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7 LONG TITLE
8 General Description:
9 This bill enacts the Utah Consumer Privacy Act.
10 Highlighted Provisions:
11 This bill:
12 ▸ defines terms;
13 ▸ provides consumers the right to:
14 • access, correct, and delete certain personal data maintained by certain
15 businesses; and
16 • opt out of the collection and use of personal data for certain purposes;
17 ▸ requires certain businesses that control and process consumers' personal data to:
18 • safeguard consumers' personal data;
19 • provide clear information to consumers regarding how the consumers' personal
20 data are used; and
21 • accept and comply with a consumer's request to exercise the consumer's rights
22 under this bill;
23 ▸ allows the Division of Consumer Protection to accept and investigate consumer
24 complaints regarding the processing of personal data;
25 ▸ authorizes the Office of the Attorney General to take enforcement action and
26 impose penalties;
27 ▸ creates a right for a consumer to know what personal data a business collects, how
28 the business uses the personal data, and whether the business sells the personal data;
29 ▸ upon request and subject to exceptions, requires a business to delete a consumer's
30 personal data or stop selling the consumer's personal data; and
31 ▸ makes technical changes.
32 Money Appropriated in this Bill:
33 None
34 Other Special Clauses:
35 This bill provides a special effective date.
36 Utah Code Sections Affected:
37 AMENDS:
38 13-2-1, as last amended by Laws of Utah 2021, Chapter 266
39 ENACTS:
40 13-61-101, Utah Code Annotated 1953
41 13-61-102, Utah Code Annotated 1953
42 13-61-103, Utah Code Annotated 1953
43 13-61-201, Utah Code Annotated 1953
44 13-61-202, Utah Code Annotated 1953
45 13-61-203, Utah Code Annotated 1953
46 13-61-301, Utah Code Annotated 1953
47 13-61-302, Utah Code Annotated 1953
48 13-61-303, Utah Code Annotated 1953
49 13-61-304, Utah Code Annotated 1953
50 13-61-305, Utah Code Annotated 1953
51 13-61-401, Utah Code Annotated 1953
52 13-61-402, Utah Code Annotated 1953
53 13-61-403, Utah Code Annotated 1953
54 13-61-404, Utah Code Annotated 1953
55
56 Be it enacted by the Legislature of the state of Utah:
57 Section 1. Section 13-2-1 is amended to read:
58 13-2-1. Consumer protection division established -- Functions.
59 (1) There is established within the Department of Commerce the Division of Consumer
60 Protection.
61 (2) The division shall administer and enforce the following:
62 (a) Chapter 5, Unfair Practices Act;
63 (b) Chapter 10a, Music Licensing Practices Act;
64 (c) Chapter 11, Utah Consumer Sales Practices Act;
65 (d) Chapter 15, Business Opportunity Disclosure Act;
66 (e) Chapter 20, New Motor Vehicle Warranties Act;
67 (f) Chapter 21, Credit Services Organizations Act;
68 (g) Chapter 22, Charitable Solicitations Act;
69 (h) Chapter 23, Health Spa Services Protection Act;
70 (i) Chapter 25a, Telephone and Facsimile Solicitation Act;
71 (j) Chapter 26, Telephone Fraud Prevention Act;
72 (k) Chapter 28, Prize Notices Regulation Act;
73 (l) Chapter 32a, Pawnshop and Secondhand Merchandise Transaction Information Act;
74 (m) Chapter 34, Utah Postsecondary Proprietary School Act;
75 (n) Chapter 34a, Utah Postsecondary School State Authorization Act;
76 (o) Chapter 41, Price Controls During Emergencies Act;
77 (p) Chapter 42, Uniform Debt-Management Services Act;
78 (q) Chapter 49, Immigration Consultants Registration Act;
79 (r) Chapter 51, Transportation Network Company Registration Act;
80 (s) Chapter 52, Residential Solar Energy Disclosure Act;
81 (t) Chapter 53, Residential, Vocational and Life Skills Program Act;
82 (u) Chapter 54, Ticket Website Sales Act;
83 (v) Chapter 56, Ticket Transferability Act; [
84 (w) Chapter 57, Maintenance Funding Practices Act[
85 (x) Chapter 61, Utah Consumer Privacy Act.
86 Section 2. Section 13-61-101 is enacted to read:
87
88
89 13-61-101. Definitions.
90 As used in this chapter:
91 (1) (a) "Affiliate" means a person who directly or indirectly through one or more
92 intermediaries controls, or is controlled by, or is under common control with, the person
93 specified.
94 (b) "Affiliate" includes a subsidiary.
95 (2) "Air carrier" means the same as that term is defined in 49 U.S.C. Sec. 40102.
96 (3) "Authenticate" means to use reasonable means to determine that a consumer's
97 request to exercise the rights described in Section 13-61-201 is made by the consumer who is
98 entitled to exercise those rights.
99 (4) (a) "Biometric data" means data generated by automatic measurements of an
100 individual's unique biological pattern or characteristic to identify a specific individual.
101 (b) "Biometric data" includes a measurement described in Subsection (4)(a) of an
102 individual's fingerprint, voiceprint, retina, or iris.
103 (c) "Biometric data" does not include:
104 (i) a physical or digital photograph;
105 (ii) video or audio recording or data generated from a video or audio recording; or
106 (iii) information collected, used, or stored for treatment, payment, or health care
107 operations as those terms are defined in 45 C.F.R. Parts 160, 162, and 164.
108 (5) "Business associate" means the same as that term is defined in 45 C.F.R. Sec.
109 160.103.
110 (6) "Child" means an individual younger than 13 years old.
111 (7) "Consent" means an affirmative act by a consumer that unambiguously indicates
112 the consumer's voluntary and informed agreement to allow a person to process personal data
113 related to the consumer.
114 (8) (a) "Consumer" means an individual who is a resident of the state acting in an
115 individual or household context.
116 (b) "Consumer" does not include an individual acting in an employment or commercial
117 context.
118 (9) "Control" or "controlled" means:
119 (a) ownership of, or the power to vote, more than 50% of the outstanding shares of any
120 class of voting securities of an entity;
121 (b) control in any manner over the election of a majority of the directors or of the
122 individuals exercising similar functions; or
123 (c) the power to exercise controlling influence of the management of an entity.
124 (10) "Controller" means a person doing business in the state who determines the
125 purposes for which and the means by which personal data is processed, regardless of whether
126 the person makes the determination alone or with others.
127 (11) "Covered entity" means the same as that term is defined in 45 C.F.R. Sec.
128 160.103.
129 (12) "Deidentified data" means data that:
130 (a) cannot reasonably be linked to an identifiable individual; and
131 (b) are possessed by a controller who:
132 (i) takes reasonable measures to ensure that a person cannot associate the data with an
133 identifiable individual;
134 (ii) publicly commits to maintain and use the data only in deidentified form and not
135 attempt to reidentify the data; and
136 (iii) contractually obligates any recipients of the data to comply with the requirements
137 described in Subsections (12)(b)(i) and (ii).
138 (13) "Director" means the director of the Division of Consumer Protection.
139 (14) "Division" means the Division of Consumer Protection created in Section 13-2-1.
140 (15) "Health care facility" means the same as that term is defined in Section 26-21-2.
141 (16) "Health care provider" means the same as that term is defined in Section 26-21-2.
142 (17) "Identifiable individual" means an individual who can be readily identified,
143 directly or indirectly.
144 (18) "Local political subdivision" means the same as that term is defined in Section
145 11-14-102.
146 (19) "Nonprofit corporation" means:
147 (a) the same as that term is defined in Section 16-6a-102; or
148 (b) a foreign nonprofit corporation as defined in Section 16-6a-102.
149 (20) (a) "Personal data" means information that is linked or reasonably linkable to an
150 identified or identifiable consumer.
151 (b) "Personal data" does not include deidentified data or publicly available information.
152 (21) "Process" means an operation or set of operations performed on personal data,
153 including collection, use, storage, disclosure, analysis, deletion, or modification of personal
154 data.
155 (22) "Processor" means a person who processes personal data on behalf of a controller.
156 (23) "Protected health information" means the same as that term is defined in 45 C.F.R.
157 Sec. 160.103.
158 (24) "Pseudonymous data" means personal data that cannot be attributed to a specific
159 individual without the use of additional information, if the additional information is:
160 (a) kept separate from the consumer's personal data; and
161 (b) subject to appropriate technical and organizational measures to ensure that the
162 personal data are not attributable to an identifiable individual.
163 (25) "Publicly available information" means information that a person:
164 (a) lawfully obtains from a federal, state, or local political subdivision record;
165 (b) reasonably believes a consumer or widely distributed media has lawfully made
166 available to the general public; or
167 (c) if the consumer has not restricted the information to a specific audience, obtains
168 from a person to whom the consumer disclosed the information.
169 (26) "Right" means a consumer right described in Section 13-61-201.
170 (27) (a) "Sale," "sell," or "sold" means the exchange of personal data for monetary
171 consideration by a controller to a third party.
172 (b) "Sale" does not include:
173 (i) a controller's disclosure of personal data to a processor who processes the personal
174 data on behalf of the controller;
175 (ii) a controller's disclosure of personal data to an affiliate of the controller;
176 (iii) considering the context in which the consumer provided the personal data to the
177 controller, a controller's disclosure of personal data to a third party if the purpose is consistent
178 with a consumer's reasonable expectations;
179 (iv) a consumer's disclosure of personal data to a third party for the purpose of
180 providing a product or service requested by the consumer;
181 (v) a consumer's disclosure of information that the consumer:
182 (A) intentionally makes available to the general public via a channel of mass media;
183 and
184 (B) does not restrict to a specific audience; or
185 (vi) a controller's transfer of personal data to a third party as an asset that is part of a
186 proposed or actual merger, an acquisition, or a bankruptcy in which the third party assumes
187 control of all or part of the controller's assets.
188 (28) (a) "Sensitive data" means:
189 (i) personal data that reveals an individual's:
190 (A) racial or ethnic origin;
191 (B) religious beliefs;
192 (C) diagnosed mental or physical health condition;
193 (D) sexual orientation;
194 (E) citizenship or immigration status; or
195 (F) health status;
196 (ii) the processing of genetic or biometric personal data for the purpose of identifying
197 an individual;
198 (iii) the personal data of a known child; or
199 (iv) specific geolocation data.
200 (b) "Sensitive data" does not include personal data that reveals an individual's:
201 (i) racial or ethnic origin, if the personal data is processed by a video communication
202 service; or
203 (ii) health status, if the personal data is processed by a person licensed to provide
204 health care under:
205 (A) Title 26, Chapter 21, Health Care Facility Licensing and Inspection Act; or
206 (B) Title 58, Occupations and Professions.
207 (29) (a) "Specific geolocation data" means information:
208 (i) derived from technology; and
209 (ii) used or intended to be used to identify the specific location of a consumer within a
210 geographic area with a radius of 1,850 feet or less.
211 (b) "Specific geolocation data" does not include the content of a communication.
212 (30) (a) "Targeted advertising" means displaying an advertisement to a consumer
213 where the advertisement is selected based on personal data obtained from the consumer's
214 activities over time and across nonaffiliated websites or online applications to predict the
215 consumer's preferences or interests.
216 (b) "Targeted advertising" does not include advertising:
217 (i) based on a consumer's activities within a controller's or an affiliate of the
218 controller's websites or online applications;
219 (ii) based on the context of a consumer's current search query or visit to a website or
220 online application;
221 (iii) directed to a consumer in response to the consumer's request for information,
222 product, a service, or feedback; or
223 (iv) used solely to measure or report advertising:
224 (A) performance;
225 (B) reach; or
226 (C) frequency.
227 (31) "Third party" means a person other than:
228 (a) the consumer, controller, or processor; or
229 (b) an affiliate or contractor of the controller or the processor.
230 (32) "Trade secret" means information, including a formula, pattern, compilation,
231 program, device, method, technique, or process, that:
232 (a) derives independent economic value, actual or potential, from not being generally
233 known to, and not being readily ascertainable by proper means by, other persons who can
234 obtain economic value from the information's disclosure or use; and
235 (b) is the subject of efforts that are reasonable under the circumstances to maintain the
236 information's secrecy.
237 Section 3. Section 13-61-102 is enacted to read:
238 13-61-102. Applicability.
239 (1) This chapter applies to any controller or processor who:
240 (a) (i) conducts business in the state; or
241 (ii) produces a product or service that is targeted to residents of the state;
242 (b) has annual revenue of $25,000,000 or more; and
243 (c) satisfies one or more of the following thresholds:
244 (i) during a calendar year, controls or processes personal data of 100,000 or more
245 consumers; or
246 (ii) derives over 50% of the entity's gross revenue from the sale of personal data and
247 controls or processes personal data of 25,000 or more consumers.
248 (2) This chapter does not apply to:
249 (a) a government entity;
250 (b) a tribe;
251 (c) a nonprofit corporation;
252 (d) a covered entity;
253 (e) a business associate;
254 (f) information that meets the definition of:
255 (i) protected health information for purposes of the federal Health Insurance Portability
256 and Accountability Act of 1996, 42 U.S.C. Sec. 1320d et seq., and related regulations;
257 (ii) patient identifying information for purposes of 42 C.F.R. Part 2;
258 (iii) identifiable private information for purposes of the Federal Policy for the
259 Protection of Human Subjects, 45 C.F.R. Part 46;
260 (iv) identifiable private information or personal data collected as part of human
261 subjects research pursuant to or under the same standards as:
262 (A) the good clinical practice guidelines issued by the International Council for
263 Harmonisation; or
264 (B) the Protection of Human Subjects under 21 C.F.R. Part 50 and Institutional Review
265 Boards under 21 C.F.R. Part 56;
266 (v) personal data used or shared in research conducted in accordance with one or more
267 of the requirements described in Subsection (2)(f)(iv);
268 (vi) information and documents created specifically for, and collected and maintained
269 by, a committee listed in Section 26-1-7;
270 (vii) information and documents created for purposes of the federal Health Care
271 Quality Improvement Act of 1986, 42 U.S.C. Sec. 11101 et seq., and related regulations;
272 (viii) patient safety work product for purposes of 42 C.F.R. Part 3; or
273 (ix) information that is:
274 (A) deidentified in accordance with the requirements for deidentification set forth in 45
275 C.F.R. Part 164; and
276 (B) derived from any of the health care-related information listed in this Subsection
277 (2)(f);
278 (g) information originating from, and intermingled to be indistinguishable with,
279 information under Subsection (2)(f) that is maintained by:
280 (i) a health care facility or health care provider; or
281 (ii) a program or a qualified service organization as defined in 42 C.F.R. Sec. 2.11;
282 (h) information used only for public health activities and purposes as described in 45
283 C.F.R. Sec. 164.512;
284 (i) (i) an activity by:
285 (A) a consumer reporting agency, as defined in 15 U.S.C. Sec. 1681a;
286 (B) a furnisher of information, as set forth in 15 U.S.C. Sec. 1681s-2, who provides
287 information for use in a consumer report, as defined in 15 U.S.C. Sec. 1681a; or
288 (C) a user of a consumer report, as set forth in 15 U.S.C. Sec. 1681b;
289 (ii) subject to regulation under the federal Fair Credit Reporting Act, 15 U.S.C. Sec.
290 1681 et seq.; and
291 (iii) involving the collection, maintenance, disclosure, sale, communication, or use of
292 any personal information bearing on a consumer's:
293 (A) credit worthiness;
294 (B) credit standing;
295 (C) credit capacity;
296 (D) character;
297 (E) general reputation;
298 (F) personal characteristics; or
299 (G) mode of living;
300 (j) a financial institution or an affiliate of a financial institution governed by, or
301 personal data collected, processed, sold, or disclosed in accordance with, the federal
302 Gramm-Leach-Bliley Act, 15 U.S.C. Sec. 6801 et seq., and related regulations;
303 (k) personal data collected, processed, sold, or disclosed in accordance with the federal
304 Driver's Privacy Protection Act of 1994, 18 U.S.C. Sec. 2721 et seq.;
305 (l) personal data regulated by the federal Family Education Rights and Privacy Act, 20
306 U.S.C. Sec. 1232g, and related regulations;
307 (m) personal data collected, processed, sold, or disclosed in accordance with the
308 federal Farm Credit Act of 1971, 12 U.S.C. Sec. 2001 et seq.;
309 (n) data that are processed or maintained:
310 (i) in the course of an individual applying to, being employed by, or acting as an agent
311 or independent contractor of a controller, processor, or third party, to the extent the collection
312 and use of the data are related to the individual's role;
313 (ii) as the emergency contact information of an individual described in Subsection
314 (2)(n)(i) and used for emergency contact purposes; or
315 (iii) to administer benefits for another individual relating to an individual described in
316 Subsection (2)(n)(i) and used for the purpose of administering the benefits;
317 (o) an individual's processing of personal data for purely personal or household
318 purposes; or
319 (p) an air carrier.
320 (3) A controller is in compliance with any obligation to obtain parental consent under
321 this chapter if the controller complies with the verifiable parental consent mechanisms under
322 the Children's Online Privacy Protection Act, 15 U.S.C. Sec. 6501 et seq., and the act's
323 implementing regulations.
324 (4) This chapter does not require a person to take any action in conflict with the federal
325 Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. Sec. 1320d et seq., or
326 related regulations.
327 Section 4. Section 13-61-103 is enacted to read:
328 13-61-103. Preemption -- Reference to other laws.
329 (1) This chapter supersedes any regulation of a county, municipality, or other local
330 government entity regarding the processing of personal data by a controller or processor.
331 (2) Any reference to federal law in this chapter includes any rules or regulations
332 promulgated under the federal law.
333 Section 5. Section 13-61-201 is enacted to read:
334
335 13-61-201. Consumer rights -- Access -- Correction -- Deletion -- Portability -- Opt
336 out of certain processing.
337 (1) A consumer has the right to:
338 (a) confirm whether a controller is processing personal data concerning the consumer;
339 and
340 (b) obtain information regarding the categories of personal data concerning the
341 consumer the controller has collected.
342 (2) A consumer has the right to correct inaccurate personal data concerning the
343 consumer, taking into account the nature of the personal data and the purposes of the
344 processing of the personal data.
345 (3) A consumer has the right to delete the consumer's personal data that the consumer
346 provided to the controller.
347 (4) A consumer has the right to obtain a copy of the consumer's personal data, that the
348 consumer previously provided to the controller, in a format that:
349 (a) to the extent technically feasible, is portable;
350 (b) to the extent practicable, is readily usable; and
351 (c) allows the consumer to transmit the data to another controller without impediment,
352 where the processing is carried out by automated means.
353 (5) A consumer has the right to opt out of the processing of the consumer's personal
354 data for purposes of:
355 (a) targeted advertising; or
356 (b) the sale of personal data.
357 Section 6. Section 13-61-202 is enacted to read:
358 13-61-202. Exercising consumer rights.
359 (1) A consumer may exercise a right by submitting a request to a controller specifying
360 the right the consumer intends to exercise.
361 (2) In the case of processing personal data concerning a known child, the parent or
362 legal guardian of the known child shall exercise a right on the child's behalf.
363 (3) In the case of processing personal data concerning a consumer subject to
364 guardianship, conservatorship, or other protective arrangement under Title 75, Chapter 5,
365 Protection of Persons Under Disability and Their Property, the guardian or the conservator of
366 the consumer shall exercise a right on the consumer's behalf.
367 Section 7. Section 13-61-203 is enacted to read:
368 13-61-203. Controller's response to requests.
369 (1) A controller shall comply with a consumer's request to exercise a right.
370 (2) (a) A controller shall provide one or more secure and reliable means for a consumer
371 to submit a request to exercise a right, including an email address to which a consumer may
372 submit a request.
373 (b) In providing the means described in Subsection (2)(a), a controller shall consider:
374 (i) the ways in which consumers interact with the controller; and
375 (ii) the need for secure and reliable communication of the requests.
376 (c) A controller may not require a consumer to create a new account to exercise a right.
377 (d) A controller may require a consumer to use an existing account to exercise a right.
378 (3) (a) Within 45 days after the day on which a controller receives a request to exercise
379 a right, the controller shall:
380 (i) take action on the consumer's request; and
381 (ii) inform the consumer of any action taken on the consumer's request under Section
382 13-61-202.
383 (b) The controller may extend once the initial 45-day period by an additional 45 days if
384 reasonably necessary due to the complexity of the request or the volume of the requests
385 received by the controller.
386 (c) If a controller extends the initial 45-day period, before the initial 45-day period
387 expires, the controller shall:
388 (i) inform the consumer of the extension, including the length of the extension; and
389 (ii) provide the reasons the extension is reasonably necessary as described in
390 Subsection (3)(b).
391 (d) If a controller chooses not to take action on a consumer's request, the controller
392 shall within 45 days after the day on which the controller receives the request, inform the
393 consumer of the reasons for not taking action.
394 (e) A controller may not charge a fee for information in response to a request, unless
395 the request is the consumer's second or subsequent request during the same 12-month period.
396 (f) (i) Notwithstanding Subsection (3)(e), if a request is excessive, repetitive,
397 technically infeasible, or manifestly unfounded, the controller may:
398 (A) charge a reasonable fee to cover the administrative costs of complying with the
399 request; or
400 (B) refuse to act on the request.
401 (ii) Subsection (3)(f)(i) includes a consumer's request, if the controller reasonably
402 believes the consumer's primary purpose in submitting the request was something other than
403 exercising a right.
404 (g) The controller bears the burden of demonstrating the excessive, repetitive,
405 technically infeasible, or manifestly unfounded nature of a request.
406 (h) If a controller is unable to authenticate a consumer request to exercise a right
407 described in Section 13-61-201 using commercially reasonable efforts, the controller:
408 (i) is not required to comply with the request; and
409 (ii) may request that the consumer provide additional information reasonably necessary
410 to authenticate the request.
411 Section 8. Section 13-61-301 is enacted to read:
412
413 13-61-301. Responsibility according to role.
414 (1) A processor shall:
415 (a) adhere to the controller's instructions; and
416 (b) assist the controller in meeting the controller's obligations under this chapter,
417 including, taking into account the nature of processing and the information available to the
418 processor, fulfilling the controller's obligation to respond to a consumer's request to exercise a
419 right.
420 (2) A processor shall:
421 (a) taking into account the context in which the personal data are to be processed,
422 implement and maintain reasonable security procedures and practices to protect personal data;
423 (b) ensure that each person processing personal data is subject to a duty of
424 confidentiality with respect to the personal data; and
425 (c) engage a subcontractor only pursuant to a written contract that requires the
426 subcontractor to meet the same obligations as the processor with respect to the personal data.
427 (3) (a) Determining whether a person is acting as a controller or processor with respect
428 to a specific processing of data is a fact-based determination that depends upon the context in
429 which personal data are to be processed.
430 (b) A processor that adheres to a controller's instructions with respect to a specific
431 processing of personal data remains a processor.
432 Section 9. Section 13-61-302 is enacted to read:
433 13-61-302. Responsibilities of controllers -- Transparency -- Purpose specification
434 and data minimization -- Consent for secondary use -- Security -- Nondiscrimination --
435 Nonretaliation -- Nonwaiver of consumer rights.
436 (1) (a) A controller shall provide consumers with a reasonably accessible and clear
437 privacy notice that includes:
438 (i) the categories of personal data processed by the controller;
439 (ii) the purposes for which the categories of personal data are processed;
440 (iii) how and where consumers may exercise a right;
441 (iv) the categories of personal data that the controller shares with third parties, if any;
442 and
443 (v) the categories of third parties, if any, with whom the controller shares personal data.
444 (b) If a controller sells personal data to one or more third parties or processes personal
445 data for targeted advertising, the controller shall clearly and conspicuously disclose to the
446 consumer the manner in which the consumer may exercise the right to opt out of the:
447 (i) sale of the consumer's personal data; or
448 (ii) processing for targeted advertising.
449 (2) (a) A controller shall establish, implement, and maintain reasonable administrative,
450 technical, and physical data security practices designed to:
451 (i) protect the confidentiality and integrity of personal data; and
452 (ii) reduce reasonably foreseeable risks of harm to consumers relating to the processing
453 of personal data.
454 (b) Considering the controller's business size, scope, and type, a controller shall use
455 data security practices that are appropriate for the volume and nature of the personal data at
456 issue.
457 (3) Except as otherwise provided in this chapter, a controller may not process sensitive
458 data concerning a consumer without obtaining:
459 (a) the consumer's consent; or
460 (b) in the case of the processing of personal data concerning a known child, the consent
461 of the child's parent or lawful guardian in accordance with the federal Children's Online
462 Privacy Protection Act, 15 U.S.C. Sec. 6501 et seq.
463 (4) (a) A controller may not discriminate against a consumer for exercising a right by:
464 (i) denying a good or service to the consumer;
465 (ii) charging the consumer a different price or rate for a good or service; or
466 (iii) providing the consumer a different level of quality of a good or service.
467 (b) This Subsection (4) does not prohibit a controller from offering a different price,
468 rate, level, quality, or selection of a good or service to a consumer, including offering a good or
469 service for no fee or at a discount, as part of the consumer's voluntary participation in a bona
470 fide loyalty, rewards, premium features, discounts, or club card program.
471 (5) A controller is not required to provide a product, service, or functionality to a
472 consumer if:
473 (a) the consumer's personal data are or the processing of the consumer's personal data
474 is reasonably necessary for the controller to provide the consumer the product, service, or
475 functionality; and
476 (b) the consumer does not:
477 (i) provide the consumer's personal data to the controller; or
478 (ii) allow the controller to process the consumer's personal data.
479 (6) Any provision of a contract that purports to waive or limit a consumer's right under
480 this chapter is void.
481 Section 10. Section 13-61-303 is enacted to read:
482 13-61-303. Processing deidentified data or pseudonymous data.
483 (1) The provisions of this chapter do not require a controller or processor to:
484 (a) reidentify deidentified data or pseudonymous data;
485 (b) comply with an authenticated consumer request to exercise a right described in
486 Subsections 13-58-202(1) through (4), if:
487 (i) (A) the controller is not reasonably capable of associating the request with the
488 personal data; or
489 (B) it would be unreasonably burdensome for the controller to associate the request
490 with the personal data;
491 (ii) the controller does not:
492 (A) use the personal data to recognize or respond to the consumer who is the subject of
493 the personal data; or
494 (B) associate the personal data with other personal data about the consumer; and
495 (iii) the controller does not sell or otherwise disclose the personal data to any third
496 party other than a processor, except as otherwise permitted in this section; or
497 (c) maintain data in identifiable form, or collect, retain, or access any data or
498 technology, in order to be capable of associating an authenticated consumer request with
499 personal data.
500 (2) The rights described in Subsections 13-58-202(1) through (4) do not apply to
501 pseudonymous data if a controller keeps information necessary to identify a consumer:
502 (a) separate from the pseudonymous data; and
503 (b) subject to effective technical and organizational controls that prevent the controller
504 from accessing the information.
505 (3) A controller who uses pseudonymous data or deidentified data shall take reasonable
506 steps to ensure the controller:
507 (a) complies with any contractual obligations to which the pseudonymous data or
508 deidentified data are subject; and
509 (b) promptly addresses any breach of a contractual obligation described in Subsection
510 (3)(a).
511 Section 11. Section 13-61-304 is enacted to read:
512 13-61-304. Limitations.
513 (1) The requirements described in this chapter do not restrict a controller or processor's
514 ability to:
515 (a) comply with a federal, state, or local law, rule, or regulation;
516 (b) comply with a civil, criminal, or regulatory inquiry, investigation, subpoena, or
517 summons by a federal, state, local, or other governmental entity;
518 (c) cooperate with a law enforcement agency concerning activity that the controller or
519 processor reasonably and in good faith believes may violate federal, state, or local laws, rules,
520 or regulations;
521 (d) investigate, establish, exercise, prepare for, or defend a legal claim;
522 (e) provide a product or service requested by a consumer or a parent or guardian of a
523 child;
524 (f) perform a contract to which the consumer or the parent or guardian of a child is a
525 party, including fulfilling the terms of a written warranty or taking steps at the request of the
526 consumer or parent or guardian before entering into the contract with the consumer;
527 (g) take immediate steps to protect an interest that is essential for the life or physical
528 safety of the consumer or of another individual;
529 (h) (i) detect, prevent, or respond to a security incident, identity theft, fraud,
530 harassment, malicious or deceptive activity, or any illegal activity; or
531 (ii) investigate, report, or prosecute a person responsible for an action described in
532 Subsection (1)(h)(i);
533 (i) (i) preserve the integrity or security of systems; or
534 (ii) investigate, report, or prosecute a person responsible for harming or threatening the
535 integrity or security of systems, as applicable;
536 (j) if the controller discloses the processing in a notice described in Section 13-61-302,
537 engage in public or peer-reviewed scientific, historical, or statistical research in the public
538 interest that adheres to all other applicable ethics and privacy laws;
539 (k) assist another person with an obligation described in this subsection;
540 (l) process deidentified and pseudonymous data to:
541 (i) conduct internal analytics or other research solely to develop, improve, or repair a
542 controller or processor's product, service, or technology; or
543 (ii) identify and repair technical errors that impair existing or intended functionality;
544 (m) process personal data to perform a solely internal operation that is:
545 (i) reasonably aligned with the consumer's expectations based on the consumer's
546 existing relationship with the controller; or
547 (ii) otherwise compatible with processing to aid the controller or processor in
548 providing a product or service specifically requested by a consumer or the performance of a
549 contract to which the consumer is a party; or
550 (n) retain a consumer's email address to comply with the consumer's request to exercise
551 a right.
552 (2) This chapter does not apply if a controller or processor's compliance with this
553 chapter:
554 (a) violates an evidentiary privilege under Utah law;
555 (b) as part of a privileged communication, prevents a controller or processor from
556 providing personal data concerning a consumer to a person covered by an evidentiary privilege
557 under Utah law; or
558 (c) adversely affect the rights of any person.
559 (3) A controller or processor is not in violation of this chapter if:
560 (a) the controller or processor discloses personal data to a third party controller or
561 processor in compliance with this chapter;
562 (b) the third party processes the personal data in violation of this chapter; and
563 (c) the disclosing controller or processor did not have actual knowledge of the third
564 party's intent to commit a violation of this chapter.
565 (4) If a controller processes personal data under an exemption described in Subsection
566 (1), the controller bears the burden of demonstrating that the processing qualifies for the
567 exemption.
568 (5) Nothing in this chapter requires a controller, processor, third party, or consumer to
569 disclose a trade secret.
570 Section 12. Section 13-61-305 is enacted to read:
571 13-61-305. No private cause of action.
572 A violation of this chapter does not give rise to a private right of action under this
573 chapter or any other law.
574 Section 13. Section 13-61-401 is enacted to read:
575
576 13-61-401. Investigative powers of division.
577 (1) The division shall establish and administer a system to receive consumer
578 complaints regarding a controller or processor's alleged violation of this chapter.
579 (2) (a) The division may investigate a consumer complaint to determine whether the
580 controller or processor violated or is violating this chapter.
581 (b) If the director has reasonable cause to believe that substantial evidence exists that a
582 person identified in a consumer complaint is in violation of this chapter, the director shall refer
583 the matter to the attorney general.
584 (c) Upon request, the division shall provide consultation and assistance to the attorney
585 general in enforcing this chapter.
586 Section 14. Section 13-61-402 is enacted to read:
587 13-61-402. Enforcement powers of the attorney general.
588 (1) The attorney general has the exclusive authority to enforce this chapter.
589 (2) Upon referral from the division, the attorney general may initiate an enforcement
590 action against a controller or processor for a violation of this chapter.
591 (3) (a) At least 30 days before the day on which the attorney general initiates an
592 enforcement action against a controller or processor, the attorney general shall provide the
593 controller or processor:
594 (i) written notice identifying each provision of this chapter the attorney general alleges
595 the controller or processor has violated or is violating; and
596 (ii) an explanation of the basis for each allegation.
597 (b) The attorney general may not initiate an action if the controller or processor:
598 (i) cures the noticed violation within 30 days after the day on which the controller or
599 processor receives the written notice described in Subsection (3)(a); and
600 (ii) provides the attorney general an express written statement that:
601 (A) the violation has been cured; and
602 (B) no further violation of the cured violation will occur.
603 (c) The attorney general may initiate an action against a controller or processor who:
604 (i) fails to cure a violation after receiving the notice described in Subsection (3)(a); or
605 (ii) after curing a noticed violation and providing a written statement in accordance
606 with Subsection (3)(b), continues to violate this chapter.
607 (d) In an action described in Subsection (3)(c), the attorney general may recover:
608 (i) actual damages to the consumer; and
609 (ii) for each violation of this chapter, an amount not to exceed $1,000 per consumer
610 affected by the violation.
611 (4) All money received from an action under this chapter shall be deposited into the
612 Consumer Privacy Account established in Section 13-61-403.
613 (5) If more than one controller or processor are involved in the same processing in
614 violation of this chapter, the liability for the violation shall be allocated among the controllers
615 or processors according to the principles of comparative fault.
616 Section 15. Section 13-61-403 is enacted to read:
617 13-61-403. Consumer privacy restricted account.
618 (1) There is created a restricted account known as the "Consumer Privacy Account."
619 (2) The account shall be funded by money received through civil enforcement actions
620 under this chapter.
621 (3) Upon appropriation, the division or the attorney general may use money deposited
622 into the account for:
623 (a) investigation and administrative costs incurred by the division in investigating
624 consumer complaints alleging violations of this chapter;
625 (b) recovery of costs and attorney fees accrued by the attorney general in enforcing this
626 chapter; and
627 (c) providing consumer and business education regarding:
628 (i) consumer rights under this chapter; and
629 (ii) compliance with the provisions of this chapter for controllers and processors.
630 (4) If the balance in the fund exceeds $4,000,000 at the close of any fiscal year, the
631 Division of Finance shall transfer the amount that exceeds $4,000,000 into the General Fund.
632 Section 16. Section 13-61-404 is enacted to read:
633 13-61-404. Attorney general report.
634 (1) The attorney general and the division shall compile a report:
635 (a) evaluating the liability and enforcement provisions of this chapter, including:
636 (i) the effectiveness of the attorney general's and the division's efforts to enforce this
637 chapter; and
638 (ii) any recommendations for changes to this chapter; and
639 (b) summarizing the data protected and not protected by this chapter including, with
640 reasonable detail:
641 (i) a list of the types of information that are publicly available from local, state, and
642 federal government sources; and
643 (ii) an inventory of information to which this chapter does not apply by virtue of a
644 limitation in Section 13-61-304.
645 (2) The attorney general and the division may update the report as new information
646 becomes available.
647 (3) The attorney general and the division shall submit the report to the Business and
648 Labor Interim Committee before July 1, 2025.
649 Section 17. Effective date.
650 This bill takes effect on January 1, 2024.