March 2024

1. Governing Texts

1.1. Key acts, regulations, directives, bills

The Florida Digital Bill of Rights ('the Digital Bill of Rights') under Chapter 501.701 Florida Statutes which was signed by the Governor of Florida on June 6, 2023. The Digital Bill of Rights will enter into effect on July 1, 2024.

1.2. Guidelines

No further information.

1.3. Case law

No further information.

2. Scope of Application

2.1. Personal scope

The Digital Bill of Rights applies to a person who (Section 501.703(1) of the Digital Bill of Rights):

• conducts business in this state or produces a product or service used by residents of this state; and
• processes or engages in the sale of personal data.

However, the Digital Bill of Rights does not apply to any of the following, among others (Section 501.703(2) of the Digital Bill of Rights):

• a state agency or a political subdivision of the state;
• a financial institution or data subject to Title V of the Gramm-Leach-Bliley Act of 1999 ('GLBA');
• a covered entity or business associate governed by the Health Insurance Portability and Accountability Act of 1996 Privacy and Security Rules ('the Privacy and Security Rules') established under the Health Insurance Portability and Accountability Act of 1996 ('HIPAA');
• a non-profit organization; and
• a postsecondary education institution.

2.2. Territorial scope

The Digital Bill of Rights is applicable to persons that conduct business in Florida or produce products or services that are targeted to residents of Florida (Section 501.703(1) of the Digital Bill of Rights).

2.3. Material scope

The Digital Bill of Rights outlines specific information that will be exempt from its scope including, among others (Section 501.704 of the Digital Bill of Rights):

• protected health information under the HIPPA;
• health records;
• patient identifying information for purposes of §§290dd-2 of Title 42 of the U.S. Code, as part of the Public Health Service Act;
• information and documents created for purposes of the Health Care Quality Improvement Act of 1986 (42 U.S.C. ss. 11101 704 et seq.);
• personal data 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, or by a user of a consumer report, but only to the extent that the activity is regulated by and authorized under the Fair Credit Reporting Act of 1970 ('FCRA') (15 U.S.C. 1681 et seq.);
• personal data regulated by the Family Educational Rights and Privacy Act 1974 ('FERPA');
• data processed or maintained during 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; and
• data processed or maintained as the emergency contact information of an individual under this part which is used for emergency contact purposes.

Furthermore, the processing of personal data by a person in the course of a purely personal or household activity or solely for measuring or reporting advertising performance, reach, or frequency will not be covered by the Digital Bill of Rights (Section 501.703(2)(f)(1) and (2) of the Digital Bill of Rights).

3. Data Protection Authority | Regulatory Authority 

3.1. Main regulator for data protection

The Florida Attorney General (AG) is the regulator within Florida.

3.2. Main powers, duties and responsibilities

The AG will have exclusive authority to enforce the Digital Bill of Rights (Section 501.72(1) of the Digital Bill of Rights).

The Digital Bill of Rights confirms that the department will adopt rules to implement the same, including standards for authenticated consumer requests, enforcement, data security, and authorized persons who may act on a consumer's behalf (Section 501.72(5) of the Digital Bill of Rights).

By February 1 of each year, the AG must make a report publicly available on its website describing any actions taken by the department to enforce this section. The report must include statistics and relevant information detailing the following (Section 501.72(4) of the Digital Bill of Rights):

• the number of complaints received and the categories or types of violations alleged by the complainant;
• the number and type of enforcement actions taken and the outcomes of such actions, including the number of penalties issued and collected;
• the number of complaints resolved without the need for litigation; and
• for the report due February 1, 2024, the status of the development and implementation of rules to implement.

The AG may collaborate and cooperate with other enforcement authorities of the federal government or other state governments concerning consumer data privacy issues and consumer data privacy investigations if such enforcement authorities have restrictions governing confidentiality at least as stringent as the restrictions provided in the Digital Bill of Rights (Section 501.72(6) of the Digital Bill of Rights).

4. Key Definitions

Data controller: Is defined as a sole proprietorship, partnership, limited liability company, corporation, association, or legal entity that meets the following requirements (Section 501.702(9) of the Digital Bill of Rights):

• is organized or operated for the profit or financial benefit of its shareholders or owners;
• conducts business in Florida;
• collects personal data about consumers, or is the entity on behalf of which such information is collected;
• determines the purposes and means of processing personal data about consumers alone or jointly with others;
• makes in excess of $1 billion in global gross annual revenues; and
• satisfies at least one of the following:
  • derives 50% or more of its global gross annual revenues from the sale of advertisements online, including providing targeted advertising or the sale of ads online;
  • operates a consumer smart speaker and voice command component service with an integrated virtual assistant connected to a cloud computing service that uses hands-free verbal activation. For purposes of this sub-subparagraph, a consumer smart speaker and voice command component service does not include a motor vehicle manufacturer or a subsidiary or affiliate thereof; or
  • operates an app store or a digital distribution platform that offers at least 250,000 different software applications for consumers to download and install.

The definition of controller also includes any entity that controls or is controlled by a controller. The term 'control' means:

• ownership of, or the power to vote, more than 50% of the outstanding shares of any class of voting security of a controller;
• control in any manner over the election of a majority of the directors, or of individuals exercising similar functions; or
• the power to exercise a controlling influence over the management of a company.

Data processor: Means a person who processes personal data on behalf of a controller (Section 501.702(24) of the Digital Bill of Rights).

Personal data: Means any information, including sensitive data, which is linked or reasonably linkable to an identified or identifiable individual. The term 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, and does not include de-identified data or publicly available information (Section 501.702(19) of the Digital Bill of Rights).

Sensitive data: Means a category of personal data that includes any of the following (Section 501.702(31) of the Digital Bill of Rights):

• personal data revealing an individual's racial or ethnic origin, religious beliefs, mental or physical health diagnosis, sexual orientation, or citizenship or immigration status;
• genetic or biometric data processed for the purpose of uniquely identifying an individual;
• personal data collected from a known child; and
• precise geolocation data.

Health data: The Digital Bill of Rights does not provide a definition for 'health data'. However, 'health record' means any written, printed, or electronically recorded material maintained by a healthcare provider in the course of providing healthcare services to an individual which concerns the individual and the services provided. The term includes any of the following (Section 501.702(15) of the Digital Bill of Rights):

• 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; and
• information otherwise acquired by the health care provider about an individual in confidence and in connection with health care services provided to the individual.

In addition, 'protected health information' has the same meaning as HIPAA (Section 501.702(26) of the Digital Bill of Rights).

Biometric data: Means data generated by automatic measurements of an individual's biological characteristics, and includes fingerprints, voiceprints, eye retinas or irises, or other unique biological patterns or characteristics used to identify a specific individual. Biometric data does not include physical or digital photographs, video or audio recordings or data generated from video or audio recordings, or information collected, used, or stored for health care treatment, payment, or operations under the HIPAA (Section 501.702(4) of the Digital Bill of Rights).

Pseudonymization: Means any 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 (Section 501.702(27) of the Digital Bill of Rights).

Data subject: The Digital Bill of Rights does not provide a definition for 'data subject' however 'consumer' is defined as an individual who is a resident of or is domiciled in this state acting only in an individual or household context. The term does not include an individual acting in a commercial or employment context (Section 501.702(8) of the Digital Bill of Rights).

5. Legal Bases

The Digital Bill of Rights notes that personal data processed under Sections 501.716 and 501.717 of the Digital Bill of Rights (i.e., limitations), is only permitted to be processed to the extent that it is (Section 501.719(1) of the Digital Bill of Rights):

• reasonably necessary and proportionate to the purpose; and
• adequate, relevant, and limited to what is necessary in relation to the specific purposes; and
• done to assist another controller, processor, or third party with any of the purposes specified.

The Digital Bill of Rights outlines more specific requirements in regard to the above including the adoption and implementation of a retention schedule that prohibits the use or retention of personal data that is not exempt, after the satisfaction of the initial purpose for which the information was collected or obtained, after the expiration or termination of the contract on which the information was collected or obtained, or two years after the last consumer interaction (Section 501.719(2) and (3) of the Digital Bill of Rights).

Furthermore, the controller or processor that processes personal data in line with Sections 501.716, 501.717, and 501.718 of the Digital Bill of Rights (i.e. limitations) bears the burden of demonstrating that the processing of the personal data qualifies for the exemption and complies with the requirements of Section 501.719 of the Digital Bill of Rights (Section 501.719(4) of the Digital Bill of Rights).

5.1. Consent

Except as otherwise provided in the Digital Bill of Rights controllers must not process personal data for purposes that are neither reasonably necessary nor compatible with, the disclosed purposes for which the personal data is processed unless the consumer's consent is obtained (Section 501.71(2)(a) of the Digital Bill of Rights).

In this regard, consent, when referring to a consumer, means a clear affirmative act signifying a consumer's freely given, specific, informed, and unambiguous agreement to process personal data. The term includes a written statement, including by electronic means, or any other unambiguous affirmative act. The term does not include any of the following (Section 501.702(7) of the Digital Bill of Rights):

• acceptance of a general or broad terms of use or similar document that contains descriptions of personal data processing along with other, unrelated information;
• hovering over, muting, pausing, or closing a given piece of content; and
• the agreement obtained through the use of dark patterns.

5.2. Contract with the data subject

The Digital Bill of Rights provides that nothing provided within may restrict a controller or processor's ability to 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 steps at the request of the consumer before entering into a contract (Section 501.716(1)(d) of the Digital Bill of Rights).

5.3. Legal obligations

The Digital Bill of Rights provides an exemption for certain uses of personal information. Specifically, the Digital Bill of Rights clarifies that the controller's and processor's ability to comply with the following will not be restricted by the Bill of Rights (Section 501.716(1)(a) to (c) of the Digital Bill of Rights):

• complying with federal, or state laws, or rules, or regulations;
• complying with a civil, criminal, or regulatory inquiry, investigation, subpoena, or summons by federal, state, municipal, or other governmental authorities; and
• investigating, establishing, exercising, preparing for, or defending legal claims.

5.4. Interests of the data subject

The Digital Bill of Rights provides that nothing provided within may restrict the ability of controllers or processors to take immediate steps 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 (Section 501.716(1)(e) of the Digital Bill of Rights).

5.5. Public interest

The Digital Bill of Rights provides that nothing provided within may restrict the ability of controllers or processors to 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 entities, that determines whether (Section 501.716(1)(h) of the Digital Bill of Rights):

• the deletion of the information is likely to provide substantial benefits that do not exclusively accrue to the controller;
• the expected benefits of the research outweigh the privacy risks; and
• the controller has implemented reasonable safeguards to mitigate privacy risks associated with research, including any risks associated with re-identification.

5.6. Legitimate interests of the data controller

The Digital Bill of Rights does not explicitly address the legitimate interest of the controller.

However, the Digital Bill of Rights provides that nothing within may restrict the ability of controllers or processors to (Section 501.716(1)(f) of the Digital Bill of Rights):

• prevent, detect, protect against, or respond to security incidents, identity theft, fraud, harassment, malicious or deceptive activities, or any illegal activity;
• preserve the integrity or security of systems, or investigate, report, or prosecute those responsible for any of these actions; and
• assist another controller, processor, or third party in complying with the requirements under the Digital Bill of Rights.

Additionally, the Digital Bill of Rights provides that the obligations imposed on a controller or processor under its provisions will not restrict the controller's or processor's ability to collect, use, or retain personal data for internal use to (Section 501.717(1) of the Digital Bill of Rights):

• conduct internal research to develop, improve, or repair products, services, or technology;
• effectuate a product recall;
• identify and repair technical errors that impair existing or intended functionality; or
• perform internal operations that are:
  • reasonably aligned with the expectations of the consumer;
  • reasonably anticipated based on the consumer's existing relationship with the controller; or
  • 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.

5.7. Legal bases in other instances

The Digital Bill of Rights provides that it should not be construed to prevent a controller or processor from providing personal data concerning a consumer to a person covered by an evidentiary privilege under the laws of Florida as part of a privileged communication.

6. Principles

The Digital Bill of Rights specifies that controllers must limit the collection of personal data to what is adequate, relevant, and reasonably necessary in relation to the purposes for which such data is processed, as disclosed to the consumer (Section 501.71(1)(a) of the Digital Bill of Rights). Additionally, and as mentioned above in the section on the legal basis of consent, except as otherwise provided in the Digital Bill of Rights, controllers must not process personal data for purposes that are neither reasonably necessary nor compatible with, the disclosed purposes for which the personal data is processed, unless the consumer's consent is obtained (Section 501.71(2)(a) of the Digital Bill of Rights).

Furthermore, controllers must establish, implement, and maintain reasonable administrative, technical, and physical data security practices to protect the confidentiality, integrity, and accessibility of personal data appropriate to the volume and nature of the personal data at issue, in order to protect the confidentiality, integrity, and accessibility of personal data (Section 501.71(1)(b) of the Digital Bill of Rights).

7. Controller and Processor Obligations

Search engines

The Bill of Rights states that a controller that operates a search engine must make available, in an easily accessible location on the webpage, which does not require a consumer to log in or register, to read, an up-to-date, plain language, description of the main parameters that are individually or collectively the most significant in determining ranking and the relative importance of those main parameters, including the prioritization or de-prioritization of political partisanship or political ideology in search results. In addition, algorithms are not required to be disclosed nor is any other information that, with reasonable certainty, would enable deception of or harm to consumers through the manipulation of search results (Section 501.71(4) of the Digital Bill of Rights).

De-identified data, pseudonymous data, aggregate consumer information

The Bill of Rights specifies that a controller processing de-identified data must (Section 501.714(1) of the Digital Bill of Rights):

• take reasonable measures to ensure such data cannot be associated with an individual;
• maintain and use the data in deidentified form - a controller may not attempt to reidentify the data, except solely for the purpose of determining whether its deidentification processes satisfy the requirements within the Bill of Rights;
• contractually obligate any recipient of the deidentified data to comply with this part; and
• implement business processes to prevent the inadvertent release of deidentified data.

The Bill of Rights clarifies that none of its provisions may be construed to require the controller or processor to (Section 501.714(2) of the Digital Bill of Rights):

• re-identify de-identified or pseudonymous data;
• maintain data in an identifiable form or obtain, retain, or access any data or technology for the purpose of allowing them to associate a consumer request with personal data; and
• comply with authenticated consumer requests with personal data if the controller:
  • 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;
  • 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
  • does not sell the personal data to a third party or otherwise voluntarily disclose the personal data to a third party other than a processor, except as otherwise authorized under the Bill of Rights.

Furthermore, any controller that discloses pseudonymous data or de-identified data must exercise reasonable oversight to monitor compliance with any contractual commitments to which the pseudonymous data or de-identified data is subject and take the appropriate steps to address any breaches of the same contractual commitments (Section 501.714(4) of the Digital Bill of Rights).

7.1. Data processing notification

Not applicable.

7.2. Data transfers

The Digital Bill of Rights does not specifically address data transfers but defines the sale of personal data as the sharing, disclosing, or transferring of personal data for monetary or other valuable consideration by the controller to a third party. The term does not include any of the following (Section 501.702(29) of the Digital Bill of Rights):

• the disclosure of personal data to a processor who processes the personal data on the controller's behalf;
• the disclosure of personal data to a third party for purposes of providing a product or service requested by the consumer;
• the disclosure of information that the consumer:
  • intentionally made available to the general public through a mass media channel; and
  • did not restrict to a specific audience; and

• the disclosure or transfer of personal data to a third party as an asset that is part of a merger or an acquisition.

Furthermore, nothing provided within the Digital Bill of Rights may restrict the ability of controllers or processors to transfer personal data to a third party as an asset that is part of a merger, an acquisition, a bankruptcy, or other transaction in which the third party assumes control of all or part of the controller, provided that the information is used or shared in a manner consistent with this part. However, where a third party materially alters how it uses or shares the personal data of a consumer in a manner that is materially inconsistent with the commitments or promises made at the time of collection, it must provide prior notice of the new or changed practice to the consumer. The notice must be sufficiently prominent and robust to ensure that consumers can easily exercise choices consistent with the Digital Bill of Rights (Section 501.716(1)(k) of the Digital Bill of Rights).

Finally, the Digital Bill of Rights stipulates that a controller or processor that discloses personal data to a processor or third-party controller in accordance with the Digital Bill of Rights shall not be deemed to have violated the same if the processor or third-party controller that receives and processes such personal data violates the Digital Bill of Rights, provided that, at the time the disclosing controller or processor disclosed such personal data, the disclosing controller or processor did not have actual knowledge that the receiving processor or third-party controller would violate the Digital Bill of Rights. In addition, a third-party controller or processor receiving personal data from a controller or processor in compliance with the Digital Bill of Rights is likewise not in violation of said sections for the transgressions of the controller or processor from which such third-party controller or processor receives such personal data (Section 501.718 of the Digital Bill of Rights).

7.3. Data processing records

Not applicable.

7.4. Data protection impact assessment

Controllers must conduct and document a DPA where processing involves the following activities (Section 501.713(1) of the Digital Bill of Rights):

• the processing of personal data for targeted advertising;
• the sale of personal data;
• the processing of personal data for purposes of profiling, if such profiling presents a reasonably foreseeable risk of:
  • unfair or deceptive treatment of, or unlawful disparate impact on, consumers;
  • financial, physical, or reputational injury to consumers;
  • a physical or other intrusions upon the solitude or seclusion, or the private affairs or concerns, of consumers, if such intrusion would be offensive to a reasonable person; or
  • other substantial injuries to consumers;
• the processing of sensitive data; and
• any processing activities involving personal data which present a heightened risk of harm to consumers.

Furthermore, a DPA must do all of the following (Section 501.713(2) of the Digital Bill of Rights):

• 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 such risks; and
• factor into the assessment:
  • the use of deidentified data;
  • the reasonable expectations of consumers;
  • the context of the processing; and
  • the relationship between the controller and the consumer whose personal data will be processed.

A single DPA may address a comparable set of processing operations that include similar activities (Section 501.713(4) of the Digital Bill of Rights). Importantly, this requirement is applicable to processing activities generated after July 1, 2023 (Section 501.713(6) of the Digital Bill of Rights). Furthermore, disclosure of a DPA compliance with a request from the AG 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 (Section 501.713(3) of the Digital Bill of Rights).

7.5. Data protection officer appointment

The Digital Bill of Rights does not address the appointment of data protection officers.

7.6. Data breach notification

The Digital Bill of Rights only states that data processors must adhere to the instructions of a controller and assist them in meeting their obligations under the Digital Bill of Rights, including, considering the nature of processing and the information available to the processor, by assisting the controller in meeting the controller's obligations in relation to the security of processing the personal data, and in relation to the notification of a breach of security of the system of the processor to meet the controller's obligations (Section 501. 712(1)(b) of the Digital Bill of Rights).

For further information see Florida - Data Breach.

7.7. Data retention

As it relates to the exemption in the section on legal bases, the Digital Bill of Rights outlines requirements for the adoption and implementation of a retention schedule that prohibits the use or retention of personal data that is not exempt, after the satisfaction of the initial purpose for which the information was collected or obtained, after the expiration or termination of the contract on which the information was collected or obtained, or two years after the last consumer interaction (Section 501.719(2) and (3) of the Digital Bill of Rights).

The Digital Bill of Rights does not expressly address data retention requirements otherwise. 

7.8. Children's data

A controller or processor that complies with the authenticated parental consent requirements of the Children's Online Privacy Protection Act of 1998 ('COPPA') with respect to data collected online, is considered to be in compliance with any requirement to obtain parental consent under the Digital Bill of Rights (Section 501.703(3) of the Digital Bill of Rights).

Please see the section on the right to be informed regarding specific notification requirements for the processing of children's data.

7.9. Special categories of personal data

The Digital Bill of Rights prohibits the processing or sale of sensitive data without obtaining the consumer's consent, or, in the case of processing or selling the sensitive data of a known child between 13 and 18 years of age or in accordance with COPPA, without affirmative authorization (Section 501.71(2)(d) of the Digital Bill of Rights).

Please see the section on the right to be informed regarding specific notification requirements for the processing of sensitive data.

7.10. Controller and processor contracts

The Digital Bill of Rights provides that a contract between a controller and a processor must govern the processor's data processing procedures with respect to processing performed on behalf of the controller. Such a contract must include the following information (Section 501.712(2) of the Digital Bill of Rights):

• clear instructions for processing data;
• the nature and purpose of the processing;
• the type of data subject to processing;
• the duration of the processing;
• the rights and obligations of both parties; and
• a requirement that the processor:
  • ensure that each person processing personal data is subject to a duty of confidentiality with respect to the data;
  • 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;
  • make available to the controller, upon reasonable request, all information in the processor's possession necessary to demonstrate the processor's compliance with this part;
  • allow, and cooperate with, reasonable assessments by the controller or the controller's designated assessor; and
  • 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.

Irrespective of the above, a processor 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 Digital Bill of Rights using an appropriate and accepted control standard or framework and assessment procedure. The processor must provide a report of the assessment to the controller upon request (Section 501.712(3) of the Digital Bill of Rights).

Additionally, the Digital Bill of Rights stipulates that processors must adhere to the instructions of controllers and assist the same in meeting their obligations under the Digital Bill of Rights, which includes (Section 501.712(1) of the Digital Bill of Rights):

• assisting the controller in responding to consumer rights requests by using appropriate technical and organizational measures, as reasonably practicable, taking into account the nature of the processing and the information available to the processor;
• 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, considering the nature of processing and the information available to the processor; and
• providing necessary information to enable the controller to conduct and document DPAs.

In determining whether a person is acting as a controller or processor with respect to specific processing of data, the Bill of Rights explains that it is a fact-based determination that depends upon the context in which personal data is to be processed. To this end, a processor that continues to adhere to a controller's instructions with respect to the specific processing of personal data remains a processor (Section 501.712(5) of the Digital Bill of Rights).

Importantly, the Digital Bill of Rights clarifies that none of its provisions can be construed to relieve a controller or a processor from the liabilities imposed on the controller or processor by virtue of its role in the processing relationship (Section 501.712(4) of the Digital Bill of Rights).

8. Data Subject Rights

A consumer is entitled to exercise their consumer rights at any time by submitting a request to a controller which specifies the consumer rights that the consumer wishes to exercise. With respect to the processing of children's personal data, a parent or legal guardian of the child may exercise these rights on behalf of the child (Section 501.705(1) of the Digital Bill of Rights). Accordingly, controllers are required to comply with such requests (Section 501.706(1) of the Digital Bill of Rights).

Importantly, any provision of a contract or agreement that waives or limits in any way a consumer right described is contrary to public policy and is void and unenforceable (Section 501.708 of the Digital Bill of Rights).

Controllers must not discriminate against a consumer for exercising any of the consumer rights, including by denying goods or services, charging different prices or rates for goods or services, or providing a different level of quality of goods or services to the consumer. A controller may offer financial incentives, including payments to consumers as compensation, for processing of personal data if the consumer gives the controller prior consent that clearly describes the material terms of the financial incentive program and provided that such incentive practices are not unjust, unreasonable, coercive, or usurious in nature (Section 501.71(2)(c) of the Digital Bill of Rights).

Submission format

With regard to the submission of consumer requests, a controller is required to establish two or more methods to enable consumers to submit a request and the methods must be secure, reliable, and clearly and conspicuously accessible. The methods must also take into account (Section 501.709(1) of the Digital Bill of Rights):

• the ways in which consumers normally interact with the controller;
• the necessity for secure and reliable communications of these requests; and
• the ability of the controller to authenticate the identity of the consumer making the request.

In addition, a controller may not require a consumer to create a new account to exercise the consumer's rights but may require a consumer to use an existing account. A controller must also provide a mechanism on its website for a consumer to submit a request for information required to be disclosed. A controller that operates exclusively online and has a direct relationship with a consumer from whom they collect personal data may also provide an email address for the submission of requests (Section 501.709(2) and (3) of the Digital Bill of Rights).

Timeline

In line with the above, the Digital Bill of Rights establishes provisions for complying with consumer rights requests, providing that controllers must respond to consumers without undue delay, and in any case no later than 45 days after receipt of a request. The timeframe for a response may be extended by an additional 15 days when reasonably necessary, considering the complexity and number of consumer requests. However, in such cases, the consumer must be informed of the extension within the original 45-day timeframe, together with the reason for the extension (Section 501.706(2) of the Digital Bill of Rights). Ultimately, a controller must provide the consumer with notice within 60 days after the request is received that the controller has complied with the consumer's request (Section 501.706(4) of the Digital Bill of Rights).

Equally, the Digital Bill of Rights stipulates that controllers must inform data subjects without undue delay when declining to take action within the same timeframe, along with the reason for declining to take action, and instructions on how to appeal the decision (Section 501.706(3) of the Digital Bill of Rights).

Fees

The Digital Bill of Rights establishes that information provided in response to a consumer request must be provided by a controller, free of charge, twice annually for each consumer. Where requests from a consumer are manifestly unfounded, excessive, technically infeasible, or repetitive, the controller may charge the consumer a reasonable fee to cover the administrative costs of complying with the request or decline to act on the request. However, the controller bears the burden of demonstrating the manifestly unfounded, excessive, technically infeasible, or repetitive nature of the request (Section 501.706(5) of the Digital Bill of Rights).

Authentication

Where a controller is unable to authenticate a request, the controller may not be required to comply with a request but must make a reasonable effort to request that the consumer provide additional information reasonably necessary to authenticate the consumer and the consumers request (Section 501.706(3) of the Digital Bill of Rights).

Appeals

A controller must establish a process for a consumer to appeal a refusal to take action on a request within a reasonable period of time. The appeal process must be conspicuously available and similar to the process for initiating action to exercise consumer rights. A controller must also inform the consumer in writing of any action taken or not taken in response to an appeal within 60 days after the date of receipt of the appeal, including a written explanation of the reason or reasons for the decision (Section 501.707 of the Digital Bill of Rights).

Exemptions

Importantly, the Digital Bill of Rights confirms that consumer rights do not apply to pseudonymous data or aggregate consumer information in cases in which the controller is able to demonstrate that any information necessary to identify the consumer is kept separate and is subject to effective technical and organizational controls that prevent the controller from accessing the information (Section 501.714(3) of the Digital Bill of Rights).

8.1. Right to be informed

A privacy notice must be accessible and clear, updated at least annually, and include the following information (Section 501.711(1) of the Digital Bill of Rights):

• the categories of personal data processed by the controller, including, if applicable, any sensitive data processed by the controller;
• the purpose of processing personal data;
• how consumers may exercise their rights, including the process by which a consumer may appeal a decision;
• the categories of personal data that the controller shares with third parties (if applicable);
• the categories of third parties with whom the controller shares personal data (if applicable); and
• a description of the methods by which consumers can submit requests to exercise their consumer rights.

In addition, where a person who engages in the sale of sensitive personal data must provide a notice that states: 'NOTICE: This website may sell your sensitive personal data.', and where a controller engages in the sale of biometric data, the controller must provide a notice stating: 'NOTICE: This website may sell your biometric personal data,' and be in line with the above (Section 501.711(2) and (3) of the Digital Bill of Rights).

With regard to the sale of data to third parties by the controller or the processing of personal data for targeted advertising, the data controller must clearly and conspicuously disclose the same and the manner in which a consumer may exercise the right to opt out (Section 501.711(4) of the Digital Bill of Rights).

Finally, a controller may not collect additional categories of personal information or use personal information collected for additional purposes without providing the consumer with notice consistent with the above (Section 501.711(5) of the Digital Bill of Rights).

8.2. Right to access

The Digital Bill of Rights provides consumers with the right to confirm whether a controller is processing the consumer's personal data and accessing the consumer's personal data (Section 501.705(2)(a) of the Digital Bill of Rights).

8.3. Right to rectification

The Digital Bill of Rights provides consumers with the right to correct inaccuracies in their personal data, considering the nature of the personal data and the purposes of the processing of the consumer's personal data (Section 501.705(2)(b) of the Digital Bill of Rights).

However, where a controller maintains a self-service mechanism to allow a consumer to correct certain personal data, the controller may deny the consumer's request and require the consumer to correct their own personal data through such mechanism (Section 501.706(3) of the Digital Bill of Rights).

8.4. Right to erasure

The Digital Bill of Rights provides consumers with the right to delete all personal data provided by or obtained about the consumer (Section 501.705(2)(c) of the Digital Bill of Rights).

Furthermore, in relation to personal data obtained from a source other than the consumer, controllers will be deemed in compliance with the consumer's request to delete the consumer's data where (i) they retain 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 controller's records and does not use the retained data for any other purpose under the Digital Bill of Rights, or (ii) opting the consumer out of the processing of that personal data for any purpose other than a purpose exempt under the Digital Bill of Rights (Section 501.706(6) of the Digital Bill of Rights).

8.5. Right to object/opt-out

Consumers are provided with the right to opt out of the processing of personal data for purposes of (Section 501.705(2)(e) of the Digital Bill of Rights):

• targeted advertising;
• the sale of personal data; or
• profiling in furtherance of a decision that produces a legal or similarly significant effect concerning a consumer.

In addition, consumers can opt out of the collection of sensitive data, including precise geolocation data, or the processing of sensitive data, and the collection of personal data collected through the operation of a voice recognition or facial recognition feature (Section 501.705(2)(f) and (g) of the Digital Bill of Rights).

8.6. Right to data portability

The Digital Bill of Rights provides for the right to obtain a copy of the consumer's personal data in a portable and, to the extent technically feasible, readily usable format if the data is available in a digital format (Section 501.705(2)(d) of the Digital Bill of Rights).

8.7. Right not to be subject to automated decision-making

The Digital Bill of Rights does not expressly provide for the right not to be subject to automated decision-making, however, it defines 'profiling' as 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 (Section 501.702(25) of the Digital Bill of Rights).

As such, as far as automated decision-making falls within the definition of 'profiling', consumers have the right to opt out of such a processing activity as mentioned in the section on the right to opt-out above.

8.8. Other rights

No further information.

9. Penalties

The AG has exclusive authority to enforce the Digital Bill of Rights (Section 501.72(1) of the Digital Bill of Rights).

Where the AG believes that a person is in violation of the Digital Bill of Rights, it can bring an action against such person for unfair or deceptive acts or practices. The AG may first notify the person in writing of the alleged violation, after which it may grant a 45-day period to cure the alleged violation and issue a letter of guidance. The 45-day cure period does not apply to an alleged violation involving a Florida consumer who is a known child, and the controller wilfully disregarded the consumer's age or is deemed to have actual knowledge of the consumer's age (Section 501.72(1) and (2) of the Digital Bill of Rights).

If the person fails to cure the alleged violation within 45 calendar days, the AG may bring an action against such person for the alleged violation. In addition to other remedies, the AG may collect a civil penalty of up to $50,000 per violation. Importantly, the Digital Bill of Rights clarifies that it does not establish a private right of action (Section 501.72(2) of the Digital Bill of Rights).

9.1 Enforcement decisions

Not applicable.