2023 - 2024 LEGISLATURE
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2023 ASSEMBLY BILL 466
October 5, 2023 - Introduced by Representatives ZIMMERMAN, GUSTAFSON, ALLEN,
ARMSTRONG, BEHNKE, BINSFELD, DITTRICH, DUCHOW, GREEN, KITCHENS, KURTZ,
MACCO, MURPHY, MURSAU, NOVAK, O'CONNOR, PENTERMAN, PLUMER,
PRONSCHINSKE, RETTINGER, SORTWELL, SPIROS, STEFFEN, TITTL, WICHGERS and
WITTKE, cosponsored by Senators QUINN and MARKLEIN. Referred to
Committee on Consumer Protection.
1 AN ACT to create 134.985 of the statutes; relating to: consumer data protection
2 and providing a penalty.
Analysis by the Legislative Reference Bureau
This bill establishes requirements for controllers and processors of the personal
data of consumers. The bill defines a “controller” as a person that, alone or jointly
with others, determines the purpose and means of processing personal data, and the
bill applies to controllers that control or process the personal data of at least 100,000
consumers or that control or process the personal data of at least 25,000 consumers
and derive over 50 percent of their gross revenue from the sale of personal data.
Under the bill, “personal data” means any information that is linked or reasonably
linkable to an individual except for publicly available information.
The bill provides consumers with the following rights regarding their personal
data: 1) to confirm whether a controller is processing the consumer's personal data
and to access the personal data; 2) to correct inaccuracies in the consumer's personal
data; 3) to require a controller to delete personal data provided by or about the
consumer; 4) to obtain a copy of the personal data that the consumer previously
provided to the controller; and 5) to opt out of the processing of the consumer's
personal data for targeted advertising; the sale of the consumer's personal data; and
certain forms of automated processing of the consumer's personal data. These rights
are subject to certain exceptions specified in the bill. Controllers may not
discriminate against a consumer for exercising rights under the bill, including by
charging different prices for goods or providing a different level of quality of goods
or services.
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ASSEMBLY BILL 466
The bill requires controllers to respond to consumers' requests to invoke rights
under the bill without undue delay. If a controller declines to take action regarding
a consumer's request, the controller must inform the consumer of its justification
without undue delay. The bill also requires that information provided in response
to a consumer's request be provided free of charge once annually per consumer.
Controllers must also establish processes for consumers to appeal a refusal to take
action on a consumer's request. Within 60 days of receiving an appeal, a controller
must 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 its decisions. If the
appeal is denied, the controller must provide the consumer with a method through
which the consumer can contact the attorney general to submit a complaint.
Under the bill, a controller must provide consumers with a privacy notice that
discloses the categories of personal data processed by the controller; the purpose of
processing the personal data; the categories of third parties, if any, with whom the
controller shares personal data; the categories of personal data that the controller
shares with third parties; and information about how consumers may exercise their
rights under the bill. Controllers may not collect or process personal data for
purposes that are not relevant to or reasonably necessary for the purposes disclosed
in the privacy notice. The bill's requirements do not restrict a controller's ability to
collect, use, or retain data for conducting internal research, effectuating a product
recall, identifying and repairing technical errors, or performing internal operations
that are reasonably aligned with consumer expectations or reasonably anticipated
on the basis of a consumer's relationship with the controller.
Persons that process personal data on behalf of a controller must adhere to a
contract between the controller and the processor, and such contracts must satisfy
certain requirements specified in the bill. The bill also requires controllers to
conduct data protection assessments related to certain activities, including
processing personal data for targeted advertising, selling personal data, processing
personal data for profiling purposes, and processing sensitive data, as defined in the
bill. The attorney general may request that a controller disclose a data protection
assessment that is relevant to an investigation being conducted by the attorney
general.
The attorney general has exclusive authority to enforce violations of the bill's
requirements. A controller or processor that violates the bill's requirements is
subject to a forfeiture of up to $7,500 per violation, and the attorney general may
recover reasonable investigation and litigation expenses incurred. Before bringing
an action to enforce the bill's requirements, the attorney general must first provide
a controller or processor with a written notice identifying the violations. If within
30 days of receiving the notice the controller or processor cures the violation and
provides the attorney general with an express written statement that the violation
is cured and that no such further violations will occur, then the attorney general may
not bring an action against the controller or processor. The bill also prohibits cities,
villages, towns, and counties from enacting or enforcing ordinances that regulate the
collection, processing, or sale of personal data.
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For further information see the state fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
1 SECTION 1. 134.985 of the statutes is created to read:
2 134.985 Consumer data protection. (1) DEFINITIONS. In this section:
3 (a) “Affiliate” means a legal entity that controls, is controlled by, or is under
4 common control with another legal entity or shares common branding with another
5 legal entity. For the purposes of this definition, “control" or “controlled" means
6 ownership of, or the power to vote, more than 50 percent of the outstanding shares
7 of any class of voting security of a company; control in any manner over the election
8 of a majority of the directors or of individuals exercising similar functions; or the
9 power to exercise controlling influence over the management of a company.
10 (b) “Authenticate" means verifying through reasonable means that the
11 consumer, entitled to exercise his or her consumer rights under sub. (2), is the same
12 consumer exercising such consumer rights with respect to the personal data at issue.
13 (c) “Biometric data" means data generated by automatic measurements of an
14 individual's biological characteristics, such as a fingerprint, voiceprint, eye retinas,
15 irises, or other unique biological patterns or characteristics that are used to identify
16 a specific individual. “Biometric data" does not include a physical or digital
17 photograph, a video or audio recording or data generated therefrom, or information
18 collected, used, or stored for health care treatment, payment, or operations under the
19 federal Health Insurance Portability and Accountability Act of 1996.
20 (d) “Business associate” has the meaning given in 45 CFR 160.103.
21 (e) “Child” means an individual younger than 13 years of age.
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1 (f) “Consent" means a clear affirmative act signifying a consumer's freely given,
2 specific, informed, and unambiguous agreement to process personal data relating to
3 the consumer. “Consent” may include a written statement, including a statement
4 written by electronic means, or any other unambiguous affirmative action.
5 (g) “Consumer" means an individual who is a resident of this state acting only
6 in an individual or household context. “Consumer" does not include an individual
7 acting in a commercial or employment context.
8 (h) “Controller" means a person that, alone or jointly with others, determines
9 the purpose and means of processing personal data.
10 (i) “Covered entity” has the meaning given in 45 CFR 160.103.
11 (ja) “Cures Act” means the federal 21st Century Cures Act and valid federal
12 regulations enacted pursuant to such provisions.
13 (jg) “Decisions that produce legal or similarly significant effects concerning a
14 consumer" means a decision made by the controller that results in the provision or
15 denial by the controller of financial and lending services, housing, insurance,
16 education enrollment, criminal justice, employment opportunities, health care
17 services, or access to basic necessities, such as food and water.
18 (ka) “Deidentified data" means data that cannot reasonably be linked to an
19 identified or identifiable individual, or a device linked to such person.
20 (kb) “Identified or identifiable individual" means a person who can be readily
21 identified, directly or indirectly.
22 (La) “HIPAA” means the federal Health Insurance Portability and
23 Accountability Act and valid federal regulations enacted pursuant to the act,
24 including 45 CFR 164.500 to 164.534.
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1 (Lg) “HITECH” means the federal Health Information Technology for
2 Economic and Clinical Health Act and valid federal regulations enacted pursuant to
3 the act.
4 (m) “Institution of higher education” has the meaning given in s. 39.32 (1) (a).
5 (n) “Nonprofit organization" means any corporation organized under ch. 181,
6 any organization identified under s. 895.486 (2) (e), or any organization exempt from
7 taxation under section 501 (c) (3), (6), or (12) of the Internal Revenue Code.
8 (o) “Personal data" means any information that is linked or reasonably linkable
9 to an identified or identifiable individual. “Personal data" does not include
10 deidentified data or publicly available information.
11 (p) “Precise geolocation data" means information derived from technology,
12 including global positioning system level latitude and longitude coordinates or other
13 mechanisms, that directly identifies the specific location of an individual with
14 precision and accuracy within a radius of 1,750 feet. “Precise geolocation data" does
15 not include the content of communications or any data generated by or connected to
16 advanced utility metering infrastructure systems or equipment for use by a utility.
17 (q) “Process" or “processing" means any operation or set of operations
18 performed, whether by manual or automated means, on personal data or on sets of
19 personal data, such as the collection, use, storage, disclosure, analysis, deletion, or
20 modification of personal data.
21 (r) “Processor” means an individual or person that processes personal data on
22 behalf of a controller.
23 (s) “Profiling" means any form of automated processing performed on personal
24 data to evaluate, analyze, or predict personal aspects related to an identified or
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1 identifiable individual's economic situation, health, personal preferences, interests,
2 reliability, behavior, location, or movements.
3 (t) “Pseudonymous data" means personal data that cannot be attributed to a
4 specific individual without the use of additional information, provided that such
5 additional information is kept separately and is subject to appropriate technical and
6 organizational measures to ensure that the personal data is not attributed to an
7 identified or identifiable individual.
8 (u) “Publicly available information" means information that is lawfully made
9 available through federal, state, or local government records, or information that a
10 business has a reasonable basis to believe is lawfully made available to the general
11 public through widely distributed media, by the consumer, or by a person to whom
12 the consumer has disclosed the information, unless the consumer has restricted the
13 information to a specific audience.
14 (v) “Sale of personal data" means the exchange of personal data for monetary
15 consideration by the controller to a 3rd party. “Sale of personal data" does not include
16 any of the following:
17 1. The disclosure of personal data to a processor that processes the personal
18 data on behalf of the controller.
19 2. The disclosure of personal data to a 3rd party for purposes of providing a
20 product or service requested by the consumer.
21 3. The disclosure or transfer of personal data to an affiliate of the controller.
22 4. The disclosure of information that a consumer intentionally made available
23 to the general public via a channel of mass media and did not restrict to a specific
24 audience.
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1 5. The disclosure or transfer of personal data to a 3rd party as an asset that is
2 part of a merger, acquisition, bankruptcy, or other transaction in which the 3rd party
3 assumes control of all or part of the controller's assets.
4 (w) “Sensitive data” includes the following:
5 1. Personal data revealing racial or ethnic origin, religious beliefs, mental or
6 physical health diagnosis, sexual orientation, or citizenship or immigration status.
7 2. The processing of genetic or biometric data for the purpose of uniquely
8 identifying an individual.
9 3. The personal data collected from a known child.
10 4. Precise geolocation data.
11 (x) “Targeted advertising" means displaying advertisements to a consumer
12 where the advertisement is selected based on personal data obtained from that
13 consumer's activities over time and across nonaffiliated websites or online
14 applications to predict such consumer's preferences or interests. “Targeted
15 advertising" does not include any of the following:
16 1. Advertisements based on activities within a controller's own websites or
17 online applications.
18 2. Advertisements based on the context of a consumer's current search query,
19 visit to a website, or online application.
20 3. Advertisements directed to a consumer in response to the consumer's request
21 for information or feedback.
22 4. Processing personal data processed solely for measuring or reporting
23 advertising performance, reach, or frequency.
24 (y) “Third party” means a person or association, authority, board, department,
25 commission, independent agency, institution, office, society, or other body in state or
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1 local government created or authorized to be created by the constitution or any law,
2 other than a consumer, controller, processor, or an affiliate of the processor or the
3 controller.
4 (z) “Trade secret” has the meaning given in s. 134.90.
5 (2) PERSONAL DATA RIGHTS; CONSUMERS. (a) A consumer may invoke the
6 consumer rights authorized under this subsection at any time by submitting a
7 request to a controller specifying the consumer rights the consumer wishes to invoke.
8 A known child's parent or legal guardian may invoke such consumer rights on behalf
9 of the child regarding processing personal data belonging to the known child. A
10 controller shall comply with an authenticated consumer request to exercise any of
11 the following rights:
12 1. To confirm whether or not a controller is processing the consumer's personal
13 data and to access such personal data, unless such confirmation or access would
14 require the controller to reveal a trade secret.
15 2. To correct inaccuracies in the consumer's personal data, taking into account
16 the nature of the personal data and the purposes of the processing of the consumer's
17 personal data.
18 3. To delete personal data provided by or obtained about the consumer.
19 4. To obtain a copy of the consumer's personal data that th