Nebraska Data Privacy Act (“NDPA”)
NE Code § 87-1101, et seq.
SUMMARY:
The Nebraska Data Privacy Act (“NDPA”), effective January 1, 2025, establishes data privacy rights for consumers, including opt-out mechanisms, opt-in consent for sensitive data, and data protection assessments. It applies to personal data collected from consumers in a business context, excluding employee and business-to-business data. The law, enforceable only by the Attorney General, does not provide a private right of action. Violators have a 30-day cure period to address issues, after which they face penalties of $7,500 per violation, with the cure period not expiring.
CITATION:
Nebraska Revised Statutes
Chapter 87 - TRADE PRACTICES
Revised Statutes Chapter 87 87-1101
87-1101 - Act, how cited.
87-1102 - Terms, defined.
87-1103 - Applicability of act to persons or entities.
87-1104 - Information and records to which act is not applicable.
87-1105 - Personal or household activity.
87-1106 - Federal Children's Online Privacy Protection Act of 1998; compliance; effect.
87-1107 - Consumer rights; request to exercise.
87-1108 - Controller; compliance; procedure.
87-1109 - Appeal process.
87-1110 - Consumer right; waiver or limitation; unenforceable.
87-1111 - Consumer right; method to submit request.
87-1112 - Controller; personal data; requirements on collection and use.
87-1113 - Privacy notice; required; contents.
87-1114 - Personal data; sale; process for advertising; disclosure; consumer action.
87-1115 - Processor; duties; controller and processor, contract; requirements; liability.
87-1116 - Data protection assessment; requirements; confidentiality.
87-1117 - Deidentified data.
87-1118 - Sensitive data; sale; consent required.
87-1119 - Attorney General; enforcement.
87-1120 - Attorney General; duties.
87-1121 - Attorney General; powers.
87-1122 - Controller or processor; notification of violations; response.
87-1123 - Civil investigative demand; procedure.
87-1124 - Violation; penalty; actions authorized.
87-1125 - Private right of action.
87-1126 - Act, how construed.
87-1127 - Controller or processor; requirements of act; applicability.
87-1128 - Third-party controller or processor; affect on violation.
87-1129 - Personal data; processing; restrictions.
87-1130 - Preemption of local law.
87-1101. Act, how cited.
Sections 87-1101 to 87-1130 shall be known and may be cited as the Data Privacy Act.
Source
Laws 2024, LB1074, § 1.
Operative Date: January 1, 2025
87-1102. Terms, defined.
For purposes of the Data Privacy Act:
(1) Affiliate means a legal entity that controls, is controlled by, or is under common control with another legal entity or shares common branding with another legal entity. For purposes of this subdivision, control or controlled means:
(a) The ownership of, or power to vote, more than fifty percent of the outstanding shares of any class of voting security of a company;
(b) The control in any manner over the election of a majority of the directors or of individuals exercising similar functions; or
(c) The power to exercise controlling influence over the management of a company;
(2) Authenticate means to verify through reasonable means that the consumer who is entitled to exercise the consumer's rights under sections 87-1107 to 87-1111, or a person on behalf of such consumer, is the same consumer exercising those consumer rights with respect to the personal data at issue;
(3)(a) Biometric data means data that is generated to identify a specific individual through an automatic measurement of a biological characteristic of such individual and includes any:
(i) Fingerprint;
(ii) Voice print;
(iii) Retina image;
(iv) Iris image; or
(v) Unique biological pattern or characteristic.
(b) Biometric data does not include:
(i) Except when generated to identify a specific individual, any physical or digital photograph, video or audio recording, or data generated from a physical or digital photograph; or
(ii) Information collected, used, or stored for health care treatment, payment, or operations under the Health Insurance Portability and Accountability Act;
(4) Business associate has the meaning assigned to the term by the Health Insurance Portability and Accountability Act;
(5) Child means an individual younger than thirteen years of age;
(6)(a) Consent means, when referring to a consumer, a clear and affirmative act signifying a consumer's freely given, specific, informed, and unambiguous agreement to process personal data relating to the consumer, including a statement written by electronic means or any other unambiguous affirmative action by the consumer.
(b) Consent, when referring to a consumer, does not include:
(i) Acceptance of a general or broad term of use or similar document that contains a description of personal data processing along with other, unrelated information;
(ii) Hovering over, muting, pausing, or closing a given piece of content; or
(iii) Agreement obtained through the use of a dark pattern;
(7)(a) Consumer means an individual who is a resident of this state acting only in an individual or household context.
(b) Consumer does not include an individual acting in a commercial or employment context;
(8) Controller means an individual or other person that, alone or jointly with others, determines the purpose and means of processing personal data;
(9) Covered entity has the same meaning as defined in 45 C.F.R. 160.103, as such regulation existed on January 1, 2024;
(10) Dark pattern means a user interface designed or manipulated with the effect of substantially subverting or impairing user autonomy, decision-making, or choice, and includes any practice determined by the Federal Trade Commission to be a dark pattern as of January 1, 2024;
(11) Decision that produces a legal or similarly significant effect concerning a consumer means a decision made by the controller that results in the provision or denial by the controller of:
(a) Financial and lending services;
(b) Housing, insurance, or health care services;
(c) Education enrollment;
(d) Employment opportunities;
(e) Criminal justice; or
(f) Access to basic necessities, such as food and water;
(12) Deidentified data means data that cannot reasonably be linked to an identified or identifiable individual, or a device linked to that individual;
(13) Health care provider has the same meaning as in the Health Insurance Portability and Accountability Act;
(14) Health Insurance Portability and Accountability Act means the federal Health Insurance Portability and Accountability Act of 1996, as such act existed on January 1, 2024;
(15) Health record means any written, printed, or electronically recorded material maintained by a health care provider in the course of providing health care services to an individual that concerns the individual and the services provided to such individual, and includes:
(a) The substance of any communication made by an individual to a health care provider in confidence during or in connection with the provision of health care services; or
(b) Information otherwise acquired by the health care provider about an individual in confidence and in connection with health care services provided to the individual;
(16) Identified or identifiable individual means a consumer who can be directly or indirectly readily identified;
(17) Institution of higher education means any postsecondary institution or private postsecondary institution as such terms are defined in section 85-2403;
(18) Known child means a child under circumstances where a controller has actual knowledge of, or willfully disregards, the child's age;
(19) Nonprofit organization means any corporation organized under the Nebraska Nonprofit Corporation Act, any organization exempt from taxation under section 501(c)(3), 501(c)(6), or 501(c)(12) of the Internal Revenue Code, any organization exempt from taxation under section 501(c)(4) of the Internal Revenue Code that is established to detect or prevent insurance-related crime or fraud, and any subsidiary or affiliate of a cooperative corporation organized in this state;
(20)(a) Personal data means any information, including sensitive data, that is linked or reasonably linkable to an identified or identifiable individual, and includes pseudonymous data when the data is used by a controller or processor in conjunction with additional information that reasonably links the data to an identified or identifiable individual.
(b) Personal data does not include deidentified data or publicly available information;
(21) Political organization means a party, committee, association, fund, or other organization, regardless of whether incorporated, that is organized and operated primarily for the purpose of influencing or attempting to influence:
(a) The selection, nomination, election, or appointment of an individual to a federal, state, or local public office or an office in a political organization, regardless of whether the individual is selected, nominated, elected, or appointed; or
(b) The election of a presidential or vice-presidential elector, regardless of whether the elector is selected, nominated, elected, or appointed;
(22)(a) Precise geolocation data means information derived from technology, including global positioning system level latitude and longitude coordinates or other mechanisms, that directly identifies the specific location of an individual with precision and accuracy within a radius of one thousand seven hundred fifty feet.
(b) Precise geolocation data does not include the content of communications or any data generated by or connected to an advanced utility metering infrastructure system or to equipment for use by a utility;
(23) Process or processing means an operation or set of operations performed, whether by manual or automated means, on personal data or on sets of personal data, such as the collection, use, storage, disclosure, analysis, deletion, or modification of personal data;
(24) Processor means a person that processes personal data on behalf of a controller;
(25) Profiling means any form of solely automated processing performed on personal data to evaluate, analyze, or predict personal aspects related to an identified or identifiable individual's economic situation, health, personal preferences, interests, reliability, behavior, location, or movements;
(26) Protected health information has the same meaning as in the Health Insurance Portability and Accountability Act;
(27) Pseudonymous data means any personal information that cannot be attributed to a specific individual without the use of additional information, provided that the additional information is kept separately and is subject to appropriate technical and organizational measures to ensure that the personal data is not attributed to an identified or identifiable individual;
(28) Publicly available information means information that is lawfully made available through government records, or information that a business has a reasonable basis to believe is lawfully made available to the general public through widely distributed media, by a consumer, or by a person to whom a consumer has disclosed the information, unless the consumer has restricted the information to a specific audience;
(29)(a) Sale of personal data means the exchange of personal data for monetary or other valuable consideration by the controller to a third party.
(b) Sale of personal data does not include:
(i) The disclosure of personal data to a processor that processes the personal data on the controller's behalf;
(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 of information that the consumer:
(A) Intentionally made available to the general public through a mass media channel; and
(B) Did not restrict to a specific audience; or
(v) The disclosure or transfer of personal data to a third party as an asset in which the third party assumes control of all or part of the controller's assets that is part of a proposed or actual:
(A) Merger;
(B) Acquisition;
(C) Bankruptcy; or
(D) Other transaction;
(30) Sensitive data means a category of personal data, and includes:
(a) Personal data revealing racial or ethnic origin, religious beliefs, mental or physical health diagnosis, sexual orientation, or citizenship or immigration status;
(b) Genetic or biometric data that is processed for the purpose of uniquely identifying an individual;
(c) Personal data collected from a known child; or
(d) Precise geolocation data;
(31) State agency means a department, commission, board, office, council, authority, or other agency in any branch of state government that is created by the constitution or a statute of this state, including any university system or any postsecondary institution as defined in section 85-2403;
(32)(a) Targeted advertising means displaying to a consumer an advertisement that is selected based on personal data obtained from that consumer's activities over time and across nonaffiliated websites or online applications to predict the consumer's preferences or interests.
(b) Targeted advertising does not include:
(i) An advertisement that:
(A) Is based on activities within a controller's own websites or online applications;
(B) Is based on the context of a consumer's current search query, visit to a website, or online application; or
(C) Is directed to a consumer in response to the consumer's request for information or feedback; or
(ii) The processing of personal data solely for measuring or reporting advertising performance, reach, or frequency;
(33) Third party means a person, other than the consumer, the controller, the processor, or an affiliate of the controller or processor; and
(34) Trade secret has the same meaning as in section 87-502.
Source
Laws 2024, LB1074, § 2.
Operative Date: January 1, 2025
Cross References
Nebraska Nonprofit Corporation Act, see section 21-1901.
87-1103. Applicability of act to persons or entities.
(1) The Data Privacy Act applies only to a person that:
(a) Conducts business in this state or produces a product or service consumed by residents of this state;
(b) Processes or engages in the sale of personal data; and
(c) Is not a small business as determined under the federal Small Business Act, as such act existed on January 1, 2024, except to the extent that section 87-1118 applies to a person described by this subdivision.
(2) The Data Privacy Act does not apply to any:
(a) State agency or political subdivision of this state;
(b) Financial institution, affiliate of a financial institution, or data subject to Title V of the Gramm-Leach-Bliley Act, 15 U.S.C. 6801 et seq., as such title existed on January 1, 2024;
(c) 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, 45 C.F.R. parts 160 and 164, as such parts existed on January 1, 2024, and Division A, Title XIII, and Division B, Title IV, of the federal Health Information Technology for Economic and Clinical Health Act, Public Law No. 111-5, as such act existed on January 1, 2024;
(d) Nonprofit organization;
(e) Institution of higher education;
(f) Electric supplier or supplier of electricity as defined in section 70-1001.01;
(g) Natural gas public utility as defined in section 66-1802; or
(h) Natural gas utility owned or operated by a city or a metropolitan utilities district.
Source
Laws 2024, LB1074, § 3.
Operative Date: January 1, 2025
87-1104. Information and records to which act is not applicable.
The Data Privacy Act does not apply to the following:
(1) Protected health information under the Health Insurance Portability and Accountability Act;
(2) Health records;
(3) Patient identifying information for purposes of 42 U.S.C. 290dd-2, as such section existed on January 1, 2024;
(4) Identifiable private information:
(a) For purposes of the federal policy for the protection of human subjects under 45 C.F.R. part 46, as such part existed on January 1, 2024;
(b) Collected as part of human subjects research under the good clinical practice guidelines issued by the International Council for Harmonisation of Technical Requirements for Pharmaceuticals for Human Use, as such guidelines existed on January 1, 2024, or of the protection of human subjects under 21 C.F.R. parts 50 and 56, as such parts existed on January 1, 2024; or
(c) That is personal data used or shared in research conducted pursuant to the Data Privacy Act or other research conducted in accordance with applicable Nebraska law;
(5) Information and documents created for purposes of the federal Health Care Quality Improvement Act of 1986, 42 U.S.C. 11101 et seq., as such act existed on January 1, 2024;
(6) Patient safety work product for purposes of the federal Patient Safety and Quality Improvement Act of 2005, 42 U.S.C. 299b-21 et seq., as such act existed on January 1, 2024;
(7) Information derived from any of the health care-related information listed in this section that is deidentified in accordance with the requirements for deidentification under the Health Insurance Portability and Accountability Act;
(8) Information originating from, and intermingled to be indistinguishable with, or information treated in the same manner as, information exempt under this section that is maintained by a covered entity or business associate as defined by the Health Insurance Portability and Accountability Act or by a program or a qualified service organization as defined by 42 U.S.C. 290dd-2, as such section existed on January 1, 2024;
(9) Information that is included in a limited data set as described by 45 C.F.R. 164.514(e), to the extent that the information is used, disclosed, and maintained in the manner specified by 45 C.F.R. 164.514(e), as such regulation existed on January 1, 2024;
(10) Information collected or used only for public health activities and purposes as authorized by the Health Insurance Portability and Accountability Act;
(11) The collection, maintenance, disclosure, sale, communication, or use of any 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 or furnisher 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, 15 U.S.C. 1681 et seq., as such act existed on January 1, 2024;
(12) Personal data collected, processed, sold, or disclosed in compliance with the federal Driver's Privacy Protection Act of 1994, 18 U.S.C. 2721 et seq., as such act existed on January 1, 2024;
(13) Personal data regulated by the federal Family Educational Rights and Privacy Act of 1974, 20 U.S.C. 1232g, as such act existed on January 1, 2024;
(14) Personal data collected, processed, sold, or disclosed in compliance with the federal Farm Credit Act of 1971, 12 U.S.C. 2001 et seq., as such act existed on January 1, 2024;
(15) Data processed or maintained in the course of an individual applying to, being 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 that role;
(16) Data processed or maintained as the emergency contact information of an individual under the Data Privacy Act that is used for emergency contact purposes; or
(17) Data that is processed or maintained and is necessary to retain to administer benefits for another individual that relates to an individual described by subdivision (15) of this section and used for the purposes of administering such benefits.
Source
Laws 2024, LB1074, § 4.
Operative Date: January 1, 2025
87-1105. Personal or household activity.
The Data Privacy Act does not apply to the processing of personal data by a person in the course of a purely personal or household activity.
Source
Laws 2024, LB1074, § 5.
Operative Date: January 1, 2025
87-1106. Federal Children's Online Privacy Protection Act of 1998; compliance; effect.
A controller or processor that complies with the verifiable parental consent requirements of the federal Children's Online Privacy Protection Act of 1998, 15 U.S.C. 6501 et seq., and the rules, regulations, and guidance adopted and promulgated under such act as such act, rules, regulations, and guidance existed on January 1, 2024, with respect to data collected online is considered to be in compliance with any requirement to obtain parental consent under the Data Privacy Act.
Source
Laws 2024, LB1074, § 6.
Operative Date: January 1, 2025
87-1107. Consumer rights; request to exercise.
(1) A consumer may at any time submit a request to a controller specifying the consumer rights the consumer wishes to exercise. With respect to the processing of personal data belonging to a known child, a parent or legal guardian of the child may exercise the consumer rights on behalf of the known child.
(2) A controller shall comply with an authenticated consumer request to exercise the right to:
(a) Confirm whether a controller is processing the consumer's personal data and to access the personal data;
(b) 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;
(c) Delete personal data provided by or obtained about the consumer;
(d) If the data is available in a digital format and the processing is completed by automated means, obtain a copy of the consumer's personal data that the consumer previously provided to the controller in a portable and, to the extent technically feasible, readily usable format that allows the consumer to transmit the data to another controller without hindrance; or
(e) Opt out of the processing of the personal data for purposes of:
(i) Targeted advertising;
(ii) The sale of personal data; or
(iii) Profiling in furtherance of a decision that produces a legal or similarly significant effect concerning the consumer.
Source
Laws 2024, LB1074, § 7.
Operative Date: January 1, 2025
87-1108. Controller; compliance; procedure.
(1) Except as otherwise provided in the Data Privacy Act, a controller shall comply with a request submitted by a consumer to exercise the consumer's rights pursuant to section 87-1107.
(2) A controller shall respond to the consumer request without undue delay within forty-five days after the date of receipt of the request. The controller may extend the response period once by an additional forty-five days when reasonably necessary, taking into account the complexity and number of the consumer's requests, so long as the controller informs the consumer of the extension within the initial forty-five-day response period, together with the reason for the extension.
(3) If a controller declines to comply with a consumer's request, the controller shall inform the consumer within forty-five days after the date of receipt of the request of the justification for declining to comply and provide instructions on how to appeal the decision to the Attorney General in accordance with section 87-1109.
(4) A controller shall provide information in response to a consumer request free of charge, up to twice annually per consumer. If a request from a consumer is manifestly unfounded, excessive, or repetitive, the controller may charge the consumer a reasonable fee to cover the administrative costs of complying with the request or may decline to act on the request. The controller bears the burden of demonstrating that a request is manifestly unfounded, excessive, or repetitive.
(5) If a controller is unable to authenticate the request using commercially reasonable efforts, the controller is not required to comply with a consumer request submitted under section 87-1107 and may request that the consumer provide additional information reasonably necessary to authenticate the consumer's identity and the consumer's request.
(6) A controller that has obtained personal data about a consumer from a source other than the consumer is in compliance with a consumer's request to delete such personal data pursuant to subdivision (2)(c) of section 87-1107 by:
(a) 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 business's records and not using the retained data for any other purpose under the Data Privacy Act; or
(b) Opting the consumer out of the processing of that personal data for any purpose other than a purpose that is exempt under the Data Privacy Act.
Source
Laws 2024, LB1074, § 8.
Operative Date: January 1, 2025
87-1109. Appeal process.
(1) A controller shall establish a process for a consumer to appeal the controller's refusal to take action on a request within a reasonable period of time after the consumer's receipt of the decision under subsection (3) of section 87-1108.
(2) The appeal process must be conspicuously available and similar to the process for initiating an action to exercise consumer rights by submitting a request under section 87-1107.
(3) A controller shall inform the consumer in writing of any action taken or not taken in response to an appeal under this section not later than the sixtieth day after the date of receipt of the appeal, including a written explanation of the reason or reasons for the decision.
(4) If the controller denies an appeal, the controller shall provide the consumer with the online mechanism described in section 87-1108 through which the consumer may contact the Attorney General to submit a complaint.
Source
Laws 2024, LB1074, § 9.
Operative Date: January 1, 2025
87-1110. Consumer right; waiver or limitation; unenforceable.
Any provision of a contract or agreement that waives or limits in any way a consumer right described in sections 87-1107 to 87-1109 is contrary to public policy and is void and unenforceable.
Source
Laws 2024, LB1074, § 10.
Operative Date: January 1, 2025
87-1111. Consumer right; method to submit request.
(1) A controller shall establish two or more secure and reliable methods to enable a consumer to submit a request to exercise consumer rights under the Data Privacy Act. The methods shall take into account:
(a) The ways in which consumers normally interact with the controller;
(b) The necessity for secure and reliable communications of those requests; and
(c) The ability of the controller to authenticate the identity of the consumer making the request.
(2) A controller shall not require a consumer to create a new account to exercise a consumer right under the Data Privacy Act, but may require a consumer to use an existing account.
(3) Except as provided by subsection (4) of this section, if the controller maintains an Internet website, the controller shall provide a mechanism on the website for a consumer to submit a request for information required to be disclosed under the Data Privacy Act.
(4) A controller that operates exclusively online and has a direct relationship with a consumer from whom the controller collects personal information is only required to provide an email address for the submission of a request described by subsection (3) of this section.
(5) A consumer may designate another person 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 under subdivisions (2)(e)(i) and (ii) of section 87-1107. A consumer may designate an authorized agent using a technology, including a link to an Internet website, an Internet browser setting or extension, or a global setting on an electronic device, that allows the consumer to indicate the consumer's intent to opt out of the processing of the consumer's personal data under subdivisions (2)(e)(i) and (ii) of section 87-1107. A controller shall comply with an opt-out request received from an authorized agent under this subsection if the controller is able to verify, with commercially reasonable effort, the identity of the consumer and the authorized agent's authority to act on the consumer's behalf. A controller is not required to comply with an opt-out request received from an authorized agent under this subsection if:
(a) The authorized agent does not communicate the request to the controller in a clear and unambiguous manner;
(b) The controller is not able to verify, with commercially reasonable effort, that the consumer is a resident of this state;
(c) The controller does not possess the ability to process the request; or
(d) The controller does not process similar or identical requests the controller receives from consumers for the purpose of complying with similar or identical laws or regulations of another state.
(6) A technology described by subsection (5) of this section:
(a) Shall not unfairly disadvantage another controller;
(b) Shall not make use of a default setting, but shall require the consumer to make an affirmative, freely given, and unambiguous choice to indicate the consumer's intent to opt out of any processing of a consumer's personal data; and
(c) Shall be consumer-friendly and easy to use by the average consumer.
Source
Laws 2024, LB1074, § 11.
Operative Date: January 1, 2025
87-1112. Controller; personal data; requirements on collection and use.
(1) A controller:
(a) Shall limit the collection of personal data to what is adequate, relevant, and reasonably necessary in relation to the purposes for which that personal data is processed, as disclosed to the consumer; and
(b) For purposes of protecting the confidentiality, integrity, and accessibility of personal data, shall establish, implement, and maintain reasonable administrative, technical, and physical data security practices that are appropriate to the volume and nature of the personal data at issue.
(2) A controller shall not:
(a) Except as otherwise provided in the Data Privacy Act, process personal data for a purpose that is neither reasonably necessary to nor compatible with the disclosed purpose for which the personal data is processed, as disclosed to the consumer, unless the controller obtains the consumer's consent;
(b) Process personal data in violation of state and federal laws that prohibit unlawful discrimination against consumers;
(c) Discriminate against a consumer for exercising any of the consumer rights contained in the Data Privacy Act, including by denying a good or service, charging a different price or rate for a good or service, or providing a different level of quality of a good or service to the consumer; or
(d) Process the sensitive data of a consumer without obtaining the consumer's consent, or, in the case of processing the sensitive data of a known child, without processing that data in accordance with the federal Children's Online Privacy Protection Act of 1998, 15 U.S.C. 6501 et seq., as such act existed on January 1, 2024.
(3) Subdivision (2)(c) of this section shall not 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 a good or service to a consumer, including offering a good or service for no fee, if the consumer has exercised the consumer's right to opt out under section 87-1107 or the offer is related to a consumer's voluntary participation in a bona fide loyalty, reward, premium feature, discount, or club card program.
Source
Laws 2024, LB1074, § 12.
Operative Date: January 1, 2025
87-1113. Privacy notice; required; contents.
A controller shall provide each consumer with a reasonably accessible and clear privacy notice that includes:
(1) The categories of personal data processed by the controller, including, if applicable, any sensitive data processed by the controller;
(2) The purpose for processing personal data;
(3) How a consumer may exercise a consumer right under sections 87-1107 to 87-1111, including the process by which a consumer may appeal a controller's decision with regard to the consumer's request;
(4) If applicable, any category of personal data that the controller shares with any third party;
(5) If applicable, any category of third party with whom the controller shares personal data; and
(6) A description of each method required under section 87-1111 through which a consumer may submit a request to exercise a consumer right under the Data Privacy Act.
Source
Laws 2024, LB1074, § 13.
Operative Date: January 1, 2025
87-1114. Personal data; sale; process for advertising; disclosure; consumer action.
If a controller sells personal data to any third party or processes personal data for targeted advertising, the controller shall clearly and conspicuously disclose that process and the manner in which a consumer may exercise the right to opt out of that process.
Source
Laws 2024, LB1074, § 14.
Operative Date: January 1, 2025
87-1115. Processor; duties; controller and processor, contract; requirements; liability.
(1) A processor shall adhere to the instructions of a controller and shall assist the controller in meeting or complying with the controller's duties or requirements under the Data Privacy Act, including:
(a) Assisting the controller in responding to consumer rights requests submitted under section 87-1107 by using appropriate technical and organizational measures, as reasonably practicable, taking into account the nature of processing and the information available to the processor;
(b) Assisting the controller with regard to complying with the requirement relating to the security of processing personal data and to the notification of a breach of security of the processor's system relating to an operator's or driver's license, taking into account the nature of processing and the information available to the processor; and
(c) Providing necessary information to enable the controller to conduct and document data protection assessments under section 87-1116.
(2) A contract between a controller and a processor shall govern the processor's data processing procedures with respect to processing performed on behalf of the controller. The contract shall include:
(a) Clear instructions for processing data;
(b) The nature and purpose of processing;
(c) The type of data subject to processing;
(d) The duration of processing;
(e) The rights and obligations of both parties; and
(f) A requirement that the processor shall:
(i) Ensure that each person processing personal data is subject to a duty of confidentiality with respect to the data;
(ii) At the controller's direction, delete or return all personal data to the controller as requested after the provision of the service is completed, unless retention of the personal data is required by law;
(iii) Make available to the controller, on reasonable request, all information in the processor's possession necessary to demonstrate the processor's compliance with the requirements of the Data Privacy Act;
(iv) Allow, and cooperate with, reasonable assessments by the controller or the controller's designated assessor; and
(v) Engage any subcontractor pursuant to a written contract that requires the subcontractor to meet the requirements of the processor with respect to the personal data.
(3) Notwithstanding the requirement described by subdivision (2)(f)(iv) of this section, a processor, in the alternative, may arrange for a qualified and independent assessor to conduct an assessment of the processor's policies and technical and organizational measures in support of the requirements under the Data Privacy Act using an appropriate and accepted control standard or framework and assessment procedure. The processor shall provide a report of the assessment to the controller on request.
(4) This section shall not be construed to relieve a controller or a processor from the liabilities imposed on the controller or processor by virtue of the role of the controller or processor in the processing relationship as described in the Data Privacy Act.
(5) A determination of 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 on the context in which personal data is to be processed. A processor that continues to adhere to a controller's instructions with respect to a specific processing of personal data remains in the role of a processor.
Source
Laws 2024, LB1074, § 15.
Operative Date: January 1, 2025
87-1116. Data protection assessment; requirements; confidentiality.
(1) A controller shall conduct and document a data protection assessment of each of the following processing activities involving personal data:
(a) The processing of personal data for purposes of targeted advertising;
(b) The sale of personal data;
(c) The processing of personal data for purposes of profiling, if the profiling presents a reasonably foreseeable risk of:
(i) Unfair or deceptive treatment of or unlawful disparate impact on any consumer;
(ii) Financial, physical, or reputational injury to any consumer;
(iii) A physical or other intrusion on the solitude or seclusion, or the private affairs or concerns, of any consumer, if the intrusion would be offensive to a reasonable person; or
(iv) Other substantial injury to any consumer;
(d) The processing of sensitive data; and
(e) Any processing activity that involves personal data that presents a heightened risk of harm to any consumer.
(2) A data protection assessment conducted under subsection (1) of this section shall:
(a) Identify and weigh the direct or indirect benefits that may flow 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 that processing, as mitigated by safeguards that can be employed by the controller to reduce the risks; and
(b) Factor into the assessment:
(i) The use of deidentified data;
(ii) The reasonable expectations of consumers;
(iii) The context of the processing; and
(iv) The relationship between the controller and the consumer whose personal data will be processed.
(3) A controller shall make a data protection assessment requested under subsection (2) of section 87-1121 available to the Attorney General pursuant to a civil investigative demand under section 87-1121.
(4) A data protection assessment is confidential and exempt from disclosure as a public record pursuant to sections 84-712 to 84-712.09. Disclosure of a data protection assessment in compliance with a request from the Attorney General does not constitute a waiver of attorney-client privilege or work-product protection 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) A data protection assessment conducted by a controller for the purpose of compliance with other laws or regulations may constitute compliance with the requirements of this section if the assessment has a reasonably comparable scope and effect.
Source
Laws 2024, LB1074, § 16.
Operative Date: January 1, 2025
87-1117. Deidentified data.
(1) A controller in possession of deidentified data shall:
(a) Take reasonable measures to ensure that the data cannot be associated with an individual;
(b) Publicly commit to maintaining and using deidentified data without attempting to reidentify the data; and
(c) Contractually obligate any recipient of the deidentified data to comply with the Data Privacy Act.
(2) The Data Privacy Act shall not be construed to require a controller or processor to:
(a) Reidentify deidentified data or pseudonymous data;
(b) Maintain data in identifiable form or obtain, retain, or access any data or technology for the purpose of allowing the controller or processor to associate a consumer request with personal data; or
(c) Comply with an authenticated consumer rights request under section 87-1107, if the controller:
(i) 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;
(ii) 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) Does not sell the personal data to any third party or otherwise voluntarily disclose the personal data to any third party other than a processor, except as otherwise permitted by this section.
(3) The consumer rights under subdivisions (2)(a) through (d) of section 87-1107 and controller duties under section 87-1112 do not apply to pseudonymous data in any case in which the controller is able to demonstrate any 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.
(4) A controller that discloses pseudonymous data or deidentified data shall exercise reasonable oversight to monitor compliance with any contractual commitments to which the pseudonymous data or deidentified data is subject and shall take appropriate steps to address any breach of the contractual commitments.
Source
Laws 2024, LB1074, § 17.
Operative Date: January 1, 2025
87-1118. Sensitive data; sale; consent required.
(1) A person described by subdivision (1)(c) of section 87-1103 shall not engage in the sale of personal data that is sensitive data without receiving prior consent from the consumer.
(2) A person who violates this section is subject to the penalty under section 87-1124.
Source
Laws 2024, LB1074, § 18.
Operative Date: January 1, 2025
87-1119. Attorney General; enforcement.
The Attorney General has exclusive authority to enforce the Data Privacy Act.
Source
Laws 2024, LB1074, § 19.
Operative Date: January 1, 2025
87-1120. Attorney General; duties.
The Attorney General shall post on the Attorney General's website:
(1) Information relating to:
(a) The responsibilities of a controller under the Data Privacy Act;
(b) The responsibilities of a processor under the Data Privacy Act; and
(c) A consumer's rights under the Data Privacy Act; and
(2) An online mechanism through which a consumer may submit a complaint under the Data Privacy Act to the Attorney General.
Source
Laws 2024, LB1074, § 20.
Operative Date: January 1, 2025
87-1121. Attorney General; powers.
(1) If the Attorney General has reasonable cause to believe that a controller or processor has engaged in or is engaging in a violation of the Data Privacy Act, the Attorney General may issue a civil investigative demand pursuant to section 87-1123.
(2) The Attorney General may request, pursuant to a civil investigative demand, that a controller disclose any data protection assessment that is relevant to an investigation conducted by the Attorney General. The Attorney General may evaluate the data protection assessment for compliance with sections 87-1112 to 87-1114.
Source
Laws 2024, LB1074, § 21.
Operative Date: January 1, 2025
87-1122. Controller or processor; notification of violations; response.
Before bringing an action under section 87-1124, the Attorney General shall notify a controller or processor in writing, not later than the thirtieth day before bringing the action, identifying the specific provisions of the Data Privacy Act the Attorney General alleges have been or are being violated. The Attorney General may not bring an action against the controller or processor if:
(1) Within the thirty-day period, the controller or processor cures the identified violation; and
(2) The controller or processor provides the Attorney General:
(a) A written statement that the controller or processor cured the alleged violation and supportive documentation to show how such violation was cured; and
(b) An express written statement that the controller or processor shall not commit any such violation after the alleged violation has been cured.
Source
Laws 2024, LB1074, § 22.
Operative Date: January 1, 2025
87-1123. Civil investigative demand; procedure.
(1) Whenever the Attorney General believes that any person may be in possession, custody, or control of any original or copy of any book, record, report, memorandum, paper, communication, tabulation, map, chart, photograph, mechanical transcription, or other tangible document or recording, wherever situated, which he or she believes to be relevant to the subject matter of an investigation of a possible violation of the Data Privacy Act, the Attorney General may, prior to the institution of a civil proceeding under such act, execute in writing and cause to be served upon such a person a civil investigative demand requiring such person to produce such documentary material and permit inspection and copying thereof. This section shall not be applicable to criminal prosecutions.
(2) Each such demand shall:
(a) State the statute and section or sections thereof the alleged violation of which is under investigation, and the general subject matter of the investigation;
(b) Describe the class or classes of documentary material to be produced thereunder with reasonable specificity so as fairly to indicate the material demanded;
(c) Prescribe a return date within which the documentary material shall be produced; and
(d) Identify the members of the Attorney General's staff to whom such documentary material shall be made available for inspection and copying.
(3) No such demand shall:
(a) Contain any requirement which would be unreasonable or improper if contained in a subpoena duces tecum issued by a court of this state; or
(b) Require the disclosure of any documentary material which would be privileged, or which for any other reason would not be required by a subpoena duces tecum issued by a court of this state.
(4) Service of any such demand may be made by:
(a) Delivering a duly executed copy thereof to the person to be served, or, if such person is not a natural person, to any officer of the person to be served;
(b) Delivering a duly executed copy thereof to the principal place of business in this state of the person to be served; or
(c) Mailing by certified mail a duly executed copy thereof addressed to the person to be served at the principal place of business in this state, or, if such person has no place of business in this state, to his or her principal office or place of business.
(5) Documentary material demanded pursuant to this section shall be produced for inspection and copying during normal business hours at the principal office or place of business of the person served, or at such other times and places as may be agreed upon by the person served and the Attorney General.
(6) No documentary material produced pursuant to a demand, or copies thereof, shall, unless otherwise ordered by a district court for good cause shown, be produced for inspection or copying by, nor shall the contents thereof be disclosed to, other than an authorized employee of the Attorney General, without the consent of the person who produced such material, except that:
(a) Under such reasonable terms and conditions as the Attorney General shall prescribe, the copies of such documentary material shall be available for inspection and copying by the person who produced such material or any duly authorized representative of such person;
(b) The Attorney General may provide copies of such documentary material to an official of this or any other state, or an official of the federal government, who is charged with the enforcement of federal or state antitrust or consumer protection laws, if such official agrees in writing to not disclose such documentary material to any person other than the official's authorized employees, except as such disclosure is permitted under subdivision (c) of this subsection; and
(c) The Attorney General or any assistant attorney general or an official authorized to receive copies of documentary material under subdivision (b) of this subsection may use such copies of documentary material as he or she determines necessary in the enforcement of the Data Privacy Act, including presentation before any court, except that any such material that contains trade secrets shall not be presented except with the approval of the court in which action is pending after adequate notice to the person furnishing such material.
(7) At any time before the return date specified in the demand, or within twenty days after the demand has been served, whichever period is shorter, a petition to extend the return date for or to modify or set aside a demand issued pursuant to subsection (1) of this section, stating good cause, may be filed in the district court for Lancaster County, or in such other county where the parties reside. A petition by the person on whom the demand is served, stating good cause, to require the Attorney General or any person to perform any duty imposed by this section, and all other petitions in connection with a demand, may be filed in the district court for Lancaster County or in the county where the parties reside.
(8) Whenever any person fails to comply with any civil investigative demand for documentary material duly served upon him or her under this section, or whenever satisfactory copying or reproduction of any such material cannot be done and such person refuses to surrender such material, the Attorney General may file, in the district court of the county in which such person resides, is found, or transacts business, and serve upon such person a petition for an order of such court for the enforcement of this section, except that if such person transacts business in more than one county, such petition shall be filed in the county in which such person maintains his or her principal place of business or in such other county as may be agreed upon by the parties to such petition. Whenever any petition is filed in the district court of any county under this section, such court shall have jurisdiction to hear and determine the matter so presented and to enter such order as may be required to carry this section into effect. Disobedience of any order entered under this section by any court shall be punished as a contempt thereof.
Source
Laws 2024, LB1074, § 23.
Operative Date: January 1, 2025
87-1124. Violation; penalty; actions authorized.
(1) A person who violates the Data Privacy Act following the cure period described by section 87-1122 or who breaches a written statement provided to the Attorney General under such section is liable for a civil penalty in an amount not to exceed seven thousand five hundred dollars for each violation.
(2) The Attorney General may bring an action in the name of the State of Nebraska to:
(a) Recover a civil penalty under this section;
(b) Restrain or enjoin the person from violating the Data Privacy Act; or
(c) Recover the civil penalty and seek injunctive relief.
(3) The Attorney General may recover reasonable attorney's fees and other reasonable expen/ses incurred in investigating and bringing an action under this section.
(4) All money collected under this section shall be remitted to the State Treasurer for distribution in accordance with Article VII, section 5, of the Constitution of Nebraska.
Source
Laws 2024, LB1074, § 24.
Operative Date: January 1, 2025
87-1125. Private right of action.
The Data Privacy Act shall not be construed as providing a basis for, or being subject to, a private right of action for a violation of the Data Privacy Act or any other law.
Source
Laws 2024, LB1074, § 25.
Operative Date: January 1, 2025
87-1126. Act, how construed.
The Data Privacy Act shall not be construed to:
(1) Restrict a controller's or processor's ability to:
(a) Comply with federal, state, or local laws, rules, or regulations;
(b) Comply with a civil, criminal, or regulatory inquiry, investigation, subpoena, or summons by federal, state, local, or other governmental authorities;
(c) Cooperate with any law enforcement agency concerning conduct or activity that the controller or processor reasonably and in good faith believes may violate any federal, state, or local law, rule, or regulation;
(d) Investigate, establish, exercise, prepare for, or defend legal claims;
(e) 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, including fulfilling the terms of a written warranty, or take action at the request of the consumer before entering into a contract;
(f) Take immediate action to protect an interest that is essential for the life or physical safety of the consumer or of another individual and in which the processing cannot be manifestly based on another legal basis;
(g) Prevent, detect, protect against, or respond to security incidents, identity theft, fraud, harassment, malicious or deceptive activities, or any illegal activity;
(h) Preserve the integrity or security of systems or investigate, report, or prosecute those responsible for breaches of system security;
(i) 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 approved, monitored, and governed by an institutional review board or similar independent oversight entity that determines:
(i) If the deletion of the information is likely to provide substantial benefits that do not exclusively accrue to the controller;
(ii) Whether the expected benefits of the research outweigh the privacy risks; and
(iii) If the controller has implemented reasonable safeguards to mitigate privacy risks associated with research, including any risks associated with reidentification; or
(j) Assist another controller, processor, or third party with any of the requirements under subdivision (1) of this section;
(2) Prevent a controller or processor from providing personal data concerning a consumer to a person covered by an evidentiary privilege under the laws of this state as part of a privileged communication;
(3) Impose a requirement on any controller or processor that adversely affects any right or freedom of any person, including the right of free speech pursuant to the First Amendment to the Constitution of the United States;
(4) Require a controller, processor, third party, or consumer to disclose a trade secret;
(5) Apply to the processing of personal data by any individual in the course of a purely personal or household activity; or
(6) Prevent a controller or processor from providing personal data concerning a consumer to a person covered by an evidentiary privilege as part of a privileged communication.
Source
Laws 2024, LB1074, § 26.
Operative Date: January 1, 2025
87-1127. Controller or processor; requirements of act; applicability.
(1) The requirements imposed on any controller or processor under the Data Privacy Act shall not restrict a controller's or processor's ability to collect, use, or retain data to:
(a) Conduct internal research to develop, improve, or repair products, services, or technology;
(b) Effect a product recall;
(c) Identify and repair technical errors that impair existing or intended functionality; or
(d) Perform internal operations that:
(i) Are reasonably aligned with the expectations of the consumer;
(ii) Are reasonably anticipated based on the consumer's existing relationship with the controller; or
(iii) Are otherwise compatible with processing data in furtherance of the provision of a product or service specifically requested by a consumer or the performance of a contract to which the consumer is a party.
(2) A requirement imposed on a controller or processor under the Data Privacy Act shall not apply if compliance with the requirement by the controller or processor, as applicable, would violate an evidentiary privilege under any law of this state.
Source
Laws 2024, LB1074, § 27.
Operative Date: January 1, 2025
87-1128. Third-party controller or processor; affect on violation.
(1) A controller or processor that discloses personal data to a third-party controller or processor, in compliance with any requirement of the Data Privacy Act, does not violate the Data Privacy Act if the third-party controller or processor that receives and processes that personal data is in violation of the Data Privacy Act, if at the time of the data's disclosure the disclosing controller or processor did not have actual knowledge that the recipient intended to commit a violation.
(2) A third-party controller or processor that receives personal data from a controller or processor in compliance with the requirements of the Data Privacy Act does not violate the Data Privacy Act for the transgressions of the controller or processor from which the third-party controller or processor received the personal data.
Source
Laws 2024, LB1074, § 28.
Operative Date: January 1, 2025
87-1129. Personal data; processing; restrictions.
(1) Personal data processed by a controller under sections 87-1126 to 87-1129 may not be processed for any purpose other than a purpose listed in sections 87-1126 to 87-1129 unless otherwise allowed by the Data Privacy Act. Personal data processed by a controller under sections 87-1126 to 87-1129 may be processed to the extent that the processing of the data is:
(a) Reasonably necessary and proportionate to the purposes listed in sections 87-1126 to 87-1129; and
(b) Adequate, relevant, and limited to what is necessary in relation to the specific purposes listed in sections 87-1126 to 87-1129.
(2) Personal data collected, used, or retained under subsection (1) of section 87-1127 shall, where applicable, take into account the nature and purpose of such collection, use, or retention. The personal data described by this subsection is subject to reasonable administrative, technical, and physical measures to protect the confidentiality, integrity, and accessibility of the personal data and to reduce reasonably foreseeable risks of harm to consumers relating to the collection, use, or retention of personal data.
(3) A controller that processes personal data under an exemption in sections 87-1126 to 87-1129 bears the burden of demonstrating that the processing of the personal data qualifies for the exemption and complies with the requirements of subsections (1) and (2) of this section.
(4) The processing of personal data by an entity for the purposes described by section 87-1126 does not solely make the entity a controller with respect to the processing of the data.
Source
Laws 2024, LB1074, § 29.
Operative Date: January 1, 2025
87-1130. Preemption of local law.
The Data Privacy Act supersedes and preempts any ordinance, resolution, rule, or other regulation adopted by a political subdivision regarding the processing of personal data by a controller or processor.
Source
Laws 2024, LB1074, § 30.
Operative Date: January 1, 2025
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For more information, see here: https://www.nebraskalegislature.gov/laws/statutes.php?statute=87-1101
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