The Florida Digital Bill of Rights (FL DBR) brings data privacy to Florida residents, while presenting fresh challenges for businesses operating within the state. Understanding the core tenets of the FL DBR is crucial for any business interacting with Floridians’ personal data given the potential operational impact.
Scope and Impact: Who Does the FL DBR Apply To?
The FL DBR applies to businesses operating in Florida or catering to Florida residents who engage in substantial data processing activities. Specifically, it targets entities with over $1 billion in global gross annual revenue, where such revenue predominantly derives from selling or sharing personal data, or those handling substantial consumer data volumes. This includes businesses operating significant digital platforms, such as social media and large-scale app stores, or deriving a significant portion of their revenue from online advertisements.
Understanding whether your business falls under the definition of a “controller” is the first step in navigating the FL DBR landscape. This involves evaluating your revenue, data collection practices, and the nature of your activities.
Consumer Rights
The FL DBR empowers consumers with a defined set of rights, placing significant responsibilities on businesses to ensure transparency and control over personal data, including the:
- Right to Access and Confirmation: Consumers can confirm whether a controller is processing their personal data and access that data, gaining insight into how their information is being used.
- Right to Correction and Deletion: Consumers can request corrections to inaccurate data and request the deletion of their personal data, subject to certain exceptions, allowing them to manage their digital footprint.
- Right to Data Portability: Consumers can obtain a copy of their personal data in a portable and readily usable format, enabling them to move their data between services.
- Right to Opt-Out: Consumers can exercise control over how their data is used by opting out of the sale of their personal data, targeted advertising, and profiling that leads to significant decisions impacting them.
- Right to Opt-Out of Sensitive Data Processing: Consumers have additional control over sensitive data, such as health information, biometric data, and precise geolocation data, with the right to opt out of its collection and processing.
- Right to Opt-Out of Voice and Facial Recognition: Consumers can opt out of data collection through voice and facial recognition technologies, limiting the use of these in their daily lives.
These consumer rights represent a significant regulatory shift, placing the onus on businesses to be accountable and transparent in their data practices.
Controller Responsibilities
Meeting the requirements of the FL DBR demands proactive measures from businesses:
- Data Minimization: Collecting only the data necessary for a specific purpose limits the potential impact on consumer privacy and reduces the risk of exposure in case of a data breach.
- Data Security: Implementing and maintaining reasonable security practices to protect personal data is not just good practice; it’s mandatory under the FL DBR. This includes measures like encryption, access controls, and regular security assessments.
- Purpose Limitation: Processing personal data for purposes beyond what was initially disclosed requires explicit consent, ensuring consumers are aware of how their data is being used.
- Non-Discrimination: Businesses cannot discriminate against consumers who exercise their rights under the FL DBR, fostering a fair and equitable data privacy environment.
- Transparency and Notices: Providing clear and accessible privacy notices is essential for informing consumers about your data practices and their rights. These notices should be easy to understand and readily available.
- Sensitive Data Consent: Collecting and processing sensitive data requires explicit consent, ensuring consumers have clear control over this potentially vulnerable information.
- Data Protection Assessments: Conducting and documenting data protection assessments for high-risk processing activities is crucial for identifying and mitigating potential privacy risks.
- Deidentified and Pseudonymous Data: The FL DBR outlines specific requirements for handling de-identified and pseudonymous data, ensuring these forms of data remain protected and cannot be easily re-identified.
Maybe most importantly
Procedures for Exercising Rights: Controllers are required to establish processes for receiving and responding to consumer requests within specified timeframes. They must also provide clear instructions on how consumers can appeal decisions regarding their requests.
These responsibilities underscore the importance of building a comprehensive data privacy program.
Processor Obligations
The FL DBR recognizes that data processing often involves third-party vendors and service providers. Processors, entities that process personal data on behalf of a controller, also have specific obligations under the law:
- Adherence to Controller Instructions: Processors must strictly adhere to the instructions provided by the controller regarding the processing of personal data.
- Contractual Requirements: Contracts between controllers and processors must clearly specify data processing instructions, purpose, data types, duration, and the rights and obligations of both parties. This ensures transparency and accountability in the data processing chain.
Enforcement and Penalties
The Florida Attorney General holds the exclusive authority to enforce the FL DBR, with potential for significant penalties for non-compliance. Violations can result in civil penalties of up to $50,000 per violation, with potential for tripled penalties for violations involving children or specific types of non-compliance.
Preemption and Local Regulations
The FL DBR is considered a matter of statewide concern, preempting any local ordinances or regulations concerning the collection, processing, sharing, or sale of consumer personal data, creating a uniform standard for data privacy across the state, simplifying compliance for businesses operating in multiple jurisdictions within Florida.
Unique Provisions
The FL DBR includes several unique provisions that address emerging marketplace concerns:
- Government-Directed Content Moderation: The law restricts government entities from influencing content moderation on social media platforms, protecting freedom of expression and preventing censorship.
- Protection of Children in Online Spaces: The FL DBR provides additional safeguards for children’s privacy online, including limitations on profiling, targeted advertising, and the collection of sensitive data.
Implications and Considerations
Complying with the FL DBR requires careful planning and investment. Businesses will need to consider the following implications:
- Compliance Costs: Implementing the necessary measures to comply with the FL DBR will involve costs associated with updating privacy policies, implementing data security practices, and establishing processes for handling consumer requests.
- Data Mapping and Inventory: A thorough understanding of the personal data you collect, process, and share is essential for complying with the law’s requirements.
- Vendor Management: Businesses must ensure that their processors and third-party vendors also comply with the FL DBR, extending data protection throughout the processing chain.
- Consumer Awareness: As consumers become more aware of their data privacy rights, businesses can expect an increase in consumer requests and inquiries.
The FL DBR marks a significant step forward in protecting consumer privacy in Florida. By understanding the key elements of the law and proactively implementing compliance measures, businesses can navigate the evolving regulatory maze, build trust with consumers, and mitigate the risks associated with non-compliance.
