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AN ACT relating to consumer data privacy. 1
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2
SECTION 1. A NEW SECTION OF KRS CHAPTER 367 IS CREATED TO 3
READ AS FOLLOWS: 4
As used in Sections 1 to 10 of this Act: 5
(1) "Affiliate" means a legal entity that controls, is controlled by, or is under 6
common control with another legal entity or shares common branding with 7
another legal entity. For the purposes of this subsection, "control" or 8
"controlled" means: 9
(a) Ownership of, or the power to vote, more than fifty percent (50%) of the 10
outstanding shares of any class of voting security of a company; 11
(b) Control in any manner over the election of a majority of the directors or of 12
individuals exercising similar functions; or 13
(c) The power to exercise controlling influence over the management of a 14
company; 15
(2) "Authenticate" means verifying through reasonable means that the consumer 16
entitled to exercise his or her consumer rights in Section 3 of this Act is the same 17
consumer exercising those consumer rights with respect to the personal data at 18
issue; 19
(3) "Biometric data" means data generated by automatic measurements of an 20
individual's biological characteristics, including a fingerprint, voiceprint, eye 21
retinas, irises, or other unique biological patterns or characteristics that are used 22
to identify a specific individual but does not include a physical or digital 23
photograph, a video or audio recording or data generated therefrom, or 24
information collected, used, or stored for health care treatment, payment, or 25
operations under HIPAA; 26
(4) "Business associate" has the same meaning as established in 45 C.F.R. sec. 27 UNOFFICIAL COPY 24 RS BR 924
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160.103 pursuant to HIPPA; 1
(5) "Child" means any natural person eighteen (18) years of age or younger; 2
(6) "Consent" means a clear affirmative act signifying a consumer's freely given, 3
specific, informed, and unambiguous agreement to process personal data relating 4
to the consumer and may include a written statement, including a statement 5
written by electronic means, or any other unambiguous affirmative action; 6
(7) "Consumer" means a natural person who is a resident of Kentucky acting only in 7
an individual or household context but does not include a natural person acting 8
in a commercial or employment context; 9
(8) "Controller" means a natural or legal person that, alone or jointly with others, 10
determines the purpose and means of processing personal data; 11
(9) "Covered entity" has the same meaning as established in 45 C.F.R. sec. 160.103 12
pursuant to HIPPA; 13
(10) "De-identified data" means data that cannot be reasonably linked to an identified 14
or identifiable natural person, provided that a controller that possesses de-15
identified data takes reasonable measures to ensure that the data cannot be 16
associated with a natural person; 17
(11) "Fund" means the consumer privacy fund established in Section 9 of this Act; 18
(12) "Health record" means a record, other than for financial or billing purposes, 19
relating to an individual, kept by a health care provider as a result of the 20
professional relationship established between the health care provider and the 21
individual; 22
(13) "Health care provider" means: 23
(a) Any health facility as defined in KRS 216B.015; 24
(b) Any person or entity providing health care or health services, including 25
those licensed, certified, or registered under, or subject to, KRS 194A.700 to 26
194A.729 or KRS Chapter 310, 311, 311A, 311B, 312, 313, 314, 314A, 315, 27 UNOFFICIAL COPY 24 RS BR 924
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319, 319A, 319B, 319C, 320, 327, 333, 334A, or 335; 1
(c) The current and former employers, officers, directors, administrators, 2
agents, or employees of those entities listed in paragraphs (a) and (b) of this 3
subsection; or 4
(d) Any person acting within the course and scope of his or her office, 5
employment, or agency relating to a health care provider; 6
(14) "HIPAA" means the federal Health Insurance Portability and Accountability Act 7
of 1996, Pub. L. No. 104-191; 8
(15) "Identified or identifiable natural person" means a person who can be readily 9
identified directly or indirectly; 10
(16) "Institution of higher education" means an educational institution which: 11
(a) Admits as regular students only individuals having a certificate of 12
graduation from a high school, or the recognized equivalent of a certificate; 13
(b) Is legally authorized in this state to provide a program of education beyond 14
high school; 15
(c) Provides an educational program for which it awards a bachelor's or higher 16
degree, or provides a program which is acceptable for full credit toward a 17
degree, a program of postgraduate or postdoctoral studies, or a program of 18
training to prepare students for gainful employment in a recognized 19
occupation; and 20
(d) Is a public or other nonprofit organization; 21
(17) "Nonprofit organization" means an incorporated or unincorporated entity that: 22
(a) Is operating for religious, charitable, or educational purposes; and 23
(b) Does not provide net earnings to, or operate in any manner that inures to 24
the benefit of, any officer, employee, or shareholder of the entity; 25
(18) "Personal data" means information that is linked or reasonably linkable to an 26
identified or identifiable natural person but does not include de-identified data or 27 UNOFFICIAL COPY 24 RS BR 924
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publicly available information; 1
(19) "Precise geolocation data" means information derived from technology, 2
including but not limited to global positioning system level latitude and longitude 3
coordinates or other mechanisms, that directly identifies the specific location of a 4
natural person with precision and accuracy within a radius of one thousand 5
seven hundred fifty (1,750) feet but does not include the content of 6
communications or any data generated by or connected to advanced utility 7
metering infrastructure systems or equipment for use by a utility; 8
(20) "Process" or "processing" means any operation or set of operations performed, 9
whether by manual or automated means, on personal data or on sets of personal 10
data, including the collection, use, storage, disclosure, analysis, deletion, or 11
modification of personal data; 12
(21) "Processor" means a natural or legal entity that processes personal data on 13
behalf of a controller; 14
(22) "Protected health information" means the same as established in 45 C.F.R. sec. 15
160.103 pursuant to HIPPA; 16
(23) "Pseudonymous data" means personal data that cannot be attributed to a specific 17
natural person without the use of additional information, provided that the 18
additional information is kept separately and is subject to appropriate technical 19
and organizational measures to ensure that the personal data is not attributed to 20
an identified or identifiable natural person; 21
(24) "Publicly available information" means information that is lawfully made 22
available through federal, state, or local government records, or information that 23
a business has a reasonable basis to believe is lawfully made available to the 24
general public through widely distributed media, by the consumer, or by a person 25
to whom the consumer has disclosed the information, unless the consumer has 26
restricted the information to a specific audience; 27 UNOFFICIAL COPY 24 RS BR 924
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(25) "Sale of personal data" means the exchange of personal data for monetary 1
consideration by the controller to a third party, but does not include: 2
(a) The disclosure of personal data to a processor that processes the personal 3
data on behalf of the controller; 4
(b) The disclosure of personal data to a third party for purposes of providing a 5
product or service requested by the consumer; 6
(c) The disclosure or transfer of personal data to an affiliate of the controller; 7
(d) The disclosure of information that the consumer intentionally made 8
available to the general public via a channel of mass media and did not 9
restrict to a specific audience; 10
(e) The disclosure or transfer of personal data when a consumer uses or directs 11
a controller to intentionally disclose personal data or intentionally interact 12
with one (1) or more third parties; or 13
(f) The disclosure or transfer of personal data to a third party as an asset that 14
is part of a proposed or actual merger, acquisition, bankruptcy, or other 15
transaction in which the third party assumes control of all or part of the 16
controller's assets; 17
(26) "Sensitive data" means a category of personal data that includes: 18
(a) Racial or ethnic origin, religious beliefs, mental or physical health 19
diagnosis, sexual orientation, or citizenship or immigration status, except to 20
the extent the data is used in order to avoid discrimination on the basis of a 21
protected class that would violate a federal or state antidiscrimination law; 22
(b) Genetic or biometric data that is processed for the purpose of uniquely 23
identifying a specific natural person; 24
(c) The personal data collected from a known child; or 25
(d) Precise geolocation data; 26
(27) "State agency" means all departments, offices, commissions, boards, institutions, 27 UNOFFICIAL COPY 24 RS BR 924
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and political and corporate bodies of the state, including the offices of the clerk of 1
the Supreme Court, clerks of the appellate courts, the several courts of the state, 2
and the legislature, its committees, or commissions; 3
(28) "Targeted advertising" means displaying advertisements to a consumer where the 4
advertisement is selected based on personal data obtained from that consumer's 5
activities over time and across nonaffiliated websites or online applications to 6
predict that consumer's preferences or interests. "Targeted advertising" does not 7
include: 8
(a) Advertisements based on activities within a controller's own or affiliated 9
websites or online applications; 10
(b) Advertisements based on the context of a consumer's current search query, 11
visit to a website, or online application; 12
(c) Advertisements directed to a consumer in response to the consumer's 13
request for information or feedback; or 14
(d) Processing personal data solely for measuring or reporting advertising 15
performance, reach, or frequency; 16
(29) "Third party" means a natural or legal person, public authority, agency, or body 17
other than the consumer, controller, processor, or an affiliate of the processor or 18
the controller; and 19
(30) "Trade secret" means information, including but not limited to a formula, 20
pattern, compilation, program, device, method, technique, or process, that: 21
(a) Derives independent economic value, actual or potential, from not being 22
generally known to, and not being readily ascertainable by proper means by, 23
other persons who can obtain economic value from its disclosure or use; 24
and 25
(b) Is the subject of efforts that are reasonable under the circumstances to 26
maintain its secrecy. 27 UNOFFICIAL COPY 24 RS BR 924
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SECTION 2. A NEW SECTION OF KRS CHAPTER 367 IS CREATED TO 1
READ AS FOLLOWS: 2
(1) Sections 1 to 10 of this Act apply to persons that conduct business in this state or 3
produce products or services that are targeted to residents of this state and that 4
during a calendar year control or process personal data of at least: 5
(a) One hundred thousand (100,000) consumers; or 6
(b) Twenty-five thousand (25,000) consumers and derive over fifty percent 7
(50%) of gross revenue from the sale of personal data. 8
(2) Sections 1 to 10 of this Act shall not apply to any: 9
(a) State agency or any political subdivision of the state; 10
(b) Financial institutions or data subject to Title V of the federal Gramm-11
Leach-Bliley Act, 15 U.S.C. sec. 6801 et seq.; 12
(c) Covered entity or business associate governed by the privacy, security, and 13
breach notification rules issued by the United States Department of Health 14
and Human Services, 45 C.F.R. pts. 160 and 164 established pursuant to 15
HIPAA; 16
(d) Nonprofit organization; or 17
(e) Institution of higher education. 18
(3) The following information and data are exempt from Sections 1 to 10 of this Act: 19
(a) Protected health information under HIPPA; 20
(b) Health records; 21
(c) Patient identifying information for purposes of 42 C.F.R. sec. 2.11; 22
(d) Identifiable private information for purposes of the federal policy for the 23
protection of human subjects under 45 C.F.R. pt. 46; identifiable private 24
information that is otherwise information collected as part of human 25
subjects research pursuant to the good clinical practice guidelines issued by 26
the International Council for Harmonisation of Technical Requirements 27 UNOFFICIAL COPY 24 RS BR 924
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for Pharmaceuticals for Human Use; the protection of human subjects 1
under 21 C.F.R. pts. 50 and 56, or personal data used or shared in research 2
conducted in accordance with the requirements set forth in Sections 1 to 10 3
of this Act, or other research conducted in accordance with applicable law; 4
(e) Information and documents created for purposes of the federal Health Care 5
Quality Improvement Act of 1986, 42 U.S.C. sec. 11101 et seq.; 6
(f) Patient safety work product for purposes of the federal Patient Safety and 7
Quality Improvement Act, 42 U.S.C. sec. 299b-21 et seq.; 8
(g) Information derived from any of the health care-related information listed 9
in this subsection that is de-identified in accordance with the requirements 10
for de-identification pursuant to HIPAA; 11
(h) Information originating from, and intermingled to be indistinguishable 12
from, or information treated in the same manner as information exempt 13
under this subsection that is maintained by a covered entity or business 14
associate, or a program or qualified service organization as defined by 42 15
C.F.R. sec. 2.11; 16
(i) Information used only for public health activities and purposes as 17
authorized by HIPAA; 18
(j) The collection, maintenance, disclosure, sale, communication, or use of any 19
personal information bearing on a consumer's creditworthiness, credit 20
standing, credit capacity, character, general reputation, personal 21
characteristics, or mode of living by a consumer reporting agency, 22
furnisher, or user that provides information for use in a consumer report, 23
and by a user of a consumer report, but only to the extent that the activity is 24
regulated by and authorized under the federal Fair Credit Reporting Act, 15 25
U.S.C. sec. 1681 et seq.; 26
(k) Personal data collected, processed, sold, or disclosed in compliance with the 27 UNOFFICIAL COPY 24 RS BR 924
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federal Driver's Privacy Protection Act of 1994, 18 U.S.C. sec. 2721 et seq.; 1
(l) Personal data regulated by the federal Family Educational Rights and 2
Privacy Act, 20 U.S.C. sec. 1232g et seq.; 3
(m) Personal data collected, processed, sold, or disclosed in compliance with the 4
federal Farm Credit Act, 12 U.S.C. sec. 2001 et seq.; and 5
(n) Data processed or maintained: 6
1. In the course of an individual applying to, employed by, or acting as 7
an agent or independent contractor of a controller, processor, or third 8
party, to the extent that the data is collected and used within the 9
context of that role; 10
2. As the emergency contact information of an individual used for 11
emergency contact purposes; or 12
3. That is necessary to retain to administer benefits for another 13
individual relating to the individual under subparagraph 1. of this 14
paragraph and used for the purposes of administering those benefits. 15
(4) Controllers and processors that comply with the verifiable parental consent 16
requirements of the Children's Online Privacy Protection Act, 15 U.S.C. sec. 17
6501 et seq., shall be deemed compliant with any obligation to obtain parental 18
consent under Sections 1 to 10 of this Act. 19
SECTION 3. A NEW SECTION OF KRS CHAPTER 367 IS CREATED TO 20
READ AS FOLLOWS: 21
(1) A consumer may invoke the consumer rights authorized pursuant to this section 22
at any time by submitting a request to a controller, via the means specified by the 23
controller pursuant to Section 4 of this Act, specifying the consumer rights the 24
consumer wishes to invoke. A known child's parent or legal guardian may invoke 25
the consumer rights on behalf of the child regarding processing personal data 26
belonging to the known child. 27 UNOFFICIAL COPY 24 RS BR 924
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(2) A controller shall comply with an authenticated consumer request to exercise the 1
right to: 2
(a) Confirm whether or not a controller is processing the consumer's personal 3
data and to access the personal data; 4
(b) Delete personal data provided by the consumer; 5
(c) Obtain a copy of the consumer's personal data that the consumer previously 6
provided to the controller in a portable and, to the extent technically 7
practicable, readily usable format that allows the consumer to transmit the 8
data to another controller without hindrance, where the processing is 9
carried out by automated means; and 10
(d) To opt out of targeted advertising and the sale of personal data. 11
(3) Except as otherwise provided in Sections 1 to 10 of this Act, a controller shall 12
comply with a request by a consumer to exercise the consumer rights pursuant to 13
this section as follows: 14
(a) A controller shall respond to the consumer without undue delay, but in all 15
cases within forty-five (45) days of receipt of the request submitted pursuant 16
to the methods described in this section. The response period may be 17
extended once by forty-five (45) additional days when reasonably necessary, 18
taking into account the complexity and number of the consumer's requests, 19
so long as the controller informs the consumer of any such extension within 20
the initial forty-five (45) day response period, together with the reason for 21
the extension; 22
(b) If a controller declines to take action regarding the consumer's request, the 23
controller shall inform the consumer without undue delay, but in all cases 24
within forty-five (45) days of receipt of the request, of the justification for 25
declining to take action; 26
(c) Information provided in response to a consumer request shall be provided 27 UNOFFICIAL COPY 24 RS BR 924
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by a controller free of charge, up to twice annually per consumer. If 1
requests from a consumer are excessive, repetitive, technically infeasible, or 2
manifestly unfounded, such as when the controller reasonably believes that 3
the primary purpose of the request is not to exercise a consumer right, the 4
controller may charge the consumer a reasonable fee to cover the 5
administrative costs of complying with the request or decline to act on the 6
request. The controller bears the burden of demonstrating the excessive, 7
repetitive, technically infeasible, or manifestly unfounded nature of the 8
request; and 9
(d) If a controller is unable to authenticate the request using commercially 10
reasonable efforts, the controller shall not be required to comply with a 11
request to initiate an action under subsection (1) of this section and may 12
request that the consumer provide additional information reasonably 13
necessary to authenticate the consumer and the consumer's request. 14
SECTION 4. A NEW SECTION OF KRS CHAPTER 367 IS CREATED TO 15
READ AS FOLLOWS: 16
(1) A controller shall: 17
(a) Establish, implement, and maintain reasonable administrative, technical, 18
and physical data security practices to protect the confidentiality, integrity, 19
and accessibility of personal data. The data security practices shall be 20
appropriate to the volume and nature of the personal data at issue; 21
(b) Not process personal data in violation of state and federal laws that prohibit 22
unlawful discrimination against consumers. A controller shall not 23
discriminate against a consumer for exercising any of the consumer rights 24
contained in Section 3 of this Act, including denying goods or services, 25
charging different prices or rates for goods or services, or providing a 26
different level of quality of goods and services to the consumer. However, 27 UNOFFICIAL COPY 24 RS BR 924
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nothing in this paragraph shall be construed to require a controller to 1
provide a product or service that requires the personal data of a consumer 2
that the controller does not collect or maintain or to prohibit a controller 3
from offering a different price, rate, level, quality, or selection of goods or 4
services to a consumer, including offering goods or services for no fee, if 5
the consumer has exercised his or her right to opt out pursuant to Section 3 6
of this Act or the offer is related to a consumer's voluntary participation in 7
a bona fide loyalty, rewards, premium features, discounts, or club card 8
program; and 9
(c) Not process sensitive data concerning a consumer for a nonexempt purpose 10
without the consumer having been presented with clear notice and an 11
opportunity to opt out of the processing, or, in the case of the processing of 12
sensitive data collected from a known child, for purposes of delivering a 13
product or service requested by the parent of the child, without processing 14
the data in accordance with the federal Children's Online Privacy 15
Protection Act 15 U.S.C. sec. 6501 et seq. 16
(2) Any provision of a contract or agreement of any kind that purports to waive or 17
limit in any way consumer rights pursuant to Section 3 of this Act shall be 18
deemed contrary to public policy and shall be void and unenforceable. 19
(3) Controllers shall provide consumers with a reasonably accessible, clear, and 20
meaningful privacy notice that includes: 21
(a) The categories of personal data processed by the controller; 22
(b) The purpose for processing personal data; 23
(c) How consumers may exercise their consumer rights pursuant to Section 3 24
of this Act; 25
(d) The categories of personal data that the controller shares with third parties, 26
if any; and 27 UNOFFICIAL COPY 24 RS BR 924
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(e) The categories of third parties, if any, with whom the controller shares 1
personal data. 2
(4) If a controller sells personal data to third parties or engages in targeted 3
advertising, the controller shall clearly and conspicuously disclose the activity, as 4
well as the manner in which a consumer may exercise the right to opt out of the 5
processing. 6
(5) A controller shall establish, and shall describe in a privacy notice, one (1) or 7
more secure and reliable means for consumers to submit a request to exercise 8
their consumer rights under Section 3 of this Act. The means shall take into 9
account the ways in which consumers normally interact with the controller, the 10
need for secure and reliable communication of such requests, and the ability of 11
the controller to authenticate the identity of the consumer making the request. 12
Controllers shall not require a consumer to create a new account in order to 13
exercise consumer rights pursuant to Section 3 of this Act but may require a 14
consumer to use an existing account. 15
SECTION 5. A NEW SECTION OF KRS CHAPTER 367 IS CREATED TO 16
READ AS FOLLOWS: 17
(1) A processor shall adhere to the instructions of a controller and shall assist the 18
controller in meeting its obligations under Section 1 to 10 of this Act. Assistance 19
shall include: 20
(a) Taking into account the nature of processing and the information available 21
to the processor, by appropriate technical and organizational measures, 22
insofar as this is reasonably practicable, to fulfill the controller's obligation 23
to respond to consumer rights requests pursuant to Section 3 of this Act; 24
and 25
(b) Taking into account the nature of processing and the information available 26
to the processor, by assisting the controller in meeting the controller's 27 UNOFFICIAL COPY 24 RS BR 924
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obligations in relation to the security of processing the personal data and in 1
relation to the notification of a breach of the security of the system of the 2
processor pursuant to KRS 365.732 or any other applicable state and 3
federal law in order to meet the controller's obligations. 4
(2) A contract between a controller and a processor shall govern the processor's data 5
processing procedures with respect to processing performed on behalf of the 6
controller. The contract shall be binding and shall clearly set forth instructions 7
for processing personal data, the nature and purpose of processing, the type of 8
data subject to processing, the duration of processing, and the rights and 9
obligations of both parties. The contract shall also include requirements that the 10
processor shall: 11
(a) Ensure that each person processing personal data is subject to a duty of 12
confidentiality with respect to the data; 13
(b) At the controller's direction, delete or return all personal data to the 14
controller as requested at the end of the provision of services, unless 15
retention of the personal data is required by law; 16
(c) Upon the reasonable request of the controller, make available to the 17
controller information in its possession necessary to demonstrate the 18
processor's compliance with the obligations prescribed in Sections 1 to 10 of 19
this Act; and 20
(d) Engage any subcontractor pursuant to a written contract in accordance 21
with this section that requires the subcontractor to meet the obligations of 22
the processor with respect to the personal data. 23
(3) Determining whether a person is acting as a controller or processor with respect 24
to a specific processing of data is a fact-based determination that depends upon 25
the context in which personal data is to be processed. A processor that continues 26
to adhere to a controller's instructions with respect to a specific processing of 27 UNOFFICIAL COPY 24 RS BR 924
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personal data remains a processor. 1
SECTION 6. A NEW SECTION OF KRS CHAPTER 367 IS CREATED TO 2
READ AS FOLLOWS: 3
(1) Nothing in Sections 1 to 10 of this Act shall be construed to require a controller 4
or processor to: 5
(a) Re-identify de-identified data or pseudonymous data; or 6
(b) Maintain data in identifiable form, or collect, obtain, retain, or access any 7
data or technology, in order to be capable of associating an authenticated 8
consumer request with personal data. 9
(2) Nothing in Sections 1 to 10 of this Act shall be construed to require a controller 10
or processor to comply with an authenticated consumer rights request pursuant to 11
Section 3 of this Act if all of the following are met: 12
(a) The controller is not reasonably capable of associating the request with the 13
personal data or it would be unreasonably burdensome for the controller to 14
associate the request with the personal data; 15
(b) The controller does not use the personal data to recognize or respond to the 16
specific consumer who is the subject of the personal data, or associate the 17
personal data with other personal data about the same specific consumer; 18
and 19
(c) The controller does not sell the personal data to any third party or otherwise 20
voluntarily disclose the personal data to any third party other than a 21
processor, except as otherwise permitted in this section. 22
(3) The consumer rights contained in subsection (2) of Section 3 of this Act and 23
Section 4 of this Act shall not apply to pseudonymous data in cases where the 24
controller is able to demonstrate any information necessary to identify the 25
consumer is kept separately and is subject to appropriate technical and 26
organizational measures to ensure that the personal data is not attributed to an 27 UNOFFICIAL COPY 24 RS BR 924
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identified or identifiable natural person. 1
(4) A controller that discloses pseudonymous data or de-identified data shall exercise 2
reasonable oversight to monitor compliance with any contractual commitments to 3
which the pseudonymous data or de-identified data is subject and shall take 4
appropriate steps to address any breaches of those contractual commitments. 5
SECTION 7. A NEW SECTION OF KRS CHAPTER 367 IS CREATED TO 6
READ AS FOLLOWS: 7
(1) Nothing Sections 1 to 10 of this Act shall be construed to restrict a controller's or 8
processor's ability to: 9
(a) Comply with federal, state, or local laws or regulations; 10
(b) Comply with a civil, criminal, or regulatory inquiry, investigation, 11
subpoena, or summons by federal, state, local, or other governmental 12
authorities; 13
(c) Cooperate with law enforcement agencies concerning conduct or activity 14
that the controller or processor reasonably and in good faith believes may 15
violate federal, state, or local laws, rules, or regulations; 16
(d) Investigate, establish, exercise, prepare for, or defend legal claims; 17
(e) Provide a product or service specifically requested by a consumer or a 18
parent or guardian of a child, perform a contract to which the consumer or 19
parent or guardian of a child is a party, including fulfilling the terms of a 20
written warranty, or take steps at the request of the consumer or parent or 21
guardian of a child prior to entering into a contract; 22
(f) Take immediate steps to protect an interest that is essential for the life or 23
physical safety of the consumer or of another natural person, and where the 24
processing cannot be manifestly based on another legal basis; 25
(g) Prevent, detect, protect against, or respond to security incidents, identity 26
theft, fraud, harassment, malicious or deceptive activities, or any illegal 27 UNOFFICIAL COPY 24 RS BR 924
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activity; preserve the integrity or security of systems; or investigate, report, 1
or prosecute those responsible for any such action; 2
(h) Engage in public or peer-reviewed scientific or statistical research in the 3
public interest that adheres to all other applicable ethics and privacy laws 4
and is approved, monitored, and governed by an institutional review board, 5
or similar independent oversight entities that determine: 6
1. If the information is likely to provide substantial benefits that do not 7
exclusively accrue to the controller; 8
2. The expected benefits of the research outweigh the privacy risks; and 9
3. If the controller has implemented reasonable safeguards to mitigate 10
privacy risks associated with research, including any risks associated 11
with re-identification; or 12
(i) Assist another controller, processor, or third party with any of the 13
obligations under this subsection. 14
(2) The obligations imposed on controllers or processors under Sections 1 to 10 of 15
this Act shall not restrict a controller's or processor's ability to collect, use, or 16
retain data to: 17
(a) Conduct internal research to develop, improve, or repair products, services, 18
or technology; 19
(b) Effectuate a product recall; 20
(c) Identify and repair technical errors that impair existing or intended 21
functionality; or 22
(d) Perform internal operations that are reasonably aligned with the 23
expectations of the consumer or reasonably anticipated based on the 24
consumer's existing relationship with the controller or are otherwise 25
compatible with processing data in furtherance of the provision of a product 26
or service specifically requested by a consumer or a parent or guardian of 27 UNOFFICIAL COPY 24 RS BR 924
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child or the performance of a contract to which the consumer or a parent or 1
guardian of a child is a party. 2
(3) The obligations imposed on controllers or processors under Sections 1 to 10 of 3
this Act shall not apply if compliance by the controller or processor with Sections 4
1 to 10 of this Act would violate an evidentiary privilege under the laws of this 5
Commonwealth. Nothing in Sections 1 to 10 of this Act shall be construed to 6
prevent a controller or processor from providing personal data concerning a 7
consumer to a person covered by an evidentiary privilege under the laws of this 8
Commonwealth as part of a privileged communication. 9
(4) A controller or processor that discloses personal data to a third-party controller 10
or processor in compliance with the requirements of Sections 1 to 10 of this Act is 11
not in violation of Sections 1 to 10 of this Act if the third-party controller or 12
processor that receives and processes the personal data is in violation of Sections 13
1 to 10 of this Act, provided that, at the time of disclosing the personal data, the 14
disclosing controller or processor did not have actual knowledge that the 15
recipient intended to commit a violation. A third-party controller or processor 16
receiving personal data from a controller or processor in compliance with the 17
requirements of Sections 1 to 10 of this Act is likewise not in violation of Sections 18
1 to 10 of this Act for the transgressions of the controller or processor from which 19
it receives the personal data. 20
(5) Nothing in Sections 1 to 10 of this Act shall be construed as an obligation 21
imposed on controllers and processors that adversely affects the privacy or other 22
rights or freedoms of any persons, such as exercising the right of free speech 23
pursuant to the First Amendment to the United States Constitution, or applies to 24
personal data by a person in the course of a purely personal or household 25
activity. 26
(6) Personal data processed by a controller pursuant to this section shall not be 27 UNOFFICIAL COPY 24 RS BR 924
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processed for any purpose other than those expressly listed in this section unless 1
otherwise allowed by Sections 1 to 10 of this Act. Personal data processed by a 2
controller pursuant to this section may be processed to the extent that the 3
processing is: 4
(a) Reasonably necessary and proportionate to the purposes listed in this 5
section; and 6
(b) Adequate, relevant, and limited to what is necessary in relation to the 7
specific purposes listed in this section. Personal data collected, used, or 8
retained pursuant to subsection (2) of this section shall, where applicable, 9
take into account the nature and purpose or purposes of such collection, 10
use, or retention. The data shall be subject to reasonable administrative, 11
technical, and physical measures to protect the confidentiality, integrity, 12
and accessibility of the personal data. 13
(7) If a controller processes personal data pursuant to an exemption in this section, 14
the controller bears the burden of demonstrating that the processing qualifies for 15
the exemption and complies with the requirements in this section. 16
(8) Processing personal data for the purposes expressly identified in subsection (1) of 17
this section shall not by itself make an entity a controller with respect to the 18
processing. 19
(9) Nothing in Sections 1 to 10 of this Act shall require a controller, processor, third 20
party, or consumer to disclose trade secrets. 21
SECTION 8. A NEW SECTION OF KRS CHAPTER 367 IS CREATED TO 22
READ AS FOLLOWS: 23
(1) The Attorney General shall have exclusive authority to enforce violations of 24
Sections 1 to 10 of this Act. The Attorney General may enforce Sections 1 to 10 of 25
this Act by bringing an action in the name of the Commonwealth of Kentucky or 26
on behalf of persons residing in this Commonwealth. The Attorney General may 27 UNOFFICIAL COPY 24 RS BR 924
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issue a civil investigative demand to any controller or processor believed to be 1
engaged in, or about to engage in, any violation of Sections 1 to 10 of this Act. 2
(2) Prior to initiating any action under Sections 1 to 10 of this Act, the Attorney 3
General shall provide a controller or processor thirty (30) days' written notice 4
identifying the specific provisions of Sections 1 to 10 of this Act the Attorney 5
General, on behalf of a consumer, alleges have been or are being violated. If 6
within the thirty (30) days the controller or processor cures the noticed violation 7
and provides the Attorney General an express written statement that the alleged 8
violations have been cured and that no further violations shall occur, no action 9
for statutory damages shall be initiated against the controller or processor. 10
(3) If a controller or processor continues to violate Sections 1 to 10 of this Act in 11
breach of an express written statement provided to the consumer under this 12
section, the Attorney General may initiate an action and seek damages for up to 13
seven thousand five hundred dollars ($7,500) for each such continued violation 14
under Sections 1 to 10 of this Act. 15
(4) Nothing in Sections 1 to 10 of this Act or under any other law, regulation, or the 16
equivalent shall be construed as providing the basis for, or be subject to, a private 17
right of action for violations of Sections 1 to 10 of this Act. 18
(5) The Attorney General may recover reasonable expenses incurred in investigating 19
and preparing the case, including attorney's fees, of any action initiated under 20
Sections 1 to 10 of this Act. 21
SECTION 9. A NEW SECTION OF KRS CHAPTER 367 IS CREATED TO 22
READ AS FOLLOWS: 23
There is hereby created a trust and agency account to be known as the consumer 24
privacy fund. The fund shall be administered by the Office of the Attorney General. All 25
civil penalties collected pursuant to Sections 1 to 10 of this Act shall be deposited into 26
the fund. Interest earned on moneys in the fund shall accrue to the fund. Moneys in 27 UNOFFICIAL COPY 24 RS BR 924
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the fund shall be used by the Office of the Attorney General to enforce Sections 1 to 10 1
of this Act. Notwithstanding KRS 45.229, any moneys remaining in the fund at the 2
close of the fiscal year shall not lapse but shall be carried forward into the succeeding 3
fiscal year to be used by the Office of the Attorney General for the purposes set forth in 4
Sections 1 to 10 of this Act. 5
SECTION 10. A NEW SECTION OF KRS CHAPTER 367 IS CREATED TO 6
READ AS FOLLOWS: 7
(1) The provisions of Sections 1 to 10 of this Act are a matter of statewide concern 8
and supersede and preempt all rules, regulations, codes, ordinances, and other 9
laws adopted by a city, county, city and county, municipality, or local agency 10
regarding the processing of personal data by controllers or processors. 11
(2) Any reference to federal, state, or local law or statute in Sections 1 to 10 of this 12
Act shall be deemed to include any accompanying rules or regulations or 13
exemptions thereto. Further, this enactment is declaratory of existing law. 14
Section 11. KRS 367.240 is amended to read as follows: 15
(1) When the Attorney General has reason to believe that a person has engaged in, is 16
engaging in, or is about to engage in any act or practice declared to be unlawful by 17
KRS 367.110 to 367.300 or Sections 1 to 10 of this Act, or when he or she believes 18
it to be in the public interest that an investigation should be made to ascertain 19
whether a person in fact has engaged in, is engaging in or is about to engage in, any 20
act or practice declared to be unlawful by KRS 367.110 to 367.300 or Sections 1 to 21
10 of this Act, he or she may execute in writing and cause to be served upon any 22
person who is believed to have information, documentary material or physical 23
evidence relevant to the alleged or suspected violation, an investigative demand 24
requiring that[such] person to furnish, under oath or otherwise, a report in writing 25
setting forth the relevant facts and circumstances of which he or she has 26
knowledge, or to appear and testify or to produce relevant documentary material or 27 UNOFFICIAL COPY 24 RS BR 924
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physical evidence for examination, at a[such] reasonable time and place as may be 1
stated in the investigative demand, concerning the advertisement, sale or offering 2
for sale of any goods or services or the conduct of any trade or commerce that is the 3
subject matter of the investigation. Provided however, that no person who has a 4
place of business in Kentucky shall be required to appear or present documentary 5
material or physical evidence outside of the county where he or she has his or her 6
principal place of business within the Commonwealth. 7
(2) At any time before the return date specified in an investigative demand, or within 8
twenty (20) days after the demand has been served, whichever period is shorter, a 9
petition to extend the return date, or to modify or set aside the demand, stating good 10
cause, may be filed in the Circuit Court where the person served with the demand 11
resides or has his or her principal place of business or in the Franklin Circuit Court. 12
Section 12. This Act takes effect January 1, 2026. 13