions that Produce Legal or other Similarly Significant Effects Concerning a Consumer if the Profiling used is based on Human Involved Automated Processing. If a Controller does not take action based on this reason, the Controller shall inform the Consumer pursuant to C.R.S. § 6-1-1306(2)(b) and include the following information, or share a link to such information if it is included in the Controller’s privacy notice:
1. The decision subject to the Profiling;
2. The categories of Personal Data that were or will be used as part of the Profiling used in Furtherance of Decisions that Produce Legal or Other Similarly Significant Effects;
3. A non-technical, plain language explanation of the logic used in the Profiling process;
4. A non-technical, plain language explanation of the role of meaningful human involvement in Profiling and the decision-making process;
5. How Profiling is used in the decision-making process;
6. The benefits and potential consequences of the decision based on the Profiling; and
7. An explanation of how Consumers can correct or delete the Personal Data used in the Profiling used in the decision-making process.
D. In order to ensure that Consumers have an opportunity to exercise their right to opt out of Profiling in furtherance of Decisions that Produce Legal or Other Similarly Significant Effects Concerning a Consumer, Controllers that Process Personal Data for Profiling covered by C.R.S. §§ 6-1-1303(10) and 6-1-1306(1)(a)(I) shall provide a method to exercise the right to opt out of Profiling in furtherance of Decision that Produce Legal or Other similarly Significant Effects Concerning a Consumer clearly and conspicuously at or before the time such Processing occurs.
E. Notwithstanding the requirements in 4 CCR 904-3, Rule 9.04(C), nothing in 4 CCR 904-3, Rule 9.04 shall be construed as requiring the Controller to provide information to a Consumer in a manner that would disclose the Controller’s trade secrets.
### Rule 9.05 CONSENT FOR PROFILING IN FURTHERANCE OF DECISIONS THAT PRODUCE LEGAL OR SIMILARLY SIGNIFICANT EFFECTS CONCERNING A CONSUMER
A. When a Consumer has opted out of Profiling in furtherance of Decisions that Produce Legal or Similarly Significant Effects Concerning a Consumer as defined by C.R.S. § 6-1-1303(10), the Controller may request that a Consumer provide Consent after opting out subject to 4 CCR 904-3, Rule 7.05.
---
# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
### 4 CCR 904-3
B. If a Controller decides to begin Processing Personal Data for Profiling in furtherance of Decisions that Produce Legal or Similarly Significant Effects Concerning a Consumer and such Processing is not reasonably necessary to or compatible with the original specified purposes for which the Personal Data was Processed, the Controller shall request the Consumer provide Consent prior to such processing, subject to C.R.S. § 6-1-1308(4) and Part 7 of these rules.
C. Any request for Consent to Profiling in furtherance of Decisions that Produce Legal or Similarly Significant Effects Concerning a Consumer must include meaningful information about the Profiling that allows a Consumer to make an informed, freely given, and specific choice, including, at a minimum:
1. The decision subject to the Profiling;
2. The categories of Personal Data used in the Profiling;
3. A non-technical, plain language explanation of the logic used in the Profiling, or a link to such information if it is included in the Controller’s privacy notice;
4. How Profiling is used in the decision-making process, including the role of human involvement, if any;
5. Why the Profiling is relevant to the decision-making process;
6. Potential benefits and consequences of the decision based on the Profiling; and
7. Any applicable links to where Consumers can find any additional information about the Profiling and decision-making process and their associated rights.
D. Notwithstanding the requirements in 4 CCR 904-3, Rule 9.05(C), nothing in 4 CCR 904-3, Rule 9.05 shall be constructed as requiring the Controller to provide information to a Consumer in a manner that would disclose the Controller’s trade secrets.
### Rule 9.06 DATA PROTECTION ASSESSMENTS FOR PROFILING
A. Controllers must conduct and document a data protection assessment compliant with C.R.S. § 6-1-1309 and 4 CCR 904-3, Part 8 before Processing Personal Data for Profiling if the Profiling presents a reasonably foreseeable risk of:
1. Unfair or deceptive treatment of, or unlawful disparate impact on Consumers;
2. Financial or physical injury to Consumers;
3. A physical or other intrusion upon the solitude or seclusion, or private affairs or concerns, of Consumers if the intrusion would be offensive to a reasonable person; or
4. Other substantial injury to Consumers.
B. Profiling under C.R.S. § 6-1-1309(2)(a) and covered by required data protection assessment obligations includes Profiling using Solely Automated Processing, Human Reviewed Automated Processing, and Human Involved Automated Processing.
C. “Unfair or deceptive treatment” as used in C.R.S. § 6-1-1309 and 4 CCR 904-3, Rule 9.06 includes conduct or activity which violates state or federal laws that prohibit unfair and deceptive commercial practices.
---
# CODE OF COLORADO REGULATIONS
## Department of Law – Consumer Protection
### 4 CCR 904-3
D. "Unlawful disparate impact" as used in C.R.S. § 6-1-1309 and 4 CCR 904-3, Rule 9.06 includes conduct or activity which violates state or federal laws that prohibit unlawful discrimination against Consumers.
E. Controllers should consider both the type and degree of potential harm to Consumers when determining if Profiling presents a reasonably foreseeable risk of "other substantial injury" to Consumers as used in C.R.S. § 6-1-1309 and 4 CCR 904-3, Rule 9.06(A). For example, a small harm to a large number of Consumers may constitute "other substantial injury".
F. If a Controller is Processing Personal Data for Profiling under C.R.S. § 6-1-1309(2)(a), a data protection assessment of that Processing activity must include the elements listed at 4 CCR 904-3, Rule 8.04 as well as each of the following as applicable to the assessed reasonably foreseeable risk:
1. The specific types of Personal Data that were or will be used in the Profiling or decision-making process;
2. The decision to be made using Profiling;
3. The benefits of automated processing over manual processing for the stated purpose;
4. A plain language explanation of why the Profiling directly and reasonably relates to the Controller's goods and services;
5. An explanation of the training data and logic used to create the Profiling system, including any statistics used in the analysis, either created by the Controller or provided by a Third Party which created the applicable Profiling system or software;
6. If the Profiling is conducted by Third Party software purchased by the Controller, the name of the software and copies of any internal or external evaluations sufficient to show the accuracy and reliability of the software where relevant to the risks described in C.R.S. § 6-1-1309(2)(a)(I)-(IV);
7. A plain language description of the outputs secured from the Profiling process;
8. A plain language description of how the outputs from the Profiling process are or will be used, including whether and how they are used to make a decision to provide or deny or substantially contribute to the provision or denial of financial or lending services, housing, insurance, education, enrollment or opportunity, criminal justice, employment opportunities, health-care services, or access to essential goods or services;
9. If there is human involvement in the Profiling process, the degree and details of any human involvement;
10. How the Profiling system is evaluated for fairness and disparate impact, and the results of any such evaluation;
11. Safeguards used to reduce the risk of harms identified; and
12. Safeguards for any data sets produced by or derived from the Profiling.
G. If a Controller conducts a data protection assessment which includes an assessment of relevant Profiling for the purpose of complying with another jurisdiction's law or regulation, the assessment shall satisfy the requirements established in this section if such data protection assessment is reasonably similar in scope and effect to the data protection assessment that would otherwise be
---
# PART 10 ENFORCEMENT
## Rule 10.01 AUTHORITY AND PURPOSE
A. The statutory authority for the rules in this Part 10 is C.R.S. §§ 6-1-1310 and 6-1-1311. The purpose of the rules in this Part 10 is to clarify enforcement considerations related to the Colorado Privacy Act, C.R.S. § 6-1-1303, et seq., and these Colorado Privacy Act Rules, 4 CCR 904-3.
## Rule 10.02 ENFORCEMENT CONSIDERATIONS
A. Nothing in the Colorado Privacy Act, C.R.S. § 6-1-1303, et seq., or these Colorado Privacy Act Rules, 4 CCR 904-3, provides the Colorado Attorney General or District Attorney, as applicable, with enforcement powers that would infringe upon rights protected by the United States Constitution or Colorado Constitution, including the right to freedom of speech or freedom of the press.
# PART 11 MATERIALS INCORPORATED BY REFERENCE
## Rule 11.01 AUTHORITY AND PURPOSE
A. The statutory authority for the rules in this Part 10 is C.R.S. §§ 6-1-108(1) and 6-1-1313. The purpose of the rules in this Part 11 is to incorporate by reference the guidelines that are referred to in 4 CCR 904-3, Rule 3.02(A)(2).
## Rule 11.02 WEB CONTENT ACCESSIBILITY GUIDELINES
A. The Web Content Accessibility Guidelines, version 2.1 of June 5, 2018, from the World Wide Web Consortium, are hereby incorporated into 4 CCR 904-3, Rule 3.02(A)(2) by reference pursuant to C.R.S. § 24-4-103(12.5), and do not include any later amendments.
B. Copies of the Web Content Accessibility Guidelines that are incorporated by reference into these rules may be obtained by sending a written request to the following address by U.S. mail:
```
Colorado Department of Law
Ralph L. Carr Judicial Center
1300 Broadway, 9th Floor
Denver, CO 80203
```
C. The Web Content Accessibility Guidelines published by the World Wide Web Consortium incorporated by reference into these rules are available at no cost in an electronic form online at [https://www.w3.org/TR/WCAG21/](https://www.w3.org/TR/WCAG21/).
D. The Colorado Department of Law also maintains a copy of the Web Content Accessibility Guidelines that are incorporated by reference into these rules that is available for public inspection at the Colorado Department of Law's office during regular business hours. |
# An Act
## SENATE BILL 21-190
**BY SENATOR(S) Rodriguez and Lundeen, Bridges, Buckner, Coleman, Cooke, Danielson, Donovan, Fenberg, Gardner, Ginal, Gonzales, Hansen, Hisey, Holbert, Jaquez Lewis, Kirkmeyer, Kolker, Lee, Liston, Moreno, Pettersen, Priola, Rankin, Scott, Simpson, Sonnenberg, Story, Winter, Woodward, Garcia;
also REPRESENTATIVE(S) Duran and Carver, Bernett, Bird, Cutter, Exum, Gonzales-Gutierrez, Gray, Herod, Jodeh, Lynch, McCluskie, McCormick, Mullica, Ricks, Snyder, Titone, Valdez A., Woodrow.**
**CONCERNING ADDITIONAL PROTECTION OF DATA RELATING TO PERSONAL PRIVACY.**
*Be it enacted by the General Assembly of the State of Colorado:*
### SECTION 1.
In Colorado Revised Statutes, **add** part 13 to article 1 of title 6 as follows:
#### PART 13
#### COLORADO PRIVACY ACT
**6-1-1301. Short title.** THE SHORT TITLE OF THIS PART 13 IS THE "COLORADO PRIVACY ACT".
*Capital letters or bold & italic numbers indicate new material added to existing law; dashes through words or numbers indicate deletions from existing law and such material is not part of the act.*
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# 6-1-1302. Legislative declaration.
(1) THE GENERAL ASSEMBLY HEREBY:
## (a) FINDS THAT:
(I) THE PEOPLE OF COLORADO REGARD THEIR PRIVACY AS A FUNDAMENTAL RIGHT AND AN ESSENTIAL ELEMENT OF THEIR INDIVIDUAL FREEDOM;
(II) COLORADO'S CONSTITUTION EXPLICITLY PROVIDES THE RIGHT TO PRIVACY UNDER SECTION 7 OF ARTICLE II, AND FUNDAMENTAL PRIVACY RIGHTS HAVE LONG BEEN, AND CONTINUE TO BE, INTEGRAL TO PROTECTING COLORADANS AND TO SAFEGUARDING OUR DEMOCRATIC REPUBLIC;
(III) ONGOING ADVANCES IN TECHNOLOGY HAVE PRODUCED EXPONENTIAL GROWTH IN THE VOLUME AND VARIETY OF PERSONAL DATA BEING GENERATED, COLLECTED, STORED, AND ANALYZED AND THESE ADVANCES PRESENT BOTH PROMISE AND POTENTIAL PERIL;
(IV) THE ABILITY TO HARNESS AND USE DATA IN POSITIVE WAYS IS DRIVING INNOVATION AND BRINGS BENEFICIAL TECHNOLOGIES TO SOCIETY, BUT IT HAS ALSO CREATED RISKS TO PRIVACY AND FREEDOM; AND
(V) THE UNAUTHORIZED DISCLOSURE OF PERSONAL INFORMATION AND LOSS OF PRIVACY CAN HAVE DEVASTATING IMPACTS RANGING FROM FINANCIAL FRAUD, IDENTITY THEFT, AND UNNECESSARY COSTS IN PERSONAL TIME AND FINANCES TO DESTRUCTION OF PROPERTY, HARASSMENT, REPUTATIONAL DAMAGE, EMOTIONAL DISTRESS, AND PHYSICAL HARM;
## (b) DETERMINES THAT:
(I) TECHNOLOGICAL INNOVATION AND NEW USES OF DATA CAN HELP SOLVE SOCIETAL PROBLEMS AND IMPROVE LIVES, AND IT IS POSSIBLE TO BUILD A WORLD WHERE TECHNOLOGICAL INNOVATION AND PRIVACY CAN COEXIST; AND
(II) STATES ACROSS THE UNITED STATES ARE LOOKING TO THIS PART 13 AND SIMILAR MODELS TO ENACT STATE-BASED DATA PRIVACY REQUIREMENTS AND TO EXERCISE THE LEADERSHIP THAT IS LACKING AT THE
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# NATIONAL LEVEL; AND
(c) DECLARES THAT:
(I) BY ENACTING THIS PART 13, COLORADO WILL BE AMONG THE STATES THAT EMPOWER CONSUMERS TO PROTECT THEIR PRIVACY AND REQUIRE COMPANIES TO BE RESPONSIBLE CUSTODIANS OF DATA AS THEY CONTINUE TO INNOVATE;
(II) THIS PART 13 ADDRESSES ISSUES OF STATEWIDE CONCERN AND:
(A) PROVIDES CONSUMERS THE RIGHT TO ACCESS, CORRECT, AND DELETE PERSONAL DATA AND THE RIGHT TO OPT OUT NOT ONLY OF THE SALE OF PERSONAL DATA BUT ALSO OF THE COLLECTION AND USE OF PERSONAL DATA;
(B) IMPOSES AN AFFIRMATIVE OBLIGATION UPON COMPANIES TO SAFEGUARD PERSONAL DATA; TO PROVIDE CLEAR, UNDERSTANDABLE, AND TRANSPARENT INFORMATION TO CONSUMERS ABOUT HOW THEIR PERSONAL DATA ARE USED; AND TO STRENGTHEN COMPLIANCE AND ACCOUNTABILITY BY REQUIRING DATA PROTECTION ASSESSMENTS IN THE COLLECTION AND USE OF PERSONAL DATA; AND
(C) EMPOWERS THE ATTORNEY GENERAL AND DISTRICT ATTORNEYS TO ACCESS AND EVALUATE A COMPANY'S DATA PROTECTION ASSESSMENTS, TO IMPOSE PENALTIES WHERE VIOLATIONS OCCUR, AND TO PREVENT FUTURE VIOLATIONS.
## 6-1-1303. Definitions.
AS USED IN THIS PART 13, UNLESS THE CONTEXT OTHERWISE REQUIRES:
(1) "AFFILIATE" MEANS A LEGAL ENTITY THAT CONTROLS, IS CONTROLLED BY, OR IS UNDER COMMON CONTROL WITH ANOTHER LEGAL ENTITY. AS USED IN THIS SUBSECTION (1), "CONTROL" MEANS:
(a) OWNERSHIP OF, CONTROL OF, OR POWER TO VOTE TWENTY-FIVE PERCENT OR MORE OF THE OUTSTANDING SHARES OF ANY CLASS OF VOTING SECURITY OF THE ENTITY, DIRECTLY OR INDIRECTLY, OR ACTING THROUGH ONE OR MORE OTHER PERSONS;
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(b) CONTROL IN ANY MANNER OVER THE ELECTION OF A MAJORITY OF THE DIRECTORS, TRUSTEES, OR GENERAL PARTNERS OF THE ENTITY OR OF INDIVIDUALS EXERCISING SIMILAR FUNCTIONS; OR
(c) THE POWER TO EXERCISE, DIRECTLY OR INDIRECTLY, A CONTROLLING INFLUENCE OVER THE MANAGEMENT OR POLICIES OF THE ENTITY AS DETERMINED BY THE APPLICABLE PRUDENTIAL REGULATOR, AS THAT TERM IS DEFINED IN 12 U.S.C. SEC. 5481 (24), IF ANY.
(2) "AUTHENTICATE" MEANS TO USE REASONABLE MEANS TO DETERMINE THAT A REQUEST TO EXERCISE ANY OF THE RIGHTS IN SECTION 6-1-1306 (1) IS BEING MADE BY OR ON BEHALF OF THE CONSUMER WHO IS ENTITLED TO EXERCISE THE RIGHTS.
(3) "BUSINESS ASSOCIATE" HAS THE MEANING ESTABLISHED IN 45 CFR 160.103.
(4) "CHILD" MEANS AN INDIVIDUAL UNDER THIRTEEN YEARS OF AGE.
(5) "CONSENT" MEANS A CLEAR, AFFIRMATIVE ACT SIGNIFYING A CONSUMER'S FREELY GIVEN, SPECIFIC, INFORMED, AND UNAMBIGUOUS AGREEMENT, SUCH AS BY A WRITTEN STATEMENT, INCLUDING BY ELECTRONIC MEANS, OR OTHER CLEAR, AFFIRMATIVE ACTION BY WHICH THE CONSUMER SIGNIFIES AGREEMENT TO THE PROCESSING OF PERSONAL DATA. THE FOLLOWING DOES NOT CONSTITUTE CONSENT:
(a) ACCEPTANCE OF A GENERAL OR BROAD TERMS OF USE OR SIMILAR DOCUMENT THAT CONTAINS DESCRIPTIONS OF PERSONAL DATA PROCESSING ALONG WITH OTHER, UNRELATED INFORMATION;
(b) HOVERING OVER, MUTING, PAUSING, OR CLOSING A GIVEN PIECE OF CONTENT; AND
(c) AGREEMENT OBTAINED THROUGH DARK PATTERNS.
(6) "CONSUMER":
(a) MEANS AN INDIVIDUAL WHO IS A COLORADO RESIDENT ACTING ONLY IN AN INDIVIDUAL OR HOUSEHOLD CONTEXT; AND
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(b) DOES NOT INCLUDE AN INDIVIDUAL ACTING IN A COMMERCIAL OR EMPLOYMENT CONTEXT, AS A JOB APPLICANT, OR AS A BENEFICIARY OF SOMEONE ACTING IN AN EMPLOYMENT CONTEXT.
(7) "CONTROLLER" MEANS A PERSON THAT, ALONE OR JOINTLY WITH OTHERS, DETERMINES THE PURPOSES FOR AND MEANS OF PROCESSING PERSONAL DATA.
(8) "COVERED ENTITY" HAS THE MEANING ESTABLISHED IN 45 CFR 160.103.
(9) "DARK PATTERN" MEANS A USER INTERFACE DESIGNED OR MANIPULATED WITH THE SUBSTANTIAL EFFECT OF SUBVERTING OR IMPAIRING USER AUTONOMY, DECISION-MAKING, OR CHOICE.
(10) "DECISIONS THAT PRODUCE LEGAL OR SIMILARLY SIGNIFICANT EFFECTS CONCERNING A CONSUMER" MEANS A DECISION THAT RESULTS IN THE PROVISION OR DENIAL OF FINANCIAL OR LENDING SERVICES, HOUSING, INSURANCE, EDUCATION ENROLLMENT OR OPPORTUNITY, CRIMINAL JUSTICE, EMPLOYMENT OPPORTUNITIES, HEALTH-CARE SERVICES, OR ACCESS TO ESSENTIAL GOODS OR SERVICES.
(11) "DE-IDENTIFIED DATA" MEANS DATA THAT CANNOT REASONABLY BE USED TO INFER INFORMATION ABOUT, OR OTHERWISE BE LINKED TO, AN IDENTIFIED OR IDENTIFIABLE INDIVIDUAL, OR A DEVICE LINKED TO SUCH AN INDIVIDUAL, IF THE CONTROLLER THAT POSSESSES THE DATA:
(a) TAKES REASONABLE MEASURES TO ENSURE THAT THE DATA CANNOT BE ASSOCIATED WITH AN INDIVIDUAL;
(b) PUBLICLY COMMITS TO MAINTAIN AND USE THE DATA ONLY IN A DE-IDENTIFIED FASHION AND NOT ATTEMPT TO RE-IDENTIFY THE DATA; AND
(c) CONTRACTUALLY OBLIGATES ANY RECIPIENTS OF THE INFORMATION TO COMPLY WITH THE REQUIREMENTS OF THIS SUBSECTION (11).
(12) "HEALTH-CARE FACILITY" MEANS ANY ENTITY THAT IS LICENSED, CERTIFIED, OR OTHERWISE AUTHORIZED OR PERMITTED BY LAW
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TO ADMINISTER MEDICAL TREATMENT IN THIS STATE.
(13) "HEALTH-CARE INFORMATION" MEANS INDIVIDUALLY IDENTIFIABLE INFORMATION RELATING TO THE PAST, PRESENT, OR FUTURE HEALTH STATUS OF AN INDIVIDUAL.
(14) "HEALTH-CARE PROVIDER" MEANS A PERSON LICENSED, CERTIFIED, OR REGISTERED IN THIS STATE TO PRACTICE MEDICINE, PHARMACY, CHIROPRACTIC, NURSING, PHYSICAL THERAPY, PODIATRY, DENTISTRY, OPTOMETRY, OCCUPATIONAL THERAPY, OR OTHER HEALING ARTS UNDER TITLE 12.
(15) "HIPAA" MEANS THE FEDERAL "HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996", AS AMENDED, 42 U.S.C. SECS. 1320d TO 1320d-9.
(16) "IDENTIFIED OR IDENTIFIABLE INDIVIDUAL" MEANS AN INDIVIDUAL WHO CAN BE READILY IDENTIFIED, DIRECTLY OR INDIRECTLY, IN PARTICULAR BY REFERENCE TO AN IDENTIFIER SUCH AS A NAME, AN IDENTIFICATION NUMBER, SPECIFIC GEOLOCATION DATA, OR AN ONLINE IDENTIFIER.
(17) "PERSONAL DATA":
(a) MEANS INFORMATION THAT IS LINKED OR REASONABLY LINKABLE TO AN IDENTIFIED OR IDENTIFIABLE INDIVIDUAL; AND
(b) DOES NOT INCLUDE DE-IDENTIFIED DATA OR PUBLICLY AVAILABLE INFORMATION. AS USED IN THIS SUBSECTION (17)(b), "PUBLICLY AVAILABLE INFORMATION" MEANS INFORMATION THAT IS LAWFULLY MADE AVAILABLE FROM FEDERAL, STATE, OR LOCAL GOVERNMENT RECORDS AND INFORMATION THAT A CONTROLLER HAS A REASONABLE BASIS TO BELIEVE THE CONSUMER HAS LAWFULLY MADE AVAILABLE TO THE GENERAL PUBLIC.
(18) "PROCESS" OR "PROCESSING" MEANS THE COLLECTION, USE, SALE, STORAGE, DISCLOSURE, ANALYSIS, DELETION, OR MODIFICATION OF PERSONAL DATA AND INCLUDES THE ACTIONS OF A CONTROLLER DIRECTING A PROCESSOR TO PROCESS PERSONAL DATA.
(19) "PROCESSOR" MEANS A PERSON THAT PROCESSES PERSONAL
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DATA ON BEHALF OF A CONTROLLER.
(20) "PROFILING" MEANS ANY FORM OF AUTOMATED PROCESSING OF PERSONAL DATA TO EVALUATE, ANALYZE, OR PREDICT PERSONAL ASPECTS CONCERNING AN IDENTIFIED OR IDENTIFIABLE INDIVIDUAL'S ECONOMIC SITUATION, HEALTH, PERSONAL PREFERENCES, INTERESTS, RELIABILITY, BEHAVIOR, LOCATION, OR MOVEMENTS.
(21) "PROTECTED HEALTH INFORMATION" HAS THE MEANING ESTABLISHED IN 45 CFR 160.103.
(22) "PSEUDONYMOUS DATA" MEANS PERSONAL DATA THAT CAN NO LONGER BE ATTRIBUTED TO A SPECIFIC INDIVIDUAL WITHOUT THE USE OF ADDITIONAL INFORMATION IF THE ADDITIONAL INFORMATION IS KEPT SEPARATELY AND IS SUBJECT TO TECHNICAL AND ORGANIZATIONAL MEASURES TO ENSURE THAT THE PERSONAL DATA ARE NOT ATTRIBUTED TO A SPECIFIC INDIVIDUAL.
(23) (a) "SALE", "SELL", OR "SOLD" MEANS THE EXCHANGE OF PERSONAL DATA FOR MONETARY OR OTHER VALUABLE CONSIDERATION BY A CONTROLLER TO A THIRD PARTY.
(b) "SALE", "SELL", OR "SOLD" DOES NOT INCLUDE THE FOLLOWING:
(I) THE DISCLOSURE OF PERSONAL DATA TO A PROCESSOR THAT PROCESSES THE PERSONAL DATA ON BEHALF OF A CONTROLLER;
(II) THE DISCLOSURE OF PERSONAL DATA TO A THIRD PARTY FOR PURPOSES OF PROVIDING A PRODUCT OR SERVICE REQUESTED BY THE CONSUMER;
(III) THE DISCLOSURE OR TRANSFER OF PERSONAL DATA TO AN AFFILIATE OF THE CONTROLLER;
(IV) THE DISCLOSURE OR TRANSFER TO A THIRD PARTY OF PERSONAL DATA AS AN ASSET THAT IS PART OF A PROPOSED OR ACTUAL MERGER, ACQUISITION, BANKRUPTCY, OR OTHER TRANSACTION IN WHICH THE THIRD PARTY ASSUMES CONTROL OF ALL OR PART OF THE CONTROLLER'S ASSETS; OR
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(V) THE DISCLOSURE OF PERSONAL DATA:
(A) THAT A CONSUMER DIRECTS THE CONTROLLER TO DISCLOSE OR INTENTIONALLY DISCLOSES BY USING THE CONTROLLER TO INTERACT WITH A THIRD PARTY; OR
(B) INTENTIONALLY MADE AVAILABLE BY A CONSUMER TO THE GENERAL PUBLIC VIA A CHANNEL OF MASS MEDIA.
(24) "SENSITIVE DATA" MEANS:
(a) PERSONAL DATA REVEALING RACIAL OR ETHNIC ORIGIN, RELIGIOUS BELIEFS, A MENTAL OR PHYSICAL HEALTH CONDITION OR DIAGNOSIS, SEX LIFE OR SEXUAL ORIENTATION, OR CITIZENSHIP OR CITIZENSHIP STATUS;
(b) GENETIC OR BIOMETRIC DATA THAT MAY BE PROCESSED FOR THE PURPOSE OF UNIQUELY IDENTIFYING AN INDIVIDUAL; OR
(c) PERSONAL DATA FROM A KNOWN CHILD.
(25) "TARGETED ADVERTISING":
(a) MEANS DISPLAYING TO A CONSUMER AN ADVERTISEMENT THAT IS SELECTED BASED ON PERSONAL DATA OBTAINED OR INFERRED OVER TIME FROM THE CONSUMER'S ACTIVITIES ACROSS NONAFFILIATED WEBSITES, APPLICATIONS, OR ONLINE SERVICES TO PREDICT CONSUMER PREFERENCES OR INTERESTS; AND
(b) DOES NOT INCLUDE:
(I) ADVERTISING TO A CONSUMER IN RESPONSE TO THE CONSUMER'S REQUEST FOR INFORMATION OR FEEDBACK;
(II) ADVERTISEMENTS BASED ON ACTIVITIES WITHIN A CONTROLLER'S OWN WEBSITES OR ONLINE APPLICATIONS;
(III) ADVERTISEMENTS BASED ON THE CONTEXT OF A CONSUMER'S CURRENT SEARCH QUERY, VISIT TO A WEBSITE, OR ONLINE APPLICATION; OR
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(IV) PROCESSING PERSONAL DATA SOLELY FOR MEASURING OR REPORTING ADVERTISING PERFORMANCE, REACH, OR FREQUENCY.
(26) "THIRD PARTY" MEANS A PERSON, PUBLIC AUTHORITY, AGENCY, OR BODY OTHER THAN A CONSUMER, CONTROLLER, PROCESSOR, OR AFFILIATE OF THE PROCESSOR OR THE CONTROLLER.
### 6-1-1304. Applicability of part.
(1) EXCEPT AS SPECIFIED IN SUBSECTION (2) OF THIS SECTION, THIS PART 13 APPLIES TO A CONTROLLER THAT:
(a) CONDUCTS BUSINESS IN COLORADO OR PRODUCES OR DELIVERS COMMERCIAL PRODUCTS OR SERVICES THAT ARE INTENTIONALLY TARGETED TO RESIDENTS OF COLORADO; AND
(b) SATISFIES ONE OR BOTH OF THE FOLLOWING THRESHOLDS:
(I) CONTROLS OR PROCESSES THE PERSONAL DATA OF ONE HUNDRED THOUSAND CONSUMERS OR MORE DURING A CALENDAR YEAR; OR
(II) DERIVES REVENUE OR RECEIVES A DISCOUNT ON THE PRICE OF GOODS OR SERVICES FROM THE SALE OF PERSONAL DATA AND PROCESSES OR CONTROLS THE PERSONAL DATA OF TWENTY-FIVE THOUSAND CONSUMERS OR MORE.
(2) THIS PART 13 DOES NOT APPLY TO:
(a) PROTECTED HEALTH INFORMATION THAT IS COLLECTED, STORED, AND PROCESSED BY A COVERED ENTITY OR ITS BUSINESS ASSOCIATES;
(b) HEALTH-CARE INFORMATION THAT IS GOVERNED BY PART 8 OF ARTICLE 1 OF TITLE 25 SOLELY FOR THE PURPOSE OF ACCESS TO MEDICAL RECORDS;
(c) PATIENT IDENTIFYING INFORMATION, AS DEFINED IN 42 CFR 2.11, THAT ARE GOVERNED BY AND COLLECTED AND PROCESSED PURSUANT TO 42 CFR 2, ESTABLISHED PURSUANT TO 42 U.S.C. SEC. 290dd-2;
(d) IDENTIFIABLE PRIVATE INFORMATION, AS DEFINED IN 45 CFR 46.102, FOR PURPOSES OF THE FEDERAL POLICY FOR THE PROTECTION OF
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# HUMAN SUBJECTS PURSUANT TO 45 CFR 46
Identifiable private information that is collected as part of human subjects research pursuant to the ICH E6 Good Clinical Practice Guideline issued by the International Council for Harmonisation of Technical Requirements for Pharmaceuticals for Human Use or the protection of human subjects under 21 CFR 50 and 56; or personal data used or shared in research conducted in accordance with one or more of the categories set forth in this subsection (2)(d);
(e) Information and documents created by a covered entity for purposes of complying with HIPAA and its implementing regulations;
(f) Patient safety work product, as defined in 42 CFR 3.20, that is created for purposes of patient safety improvement pursuant to 42 CFR 3, established pursuant to 42 U.S.C. secs. 299b-21 to 299b-26;
(g) Information that is:
(I) De-identified in accordance with the requirements for de-identification set forth in 45 CFR 164; and
(II) Derived from any of the health-care-related information described in this section.
(h) Information maintained in the same manner as information under subsections (2)(a) to (2)(g) of this section by:
(I) A covered entity or business associate;
(II) A health-care facility or health-care provider; or
(III) A program of a qualified service organization as defined in 42 CFR 2.11;
(i) (I) Except as provided in subsection (2)(i)(II) of this section, an activity involving the collection, maintenance, disclosure, sale, communication, or use of any personal data bearing on a consumer's creditworthiness, credit standing, credit
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CAPACITY, CHARACTER, GENERAL REPUTATION, PERSONAL CHARACTERISTICS, OR MODE OF LIVING BY:
(A) A CONSUMER REPORTING AGENCY AS DEFINED IN 15 U.S.C. SEC. 1681a(f);
(B) A FURNISHER OF INFORMATION AS SET FORTH IN 15 U.S.C. SEC. 1681s-2 THAT PROVIDES INFORMATION FOR USE IN A CONSUMER REPORT, AS DEFINED IN 15 U.S.C. SEC. 1681a(d); OR
(C) A USER OF A CONSUMER REPORT AS SET FORTH IN 15 U.S.C. SEC. 1681b.
(II) THIS SUBSECTION (2)(i) APPLIES ONLY TO THE EXTENT THAT THE ACTIVITY IS REGULATED BY THE FEDERAL "FAIR CREDIT REPORTING ACT", 15 U.S.C. SEC. 1681 ET SEQ., AS AMENDED, AND THE PERSONAL DATA ARE NOT COLLECTED, MAINTAINED, DISCLOSED, SOLD, COMMUNICATED, OR USED EXCEPT AS AUTHORIZED BY THE FEDERAL "FAIR CREDIT REPORTING ACT", AS AMENDED.
(j) PERSONAL DATA:
(I) COLLECTED AND MAINTAINED FOR PURPOSES OF ARTICLE 22 OF TITLE 10;
(II) COLLECTED, PROCESSED, SOLD, OR DISCLOSED PURSUANT TO THE FEDERAL "GRAMM-LEACH-BLILEY ACT", 15 U.S.C. SEC. 6801 ET SEQ., AS AMENDED, AND IMPLEMENTING REGULATIONS, IF THE COLLECTION, PROCESSING, SALE, OR DISCLOSURE IS IN COMPLIANCE WITH THAT LAW;
(III) COLLECTED, PROCESSED, SOLD, OR DISCLOSED PURSUANT TO THE FEDERAL "DRIVER'S PRIVACY PROTECTION ACT OF 1994", 18 U.S.C. SEC. 2721 ET SEQ., AS AMENDED, IF THE COLLECTION, PROCESSING, SALE, OR DISCLOSURE IS REGULATED BY THAT LAW, INCLUDING IMPLEMENTING RULES, REGULATIONS, OR EXEMPTIONS;
(IV) REGULATED BY THE FEDERAL "CHILDREN'S ONLINE PRIVACY PROTECTION ACT OF 1998", 15 U.S.C. SECS. 6501 TO 6506, AS AMENDED, IF COLLECTED, PROCESSED, AND MAINTAINED IN COMPLIANCE WITH THAT LAW; OR
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(V) REGULATED BY THE FEDERAL "FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT OF 1974", 20 U.S.C. SEC. 1232g ET SEQ., AS AMENDED, AND ITS IMPLEMENTING REGULATIONS;
(k) DATA MAINTAINED FOR EMPLOYMENT RECORDS PURPOSES;
(l) AN AIR CARRIER AS DEFINED IN AND REGULATED UNDER 49 U.S.C. SEC. 40101 ET SEQ., AS AMENDED, AND 49 U.S.C. SEC. 41713, AS AMENDED;
(m) A NATIONAL SECURITIES ASSOCIATION REGISTERED PURSUANT TO THE FEDERAL "SECURITIES EXCHANGE ACT OF 1934", 15 U.S.C. SEC. 78o-3, AS AMENDED, OR IMPLEMENTING REGULATIONS;
(n) CUSTOMER DATA MAINTAINED BY A PUBLIC UTILITY AS DEFINED IN SECTION 40-1-103 (1)(a)(I) OR AN AUTHORITY AS DEFINED IN SECTION 43-4-503 (1), IF THE DATA ARE NOT COLLECTED, MAINTAINED, DISCLOSED, SOLD, COMMUNICATED, OR USED EXCEPT AS AUTHORIZED BY STATE AND FEDERAL LAW;
(o) DATA MAINTAINED BY A STATE INSTITUTION OF HIGHER EDUCATION, AS DEFINED IN SECTION 23-18-102 (10), THE STATE, THE JUDICIAL DEPARTMENT OF THE STATE, OR A COUNTY, CITY AND COUNTY, OR MUNICIPALITY IF THE DATA IS COLLECTED, MAINTAINED, DISCLOSED, COMMUNICATED, AND USED AS AUTHORIZED BY STATE AND FEDERAL LAW FOR NONCOMMERCIAL PURPOSES. THIS SUBSECTION (2)(o) DOES NOT EFFECT ANY OTHER EXEMPTION AVAILABLE UNDER THIS PART 13.
(p) INFORMATION USED AND DISCLOSED IN COMPLIANCE WITH 45 CFR 164.512; OR
(q) A FINANCIAL INSTITUTION OR AN AFFILIATE OF A FINANCIAL INSTITUTION AS DEFINED BY AND THAT IS SUBJECT TO THE FEDERAL "Gramm-Leach-Bliley Act", 15 U.S.C. SEC. 6801 ET SEQ., AS AMENDED, AND IMPLEMENTING REGULATIONS, INCLUDING REGULATION P, 12 CFR 1016.
(3) THE OBLIGATIONS IMPOSED ON CONTROLLERS OR PROCESSORS UNDER THIS PART 13 DO NOT:
(a) RESTRICT A CONTROLLER'S OR PROCESSOR'S ABILITY TO:
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(I) COMPLY WITH FEDERAL, STATE, OR LOCAL LAWS, RULES, OR REGULATIONS;
(II) COMPLY WITH A CIVIL, CRIMINAL, OR REGULATORY INQUIRY, INVESTIGATION, SUBPOENA, OR SUMMONS BY FEDERAL, STATE, LOCAL, OR OTHER GOVERNMENTAL AUTHORITIES;
(III) COOPERATE WITH LAW ENFORCEMENT AGENCIES CONCERNING CONDUCT OR ACTIVITY THAT THE CONTROLLER OR PROCESSOR REASONABLY AND IN GOOD FAITH BELIEVES MAY VIOLATE FEDERAL, STATE, OR LOCAL LAW;
(IV) INVESTIGATE, EXERCISE, PREPARE FOR, OR DEFEND ACTUAL OR ANTICIPATED LEGAL CLAIMS;
(V) CONDUCT INTERNAL RESEARCH TO IMPROVE, REPAIR, OR DEVELOP PRODUCTS, SERVICES, OR TECHNOLOGY;
(VI) IDENTIFY AND REPAIR TECHNICAL ERRORS THAT IMPAIR EXISTING OR INTENDED FUNCTIONALITY;
(VII) PERFORM INTERNAL OPERATIONS THAT ARE REASONABLY ALIGNED WITH THE EXPECTATIONS OF THE CONSUMER BASED ON THE CONSUMER'S EXISTING RELATIONSHIP WITH THE CONTROLLER;
(VIII) PROVIDE A PRODUCT OR SERVICE SPECIFICALLY REQUESTED BY A CONSUMER OR THE PARENT OR GUARDIAN OF A CHILD, PERFORM A CONTRACT TO WHICH THE CONSUMER IS A PARTY, OR TAKE STEPS AT THE REQUEST OF THE CONSUMER PRIOR TO ENTERING INTO A CONTRACT;
(IX) PROTECT THE VITAL INTERESTS OF THE CONSUMER OR OF ANOTHER INDIVIDUAL;
(X) PREVENT, DETECT, PROTECT AGAINST, OR RESPOND TO SECURITY INCIDENTS, IDENTITY THEFT, FRAUD, HARASSMENT, OR MALICIOUS, DECEPTIVE, OR ILLEGAL ACTIVITY; PRESERVE THE INTEGRITY OR SECURITY OF SYSTEMS; OR INVESTIGATE, REPORT, OR PROSECUTE THOSE RESPONSIBLE FOR ANY SUCH ACTION;
(XI) PROCESS PERSONAL DATA FOR REASONS OF PUBLIC INTEREST IN
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the area of public health, but solely to the extent that the processing:
(A) Is subject to suitable and specific measures to safeguard the rights of the consumer whose personal data are processed; and
(B) Is under the responsibility of a professional subject to confidentiality obligations under federal, state, or local law; or
(XII) Assist another person with any of the activities set forth in this subsection (3);
(b) Apply where compliance by the controller or processor with this part 13 would violate an evidentiary privilege under Colorado law;
(c) Prevent a controller or processor from providing personal data concerning a consumer to a person covered by an evidentiary privilege under Colorado law as part of a privileged communication;
(d) Apply to information made available by a third party that the controller has a reasonable basis to believe is protected speech pursuant to applicable law; and
(e) Apply to the processing of personal data by an individual in the course of a purely personal or household activity.
(4) Personal data that are processed by a controller pursuant to an exception provided by this section:
(a) Shall not be processed for any purpose other than a purpose expressly listed in this section or as otherwise authorized by this part 13; and
(b) Shall be processed solely to the extent that the processing is necessary, reasonable, and proportionate to the specific purpose or purposes listed in this section or as otherwise
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AUTHORIZED BY THIS PART 13.
(5) IF A CONTROLLER PROCESSES PERSONAL DATA PURSUANT TO AN EXEMPTION IN THIS SECTION, THE CONTROLLER BEARS THE BURDEN OF DEMONSTRATING THAT THE PROCESSING QUALIFIES FOR THE EXEMPTION AND COMPLIES WITH THE REQUIREMENTS IN SUBSECTION (4) OF THIS SECTION.
### 6-1-1305. Responsibility according to role.
(1) CONTROLLERS AND PROCESSORS SHALL MEET THEIR RESPECTIVE OBLIGATIONS ESTABLISHED UNDER THIS PART 13.
(2) PROCESSORS SHALL ADHERE TO THE INSTRUCTIONS OF THE CONTROLLER AND ASSIST THE CONTROLLER TO MEET ITS OBLIGATIONS UNDER THIS PART 13. TAKING INTO ACCOUNT THE NATURE OF PROCESSING AND THE INFORMATION AVAILABLE TO THE PROCESSOR, THE PROCESSOR SHALL ASSIST THE CONTROLLER BY:
(a) TAKING APPROPRIATE TECHNICAL AND ORGANIZATIONAL MEASURES, INSOFAR AS THIS IS POSSIBLE, FOR THE FULFILLMENT OF THE CONTROLLER'S OBLIGATION TO RESPOND TO CONSUMER REQUESTS TO EXERCISE THEIR RIGHTS PURSUANT TO SECTION 6-1-1306;
(b) HELPING TO MEET THE CONTROLLER'S OBLIGATIONS IN RELATION TO THE SECURITY OF PROCESSING THE PERSONAL DATA AND IN RELATION TO THE NOTIFICATION OF A BREACH OF THE SECURITY OF THE SYSTEM PURSUANT TO SECTION 6-1-716; AND
(c) PROVIDING INFORMATION TO THE CONTROLLER NECESSARY TO ENABLE THE CONTROLLER TO CONDUCT AND DOCUMENT ANY DATA PROTECTION ASSESSMENTS REQUIRED BY SECTION 6-1-1309. THE CONTROLLER AND PROCESSOR ARE EACH RESPONSIBLE FOR ONLY THE MEASURES ALLOCATED TO THEM.
(3) NOTWITHSTANDING THE INSTRUCTIONS OF THE CONTROLLER, A PROCESSOR SHALL:
(a) ENSURE THAT EACH PERSON PROCESSING THE PERSONAL DATA IS SUBJECT TO A DUTY OF CONFIDENTIALITY WITH RESPECT TO THE DATA; AND
(b) ENGAGE A SUBCONTRACTOR ONLY AFTER PROVIDING THE
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CONTROLLER WITH AN OPPORTUNITY TO OBJECT AND PURSUANT TO A WRITTEN CONTRACT IN ACCORDANCE WITH SUBSECTION (5) OF THIS SECTION THAT REQUIRES THE SUBCONTRACTOR TO MEET THE OBLIGATIONS OF THE PROCESSOR WITH RESPECT TO THE PERSONAL DATA.
(4) TAKING INTO ACCOUNT THE CONTEXT OF PROCESSING, THE CONTROLLER AND THE PROCESSOR SHALL IMPLEMENT APPROPRIATE TECHNICAL AND ORGANIZATIONAL MEASURES TO ENSURE A LEVEL OF SECURITY APPROPRIATE TO THE RISK AND ESTABLISH A CLEAR ALLOCATION OF THE RESPONSIBILITIES BETWEEN THEM TO IMPLEMENT THE MEASURES.
(5) PROCESSING BY A PROCESSOR MUST BE GOVERNED BY A CONTRACT BETWEEN THE CONTROLLER AND THE PROCESSOR THAT IS BINDING ON BOTH PARTIES AND THAT SETS OUT:
(a) THE PROCESSING INSTRUCTIONS TO WHICH THE PROCESSOR IS BOUND, INCLUDING THE NATURE AND PURPOSE OF THE PROCESSING;
(b) THE TYPE OF PERSONAL DATA SUBJECT TO THE PROCESSING, AND THE DURATION OF THE PROCESSING;
(c) THE REQUIREMENTS IMPOSED BY THIS SUBSECTION (5) AND SUBSECTIONS (3) AND (4) OF THIS SECTION; AND
(d) THE FOLLOWING REQUIREMENTS:
(I) AT THE CHOICE OF THE CONTROLLER, THE PROCESSOR SHALL DELETE OR RETURN ALL PERSONAL DATA TO THE CONTROLLER AS REQUESTED AT THE END OF THE PROVISION OF SERVICES, UNLESS RETENTION OF THE PERSONAL DATA IS REQUIRED BY LAW;
(II) (A) THE PROCESSOR SHALL MAKE AVAILABLE TO THE CONTROLLER ALL INFORMATION NECESSARY TO DEMONSTRATE COMPLIANCE WITH THE OBLIGATIONS IN THIS PART 13; AND
(B) THE PROCESSOR SHALL ALLOW FOR, AND CONTRIBUTE TO, REASONABLE AUDITS AND INSPECTIONS BY THE CONTROLLER OR THE CONTROLLER'S DESIGNATED AUDITOR. ALTERNATIVELY, THE PROCESSOR MAY, WITH THE CONTROLLER'S CONSENT, ARRANGE FOR A QUALIFIED AND INDEPENDENT AUDITOR TO CONDUCT, AT LEAST ANNUALLY AND AT THE
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# Processor's Expense
An audit of the processor's policies and technical and organizational measures in support of the obligations under this part 13 using an appropriate and accepted control standard or framework and audit procedure for the audits as applicable. The processor shall provide a report of the audit to the controller upon request.
## (6)
In no event may a contract relieve a controller or a processor from the liabilities imposed on them by virtue of its role in the processing relationship as defined by this part 13.
## (7)
Determining whether a person is acting as a controller or processor with respect to a specific processing of data is a fact-based determination that depends upon the context in which personal data are to be processed. A person that is not limited in its processing of personal data pursuant to a controller's instructions, or that fails to adhere to the instructions, is a controller and not a processor with respect to a specific processing of personal data. A processor that continues to adhere to a controller's instructions with respect to a specific processing of personal data remains a processor. If a processor begins, alone or jointly with others, determining the purposes and means of the processing of personal data, it is a controller with respect to the processing.
## (8)
### (a)
A controller or processor that discloses personal data to another controller or processor in compliance with this part 13 does not violate this part 13 if the recipient processes the personal data in violation of this part 13, and, at the time of disclosing the personal data, the disclosing controller or processor did not have actual knowledge that the recipient intended to commit a violation.
### (b)
A controller or processor receiving personal data from a controller or processor in compliance with this part 13 as specified in subsection (8)(a) of this section does not violate this part 13 if the controller or processor from which it receives the personal data fails to comply with applicable obligations under this part 13.
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# 6-1-1306. Consumer personal data rights - repeal.
(1) CONSUMERS MAY EXERCISE THE FOLLOWING RIGHTS BY SUBMITTING A REQUEST USING THE METHODS SPECIFIED BY THE CONTROLLER IN THE PRIVACY NOTICE REQUIRED UNDER SECTION 6-1-1308 (1)(a). THE METHOD MUST TAKE INTO ACCOUNT THE WAYS IN WHICH CONSUMERS NORMALLY INTERACT WITH THE CONTROLLER, THE NEED FOR SECURE AND RELIABLE COMMUNICATION RELATING TO THE REQUEST, AND THE ABILITY OF THE CONTROLLER TO AUTHENTICATE THE IDENTITY OF THE CONSUMER MAKING THE REQUEST. CONTROLLERS SHALL NOT REQUIRE A CONSUMER TO CREATE A NEW ACCOUNT IN ORDER TO EXERCISE CONSUMER RIGHTS PURSUANT TO THIS SECTION BUT MAY REQUIRE A CONSUMER TO USE AN EXISTING ACCOUNT. A CONSUMER MAY SUBMIT A REQUEST AT ANY TIME TO A CONTROLLER SPECIFYING WHICH OF THE FOLLOWING RIGHTS THE CONSUMER WISHES TO EXERCISE:
## (a) Right to opt out.
(I) A CONSUMER HAS THE RIGHT TO OPT OUT OF THE PROCESSING OF PERSONAL DATA CONCERNING THE CONSUMER FOR PURPOSES OF:
- (A) TARGETED ADVERTISING;
- (B) THE SALE OF PERSONAL DATA; OR
- (C) PROFILING IN FURTHERANCE OF DECISIONS THAT PRODUCE LEGAL OR SIMILARLY SIGNIFICANT EFFECTS CONCERNING A CONSUMER.
(II) A CONSUMER MAY AUTHORIZE ANOTHER PERSON, ACTING ON THE CONSUMER'S BEHALF, TO OPT OUT OF THE PROCESSING OF THE CONSUMER'S PERSONAL DATA FOR ONE OR MORE OF THE PURPOSES SPECIFIED IN SUBSECTION (1)(a)(I) OF THIS SECTION, INCLUDING THROUGH A TECHNOLOGY INDICATING THE CONSUMER'S INTENT TO OPT OUT SUCH AS A WEB LINK INDICATING A PREFERENCE OR BROWSER SETTING, BROWSER EXTENSION, OR GLOBAL DEVICE SETTING. A CONTROLLER SHALL COMPLY WITH AN OPT-OUT REQUEST RECEIVED FROM A PERSON AUTHORIZED BY THE CONSUMER TO ACT ON THE CONSUMER'S BEHALF IF THE CONTROLLER IS ABLE TO AUTHENTICATE, WITH COMMERCIALLY REASONABLE EFFORT, THE IDENTITY OF THE CONSUMER AND THE AUTHORIZED AGENT'S AUTHORITY TO ACT ON THE CONSUMER'S BEHALF.
(III) A CONTROLLER THAT PROCESSES PERSONAL DATA FOR
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PURPOSES OF TARGETED ADVERTISING OR THE SALE OF PERSONAL DATA SHALL PROVIDE A CLEAR AND CONSPICUOUS METHOD TO EXERCISE THE RIGHT TO OPT OUT OF THE PROCESSING OF PERSONAL DATA CONCERNING THE CONSUMER PURSUANT TO SUBSECTION (1)(a)(I) OF THIS SECTION. THE CONTROLLER SHALL PROVIDE THE OPT-OUT METHOD CLEARLY AND CONSPICUOUSLY IN ANY PRIVACY NOTICE REQUIRED TO BE PROVIDED TO CONSUMERS UNDER THIS PART 13, AND IN A CLEAR, CONSPICUOUS, AND READILY ACCESSIBLE LOCATION OUTSIDE THE PRIVACY NOTICE.
(IV) (A) A CONTROLLER THAT PROCESSES PERSONAL DATA FOR PURPOSES OF TARGETED ADVERTISING OR THE SALE OF PERSONAL DATA MAY ALLOW CONSUMERS TO EXERCISE THE RIGHT TO OPT OUT OF THE PROCESSING OF PERSONAL DATA CONCERNING THE CONSUMER FOR PURPOSES OF TARGETED ADVERTISING OR THE SALE OF PERSONAL DATA PURSUANT TO SUBSECTIONS (1)(a)(I)(A) AND (1)(a)(I)(B) OF THIS SECTION BY CONTROLLERS THROUGH A USER-SELECTED UNIVERSAL OPT-OUT MECHANISM THAT MEETS THE TECHNICAL SPECIFICATIONS ESTABLISHED BY THE ATTORNEY GENERAL PURSUANT TO SECTION 6-1-1313. THIS SUBSECTION (1)(a)(IV)(A) IS REPEALED, EFFECTIVE JULY 1, 2024.
(B) EFFECTIVE JULY 1, 2024, A CONTROLLER THAT PROCESSES PERSONAL DATA FOR PURPOSES OF TARGETED ADVERTISING OR THE SALE OF PERSONAL DATA SHALL ALLOW CONSUMERS TO EXERCISE THE RIGHT TO OPT OUT OF THE PROCESSING OF PERSONAL DATA CONCERNING THE CONSUMER FOR PURPOSES OF TARGETED ADVERTISING OR THE SALE OF PERSONAL DATA PURSUANT TO SUBSECTIONS (1)(a)(I)(A) AND (1)(a)(I)(B) OF THIS SECTION BY CONTROLLERS THROUGH A USER-SELECTED UNIVERSAL OPT-OUT MECHANISM THAT MEETS THE TECHNICAL SPECIFICATIONS ESTABLISHED BY THE ATTORNEY GENERAL PURSUANT TO SECTION 6-1-1313.
(C) NOTWITHSTANDING A CONSUMER'S DECISION TO EXERCISE THE RIGHT TO OPT OUT OF THE PROCESSING OF PERSONAL DATA THROUGH A UNIVERSAL OPT-OUT MECHANISM PURSUANT TO SUBSECTION (1)(a)(IV)(B) OF THIS SECTION, A CONTROLLER MAY ENABLE THE CONSUMER TO CONSENT, THROUGH A WEB PAGE, APPLICATION, OR A SIMILAR METHOD, TO THE PROCESSING OF THE CONSUMER'S PERSONAL DATA FOR PURPOSES OF TARGETED ADVERTISING OR THE SALE OF PERSONAL DATA, AND THE CONSENT TAKES PRECEDENCE OVER ANY CHOICE REFLECTED THROUGH THE UNIVERSAL OPT-OUT MECHANISM. BEFORE OBTAINING A CONSUMER'S CONSENT TO PROCESS PERSONAL DATA FOR PURPOSES OF TARGETED
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ADVERTISING OR THE SALE OF PERSONAL DATA PURSUANT TO THIS SUBSECTION (1)(a)(IV)(C), A CONTROLLER SHALL PROVIDE THE CONSUMER WITH A CLEAR AND CONSPICUOUS NOTICE INFORMING THE CONSUMER ABOUT THE CHOICES AVAILABLE UNDER THIS SECTION, DESCRIBING THE CATEGORIES OF PERSONAL DATA TO BE PROCESSED AND THE PURPOSES FOR WHICH THEY WILL BE PROCESSED, AND EXPLAINING HOW AND WHERE THE CONSUMER MAY WITHDRAW CONSENT. THE WEB PAGE, APPLICATION, OR OTHER MEANS BY WHICH A CONTROLLER OBTAINS A CONSUMER'S CONSENT TO PROCESS PERSONAL DATA FOR PURPOSES OF TARGETED ADVERTISING OR THE SALE OF PERSONAL DATA MUST ALSO ALLOW THE CONSUMER TO REVOKE THE CONSENT AS EASILY AS IT IS AFFIRMATIVELY PROVIDED.
### (b) Right of access.
A CONSUMER HAS THE RIGHT TO CONFIRM WHETHER A CONTROLLER IS PROCESSING PERSONAL DATA CONCERNING THE CONSUMER AND TO ACCESS THE CONSUMER'S PERSONAL DATA.
### (c) Right to correction.
A CONSUMER HAS THE RIGHT TO CORRECT INACCURACIES IN THE CONSUMER'S PERSONAL DATA, TAKING INTO ACCOUNT THE NATURE OF THE PERSONAL DATA AND THE PURPOSES OF THE PROCESSING OF THE CONSUMER'S PERSONAL DATA.
### (d) Right to deletion.
A CONSUMER HAS THE RIGHT TO DELETE PERSONAL DATA CONCERNING THE CONSUMER.
### (e) Right to data portability.
WHEN EXERCISING THE RIGHT TO ACCESS PERSONAL DATA PURSUANT TO SUBSECTION (1)(b) OF THIS SECTION, A CONSUMER HAS THE RIGHT TO OBTAIN THE PERSONAL DATA IN A PORTABLE AND, TO THE EXTENT TECHNICALLY FEASIBLE, READILY USABLE FORMAT THAT ALLOWS THE CONSUMER TO TRANSMIT THE DATA TO ANOTHER ENTITY WITHOUT HINDRANCE. A CONSUMER MAY EXERCISE THIS RIGHT NO MORE THAN TWO TIMES PER CALENDAR YEAR. NOTHING IN THIS SUBSECTION (1)(e) REQUIRES A CONTROLLER TO PROVIDE THE DATA TO THE CONSUMER IN A MANNER THAT WOULD DISCLOSE THE CONTROLLER'S TRADE SECRETS.
### (2) Responding to consumer requests.
#### (a)
A CONTROLLER SHALL INFORM A CONSUMER OF ANY ACTION TAKEN ON A REQUEST UNDER SUBSECTION (1) OF THIS SECTION WITHOUT UNDUE DELAY AND, IN ANY EVENT, WITHIN FORTY-FIVE DAYS AFTER RECEIPT OF THE REQUEST. THE CONTROLLER MAY EXTEND THE FORTY-FIVE-DAY PERIOD BY FORTY-FIVE ADDITIONAL DAYS WHERE REASONABLY NECESSARY, TAKING INTO ACCOUNT
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THE COMPLEXITY AND NUMBER OF THE REQUESTS. THE CONTROLLER SHALL INFORM THE CONSUMER OF AN EXTENSION WITHIN FORTY-FIVE DAYS AFTER RECEIPT OF THE REQUEST, TOGETHER WITH THE REASONS FOR THE DELAY.
(b) IF A CONTROLLER DOES NOT TAKE ACTION ON THE REQUEST OF A CONSUMER, THE CONTROLLER SHALL INFORM THE CONSUMER, WITHOUT UNDUE DELAY AND, AT THE LATEST, WITHIN FORTY-FIVE DAYS AFTER RECEIPT OF THE REQUEST, OF THE REASONS FOR NOT TAKING ACTION AND INSTRUCTIONS FOR HOW TO APPEAL THE DECISION WITH THE CONTROLLER AS DESCRIBED IN SUBSECTION (3) OF THIS SECTION.
(c) UPON REQUEST, A CONTROLLER SHALL PROVIDE TO THE CONSUMER THE INFORMATION SPECIFIED IN THIS SECTION FREE OF CHARGE; EXCEPT THAT, FOR A SECOND OR SUBSEQUENT REQUEST WITHIN A TWELVE-MONTH PERIOD, THE CONTROLLER MAY CHARGE AN AMOUNT CALCULATED IN THE MANNER SPECIFIED IN SECTION 24-72-205 (5)(a).
(d) A CONTROLLER IS NOT REQUIRED TO COMPLY WITH A REQUEST TO EXERCISE ANY OF THE RIGHTS UNDER SUBSECTION (1) OF THIS SECTION IF THE CONTROLLER IS UNABLE TO AUTHENTICATE THE REQUEST USING COMMERCIALLY REASONABLE EFFORTS, IN WHICH CASE THE CONTROLLER MAY REQUEST THE PROVISION OF ADDITIONAL INFORMATION REASONABLY NECESSARY TO AUTHENTICATE THE REQUEST.
(3) (a) A CONTROLLER SHALL ESTABLISH AN INTERNAL PROCESS WHEREBY CONSUMERS MAY APPEAL A REFUSAL TO TAKE ACTION ON A REQUEST TO EXERCISE ANY OF THE RIGHTS UNDER SUBSECTION (1) OF THIS SECTION WITHIN A REASONABLE PERIOD AFTER THE CONSUMER'S RECEIPT OF THE NOTICE SENT BY THE CONTROLLER UNDER SUBSECTION (2)(b) OF THIS SECTION. THE APPEAL PROCESS MUST BE CONSPICUOUSLY AVAILABLE AND AS EASY TO USE AS THE PROCESS FOR SUBMITTING A REQUEST UNDER THIS SECTION.
(b) WITHIN FORTY-FIVE DAYS AFTER RECEIPT OF AN APPEAL, A CONTROLLER SHALL INFORM THE CONSUMER OF ANY ACTION TAKEN OR NOT TAKEN IN RESPONSE TO THE APPEAL, ALONG WITH A WRITTEN EXPLANATION OF THE REASONS IN SUPPORT OF THE RESPONSE. THE CONTROLLER MAY EXTEND THE FORTY-FIVE-DAY PERIOD BY SIXTY ADDITIONAL DAYS WHERE REASONABLY NECESSARY, TAKING INTO ACCOUNT THE COMPLEXITY AND NUMBER OF REQUESTS SERVING AS THE BASIS FOR THE APPEAL. THE
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CONTROLLER SHALL INFORM THE CONSUMER OF AN EXTENSION WITHIN FORTY-FIVE DAYS AFTER RECEIPT OF THE APPEAL, TOGETHER WITH THE REASONS FOR THE DELAY.
(c) THE CONTROLLER SHALL INFORM THE CONSUMER OF THE CONSUMER'S ABILITY TO CONTACT THE ATTORNEY GENERAL IF THE CONSUMER HAS CONCERNS ABOUT THE RESULT OF THE APPEAL.
## 6-1-1307. Processing de-identified data.
(1) THIS PART 13 DOES NOT REQUIRE A CONTROLLER OR PROCESSOR TO DO ANY OF THE FOLLOWING SOLELY FOR PURPOSES OF COMPLYING WITH THIS PART 13:
(a) REIDENTIFY DE-IDENTIFIED DATA;
(b) COMPLY WITH AN AUTHENTICATED CONSUMER REQUEST TO ACCESS, CORRECT, DELETE, OR PROVIDE PERSONAL DATA IN A PORTABLE FORMAT PURSUANT TO SECTION 6-1-1306 (1), IF ALL OF THE FOLLOWING ARE TRUE:
(I) (A) THE CONTROLLER IS NOT REASONABLY CAPABLE OF ASSOCIATING THE REQUEST WITH THE PERSONAL DATA; OR
(B) IT WOULD BE UNREASONABLY BURDENSOME FOR THE CONTROLLER TO ASSOCIATE THE REQUEST WITH THE PERSONAL DATA;
(II) THE CONTROLLER DOES NOT USE THE PERSONAL DATA TO RECOGNIZE OR RESPOND TO THE SPECIFIC CONSUMER WHO IS THE SUBJECT OF THE PERSONAL DATA OR ASSOCIATE THE PERSONAL DATA WITH OTHER PERSONAL DATA ABOUT THE SAME SPECIFIC CONSUMER; AND
(III) THE CONTROLLER DOES NOT SELL THE PERSONAL DATA TO ANY THIRD PARTY OR OTHERWISE VOLUNTARILY DISCLOSE THE PERSONAL DATA TO ANY THIRD PARTY, EXCEPT AS OTHERWISE AUTHORIZED BY THE CONSUMER; OR
(c) MAINTAIN DATA IN IDENTIFIABLE FORM OR COLLECT, OBTAIN, RETAIN, OR ACCESS ANY DATA OR TECHNOLOGY IN ORDER TO ENABLE THE CONTROLLER TO ASSOCIATE AN AUTHENTICATED CONSUMER REQUEST WITH PERSONAL DATA.
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(2) A CONTROLLER THAT USES DE-IDENTIFIED DATA SHALL EXERCISE REASONABLE OVERSIGHT TO MONITOR COMPLIANCE WITH ANY CONTRACTUAL COMMITMENTS TO WHICH THE DE-IDENTIFIED DATA ARE SUBJECT AND SHALL TAKE APPROPRIATE STEPS TO ADDRESS ANY BREACHES OF CONTRACTUAL COMMITMENTS.
(3) THE RIGHTS CONTAINED IN SECTION 6-1-1306 (1)(b) TO (1)(e) DO NOT APPLY TO PSEUDONYMOUS DATA IF THE CONTROLLER CAN DEMONSTRATE THAT THE INFORMATION NECESSARY TO IDENTIFY THE CONSUMER IS KEPT SEPARATELY AND IS SUBJECT TO EFFECTIVE TECHNICAL AND ORGANIZATIONAL CONTROLS THAT PREVENT THE CONTROLLER FROM ACCESSING THE INFORMATION.
## 6-1-1308. Duties of controllers.
(1) **Duty of transparency.**
(a) A CONTROLLER SHALL PROVIDE CONSUMERS WITH A REASONABLY ACCESSIBLE, CLEAR, AND MEANINGFUL PRIVACY NOTICE THAT INCLUDES:
(I) THE CATEGORIES OF PERSONAL DATA COLLECTED OR PROCESSED BY THE CONTROLLER OR A PROCESSOR;
(II) THE PURPOSES FOR WHICH THE CATEGORIES OF PERSONAL DATA ARE PROCESSED;
(III) HOW AND WHERE CONSUMERS MAY EXERCISE THE RIGHTS PURSUANT TO SECTION 6-1-1306, INCLUDING THE CONTROLLER'S CONTACT INFORMATION AND HOW A CONSUMER MAY APPEAL A CONTROLLER'S ACTION WITH REGARD TO THE CONSUMER'S REQUEST;
(IV) THE CATEGORIES OF PERSONAL DATA THAT THE CONTROLLER SHARES WITH THIRD PARTIES, IF ANY; AND
(V) THE CATEGORIES OF THIRD PARTIES, IF ANY, WITH WHOM THE CONTROLLER SHARES PERSONAL DATA.
(b) IF A CONTROLLER SELLS PERSONAL DATA TO THIRD PARTIES OR PROCESSES PERSONAL DATA FOR TARGETED ADVERTISING, THE CONTROLLER SHALL CLEARLY AND CONSPICUOUSLY DISCLOSE THE SALE OR PROCESSING, AS WELL AS THE MANNER IN WHICH A CONSUMER MAY EXERCISE THE RIGHT TO OPT OUT OF THE SALE OR PROCESSING.
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(c) A CONTROLLER SHALL NOT:
(I) REQUIRE A CONSUMER TO CREATE A NEW ACCOUNT IN ORDER TO EXERCISE A RIGHT; OR
(II) BASED SOLELY ON THE EXERCISE OF A RIGHT AND UNRELATED TO FEASIBILITY OR THE VALUE OF A SERVICE, INCREASE THE COST OF, OR DECREASE THE AVAILABILITY OF, THE PRODUCT OR SERVICE.
(d) NOTHING IN THIS PART 13 SHALL BE CONSTRUED TO REQUIRE A CONTROLLER TO PROVIDE A PRODUCT OR SERVICE THAT REQUIRES THE PERSONAL DATA OF A CONSUMER THAT THE CONTROLLER DOES NOT COLLECT OR MAINTAIN OR TO PROHIBIT A CONTROLLER FROM OFFERING A DIFFERENT PRICE, RATE, LEVEL, QUALITY, OR SELECTION OF GOODS OR SERVICES TO A CONSUMER, INCLUDING OFFERING GOODS OR SERVICES FOR NO FEE, IF THE OFFER IS RELATED TO A CONSUMER'S VOLUNTARY PARTICIPATION IN A BONA FIDE LOYALTY, REWARDS, PREMIUM FEATURES, DISCOUNT, OR CLUB CARD PROGRAM.
(2) Duty of purpose specification. A CONTROLLER SHALL SPECIFY THE EXPRESS PURPOSES FOR WHICH PERSONAL DATA ARE COLLECTED AND PROCESSED.
(3) Duty of data minimization. A CONTROLLER'S COLLECTION OF PERSONAL DATA MUST BE ADEQUATE, RELEVANT, AND LIMITED TO WHAT IS REASONABLY NECESSARY IN RELATION TO THE SPECIFIED PURPOSES FOR WHICH THE DATA ARE PROCESSED.
(4) Duty to avoid secondary use. A CONTROLLER SHALL NOT PROCESS PERSONAL DATA FOR PURPOSES THAT ARE NOT REASONABLY NECESSARY TO OR COMPATIBLE WITH THE SPECIFIED PURPOSES FOR WHICH THE PERSONAL DATA ARE PROCESSED, UNLESS THE CONTROLLER FIRST OBTAINS THE CONSUMER'S CONSENT.
(5) Duty of care. A CONTROLLER SHALL TAKE REASONABLE MEASURES TO SECURE PERSONAL DATA DURING BOTH STORAGE AND USE FROM UNAUTHORIZED ACQUISITION. THE DATA SECURITY PRACTICES MUST BE APPROPRIATE TO THE VOLUME, SCOPE, AND NATURE OF THE PERSONAL DATA PROCESSED AND THE NATURE OF THE BUSINESS.
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(6) Duty to avoid unlawful discrimination. A CONTROLLER SHALL NOT PROCESS PERSONAL DATA IN VIOLATION OF STATE OR FEDERAL LAWS THAT PROHIBIT UNLAWFUL DISCRIMINATION AGAINST CONSUMERS.
(7) Duty regarding sensitive data. A CONTROLLER SHALL NOT PROCESS A CONSUMER'S SENSITIVE DATA WITHOUT FIRST OBTAINING THE CONSUMER'S CONSENT OR, IN THE CASE OF THE PROCESSING OF PERSONAL DATA CONCERNING A KNOWN CHILD, WITHOUT FIRST OBTAINING CONSENT FROM THE CHILD'S PARENT OR LAWFUL GUARDIAN.
6-1-1309. Data protection assessments - attorney general access and evaluation - definition. (1) A CONTROLLER SHALL NOT CONDUCT PROCESSING THAT PRESENTS A HEIGHTENED RISK OF HARM TO A CONSUMER WITHOUT CONDUCTING AND DOCUMENTING A DATA PROTECTION ASSESSMENT OF EACH OF ITS PROCESSING ACTIVITIES THAT INVOLVE PERSONAL DATA ACQUIRED ON OR AFTER THE EFFECTIVE DATE OF THIS SECTION THAT PRESENT A HEIGHTENED RISK OF HARM TO A CONSUMER.
(2) FOR PURPOSES OF THIS SECTION, "PROCESSING THAT PRESENTS A HEIGHTENED RISK OF HARM TO A CONSUMER" INCLUDES THE FOLLOWING:
(a) PROCESSING PERSONAL DATA FOR PURPOSES OF TARGETED ADVERTISING OR FOR PROFILING IF THE PROFILING PRESENTS A REASONABLY FORESEEABLE RISK OF:
(I) UNFAIR OR DECEPTIVE TREATMENT OF, OR UNLAWFUL DISPARATE IMPACT ON, CONSUMERS;
(II) FINANCIAL OR PHYSICAL INJURY TO CONSUMERS;
(III) A PHYSICAL OR OTHER INTRUSION UPON THE SOLITUDE OR SECLUSION, OR THE PRIVATE AFFAIRS OR CONCERNS, OF CONSUMERS IF THE INTRUSION WOULD BE OFFENSIVE TO A REASONABLE PERSON; OR
(IV) OTHER SUBSTANTIAL INJURY TO CONSUMERS;
(b) SELLING PERSONAL DATA; AND
(c) PROCESSING SENSITIVE DATA.
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(3) Data protection assessments must identify and weigh the benefits that may flow, directly and indirectly, from the processing to the controller, the consumer, other stakeholders, and the public against the potential risks to the rights of the consumer associated with the processing, as mitigated by safeguards that the controller can employ to reduce the risks. The controller shall factor into this assessment the use of de-identified data and the reasonable expectations of consumers, as well as the context of the processing and the relationship between the controller and the consumer whose personal data will be processed.
(4) A controller shall make the data protection assessment available to the attorney general upon request. The attorney general may evaluate the data protection assessment for compliance with the duties contained in section 6-1-1308 and with other laws, including this article 1. Data protection assessments are confidential and exempt from public inspection and copying under the "Colorado Open Records Act", part 2 of article 72 of title 24. The disclosure of a data protection assessment pursuant to a request from the attorney general under this subsection (4) does not constitute a waiver of any attorney-client privilege or work-product protection that might otherwise exist with respect to the assessment and any information contained in the assessment.
(5) A single data protection assessment may address a comparable set of processing operations that include similar activities.
(6) Data protection assessment requirements apply to processing activities created or generated after July 1, 2023, and are not retroactive.
### 6-1-1310. Liability.
(1) Notwithstanding any provision in part 1 of this article 1, this part 13 does not authorize a private right of action for a violation of this part 13 or any other provision of law. This subsection (1) neither relieves any party from any duties or obligations imposed, nor alters any independent rights that consumers have, under other laws, including this article 1, the
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STATE CONSTITUTION, OR THE UNITED STATES CONSTITUTION.
(2) WHERE MORE THAN ONE CONTROLLER OR PROCESSOR, OR BOTH A CONTROLLER AND A PROCESSOR, INVOLVED IN THE SAME PROCESSING VIOLATES THIS PART 13, THE LIABILITY SHALL BE ALLOCATED AMONG THE PARTIES ACCORDING TO PRINCIPLES OF COMPARATIVE FAULT.
### 6-1-1311. Enforcement - penalties - repeal.
(1)(a) NOTWITHSTANDING ANY OTHER PROVISION OF THIS ARTICLE 1, THE ATTORNEY GENERAL AND DISTRICT ATTORNEYS HAVE EXCLUSIVE AUTHORITY TO ENFORCE THIS PART 13 BY BRINGING AN ACTION IN THE NAME OF THE STATE OR AS PARENS PATRIAE ON BEHALF OF PERSONS RESIDING IN THE STATE TO ENFORCE THIS PART 13 AS PROVIDED IN THIS ARTICLE 1, INCLUDING SEEKING AN INJUNCTION TO ENJOIN A VIOLATION OF THIS PART 13.
(b) NOTWITHSTANDING ANY OTHER PROVISION OF THIS ARTICLE 1, NOTHING IN THIS PART 13 SHALL BE CONSTRUED AS PROVIDING THE BASIS FOR, OR BEING SUBJECT TO, A PRIVATE RIGHT OF ACTION FOR VIOLATIONS OF THIS PART 13 OR ANY OTHER LAW.
(c) FOR PURPOSES ONLY OF ENFORCEMENT OF THIS PART 13 BY THE ATTORNEY GENERAL OR A DISTRICT ATTORNEY, A VIOLATION OF THIS PART 13 IS A DECEPTIVE TRADE PRACTICE.
(d) PRIOR TO ANY ENFORCEMENT ACTION PURSUANT TO SUBSECTION (1)(a) OF THIS SECTION, THE ATTORNEY GENERAL OR DISTRICT ATTORNEY MUST ISSUE A NOTICE OF VIOLATION TO THE CONTROLLER IF A CURE IS DEEMED POSSIBLE. IF THE CONTROLLER FAILS TO CURE THE VIOLATION WITHIN SIXTY DAYS AFTER RECEIPT OF THE NOTICE OF VIOLATION, AN ACTION MAY BE BROUGHT PURSUANT TO THIS SECTION. THIS SUBSECTION (1)(d) IS REPEALED, EFFECTIVE JANUARY 1, 2025.
(2) THE STATE TREASURER SHALL CREDIT ALL RECEIPTS FROM THE IMPOSITION OF CIVIL PENALTIES UNDER THIS PART 13 PURSUANT TO SECTION 24-31-108.
### 6-1-1312. Preemption - local governments.
THIS PART 13 SUPERSEDES AND PREEMPTS LAWS, ORDINANCES, RESOLUTIONS, REGULATIONS, OR THE EQUIVALENT ADOPTED BY ANY STATUTORY OR HOME
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# 6-1-1313. Rules - opt-out mechanism.
(1) The Attorney General may promulgate rules for the purpose of carrying out this part 13.
(2) By July 1, 2023, the Attorney General shall adopt rules that detail the technical specifications for one or more universal opt-out mechanisms that clearly communicate a consumer's affirmative, freely given, and unambiguous choice to opt out of the processing of personal data for purposes of targeted advertising or the sale of personal data pursuant to section 6-1-1306 (1)(a)(I)(A) or (1)(a)(I)(B). The Attorney General may update the rules that detail the technical specifications for the mechanisms from time to time to reflect the means by which consumers interact with controllers. The rules must:
(a) Not permit the manufacturer of a platform, browser, device, or any other product offering a universal opt-out mechanism to unfairly disadvantage another controller;
(b) Require controllers to inform consumers about the opt-out choices available under section 6-1-1306 (1)(a)(I);
(c) Not adopt a mechanism that is a default setting, but rather clearly represents the consumer's affirmative, freely given, and unambiguous choice to opt out of the processing of personal data pursuant to section 6-1-1306 (1)(a)(I)(A) or (1)(a)(I)(B);
(d) Adopt a mechanism that is consumer-friendly, clearly described, and easy to use by the average consumer;
(e) Adopt a mechanism that is as consistent as possible with any other similar mechanism required by law or regulation in the United States; and
(f) Permit the controller to accurately authenticate the consumer as a resident of this state and determine that the
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MECHANISM REPRESENTS A LEGITIMATE REQUEST TO OPT OUT OF THE PROCESSING OF PERSONAL DATA FOR PURPOSES OF TARGETED ADVERTISING OR THE SALE OF PERSONAL DATA PURSUANT TO SECTION 6-1-1306 (1)(a)(I)(A) OR (1)(a)(I)(B).
(3) BY JANUARY 1, 2025, THE ATTORNEY GENERAL MAY ADOPT RULES THAT GOVERN THE PROCESS OF ISSUING OPINION LETTERS AND INTERPRETIVE GUIDANCE TO DEVELOP AN OPERATIONAL FRAMEWORK FOR BUSINESS THAT INCLUDES A GOOD FAITH RELIANCE DEFENSE OF AN ACTION THAT MAY OTHERWISE CONSTITUTE A VIOLATION OF THIS PART 13. THE RULES MUST BECOME EFFECTIVE BY JULY 1, 2025.
## SECTION 2.
In Colorado Revised Statutes, amend 6-1-104 as follows:
### 6-1-104. Cooperative reporting.
The district attorneys may cooperate in a statewide reporting system by receiving, on forms provided by the attorney general, complaints from persons concerning deceptive trade practices listed in section 6-1-105 and part 7 OR 13 of this ARTICLE 1 and transmitting the complaints to the attorney general.
## SECTION 3.
In Colorado Revised Statutes, 6-1-105, add (1)(nnn) as follows:
### 6-1-105. Unfair or deceptive trade practices.
(1) A person engages in a deceptive trade practice when, in the course of the person's business, vocation, or occupation, the person:
(nnn) VIOLATES ANY PROVISION OF PART 13 OF THIS ARTICLE 1 AS SPECIFIED IN SECTION 6-1-1311 (1)(c).
## SECTION 4.
In Colorado Revised Statutes, 6-1-107, amend (1) introductory portion as follows:
### 6-1-107. Powers of attorney general and district attorneys.
(1) When the attorney general or a district attorney has reasonable cause to believe that any person, whether in this state or elsewhere, has engaged in or is engaging in any deceptive trade practice listed in section 6-1-105 or part 7 OR 13 of this ARTICLE 1, the attorney general or district attorney may:
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# SECTION 5.
In Colorado Revised Statutes, 6-1-108, amend (1) as follows:
## 6-1-108. Subpoenas - hearings - rules.
(1) When the attorney general or a district attorney has reasonable cause to believe that a person, whether in this state or elsewhere, has engaged in or is engaging in a deceptive trade practice listed in section 6-1-105 or part 7 OR 13 of this article 1, the attorney general or a district attorney, in addition to other powers conferred upon him or her THE ATTORNEY GENERAL OR A DISTRICT ATTORNEY by this article 1, may issue subpoenas to require the attendance of witnesses or the production of documents, administer oaths, conduct hearings in aid of any investigation or inquiry, and prescribe such forms and promulgate such rules as may be necessary to administer the provisions of this article 1.
# SECTION 6.
In Colorado Revised Statutes, 6-1-110, amend (1) and (2) as follows:
## 6-1-110. Restraining orders - injunctions - assurances of discontinuance.
(1) Whenever the attorney general or a district attorney has cause to believe that a person has engaged in or is engaging in any deceptive trade practice listed in section 6-1-105 or part 7 OR 13 of this article ARTICLE 1, the attorney general or district attorney may apply for and obtain, in an action in the appropriate district court of this state, a temporary restraining order or injunction, or both, pursuant to the Colorado rules of civil procedure, prohibiting such THE person from continuing such THE practices, or engaging therein, or doing any act in furtherance thereof. The court may make such orders or judgments as may be necessary to prevent the use or employment by such THE person of any such deceptive trade practice or which THAT may be necessary to completely compensate or restore to the original position of any person injured by means of any such practice or to prevent any unjust enrichment by any person through the use or employment of any deceptive trade practice.
(2) Where the attorney general or a district attorney has authority to institute a civil action or other proceeding pursuant to the provisions of this article ARTICLE 1, the attorney general or district attorney may accept, in lieu thereof or as a part thereof, an assurance of discontinuance of any deceptive trade practice listed in section 6-1-105 or part 7 OR 13 of this article. Such ARTICLE 1. THE assurance may include a stipulation for the voluntary
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payment by the alleged violator of the costs of investigation and any action or proceeding by the attorney general or a district attorney and any amount necessary to restore to any person any money or property that may have been acquired by such THE alleged violator by means of any such deceptive trade practice. Any such assurance of discontinuance accepted by the attorney general or a district attorney and any such stipulation filed with the court as a part of any such action or proceeding shall be IS a matter of public record unless the attorney general or the district attorney determines, at his or her THE discretion OF THE ATTORNEY GENERAL OR DISTRICT ATTORNEY, that it will be confidential to the parties to the action or proceeding and to the court and its employees. Upon the filing of a civil action by the attorney general or a district attorney alleging that a confidential assurance of discontinuance or stipulation accepted pursuant to this subsection (2) has been violated, said THE assurance of discontinuance or stipulation shall thereupon be deemed BECOMES a public record and open to inspection by any person. Proof by a preponderance of the evidence of a violation of any such assurance or stipulation shall constitute CONSTITUTES prima facie evidence of a deceptive trade practice for the purposes of any civil action or proceeding brought thereafter by the attorney general or a district attorney, whether a new action or a subsequent motion or petition in any pending action or proceeding.
#### SECTION 7. Act subject to petition - effective date - applicability.
(1) This act takes effect July 1, 2023; except that, if a referendum petition is filed pursuant to section 1 (3) of article V of the state constitution against this act or an item, section, or part of this act within the ninety-day period after final adjournment of the general assembly, then the act, item, section, or part will not take effect unless approved by the people at the general election to be held in November 2022 and, in such case, will take effect July 1, 2023, or on the date of the official declaration of the vote thereon by the governor, whichever is later.
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(2) This act applies to conduct occurring on or after the applicable effective date of this act.
| Leroy M. Garcia | Alec Garnett |
|-----------------|--------------|
| PRESIDENT OF THE SENATE | SPEAKER OF THE HOUSE OF REPRESENTATIVES |
| Cindi L. Markwell | Robin Jones |
|-------------------|--------------|
| SECRETARY OF THE SENATE | CHIEF CLERK OF THE HOUSE OF REPRESENTATIVES |
APPROVED___________________________
(Date and Time)
___________________________
Jared S. Polis
GOVERNOR OF THE STATE OF COLORADO |
# SENATE BILL 24-205
BY SENATOR(S) Rodriguez, Cutter, Michaelson Jenet, Priola, Winter F., Fenberg;
also REPRESENTATIVE(S) Titone and Rutinel, Duran.
CONCERNING CONSUMER PROTECTIONS IN INTERACTIONS WITH ARTIFICIAL INTELLIGENCE SYSTEMS.
Be it enacted by the General Assembly of the State of Colorado:
## SECTION 1.
In Colorado Revised Statutes, add part 17 to article 1 of title 6 as follows:
### PART 17
### ARTIFICIAL INTELLIGENCE
#### 6-1-1701. Definitions.
AS USED IN THIS PART 17, UNLESS THE CONTEXT OTHERWISE REQUIRES:
(1) (a) "ALGORITHMIC DISCRIMINATION" MEANS ANY CONDITION IN WHICH THE USE OF AN ARTIFICIAL INTELLIGENCE SYSTEM RESULTS IN AN UNLAWFUL DIFFERENTIAL TREATMENT OR IMPACT THAT DISFAVORS AN INDIVIDUAL OR GROUP OF INDIVIDUALS ON THE BASIS OF THEIR ACTUAL OR
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PERCEIVED AGE, COLOR, DISABILITY, ETHNICITY, GENETIC INFORMATION, LIMITED PROFICIENCY IN THE ENGLISH LANGUAGE, NATIONAL ORIGIN, RACE, RELIGION, REPRODUCTIVE HEALTH, SEX, VETERAN STATUS, OR OTHER CLASSIFICATION PROTECTED UNDER THE LAWS OF THIS STATE OR FEDERAL LAW.
(b) "ALGORITHMIC DISCRIMINATION" DOES NOT INCLUDE:
(I) THE OFFER, LICENSE, OR USE OF A HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM BY A DEVELOPER OR DEPLOYER FOR THE SOLE PURPOSE OF:
(A) THE DEVELOPER'S OR DEPLOYER'S SELF-TESTING TO IDENTIFY, MITIGATE, OR PREVENT DISCRIMINATION OR OTHERWISE ENSURE COMPLIANCE WITH STATE AND FEDERAL LAW; OR
(B) EXPANDING AN APPLICANT, CUSTOMER, OR PARTICIPANT POOL TO INCREASE DIVERSITY OR REDRESS HISTORICAL DISCRIMINATION; OR
(II) AN ACT OR OMISSION BY OR ON BEHALF OF A PRIVATE CLUB OR OTHER ESTABLISHMENT THAT IS NOT IN FACT OPEN TO THE PUBLIC, AS SET FORTH IN TITLE II OF THE FEDERAL "CIVIL RIGHTS ACT OF 1964", 42 U.S.C. SEC. 2000a (e), AS AMENDED.
(2) "ARTIFICIAL INTELLIGENCE SYSTEM" MEANS ANY MACHINE-BASED SYSTEM THAT, FOR ANY EXPLICIT OR IMPLICIT OBJECTIVE, INFERS FROM THE INPUTS THE SYSTEM RECEIVES HOW TO GENERATE OUTPUTS, INCLUDING CONTENT, DECISIONS, PREDICTIONS, OR RECOMMENDATIONS, THAT CAN INFLUENCE PHYSICAL OR VIRTUAL ENVIRONMENTS.
(3) "CONSEQUENTIAL DECISION" MEANS A DECISION THAT HAS A MATERIAL LEGAL OR SIMILARLY SIGNIFICANT EFFECT ON THE PROVISION OR DENIAL TO ANY CONSUMER OF, OR THE COST OR TERMS OF:
(a) EDUCATION ENROLLMENT OR AN EDUCATION OPPORTUNITY;
(b) EMPLOYMENT OR AN EMPLOYMENT OPPORTUNITY;
(c) A FINANCIAL OR LENDING SERVICE;
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(d) AN ESSENTIAL GOVERNMENT SERVICE;
(e) HEALTH-CARE SERVICES;
(f) HOUSING;
(g) INSURANCE; OR
(h) A LEGAL SERVICE.
(4) "CONSUMER" MEANS AN INDIVIDUAL WHO IS A COLORADO RESIDENT.
(5) "DEPLOY" MEANS TO USE A HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM.
(6) "DEPLOYER" MEANS A PERSON DOING BUSINESS IN THIS STATE THAT DEPLOYS A HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM.
(7) "DEVELOPER" MEANS A PERSON DOING BUSINESS IN THIS STATE THAT DEVELOPS OR INTENTIONALLY AND SUBSTANTIALLY MODIFIES AN ARTIFICIAL INTELLIGENCE SYSTEM.
(8) "HEALTH-CARE SERVICES" HAS THE SAME MEANING AS PROVIDED IN 42 U.S.C. SEC. 234 (d)(2).
(9) (a) "HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM" MEANS ANY ARTIFICIAL INTELLIGENCE SYSTEM THAT, WHEN DEPLOYED, MAKES, OR IS A SUBSTANTIAL FACTOR IN MAKING, A CONSEQUENTIAL DECISION.
(b) "HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM" DOES NOT INCLUDE:
(I) AN ARTIFICIAL INTELLIGENCE SYSTEM IF THE ARTIFICIAL INTELLIGENCE SYSTEM IS INTENDED TO:
(A) PERFORM A NARROW PROCEDURAL TASK; OR
(B) DETECT DECISION-MAKING PATTERNS OR DEVIATIONS FROM PRIOR DECISION-MAKING PATTERNS AND IS NOT INTENDED TO REPLACE OR
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INFLUENCE A PREVIOUSLY COMPLETED HUMAN ASSESSMENT WITHOUT SUFFICIENT HUMAN REVIEW; OR
(II) THE FOLLOWING TECHNOLOGIES, UNLESS THE TECHNOLOGIES, WHEN DEPLOYED, MAKE, OR ARE A SUBSTANTIAL FACTOR IN MAKING, A CONSEQUENTIAL DECISION:
(A) ANTI-FRAUD TECHNOLOGY THAT DOES NOT USE FACIAL RECOGNITION TECHNOLOGY;
(B) ANTI-MALWARE;
(C) ANTI-VIRUS;
(D) ARTIFICIAL INTELLIGENCE-ENABLED VIDEO GAMES;
(E) CALCULATORS;
(F) CYBERSECURITY;
(G) DATABASES;
(H) DATA STORAGE;
(I) FIREWALL;
(J) INTERNET DOMAIN REGISTRATION;
(K) INTERNET WEBSITE LOADING;
(L) NETWORKING;
(M) SPAM- AND ROBOCALL-FILTERING;
(N) SPELL-CHECKING;
(O) SPREADSHEETS;
(P) WEB CACHING;
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(Q) WEB HOSTING OR ANY SIMILAR TECHNOLOGY; OR
(R) TECHNOLOGY THAT COMMUNICATES WITH CONSUMERS IN NATURAL LANGUAGE FOR THE PURPOSE OF PROVIDING USERS WITH INFORMATION, MAKING REFERRALS OR RECOMMENDATIONS, AND ANSWERING QUESTIONS AND IS SUBJECT TO AN ACCEPTED USE POLICY THAT PROHIBITS GENERATING CONTENT THAT IS DISCRIMINATORY OR HARMFUL.
(10) (a) "INTENTIONAL AND SUBSTANTIAL MODIFICATION" OR "INTENTIONALLY AND SUBSTANTIALLY MODIFIES" MEANS A DELIBERATE CHANGE MADE TO AN ARTIFICIAL INTELLIGENCE SYSTEM THAT RESULTS IN ANY NEW REASONABLY FORESEEABLE RISK OF ALGORITHMIC DISCRIMINATION.
(b) "INTENTIONAL AND SUBSTANTIAL MODIFICATION" OR "INTENTIONALLY AND SUBSTANTIALLY MODIFIES" DOES NOT INCLUDE A CHANGE MADE TO A HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM, OR THE PERFORMANCE OF A HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM, IF:
(I) THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM CONTINUES TO LEARN AFTER THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM IS:
(A) OFFERED, SOLD, LEASED, LICENSED, GIVEN, OR OTHERWISE MADE AVAILABLE TO A DEPLOYER; OR
(B) DEPLOYED;
(II) THE CHANGE IS MADE TO THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM AS A RESULT OF ANY LEARNING DESCRIBED IN SUBSECTION (10)(b)(I) OF THIS SECTION;
(III) THE CHANGE WAS PREDETERMINED BY THE DEPLOYER, OR A THIRD PARTY CONTRACTED BY THE DEPLOYER, WHEN THE DEPLOYER OR THIRD PARTY COMPLETED AN INITIAL IMPACT ASSESSMENT OF SUCH HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM PURSUANT TO SECTION 6-1-1703 (3); AND
(IV) THE CHANGE IS INCLUDED IN TECHNICAL DOCUMENTATION FOR THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM.
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(11) (a) "SUBSTANTIAL FACTOR" MEANS A FACTOR THAT:
(I) ASSISTS IN MAKING A CONSEQUENTIAL DECISION;
(II) IS CAPABLE OF ALTERING THE OUTCOME OF A CONSEQUENTIAL DECISION; AND
(III) IS GENERATED BY AN ARTIFICIAL INTELLIGENCE SYSTEM.
(b) "SUBSTANTIAL FACTOR" INCLUDES ANY USE OF AN ARTIFICIAL INTELLIGENCE SYSTEM TO GENERATE ANY CONTENT, DECISION, PREDICTION, OR RECOMMENDATION CONCERNING A CONSUMER THAT IS USED AS A BASIS TO MAKE A CONSEQUENTIAL DECISION CONCERNING THE CONSUMER.
(12) "TRADE SECRET" HAS THE MEANING SET FORTH IN SECTION 7-74-102 (4).
# 6-1-1702. Developer duty to avoid algorithmic discrimination - required documentation.
(1) ON AND AFTER FEBRUARY 1, 2026, A DEVELOPER OF A HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM SHALL USE REASONABLE CARE TO PROTECT CONSUMERS FROM ANY KNOWN OR REASONABLY FORESEEABLE RISKS OF ALGORITHMIC DISCRIMINATION ARISING FROM THE INTENDED AND CONTRACTED USES OF THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM. IN ANY ENFORCEMENT ACTION BROUGHT ON OR AFTER FEBRUARY 1, 2026, BY THE ATTORNEY GENERAL PURSUANT TO SECTION 6-1-1706, THERE IS A REBUTTABLE PRESUMPTION THAT A DEVELOPER USED REASONABLE CARE AS REQUIRED UNDER THIS SECTION IF THE DEVELOPER COMPLIED WITH THIS SECTION AND ANY ADDITIONAL REQUIREMENTS OR OBLIGATIONS AS SET FORTH IN RULES PROMULGATED BY THE ATTORNEY GENERAL PURSUANT TO SECTION 6-1-1707.
(2) ON AND AFTER FEBRUARY 1, 2026, AND EXCEPT AS PROVIDED IN SUBSECTION (6) OF THIS SECTION, A DEVELOPER OF A HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM SHALL MAKE AVAILABLE TO THE DEPLOYER OR OTHER DEVELOPER OF THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM:
(a) A GENERAL STATEMENT DESCRIBING THE REASONABLY FORESEEABLE USES AND KNOWN HARMFUL OR INAPPROPRIATE USES OF THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM;
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(b) DOCUMENTATION DISCLOSING:
(I) HIGH-LEVEL SUMMARIES OF THE TYPE OF DATA USED TO TRAIN THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM;
(II) KNOWN OR REASONABLY FORESEEABLE LIMITATIONS OF THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM, INCLUDING KNOWN OR REASONABLY FORESEEABLE RISKS OF ALGORITHMIC DISCRIMINATION ARISING FROM THE INTENDED USES OF THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM;
(III) THE PURPOSE OF THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM;
(IV) THE INTENDED BENEFITS AND USES OF THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM; AND
(V) ALL OTHER INFORMATION NECESSARY TO ALLOW THE DEPLOYER TO COMPLY WITH THE REQUIREMENTS OF SECTION 6-1-1703;
(c) DOCUMENTATION DESCRIBING:
(I) HOW THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM WAS EVALUATED FOR PERFORMANCE AND MITIGATION OF ALGORITHMIC DISCRIMINATION BEFORE THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM WAS OFFERED, SOLD, LEASED, LICENSED, GIVEN, OR OTHERWISE MADE AVAILABLE TO THE DEPLOYER;
(II) THE DATA GOVERNANCE MEASURES USED TO COVER THE TRAINING DATASETS AND THE MEASURES USED TO EXAMINE THE SUITABILITY OF DATA SOURCES, POSSIBLE BIASES, AND APPROPRIATE MITIGATION;
(III) THE INTENDED OUTPUTS OF THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM;
(IV) THE MEASURES THE DEVELOPER HAS TAKEN TO MITIGATE KNOWN OR REASONABLY FORESEEABLE RISKS OF ALGORITHMIC DISCRIMINATION THAT MAY ARISE FROM THE REASONABLY FORESEEABLE DEPLOYMENT OF THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM; AND
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(V) HOW THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM SHOULD BE USED, NOT BE USED, AND BE MONITORED BY AN INDIVIDUAL WHEN THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM IS USED TO MAKE, OR IS A SUBSTANTIAL FACTOR IN MAKING, A CONSEQUENTIAL DECISION; AND
(d) ANY ADDITIONAL DOCUMENTATION THAT IS REASONABLY NECESSARY TO ASSIST THE DEPLOYER IN UNDERSTANDING THE OUTPUTS AND MONITOR THE PERFORMANCE OF THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM FOR RISKS OF ALGORITHMIC DISCRIMINATION.
(3) (a) EXCEPT AS PROVIDED IN SUBSECTION (6) OF THIS SECTION, A DEVELOPER THAT OFFERS, SELLS, LEASES, LICENSES, GIVES, OR OTHERWISE MAKES AVAILABLE TO A DEPLOYER OR OTHER DEVELOPER A HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM ON OR AFTER FEBRUARY 1, 2026, SHALL MAKE AVAILABLE TO THE DEPLOYER OR OTHER DEVELOPER, TO THE EXTENT FEASIBLE, THE DOCUMENTATION AND INFORMATION, THROUGH ARTIFACTS SUCH AS MODEL CARDS, DATASET CARDS, OR OTHER IMPACT ASSESSMENTS, NECESSARY FOR A DEPLOYER, OR FOR A THIRD PARTY CONTRACTED BY A DEPLOYER, TO COMPLETE AN IMPACT ASSESSMENT PURSUANT TO SECTION 6-1-1703 (3).
(b) A DEVELOPER THAT ALSO SERVES AS A DEPLOYER FOR A HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM IS NOT REQUIRED TO GENERATE THE DOCUMENTATION REQUIRED BY THIS SECTION UNLESS THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM IS PROVIDED TO AN UNAFFILIATED ENTITY ACTING AS A DEPLOYER.
(4) (a) ON AND AFTER FEBRUARY 1, 2026, A DEVELOPER SHALL MAKE AVAILABLE, IN A MANNER THAT IS CLEAR AND READILY AVAILABLE ON THE DEVELOPER'S WEBSITE OR IN A PUBLIC USE CASE INVENTORY, A STATEMENT SUMMARIZING:
(I) THE TYPES OF HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEMS THAT THE DEVELOPER HAS DEVELOPED OR INTENTIONALLY AND SUBSTANTIALLY MODIFIED AND CURRENTLY MAKES AVAILABLE TO A DEPLOYER OR OTHER DEVELOPER; AND
(II) HOW THE DEVELOPER MANAGES KNOWN OR REASONABLY FORESEEABLE RISKS OF ALGORITHMIC DISCRIMINATION THAT MAY ARISE FROM THE DEVELOPMENT OR INTENTIONAL AND SUBSTANTIAL MODIFICATION
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OF THE TYPES OF HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEMS DESCRIBED IN ACCORDANCE WITH SUBSECTION (4)(a)(I) OF THIS SECTION.
(b) A DEVELOPER SHALL UPDATE THE STATEMENT DESCRIBED IN SUBSECTION (4)(a) OF THIS SECTION:
(I) AS NECESSARY TO ENSURE THAT THE STATEMENT REMAINS ACCURATE; AND
(II) NO LATER THAN NINETY DAYS AFTER THE DEVELOPER INTENTIONALLY AND SUBSTANTIALLY MODIFIES ANY HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM DESCRIBED IN SUBSECTION (4)(a)(I) OF THIS SECTION.
(5) ON AND AFTER FEBRUARY 1, 2026, A DEVELOPER OF A HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM SHALL DISCLOSE TO THE ATTORNEY GENERAL, IN A FORM AND MANNER PRESCRIBED BY THE ATTORNEY GENERAL, AND TO ALL KNOWN DEPLOYERS OR OTHER DEVELOPERS OF THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM, ANY KNOWN OR REASONABLY FORESEEABLE RISKS OF ALGORITHMIC DISCRIMINATION ARISING FROM THE INTENDED USES OF THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM WITHOUT UNREASONABLE DELAY BUT NO LATER THAN NINETY DAYS AFTER THE DATE ON WHICH:
(a) THE DEVELOPER DISCOVERS THROUGH THE DEVELOPER'S ONGOING TESTING AND ANALYSIS THAT THE DEVELOPER'S HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM HAS BEEN DEPLOYED AND HAS CAUSED OR IS REASONABLY LIKELY TO HAVE CAUSED ALGORITHMIC DISCRIMINATION; OR
(b) THE DEVELOPER RECEIVES FROM A DEPLOYER A CREDIBLE REPORT THAT THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM HAS BEEN DEPLOYED AND HAS CAUSED ALGORITHMIC DISCRIMINATION.
(6) NOTHING IN SUBSECTIONS (2) TO (5) OF THIS SECTION REQUIRES A DEVELOPER TO DISCLOSE A TRADE SECRET, INFORMATION PROTECTED FROM DISCLOSURE BY STATE OR FEDERAL LAW, OR INFORMATION THAT WOULD CREATE A SECURITY RISK TO THE DEVELOPER.
(7) ON AND AFTER FEBRUARY 1, 2026, THE ATTORNEY GENERAL MAY REQUIRE THAT A DEVELOPER DISCLOSE TO THE ATTORNEY GENERAL, NO LATER THAN NINETY DAYS AFTER THE REQUEST AND IN A FORM AND MANNER
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# PRESCRIBED BY THE ATTORNEY GENERAL, THE STATEMENT OR DOCUMENTATION DESCRIBED IN SUBSECTION (2) OF THIS SECTION. THE ATTORNEY GENERAL MAY EVALUATE SUCH STATEMENT OR DOCUMENTATION TO ENSURE COMPLIANCE WITH THIS PART 17, AND THE STATEMENT OR DOCUMENTATION IS NOT SUBJECT TO DISCLOSURE UNDER THE "COLORADO OPEN RECORDS ACT", PART 2 OF ARTICLE 72 OF TITLE 24. IN A DISCLOSURE PURSUANT TO THIS SUBSECTION (7), A DEVELOPER MAY DESIGNATE THE STATEMENT OR DOCUMENTATION AS INCLUDING PROPRIETARY INFORMATION OR A TRADE SECRET. TO THE EXTENT THAT ANY INFORMATION CONTAINED IN THE STATEMENT OR DOCUMENTATION INCLUDES INFORMATION SUBJECT TO ATTORNEY-CLIENT PRIVILEGE OR WORK-PRODUCT PROTECTION, THE DISCLOSURE DOES NOT CONSTITUTE A WAIVER OF THE PRIVILEGE OR PROTECTION.
## 6-1-1703. Deployer duty to avoid algorithmic discrimination - risk management policy and program.
(1) ON AND AFTER FEBRUARY 1, 2026, A DEPLOYER OF A HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM SHALL USE REASONABLE CARE TO PROTECT CONSUMERS FROM ANY KNOWN OR REASONABLY FORESEEABLE RISKS OF ALGORITHMIC DISCRIMINATION. IN ANY ENFORCEMENT ACTION BROUGHT ON OR AFTER FEBRUARY 1, 2026, BY THE ATTORNEY GENERAL PURSUANT TO SECTION 6-1-1706, THERE IS A REBUTTABLE PRESUMPTION THAT A DEPLOYER OF A HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM USED REASONABLE CARE AS REQUIRED UNDER THIS SECTION IF THE DEPLOYER COMPLIED WITH THIS SECTION AND ANY ADDITIONAL REQUIREMENTS OR OBLIGATIONS AS SET FORTH IN RULES PROMULGATED BY THE ATTORNEY GENERAL PURSUANT TO SECTION 6-1-1707.
(2) (a) ON AND AFTER FEBRUARY 1, 2026, AND EXCEPT AS PROVIDED IN SUBSECTION (6) OF THIS SECTION, A DEPLOYER OF A HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM SHALL IMPLEMENT A RISK MANAGEMENT POLICY AND PROGRAM TO GOVERN THE DEPLOYER'S DEPLOYMENT OF THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM. THE RISK MANAGEMENT POLICY AND PROGRAM MUST SPECIFY AND INCORPORATE THE PRINCIPLES, PROCESSES, AND PERSONNEL THAT THE DEPLOYER USES TO IDENTIFY, DOCUMENT, AND MITIGATE KNOWN OR REASONABLY FORESEEABLE RISKS OF ALGORITHMIC DISCRIMINATION. THE RISK MANAGEMENT POLICY AND PROGRAM MUST BE AN ITERATIVE PROCESS PLANNED, IMPLEMENTED, AND REGULARLY AND SYSTEMATICALLY REVIEWED AND UPDATED OVER THE LIFE CYCLE OF A HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM, REQUIRING REGULAR,
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SYSTEMATIC REVIEW AND UPDATES. A RISK MANAGEMENT POLICY AND PROGRAM IMPLEMENTED AND MAINTAINED PURSUANT TO THIS SUBSECTION (2) MUST BE REASONABLE CONSIDERING:
(I) (A) THE GUIDANCE AND STANDARDS SET FORTH IN THE LATEST VERSION OF THE "ARTIFICIAL INTELLIGENCE RISK MANAGEMENT FRAMEWORK" PUBLISHED BY THE NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY IN THE UNITED STATES DEPARTMENT OF COMMERCE, STANDARD ISO/IEC 42001 OF THE INTERNATIONAL ORGANIZATION FOR STANDARDIZATION, OR ANOTHER NATIONALLY OR INTERNATIONALLY RECOGNIZED RISK MANAGEMENT FRAMEWORK FOR ARTIFICIAL INTELLIGENCE SYSTEMS, IF THE STANDARDS ARE SUBSTANTIALLY EQUIVALENT TO OR MORE STRINGENT THAN THE REQUIREMENTS OF THIS PART 17; OR
(B) ANY RISK MANAGEMENT FRAMEWORK FOR ARTIFICIAL INTELLIGENCE SYSTEMS THAT THE ATTORNEY GENERAL, IN THE ATTORNEY GENERAL'S DISCRETION, MAY DESIGNATE;
(II) THE SIZE AND COMPLEXITY OF THE DEPLOYER;
(III) THE NATURE AND SCOPE OF THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEMS DEPLOYED BY THE DEPLOYER, INCLUDING THE INTENDED USES OF THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEMS; AND
(IV) THE SENSITIVITY AND VOLUME OF DATA PROCESSED IN CONNECTION WITH THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEMS DEPLOYED BY THE DEPLOYER.
(b) A RISK MANAGEMENT POLICY AND PROGRAM IMPLEMENTED PURSUANT TO SUBSECTION (2)(a) OF THIS SECTION MAY COVER MULTIPLE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEMS DEPLOYED BY THE DEPLOYER.
(3) (a) EXCEPT AS PROVIDED IN SUBSECTIONS (3)(d), (3)(c), AND (6) OF THIS SECTION:
(I) A DEPLOYER, OR A THIRD PARTY CONTRACTED BY THE DEPLOYER, THAT DEPLOYS A HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM ON OR AFTER FEBRUARY 1, 2026, SHALL COMPLETE AN IMPACT ASSESSMENT FOR THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM; AND
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(II) ON AND AFTER FEBRUARY 1, 2026, A DEPLOYER, OR A THIRD PARTY CONTRACTED BY THE DEPLOYER, SHALL COMPLETE AN IMPACT ASSESSMENT FOR A DEPLOYED HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM AT LEAST ANNUALLY AND WITHIN NINETY DAYS AFTER ANY INTENTIONAL AND SUBSTANTIAL MODIFICATION TO THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM IS MADE AVAILABLE.
(b) AN IMPACT ASSESSMENT COMPLETED PURSUANT TO THIS SUBSECTION (3) MUST INCLUDE, AT A MINIMUM, AND TO THE EXTENT REASONABLY KNOWN BY OR AVAILABLE TO THE DEPLOYER:
(I) A STATEMENT BY THE DEPLOYER DISCLOSING THE PURPOSE, INTENDED USE CASES, AND DEPLOYMENT CONTEXT OF, AND BENEFITS AFFORDED BY, THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM;
(II) AN ANALYSIS OF WHETHER THE DEPLOYMENT OF THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM POSES ANY KNOWN OR REASONABLY FORESEEABLE RISKS OF ALGORITHMIC DISCRIMINATION AND, IF SO, THE NATURE OF THE ALGORITHMIC DISCRIMINATION AND THE STEPS THAT HAVE BEEN TAKEN TO MITIGATE THE RISKS;
(III) A DESCRIPTION OF THE CATEGORIES OF DATA THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM PROCESSES AS INPUTS AND THE OUTPUTS THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM PRODUCES;
(IV) IF THE DEPLOYER USED DATA TO CUSTOMIZE THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM, AN OVERVIEW OF THE CATEGORIES OF DATA THE DEPLOYER USED TO CUSTOMIZE THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM;
(V) ANY METRICS USED TO EVALUATE THE PERFORMANCE AND KNOWN LIMITATIONS OF THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM;
(VI) A DESCRIPTION OF ANY TRANSPARENCY MEASURES TAKEN CONCERNING THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM, INCLUDING ANY MEASURES TAKEN TO DISCLOSE TO A CONSUMER THAT THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM IS IN USE WHEN THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM IS IN USE; AND
(VII) A DESCRIPTION OF THE POST-DEPLOYMENT MONITORING AND
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USER SAFEGUARDS PROVIDED CONCERNING THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM, INCLUDING THE OVERSIGHT, USE, AND LEARNING PROCESS ESTABLISHED BY THE DEPLOYER TO ADDRESS ISSUES ARISING FROM THE DEPLOYMENT OF THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM.
(c) IN ADDITION TO THE INFORMATION REQUIRED UNDER SUBSECTION (3)(b) OF THIS SECTION, AN IMPACT ASSESSMENT COMPLETED PURSUANT TO THIS SUBSECTION (3) FOLLOWING AN INTENTIONAL AND SUBSTANTIAL MODIFICATION TO A HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM ON OR AFTER FEBRUARY 1, 2026, MUST INCLUDE A STATEMENT DISCLOSING THE EXTENT TO WHICH THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM WAS USED IN A MANNER THAT WAS CONSISTENT WITH, OR VARIED FROM, THE DEVELOPER'S INTENDED USES OF THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM.
(d) A SINGLE IMPACT ASSESSMENT MAY ADDRESS A COMPARABLE SET OF HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEMS DEPLOYED BY A DEPLOYER.
(e) IF A DEPLOYER, OR A THIRD PARTY CONTRACTED BY THE DEPLOYER, COMPLETES AN IMPACT ASSESSMENT FOR THE PURPOSE OF COMPLYING WITH ANOTHER APPLICABLE LAW OR REGULATION, THE IMPACT ASSESSMENT SATISFIES THE REQUIREMENTS ESTABLISHED IN THIS SUBSECTION (3) IF THE IMPACT ASSESSMENT IS REASONABLY SIMILAR IN SCOPE AND EFFECT TO THE IMPACT ASSESSMENT THAT WOULD OTHERWISE BE COMPLETED PURSUANT TO THIS SUBSECTION (3).
(f) A DEPLOYER SHALL MAINTAIN THE MOST RECENTLY COMPLETED IMPACT ASSESSMENT FOR A HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM AS REQUIRED UNDER THIS SUBSECTION (3), ALL RECORDS CONCERNING EACH IMPACT ASSESSMENT, AND ALL PRIOR IMPACT ASSESSMENTS, IF ANY, FOR AT LEAST THREE YEARS FOLLOWING THE FINAL DEPLOYMENT OF THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM.
(g) ON OR BEFORE FEBRUARY 1, 2026, AND AT LEAST ANNUALLY THEREAFTER, A DEPLOYER, OR A THIRD PARTY CONTRACTED BY THE DEPLOYER, MUST REVIEW THE DEPLOYMENT OF EACH HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM DEPLOYED BY THE DEPLOYER TO ENSURE THAT THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM IS NOT CAUSING ALGORITHMIC DISCRIMINATION.
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(4) (a) ON AND AFTER FEBRUARY 1, 2026, AND NO LATER THAN THE TIME THAT A DEPLOYER DEPLOYS A HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM TO MAKE, OR BE A SUBSTANTIAL FACTOR IN MAKING, A CONSEQUENTIAL DECISION CONCERNING A CONSUMER, THE DEPLOYER SHALL:
(I) NOTIFY THE CONSUMER THAT THE DEPLOYER HAS DEPLOYED A HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM TO MAKE, OR BE A SUBSTANTIAL FACTOR IN MAKING, A CONSEQUENTIAL DECISION BEFORE THE DECISION IS MADE;
(II) PROVIDE TO THE CONSUMER A STATEMENT DISCLOSING THE PURPOSE OF THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM AND THE NATURE OF THE CONSEQUENTIAL DECISION; THE CONTACT INFORMATION FOR THE DEPLOYER; A DESCRIPTION, IN PLAIN LANGUAGE, OF THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM; AND INSTRUCTIONS ON HOW TO ACCESS THE STATEMENT REQUIRED BY SUBSECTION (5)(a) OF THIS SECTION; AND
(III) PROVIDE TO THE CONSUMER INFORMATION, IF APPLICABLE, REGARDING THE CONSUMER'S RIGHT TO OPT OUT OF THE PROCESSING OF PERSONAL DATA CONCERNING THE CONSUMER FOR PURPOSES OF PROFILING IN FURTHERANCE OF DECISIONS THAT PRODUCE LEGAL OR SIMILARLY SIGNIFICANT EFFECTS CONCERNING THE CONSUMER UNDER SECTION 6-1-1306 (1)(a)(I)(C).
(b) ON AND AFTER FEBRUARY 1, 2026, A DEPLOYER THAT HAS DEPLOYED A HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM TO MAKE, OR BE A SUBSTANTIAL FACTOR IN MAKING, A CONSEQUENTIAL DECISION CONCERNING A CONSUMER SHALL, IF THE CONSEQUENTIAL DECISION IS ADVERSE TO THE CONSUMER, PROVIDE TO THE CONSUMER:
(I) A STATEMENT DISCLOSING THE PRINCIPAL REASON OR REASONS FOR THE CONSEQUENTIAL DECISION, INCLUDING:
(A) THE DEGREE TO WHICH, AND MANNER IN WHICH, THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM CONTRIBUTED TO THE CONSEQUENTIAL DECISION;
(B) THE TYPE OF DATA THAT WAS PROCESSED BY THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM IN MAKING THE CONSEQUENTIAL
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# DECISION; AND
(C) THE SOURCE OR SOURCES OF THE DATA DESCRIBED IN SUBSECTION (4)(b)(I)(B) OF THIS SECTION;
(II) AN OPPORTUNITY TO CORRECT ANY INCORRECT PERSONAL DATA THAT THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM PROCESSED IN MAKING, OR AS A SUBSTANTIAL FACTOR IN MAKING, THE CONSEQUENTIAL DECISION; AND
(III) AN OPPORTUNITY TO APPEAL AN ADVERSE CONSEQUENTIAL DECISION CONCERNING THE CONSUMER ARISING FROM THE DEPLOYMENT OF A HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM, WHICH APPEAL MUST, IF TECHNICALLY FEASIBLE, ALLOW FOR HUMAN REVIEW UNLESS PROVIDING THE OPPORTUNITY FOR APPEAL IS NOT IN THE BEST INTEREST OF THE CONSUMER, INCLUDING IN INSTANCES IN WHICH ANY DELAY MIGHT POSE A RISK TO THE LIFE OR SAFETY OF SUCH CONSUMER.
(c) (I) EXCEPT AS PROVIDED IN SUBSECTION (4)(c)(II) OF THIS SECTION, A DEPLOYER SHALL PROVIDE THE NOTICE, STATEMENT, CONTACT INFORMATION, AND DESCRIPTION REQUIRED BY SUBSECTIONS (4)(a) AND (4)(b) OF THIS SECTION:
(A) DIRECTLY TO THE CONSUMER;
(B) IN PLAIN LANGUAGE;
(C) IN ALL LANGUAGES IN WHICH THE DEPLOYER, IN THE ORDINARY COURSE OF THE DEPLOYER'S BUSINESS, PROVIDES CONTRACTS, DISCLAIMERS, SALE ANNOUNCEMENTS, AND OTHER INFORMATION TO CONSUMERS; AND
(D) IN A FORMAT THAT IS ACCESSIBLE TO CONSUMERS WITH DISABILITIES.
(II) IF THE DEPLOYER IS UNABLE TO PROVIDE THE NOTICE, STATEMENT, CONTACT INFORMATION, AND DESCRIPTION REQUIRED BY SUBSECTIONS (4)(a) AND (4)(b) OF THIS SECTION DIRECTLY TO THE CONSUMER, THE DEPLOYER SHALL MAKE THE NOTICE, STATEMENT, CONTACT INFORMATION, AND DESCRIPTION AVAILABLE IN A MANNER THAT IS REASONABLY CALCULATED TO ENSURE THAT THE CONSUMER RECEIVES THE
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NOTICE, STATEMENT, CONTACT INFORMATION, AND DESCRIPTION.
(5)(a) ON AND AFTER FEBRUARY 1, 2026, AND EXCEPT AS PROVIDED IN SUBSECTION (6) OF THIS SECTION, A DEPLOYER SHALL MAKE AVAILABLE, IN A MANNER THAT IS CLEAR AND READILY AVAILABLE ON THE DEPLOYER'S WEBSITE, A STATEMENT SUMMARIZING:
(I) THE TYPES OF HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEMS THAT ARE CURRENTLY DEPLOYED BY THE DEPLOYER;
(II) HOW THE DEPLOYER MANAGES KNOWN OR REASONABLY FORESEEABLE RISKS OF ALGORITHMIC DISCRIMINATION THAT MAY ARISE FROM THE DEPLOYMENT OF EACH HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM DESCRIBED PURSUANT TO SUBSECTION (5)(a)(I) OF THIS SECTION; AND
(III) IN DETAIL, THE NATURE, SOURCE, AND EXTENT OF THE INFORMATION COLLECTED AND USED BY THE DEPLOYER.
(b) A DEPLOYER SHALL PERIODICALLY UPDATE THE STATEMENT DESCRIBED IN SUBSECTION (5)(a) OF THIS SECTION.
(6) SUBSECTIONS (2), (3), AND (5) OF THIS SECTION DO NOT APPLY TO A DEPLOYER IF, AT THE TIME THE DEPLOYER DEPLOYS A HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM AND AT ALL TIMES WHILE THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM IS DEPLOYED:
(a) THE DEPLOYER:
(I) EMPLOYS FEWER THAN FIFTY FULL-TIME EQUIVALENT EMPLOYEES; AND
(II) DOES NOT USE THE DEPLOYER'S OWN DATA TO TRAIN THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM;
(b) THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM:
(I) IS USED FOR THE INTENDED USES THAT ARE DISCLOSED TO THE DEPLOYER AS REQUIRED BY SECTION 6-1-1702 (2)(a); AND
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(II) CONTINUES LEARNING BASED ON DATA DERIVED FROM SOURCES OTHER THAN THE DEPLOYER'S OWN DATA; AND
(c) THE DEPLOYER MAKES AVAILABLE TO CONSUMERS ANY IMPACT ASSESSMENT THAT:
(I) THE DEVELOPER OF THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM HAS COMPLETED AND PROVIDED TO THE DEPLOYER; AND
(II) INCLUDES INFORMATION THAT IS SUBSTANTIALLY SIMILAR TO THE INFORMATION IN THE IMPACT ASSESSMENT REQUIRED UNDER SUBSECTION (3)(b) OF THIS SECTION.
(7) IF A DEPLOYER DEPLOYS A HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM ON OR AFTER FEBRUARY 1, 2026, AND SUBSEQUENTLY DISCOVERS THAT THE HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM HAS CAUSED ALGORITHMIC DISCRIMINATION, THE DEPLOYER, WITHOUT UNREASONABLE DELAY, BUT NO LATER THAN NINETY DAYS AFTER THE DATE OF THE DISCOVERY, SHALL SEND TO THE ATTORNEY GENERAL, IN A FORM AND MANNER PRESCRIBED BY THE ATTORNEY GENERAL, A NOTICE DISCLOSING THE DISCOVERY.
(8) NOTHING IN SUBSECTIONS (2) TO (5) AND (7) OF THIS SECTION REQUIRES A DEPLOYER TO DISCLOSE A TRADE SECRET OR INFORMATION PROTECTED FROM DISCLOSURE BY STATE OR FEDERAL LAW. TO THE EXTENT THAT A DEPLOYER WITHHOLDS INFORMATION PURSUANT TO THIS SUBSECTION (8) OR SECTION 6-1-1705 (5), THE DEPLOYER SHALL NOTIFY THE CONSUMER AND PROVIDE A BASIS FOR THE WITHHOLDING.
(9) ON AND AFTER FEBRUARY 1, 2026, THE ATTORNEY GENERAL MAY REQUIRE THAT A DEPLOYER, OR A THIRD PARTY CONTRACTED BY THE DEPLOYER, DISCLOSE TO THE ATTORNEY GENERAL, NO LATER THAN NINETY DAYS AFTER THE REQUEST AND IN A FORM AND MANNER PRESCRIBED BY THE ATTORNEY GENERAL, THE RISK MANAGEMENT POLICY IMPLEMENTED PURSUANT TO SUBSECTION (2) OF THIS SECTION, THE IMPACT ASSESSMENT COMPLETED PURSUANT TO SUBSECTION (3) OF THIS SECTION, OR THE RECORDS MAINTAINED PURSUANT TO SUBSECTION (3)(f) OF THIS SECTION. THE ATTORNEY GENERAL MAY EVALUATE THE RISK MANAGEMENT POLICY, IMPACT ASSESSMENT, OR RECORDS TO ENSURE COMPLIANCE WITH THIS PART 17, AND THE RISK MANAGEMENT POLICY, IMPACT ASSESSMENT, AND
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# RECORDS ARE NOT SUBJECT TO DISCLOSURE UNDER THE "COLORADO OPEN RECORDS ACT", PART 2 OF ARTICLE 72 OF TITLE 24. IN A DISCLOSURE PURSUANT TO THIS SUBSECTION (9), A DEPLOYER MAY DESIGNATE THE STATEMENT OR DOCUMENTATION AS INCLUDING PROPRIETARY INFORMATION OR A TRADE SECRET. TO THE EXTENT THAT ANY INFORMATION CONTAINED IN THE RISK MANAGEMENT POLICY, IMPACT ASSESSMENT, OR RECORDS INCLUDE INFORMATION SUBJECT TO ATTORNEY-CLIENT PRIVILEGE OR WORK-PRODUCT PROTECTION, THE DISCLOSURE DOES NOT CONSTITUTE A WAIVER OF THE PRIVILEGE OR PROTECTION.
## 6-1-1704. Disclosure of an artificial intelligence system to consumer.
(1) ON AND AFTER FEBRUARY 1, 2026, AND EXCEPT AS PROVIDED IN SUBSECTION (2) OF THIS SECTION, A DEPLOYER OR OTHER DEVELOPER THAT DEPLOYS, OFFERS, SELLS, LEASES, LICENSES, GIVES, OR OTHERWISE MAKES AVAILABLE AN ARTIFICIAL INTELLIGENCE SYSTEM THAT IS INTENDED TO INTERACT WITH CONSUMERS SHALL ENSURE THE DISCLOSURE TO EACH CONSUMER WHO INTERACTS WITH THE ARTIFICIAL INTELLIGENCE SYSTEM THAT THE CONSUMER IS INTERACTING WITH AN ARTIFICIAL INTELLIGENCE SYSTEM.
(2) DISCLOSURE IS NOT REQUIRED UNDER SUBSECTION (1) OF THIS SECTION UNDER CIRCUMSTANCES IN WHICH IT WOULD BE OBVIOUS TO A REASONABLE PERSON THAT THE PERSON IS INTERACTING WITH AN ARTIFICIAL INTELLIGENCE SYSTEM.
## 6-1-1705. Compliance with other legal obligations - definitions.
(1) NOTHING IN THIS PART 17 RESTRICTS A DEVELOPER'S, A DEPLOYER'S, OR OTHER PERSON'S ABILITY TO:
(a) COMPLY WITH FEDERAL, STATE, OR MUNICIPAL LAWS, ORDINANCES, OR REGULATIONS;
(b) COMPLY WITH A CIVIL, CRIMINAL, OR REGULATORY INQUIRY, INVESTIGATION, SUBPOENA, OR SUMMONS BY A FEDERAL, A STATE, A MUNICIPAL, OR OTHER GOVERNMENTAL AUTHORITY;
(c) COOPERATE WITH A LAW ENFORCEMENT AGENCY CONCERNING CONDUCT OR ACTIVITY THAT THE DEVELOPER, DEPLOYER, OR OTHER PERSON REASONABLY AND IN GOOD FAITH BELIEVES MAY VIOLATE FEDERAL, STATE, OR MUNICIPAL LAWS, ORDINANCES, OR REGULATIONS;
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(d) INVESTIGATE, ESTABLISH, EXERCISE, PREPARE FOR, OR DEFEND LEGAL CLAIMS;
(e) TAKE IMMEDIATE STEPS TO PROTECT AN INTEREST THAT IS ESSENTIAL FOR THE LIFE OR PHYSICAL SAFETY OF A CONSUMER OR ANOTHER INDIVIDUAL;
(f) BY ANY MEANS OTHER THAN THE USE OF FACIAL RECOGNITION TECHNOLOGY, PREVENT, DETECT, PROTECT AGAINST, OR RESPOND TO SECURITY INCIDENTS, IDENTITY THEFT, FRAUD, HARASSMENT, MALICIOUS OR DECEPTIVE ACTIVITIES, OR ILLEGAL ACTIVITY; INVESTIGATE, REPORT, OR PROSECUTE THE PERSONS RESPONSIBLE FOR ANY SUCH ACTION; OR PRESERVE THE INTEGRITY OR SECURITY OF SYSTEMS;
(g) ENGAGE IN PUBLIC OR PEER-REVIEWED SCIENTIFIC OR STATISTICAL RESEARCH IN THE PUBLIC INTEREST THAT ADHERES TO ALL OTHER APPLICABLE ETHICS AND PRIVACY LAWS AND IS CONDUCTED IN ACCORDANCE WITH 45 CFR 46, AS AMENDED, OR RELEVANT REQUIREMENTS ESTABLISHED BY THE FEDERAL FOOD AND DRUG ADMINISTRATION;
(h) CONDUCT RESEARCH, TESTING, AND DEVELOPMENT ACTIVITIES REGARDING AN ARTIFICIAL INTELLIGENCE SYSTEM OR MODEL, OTHER THAN TESTING CONDUCTED UNDER REAL-WORLD CONDITIONS, BEFORE THE ARTIFICIAL INTELLIGENCE SYSTEM OR MODEL IS PLACED ON THE MARKET, DEPLOYED, OR PUT INTO SERVICE, AS APPLICABLE; OR
(i) ASSIST ANOTHER DEVELOPER, DEPLOYER, OR OTHER PERSON WITH ANY OF THE OBLIGATIONS IMPOSED UNDER THIS PART 17.
(2) THE OBLIGATIONS IMPOSED ON DEVELOPERS, DEPLOYERS, OR OTHER PERSONS UNDER THIS PART 17 DO NOT RESTRICT A DEVELOPER'S, A DEPLOYER'S, OR OTHER PERSON'S ABILITY TO:
(a) EFFECTUATE A PRODUCT RECALL; OR
(b) IDENTIFY AND REPAIR TECHNICAL ERRORS THAT IMPAIR EXISTING OR INTENDED FUNCTIONALITY.
(3) THE OBLIGATIONS IMPOSED ON DEVELOPERS, DEPLOYERS, OR OTHER PERSONS UNDER THIS PART 17 DO NOT APPLY WHERE COMPLIANCE
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WITH THIS PART 17 BY THE DEVELOPER, DEPLOYER, OR OTHER PERSON WOULD VIOLATE AN EVIDENTIARY PRIVILEGE UNDER THE LAWS OF THIS STATE.
(4) NOTHING IN THIS PART 17 IMPOSES ANY OBLIGATION ON A DEVELOPER, A DEPLOYER, OR OTHER PERSON THAT ADVERSELY AFFECTS THE RIGHTS OR FREEDOMS OF A PERSON, INCLUDING THE RIGHTS OF A PERSON TO FREEDOM OF SPEECH OR FREEDOM OF THE PRESS THAT ARE GUARANTEED IN:
(a) THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION; OR
(b) SECTION 10 OF ARTICLE II OF THE STATE CONSTITUTION.
(5) NOTHING IN THIS PART 17 APPLIES TO A DEVELOPER, A DEPLOYER, OR OTHER PERSON:
(a) INSOFAR AS THE DEVELOPER, DEPLOYER, OR OTHER PERSON DEVELOPS, DEPLOYS, PUTS INTO SERVICE, OR INTENTIONALLY AND SUBSTANTIALLY MODIFIES, AS APPLICABLE, A HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM:
(I) THAT HAS BEEN APPROVED, AUTHORIZED, CERTIFIED, CLEARED, DEVELOPED, OR GRANTED BY A FEDERAL AGENCY, SUCH AS THE FEDERAL FOOD AND DRUG ADMINISTRATION OR THE FEDERAL AVIATION ADMINISTRATION, ACTING WITHIN THE SCOPE OF THE FEDERAL AGENCY'S AUTHORITY, OR BY A REGULATED ENTITY SUBJECT TO THE SUPERVISION AND REGULATION OF THE FEDERAL HOUSING FINANCE AGENCY; OR
(II) IN COMPLIANCE WITH STANDARDS ESTABLISHED BY A FEDERAL AGENCY, INCLUDING STANDARDS ESTABLISHED BY THE FEDERAL OFFICE OF THE NATIONAL COORDINATOR FOR HEALTH INFORMATION TECHNOLOGY, OR BY A REGULATED ENTITY SUBJECT TO THE SUPERVISION AND REGULATION OF THE FEDERAL HOUSING FINANCE AGENCY, IF THE STANDARDS ARE SUBSTANTIALLY EQUIVALENT OR MORE STRINGENT THAN THE REQUIREMENTS OF THIS PART 17;
(b) CONDUCTING RESEARCH TO SUPPORT AN APPLICATION FOR APPROVAL OR CERTIFICATION FROM A FEDERAL AGENCY, INCLUDING THE FEDERAL AVIATION ADMINISTRATION, THE FEDERAL COMMUNICATIONS
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COMMISSION, OR THE FEDERAL FOOD AND DRUG ADMINISTRATION OR RESEARCH TO SUPPORT AN APPLICATION OTHERWISE SUBJECT TO REVIEW BY THE FEDERAL AGENCY;
(c) PERFORMING WORK UNDER, OR IN CONNECTION WITH, A CONTRACT WITH THE UNITED STATES DEPARTMENT OF COMMERCE, THE UNITED STATES DEPARTMENT OF DEFENSE, OR THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, UNLESS THE DEVELOPER, DEPLOYER, OR OTHER PERSON IS PERFORMING THE WORK ON A HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM THAT IS USED TO MAKE, OR IS A SUBSTANTIAL FACTOR IN MAKING, A DECISION CONCERNING EMPLOYMENT OR HOUSING; OR
(d) THAT IS A COVERED ENTITY WITHIN THE MEANING OF THE FEDERAL "HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996", 42 U.S.C. SECS. 1320d TO 1320d-9, AND THE REGULATIONS PROMULGATED UNDER THE FEDERAL ACT, AS BOTH MAY BE AMENDED FROM TIME TO TIME, AND IS PROVIDING HEALTH-CARE RECOMMENDATIONS THAT:
(I) ARE GENERATED BY AN ARTIFICIAL INTELLIGENCE SYSTEM;
(II) REQUIRE A HEALTH-CARE PROVIDER TO TAKE ACTION TO IMPLEMENT THE RECOMMENDATIONS; AND
(III) ARE NOT CONSIDERED TO BE HIGH RISK.
(6) NOTHING IN THIS PART 17 APPLIES TO ANY ARTIFICIAL INTELLIGENCE SYSTEM THAT IS ACQUIRED BY OR FOR THE FEDERAL GOVERNMENT OR ANY FEDERAL AGENCY OR DEPARTMENT, INCLUDING THE UNITED STATES DEPARTMENT OF COMMERCE, THE UNITED STATES DEPARTMENT OF DEFENSE, OR THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, UNLESS THE ARTIFICIAL INTELLIGENCE SYSTEM IS A HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM THAT IS USED TO MAKE, OR IS A SUBSTANTIAL FACTOR IN MAKING, A DECISION CONCERNING EMPLOYMENT OR HOUSING.
(7) AN INSURER, AS DEFINED IN SECTION 10-1-102 (13), A FRATERNAL BENEFIT SOCIETY, AS DESCRIBED IN SECTION 10-14-102, OR A DEVELOPER OF AN ARTIFICIAL INTELLIGENCE SYSTEM USED BY AN INSURER IS IN FULL COMPLIANCE WITH THIS PART 17 IF THE INSURER, THE FRATERNAL BENEFIT SOCIETY, OR THE DEVELOPER IS SUBJECT TO THE REQUIREMENTS OF
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SECTION 10-3-1104.9 AND ANY RULES ADOPTED BY THE COMMISSIONER OF INSURANCE PURSUANT TO SECTION 10-3-1104.9.
(8)(a) A BANK, OUT-OF-STATE BANK, CREDIT UNION CHARTERED BY THE STATE OF COLORADO, FEDERAL CREDIT UNION, OUT-OF-STATE CREDIT UNION, OR ANY AFFILIATE OR SUBSIDIARY THEREOF, IS IN FULL COMPLIANCE WITH THIS PART 17 IF THE BANK, OUT-OF-STATE BANK, CREDIT UNION CHARTERED BY THE STATE OF COLORADO, FEDERAL CREDIT UNION, OUT-OF-STATE CREDIT UNION, OR AFFILIATE OR SUBSIDIARY IS SUBJECT TO EXAMINATION BY A STATE OR FEDERAL PRUDENTIAL REGULATOR UNDER ANY PUBLISHED GUIDANCE OR REGULATIONS THAT APPLY TO THE USE OF HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEMS AND THE GUIDANCE OR REGULATIONS:
(I) IMPOSE REQUIREMENTS THAT ARE SUBSTANTIALLY EQUIVALENT TO OR MORE STRINGENT THAN THE REQUIREMENTS IMPOSED IN THIS PART 17; AND
(II) AT A MINIMUM, REQUIRE THE BANK, OUT-OF-STATE BANK, CREDIT UNION CHARTERED BY THE STATE OF COLORADO, FEDERAL CREDIT UNION, OUT-OF-STATE CREDIT UNION, OR AFFILIATE OR SUBSIDIARY TO:
(A) REGULARLY AUDIT THE BANK'S, OUT-OF-STATE BANK'S, CREDIT UNION CHARTERED BY THE STATE OF COLORADO'S, FEDERAL CREDIT UNION'S, OUT-OF-STATE CREDIT UNION'S, OR AFFILIATE'S OR SUBSIDIARY'S USE OF HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEMS FOR COMPLIANCE WITH STATE AND FEDERAL ANTI-DISCRIMINATION LAWS AND REGULATIONS APPLICABLE TO THE BANK, OUT-OF-STATE BANK, CREDIT UNION CHARTERED BY THE STATE OF COLORADO, FEDERAL CREDIT UNION, OUT-OF-STATE CREDIT UNION, OR AFFILIATE OR SUBSIDIARY; AND
(B) MITIGATE ANY ALGORITHMIC DISCRIMINATION CAUSED BY THE USE OF A HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM OR ANY RISK OF ALGORITHMIC DISCRIMINATION THAT IS REASONABLY FORESEEABLE AS A RESULT OF THE USE OF A HIGH-RISK ARTIFICIAL INTELLIGENCE SYSTEM.
(b) AS USED IN THIS SUBSECTION (8):
(I) "AFFILIATE" HAS THE MEANING SET FORTH IN SECTION 11-101-401 (3.5).
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(II) "BANK" HAS THE MEANING SET FORTH IN SECTION 11-101-401 (5).
(III) "CREDIT UNION" HAS THE MEANING SET FORTH IN SECTION 11-30-101 (1)(a).
(IV) "OUT-OF-STATE BANK" HAS THE MEANING SET FORTH IN SECTION 11-101-401 (50).
(9) IF A DEVELOPER, A DEPLOYER, OR OTHER PERSON ENGAGES IN AN ACTION PURSUANT TO AN EXEMPTION SET FORTH IN THIS SECTION, THE DEVELOPER, DEPLOYER, OR OTHER PERSON BEARS THE BURDEN OF DEMONSTRATING THAT THE ACTION QUALIFIES FOR THE EXEMPTION.
## 6-1-1706. Enforcement by attorney general.
(1) NOTWITHSTANDING SECTION 6-1-103, THE ATTORNEY GENERAL HAS EXCLUSIVE AUTHORITY TO ENFORCE THIS PART 17.
(2) EXCEPT AS PROVIDED IN SUBSECTION (3) OF THIS SECTION, A VIOLATION OF THE REQUIREMENTS ESTABLISHED IN THIS PART 17 CONSTITUTES AN UNFAIR TRADE PRACTICE PURSUANT TO SECTION 6-1-105 (1)(hhhh).
(3) IN ANY ACTION COMMENCED BY THE ATTORNEY GENERAL TO ENFORCE THIS PART 17, IT IS AN AFFIRMATIVE DEFENSE THAT THE DEVELOPER, DEPLOYER, OR OTHER PERSON:
(a) DISCOVERS AND CURES A VIOLATION OF THIS PART 17 AS A RESULT OF:
(I) FEEDBACK THAT THE DEVELOPER, DEPLOYER, OR OTHER PERSON ENCOURAGES DEPLOYERS OR USERS TO PROVIDE TO THE DEVELOPER, DEPLOYER, OR OTHER PERSON;
(II) ADVERSARIAL TESTING OR RED TEAMING, AS THOSE TERMS ARE DEFINED OR USED BY THE NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY; OR
(III) AN INTERNAL REVIEW PROCESS; AND
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(b) IS OTHERWISE IN COMPLIANCE WITH:
(I) THE LATEST VERSION OF THE "ARTIFICIAL INTELLIGENCE RISK MANAGEMENT FRAMEWORK" PUBLISHED BY THE NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY IN THE UNITED STATES DEPARTMENT OF COMMERCE AND STANDARD ISO/IEC 42001 OF THE INTERNATIONAL ORGANIZATION FOR STANDARDIZATION;
(II) ANOTHER NATIONALLY OR INTERNATIONALLY RECOGNIZED RISK MANAGEMENT FRAMEWORK FOR ARTIFICIAL INTELLIGENCE SYSTEMS, IF THE STANDARDS ARE SUBSTANTIALLY EQUIVALENT TO OR MORE STRINGENT THAN THE REQUIREMENTS OF THIS PART 17; OR
(III) ANY RISK MANAGEMENT FRAMEWORK FOR ARTIFICIAL INTELLIGENCE SYSTEMS THAT THE ATTORNEY GENERAL, IN THE ATTORNEY GENERAL'S DISCRETION, MAY DESIGNATE AND, IF DESIGNATED, SHALL PUBLICLY DISSEMINATE.
(4) A DEVELOPER, A DEPLOYER, OR OTHER PERSON BEARS THE BURDEN OF DEMONSTRATING TO THE ATTORNEY GENERAL THAT THE REQUIREMENTS ESTABLISHED IN SUBSECTION (3) OF THIS SECTION HAVE BEEN SATISFIED.
(5) NOTHING IN THIS PART 17, INCLUDING THE ENFORCEMENT AUTHORITY GRANTED TO THE ATTORNEY GENERAL UNDER THIS SECTION, PREEMPTS OR OTHERWISE AFFECTS ANY RIGHT, CLAIM, REMEDY, PRESUMPTION, OR DEFENSE AVAILABLE AT LAW OR IN EQUITY. A REBUTTABLE PRESUMPTION OR AFFIRMATIVE DEFENSE ESTABLISHED UNDER THIS PART 17 APPLIES ONLY TO AN ENFORCEMENT ACTION BROUGHT BY THE ATTORNEY GENERAL PURSUANT TO THIS SECTION AND DOES NOT APPLY TO ANY RIGHT, CLAIM, REMEDY, PRESUMPTION, OR DEFENSE AVAILABLE AT LAW OR IN EQUITY.
(6) THIS PART 17 DOES NOT PROVIDE THE BASIS FOR, AND IS NOT SUBJECT TO, A PRIVATE RIGHT OF ACTION FOR VIOLATIONS OF THIS PART 17 OR ANY OTHER LAW.
## 6-1-1707. Rules.
(1) THE ATTORNEY GENERAL MAY PROMULGATE RULES AS NECESSARY FOR THE PURPOSE OF IMPLEMENTING AND ENFORCING THIS PART 17, INCLUDING:
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(a) THE DOCUMENTATION AND REQUIREMENTS FOR DEVELOPERS PURSUANT TO SECTION 6-1-1702 (2);
(b) THE CONTENTS OF AND REQUIREMENTS FOR THE NOTICES AND DISCLOSURES REQUIRED BY SECTIONS 6-1-1702 (5) AND (7); 6-1-1703 (4), (5), (7), AND (9); AND 6-1-1704;
(c) THE CONTENT AND REQUIREMENTS OF THE RISK MANAGEMENT POLICY AND PROGRAM REQUIRED BY SECTION 6-1-1703 (2);
(d) THE CONTENT AND REQUIREMENTS OF THE IMPACT ASSESSMENTS REQUIRED BY SECTION 6-1-1703 (3);
(e) THE REQUIREMENTS FOR THE REBUTTABLE PRESUMPTIONS SET FORTH IN SECTIONS 6-1-1702 AND 6-1-1703; AND
(f) THE REQUIREMENTS FOR THE AFFIRMATIVE DEFENSE SET FORTH IN SECTION 6-1-1706 (3), INCLUDING THE PROCESS BY WHICH THE ATTORNEY GENERAL WILL RECOGNIZE ANY OTHER NATIONALLY OR INTERNATIONALLY RECOGNIZED RISK MANAGEMENT FRAMEWORK FOR ARTIFICIAL INTELLIGENCE SYSTEMS.
SECTION 2. In Colorado Revised Statutes, 6-1-105, add (1)(hhhh) as follows:
6-1-105. Unfair or deceptive trade practices. (1) A person engages in a deceptive trade practice when, in the course of the person's business, vocation, or occupation, the person:
(hhhh) VIOLATES PART 17 OF THIS ARTICLE 1.
SECTION 3. Safety clause. The general assembly finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, or safety or for appropriations for
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the support and maintenance of the departments of the state and state institutions.
| Steve Fenberg | | Julie McCluskie |
|---------------|------------------|-------------------|
| PRESIDENT OF | | SPEAKER OF THE HOUSE |
| THE SENATE | | OF REPRESENTATIVES |
| Cindi L. Markwell | | Robin Jones |
|-------------------|------------------|-------------------|
| SECRETARY OF | | CHIEF CLERK OF THE HOUSE |
| THE SENATE | | OF REPRESENTATIVES |
APPROVED___________________________
(Date and Time)
___________________________
Jared S. Polis
GOVERNOR OF THE STATE OF COLORADO
PAGE 26-SENATE BILL 24-205 |
# CALIFORNIA CONSUMER PRIVACY ACT OF 2018
**effective 1/1/2024 – AB 947 and AB 1194 updates**
**posted to cppa.ca.gov April 2024**
## Contents
- **1798.100.** General Duties of Businesses that Collect Personal Information ................................ 3
- **1798.105.** Consumers’ Right to Delete Personal Information .................................................... 4
- **1798.106.** Consumers’ Right to Correct Inaccurate Personal Information ................................. 6
- **1798.110.** Consumers’ Right to Know What Personal Information is Being Collected. Right to Access Personal Information ........................................................................................................... 6
- **1798.115.** Consumers’ Right to Know What Personal Information is Sold or Shared and to Whom ................................................................................................................................................. 7
- **1798.120.** Consumers’ Right to Opt Out of Sale or Sharing of Personal Information .................. 8
- **1798.121.** Consumers’ Right to Limit Use and Disclosure of Sensitive Personal Information ...... 9
- **1798.125.** Consumers’ Right of No Retaliation Following Opt Out or Exercise of Other Rights . 10
- **1798.130.** Notice, Disclosure, Correction, and Deletion Requirements ..................................... 11
- **1798.135.** Methods of Limiting Sale, Sharing, and Use of Personal Information and Use of Sensitive Personal Information ........................................................................................................ 15
- **1798.140.** Definitions .................................................................................................................. 19
- **1798.145.** Exemptions ................................................................................................................ 31
- **1798.146.** .................................................................................................................................... 41
- **1798.148.** .................................................................................................................................... 43
- **1798.150.** Personal Information Security Breaches .................................................................. 44
- **1798.155.** Administrative Enforcement ..................................................................................... 45
- **1798.160.** Consumer Privacy Fund ............................................................................................ 46
- **1798.175.** Conflicting Provisions ................................................................................................ 47
- **1798.180.** Preemption ................................................................................................................ 47
- **1798.185.** Regulations ................................................................................................................ 47
- **1798.190.** Anti-Avoidance .......................................................................................................... 54
- **1798.192.** Waiver ........................................................................................................................ 55
- **1798.194.** .................................................................................................................................... 55
- **1798.196.** .................................................................................................................................... 55
- **1798.198.** .................................................................................................................................... 55
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1798.199. ................................................................................................................................................ 55
1798.199.10. .......................................................................................................................................... 55
1798.199.15. .......................................................................................................................................... 56
1798.199.20. .......................................................................................................................................... 56
1798.199.25. .......................................................................................................................................... 56
1798.199.30. .......................................................................................................................................... 57
1798.199.35. .......................................................................................................................................... 57
1798.199.40. .......................................................................................................................................... 57
1798.199.45. .......................................................................................................................................... 58
1798.199.50. .......................................................................................................................................... 58
1798.199.55. .......................................................................................................................................... 59
1798.199.60. .......................................................................................................................................... 59
1798.199.65. .......................................................................................................................................... 59
1798.199.70. .......................................................................................................................................... 59
1798.199.75. .......................................................................................................................................... 60
1798.199.80. .......................................................................................................................................... 61
1798.199.85. .......................................................................................................................................... 61
1798.199.90. .......................................................................................................................................... 61
1798.199.95. .......................................................................................................................................... 62
1798.199.100. ........................................................................................................................................ 63
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# 1798.100. General Duties of Businesses that Collect Personal Information
(a) A business that controls the collection of a consumer’s personal information shall, at or before the point of collection, inform consumers of the following:
1. The categories of personal information to be collected and the purposes for which the categories of personal information are collected or used and whether that information is sold or shared. A business shall not collect additional categories of personal information or use personal information collected for additional purposes that are incompatible with the disclosed purpose for which the personal information was collected without providing the consumer with notice consistent with this section.
2. If the business collects sensitive personal information, the categories of sensitive personal information to be collected and the purposes for which the categories of sensitive personal information are collected or used, and whether that information is sold or shared. A business shall not collect additional categories of sensitive personal information or use sensitive personal information collected for additional purposes that are incompatible with the disclosed purpose for which the sensitive personal information was collected without providing the consumer with notice consistent with this section.
3. The length of time the business intends to retain each category of personal information, including sensitive personal information, or if that is not possible, the criteria used to determine that period provided that a business shall not retain a consumer’s personal information or sensitive personal information for each disclosed purpose for which the personal information was collected for longer than is reasonably necessary for that disclosed purpose.
(b) A business that, acting as a third party, controls the collection of personal information about a consumer may satisfy its obligation under subdivision (a) by providing the required information prominently and conspicuously on the homepage of its internet website. In addition, if a business acting as a third party controls the collection of personal information about a consumer on its premises, including in a vehicle, then the business shall, at or before the point of collection, inform consumers as to the categories of personal information to be collected and the purposes for which the categories of personal information are used, and whether that personal information is sold, in a clear and conspicuous manner at the location.
(c) A business’ collection, use, retention, and sharing of a consumer’s personal information shall be reasonably necessary and proportionate to achieve the purposes for which the personal information was collected or processed, or for another disclosed purpose that is compatible with the context in which the personal information was collected, and not further processed in a manner that is incompatible with those purposes.
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(d) A business that collects a consumer’s personal information and that sells that personal information to, or shares it with, a third party or that discloses it to a service provider or contractor for a business purpose shall enter into an agreement with the third party, service provider, or contractor, that:
(1) Specifies that the personal information is sold or disclosed by the business only for limited and specified purposes.
(2) Obligates the third party, service provider, or contractor to comply with applicable obligations under this title and obligate those persons to provide the same level of privacy protection as is required by this title.
(3) Grants the business rights to take reasonable and appropriate steps to help ensure that the third party, service provider, or contractor uses the personal information transferred in a manner consistent with the business’ obligations under this title.
(4) Requires the third party, service provider, or contractor to notify the business if it makes a determination that it can no longer meet its obligations under this title.
(5) Grants the business the right, upon notice, including under paragraph (4), to take reasonable and appropriate steps to stop and remediate unauthorized use of personal information.
(e) A business that collects a consumer’s personal information shall implement reasonable security procedures and practices appropriate to the nature of the personal information to protect the personal information from unauthorized or illegal access, destruction, use, modification, or disclosure in accordance with Section 1798.81.5.
(f) Nothing in this section shall require a business to disclose trade secrets, as specified in regulations adopted pursuant to paragraph (3) of subdivision (a) of Section 1798.185.
# 1798.105. Consumers’ Right to Delete Personal Information
(a) A consumer shall have the right to request that a business delete any personal information about the consumer which the business has collected from the consumer.
(b) A business that collects personal information about consumers shall disclose, pursuant to Section 1798.130, the consumer’s rights to request the deletion of the consumer’s personal information.
(c) (1) A business that receives a verifiable consumer request from a consumer to delete the consumer’s personal information pursuant to subdivision (a) of this section shall delete the consumer’s personal information from its records, notify any service providers or contractors to delete the consumer’s personal information from their records, and notify all third parties to whom the business has sold or shared the consumer’s personal information.
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personal information to delete the consumer’s personal information unless this proves impossible or involves disproportionate effort.
(2) The business may maintain a confidential record of deletion requests solely for the purpose of preventing the personal information of a consumer who has submitted a deletion request from being sold, for compliance with laws or for other purposes, solely to the extent permissible under this title.
(3) A service provider or contractor shall cooperate with the business in responding to a verifiable consumer request, and at the direction of the business, shall delete, or enable the business to delete and shall notify any of its own service providers or contractors to delete personal information about the consumer collected, used, processed, or retained by the service provider or the contractor. The service provider or contractor shall notify any service providers, contractors, or third parties who may have accessed personal information from or through the service provider or contractor, unless the information was accessed at the direction of the business, to delete the consumer’s personal information unless this proves impossible or involves disproportionate effort. A service provider or contractor shall not be required to comply with a deletion request submitted by the consumer directly to the service provider or contractor to the extent that the service provider or contractor has collected, used, processed, or retained the consumer’s personal information in its role as a service provider or contractor to the business.
(d) A business, or a service provider or contractor acting pursuant to its contract with the business, another service provider, or another contractor, shall not be required to comply with a consumer’s request to delete the consumer’s personal information if it is reasonably necessary for the business, service provider, or contractor to maintain the consumer’s personal information in order to:
(1) Complete the transaction for which the personal 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 by the consumer within the context of a business’ ongoing business relationship with the consumer, or otherwise perform a contract between the business and the consumer.
(2) Help to ensure security and integrity to the extent the use of the consumer’s personal information is reasonably necessary and proportionate for those purposes.
(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.
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(5) Comply with the California Electronic Communications Privacy Act pursuant to Chapter 3.6 (commencing with Section 1546) of Title 12 of Part 2 of the Penal Code.
(6) Engage in public or peer-reviewed scientific, historical, or statistical research that conforms or 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 ability to complete such research, if the consumer has provided informed consent.
(7) To enable solely internal uses that are reasonably aligned with the expectations of the consumer based on the consumer’s relationship with the business and compatible with the context in which the consumer provided the information.
(8) Comply with a legal obligation.
## 1798.106. Consumers’ Right to Correct Inaccurate Personal Information
(a) A consumer shall have the right to request a business that maintains inaccurate personal information about the consumer to correct that inaccurate personal information, taking into account the nature of the personal information and the purposes of the processing of the personal information.
(b) A business that collects personal information about consumers shall disclose, pursuant to Section 1798.130, the consumer’s right to request correction of inaccurate personal information.
(c) A business that receives a verifiable consumer request to correct inaccurate personal information shall use commercially reasonable efforts to correct the inaccurate personal information as directed by the consumer, pursuant to Section 1798.130 and regulations adopted pursuant to paragraph (8) of subdivision (a) of Section 1798.185.
## 1798.110. Consumers’ Right to Know What Personal Information is Being Collected. Right to Access Personal Information
(a) A consumer shall have the right to request that a business that collects personal information about the consumer disclose to the consumer the following:
(1) The categories of personal information it has collected about that consumer.
(2) The categories of sources from which the personal information is collected.
(3) The business or commercial purpose for collecting, selling, or sharing personal information.
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(4) The categories of third parties to whom the business discloses personal information.
(5) The specific pieces of personal information it has collected about that consumer.
(b) A business that collects personal information about a consumer shall disclose to the consumer, pursuant to subparagraph (B) of paragraph (3) of subdivision (a) of Section 1798.130, the information specified in subdivision (a) upon receipt of a verifiable consumer request from the consumer, provided that a business shall be deemed to be in compliance with paragraphs (1) to (4), inclusive, of subdivision (a) to the extent that the categories of information and the business or commercial purpose for collecting, selling, or sharing personal information it would be required to disclose to the consumer pursuant to paragraphs (1) to (4), inclusive, of subdivision (a) is the same as the information it has disclosed pursuant to paragraphs (1) to (4), inclusive, of subdivision (c).
(c) A business that collects personal information about consumers shall disclose, pursuant to subparagraph (B) of paragraph (5) of subdivision (a) of Section 1798.130:
(1) The categories of personal information it has collected about consumers.
(2) The categories of sources from which the personal information is collected.
(3) The business or commercial purpose for collecting, selling, or sharing personal information.
(4) The categories of third parties to whom the business discloses personal information.
(5) That a consumer has the right to request the specific pieces of personal information the business has collected about that consumer.
# 1798.115. Consumers’ Right to Know What Personal Information is Sold or Shared and to Whom
(a) A consumer shall have the right to request that a business that sells or shares the consumer’s personal information, or that discloses it for a business purpose, disclose to that consumer:
(1) The categories of personal information that the business collected about the consumer.
(2) The categories of personal information that the business sold or shared about the consumer and the categories of third parties to whom the personal information was sold or shared, by category or categories of personal information for each category of third parties to whom the personal information was sold or shared.
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(3) The categories of personal information that the business disclosed about the consumer for a business purpose and the categories of persons to whom it was disclosed for a business purpose.
(b) A business that sells or shares personal information about a consumer, or that discloses a consumer’s personal information for a business purpose, shall disclose, pursuant to paragraph (4) of subdivision (a) of Section 1798.130, the information specified in subdivision (a) to the consumer upon receipt of a verifiable consumer request from the consumer.
(c) A business that sells or shares consumers’ personal information, or that discloses consumers’ personal information for a business purpose, shall disclose, pursuant to subparagraph (C) of paragraph (5) of subdivision (a) of Section 1798.130:
(1) The category or categories of consumers’ personal information it has sold or shared, or if the business has not sold or shared consumers’ personal information, it shall disclose that fact.
(2) The category or categories of consumers’ personal information it has disclosed for a business purpose, or if the business has not disclosed consumers’ personal information for a business purpose, it shall disclose that fact.
(d) A third party shall not sell or share personal information about a consumer that has been sold to, or shared with, the third party by a business unless the consumer has received explicit notice and is provided an opportunity to exercise the right to opt-out pursuant to Section 1798.120.
# 1798.120. Consumers’ Right to Opt Out of Sale or Sharing of Personal Information
(a) A consumer shall have the right, at any time, to direct a business that sells or shares personal information about the consumer to third parties not to sell or share the consumer’s personal information. This right may be referred to as the right to opt-out of sale or sharing.
(b) A business that sells consumers’ personal information to, or shares it with, third parties shall provide notice to consumers, pursuant to subdivision (a) of Section 1798.135, that this information may be sold or shared and that consumers have the “right to opt-out” of the sale or sharing of their personal information.
(c) Notwithstanding subdivision (a), a business shall not sell or share the personal information of consumers if the business has actual knowledge that the consumer is less than 16 years of age, unless the consumer, in the case of consumers at least 13 years of age and less than 16 years of age, or the consumer’s parent or guardian, in the case of consumers who are less than 13 years of age, has affirmatively authorized the sale or
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sharing of the consumer’s personal information. A business that willfully disregards the consumer’s age shall be deemed to have had actual knowledge of the consumer’s age.
(d) A business that has received direction from a consumer not to sell or share the consumer’s personal information or, in the case of a minor consumer’s personal information has not received consent to sell or share the minor consumer’s personal information, shall be prohibited, pursuant to paragraph (4) of subdivision (c) of Section 1798.135, from selling or sharing the consumer’s personal information after its receipt of the consumer’s direction, unless the consumer subsequently provides consent, for the sale or sharing of the consumer’s personal information.
# 1798.121. Consumers’ Right to Limit Use and Disclosure of Sensitive Personal Information
(a) A consumer shall have the right, at any time, to direct a business that collects sensitive personal information about the consumer to limit its use of the consumer’s sensitive personal information to that use which is necessary to perform the services or provide the goods reasonably expected by an average consumer who requests those goods or services, to perform the services set forth in paragraphs (2), (4), (5), and (8) of subdivision (e) of Section 1798.140, and as authorized by regulations adopted pursuant to subparagraph (C) of paragraph (19) of subdivision (a) of Section 1798.185. A business that uses or discloses a consumer’s sensitive personal information for purposes other than those specified in this subdivision shall provide notice to consumers, pursuant to subdivision (a) of Section 1798.135, that this information may be used, or disclosed to a service provider or contractor, for additional, specified purposes and that consumers have the right to limit the use or disclosure of their sensitive personal information.
(b) A business that has received direction from a consumer not to use or disclose the consumer’s sensitive personal information, except as authorized by subdivision (a), shall be prohibited, pursuant to paragraph (4) of subdivision (c) of Section 1798.135, from using or disclosing the consumer’s sensitive personal information for any other purpose after its receipt of the consumer’s direction unless the consumer subsequently provides consent for the use or disclosure of the consumer’s sensitive personal information for additional purposes.
(c) A service provider or contractor that assists a business in performing the purposes authorized by subdivision (a) may not use the sensitive personal information after it has received instructions from the business and to the extent it has actual knowledge that the personal information is sensitive personal information for any other purpose. A service provider or contractor is only required to limit its use of sensitive personal information received pursuant to a written contract with the business in response to instructions from the business and only with respect to its relationship with that business.
(d) Sensitive personal information that is collected or processed without the purpose of inferring characteristics about a consumer is not subject to this section, as further defined
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# 1798.125. Consumers’ Right of No Retaliation Following Opt Out or Exercise of Other Rights
(a) (1) A business shall not discriminate against a consumer because the consumer exercised any of the consumer’s rights under this title, 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.
(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.
(E) Retaliating against an employee, applicant for employment, or independent contractor, as defined in subparagraph (A) of paragraph (2) of subdivision (m) of Section 1798.145, for exercising their rights under this title.
(2) Nothing in this subdivision prohibits a business, pursuant to subdivision (b), 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 data.
(3) This subdivision does not prohibit a business from offering loyalty, rewards, premium features, discounts, or club card programs consistent with this title.
(b) (1) A business may offer financial incentives, including payments to consumers as compensation, for the collection of personal information, the sale or sharing of personal information, or the retention of personal 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 reasonably related to the value provided to the business by the consumer’s data.
(2) A business that offers any financial incentives pursuant to this subdivision, shall notify consumers of the financial incentives pursuant to Section 1798.130.
(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 1798.130 that clearly describes the material terms of the financial incentive program, and which
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may be revoked by the consumer at any time. If a consumer refuses to provide opt-in consent, then the business shall wait for at least 12 months before next requesting that the consumer provide opt-in consent, or as prescribed by regulations adopted pursuant to Section 1798.185.
(4) A business shall not use financial incentive practices that are unjust, unreasonable, coercive, or usurious in nature.
## 1798.130. Notice, Disclosure, Correction, and Deletion Requirements
(a) In order to comply with Sections 1798.100, 1798.105, 1798.106, 1798.110, 1798.115, and 1798.125, a business shall, in a form that is reasonably accessible to consumers:
(1) (A) Make available to consumers two or more designated methods for submitting requests for information required to be disclosed pursuant to Sections 1798.110 and 1798.115, or requests for deletion or correction pursuant to Sections 1798.105 and 1798.106, respectively, 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 personal information shall only be required to provide an email address for submitting requests for information required to be disclosed pursuant to Sections 1798.110 and 1798.115, or for requests for deletion or correction pursuant to Sections 1798.105 and 1798.106, respectively.
(B) If the business maintains an internet website, make the internet website available to consumers to submit requests for information required to be disclosed pursuant to Sections 1798.110 and 1798.115, or requests for deletion or correction pursuant to Sections 1798.105 and 1798.106, respectively.
(2) (A) Disclose and deliver the required information to a consumer free of charge, correct inaccurate personal information, or delete a consumer’s personal information, based on the consumer’s request, 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 shall not extend the business’s duty to disclose and deliver the information, to correct inaccurate personal information, or to delete personal information within 45 days of receipt of the consumer’s request. The time period to provide the required information, to correct inaccurate personal information, or to delete personal 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 of the required information 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
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consumer does not maintain an account with the business, in a readily useable format that allows the consumer to transmit this 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 personal information requested, but shall not require the consumer to create an account with the business in order to make a verifiable consumer request provided that if the consumer, has an account with the business, the business may require the consumer to use that account to submit a verifiable consumer request.
(B) The disclosure of the required information shall cover the 12-month period preceding the business’ receipt of the verifiable consumer request provided that, upon the adoption of a regulation pursuant to paragraph (9) of subdivision (a) of Section 1798.185, a consumer may request that the business disclose the required information beyond the 12-month period, and the business shall be required to provide that information unless doing so proves impossible or would involve a disproportionate effort. A consumer’s right to request required information beyond the 12-month period, and a business’s obligation to provide that information, shall only apply to personal information collected on or after January 1, 2022. Nothing in this subparagraph shall require a business to keep personal information for any length of time.
(3) (A) A business that receives a verifiable consumer request pursuant to Section 1798.110 or 1798.115 shall disclose any personal information it has collected about a consumer, directly or indirectly, including through or by a service provider or contractor, to the consumer. A service provider or contractor shall not be required to comply with a verifiable consumer request received directly from a consumer or a consumer’s authorized agent, pursuant to Section 1798.110 or 1798.115, to the extent that the service provider or contractor has collected personal information about the consumer in its role as a service provider or contractor. A service provider or contractor shall provide assistance to a business with which it has a contractual relationship with respect to the business’ response to a verifiable consumer request, including, but not limited to, by providing to the business the consumer’s personal information in the service provider or contractor’s possession, which the service provider or contractor obtained as a result of providing services to the business, and by correcting inaccurate information or by enabling the business to do the same. A service provider or contractor that collects personal information pursuant to a written contract with a business shall be required to assist the business through appropriate technical and organizational measures in complying with the requirements of subdivisions (d) to (f), inclusive, of Section 1798.100, taking into account the nature of the processing.
(B) For purposes of subdivision (b) of Section 1798.110:
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(i) To identify the consumer, associate the information provided by the consumer in the verifiable consumer request to any personal information previously collected by the business about the consumer.
(ii) Identify by category or categories the personal information collected about the consumer for the applicable period of time by reference to the enumerated category or categories in subdivision (c) that most closely describes the personal information collected; the categories of sources from which the consumer’s personal information was collected; the business or commercial purpose for collecting, selling, or sharing the consumer’s personal information; and the categories of third parties to whom the business discloses the consumer’s personal information.
(iii) Provide the specific pieces of personal information obtained from the consumer in a format that is easily understandable to the average consumer, and to the extent technically feasible, in a structured, commonly used, machine-readable format that may also be transmitted to another entity at the consumer’s request without hindrance. “Specific pieces of information” do not include data generated to help ensure security and integrity or as prescribed by regulation. Personal information is not considered to have been disclosed by a business when a consumer instructs a business to transfer the consumer’s personal information from one business to another in the context of switching services.
(4) For purposes of subdivision (b) of Section 1798.115:
(A) Identify the consumer and associate the information provided by the consumer in the verifiable consumer request to any personal information previously collected by the business about the consumer.
(B) Identify by category or categories the personal information of the consumer that the business sold or shared during the applicable period of time by reference to the enumerated category in subdivision (c) that most closely describes the personal information, and provide the categories of third parties to whom the consumer’s personal information was sold or shared during the applicable period of time by reference to the enumerated category or categories in subdivision (c) that most closely describes the personal information sold or shared. The business shall disclose the information in a list that is separate from a list generated for the purposes of subparagraph (C).
(C) Identify by category or categories the personal information of the consumer that the business disclosed for a business purpose during the applicable period of time by reference to the enumerated category or categories in subdivision (c) that most closely describes the personal information, and provide the categories of persons to whom the consumer’s personal information was
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disclosed for a business purpose during the applicable period of time by reference to the enumerated category or categories in subdivision (c) that most closely describes the personal information disclosed. The business shall disclose the information in a list that is separate from a list generated for the purposes of subparagraph (B).
(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 California-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 1798.100, 1798.105, 1798.106, 1798.110, 1798.115, and 1798.125 and two or more designated methods for submitting requests, except as provided in subparagraph (A) of paragraph (1) of subdivision (a).
(B) For purposes of subdivision (c) of Section 1798.110:
(i) A list of the categories of personal information it has collected about consumers in the preceding 12 months by reference to the enumerated category or categories in subdivision (c) that most closely describe the personal information collected.
(ii) The categories of sources from which consumers’ personal information is collected.
(iii) The business or commercial purpose for collecting, selling, or sharing consumers’ personal information.
(iv) The categories of third parties to whom the business discloses consumers’ personal information.
(C) For purposes of paragraphs (1) and (2) of subdivision (c) of Section 1798.115, two separate lists:
(i) A list of the categories of personal information it has sold or shared about consumers in the preceding 12 months by reference to the enumerated category or categories in subdivision (c) that most closely describe the personal information sold or shared, or if the business has not sold or shared consumers’ personal information in the preceding 12 months, the business shall prominently disclose that fact in its privacy policy.
(ii) A list of the categories of personal information it has disclosed about consumers for a business purpose in the preceding 12 months by
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reference to the enumerated category in subdivision (c) that most closely describes the personal information disclosed, or if the business has not disclosed consumers’ personal 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 this title are informed of all requirements in Sections 1798.100, 1798.105, 1798.106, 1798.110, 1798.115, 1798.125, and this section, and how to direct consumers to exercise their rights under those sections.
(7) Use any personal information collected from the consumer in connection with the business’ verification of the consumer’s request solely for the purposes of verification and shall not further disclose the personal information, retain it longer than necessary for purposes of verification, or use it for unrelated purposes.
(b) A business is not obligated to provide the information required by Sections 1798.110 and 1798.115 to the same consumer more than twice in a 12-month period.
(c) The categories of personal information required to be disclosed pursuant to Sections 1798.100, 1798.110, and 1798.115 shall follow the definitions of personal information and sensitive personal information in Section 1798.140 by describing the categories of personal information using the specific terms set forth in subparagraphs (A) to (K), inclusive, of paragraph (1) of subdivision (v) of Section 1798.140 and by describing the categories of sensitive personal information using the specific terms set forth in paragraphs (1) to (9), inclusive, of subdivision (ae) of Section 1798.140.
# 1798.135. Methods of Limiting Sale, Sharing, and Use of Personal Information and Use of Sensitive Personal Information
(a) A business that sells or shares consumers’ personal information or uses or discloses consumers’ sensitive personal information for purposes other than those authorized by subdivision (a) of Section 1798.121 shall, in a form that is reasonably accessible to consumers:
(1) Provide a clear and conspicuous link on the business’s internet homepages, titled “Do Not Sell or Share My Personal Information,” to an internet web page that enables a consumer, or a person authorized by the consumer, to opt-out of the sale or sharing of the consumer’s personal information.
(2) Provide a clear and conspicuous link on the business’ internet homepages, titled “Limit the Use of My Sensitive Personal Information,” that enables a consumer, or a person authorized by the consumer, to limit the use or disclosure of the consumer’s
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sensitive personal information to those uses authorized by subdivision (a) of Section 1798.121.
(3) At the business’ discretion, utilize a single, clearly labeled link on the business’ internet homepages, in lieu of complying with paragraphs (1) and (2), if that link easily allows a consumer to opt out of the sale or sharing of the consumer’s personal information and to limit the use or disclosure of the consumer’s sensitive personal information.
(4) In the event that a business responds to opt-out requests received pursuant to paragraph (1), (2), or (3) by informing the consumer of a charge for the use of any product or service, present the terms of any financial incentive offered pursuant to subdivision (b) of Section 1798.125 for the retention, use, sale, or sharing of the consumer’s personal information.
(b) (1) A business shall not be required to comply with subdivision (a) if the business allows consumers to opt out of the sale or sharing of their personal information and to limit the use of their sensitive personal information through an opt-out preference signal sent with the consumer’s consent by a platform, technology, or mechanism, based on technical specifications set forth in regulations adopted pursuant to paragraph (20) of subdivision (a) of Section 1798.185, to the business indicating the consumer’s intent to opt out of the business’ sale or sharing of the consumer’s personal information or to limit the use or disclosure of the consumer’s sensitive personal information, or both.
(2) A business that allows consumers to opt out of the sale or sharing of their personal information and to limit the use of their sensitive personal information pursuant to paragraph (1) may provide a link to a web page that enables the consumer to consent to the business ignoring the opt-out preference signal with respect to that business’ sale or sharing of the consumer’s personal information or the use of the consumer’s sensitive personal information for additional purposes provided that:
(A) The consent web page also allows the consumer or a person authorized by the consumer to revoke the consent as easily as it is affirmatively provided.
(B) The link to the web page does not degrade the consumer’s experience on the web page the consumer intends to visit and has a similar look, feel, and size relative to other links on the same web page.
(C) The consent web page complies with technical specifications set forth in regulations adopted pursuant to paragraph (20) of subdivision (a) of Section 1798.185.
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(3) A business that complies with subdivision (a) is not required to comply with subdivision (b). For the purposes of clarity, a business may elect whether to comply with subdivision (a) or subdivision (b).
(c) A business that is subject to this section shall:
(1) Not require a consumer to create an account or provide additional information beyond what is necessary in order to direct the business not to sell or share the consumer’s personal information or to limit use or disclosure of the consumer’s sensitive personal information.
(2) Include a description of a consumer’s rights pursuant to Sections 1798.120 and 1798.121, along with a separate link to the “Do Not Sell or Share My Personal Information” internet web page and a separate link to the “Limit the Use of My Sensitive Personal Information” internet web page, if applicable, or a single link to both choices, or a statement that the business responds to and abides by opt-out preference signals sent by a platform, technology, or mechanism in accordance with subdivision (b), in:
(A) Its online privacy policy or policies if the business has an online privacy policy or policies.
(B) Any California-specific description of consumers’ privacy rights.
(3) Ensure that all individuals responsible for handling consumer inquiries about the business’s privacy practices or the business’s compliance with this title are informed of all requirements in Sections 1798.120, 1798.121, and this section and how to direct consumers to exercise their rights under those sections.
(4) For consumers who exercise their right to opt-out of the sale or sharing of their personal information or limit the use or disclosure of their sensitive personal information, refrain from selling or sharing the consumer’s personal information or using or disclosing the consumer’s sensitive personal information and wait for at least 12 months before requesting that the consumer authorize the sale or sharing of the consumer’s personal information or the use and disclosure of the consumer’s sensitive personal information for additional purposes, or as authorized by regulations.
(5) For consumers under 16 years of age who do not consent to the sale or sharing of their personal information, refrain from selling or sharing the personal information of the consumer under 16 years of age and wait for at least 12 months before requesting the consumer’s consent again, or as authorized by regulations or until the consumer attains 16 years of age.
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(6) Use any personal information collected from the consumer in connection with the submission of the consumer’s opt-out request solely for the purposes of complying with the opt-out request.
(d) Nothing in this title shall be construed to require a business to comply with the title 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 California consumers and that includes the required links and text, and the business takes reasonable steps to ensure that California consumers are directed to the homepage for California consumers and not the homepage made available to the public generally.
(e) A consumer may authorize another person to opt-out of the sale or sharing of the consumer’s personal information and to limit the use of the consumer’s sensitive personal information on the consumer’s behalf, including through an opt-out preference signal, as defined in paragraph (1) of subdivision (b), indicating the consumer’s intent to opt out, and a business shall comply with an opt-out request received from a person authorized by the consumer to act on the consumer’s behalf, pursuant to regulations adopted by the Attorney General regardless of whether the business has elected to comply with subdivision (a) or (b). For purposes of clarity, a business that elects to comply with subdivision (a) may respond to the consumer’s opt-out consistent with Section 1798.125.
(f) If a business communicates a consumer’s opt-out request to any person authorized by the business to collect personal information, the person shall thereafter only use that consumer’s personal information for a business purpose specified by the business, or as otherwise permitted by this title, and shall be prohibited from:
(1) Selling or sharing the personal information.
(2) Retaining, using, or disclosing that consumer’s personal information.
(A) For any purpose other than for the specific purpose of performing the services offered to the business.
(B) Outside of the direct business relationship between the person and the business.
(C) For a commercial purpose other than providing the services to the business.
(g) A business that communicates a consumer’s opt-out request to a person pursuant to subdivision (f) shall not be liable under this title if the person receiving the opt-out request violates the restrictions set forth in the title provided that, at the time of communicating the opt-out request, the business does not have actual knowledge, or reason to believe, that the person intends to commit such a violation. Any provision of a
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# 1798.140. Definitions
For purposes of this title:
(a) “Advertising and marketing” means a communication by a business or a person acting on the business’ behalf in any medium intended to induce a consumer to obtain goods, services, or employment.
(b) “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 via a device. “Aggregate consumer information” does not mean one or more individual consumer records that have been deidentified.
(c) “Biometric information” means an individual’s physiological, biological, or behavioral characteristics, including information pertaining to an individual’s deoxyribonucleic acid (DNA), that is used or is intended to be used singly or in combination with each other or with other identifying data, to establish individual identity. Biometric information includes, but is not limited to, imagery of the iris, retina, fingerprint, face, hand, palm, vein patterns, and voice recordings, from which an identifier template, such as a faceprint, a minutiae template, or a voiceprint, can be extracted, and keystroke patterns or rhythms, gait patterns or rhythms, and sleep, health, or exercise data that contain identifying information.
(d) “Business” means:
(1) 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’ personal information, or on the behalf of which such information is collected and that alone, or jointly with others, determines the purposes and means of the processing of consumers’ personal information, that does business in the State of California, and that satisfies one or more of the following thresholds:
(A) As of January 1 of the calendar year, had annual gross revenues in excess of twenty-five million dollars ($25,000,000) in the preceding calendar year, as adjusted pursuant to paragraph (5) of subdivision (a) of Section 1798.185.
(B) Alone or in combination, annually buys, sells, or shares the personal information of 100,000 or more consumers or households.
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(C) Derives 50 percent or more of its annual revenues from selling or sharing consumers’ personal information.
(2) Any entity that controls or is controlled by a business, as defined in paragraph (1), and that shares common branding with the business and with whom the business shares consumers’ personal information. “Control” or “controlled” means ownership of, or the power to vote, more than 50 percent of the outstanding shares of any class of voting security of a business; control in any manner over the election of a majority of the directors, or of individuals exercising similar functions; or the power to exercise a controlling influence over the management of a company. “Common branding” means a shared name, servicemark, or trademark that the average consumer would understand that two or more entities are commonly owned.
(3) A joint venture or partnership composed of businesses in which each business has at least a 40 percent interest. For purposes of this title, the joint venture or partnership and each business that composes the joint venture or partnership shall separately be considered a single business, except that personal information in the possession of each business and disclosed to the joint venture or partnership shall not be shared with the other business.
(4) A person that does business in California, that is not covered by paragraph (1), (2), or (3), and that voluntarily certifies to the California Privacy Protection Agency that it is in compliance with, and agrees to be bound by, this title.
(e) “Business purpose” means the use of personal information for the business’ operational purposes, or other notified purposes, or for the service provider or contractor’s operational purposes, as defined by regulations adopted pursuant to paragraph (11) of subdivision (a) of Section 1798.185, provided that the use of personal information shall be reasonably necessary and proportionate to achieve the purpose for which the personal information was collected or processed or for another purpose that is compatible with the context in which the personal information was collected. Business purposes are:
(1) Auditing related to counting ad impressions to unique visitors, verifying positioning and quality of ad impressions, and auditing compliance with this specification and other standards.
(2) Helping to ensure security and integrity to the extent the use of the consumer’s personal information is reasonably necessary and proportionate for these purposes.
(3) Debugging to identify and repair errors that impair existing intended functionality.
(4) Short-term, transient use, including, but not limited to, nonpersonalized advertising shown as part of a consumer’s current interaction with the business, provided that the consumer’s personal information is not disclosed to another third party and is
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not used to build a profile about the consumer or otherwise alter the consumer’s experience outside the current interaction with the business.
5. Performing services on behalf of the business, including maintaining or servicing accounts, providing customer service, processing or fulfilling orders and transactions, verifying customer information, processing payments, providing financing, providing analytic services, providing storage, or providing similar services on behalf of the business.
6. Providing advertising and marketing services, except for cross-context behavioral advertising, to the consumer provided that, for the purpose of advertising and marketing, a service provider or contractor shall not combine the personal information of opted-out consumers that the service provider or contractor receives from, or on behalf of, the business with personal information that the service provider or contractor receives from, or on behalf of, another person or persons or collects from its own interaction with consumers.
7. Undertaking internal research for technological development and demonstration.
8. 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.
(f) “Collects,” “collected,” or “collection” means buying, renting, gathering, obtaining, receiving, or accessing any personal information pertaining to a consumer by any means. This includes receiving information from the consumer, either actively or passively, or by observing the consumer’s behavior.
(g) “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.
(h) “Consent” means any freely given, specific, informed, and unambiguous indication of the consumer’s wishes by which the consumer, or the consumer’s legal guardian, a person who has power of attorney, or a person acting as a conservator for the consumer, including by a statement or by a clear affirmative action, signifies agreement to the processing of personal information relating to the consumer for a narrowly defined particular purpose. Acceptance of a general or broad terms of use, or similar document, that contains descriptions of personal information processing along with other, unrelated information, does not constitute consent. Hovering over, muting, pausing, or closing a given piece of content does not constitute consent. Likewise, agreement obtained through use of dark patterns does not constitute consent.
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(i) “Consumer” means a natural person who is a California resident, as defined in Section 17014 of Title 18 of the California Code of Regulations, as that section read on September 1, 2017, however identified, including by any unique identifier.
(j) (1) “Contractor” means a person to whom the business makes available a consumer’s personal information for a business purpose, pursuant to a written contract with the business, provided that the contract:
(A) Prohibits the contractor from:
(i) Selling or sharing the personal information.
(ii) Retaining, using, or disclosing the personal information for any purpose other than for the business purposes specified in the contract, including retaining, using, or disclosing the personal information for a commercial purpose other than the business purposes specified in the contract, or as otherwise permitted by this title.
(iii) Retaining, using, or disclosing the information outside of the direct business relationship between the contractor and the business.
(iv) Combining the personal information that the contractor receives pursuant to a written contract with the business with personal information that it receives from or on behalf of another person or persons, or collects from its own interaction with the consumer, provided that the contractor may combine personal information to perform any business purpose as defined in regulations adopted pursuant to paragraph (10) of subdivision (a) of Section 1798.185, except as provided for in paragraph (6) of subdivision (e) and in regulations adopted by the California Privacy Protection Agency.
(B) Includes a certification made by the contractor that the contractor understands the restrictions in subparagraph (A) and will comply with them.
(C) Permits, subject to agreement with the contractor, the business to monitor the contractor’s compliance with the contract through measures, including, but not limited to, ongoing manual reviews and automated scans and regular assessments, audits, or other technical and operational testing at least once every 12 months.
(2) If a contractor engages any other person to assist it in processing personal information for a business purpose on behalf of the business, or if any other person engaged by the contractor engages another person to assist in processing personal information for that business purpose, it shall notify the business of that
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# (k) "Cross-context behavioral advertising"
"Cross-context behavioral advertising" means the targeting of advertising to a consumer based on the consumer’s personal information obtained from the consumer’s activity across businesses, distinctly-branded websites, applications, or services, other than the business, distinctly-branded website, application, or service with which the consumer intentionally interacts.
# (l) "Dark pattern"
"Dark pattern" means a user interface designed or manipulated with the substantial effect of subverting or impairing user autonomy, decisionmaking, or choice, as further defined by regulation.
# (m) "Deidentified"
"Deidentified" means information that cannot reasonably be used to infer information about, or otherwise be linked to, a particular consumer provided that the business that possesses the information:
1. Takes reasonable measures to ensure that the information cannot be associated with a consumer or household.
2. Publicly commits to maintain and use the information in deidentified form and not to attempt to reidentify the information, except that the business may attempt to reidentify the information solely for the purpose of determining whether its deidentification processes satisfy the requirements of this subdivision.
3. Contractually obligates any recipients of the information to comply with all provisions of this subdivision.
# (n) "Designated methods for submitting requests"
"Designated methods for submitting requests" means a mailing address, email address, internet web page, internet web portal, toll-free telephone number, or other applicable contact information, whereby consumers may submit a request or direction under this title, and any new, consumer-friendly means of contacting a business, as approved by the Attorney General pursuant to Section 1798.185.
# (o) "Device"
"Device" means any physical object that is capable of connecting to the Internet, directly or indirectly, or to another device.
# (p) "Homepage"
"Homepage" means the introductory page of an internet website and any internet web page where personal information is collected. In the case of an online service, such as a mobile application, homepage means the application’s platform page or download page, a link within the application, such as from the application configuration, "About," "Information," or settings page, and any other location that allows consumers to review the notices required by this title, including, but not limited to, before downloading the application.
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(q) “Household” means a group, however identified, of consumers who cohabitate with one another at the same residential address and share use of common devices or services.
(r) “Infer” or “inference” means the derivation of information, data, assumptions, or conclusions from facts, evidence, or another source of information or data.
(s) “Intentionally interacts” means when the consumer intends to interact with a person, or disclose personal information to a person, via one or more deliberate interactions, including visiting the person’s website or purchasing a good or service from the person. Hovering over, muting, pausing, or closing a given piece of content does not constitute a consumer’s intent to interact with a person.
(t) “Nonpersonalized advertising” means advertising and marketing that is based solely on a consumer’s personal information derived from the consumer’s current interaction with the business with the exception of the consumer’s precise geolocation.
(u) “Person” means an individual, proprietorship, firm, partnership, joint venture, syndicate, business trust, company, corporation, limited liability company, association, committee, and any other organization or group of persons acting in concert.
(v) (1) “Personal information” means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household. Personal information includes, but is not limited to, the following if it identifies, relates to, describes, is reasonably capable of being associated with, or could be reasonably linked, directly or indirectly, with a particular consumer or household:
(A) Identifiers such as a real name, alias, postal address, unique personal identifier, online identifier, Internet Protocol address, email address, account name, social security number, driver’s license number, passport number, or other similar identifiers.
(B) Any personal information described in subdivision (e) of Section 1798.80.
(C) Characteristics of protected classifications under California or federal law.
(D) Commercial information, including records of personal property, products or services purchased, obtained, or considered, or other purchasing or consuming histories or tendencies.
(E) Biometric information.
(F) 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.
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(G) Geolocation data.
(H) Audio, electronic, visual, thermal, olfactory, or similar information.
(I) Professional or employment-related information.
(J) Education information, defined as information that is not publicly available personally identifiable information as defined in the Family Educational Rights and Privacy Act (20 U.S.C. Sec. 1232g; 34 C.F.R. Part 99).
(K) 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.
(L) Sensitive personal information.
(2) “Personal information” does not include publicly available information or lawfully obtained, truthful information that is a matter of public concern. For purposes of this paragraph, “publicly available” means: information that is lawfully made available from federal, state, or local government records, or information that a business has a reasonable basis to believe is lawfully made available to the general public by the consumer or from widely distributed media; or information made available by a person to whom the consumer has disclosed the information if the consumer has not restricted the information to a specific audience. “Publicly available” does not mean biometric information collected by a business about a consumer without the consumer’s knowledge.
(3) “Personal information” does not include consumer information that is deidentified or aggregate consumer information.
(w) “Precise geolocation” means any data that is derived from a device and that is used or intended to be used to locate a consumer within a geographic area that is equal to or less than the area of a circle with a radius of 1,850 feet, except as prescribed by regulations.
(x) “Probabilistic identifier” means the identification of a consumer or a consumer’s device to a degree of certainty of more probable than not based on any categories of personal information included in, or similar to, the categories enumerated in the definition of personal information.
(y) “Processing” means any operation or set of operations that are performed on personal information or on sets of personal information, whether or not by automated means.
(z) “Profiling” means any form of automated processing of personal information, as further defined by regulations pursuant to paragraph (16) of subdivision (a) of Section 1798.185, to evaluate certain personal aspects relating to a natural person and in particular to
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analyze or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences, interests, reliability, behavior, location, or movements.
(aa) “Pseudonymize” or “Pseudonymization” means the processing of personal information in a manner that renders the personal 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 personal information is not attributed to an identified or identifiable consumer.
(ab) “Research” means scientific analysis, systematic study, and observation, including basic research or applied research that is designed to develop or contribute to public or scientific knowledge and that adheres or otherwise conforms to all other applicable ethics and privacy laws, including, but not limited to, studies conducted in the public interest in the area of public health. Research with personal 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:
(1) Compatible with the business purpose for which the personal information was collected.
(2) Subsequently pseudonymized and deidentified, or deidentified and in the aggregate, such 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, by a business.
(3) Made subject to technical safeguards that prohibit reidentification of the consumer to whom the information may pertain, other than as needed to support the research.
(4) Subject to business processes that specifically prohibit reidentification of the information, other than as needed to support the research.
(5) Made subject to business processes to prevent inadvertent release of deidentified information.
(6) Protected from any reidentification attempts.
(7) Used solely for research purposes that are compatible with the context in which the personal information was collected.
(8) Subjected by the business conducting the research to additional security controls that limit access to the research data to only those individuals as are necessary to carry out the research purpose.
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(ac) “Security and integrity” means the ability of:
(1) Networks or information systems to detect security incidents that compromise the availability, authenticity, integrity, and confidentiality of stored or transmitted personal information.
(2) Businesses to detect security incidents, resist malicious, deceptive, fraudulent, or illegal actions and to help prosecute those responsible for those actions.
(3) Businesses to ensure the physical safety of natural persons.
(ad) (1) “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 personal information by the business to a third party for monetary or other valuable consideration.
(2) For purposes of this title, a business does not sell personal information when:
(A) A consumer uses or directs the business to intentionally:
(i) Disclose personal information.
(ii) Interact with one or more third parties.
(B) The business uses or shares an identifier for a consumer who has opted out of the sale of the consumer’s personal information or limited the use of the consumer’s sensitive personal information for the purposes of alerting persons that the consumer has opted out of the sale of the consumer’s personal information or limited the use of the consumer’s sensitive personal information.
(C) The business transfers to a third party the personal 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 this title. If a third party materially alters how it uses or shares the personal 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 this title. This subparagraph does not authorize a business to make material, retroactive privacy policy changes or make other changes in their privacy policy in a manner that would violate the Unfair and Deceptive Practices Act (Chapter 5 (commencing with Section 17200) of Part 2 of Division 7 of the Business and Professions Code).
(ae) “Sensitive personal information” means:
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(1) Personal information that reveals:
(A) A consumer’s social security, driver’s license, state identification card, or passport number.
(B) A consumer’s account log-in, financial account, debit card, or credit card number in combination with any required security or access code, password, or credentials allowing access to an account.
(C) A consumer’s precise geolocation.
(D) A consumer’s racial or ethnic origin, citizenship or immigration status, religious or philosophical beliefs, or union membership.
(E) The contents of a consumer’s mail, email, and text messages unless the business is the intended recipient of the communication.
(F) A consumer’s genetic data.
(2)
(A) The processing of biometric information for the purpose of uniquely identifying a consumer.
(B) Personal information collected and analyzed concerning a consumer’s health.
(C) Personal information collected and analyzed concerning a consumer’s sex life or sexual orientation.
(3) Sensitive personal information that is “publicly available” pursuant to paragraph (2) of subdivision (v) shall not be considered sensitive personal information or personal information.
(af) “Service” or “services” means work, labor, and services, including services furnished in connection with the sale or repair of goods.
(ag)
(1) “Service provider” means a person that processes personal information on behalf of a business and that receives from or on behalf of the business consumer’s personal information for a business purpose pursuant to a written contract, provided that the contract prohibits the person from:
(A) Selling or sharing the personal information.
(B) Retaining, using, or disclosing the personal information for any purpose other than for the business purposes specified in the contract for the business, including retaining, using, or disclosing the personal information for a commercial purpose other than the business purposes specified in the contract with the business, or as otherwise permitted by this title.
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(C) Retaining, using, or disclosing the information outside of the direct business relationship between the service provider and the business.
(D) Combining the personal information that the service provider receives from, or on behalf of, the business with personal information that it receives from, or on behalf of, another person or persons, or collects from its own interaction with the consumer, provided that the service provider may combine personal information to perform any business purpose as defined in regulations adopted pursuant to paragraph (10) of subdivision (a) of Section 1798.185, except as provided for in paragraph (6) of subdivision (e) of this section and in regulations adopted by the California Privacy Protection Agency. The contract may, subject to agreement with the service provider, permit the business to monitor the service provider’s compliance with the contract through measures, including, but not limited to, ongoing manual reviews and automated scans and regular assessments, audits, or other technical and operational testing at least once every 12 months.
(2) If a service provider engages any other person to assist it in processing personal information for a business purpose on behalf of the business, or if any other person engaged by the service provider engages another person to assist in processing personal information for that business purpose, it shall notify the business of that engagement, and the engagement shall be pursuant to a written contract binding the other person to observe all the requirements set forth in paragraph (1).
(ah) (1) “Share,” “shared,” or “sharing” means sharing, renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or by electronic or other means, a consumer’s personal information by the business to a third party for cross-context behavioral advertising, whether or not for monetary or other valuable consideration, including transactions between a business and a third party for cross-context behavioral advertising for the benefit of a business in which no money is exchanged.
(2) For purposes of this title, a business does not share personal information when:
(A) A consumer uses or directs the business to intentionally disclose personal information or intentionally interact with one or more third parties.
(B) The business uses or shares an identifier for a consumer who has opted out of the sharing of the consumer’s personal information or limited the use of the consumer’s sensitive personal information for the purposes of alerting persons that the consumer has opted out of the sharing of the consumer’s personal information or limited the use of the consumer’s sensitive personal information.
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(C) The business transfers to a third party the personal 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 this title. If a third party materially alters how it uses or shares the personal 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 this title. This subparagraph does not authorize a business to make material, retroactive privacy policy changes or make other changes in their privacy policy in a manner that would violate the Unfair and Deceptive Practices Act (Chapter 5 (commencing with Section 17200) of Part 2 of Division 7 of the Business and Professions Code).
(ai) “Third party” means a person who is not any of the following:
(1) The business with whom the consumer intentionally interacts and that collects personal information from the consumer as part of the consumer’s current interaction with the business under this title.
(2) A service provider to the business.
(3) A contractor.
(aj) “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; cookies, beacons, pixel tags, mobile ad identifiers, or similar 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 that is linked to a consumer or family. For purposes of this subdivision, “family” means a custodial parent or guardian and any children under 18 years of age over which the parent or guardian has custody.
(ak) “Verifiable consumer request” means a request that is made by a consumer, by a consumer on behalf of the consumer’s minor child, by a natural person or a person registered with the Secretary of State, authorized by the consumer to act on the consumer’s behalf, or by a person who has power of attorney or is acting as a conservator for the consumer, and that the business can verify, using commercially reasonable methods, pursuant to regulations adopted by the Attorney General pursuant to paragraph (7) of subdivision (a) of Section 1798.185 to be the consumer about whom the business has collected personal information. A business is not obligated to provide information to the consumer pursuant to Sections 1798.110 and 1798.115, to delete personal information pursuant to Section 1798.105, or to correct inaccurate personal information
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pursuant to Section 1798.106, if the business cannot verify, pursuant to this subdivision and regulations adopted by the Attorney General pursuant to paragraph (7) of subdivision (a) of Section 1798.185, 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.
## 1798.145. Exemptions
(a) (1) The obligations imposed on businesses by this title shall not restrict a business’s ability to:
(A) Comply with federal, state, or local laws or comply with a court order or subpoena to provide information.
(B) Comply with a civil, criminal, or regulatory inquiry, investigation, subpoena, or summons by federal, state, or local authorities. Law enforcement agencies, including police and sheriff’s departments, may direct a business pursuant to a law enforcement agency-approved investigation with an active case number not to delete a consumer’s personal information, and, upon receipt of that direction, a business shall not delete the personal information for 90 days in order to allow the law enforcement agency to obtain a court-issued subpoena, order, or warrant to obtain a consumer’s personal information. For good cause and only to the extent necessary for investigatory purposes, a law enforcement agency may direct a business not to delete the consumer’s personal information for additional 90-day periods. A business that has received direction from a law enforcement agency not to delete the personal information of a consumer who has requested deletion of the consumer’s personal information shall not use the consumer’s personal information for any purpose other than retaining it to produce to law enforcement in response to a court-issued subpoena, order, or warrant unless the consumer’s deletion request is subject to an exemption from deletion under this title.
(C) 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.
(D) (i) Cooperate with a government agency request for emergency access to a consumer’s personal information if a natural person is at risk or danger of death or serious physical injury provided that:
(I) The request is approved by a high-ranking agency officer for emergency access to a consumer’s personal information.
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(II) The request is based on the agency’s good faith determination that it has a lawful basis to access the information on a nonemergency basis.
(III) The agency agrees to petition a court for an appropriate order within three days and to destroy the information if that order is not granted.
(ii) For purposes of this subparagraph, a consumer accessing, procuring, or searching for services regarding contraception, pregnancy care, and perinatal care, including, but not limited to, abortion services, shall not constitute a natural person being at risk or danger of death or serious physical injury.
(E) Exercise or defend legal claims.
(F) Collect, use, retain, sell, share, or disclose consumers’ personal information that is deidentified or aggregate consumer information.
(G) Collect, sell, or share a consumer’s personal information if every aspect of that commercial conduct takes place wholly outside of California. For purposes of this title, commercial conduct takes place wholly outside of California if the business collected that information while the consumer was outside of California, no part of the sale of the consumer’s personal information occurred in California, and no personal information collected while the consumer was in California is sold. This paragraph shall not prohibit a business from storing, including on a device, personal information about a consumer when the consumer is in California and then collecting that personal information when the consumer and stored personal information is outside of California.
(2) (A) This subdivision shall not apply if the consumer’s personal information contains information related to accessing, procuring, or searching for services regarding contraception, pregnancy care, and perinatal care, including, but not limited to, abortion services.
(B) This paragraph does not alter the use of aggregated or deidentified personal information consistent with a business purpose as defined in paragraphs (1), (2), (3), (4), (5), (7), or (8) of subdivision (e) of Section 1798.140, provided that the personal information is only retained in aggregated and deidentified form and is not sold or shared.
(C) This paragraph does not alter the duty of a business to preserve or retain evidence pursuant to California or federal law in an ongoing civil proceeding.
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(b) The obligations imposed on businesses by Sections 1798.110, 1798.115, 1798.120, 1798.121, 1798.130, and 1798.135 shall not apply where compliance by the business with the title would violate an evidentiary privilege under California law and shall not prevent a business from providing the personal information of a consumer to a person covered by an evidentiary privilege under California law as part of a privileged communication.
(c) (1) This title shall not apply to any of the following:
(A) Medical information governed by the Confidentiality of Medical Information Act (Part 2.6 (commencing with Section 56) of Division 1) or protected health information that is collected by a covered entity or business associate 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 Health Insurance Portability and Accountability Act of 1996 (Public Law 104-191) and the Health Information Technology for Economic and Clinical Health Act (Public Law 111-5).
(B) A provider of health care governed by the Confidentiality of Medical Information Act (Part 2.6 (commencing with Section 56) of Division 1) or 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 Health Insurance Portability and Accountability Act of 1996 (Public Law 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 section.
(C) Personal information collected as part of a clinical trial or other biomedical research study subject to, or conducted in accordance with, 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 or pursuant to human subject protection requirements of the United States Food and Drug Administration, provided that the information is not sold or shared in a manner not permitted by this subparagraph, and, if it is inconsistent, that participants be informed of that use and provide consent.
(2) For purposes of this subdivision, the definitions of “medical information” and “provider of health care” in Section 56.05 shall apply and the definitions of “business associate,” “covered entity,” and “protected health information” in Section 160.103 of Title 45 of the Code of Federal Regulations shall apply.
(d) (1) This title shall not apply to an activity involving the collection, maintenance, disclosure, sale, communication, or use of any personal information bearing on a consumer’s creditworthiness, credit standing, credit capacity, character, general
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# reputation, personal characteristics, or mode of living by a consumer reporting agency, as defined in subdivision (f) of Section 1681a of Title 15 of the United States Code, by a furnisher of information, as set forth in Section 1681s-2 of Title 15 of the United States Code, who provides information for use in a consumer report, as defined in subdivision (d) of Section 1681a of Title 15 of the United States Code, and by a user of a consumer report as set forth in Section 1681b of Title 15 of the United States Code.
(2) Paragraph (1) shall apply only to the extent that such activity involving the collection, maintenance, disclosure, sale, communication, or use of such information by that agency, furnisher, or user is subject to regulation under the Fair Credit Reporting Act, Section 1681 et seq., Title 15 of the United States Code and the information is not collected, maintained, used, communicated, disclosed, or sold except as authorized by the Fair Credit Reporting Act.
(3) This subdivision shall not apply to Section 1798.150.
(e) This title shall not apply to personal information collected, processed, sold, or disclosed subject to the federal Gramm-Leach-Bliley Act (Public Law 106-102), and implementing regulations, or the California Financial Information Privacy Act (Division 1.4 (commencing with Section 4050) of the Financial Code), or the federal Farm Credit Act of 1971 (as amended in 12 U.S.C. 2001-2279cc and implementing regulations, 12 C.F.R. 600, et seq.). This subdivision shall not apply to Section 1798.150.
(f) This title shall not apply to personal information collected, processed, sold, or disclosed pursuant to the Driver’s Privacy Protection Act of 1994 (18 U.S.C. Sec. 2721 et seq.). This subdivision shall not apply to Section 1798.150.
(g) (1) Section 1798.120 shall not apply to vehicle information or ownership information retained or shared between a new motor vehicle dealer, as defined in Section 426 of the Vehicle Code, and the vehicle’s manufacturer, as defined in Section 672 of the Vehicle Code, if the vehicle information or ownership information is shared for the purpose of effectuating, or in anticipation of effectuating, a vehicle repair covered by a vehicle warranty or a recall conducted pursuant to Sections 30118 to 30120, inclusive, of Title 49 of the United States Code, provided that the new motor vehicle dealer or vehicle manufacturer with which that vehicle information or ownership information is shared does not sell, share, or use that information for any other purpose.
(2) Section 1798.120 shall not apply to vessel information or ownership information retained or shared between a vessel dealer and the vessel’s manufacturer, as defined in Section 651 of the Harbors and Navigation Code, if the vessel information or ownership information is shared for the purpose of effectuating, or in anticipation of effectuating, a vessel repair covered by a vessel warranty or a recall conducted pursuant to Section 4310 of Title 46 of the United States Code, provided that the
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vessel dealer or vessel manufacturer with which that vessel information or ownership information is shared does not sell, share, or use that information for any other purpose.
(3) For purposes of this subdivision:
(A) “Ownership information” means the name or names of the registered owner or owners and the contact information for the owner or owners.
(B) “Vehicle information” means the vehicle information number, make, model, year, and odometer reading.
(C) “Vessel dealer” means a person who is engaged, wholly or in part, in the business of selling or offering for sale, buying or taking in trade for the purpose of resale, or exchanging, any vessel or vessels, as defined in Section 651 of the Harbors and Navigation Code, and receives or expects to receive money, profit, or any other thing of value.
(D) “Vessel information” means the hull identification number, model, year, month and year of production, and information describing any of the following equipment as shipped, transferred, or sold from the place of manufacture, including all attached parts and accessories:
(i) An inboard engine.
(ii) An outboard engine.
(iii) A stern drive unit.
(iv) An inflatable personal floatation device approved under Section 160.076 of Title 46 of the Code of Federal Regulations.
(h) Notwithstanding a business’s obligations to respond to and honor consumer rights requests pursuant to this title:
(1) A time period for a business to respond to a consumer for any verifiable consumer request may be extended by up to a total of 90 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.
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(3) If requests from a consumer are manifestly unfounded or excessive, in particular because of their repetitive character, 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 that any verifiable consumer request is manifestly unfounded or excessive.
(i) (1) A business that discloses personal information to a service provider or contractor in compliance with this title shall not be liable under this title if the service provider or contractor receiving the personal information uses it in violation of the restrictions set forth in the title, provided that, at the time of disclosing the personal information, the business does not have actual knowledge, or reason to believe, that the service provider or contractor intends to commit such a violation. A service provider or contractor shall likewise not be liable under this title for the obligations of a business for which it provides services as set forth in this title provided that the service provider or contractor shall be liable for its own violations of this title.
(2) A business that discloses personal information of a consumer, with the exception of consumers who have exercised their right to opt out of the sale or sharing of their personal information, consumers who have limited the use or disclosure of their sensitive personal information, and minor consumers who have not opted in to the collection or sale of their personal information, to a third party pursuant to a written contract that requires the third party to provide the same level of protection of the consumer’s rights under this title as provided by the business shall not be liable under this title if the third party receiving the personal information uses it in violation of the restrictions set forth in this title provided that, at the time of disclosing the personal information, the business does not have actual knowledge, or reason to believe, that the third party intends to commit such a violation.
(j) This title shall not be construed to require a business, service provider, or contractor to:
(1) Reidentify or otherwise link information that, in the ordinary course of business, is not maintained in a manner that would be considered personal information.
(2) Retain any personal information about a consumer if, in the ordinary course of business, that information about the consumer would not be retained.
(3) Maintain information in identifiable, linkable, or associable form, or collect, obtain, retain, or access any data or technology, in order to be capable of linking or associating a verifiable consumer request with personal information.
(k) The rights afforded to consumers and the obligations imposed on the business in this title shall not adversely affect the rights and freedoms of other natural persons. A verifiable consumer request for specific pieces of personal information pursuant to Section
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1798.110, to delete a consumer’s personal information pursuant to Section 1798.105, or to correct inaccurate personal information pursuant to Section 1798.106, shall not extend to personal information about the consumer that belongs to, or the business maintains on behalf of, another natural person. A business may rely on representations made in a verifiable consumer request as to rights with respect to personal information and is under no legal requirement to seek out other persons that may have or claim to have rights to personal information, and a business is under no legal obligation under this title or any other provision of law to take any action under this title in the event of a dispute between or among persons claiming rights to personal information in the business’s possession.
(l) The rights afforded to consumers and the obligations imposed on any business under this title shall not apply to the extent that they infringe on the noncommercial activities of a person or entity described in subdivision (b) of Section 2 of Article I of the California Constitution.
(m) (1) This title shall not apply to any of the following:
(A) Personal 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 independent contractor of, that business to the extent that the natural person’s personal 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 an independent contractor of, that business.
(B) Personal 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 independent contractor of, that business to the extent that the personal information is collected and used solely within the context of having an emergency contact on file.
(C) Personal 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 independent contractor of, that business to the extent that the personal information is collected and used solely within the context of administering those benefits.
(2) For purposes of this subdivision:
(A) “Independent contractor” means a natural person who provides any service to a business pursuant to a written contract.
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(B) “Director” means a natural person designated in the articles of incorporation as director, 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 Division 2 (commencing with Section 500) of the Business and Professions Code and a clinical psychologist as defined in Section 1316.5 of the Health and Safety Code.
(D) “Officer” means a natural person elected or appointed by the board of directors to manage the daily operations of a corporation, including a chief executive officer, president, secretary, or treasurer.
(E) “Owner” means a natural person who meets one of the following criteria:
(i) Has 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) Has control in any manner over the election of a majority of the directors or of individuals exercising similar functions.
(iii) Has the power to exercise a controlling influence over the management of a company.
(3) This subdivision shall not apply to subdivision (a) of Section 1798.100 or Section 1798.150.
(4) This subdivision shall become inoperative on January 1, 2023.
(n) (1) The obligations imposed on businesses by Sections 1798.100, 1798.105, 1798.106, 1798.110, 1798.115, 1798.121, 1798.130, and 1798.135 shall not apply to personal information reflecting a written or verbal communication or a transaction between the business and the consumer, where the consumer is a natural person who acted or is acting as an employee, owner, director, officer, or independent contractor of a company, partnership, sole proprietorship, nonprofit, 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, nonprofit, or government agency.
(2) For purposes of this subdivision:
(A) “Independent contractor” means a natural person who provides any service to a business pursuant to a written contract.
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(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 meets one of the following:
(i) Has 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) Has control in any manner over the election of a majority of the directors or of individuals exercising similar functions.
(iii) Has the power to exercise a controlling influence over the management of a company.
(3) This subdivision shall become inoperative on January 1, 2023.
(o) (1) Sections 1798.105 and 1798.120 shall not apply to a commercial credit reporting agency’s collection, processing, sale, or disclosure of business controller information to the extent the commercial credit reporting agency uses the business controller information solely to identify the relationship of a consumer to a business that the consumer owns or contact the consumer only in the consumer’s role as the owner, director, officer, or management employee of the business.
(2) For the purposes of this subdivision:
(A) "Business controller information" means the name or names of the owner or owners, director, officer, or management employee of a business and the contact information, including a business title, for the owner or owners, director, officer, or management employee.
(B) "Commercial credit reporting agency" has the meaning set forth in subdivision (b) of Section 1785.42.
(C) "Owner" means a natural person that meets one of the following:
(i) Has 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) Has control in any manner over the election of a majority of the directors or of individuals exercising similar functions.
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(iii) Has the power to exercise a controlling influence over the management of a company.
(D) “Director” means a natural person designated in the articles of incorporation of a business as director, 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.
(E) “Officer” means a natural person elected or appointed by the board of directors of a business to manage the daily operations of a corporation, including a chief executive officer, president, secretary, or treasurer.
(F) “Management employee” means a natural person whose name and contact information is reported to or collected by a commercial credit reporting agency as the primary manager of a business and used solely within the context of the natural person’s role as the primary manager of the business.
(p) The obligations imposed on businesses in Sections 1798.105, 1798.106, 1798.110, and 1798.115 shall not apply to household data.
(q) (1) This title does not require a business to comply with a verifiable consumer request to delete a consumer’s personal information under Section 1798.105 to the extent the verifiable consumer request applies to a student’s grades, educational scores, or educational test results that the business holds on behalf of a local educational agency, as defined in subdivision (d) of Section 49073.1 of the Education Code, at which the student is currently enrolled. If a business does not comply with a request pursuant to this section, it shall notify the consumer that it is acting pursuant to this exception.
(2) This title does not require, in response to a request pursuant to Section 1798.110, that a business disclose on educational standardized assessment or educational assessment or a consumer’s specific responses to the educational standardized assessment or educational assessment if consumer access, possession, or control would jeopardize the validity and reliability of that educational standardized assessment or educational assessment. If a business does not comply with a request pursuant to this section, it shall notify the consumer that it is acting pursuant to this exception.
(3) For purposes of this subdivision:
(A) “Educational standardized assessment or educational assessment” means a standardized or nonstandardized quiz, test, or other assessment used to evaluate students in or for entry to kindergarten and grades 1 to 12, inclusive, schools, postsecondary institutions, vocational programs, and postgraduate programs that are accredited by an accrediting agency or organization
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recognized by the State of California or the United States Department of Education, as well as certification and licensure examinations used to determine competency and eligibility to receive certification or licensure from a government agency or government certification body.
(B) “Jeopardize the validity and reliability of that educational standardized assessment or educational assessment” means releasing information that would provide an advantage to the consumer who has submitted a verifiable consumer request or to another natural person.
(r) Sections 1798.105 and 1798.120 shall not apply to a business’s use, disclosure, or sale of particular pieces of a consumer’s personal information if the consumer has consented to the business’s use, disclosure, or sale of that information to produce a physical item, including a school yearbook containing the consumer’s photograph if:
(1) The business has incurred significant expense in reliance on the consumer’s consent.
(2) Compliance with the consumer’s request to opt out of the sale of the consumer’s personal information or to delete the consumer’s personal information would not be commercially reasonable.
(3) The business complies with the consumer’s request as soon as it is commercially reasonable to do so.
# 1798.146.
(a) This title shall not apply to any of the following:
(1) Medical information governed by the Confidentiality of Medical Information Act (Part 2.6 (commencing with Section 56) of Division 1) or protected health information that is collected by a covered entity or business associate 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 (Public Law 104-191) and the federal Health Information Technology for Economic and Clinical Health Act, Title XIII of the federal American Recovery and Reinvestment Act of 2009 (Public Law 111-5).
(2) A provider of health care governed by the Confidentiality of Medical Information Act (Part 2.6 (commencing with Section 56) of Division 1) or 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 (Public Law 104-191), to the extent the provider or covered entity maintains, uses, and discloses patient information in the
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same manner as medical information or protected health information as described in paragraph (1).
(3) A business associate of a covered entity governed by the privacy, security, and data 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 (Public Law 104-191) and the federal Health Information Technology for Economic and Clinical Health Act, Title XIII of the federal American Recovery and Reinvestment Act of 2009 (Public Law 111-5), to the extent that the business associate maintains, uses, and discloses patient information in the same manner as medical information or protected health information as described in paragraph (1).
(4) (A) Information that meets both of the following conditions:
(i) It is deidentified in accordance with the requirements for deidentification set forth in Section 164.514 of Part 164 of Title 45 of the Code of Federal Regulations.
(ii) It is derived from patient information that was originally collected, created, transmitted, or maintained by an entity regulated by the Health Insurance Portability and Accountability Act, the Confidentiality Of Medical Information Act, or the Federal Policy for the Protection of Human Subjects, also known as the Common Rule.
(B) Information that met the requirements of subparagraph (A) but is subsequently reidentified shall no longer be eligible for the exemption in this paragraph, and shall be subject to applicable federal and state data privacy and security laws, including, but not limited to, the Health Insurance Portability and Accountability Act, the Confidentiality Of Medical Information Act, and this title.
(5) Information that is collected, used, or disclosed in research, as defined in Section 164.501 of Title 45 of the Code of Federal Regulations, including, but not limited to, a clinical trial, and that is conducted in accordance with applicable ethics, confidentiality, privacy, and security rules of Part 164 of Title 45 of the Code of Federal Regulations, the Federal Policy for the Protection of Human Subjects, also known as the Common Rule, good clinical practice guidelines issued by the International Council for Harmonisation, or human subject protection requirements of the United States Food and Drug Administration.
(b) For purposes of this section, all of the following shall apply:
(1) “Business associate” has the same meaning as defined in Section 160.103 of Title 45 of the Code of Federal Regulations.
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(2) “Covered entity” has the same meaning as defined in Section 160.103 of Title 45 of the Code of Federal Regulations.
(3) “Identifiable private information” has the same meaning as defined in Section 46.102 of Title 45 of the Code of Federal Regulations.
(4) “Individually identifiable health information” has the same meaning as defined in Section 160.103 of Title 45 of the Code of Federal Regulations.
(5) “Medical information” has the same meaning as defined in Section 56.05.
(6) “Patient information” shall mean identifiable private information, protected health information, individually identifiable health information, or medical information.
(7) “Protected health information” has the same meaning as defined in Section 160.103 of Title 45 of the Code of Federal Regulations.
(8) “Provider of health care” has the same meaning as defined in Section 56.05.
# 1798.148.
(a) A business or other person shall not reidentify, or attempt to reidentify, information that has met the requirements of paragraph (4) of subdivision (a) of Section 1798.146, except for one or more of the following purposes:
(1) Treatment, payment, or health care operations conducted by a covered entity or business associate acting on behalf of, and at the written direction of, the covered entity. For purposes of this paragraph, “treatment,” “payment,” “health care operations,” “covered entity,” and “business associate” have the same meaning as defined in Section 164.501 of Title 45 of the Code of Federal Regulations.
(2) Public health activities or purposes as described in Section 164.512 of Title 45 of the Code of Federal Regulations.
(3) Research, as defined in Section 164.501 of Title 45 of the Code of Federal Regulations, that is conducted in accordance with Part 46 of Title 45 of the Code of Federal Regulations, the Federal Policy for the Protection of Human Subjects, also known as the Common Rule.
(4) Pursuant to a contract where the lawful holder of the deidentified information that met the requirements of paragraph (4) of subdivision (a) of Section 1798.146 expressly engages a person or entity to attempt to reidentify the deidentified information in order to conduct testing, analysis, or validation of deidentification, or related statistical techniques, if the contract bans any other use or disclosure of the
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reidentified information and requires the return or destruction of the information that was reidentified upon completion of the contract.
(5) If otherwise required by law.
(b) In accordance with paragraph (4) of subdivision (a) of Section 1798.146, information reidentified pursuant this section shall be subject to applicable federal and state data privacy and security laws including, but not limited to, the Health Insurance Portability and Accountability Act, the Confidentiality of Medical Information Act, and this title.
(c) Beginning January 1, 2021, any contract for the sale or license of deidentified information that has met the requirements of paragraph (4) of subdivision (a) of Section 1798.146, where one of the parties is a person residing or doing business in the state, shall include the following, or substantially similar, provisions:
(1) A statement that the deidentified information being sold or licensed includes deidentified patient information.
(2) A statement that reidentification, and attempted reidentification, of the deidentified information by the purchaser or licensee of the information is prohibited pursuant to this section.
(3) A requirement that, unless otherwise required by law, the purchaser or licensee of the deidentified information may not further disclose the deidentified information to any third party unless the third party is contractually bound by the same or stricter restrictions and conditions.
(d) For purposes of this section, “reidentify” means the process of reversal of deidentification techniques, including, but not limited to, the addition of specific pieces of information or data elements that can, individually or in combination, be used to uniquely identify an individual or usage of any statistical method, contrivance, computer software, or other means that have the effect of associating deidentified information with a specific identifiable individual.
# 1798.150. Personal Information Security Breaches
(a) (1) Any consumer whose nonencrypted and nonredacted personal information, as defined in subparagraph (A) of paragraph (1) of subdivision (d) of Section 1798.81.5, or whose email address in combination with a password or security question and answer that would permit access to the account is subject to an unauthorized access and exfiltration, theft, or disclosure as a result of the business’s violation of the duty to implement and maintain reasonable security procedures and practices appropriate to the nature of the information to protect the personal information may institute a civil action for any of the following:
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(A) To recover damages in an amount not less than one hundred dollars ($100) and not greater than seven hundred and fifty ($750) per consumer per incident or actual damages, whichever is greater.
(B) Injunctive or declaratory relief.
(C) Any other relief the court deems proper.
(2) In assessing the amount of statutory damages, the court shall consider any one or more of the relevant circumstances presented by any of the parties to the case, including, but not limited to, the nature and seriousness of the misconduct, the number of violations, the persistence of the misconduct, the length of time over which the misconduct occurred, the willfulness of the defendant’s misconduct, and the defendant’s assets, liabilities, and net worth.
(b) Actions pursuant to this section may be brought by a consumer if, prior to initiating any action against a business for statutory damages on an individual or class-wide basis, a consumer provides a business 30 days’ written notice identifying the specific provisions of this title the consumer alleges have been or are being violated. In the event a cure is possible, if within the 30 days the business actually cures the noticed violation and provides the consumer an express written statement that the violations have been cured and that no further violations shall occur, no action for individual statutory damages or class-wide statutory damages may be initiated against the business. The implementation and maintenance of reasonable security procedures and practices pursuant to Section 1798.81.5 following a breach does not constitute a cure with respect to that breach. No notice shall be required prior to an individual consumer initiating an action solely for actual pecuniary damages suffered as a result of the alleged violations of this title. If a business continues to violate this title in breach of the express written statement provided to the consumer under this section, the consumer may initiate an action against the business to enforce the written statement and may pursue statutory damages for each breach of the express written statement, as well as any other violation of the title that postdates the written statement.
(c) The cause of action established by this section shall apply only to violations as defined in subdivision (a) and shall not be based on violations of any other section of this title. Nothing in this title shall be interpreted to serve as the basis for a private right of action under any other law. This shall not be construed to relieve any party from any duties or obligations imposed under other law or the United States or California Constitution.
# 1798.155. Administrative Enforcement
(a) Any business, service provider, contractor, or other person that violates this title shall be liable for an administrative fine of not more than two thousand five hundred dollars ($2,500) for each violation or seven thousand five hundred dollars ($7,500) for each
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# 1798.160. Consumer Privacy Fund
(a) A special fund to be known as the “Consumer Privacy Fund” is hereby created within the General Fund in the State Treasury, and is available upon appropriation by the Legislature first to offset any costs incurred by the state courts in connection with actions brought to enforce this title, the costs incurred by the Attorney General in carrying out the Attorney General’s duties under this title, and then for the purposes of establishing an investment fund in the State Treasury, with any earnings or interest from the fund to be deposited in the General Fund, and making grants to promote and protect consumer privacy, educate children in the area of online privacy, and fund cooperative programs with international law enforcement organizations to combat fraudulent activities with respect to consumer data breaches.
(b) Funds transferred to the Consumer Privacy Fund shall be used exclusively as follows:
1. To offset any costs incurred by the state courts and the Attorney General in connection with this title.
2. After satisfying the obligations under paragraph (1), the remaining funds shall be allocated each fiscal year as follows:
(A) Ninety-one percent shall be invested by the Treasurer in financial assets with the goal of maximizing long term yields consistent with a prudent level of risk. The principal shall not be subject to transfer or appropriation, provided that any interest and earnings shall be transferred on an annual basis to the General Fund for appropriation by the Legislature for General Fund purposes.
(B) Nine percent shall be made available to the California Privacy Protection Agency for the purposes of making grants in California, with 3 percent allocated to each of the following grant recipients:
(i) Nonprofit organizations to promote and protect consumer privacy.
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(ii) Nonprofit organizations and public agencies, including school districts, to educate children in the area of online privacy.
(iii) State and local law enforcement agencies to fund cooperative programs with international law enforcement organizations to combat fraudulent activities with respect to consumer data breaches.
(c) Funds in the Consumer Privacy Fund shall not be subject to appropriation or transfer by the Legislature for any other purpose.
## 1798.175. Conflicting Provisions
This title is intended to further the constitutional right of privacy and to supplement existing laws relating to consumers’ personal information, including, but not limited to, Chapter 22 (commencing with Section 22575) of Division 8 of the Business and Professions Code and Title 1.81 (commencing with Section 1798.80). The provisions of this title are not limited to information collected electronically or over the Internet, but apply to the collection and sale of all personal information collected by a business from consumers. Wherever possible, law relating to consumers’ personal information should be construed to harmonize with the provisions of this title, but in the event of a conflict between other laws and the provisions of this title, the provisions of the law that afford the greatest protection for the right of privacy for consumers shall control.
## 1798.180. Preemption
This title is a matter of statewide concern and supersedes and preempts all rules, regulations, codes, ordinances, and other laws adopted by a city, county, city and county, municipality, or local agency regarding the collection and sale of consumers’ personal information by a business.
## 1798.185. Regulations
(a) On or before July 1, 2020, the Attorney General shall solicit broad public participation and adopt regulations to further the purposes of this title, including, but not limited to, the following areas:
(1) Updating or adding categories of personal information to those enumerated in subdivision (c) of Section 1798.130 and subdivision (v) of Section 1798.140, and updating or adding categories of sensitive personal information to those enumerated in subdivision (ae) of Section 1798.140 in order to address changes in technology, data collection practices, obstacles to implementation, and privacy concerns.
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(2) Updating as needed the definitions of “deidentified” and “unique identifier” to address changes in technology, data collection, obstacles to implementation, and privacy concerns, and adding, modifying, or deleting 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 1798.130. The authority to update the definition of “deidentified” shall not apply to deidentification standards set forth in Section 164.514 of Title 45 of the Code of Federal Regulations, where such information previously was “protected health information” as defined in Section 160.103 of Title 45 of the Code of Federal Regulations.
(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 this title and as needed thereafter, with the intention that trade secrets should not be disclosed in response to a verifiable consumer request.
(4) Establishing rules and procedures for the following:
(A) To facilitate and govern the submission of a request by a consumer to opt out of the sale or sharing of personal information pursuant to Section 1798.120 and to limit the use of a consumer’s sensitive personal information pursuant to Section 1798.121 to ensure that consumers have the ability to exercise their choices without undue burden and to prevent business from engaging in deceptive or harassing conduct, including in retaliation against consumers for exercising their rights, while allowing businesses to inform consumers of the consequences of their decision to opt out of the sale or sharing of their personal information or to limit the use of their sensitive personal information.
(B) To govern business compliance with a consumer’s opt-out request.
(C) For the development and use of a recognizable and uniform opt out logo or button by all businesses to promote consumer awareness of the opportunity to opt-out of the sale of personal information.
(5) Adjusting the monetary thresholds, in January of every odd-numbered year to reflect any increase in the Consumer Price Index, in: subparagraph (A) of paragraph (1) of subdivision (d) of Section 1798.140; subparagraph (A) of paragraph (1) of subdivision (a) of Section 1798.150; subdivision (a) of Section 1798.155; Section 1798.199.25; and subdivision (a) of Section 1798.199.90.
(6) Establishing rules, procedures, and any exceptions necessary to ensure that the notices and information that businesses are required to provide pursuant to this title 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
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guidelines regarding financial incentives within one year of passage of this title and as needed thereafter.
(7) Establishing rules and procedures to further the purposes of Sections 1798.105, 1798.106, 1798.110, and 1798.115 and to facilitate a consumer’s or the consumer’s authorized agent’s ability to delete personal information, correct inaccurate personal information pursuant to Section 1798.106, or obtain information pursuant to Section 1798.130, 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 this title and as needed thereafter.
(8) Establishing how often, and under what circumstances, a consumer may request a correction pursuant to Section 1798.106, including standards governing the following:
(A) How a business responds to a request for correction, including exceptions for requests to which a response is impossible or would involve disproportionate effort, and requests for correction of accurate information.
(B) How concerns regarding the accuracy of the information may be resolved.
(C) The steps a business may take to prevent fraud.
(D) If a business rejects a request to correct personal information collected and analyzed concerning a consumer’s health, the right of a consumer to provide a written addendum to the business with respect to any item or statement regarding any such personal information that the consumer believes to be incomplete or incorrect. The addendum shall be limited to 250 words per alleged incomplete or incorrect item and shall clearly indicate in writing that the consumer requests the addendum to be made a part of the consumer’s record.
(9) Establishing the standard to govern a business’s determination, pursuant to subparagraph (B) of paragraph (2) of subdivision (a) of Section 1798.130, that providing information beyond the 12-month period in a response to a verifiable consumer request is impossible or would involve a disproportionate effort.
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(10) Issuing regulations further defining and adding to the business purposes, including other notified purposes, for which businesses, service providers, and contractors may use consumers’ personal information consistent with consumers’ expectations, and further defining the business purposes for which service providers and contractors may combine consumers’ personal information obtained from different sources, except as provided for in paragraph (6) of subdivision (e) of Section 1798.140.
(11) Issuing regulations identifying those business purposes, including other notified purposes, for which service providers and contractors may use consumers’ personal information received pursuant to a written contract with a business, for the service provider or contractor’s own business purposes, with the goal of maximizing consumer privacy.
(12) Issuing regulations to further define “intentionally interacts,” with the goal of maximizing consumer privacy.
(13) Issuing regulations to further define “precise geolocation,” including if the size defined is not sufficient to protect consumer privacy in sparsely populated areas or when the personal information is used for normal operational purposes, including billing.
(14) Issuing regulations to define the term “specific pieces of information obtained from the consumer” with the goal of maximizing a consumer’s right to access relevant personal information while minimizing the delivery of information to a consumer that would not be useful to the consumer, including system log information and other technical data. For delivery of the most sensitive personal information, the regulations may require a higher standard of authentication provided that the agency shall monitor the impact of the higher standard on the right of consumers to obtain their personal information to ensure that the requirements of verification do not result in the unreasonable denial of verifiable consumer requests.
(15) Issuing regulations requiring businesses whose processing of consumers’ personal information presents significant risk to consumers’ privacy or security, to:
(A) Perform a cybersecurity audit on an annual basis, including defining the scope of the audit and establishing a process to ensure that audits are thorough and independent. The factors to be considered in determining when processing may result in significant risk to the security of personal information shall include the size and complexity of the business and the nature and scope of processing activities.
(B) Submit to the California Privacy Protection Agency on a regular basis a risk assessment with respect to their processing of personal information, including whether the processing involves sensitive personal information, and
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identifying and weighing the benefits resulting from the processing to the business, the consumer, other stakeholders, and the public, against the potential risks to the rights of the consumer associated with that processing, with the goal of restricting or prohibiting the processing if the risks to privacy of the consumer outweigh the benefits resulting from processing to the consumer, the business, other stakeholders, and the public. Nothing in this section shall require a business to divulge trade secrets.
(16) Issuing regulations governing access and opt-out rights with respect to businesses’ use of automated decisionmaking technology, including profiling and requiring businesses’ response to access requests to include meaningful information about the logic involved in those decisionmaking processes, as well as a description of the likely outcome of the process with respect to the consumer.
(17) Issuing regulations to further define a “law enforcement agency-approved investigation” for purposes of the exception in subparagraph (B) of paragraph (1) of subdivision (a) of Section 1798.145.
(18) Issuing regulations to define the scope and process for the exercise of the agency’s audit authority, to establish criteria for selection of persons to audit, and to protect consumers’ personal information from disclosure to an auditor in the absence of a court order, warrant, or subpoena.
(19) (A) Issuing regulations to define the requirements and technical specifications for an opt-out preference signal sent by a platform, technology, or mechanism, to indicate a consumer’s intent to opt out of the sale or sharing of the consumer’s personal information and to limit the use or disclosure of the consumer’s sensitive personal information. The requirements and specifications for the opt-out preference signal should be updated from time to time to reflect the means by which consumers interact with businesses, and should:
(i) Ensure that the manufacturer of a platform or browser or device that sends the opt-out preference signal cannot unfairly disadvantage another business.
(ii) Ensure that the opt-out preference signal is consumer-friendly, clearly described, and easy to use by an average consumer and does not require that the consumer provide additional information beyond what is necessary.
(iii) Clearly represent a consumer’s intent and be free of defaults constraining or presupposing that intent.
(iv) Ensure that the opt-out preference signal does not conflict with other commonly used privacy settings or tools that consumers may employ.
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(v) Provide a mechanism for the consumer to selectively consent to a business’s sale of the consumer’s personal information, or the use or disclosure of the consumer’s sensitive personal information, without affecting the consumer’s preferences with respect to other businesses or disabling the opt-out preference signal globally.
(vi) State that in the case of a page or setting view that the consumer accesses to set the opt-out preference signal, the consumer should see up to three choices, including:
(I) Global opt out from sale and sharing of personal information, including a direction to limit the use of sensitive personal information.
(II) Choice to “Limit the Use of My Sensitive Personal Information.”
(III) Choice titled “Do Not Sell/Do Not Share My Personal Information for Cross-Context Behavioral Advertising.”
(B) Issuing regulations to establish technical specifications for an opt-out preference signal that allows the consumer, or the consumer’s parent or guardian, to specify that the consumer is less than 13 years of age or at least 13 years of age and less than 16 years of age.
(C) Issuing regulations, with the goal of strengthening consumer privacy while considering the legitimate operational interests of businesses, to govern the use or disclosure of a consumer’s sensitive personal information, notwithstanding the consumer’s direction to limit the use or disclosure of the consumer’s sensitive personal information, including:
(i) Determining any additional purposes for which a business may use or disclose a consumer’s sensitive personal information.
(ii) Determining the scope of activities permitted under paragraph (8) of subdivision (e) of Section 1798.140, as authorized by subdivision (a) of Section 1798.121, to ensure that the activities do not involve health-related research.
(iii) Ensuring the functionality of the business’s operations.
(iv) Ensuring that the exemption in subdivision (d) of Section 1798.121 for sensitive personal information applies to information that is collected or processed incidentally, or without the purpose of inferring characteristics about a consumer, while ensuring that businesses do not use the exemption for the purpose of evading consumers’ rights to limit the use and disclosure of their sensitive personal information under Section 1798.121.
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(20) Issuing regulations to govern how a business that has elected to comply with subdivision (b) of Section 1798.135 responds to the opt-out preference signal and provides consumers with the opportunity subsequently to consent to the sale or sharing of their personal information or the use and disclosure of their sensitive personal information for purposes in addition to those authorized by subdivision (a) of Section 1798.121. The regulations should:
(A) Strive to promote competition and consumer choice and be technology neutral.
(B) Ensure that the business does not respond to an opt-out preference signal by:
(i) Intentionally degrading the functionality of the consumer experience.
(ii) Charging the consumer a fee in response to the consumer’s opt-out preferences.
(iii) Making any products or services not function properly or fully for the consumer, as compared to consumers who do not use the opt-out preference signal.
(iv) Attempting to coerce the consumer to opt in to the sale or sharing of the consumer’s personal information, or the use or disclosure of the consumer’s sensitive personal information, by stating or implying that the use of the opt-out preference signal will adversely affect the consumer as compared to consumers who do not use the opt-out preference signal, including stating or implying that the consumer will not be able to use the business’s products or services or that those products or services may not function properly or fully.
(v) Displaying any notification or pop-up in response to the consumer’s opt-out preference signal.
(C) Ensure that any link to a web page or its supporting content that allows the consumer to consent to opt in:
(i) Is not part of a popup, notice, banner, or other intrusive design that obscures any part of the web page the consumer intended to visit from full view or that interferes with or impedes in any way the consumer’s experience visiting or browsing the web page or website the consumer intended to visit.
(ii) Does not require or imply that the consumer must click the link to receive full functionality of any products or services, including the website.
(iii) Does not make use of any dark patterns.
(iv) Applies only to the business with which the consumer intends to interact.
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(D) Strive to curb coercive or deceptive practices in response to an opt-out preference signal but should not unduly restrict businesses that are trying in good faith to comply with Section 1798.135.
(21) Review existing Insurance Code provisions and regulations relating to consumer privacy, except those relating to insurance rates or pricing, to determine whether any provisions of the Insurance Code provide greater protection to consumers than the provisions of this title. Upon completing its review, the agency shall adopt a regulation that applies only the more protective provisions of this title to insurance companies. For the purpose of clarity, the Insurance Commissioner shall have jurisdiction over insurance rates and pricing.
(22) Harmonizing the regulations governing opt-out mechanisms, notices to consumers, and other operational mechanisms in this title to promote clarity and the functionality of this title for consumers.
(b) The Attorney General may adopt additional regulations as necessary to further the purposes of this title.
(c) The Attorney General shall not bring an enforcement action under this title until six months after the publication of the final regulations issued pursuant to this section or July 1, 2020, whichever is sooner.
(d) Notwithstanding subdivision (a), the timeline for adopting final regulations required by the act adding this subdivision shall be July 1, 2022. Beginning the later of July 1, 2021, or six months after the agency provides notice to the Attorney General that it is prepared to begin rulemaking under this title, the authority assigned to the Attorney General to adopt regulations under this section shall be exercised by the California Privacy Protection Agency. Notwithstanding any other law, civil and administrative enforcement of the provisions of law added or amended by this act shall not commence until July 1, 2023, and shall only apply to violations occurring on or after that date. Enforcement of provisions of law contained in the California Consumer Privacy Act of 2018 amended by this act shall remain in effect and shall be enforceable until the same provisions of this act become enforceable.
# 1798.190. Anti-Avoidance
A court or the agency shall disregard the intermediate steps or transactions for purposes of effectuating the purposes of this title:
(a) If a series of steps or transactions were component parts of a single transaction intended from the beginning to be taken with the intention of avoiding the reach of this title, including the disclosure of information by a business to a third party in order to avoid the definition of sell or share.
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(b) If steps or transactions were taken to purposely avoid the definition of sell or share by eliminating any monetary or other valuable consideration, including by entering into contracts that do not include an exchange for monetary or other valuable consideration, but where a party is obtaining something of value or use.
## 1798.192. Waiver
Any provision of a contract or agreement of any kind, including a representative action waiver, that purports to waive or limit in any way rights under this title, 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. This section shall not prevent a consumer from declining to request information from a business, declining to opt out of a business’s sale of the consumer’s personal information, or authorizing a business to sell or share the consumer’s personal information after previously opting out.
## 1798.194.
This title shall be liberally construed to effectuate its purposes.
## 1798.196.
This title is intended to supplement federal and state law, if permissible, but shall not apply if such application is preempted by, or in conflict with, federal law or the United States or California Constitution.
## 1798.198.
(a) Subject to limitation provided in subdivision (b), and in Section 1798.199, this title shall be operative January 1, 2020.
(b) This title shall become operative only if initiative measure No. 17-0039, The Consumer Right to Privacy Act of 2018, is withdrawn from the ballot pursuant to Section 9604 of the Elections Code.
## 1798.199.
Notwithstanding Section 1798.198, Section 1798.180 shall be operative on the effective date of the act adding this section.
## 1798.199.10.
(a) There is hereby established in state government the California Privacy Protection Agency, which is vested with full administrative power, authority, and jurisdiction to implement and enforce the California Consumer Privacy Act of 2018. The agency shall be governed by a five-member board, including the chairperson. The chairperson and one member of the board shall be appointed by the Governor. The Attorney General, Senate Rules
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Committee, and Speaker of the Assembly shall each appoint one member. These appointments should be made from among Californians with expertise in the areas of privacy, technology, and consumer rights.
(b) The initial appointments to the agency shall be made within 90 days of the effective date of the act adding this section.
## 1798.199.15.
Members of the agency board shall:
(a) Have qualifications, experience, and skills, in particular in the areas of privacy and technology, required to perform the duties of the agency and exercise its powers.
(b) Maintain the confidentiality of information which has come to their knowledge in the course of the performance of their tasks or exercise of their powers, except to the extent that disclosure is required by the Public Records Act.
(c) Remain free from external influence, whether direct or indirect, and shall neither seek nor take instructions from another.
(d) Refrain from any action incompatible with their duties and engaging in any incompatible occupation, whether gainful or not, during their term.
(e) Have the right of access to all information made available by the agency to the chairperson.
(f) Be precluded, for a period of one year after leaving office, from accepting employment with a business that was subject to an enforcement action or civil action under this title during the member’s tenure or during the five-year period preceding the member’s appointment.
(g) Be precluded for a period of two years after leaving office from acting, for compensation, as an agent or attorney for, or otherwise representing, any other person in a matter pending before the agency if the purpose is to influence an action of the agency.
## 1798.199.20.
Members of the agency board, including the chairperson, shall serve at the pleasure of their appointing authority but shall serve for no longer than eight consecutive years.
## 1798.199.25.
For each day on which they engage in official duties, members of the agency board shall be compensated at the rate of one hundred dollars ($100), adjusted biennially to reflect changes in the cost of living, and shall be reimbursed for expenses incurred in performance of their official duties.
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# 1798.199.30
The agency board shall appoint an executive director who shall act in accordance with agency policies and regulations and with applicable law. The agency shall appoint and discharge officers, counsel, and employees, consistent with applicable civil service laws, and shall fix the compensation of employees and prescribe their duties. The agency may contract for services that cannot be provided by its employees.
# 1798.199.35
The agency board may delegate authority to the chairperson or the executive director to act in the name of the agency between meetings of the agency, except with respect to resolution of enforcement actions and rulemaking authority.
# 1798.199.40
The agency shall perform the following functions:
(a) Administer, implement, and enforce through administrative actions this title.
(b) On and after the later of July 1, 2021, or within six months of the agency providing the Attorney General with notice that it is prepared to assume rulemaking responsibilities under this title, adopt, amend, and rescind regulations pursuant to Section 1798.185 to carry out the purposes and provisions of the California Consumer Privacy Act of 2018, including regulations specifying recordkeeping requirements for businesses to ensure compliance with this title.
(c) Through the implementation of this title, protect the fundamental privacy rights of natural persons with respect to the use of their personal information.
(d) Promote public awareness and understanding of the risks, rules, responsibilities, safeguards, and rights in relation to the collection, use, sale, and disclosure of personal information, including the rights of minors with respect to their own information, and provide a public report summarizing the risk assessments filed with the agency pursuant to paragraph (15) of subdivision (a) of Section 1798.185 while ensuring that data security is not compromised.
(e) Provide guidance to consumers regarding their rights under this title.
(f) Provide guidance to businesses regarding their duties and responsibilities under this title and appoint a Chief Privacy Auditor to conduct audits of businesses to ensure compliance with this title pursuant to regulations adopted pursuant to paragraph (18) of subdivision (a) of Section 1798.185.
(g) Provide technical assistance and advice to the Legislature, upon request, with respect to privacy-related legislation.
(h) Monitor relevant developments relating to the protection of personal information and, in particular, the development of information and communication technologies and commercial practices.
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(i) Cooperate with other agencies with jurisdiction over privacy laws and with data processing authorities in California, other states, territories, and countries to ensure consistent application of privacy protections.
(j) Establish a mechanism pursuant to which persons doing business in California that do not meet the definition of business set forth in paragraph (1), (2), or (3) of subdivision (d) of Section 1798.140 may voluntarily certify that they are in compliance with this title, as set forth in paragraph (4) of subdivision (d) of Section 1798.140, and make a list of those entities available to the public.
(k) Solicit, review, and approve applications for grants to the extent funds are available pursuant to paragraph (2) of subdivision (b) of Section 1798.160.
(l) Perform all other acts necessary or appropriate in the exercise of its power, authority, and jurisdiction and seek to balance the goals of strengthening consumer privacy while giving attention to the impact on businesses.
## 1798.199.45.
(a) Upon the sworn complaint of any person or on its own initiative, the agency may investigate possible violations of this title relating to any business, service provider, contractor, or person. The agency may decide not to investigate a complaint or decide to provide a business with a time period to cure the alleged violation. In making a decision not to investigate or provide more time to cure, the agency may consider the following:
(1) Lack of intent to violate this title.
(2) Voluntary efforts undertaken by the business, service provider, contractor, or person to cure the alleged violation prior to being notified by the agency of the complaint.
(b) The agency shall notify in writing the person who made the complaint of the action, if any, the agency has taken or plans to take on the complaint, together with the reasons for that action or nonaction.
## 1798.199.50.
No finding of probable cause to believe this title has been violated shall be made by the agency unless, at least 30 days prior to the agency’s consideration of the alleged violation, the business, service provider, contractor, or person alleged to have violated this title is notified of the violation by service of process or registered mail with return receipt requested, provided with a summary of the evidence, and informed of their right to be present in person and represented by counsel at any proceeding of the agency held for the purpose of considering whether probable cause exists for believing the person violated this title. Notice to the alleged violator shall be deemed made on the date of service, the date the registered mail receipt is signed, or if the registered mail receipt is not signed, the date returned by the post
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# 1798.199.55.
(a) When the agency determines there is probable cause for believing this title has been violated, it shall hold a hearing to determine if a violation has or violations have occurred. Notice shall be given and the hearing conducted in accordance with the Administrative Procedure Act (Chapter 5 (commencing with Section 11500), Part 1, Division 3, Title 2, Government Code). The agency shall have all the powers granted by that chapter. If the agency determines on the basis of the hearing conducted pursuant to this subdivision that a violation or violations have occurred, it shall issue an order that may require the violator to do all or any of the following:
(1) Cease and desist violation of this title.
(2) Subject to Section 1798.155, pay an administrative fine of up to two thousand five hundred dollars ($2,500) for each violation, or up to seven thousand five hundred dollars ($7,500) for each intentional violation and each violation involving the personal information of minor consumers to the Consumer Privacy Fund within the General Fund of the state. When the agency determines that no violation has occurred, it shall publish a declaration so stating.
(b) If two or more persons are responsible for any violation or violations, they shall be jointly and severally liable.
# 1798.199.60.
Whenever the agency rejects the decision of an administrative law judge made pursuant to Section 11517 of the Government Code, the agency shall state the reasons in writing for rejecting the decision.
# 1798.199.65.
The agency may subpoena witnesses, compel their attendance and testimony, administer oaths and affirmations, take evidence and require by subpoena the production of any books, papers, records, or other items material to the performance of the agency’s duties or exercise of its powers, including, but not limited to, its power to audit a business’ compliance with this title.
# 1798.199.70.
No administrative action brought pursuant to this title alleging a violation of any of the provisions of this title shall be commenced more than five years after the date on which the violation occurred.
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(a) The service of the probable cause hearing notice, as required by Section 1798.199.50, upon the person alleged to have violated this title shall constitute the commencement of the administrative action.
(b) If the person alleged to have violated this title engages in the fraudulent concealment of the person’s acts or identity, the five-year period shall be tolled for the period of the concealment. For purposes of this subdivision, “fraudulent concealment” means the person knows of material facts related to the person’s duties under this title and knowingly conceals them in performing or omitting to perform those duties for the purpose of defrauding the public of information to which it is entitled under this title.
(c) If, upon being ordered by a superior court to produce any documents sought by a subpoena in any administrative proceeding under this title, the person alleged to have violated this title fails to produce documents in response to the order by the date ordered to comply therewith, the five-year period shall be tolled for the period of the delay from the date of filing of the motion to compel until the date the documents are produced.
# 1798.199.75.
(a) In addition to any other available remedies, the agency may bring a civil action and obtain a judgment in superior court for the purpose of collecting any unpaid administrative fines imposed pursuant to this title after exhaustion of judicial review of the agency’s action. The action may be filed as a small claims, limited civil, or unlimited civil case depending on the jurisdictional amount. The venue for this action shall be in the county where the administrative fines were imposed by the agency. In order to obtain a judgment in a proceeding under this section, the agency shall show, following the procedures and rules of evidence as applied in ordinary civil actions, all of the following:
1. That the administrative fines were imposed following the procedures set forth in this title and implementing regulations.
2. That the defendant or defendants in the action were notified, by actual or constructive notice, of the imposition of the administrative fines.
3. That a demand for payment has been made by the agency and full payment has not been received.
(b) A civil action brought pursuant to subdivision (a) shall be commenced within four years after the date on which the administrative fines were imposed.
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# 1798.199.80.
(a) If the time for judicial review of a final agency order or decision has lapsed, or if all means of judicial review of the order or decision have been exhausted, the agency may apply to the clerk of the court for a judgment to collect the administrative fines imposed by the order or decision, or the order as modified in accordance with a decision on judicial review.
(b) The application, which shall include a certified copy of the order or decision, or the order as modified in accordance with a decision on judicial review, and proof of service of the order or decision, constitutes a sufficient showing to warrant issuance of the judgment to collect the administrative fines. The clerk of the court shall enter the judgment immediately in conformity with the application.
(c) An application made pursuant to this section shall be made to the clerk of the superior court in the county where the administrative fines were imposed by the agency.
(d) A judgment entered in accordance with this section has the same force and effect as, and is subject to all the provisions of law relating to, a judgment in a civil action and may be enforced in the same manner as any other judgment of the court in which it is entered.
(e) The agency may bring an application pursuant to this section only within four years after the date on which all means of judicial review of the order or decision have been exhausted.
(f) The remedy available under this section is in addition to those available under any other law.
# 1798.199.85.
Any decision of the agency with respect to a complaint or administrative fine shall be subject to judicial review in an action brought by an interested party to the complaint or administrative fine and shall be subject to an abuse of discretion standard.
# 1798.199.90.
(a) Any business, service provider, contractor, or other person that violates this title shall be subject to an injunction and liable for a civil penalty of not more than two thousand five hundred dollars ($2,500) for each violation or seven thousand five hundred dollars ($7,500) for each intentional violation and each violation involving the personal information of minor consumers, as adjusted pursuant to paragraph (5) of subdivision (a) of Section 1798.185, which shall be assessed and recovered in a civil action brought in the name of the people of the State of California by the Attorney General. The court may consider the good faith cooperation of the business, service provider, contractor, or other person in determining the amount of the civil penalty.
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(b) Any civil penalty recovered by an action brought by the Attorney General for a violation of this title, and the proceeds of any settlement of any said action, shall be deposited in the Consumer Privacy Fund.
(c) The agency shall, upon request by the Attorney General, stay an administrative action or investigation under this title to permit the Attorney General to proceed with an investigation or civil action and shall not pursue an administrative action or investigation, unless the Attorney General subsequently determines not to pursue an investigation or civil action. The agency may not limit the authority of the Attorney General to enforce this title.
(d) No civil action may be filed by the Attorney General under this section for any violation of this title after the agency has issued a decision pursuant to Section 1798.199.85 or an order pursuant to Section 1798.199.55 against that person for the same violation.
(e) This section shall not affect the private right of action provided for in Section 1798.150.
## 1798.199.95.
(a) There is hereby appropriated from the General Fund of the state to the agency the sum of five million dollars ($5,000,000) during the fiscal year 2020–2021, and the sum of ten million dollars ($10,000,000) adjusted for cost-of-living changes, during each fiscal year thereafter, for expenditure to support the operations of the agency pursuant to this title. The expenditure of funds under this appropriation shall be subject to the normal administrative review given to other state appropriations. The Legislature shall appropriate those additional amounts to the commission and other agencies as may be necessary to carry out the provisions of this title.
(b) The Department of Finance, in preparing the state budget and the Budget Act bill submitted to the Legislature, shall include an item for the support of this title that shall indicate all of the following:
(1) The amounts to be appropriated to other agencies to carry out their duties under this title, which amounts shall be in augmentation of the support items of those agencies.
(2) The additional amounts required to be appropriated by the Legislature to the agency to carry out the purposes of this title, as provided for in this section.
(3) In parentheses, for informational purposes, the continuing appropriation during each fiscal year of ten million dollars ($10,000,000), adjusted for cost-of-living changes made pursuant to this section.
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(c) The Attorney General shall provide staff support to the agency until the agency has hired its own staff. The Attorney General shall be reimbursed by the agency for these services.
**1798.199.100.** The agency and any court, as applicable, shall consider the good faith cooperation of the business, service provider, contractor, or other person in determining the amount of any administrative fine or civil penalty for a violation of this title. A business shall not be required by the agency, a court, or otherwise to pay both an administrative fine and a civil penalty for the same violation. |