Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H4632 Compare Versions

Only one version of the bill is available at this time.

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1	1	HOUSE . . . . . . . . No. 4632
2	2	The Commonwealth of Massachusetts
3	3	________________________________________
4	4	HOUSE OF REPRESENTATIVES, May 13, 2024.
5	5	The committee on Advanced Information Technology, the Internet and
6	6	Cybersecurity, to whom were referred the petition (accompanied by bill,
7	7	Senate, No. 227) of Barry R. Finegold for legislation to establish the
8	8	Massachusetts Information Privacy and Security Act; the petition
9	9	(accompanied by bill, House, No. 60) of Daniel R. Carey and Mindy
10	10	Domb relative to the security and the protection of personal information
11	11	by establishing the Massachusetts information privacy and security act;
12	12	the petition (accompanied by bill, House, No. 63) of Dylan A. Fernandes,
13	13	Mindy Domb and Bud L. Williams for legislation to protect biometric
14	14	information; the petition (accompanied by bill, House, No. 80) of David
15	15	M. Rogers relative to internet privacy rights for children; and, the petition
16	16	(accompanied by bill, House, No. 83) of Andres X. Vargas, David M.
17	17	Rogers and Carmine Lawrence Gentile for legislation to establish the
18	18	Massachusetts data privacy protection act, reports recommending that the
19	19	accompanying bill (House, No. 4632) ought to pass.
20	20	For the committee,
21	21	TRICIA FARLEY-BOUVIER. 1 of 64
22	22	FILED ON: 5/6/2024
23	23	HOUSE . . . . . . . . . . . . . . . No. 4632
24	24	The Commonwealth of Massachusetts
25	25	_______________
26	26	In the One Hundred and Ninety-Third General Court
27	27	(2023-2024)
28	28	_______________
29	29	An Act establishing the Massachusetts Data Privacy Act.
30	30	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
31	31	of the same, as follows:
32	32	1 SECTION 1.
33	33	2 The General Laws, as appearing in the 2022 Official Edition, are hereby amended by
34	34	3inserting after chapter 93L the following chapter:
35	35	4 Chapter 93M. Massachusetts Data Privacy Act
36	36	5 Section 1. Definitions
37	37	6 (a)As used in this chapter, the following words shall, unless the context clearly
38	38	7requires otherwise, have the following meanings:
39	39	8 (1)“authentication”, the process of verifying an individual or entity for security
40	40	9purposes.
41	41	10 (2)“biometric data”, data generated from the technological processing of an
42	42	11individual’s unique biological, physical, or physiological characteristics that is linked or
43	43	12reasonably linkable to an individual, including but not limited to retina or iris scans, fingerprint, 2 of 64
44	44	13voiceprint, map or scan of hand or face geometry, vein pattern, gait pattern; provided, however,
45	45	14that “biometric information” shall not include:
46	46	15 (i)a digital or physical photograph;
47	47	16 (ii)an audio or video recording; or
48	48	17 (iii)data generated from a digital or physical photograph, or an audio or video
49	49	18recording, unless such data is generated to identify a specific individual.
50	50	19 (3)"chapter”, this chapter of the General Laws, as from time to time may be
51	51	20amended, and any regulations promulgated under said chapter.
52	52	21 (4)“collect” and “collection”, buying, renting, licensing, gathering, obtaining,
53	53	22receiving, accessing, or otherwise acquiring covered data by any means. This includes receiving
54	54	23information from the consumer either actively, through interactions such as user registration, or
55	55	24passively, by observing the consumer’s behavior.
56	56	25 (5)“consent”, a clear affirmative act signifying an individual’s freely given, specific,
57	57	26informed, and unambiguous agreement to allow the processing of specific categories of personal
58	58	27information relating to the individual for a narrowly defined particular purpose after having been
59	59	28informed, in response to a specific request from a covered entity that meets the requirements of
60	60	29this chapter; provided, however, that “consent” may include a written statement, including a
61	61	30statement written by electronic means, or any other unambiguous affirmative action; and
62	62	31provided further, that the following shall not constitute “consent”:
63	63	32 (i)acceptance of a general or broad terms of use or similar document that contains
64	64	33descriptions of personal information processing along with other, unrelated information; 3 of 64
65	65	34 (ii)hovering over, muting, pausing, or closing a given piece of content; or
66	66	35 (iii)agreement obtained through dark patterns or a false, fictitious, fraudulent, or
67	67	36materially misleading statement or representation.
68	68	37 (6)“control”, with respect to an entity:
69	69	38 (i)ownership of, or the power to vote, more than 50 percent of the outstanding shares
70	70	39of any class of voting security of the entity;
71	71	40 (ii)control over the election of a majority of the directors of the entity (or of
72	72	41individuals exercising similar functions); or
73	73	42 (iii)the power to exercise a controlling influence over the management of the entity.
74	74	43 (7)“covered data”, information, including derived data, inferences, and unique
75	75	44persistent identifiers, that identifies or is linked or reasonably linkable, alone or in combination
76	76	45with other information, to an individual or a device that identifies or is linked or reasonably
77	77	46linkable to an individual. However, the term “covered data” does not include de-identified data
78	78	47or publicly available information.
79	79	48 (8)“covered entity”, any entity or any person, other than an individual acting in a
80	80	49non-commercial context, that alone or jointly with others determines the purposes and means of
81	81	50collecting, processing, or transferring covered data.
82	82	51 The term “covered entity” does not include:
83	83	52 (i)government agencies or service providers to government agencies that exclusively
84	84	53and solely process information provided by government entities; 4 of 64
85	85	54 (ii)any entity or person that meets the following criteria for the period of the 3
86	86	55preceding calendar years (or for the period during which the covered entity or service provider
87	87	56has been in existence if such period is less than 3 years):
88	88	57 (A)the entity or person’s average annual gross revenues during the period did not
89	89	58exceed $20,000,000;
90	90	59 (B)the entity or person, on average, did not annually collect or process the covered
91	91	60data of more than 25,000 individuals during the period, other than for the purpose of initiating,
92	92	61rendering, billing for, finalizing, completing, or otherwise collecting payment for a requested
93	93	62service or product, so long as all covered data for such purpose was deleted or de-identified
94	94	63within 90 days, except when necessary to investigate fraud or as consistent with a covered
95	95	64entity’s return policy; and
96	96	65 (C)no component of its revenue comes from transferring covered data during any
97	97	66year (or part of a year if the covered entity has been in existence for less than 1 year) that occurs
98	98	67during the period.
99	99	68 (iii)a national securities association that is registered under 15 U.S.C. 78o-3 of the
100	100	69Securities Exchange Act of 1934.and is operating solely for purposes under that act.
101	101	70 (iv)a nonprofit organization that is established to detect and prevent fraudulent acts in
102	102	71connection with insurance and is operating solely for that purpose.
103	103	72 (9)“covered high-impact social media company”, a covered entity that provides any
104	104	73internet-accessible platform where:
105	105	74 (i)such covered entity generates $3,000,000,000 or more in annual revenue; 5 of 64
106	106	75 (ii)such platform has 300,000,000 or more monthly active users for not fewer than 3
107	107	76of the preceding 12 months on the online product or service of such covered entity; and
108	108	77 (iii)such platform constitutes an online product or service that is primarily used by
109	109	78users to access or share user-generated content.
110	110	79 (10)“dark pattern or deceptive design”, a user interface that is designed, modified, or
111	111	80manipulated with the purpose or substantial effect of obscuring, subverting, or impairing a
112	112	81reasonable individual’s autonomy, decision-making, or choice, including, but not limited to, any
113	113	82practice the Federal Trade Commission refers to as a “dark pattern.”
114	114	83 (11)“data broker”, a covered entity whose principal source of revenue is derived from
115	115	84processing or transferring covered data that the covered entity did not collect directly from the
116	116	85individuals linked or linkable to the covered data. This term does not include a covered entity
117	117	86insofar as such entity processes employee data collected by and received from a third party
118	118	87concerning any individual who is an employee of the third party for the sole purpose of such
119	119	88third-party providing benefits to the employee. An entity may not be considered to be a data
120	120	89broker for purposes of this chapter if the entity is acting as a service provider.
121	121	90 (12)“de-identified data”, information that does not identify and is not linked or
122	122	91reasonably linkable to a distinct individual or a device, regardless of whether the information is
123	123	92aggregated, and if the covered entity or service provider:
124	124	93 (i)takes technical measures to ensure that the information cannot, at any point, be
125	125	94used to re-identify any individual or device that identifies or is linked or reasonably linkable to
126	126	95an individual; 6 of 64
127	127	96 (ii)publicly commits in a clear and conspicuous manner:
128	128	97 (A)to process and transfer the information solely in a de-identified form without any
129	129	98reasonable means for re-identification; and
130	130	99 (B)to not attempt to re-identify the information with any individual or device that
131	131	100identifies or is linked or reasonably linkable to an individual; and
132	132	101 (iii)contractually obligates any person or entity that receives the information from the
133	133	102covered entity or service provider:
134	134	103 (A)to comply with all the provisions of this paragraph with respect to the
135	135	104information; and
136	136	105 (B)to require that such contractual obligations be included contractually in all
137	137	106subsequent instances for which the data may be received.
138	138	107 (13)“derived data”, covered data that is created by the derivation of information, data,
139	139	108assumptions, correlations, inferences, predictions, or conclusions from facts, evidence, or another
140	140	109source of information or data about an individual or an individual’s device.
141	141	110 (14)“device”, any electronic equipment capable of collecting, processing, or
142	142	111transferring data that is used by one or more individuals or households.
143	143	112 (15)“genetic information”, any covered data, regardless of its format, that concerns an
144	144	113individual’s genetic characteristics, including but not limited to:
145	145	114 (i)raw sequence data that results from the sequencing of the complete, or a portion
146	146	115of the, extracted deoxyribonucleic acid (DNA) of an individual; or 7 of 64
147	147	116 (ii)genotypic and phenotypic information that results from analyzing raw sequence
148	148	117data described in subparagraph (i).
149	149	118 (16)“homepage”, the introductory page of an internet website and any internet web
150	150	119page where personal information is collected; provided, however, that in the case of an online
151	151	120service, such as a mobile application, “homepage” shall include:
152	152	121 (i)the application’s platform page or download page;
153	153	122 (ii)a link within the application, such as from the application configuration, “About,”
154	154	123“Information,” or settings page; and
155	155	124 (iii)any other location that allows individuals to review the notices required by this
156	156	125chapter, including, but not limited to, before downloading the application.
157	157	126 (17)“individual”, a natural person who is a Massachusetts resident or is present in
158	158	127Massachusetts.
159	159	128 (18)“knowledge”,
160	160	129 (i)with respect to a covered entity that is a covered high-impact social media company,
161	161	130the entity knew or should have known the individual was a minor;
162	162	131 (ii)with respect to a covered entity or service provider that is a large data holder, and
163	163	132otherwise is not a covered high-impact social media company, that the covered entity knew or
164	164	133acted in willful disregard of the fact that the individual was a minor; and
165	165	134 (iii)with respect to a covered entity or service provider that does not meet the
166	166	135requirements of clause (i) or (ii), actual knowledge. 8 of 64
167	167	136 (19)“large data holder”, a covered entity or service provider that in the most recent
168	168	137calendar year:
169	169	138 (i)had annual gross revenues of $200,000,000 or more; and
170	170	139 (ii)collected, processed, or transferred the covered data of more than 2,000,000
171	171	140individuals or devices that identify or are linked or reasonably linkable to one or more
172	172	141individuals, excluding covered data collected and processed solely for the purpose of initiating,
173	173	142rendering, billing for, finalizing, completing, or otherwise collecting payment for a requested
174	174	143product or service; or the sensitive covered data of more than 200,000 individuals or devices that
175	175	144identify or are linked or reasonably linkable to one or more individuals.
176	176	145 The term “large data holder” does not include any instance in which the covered entity or
177	177	146service provider would qualify as a large data holder solely on the basis of collecting or
178	178	147processing personal email addresses, personal telephone numbers, or log-in information of an
179	179	148individual or device to allow the individual or device to log in to an account administered by the
180	180	149covered entity or service provider.
181	181	150 (20)“material”, with respect to an act, practice, or representation of a covered entity
182	182	151(including a representation made by the covered entity in a privacy policy or similar disclosure to
183	183	152individuals) involving the collection, processing, or transfer of covered data, that such act,
184	184	153practice, or representation is likely to affect a reasonable individual’s decision or conduct
185	185	154regarding a product or service
186	186	155 (21)“minor”, an individual under the age of 18.
187	187	156 (22)“OCABR”, the Office of Consumer Affairs and Business Regulation. 9 of 64
188	188	157 (23)“precise geolocation information,” information derived from a device or from
189	189	158interactions between devices, with or without the knowledge of the user and regardless of the
190	190	159technological method used, that pertains to or directly or indirectly reveals the present or past
191	191	160geographical location of an individual or device within the Commonwealth of Massachusetts
192	192	161with sufficient precision to identify street-level location information within a range of 1,850 feet
193	193	162or less.
194	194	163 (24)“process”, any operation or set of operations performed on information or on sets
195	195	164of information, whether or not by automated means, including but not limited to the use, storage,
196	196	165analysis, deletion, or modification of information.
197	197	166 (25)“processing purpose”, a reason for which a covered entity or service provider
198	198	167collects, processes, or transfers covered data that is specific and granular enough for a reasonable
199	199	168individual to understand the material facts of how and why the covered entity or service provider
200	200	169collects, processes, or transfers the covered data.
201	201	170 (26)"profiling", any form of automated processing performed on personal data to
202	202	171evaluate, analyze or predict personal aspects related to an identified or identifiable individual's
203	203	172economic situation, health, personal preferences, interests, reliability, behavior, location or
204	204	173movements.
205	205	174 (27)“publicly available information”, any information that a covered entity or service
206	206	175provider has a reasonable basis to believe has been lawfully made available to the general public
207	207	176from: 10 of 64
208	208	177 (i)federal, state, or local government records, if the covered entity collects,
209	209	178processes, and transfers such information in accordance with any restrictions or terms of use
210	210	179placed on the information by the relevant government entity;
211	211	180 (ii)widely distributed media;
212	212	181 (iii)a website or online service made available to all members of the public, for free or
213	213	182for a fee, including where all members of the public, for free or for a fee, can log in to the
214	214	183website or online service;
215	215	184 (iv)a disclosure that has been made to the general public as required by federal, state,
216	216	185or local law; or
217	217	186 (v)the visual observation of the physical presence of an individual or a device in a
218	218	187public place, not including data collected by a device in the individual’s possession.
219	219	188 For purposes of this paragraph, information from a website or online service is not
220	220	189available to all members of the public if the individual who made the information available via
221	221	190the website or online service has either restricted the information to a specific audience or
222	222	191reasonably expects that the information will not be distributed to so many persons as to become a
223	223	192matter of public knowledge.
224	224	193 The term “publicly available information” does not include:
225	225	194 (i)any obscene visual depiction, as defined in 18 U.S.C. section 1460;
226	226	195 (ii)any inference made exclusively from multiple independent sources of publicly
227	227	196available information that reveals sensitive covered data with respect to an individual; 11 of 64
228	228	197 (iii)biometric information;
229	229	198 (iv)publicly available information that has been combined with covered data;
230	230	199 (v)genetic information, unless otherwise made available by the individual to whom
231	231	200the information pertains:
232	232	201 (vi)intimate images known to have been created or shared without consent.
233	233	202 (28)“reasonably understandable”, of length and complexity such that an individual
234	234	203with an eighth-grade reading level, as established by the department of elementary and secondary
235	235	204education, can read and comprehend.
236	236	205 (29)“sensitive covered data”, a form of coved data, including:
237	237	206 (i)an individual’s precise geolocation information;
238	238	207 (ii)biometric or genetic information;
239	239	208 (iii)the covered data of an individual when a covered entity or service provider has
240	240	209knowledge the individual is a minor;
241	241	210 (iv)covered data that reveals an individual’s:
242	242	211 (A)race, color, ethnicity, or national origin;
243	243	212 (B)sex or gender identity;
244	244	213 (C)religious beliefs;
245	245	214 (D)citizenship or immigration status; 12 of 64
246	246	215 (E)military service; or
247	247	216 (F)status as a victim of a crime.
248	248	217 (v)covered data processed concerning an individual’s past, present or future mental
249	249	218or physical health condition, disability, diagnosis or treatment, including pregnancy and cosmetic
250	250	219treatment;
251	251	220 (vi)covered data processed concerning an individual’s sexual orientation, sex life or
252	252	221reproductive health, including, but not limited to, the use or purchase of contraceptives, birth
253	253	222control, abortifacients or other medication, products or services related to reproductive health;
254	254	223 (vii)covered data that reveals an individual’s philosophical beliefs or union
255	255	224membership;
256	256	225 (viii)covered data that reveals an individual’s government-issued identifier, including
257	257	226but not limited to, social security number, driver’s license number, military identification
258	258	227number, passport number or state-issued identification card number but does not include a
259	259	228government-issued identifier required by law to be displayed in public;
260	260	229 (ix)covered data that reveals an individual’s financial account number, or credit or
261	261	230debit card number, with or without any required security code, access code, personal
262	262	231identification number or password, that would permit access to an individual’s financial account,
263	263	232or information that describes or reveals the income level or bank account balances of an
264	264	233individual;
265	265	234 (x)covered data that reveals account or device log-in credentials, or security or
266	266	235access codes for an account or device; 13 of 64
267	267	236 (xi)covered data that reveals an individual’s private communications such as
268	268	237voicemails, emails, texts, direct messages, or mail, or information identifying the parties to such
269	269	238communications, voice communications, video communications, and any information that
270	270	239pertains to the transmission of such communications, including telephone numbers called,
271	271	240telephone numbers from which calls were placed, the time calls were made, call duration, and
272	272	241location information of the parties to the call, unless the covered entity or a service provider
273	273	242acting on behalf of the covered entity is the sender or an intended recipient of the
274	274	243communication. Communications are not private for purposes of this clause if such
275	275	244communications are made from or to a device provided by an employer to an employee insofar
276	276	245as such employer provides conspicuous notice that such employer may access such
277	277	246communications;
278	278	247 (xii)covered data that reveals calendar information, address book information, phone
279	279	248or text logs, photos, audio recordings, or videos, maintained for private use by an individual,
280	280	249regardless of whether such information is stored on the individual’s device or is accessible from
281	281	250that device and is backed up in a separate location. Such information is not sensitive for purposes
282	282	251of this paragraph if such information is sent from or to a device provided by an employer to an
283	283	252employee insofar as such employer provides conspicuous notice that it may access such
284	284	253information.
285	285	254 (xiii)a photograph, film, video recording, or other similar medium that shows the
286	286	255naked or undergarment-clad private area of an individual; 14 of 64
287	287	256 (xiv)covered data that reveals the video content requested or selected by an individual
288	288	257collected by a covered entity. This clause does not include covered data used solely for transfers
289	289	258for independent video measurement.
290	290	259 (xv)covered data that reveals an individual’s online activities over time and across
291	291	260third-party websites or online services.
292	292	261 (xvi)any other covered data collected, processed, or transferred for the purpose of
293	293	262identifying the types of covered data listed in clauses (i) through (xv), inclusive.
294	294	263 (30)“service provider”, a person or entity that:
295	295	264 (i)collects, processes, or transfers covered data on behalf of, and at the direction of,
296	296	265a covered entity or a government agency; and
297	297	266 (ii)receives covered data from or on behalf of a covered entity or a government
298	298	267agency.
299	299	268 A service provider that receives service provider data from another service provider as
300	300	269permitted under this chapter shall be treated as a service provider under this chapter with respect
301	301	270to such data.
302	302	271 (31)“service provider data”, covered data that is collected or processed by or has been
303	303	272transferred to a service provider by or on behalf of a covered entity or a government agency or
304	304	273another service provider for the purpose of allowing the service provider to whom such covered
305	305	274data is transferred to perform a service or function on behalf of, and at the direction of, such
306	306	275covered entity or government agency. 15 of 64
307	307	276 (32)“targeted advertising”, presenting to an individual or device identified by a unique
308	308	277identifier, or groups of individuals or devices identified by unique identifiers, an online
309	309	278advertisement that is selected based on known or predicted preferences, characteristics, or
310	310	279interests associated with the individual or a device identified by a unique identifier; provided,
311	311	280however, that “targeted advertising” does not include:
312	312	281 (i)advertising or marketing to an individual or an individual’s device in response to
313	313	282the individual’s specific request for information or feedback;
314	314	283 (ii)contextual advertising, which is when an advertisement is displayed based on the
315	315	284content with or in which the advertisement appears and does not vary based on who is viewing
316	316	285the advertisement; or
317	317	286 (iii)processing covered data strictly necessary for the sole purpose of measuring or
318	318	287reporting advertising or content performance, reach, or frequency, including independent
319	319	288measurement.
320	320	289 (33)“third party”, any person or entity, including a covered entity, that
321	321	290 (i)collects, processes, or transfers covered data and is not a consumer-facing
322	322	291business with which the individual linked or reasonably linkable to such covered data expects
323	323	292and intends to interact; and
324	324	293 (ii)is not a service provider with respect to such data.
325	325	294 This term does not include a person or entity that collects covered data from another
326	326	295entity if the two entities are related by common ownership or corporate control, but only if a
327	327	296reasonable consumer’s reasonable expectation would be that such entities share information. 16 of 64
328	328	297 (34)“third party data”, covered data that has been transferred to a third party.
329	329	298 (35)“transfer”, to disclose, sell, release, disseminate, make available, license, rent, or
330	330	299share covered data orally, in writing, electronically, or by any other means.
331	331	300 (36)“unique identifier”, an identifier to the extent that such identifier is reasonably
332	332	301linkable to an individual or device that identifies or is linked or reasonably linkable to 1 or more
333	333	302individuals, including a device identifier, Internet Protocol address, cookie, beacon, pixel tag,
334	334	303mobile ad identifier, or similar technology, customer number, unique pseudonym, user alias,
335	335	304telephone number, or other form of persistent or probabilistic identifier that is linked or
336	336	305reasonably linkable to an individual or device. This term does not include an identifier assigned
337	337	306by a covered entity for the specific purpose of giving effect to an individual’s exercise of consent
338	338	307or opt-outs of the collection, processing, and transfer of covered data pursuant to this chapter or
339	339	308otherwise limiting the collection, processing, or transfer of such information.
340	340	309 (37)“widely distributed media”, information that is available to the general public,
341	341	310including information from a telephone book or online directory, a television, internet, or radio
342	342	311program, the news media, or an internet site that is available to the general public on an
343	343	312unrestricted basis, but does not include an obscene visual depiction, as defined in 18 U.S.C.
344	344	313section 1460.
345	345	314 Section 2. Duty of Loyalty
346	346	315 (a)A covered entity or service provider may not collect, process, or transfer covered data
347	347	316unless the collection, processing, or transfer is limited to what is reasonably necessary and
348	348	317proportionate to carry out one of the following purposes: 17 of 64
349	349	318 (1)provide or maintain a specific product or service requested by the individual to whom
350	350	319the data pertains;
351	351	320 (2)initiate, manage, complete a transaction, or fulfill an order for specific products or
352	352	321services requested by an individual, including any associated routine administrative, operational,
353	353	322and account-servicing activity such as billing, shipping, delivery, storage, and accounting;
354	354	323 (3)authenticate users of a product or service;
355	355	324 (4)fulfill a product or service warranty;
356	356	325 (5)prevent, detect, protect against, or respond to a security incident. For purposes of this
357	357	326paragraph, security is defined as network security and physical security and life safety, including
358	358	327an intrusion or trespass, medical alerts, fire alarms, and access control security;
359	359	328 (6)to prevent, detect, protect against, or respond to fraud, harassment, or illegal activity
360	360	329targeted at or involving the covered entity or its services. For purposes of this paragraph, the
361	361	330term “illegal activity”, a violation of a federal, state, or local law punishable as a felony or
362	362	331misdemeanor that can directly harm;
363	363	332 (7)comply with a legal obligation imposed by state or federal law, or to investigate,
364	364	333establish, prepare for, exercise, or defend legal claims involving the covered entity or service
365	365	334provider;
366	366	335 (8)effectuate a product recall pursuant to state or federal law;
367	367	336 (9)conduct a public or peer-reviewed scientific, historical, or statistical research project
368	368	337that: 18 of 64
369	369	338 (i)is in the public interest; and
370	370	339 (ii)adheres to all relevant laws and regulations governing such research, including
371	371	340regulations for the protection of human subjects, or is excluded from criteria of the institutional
372	372	341review board;
373	373	342 (10)deliver a communication that is not an advertisement to an individual, if the
374	374	343communication is reasonably anticipated by the individual within the context of the individual’s
375	375	344interactions with the covered entity;
376	376	345 (11)deliver a communication at the direction of an individual between such individual
377	377	346and one or more individuals or entities;
378	378	347 (12)ensure the data security and integrity of covered data in accordance with chapter
379	379	34893H; or
380	380	349 (13)transfer assets to a third party in the context of a merger, acquisition, bankruptcy, or
381	381	350similar transaction when the third party assumes control, in whole or in part, of the covered
382	382	351entity’s assets, only if the covered entity, in a reasonable time prior to such transfer, provides
383	383	352each affected individual with:
384	384	353 (i)a notice describing such transfer, including the name of the entity or entities receiving
385	385	354the individual’s covered data and their privacy policies; and
386	386	355 (ii)a reasonable opportunity to withdraw any previously given consents related to the
387	387	356individual’s covered data and a reasonable opportunity to request the deletion of the individual’s
388	388	357covered data. 19 of 64
389	389	358 (b)A covered entity or service provider may, with respect to covered data previously
390	390	359collected in accordance with the previous subsection, process such data:
391	391	360 (1) as necessary to provide advertising or marketing of products or services provided by
392	392	361the covered entity to an individual who is not a minor or device by electronic or non-electronic
393	393	362means, provided that the delivery of such advertising or marketing complies with the
394	394	363requirements of this chapter;
395	395	364 (2)process such data as necessary to perform system maintenance or diagnostics;
396	396	365 (3)develop, maintain, repair, or enhance a product or service for which such data was
397	397	366collected;
398	398	367 (4)to conduct internal research or analytics to improve a product or service for which
399	399	368such data was collected;
400	400	369 (5)perform inventory management or reasonable network management;
401	401	370 (6)protect against spam; or
402	402	371 (7)debug or repair errors that impair the functionality of a service or product for which
403	403	372such data was collected.
404	404	373 (c)A covered entity or service provider shall not:
405	405	374 (1) engage in deceptive advertising or marketing with respect to a product or service
406	406	375offered to an individual; or
407	407	376 (2)draw an individual into signing up for or acquiring a product or service through:— 20 of 64
408	408	377 (i)the use of any false, fictitious, fraudulent, or materially misleading statement or
409	409	378representation; or
410	410	379 (ii)the use of a dark pattern or deceptive design.
411	411	380 (d)Nothing in this chapter shall be construed or interpreted to:
412	412	381 (1)limit or diminish free speech rights of covered entities guaranteed under the First
413	413	382Amendment to the Constitution of the United States or under Article 16 of Massachusetts
414	414	383Declaration of Rights; or
415	415	384 (2)imply any purpose that is not enumerated in subsections (a) and (b), when applicable.
416	416	385 Section 3. Sensitive Covered Data
417	417	386 (a)A covered entity or service provider shall not:
418	418	387 (1)collect, process, or transfer a Social Security number, except when necessary to
419	419	388facilitate an extension of credit, authentication, fraud and identity fraud detection and prevention,
420	420	389the payment or collection of taxes, the enforcement of a contract between parties, or the
421	421	390prevention, investigation, or prosecution of fraud or illegal activity, or as otherwise required by
422	422	391state or federal law;
423	423	392 (2)collect or process sensitive covered data, except where such collection or processing is
424	424	393strictly necessary to provide or maintain a specific product or service requested by the individual
425	425	394to whom the covered data pertains or is strictly necessary to effect a purpose enumerated in
426	426	395paragraphs (1), (2), (3), (5), (7), (9), (10), (11), (13), of subsection (a) of section 2, and such data
427	427	396is only used for that purposes; 21 of 64
428	428	397 (3)transfer an individual’s sensitive covered data to a third party, unless:
429	429	398 (i)the transfer is made pursuant to the consent of the individual, given before each
430	430	399specific transfer takes place;
431	431	400 (ii)the transfer is necessary to comply with a legal obligation imposed by state or federal
432	432	401law, so long as such obligation preexisted the collection and previous notice of such obligation
433	433	402was provided to the individual to whom the data pertains;
434	434	403 (iii)the transfer is necessary to prevent an individual from imminent injury where the
435	435	404covered entity believes in good faith that the individual is at risk of death, serious physical
436	436	405injury, or serious health risk;
437	437	406 (iv)in the case of the transfer of a password, the transfer is necessary to use a designated
438	438	407password manager or is to a covered entity for the exclusive purpose of identifying passwords
439	439	408that are being reused across sites or accounts;
440	440	409 (v)in the case of the transfer of genetic information, the transfer is necessary to perform a
441	441	410medical diagnosis or medical treatment specifically requested by an individual, or to conduct
442	442	411medical research in accordance with federal and state law; or
443	443	412 (vi)in the case of transfer assets in case of a merger, if the transfer is made in accordance
444	444	413with paragraph (13) of subsection (a) of section (2); or
445	445	414 (4)process sensitive covered data for the purposes of targeted advertising.
446	446	415 Section 4. Data Subject Rights 22 of 64
447	447	416 (a)A covered entity shall provide an individual, after receiving a verified request from the
448	448	417individual, with the right to:
449	449	418 (1)access:
450	450	419 (i)in a human-readable format that a reasonable individual can understand and download
451	451	420from the internet and transmit freely, the covered data (except covered data in a back-up or
452	452	421archival system) of the individual making the request that is collected, processed, or transferred
453	453	422by the covered entity or any service provider of the covered entity within the 12 months
454	454	423preceding the request;
455	455	424 (ii)the categories of any third party or service provider, if applicable, and an option for
456	456	425consumers to obtain the names of any such third party as well as and the categories of any
457	457	426service providers to whom the covered entity has transferred the covered data of the individual,
458	458	427as well as the categories of sources from which the covered data was collected; and
459	459	428 (iii)a description of the purpose for which the covered entity transferred the covered data
460	460	429of the individual to a third party or service provider;
461	461	430 (2)correct any verifiable substantial inaccuracy or substantially incomplete information
462	462	431with respect to the covered data of the individual that is processed by the covered entity and
463	463	432instruct the covered entity to make reasonable efforts to notify all third parties or service
464	464	433providers to which the covered entity transferred such covered data of the corrected information;
465	465	434 (3)delete covered data of the individual that is processed by the covered entity and
466	466	435instruct the covered entity to make reasonable efforts to notify all third parties or service 23 of 64
467	467	436provider to which the covered entity transferred such covered data of the individual’s deletion
468	468	437request; and
469	469	438 (4)to the extent technically feasible, export to the individual or directly to another entity
470	470	439the covered data of the individual that is processed by the covered entity, including inferences
471	471	440linked or reasonably linkable to the individual but not including other derived data, without
472	472	441licensing restrictions that limit such transfers in:
473	473	442 (i)a human-readable format that a reasonable individual can understand and download
474	474	443from the internet and transmit freely; and
475	475	444 (ii)a portable, structured, interoperable, and machine-readable format.
476	476	445 (b)A covered entity may not condition, effectively condition, attempt to condition, or
477	477	446attempt to effectively condition the exercise of a right described in subsection (a) through:
478	478	447 (1)the use of any false, fictitious, fraudulent, or materially misleading statement or
479	479	448representation; or
480	480	449 (2) the use of any dark pattern or deceptive design.
481	481	450 (c)Subject to subsections (d) and (e), each request under subsection (a) shall be
482	482	451completed within 45 days of such request from an individual, unless it is demonstrably
483	483	452impracticable or impracticably costly to verify such individual’s request.
484	484	453 (d)A response period set forth in this subsection may be extended once by 20 additional
485	485	454days when reasonably necessary, considering the complexity and number of the individual’s
486	486	455requests, so long as the covered entity informs the individual of any such extension within the
487	487	456initial 45-day response period, together with the reason for the extension. 24 of 64
488	488	457 (e)A covered entity:
489	489	458 (1)shall provide an individual with the opportunity to exercise each of the rights
490	490	459described in subsection (a) and with respect to:
491	491	460 (i)the first two times that an individual exercises any right described in subsection (a) in
492	492	461any 12-month period, shall allow the individual to exercise such right free of charge; and
493	493	462 (ii)any time beyond the initial two times described in subparagraph (i), may allow the
494	494	463individual to exercise such right for a reasonable fee for each request.
495	495	464 (f)A covered entity may not permit an individual to exercise a right described in
496	496	465subsection (a), in whole or in part, if the covered entity:
497	497	466 (1)cannot reasonably verify that the individual making the request to exercise the right is
498	498	467the individual whose covered data is the subject of the request or an agent authorized to make
499	499	468such a request on the individual’s behalf;
500	500	469 (2)reasonably believes that the request is made to interfere with a contract between the
501	501	470covered entity and another individual;
502	502	471 (3)determines that the exercise of the right would require access to or correction of
503	503	472another individual’s sensitive covered data;
504	504	473 (4)reasonably believes that the exercise of the right would require the covered entity to
505	505	474engage in an unfair or deceptive practice under state law; or
506	506	475 (5)reasonably believes that the request is made to further fraud, support criminal activity,
507	507	476or the exercise of the right presents a data security threat. 25 of 64
508	508	477 (g)If a covered entity cannot reasonably verify that a request to exercise a right described
509	509	478in subsection (a) is made by the individual whose covered data is the subject of the request, the
510	510	479covered entity:
511	511	480 (1)may request that the individual making the request to exercise the right provide any
512	512	481additional information necessary for the sole purpose of verifying the identity of the individual;
513	513	482and
514	514	483 (2)may not process or transfer such additional information for any other purpose.
515	515	484 (h)A covered entity may decline, with adequate explanation to the individual, to comply
516	516	485with a request to exercise a right described in subsection (a), in whole or in part, that would:
517	517	486 (1)require the covered entity to retain any covered data collected for a single, one-time
518	518	487transaction, if such covered data is not processed or transferred by the covered entity for any
519	519	488purpose other than completing such transaction;
520	520	489 (2)be demonstrably impracticable or prohibitively costly to comply with, and the covered
521	521	490entity shall provide a description to the requestor detailing the inability to comply with the
522	522	491request;
523	523	492 (3)require the covered entity to attempt to re-identify any de-identified data;
524	524	493 (4)require the covered entity to either maintain covered data in an identifiable form or to
525	525	494collect, retain, or access any data in order to be capable of associating a verified individual
526	526	495request with covered data of such individual;
527	527	496 (5)result in the release of trade secrets or other privileged or confidential business
528	528	497information; 26 of 64
529	529	498 (6)require the covered entity to correct any covered data that cannot be reasonably
530	530	499verified as being inaccurate or incomplete;
531	531	500 (7)interfere with law enforcement, judicial proceedings, investigations, or reasonable
532	532	501efforts to guard against, detect, prevent, or investigate fraudulent, malicious, or unlawful activity,
533	533	502or enforce valid contracts;
534	534	503 (8)violate state or federal law or the rights and freedoms of another individual, including
535	535	504under the Constitution of the United States and Massachusetts Declaration of Rights;
536	536	505 (9)prevent a covered entity from being able to maintain a confidential record of deletion
537	537	506requests, maintained solely for the purpose of preventing covered data of an individual from
538	538	507being recollected after the individual submitted a deletion request and requested that the covered
539	539	508entity no longer collect, process, or transfer such data; or
540	540	509 (10)endanger the source of the data if such data could only have been obtained from a
541	541	510single identified source.
542	542	511 (i)A covered entity may decline, with adequate explanation to the individual, to comply
543	543	512with a request for deletion pursuant to paragraph (3) of subsection (a) if such request:
544	544	513 (1)unreasonably interferes with the provision of products or services by the covered
545	545	514entity to another person it currently serves;
546	546	515 (2)requests to delete covered data that relates to (A) a public figure, public official, or
547	547	516limited-purpose public figure; or (B) any other individual that has no reasonable expectation of
548	548	517privacy with respect to such data; 27 of 64
549	549	518 (3)requests to delete covered data reasonably necessary to perform a contract between the
550	550	519covered entity and the individual;
551	551	520 (4)requests to delete covered data that the covered entity needs to retain in order to
552	552	521comply with professional ethical obligations;
553	553	522 (5)requests to delete covered data that the covered entity reasonably believes may be
554	554	523evidence of unlawful activity or an abuse of the covered entity’s products or service; or
555	555	524 (6) is directed to a consumer reporting agency, as defined in 15 U.S.C. 1681a(f) and
556	556	525targets covered data that is used for the purpose of evaluating a consumer’s creditworthiness,
557	557	526credit standing, credit capacity, character, general reputation, personal characteristics or mode of
558	558	527living, subject to and strictly maintained in accordance with, the provisions of the Fair Credit
559	559	528Reporting Act, 15 U.S.C. 1681 et seq.
560	560	529 (j)In a circumstance that would allow a denial pursuant to this section, a covered entity
561	561	530shall partially comply with the remainder of the request if it is possible and not unduly
562	562	531burdensome to do so.
563	563	532 (k)The receipt of a large number of verified requests, on its own, may not be considered
564	564	533to render compliance with a request demonstrably impracticable.
565	565	534 (l)A covered entity shall facilitate the ability of individuals to make requests under
566	566	535subsection (a) in any language in which the covered entity provides a product or service. The
567	567	536mechanisms by which a covered entity enables individuals to make requests under subsection (a)
568	568	537shall be readily accessible and usable by individuals with disabilities. Such mechanisms shall, at 28 of 64
569	569	538a minimum, be accessible in the same or a similar location as the privacy policies required by
570	570	539section 9 of this chapter.
571	571	540 Section 5. Consent Practices
572	572	541 (a)The requirements of this chapter with respect to a request for consent from a covered
573	573	542entity or service provider to an individual are the following:
574	574	543 (1)The request for consent shall be provided to the individual in a clear and conspicuous
575	575	544standalone disclosure made through the primary medium used to offer the covered entity’s
576	576	545product or service, or, in the case that the product or service is not offered in a medium that does
577	577	546permits the making of the request under this paragraph, another medium regularly used in
578	578	547conjunction with the covered entity’s product or service;
579	579	548 (2)The request includes a description of the processing purpose for which the individual’s
580	580	549consent is sought by:
581	581	550 (i)clearly stating the specific categories of covered data that the covered entity shall
582	582	551collect, process, and transfer necessary to effectuate the processing purpose; and
583	583	552 (ii)including a prominent heading and is reasonably understandable so that an individual
584	584	553can identify and understand the processing purpose for which consent is sought and the covered
585	585	554data to be collected, processed, or transferred by the covered entity for such processing purpose;
586	586	555 (3)The request clearly explains the individual’s applicable rights related to consent;
587	587	556 (4)The request is made in a manner reasonably accessible to and usable by individuals
588	588	557with disabilities; 29 of 64
589	589	558 (5)The request is made available to the individual in each covered language in which the
590	590	559covered entity provides a product or service for which authorization is sought;
591	591	560 (6)The option to refuse consent shall be at least as prominent as the option to accept, and
592	592	561the option to refuse consent shall take the same number of steps or fewer as the option to accept;
593	593	562 (7)Processing or transferring any covered data collected pursuant to consent for a
594	594	563different processing purpose than that for which consent was obtained shall require consent for
595	595	564the subsequent processing purpose;
596	596	565 (8)The request for consent must be displayed at or before the point of collection; and
597	597	566 (9) The request must be accompanied by a copy of the covered entity’s or service
598	598	567provider’s privacy policy subject to the requirements of section 9, which may be included with
599	599	568the request as a hyperlink, and, if the covered entity is a large data holder, shall also include the
600	600	569short form privacy policy as required by subsection (h) of section 9.
601	601	570 (b)A covered entity shall not infer that an individual has provided consent to a practice
602	602	571from the inaction of the individual or the individual’s continued use of a service or product
603	603	572provided by the covered entity.
604	604	573 (c)A covered entity shall not obtain or attempt to obtain the consent of an individual
605	605	574through:
606	606	575 (1) the use of any false, fictitious, fraudulent, or materially misleading statement or
607	607	576representation;
608	608	577 (2) the use of any dark pattern or deceptive design; or 30 of 64
609	609	578 (3) conditioning or limiting access to an individual’s account.
610	610	579 Section 6. Privacy by Design
611	611	580 (a)A covered entity or service provider shall establish, implement, and maintain
612	612	581reasonable policies, practices, and procedures that reflect the role of the covered entity or service
613	613	582provider in the collection, processing, and transferring of covered data and that:
614	614	583 (1)consider applicable federal and state laws, rules, or regulations related to covered data
615	615	584the covered entity or service provider collects, processes, or transfers;
616	616	585 (2)identify, assess, and mitigate privacy risks related to minors;
617	617	586 (3)mitigate privacy risks related to the products and services of the covered entity or the
618	618	587service provider, including in the design, development, and implementation of such products and
619	619	588services, considering the role of the covered entity or service provider and the information
620	620	589available to it;
621	621	590 (4)evaluate the length of time that covered data shall be retained and circumstances under
622	622	591which covered data shall be deleted, de-identified, or otherwise modified with respect to the
623	623	592purposes for which it was collected or processed and the sensitivity of the covered data; and
624	624	593 (5)implement reasonable training and safeguards within the covered entity and service
625	625	594provider to promote compliance with all privacy laws applicable to covered data the covered
626	626	595entity collects, processes, or transfers or covered data the service provider collects, processes, or
627	627	596transfers on behalf of the covered entity and mitigate privacy risks taking into account the role of
628	628	597the covered entity or service provider and the information available to it. 31 of 64
629	629	598 (b)The policies, practices, and procedures established by a covered entity or service
630	630	599provider under subsection (a), shall correspond with, as applicable:
631	631	600 (1)the size of the covered entity or the service provider and the nature, scope, and
632	632	601complexity of the activities engaged in by the covered entity or service provider, including
633	633	602whether the covered entity or service provider is a large data holder, nonprofit organization,
634	634	603small business, third party, or data broker, considering the role of the covered entity or service
635	635	604provider and the information available to it;
636	636	605 (2)the sensitivity of the covered data collected, processed, or transferred by the covered
637	637	606entity or service provider;
638	638	607 (3)the volume of covered data collected, processed, or transferred by the covered entity
639	639	608or service provider;
640	640	609 (4)the number of individuals and devices to which the covered data collected, processed,
641	641	610or transferred by the covered entity or service provider relates; and
642	642	611 (5)the cost of implementing such policies, practices, and procedures in relation to the
643	643	612risks and nature of the covered data.
644	644	613 Section 7. Pricing
645	645	614 (a) A covered entity may not retaliate against an individual for:
646	646	615 (1)exercising any of the rights guaranteed by this chapter, or any regulations promulgated
647	647	616under this chapter; or 32 of 64
648	648	617 (2)refusing to agree to collection or processing of covered data for a separate product or
649	649	618service, including denying goods or services, charging different prices or rates for goods or
650	650	619services, or providing a different level of quality of goods or services.
651	651	620 (b) Nothing in subsection (a) shall be construed to:
652	652	621 (1)prohibit the relation of the price of a service or the level of service provided to an
653	653	622individual to the provision, by the individual, of financial information that is necessarily
654	654	623collected and processed only for the purpose of initiating, rendering, billing for, or collecting
655	655	624payment for a service or product requested by the individual;
656	656	625 (2)prohibit a covered entity from offering a different price, rate, level, quality or selection
657	657	626of goods or services to an individual, including offering goods or services for no fee, if the
658	658	627offering is in connection with an individual’s voluntary participation in a bona fide loyalty,
659	659	628rewards, premium features, discount or club card program, provided, that the covered entity may
660	660	629not sell covered data to a third-party as part of such a program unless:
661	661	630 (i)the sale is reasonably necessary to enable the third party to provide a benefit to which
662	662	631the consumer is entitled;
663	663	632 (ii)the sale of personal data to third parties is clearly disclosed in the terms of the
664	664	633program; and
665	665	634 (iii)the third party uses the personal data only for purposes of facilitating such a benefit to
666	666	635which the consumer is entitled and does not retain or otherwise use or disclose the personal data
667	667	636for any other purpose; 33 of 64
668	668	637 (3)require a covered entity to provide a bona fide loyalty program that would require the
669	669	638covered entity to collect, process, or transfer covered data that the covered entity otherwise
670	670	639would not collect, process, or transfer;
671	671	640 (4)prohibit a covered entity from offering a financial incentive or other consideration to
672	672	641an individual for participation in market research;
673	673	642 (5)prohibit a covered entity from offering different types of pricing or functionalities with
674	674	643respect to a product or service based on an individual’s exercise of a right to delete; or
675	675	644 (6)prohibit a covered entity from declining to provide a product or service insofar as the
676	676	645collection and processing of covered data is strictly necessary for such product or service.
677	677	646 (c) Notwithstanding the provisions in this section, no covered entity may offer different
678	678	647types of pricing that are unjust, unreasonable, coercive, or usurious in nature.
679	679	648 Section 8. Civil Rights Protections
680	680	649 (a) A covered entity or a service provider may not collect, process, or transfer covered
681	681	650data or publicly available data in a manner that discriminates in or otherwise makes unavailable
682	682	651the equal enjoyment of goods or services (i.e., has a disparate impact) on the basis of race, color,
683	683	652religion, national origin, sex, sexual orientation, gender identity, disability, genetic information,
684	684	653pregnancy or a condition related to said pregnancy including, but not limited to, lactation or the
685	685	654need to express breast milk for a nursing child, ancestry or status as a veteran, or any other basis
686	686	655protected by chapter 151B.
687	687	656 (b) This subsection shall not apply to:
688	688	657 (1) the collection, processing, or transfer of covered data for the purpose of: 34 of 64
689	689	658 (i) covered entity’s or a service provider’s self-testing to prevent or mitigate unlawful
690	690	659discrimination; or
691	691	660 (ii) diversifying an applicant, participant, or customer pool; or
692	692	661 (2) any private club or group not open to the public, as described in section 201(e) of the
693	693	662Civil Rights Act of 1964, 42 U.S.C. section 2000a(e).
694	694	663 (c) Whenever the Attorney General obtains information that a covered entity or service
695	695	664provider may have collected, processed, or transferred covered data in violation of subsection
696	696	665(a), the Attorney General shall initiate enforcement actions relating to such violation in
697	697	666accordance with section 12 of this chapter.
698	698	667 (1) Not later than 3 years after the date of enactment of this chapter, and annually no
699	699	668later than December 31 of each year thereafter, the Attorney General shall submit to the joint
700	700	669committee on ways and means, the joint committee on racial equity, civil rights, and inclusion,
701	701	670and the joint committee on advanced information technology, the internet and cybersecurity a
702	702	671report that includes a summary of the enforcement actions taken under this subsection.
703	703	672 Section 9. Privacy Policy
704	704	673 (a)Each covered entity or service provider shall make publicly available, in a clear and
705	705	674conspicuous location on its homepage, a reasonably understandable and not misleading privacy
706	706	675policy that provides a detailed and accurate representation of the data collection, processing, and
707	707	676transfer activities of the covered entity or service provider.
708	708	677 (b)The privacy policy must be provided in a manner that is reasonably accessible to and
709	709	678usable by individuals with disabilities. The policy shall be made available to the public in each 35 of 64
710	710	679covered language in which the covered entity or service provider provides a product or service
711	711	680that is subject to the privacy policy; or carries out activities related to such product or service.
712	712	681 (c)The privacy policy must include, at a minimum:
713	713	682 (1)The identity and the contact information of:
714	714	683 (i)the covered entity or service provider to which the privacy policy applies, including the
715	715	684covered entity’s or service provider’s points of contact and generic electronic mail addresses, as
716	716	685applicable for privacy and data security inquiries;
717	717	686 (ii)any other entity within the same corporate structure as the covered entity or service
718	718	687provider to which covered data is transferred by the covered entity;
719	719	688 (2)the categories of covered data the covered entity or service provider collects or
720	720	689processes;
721	721	690 (3)the processing purposes for each category of covered data the covered entity or service
722	722	691provider collects or processes;
723	723	692 (4)whether the covered entity or service provider transfers covered data and, if so, each
724	724	693category of service provider and third party to which the covered entity or service provider
725	725	694transfers covered data, the name of each data broker to which the covered entity or service
726	726	695provider transfers covered data, and the purposes for which such data is transferred to such
727	727	696categories of service providers and third parties or third-party collecting entities, except for a
728	728	697transfer to a governmental entity pursuant to a court order or law that prohibits the covered entity
729	729	698or service provider from disclosing such transfer; 36 of 64
730	730	699 (5)The length of time the covered entity or service provider intends to retain each
731	731	700category of covered data, including sensitive covered data, or, if it is not possible to identify that
732	732	701timeframe, the criteria used to determine the length of time the covered entity or service provider
733	733	702intends to retain categories of covered data;
734	734	703 (6)A prominent, clear, and reasonably understandable description of how an individual
735	735	704can exercise the rights described in this chapter;
736	736	705 (7)A general description of the covered entity’s or service provider’s data security
737	737	706practices; and
738	738	707 (8)The effective date of the privacy policy.
739	739	708 (d)If a covered entity or service provider makes a material change to its privacy policy or
740	740	709practices, the covered entity or service provider shall notify each individual affected by such
741	741	710material change before implementing the material change with respect to any prospectively
742	742	711collected covered data and, except as provided in paragraphs (1) through (13) of section 2,
743	743	712subsection (a), provide a reasonable opportunity for each individual to withdraw consent to any
744	744	713further materially different collection, processing, or transfer of previously collected covered
745	745	714data under the changed policy.
746	746	715 (e)A covered entity or service provider shall take all reasonable electronic measures to
747	747	716provide direct notification regarding material changes to the privacy policy to each affected
748	748	717individual, in each covered language in which the privacy policy is made available, and taking
749	749	718into account available technology and the nature of the relationship. 37 of 64
750	750	719 (f)Nothing in this section shall be construed to affect the requirements for covered
751	751	720entities or service providers under other sections of this chapter.
752	752	721 (g)Each large data holder shall retain copies of previous versions of its privacy policy for
753	753	722at least 10 years beginning after the date of enactment of this chapter and publish them on its
754	754	723website. Such large data holder shall make publicly available, in a clear, conspicuous, and
755	755	724readily accessible manner, a log describing the date and nature of each material change to its
756	756	725privacy policy over the past 10 years. The descriptions shall be sufficient for a reasonable
757	757	726individual to understand the material effect of each material change. The obligations in this
758	758	727paragraph shall not apply to any previous versions of a large data holder’s privacy policy, or any
759	759	728material changes to such policy, that precede the date of enactment of this Act.
760	760	729 (h)In addition to the privacy policy required under subsection (a), a large data holder that
761	761	730is a covered entity shall provide a short form notice of no more than 500 words in length that
762	762	731includes the main features of their data practices.
763	763	732 (i)Each covered entity or service provider that collects, processes, or transfers biometric
764	764	733data shall provide a separate privacy policy detailing the collection, processing, and transfer of
765	765	734such biometric data, subject to the provisions of subsections (a) through (h) of this section.
766	766	735 (j)Each covered entity or service provider that collects, processes, or transfers specific
767	767	736precise geolocation information shall provide a separate privacy policy detailing the collection,
768	768	737processing, and transfer of such precise geolocation information, subject to the provisions of
769	769	738subsections (a) through (h) of this section.
770	770	739 Section 10. Advanced Data Rights 38 of 64
771	771	740 (a)A covered entity or service provider shall provide an individual with a clear and
772	772	741conspicuous, easy-to-execute means to withdraw consent. Those means shall be at least as easy
773	773	742to execute by an individual as the means to provide consent and shall, at a minimum, be
774	774	743accessible in the same or a substantially similar location as the privacy policies required by
775	775	744section 9.
776	776	745 (b)Right to opt out of covered data transfers. A covered entity:
777	777	746 (1)may not transfer or direct the transfer of the covered data of an individual to a
778	778	747third party if the individual or an agent authorized to make such a request on the individual’s
779	779	748behalf objects to the transfer; and
780	780	749 (2)shall allow an individual to object to such a transfer through an opt out
781	781	750mechanism, at a minimum, accessible in the same or a substantially similar location as the
782	782	751privacy policies required by section 9.
783	783	752 (c)Right to opt out of targeted advertising. A covered entity or service provider that
784	784	753directly delivers a targeted advertisement shall:
785	785	754 (1)prior to engaging in targeted advertising to an individual or device and at all
786	786	755times, thereafter, provide such individual with a clear and conspicuous means to opt out of
787	787	756targeted advertising;
788	788	757 (2)abide by any opt out designation by an individual or an agent authorized to make
789	789	758such a request on the individual’s behalf with respect to targeted advertising and notify the
790	790	759covered entity that directed the service provider to deliver the targeted advertisement of the opt
791	791	760out decision; and 39 of 64
792	792	761 (3)allow an individual to make an opt out designation with respect to targeted
793	793	762advertising through an opt out mechanism, at a minimum, accessible in the same or a
794	794	763substantially similar location as the privacy policies required by section 9.
795	795	764 (d)Right to opt out of profiling. A covered entity or service provider that engages in
796	796	765profiling in furtherance of automated decisions that produce legal or similarly significant effects
797	797	766on an individual shall:
798	798	767 (1)provide such individual with a clear and conspicuous means to opt out of such
799	799	768profiling; and
800	800	769 (2)allow an individual to object to such profiling through an opt out mechanism, at a
801	801	770minimum, accessible in the same or a substantially similar location as the privacy policies
802	802	771required by section 9.
803	803	772 (e)A covered entity or service provider that receives an opt out notification pursuant
804	804	773to this section shall abide by such opt out designations in a commercially reasonable timeframe.
805	805	774Such covered entity or service provider shall notify any other person that directed the covered
806	806	775entity or service provider to either serve, deliver, or otherwise process targeted advertisements or
807	807	776to engage in profiling in furtherance of automated decisions of the individual's opt out decision
808	808	777within a commercially reasonable timeframe.
809	809	778 (f)A covered entity or service provider may not condition, effectively condition,
810	810	779attempt to condition, or attempt to effectively condition the exercise of any individual right under
811	811	780this section through: 40 of 64
812	812	781 (1)the use of any false, fictitious, fraudulent, or materially misleading statement or
813	813	782representation; or
814	814	783 (2)the use of a dark pattern or deceptive design.
815	815	784 (g)A covered entity shall notify third parties who had access to an individual’s
816	816	785covered data when the individual exercises any of the rights established in this section. The third
817	817	786party shall comply with the request to opt out of sale or data transfer forwarded to them from a
818	818	787covered entity that provided, made available, or authorized the collection of the individual’s
819	819	788covered data. The third party shall comply with the request in the same way a covered entity is
820	820	789required to comply with the request. The third party shall no longer retain, use, or disclose the
821	821	790personal information unless the third party becomes a service provider or a covered entity in the
822	822	791terms of this chapter.
823	823	792 (h)A covered entity that communicates an individual’s opt out request to a third
824	824	793party or service provider pursuant to this section shall not be liable under this chapter if the third
825	825	794party or service provider receiving the opt-out request violates the restrictions set forth in this
826	826	795chapter; provided, however, that at the time of communicating the opt-out request, the covered
827	827	796entity does not know or should not reasonably know that the third party or service provider
828	828	797intends to commit such a violation.
829	829	798 (i)If an individual decides to opt out of the processing of the individual’s covered
830	830	799data for the purposes specified in subsections (b), (c), or (d) and such decision conflicts with the
831	831	800individual’s existing, voluntary participation in a covered entity’s bona fide loyalty, rewards,
832	832	801premium features, discounts or club card program, the covered entity shall comply with the
833	833	802individual’s opt out preference signal but may notify the individual of the conflict and provide 41 of 64
834	834	803the individual with the choice to opt back into such processing for participation in such a
835	835	804program; provided, however, that the controller shall not use dark patterns or deceptive design to
836	836	805coerce the individual to opt back into such processing related to that individual’s participation in
837	837	806such program.
838	838	807 (j)A covered entity or service provider shall not require an individual to create an
839	839	808account for the purposes of exercising any right under this chapter.
840	840	809 Section 11. Service Providers
841	841	810 (a)A service provider:
842	842	811 (1)shall adhere to the instructions of a covered entity and only collect, process, and
843	843	812transfer service provider data to the extent necessary and proportionate to provide a service
844	844	813requested by the covered entity, as set out in the contract required by subsection (b), and this
845	845	814paragraph does not require a service provider to collect, process, or transfer covered data if the
846	846	815service provider would not otherwise do so;
847	847	816 (2)may not collect, process, or transfer service provider data if the service provider has
848	848	817actual knowledge that a covered entity violated this chapter with respect to such data;
849	849	818 (3)shall assist a covered entity in responding to a request made by an individual under
850	850	819this chapter, by either:
851	851	820 (i)providing appropriate technical and organizational measures, considering the nature of
852	852	821the processing and the information reasonably available to the service provider, for the covered
853	853	822entity to comply with such request for service provider data; or 42 of 64
854	854	823 (ii)fulfilling a request by a covered entity to execute an individual rights request that the
855	855	824covered entity has determined should be complied with, by either:
856	856	825 (A)complying with the request pursuant to the covered entity’s instructions; or
857	857	826 (B)providing written verification to the covered entity that it does not hold covered data
858	858	827related to the request, that complying with the request would be inconsistent with its legal
859	859	828obligations, or that the request falls within an exception under this chapter;
860	860	829 (4)may engage another service provider for purposes of processing service provider data
861	861	830on behalf of a covered entity only after providing that covered entity with notice and pursuant to
862	862	831a written contract that requires such other service provider to satisfy the obligations of the
863	863	832service provider with respect to such service provider data, including that the other service
864	864	833provider be treated as a service provider under this chapter;
865	865	834 (5)shall, upon the reasonable request of the covered entity, make available to the covered
866	866	835entity information necessary to demonstrate the compliance of the service provider with the
867	867	836requirements of this chapter, which may include making available a report of an independent
868	868	837assessment arranged by the service provider on terms agreed to by the service provider and the
869	869	838covered entity or providing information necessary to enable the covered entity to conduct and
870	870	839document a privacy impact assessment;
871	871	840 (6)shall, at the covered entity’s direction, delete or return all covered data to the covered
872	872	841entity as requested at the end of the provision of services, unless retention of the covered data is
873	873	842required by law; 43 of 64
874	874	843 (7)shall develop, implement, and maintain reasonable administrative, technical, and
875	875	844physical safeguards that are designed to protect the security and confidentiality of covered data
876	876	845the service provider processes consistent with chapter 93H of the general laws; and
877	877	846 (8)shall allow and cooperate with reasonable assessments by the covered entity or the
878	878	847covered entity’s designated assessor. Alternatively, the service provider may arrange for a
879	879	848qualified and independent assessor to conduct an assessment of the service provider’s policies
880	880	849and technical and organizational measures in support of the obligations under this chapter using
881	881	850an appropriate and accepted control standard or framework and assessment procedure for such
882	882	851assessments. The service provider shall provide a report of such assessment to the covered entity
883	883	852upon request.
884	884	853 (b)A person or entity may only act as a service provider pursuant to a written contract
885	885	854between the covered entity and the service provider, or a written contract between one service
886	886	855provider and a second service provider as described under paragraph (4) of subsection (a), if the
887	887	856contract:
888	888	857 (1)sets forth the data processing procedures of the service provider with respect to
889	889	858collection, processing, or transfer performed on behalf of the covered entity or service provider;
890	890	859 (2)clearly sets forth:
891	891	860 (i)instructions for collecting, processing, or transferring data;
892	892	861 (ii)the nature and purpose of collecting, processing, or transferring;
893	893	862 (iii)the type of data subject to collecting, processing, or transferring;
894	894	863 (iv)the duration of processing; and 44 of 64
895	895	864 (v)the rights and obligations of both parties, including a method by which the service
896	896	865provider shall notify the covered entity of material changes to its privacy practices;
897	897	866 (3)does not relieve a covered entity or a service provider of any requirement or liability
898	898	867imposed on such covered entity or service provider under this chapter; and
899	899	868 (4)prohibits:
900	900	869 (i)collecting, processing, or transferring covered data in contravention to subsection (a);
901	901	870and
902	902	871 (ii)combining service provider data with covered data which the service provider receives
903	903	872from or on behalf of another person or persons or collects from the interaction of the service
904	904	873provider with an individual, provided that such combining is not necessary to effectuate a
905	905	874purpose described in paragraphs (1) through (13) of section 2(a) and is otherwise permitted under
906	906	875the contract required by this subsection.
907	907	876 (c)Each service provider shall retain copies of previous contracts entered into in
908	908	877compliance with this subsection with each covered entity to which it provides requested products
909	909	878or services.
910	910	879 (d)The classification of a person or entity as a covered entity or as a service provider and
911	911	880the relationship between covered entities and service providers are regulated by the following
912	912	881provisions:
913	913	882 (1)Determining whether a person is acting as a covered entity or service provider with
914	914	883respect to a specific processing of covered data is a fact-based determination that depends upon
915	915	884the context in which such data is processed. 45 of 64
916	916	885 (2)A person or entity that is not limited in its processing of covered data pursuant to the
917	917	886instructions of a covered entity, or that fails to adhere to such instructions, is a covered entity and
918	918	887not a service provider with respect to a specific processing of covered data. A service provider
919	919	888that continues to adhere to the instructions of a covered entity with respect to a specific
920	920	889processing of covered data remains a service provider. If a service provider begins, alone or
921	921	890jointly with others, determining the purposes and means of the processing of covered data, it is a
922	922	891covered entity and not a service provider with respect to the processing of such data.
923	923	892 (3)A covered entity that transfers covered data to a service provider or a service provider
924	924	893that transfers covered data to a covered entity or another service provider, in compliance with the
925	925	894requirements of this chapter, is not liable for a violation of this chapter by the service provider or
926	926	895covered entity to whom such covered data was transferred, if at the time of transferring such
927	927	896covered data, the covered entity or service provider did not have actual knowledge that the
928	928	897service provider or covered entity would violate this chapter.
929	929	898 (4)A covered entity or service provider that receives covered data in compliance with the
930	930	899requirements of this chapter is not in violation of this chapter as a result of a violation by a
931	931	900covered entity or service provider from which such data was received.
932	932	901 (e)A third party:
933	933	902 (1)shall not process third party data for a processing purpose other than the processing
934	934	903purpose for which
935	935	904 (i)the individual gave consent or to effect a purpose enumerated in paragraph (2), (3), or
936	936	905(5) of subsection (a) of section 2 in the case of sensitive covered data; or 46 of 64
937	937	906 (ii)the covered entity made a disclosure pursuant to their privacy policy and in the case of
938	938	907data that is not sensitive covered data; and
939	939	908 (2)may reasonably rely on representations made by the covered entity that transferred the
940	940	909third-party data if the third party conducts reasonable due diligence on the representations of the
941	941	910covered entity and finds those representations to be credible.
942	942	911 (f)Solely for the purposes of this section, the requirements for service providers to
943	943	912contract with, assist, and follow the instructions of covered entities shall be read to include
944	944	913requirements to contract with, assist, and follow the instructions of a government entity if the
945	945	914service provider is providing a service to a government entity.
946	946	915 Section 12. Enforcement
947	947	916 (a) A violation of this chapter constitutes an injury to that individual and shall be deemed
948	948	917an unfair or deceptive act or practice in the conduct of trade or commerce under chapter 93A,
949	949	918provided that if the court finds for any petitioner, subject to section 9, paragraph (3) of such
950	950	919chapter, recovery under such chapter shall be in the amount of actual damages or $5,000,
951	951	920whichever is higher.
952	952	921 (b) Private right of action. Any individual alleging a violation of this chapter by a covered
953	953	922entity, service provider, or third party that is a large data holder may bring a civil action in the
954	954	923superior court or any court of competent jurisdiction.
955	955	924 (c) An individual protected by this chapter may not be required, as a condition of service
956	956	925or otherwise, to file an administrative complaint with the attorney general or to accept mandatory
957	957	926arbitration of a claim under this chapter. 47 of 64
958	958	927 (d) The civil action shall be directed to the covered entity, service provider, and third-
959	959	928parties alleged to have committed the violation.
960	960	929 (e) In a civil action in which the plaintiff prevails, the court may award:
961	961	930 (1)liquidated damages of not less than 0.15% of the annual global revenue of the covered
962	962	931entity or $15,000 per violation, whichever is greater;
963	963	932 (2)punitive damages; and
964	964	933 (3)any other relief, including but not limited to an injunction, that the court deems to be
965	965	934appropriate.
966	966	935 (f) In addition to any relief awarded pursuant to the previous paragraph, the court shall
967	967	936award reasonable attorney’s fees and costs to any prevailing plaintiff.
968	968	937 (g) The Attorney General may bring an action pursuant to section 4 of chapter 93A
969	969	938against a covered entity, service provider, or third party to remedy violations of this chapter and
970	970	939for other relief, including but not limited to an injunction, that may be appropriate, subject to the
971	971	940following:
972	972	941 (1)If the court finds that the defendant has employed any method, act, or practice
973	973	942which they knew or should have known to be in violation of this chapter, the court may require
974	974	943the defendant to pay to the commonwealth a civil penalty of:
975	975	944 (i) not less than 0.15% of the annual global revenue or $15,000, whichever is greater, per
976	976	945violation; and 48 of 64
977	977	946 (ii) not more than 4% of the annual global revenue of the covered entity, service provider,
978	978	947or third-party or $20,000,000, whichever is greater, per action if such action includes multiple
979	979	948violations to multiple individuals;
980	980	949 (2)If the court finds that a defendant has engaged in flagrant, willful and repeat
981	981	950violations of this chapter, the court may issue an order to suspend or prohibit a covered entity,
982	982	951service provider, or third party from operating in the commonwealth or collecting, processing,
983	983	952and transferring covered data and any other relief, including but not limited to an injunction, that
984	984	953the court deems to be appropriate.
985	985	954 (3)In addition to any penalty or relief awarded under this subsection, a defendant
986	986	955violating this chapter shall also be liable to the commonwealth for the reasonable costs of
987	987	956investigation and litigation of such violation, including reasonable attorneys’ fees and reasonable
988	988	957expert fees.
989	989	958 (h) When calculating awards and civil penalties in all the actions in this section, the court
990	990	959shall consider:
991	991	960 (1)the number of affected individuals;
992	992	961 (2)the severity of the violation or noncompliance;
993	993	962 (3)the risks caused by the violation or noncompliance;
994	994	963 (4)whether the violation or noncompliance was part of a pattern of noncompliance
995	995	964and violations and not an isolated instance;
996	996	965 (5)whether the violation or noncompliance was willful and not the result of error; 49 of 64
997	997	966 (6)the precautions taken by the defendant to prevent a violation;
998	998	967 (7)the number of administrative actions, lawsuits, settlements, and consent-decrees
999	999	968under this chapter involving the defendant;
1000	1000	969 (8)the number of administrative actions, lawsuits, settlements, and consent-decrees
1001	1001	970involving the defendant in other states and at the federal level in issues involving information
1002	1002	971privacy; and
1003	1003	972 (9)the international record of the defendant when it comes to information privacy
1004	1004	973issues.
1005	1005	974 (i) It is a violation of this chapter for a covered entity or anyone else acting on behalf of a
1006	1006	975covered entity to retaliate against an individual who makes a good-faith complaint that there has
1007	1007	976been a failure to comply with any part of this chapter.
1008	1008	977 (1)An injured individual by a violation of the previous paragraph may bring a civil
1009	1009	978action for monetary damages and injunctive relief in any court of competent jurisdiction.
1010	1010	979 (j) Any provision of a contract or agreement of any kind, including a covered entity’s
1011	1011	980terms of service or a privacy policy, including the short-form privacy notice required under
1012	1012	981section 9 subsection (h) that purports to waive or limit in any way an individual’s rights under
1013	1013	982this chapter, including but not limited to any right to a remedy or means of enforcement shall be
1014	1014	983deemed contrary to public policy and shall be void and unenforceable.
1015	1015	984 (k) No private or government action brought pursuant to this chapter shall preclude any
1016	1016	985other action under this chapter.
1017	1017	986 Section 13. Information Non-applicability 50 of 64
1018	1018	987 (a)This chapter shall not apply to only the following specific types of information:
1019	1019	988 (1)personal information captured from a patient by a health care provider or health
1020	1020	989care facility or biometric information collected, processed, used, or stored exclusively for
1021	1021	990medical education or research, public health or epidemiological purposes, health care treatment,
1022	1022	991insurance, payment, or operations under the federal Health Insurance Portability and
1023	1023	992Accountability Act of 1996, or to X-ray, roentgen process, computed tomography, MRI, PET
1024	1024	993scan, mammography, or other image or film of the human anatomy used exclusively to diagnose,
1025	1025	994prognose, or treat an illness or other medical condition or to further validate scientific testing or
1026	1026	995screening;
1027	1027	996 (2)nonpublic personal information that is processed by a financial institution subject
1028	1028	997to, and in compliance with, the Gramm-Leach-Bliley Act, 15 U.S.C. 6801 et seq., as amended
1029	1029	998from time to time;
1030	1030	999 (3)personal information regulated by the federal Family Educational Rights and
1031	1031	1000Privacy Act, 20 U.S.C. 1232g et seq., as amended from time to time;
1032	1032	1001 (4)individuals sharing their personal contact information such as email addresses
1033	1033	1002with other individuals in the workplace, or other social, political, or similar settings where the
1034	1034	1003purpose of the information is to facilitate communication among such individuals, provided that
1035	1035	1004this chapter shall cover any processing of such contact information beyond interpersonal
1036	1036	1005communication; or
1037	1037	1006 (5)covered entities’ publication of entity-based member or employee contact
1038	1038	1007information where such publication is intended to allow members of the public to contact such
1039	1039	1008member or employee in the ordinary course of the entity’s operations. 51 of 64
1040	1040	1009 (b)For the purpose of this section, the burden of proving that information is exempt
1041	1041	1010from the provisions of this chapter shall be upon the party claiming the exemption.
1042	1042	1011 Section 14. Implementation
1043	1043	1012 (a) The Attorney General shall adopt rules and regulations for the implementation,
1044	1044	1013administration, and enforcement of this chapter and may from time to time amend or repeal said
1045	1045	1014regulations. The rules and regulations shall include but are not limited to:
1046	1046	1015 (1) establishing or adopting baseline technical requirements that determine if a given
1047	1047	1016dataset has been or can be considered sufficiently de-identified;
1048	1048	1017 (2) establishing reasonable policies, practices, and procedures that satisfy the
1049	1049	1018requirements set forward in Section 6;
1050	1050	1019 (3) establishing a nonexclusive list of practices that constitute deceptive designs or dark
1051	1051	1020patterns or otherwise violate the requirements set forward in Section 5; and
1052	1052	1021 (4) further defining when a covered entity is a data broker and additional compliance
1053	1053	1022requirements for data brokers under this chapter.
1054	1054	1023 (b) The Attorney General may:
1055	1055	1024 (1)gather facts and information applicable to the Attorney General’s obligation to enforce
1056	1056	1025this chapter and ensure its compliance, consistent with the provisions of section 4 of chapter
1057	1057	102693A;
1058	1058	1027 (2) conduct investigations for possible violations of this chapter; and 52 of 64
1059	1059	1028 (3) refer cases for civil enforcement or criminal prosecution to the appropriate federal,
1060	1060	1029state, or local authorities.
1061	1061	1030 (c) The Attorney General shall, within one year after the effective date of chapter, create
1062	1062	1031an official internet website that outlines the provisions of this chapter and provides individuals
1063	1063	1032with a form or other mechanism to report violations of this chapter to the Office of the Attorney
1064	1064	1033General. The Attorney General shall update the website at least annually. The website shall
1065	1065	1034include statistics on the Attorney General’s enforcement actions undertaken under this chapter,
1066	1066	1035broken down by fiscal year, including but not limited to:
1067	1067	1036 (1) number of complaints received;
1068	1068	1037 (2) number of open investigations;
1069	1069	1038 (3) number of closed investigations; and
1070	1070	1039 (4) a summary of case dispositions in which a violation of this chapter occurred.
1071	1071	1040 Section 15. Authorized Agents
1072	1072	1041 (a)An individual may designate another person to serve as the individual’s
1073	1073	1042authorized agent to exercise the individual’s rights under section 4, to withdraw consent under
1074	1074	1043section 10, or opt out of the processing of such individual's covered data for one or more of the
1075	1075	1044purposes specified in section 10.
1076	1076	1045 (b)An individual may designate an authorized agent as provided in subsection (a) by
1077	1077	1046technological means, including, but not limited to, an Internet link or a browser setting, browser
1078	1078	1047extension or global device setting that indicates the individual’s intent to opt out processing for
1079	1079	1048one or more of the purposes specified in section 10. 53 of 64
1080	1080	1049 (c)A covered entity or service provider shall comply with a request received from an
1081	1081	1050authorized agent if the covered entity or service provider is able to verify the identity of the
1082	1082	1051individual and the authorized agent's authority to act on such individual’s behalf by the same
1083	1083	1052means and subject to the same restrictions as a covered entity under section 4(g).
1084	1084	1053 (d)In the case of covered data concerning an individual known to be a child as
1085	1085	1054defined by the Children’s Online Privacy Protection Act, 15 U.S.C. 6501, the parent or legal
1086	1086	1055guardian of such child may exercise the rights provided under this chapter on the child's behalf.
1087	1087	1056 (e)In the case of covered data concerning an individual subject to a guardianship,
1088	1088	1057conservatorship or other protective arrangement, the guardian or the conservator of the
1089	1089	1058individual may exercise the rights provided under this chapter on the individual's behalf.
1090	1090	1059 Section 16. Advertising to Minors
1091	1091	1060 (a)A covered entity or service provider may not engage in targeted advertising to any
1092	1092	1061individual if the covered entity has knowledge that the individual is a minor.
1093	1093	1062 Section 17. Data Brokers
1094	1094	1063 (a)Each data broker shall place a clear, conspicuous, not misleading, and readily
1095	1095	1064accessible notice on the website or mobile application of the data broker (if the data broker
1096	1096	1065maintains such a website or mobile application) that:
1097	1097	1066 (1)notifies individuals that the entity is a data broker;
1098	1098	1067 (2)includes a link to the data broker registry website; and
1099	1099	1068 (3)is reasonably accessible to and usable by individuals with disabilities. 54 of 64
1100	1100	1069 (b)Data broker registration. Not later than January 31 of each calendar year that follows a
1101	1101	1070calendar year during which a covered entity acted as a data broker, data brokers shall register
1102	1102	1071with the OCABR in accordance with this subsection.
1103	1103	1072 (1)In registering with the OCABR, a data broker shall do the following:
1104	1104	1073 (i)Pay to the OCABR a registration fee of $100;
1105	1105	1074 (ii)Provide the OCABR with the following information:
1106	1106	1075 (A)The legal name and primary physical, email, and internet addresses of the data broker;
1107	1107	1076 (B)A description of the categories of covered data the data broker processes and
1108	1108	1077transfers;
1109	1109	1078 (C) The contact information of the data broker, including a contact person, a telephone
1110	1110	1079number, an e-mail address, a website, and a physical mailing address; and
1111	1111	1080 (D) A link to a website through which an individual may easily exercise the rights
1112	1112	1081provided under this subsection.
1113	1113	1082 (c)The OCABR shall establish and maintain on a website a searchable, publicly available,
1114	1114	1083central registry of third-party collecting entities that are registered with the OCABR under this
1115	1115	1084subsection that includes a listing of all registered data brokers and a search feature that allows
1116	1116	1085members of the public to identify individual data brokers and access to the registration
1117	1117	1086information provided under subsection (b).
1118	1118	1087 (d)Penalties. A data broker that fails to register or provide the notice as required under
1119	1119	1088this section shall be subject to enforcement proceedings under section 12. 55 of 64
1120	1120	1089 Section 18. Severability and Relationship to Other Laws
1121	1121	1090 (a)Should any provision of this chapter or part hereof be held under any
1122	1122	1091circumstances in any court of competent jurisdiction to be invalid or unenforceable, such
1123	1123	1092invalidity or unenforceability shall not affect the validity or enforceability of any other provision
1124	1124	1093of this or other parts of this chapter.
1125	1125	1094 (b)Nothing in this chapter shall diminish any individual’s rights or obligations under
1126	1126	1095chapters 66A, 93A, 93H, or under sections 1B or 3B of chapter 214.
1127	1127	1096 SECTION 2. The General Laws, as appearing in the 2022 Official Edition, are hereby
1128	1128	1097further amended by inserting after chapter 93M the following chapter:
1129	1129	1098 Chapter 93N. Privacy Protections for Location Information Derived from Electronic
1130	1130	1099Devices
1131	1131	1100 Section 1. Definitions
1132	1132	1101 (a)As used in this chapter, the following words shall, unless the context clearly
1133	1133	1102requires otherwise, have the following meanings:
1134	1134	1103 (1)“Application”, a software program that runs on the operating system of a device.
1135	1135	1104 (2)“Collect”, to obtain, infer, generate, create, receive, or access an individual’s
1136	1136	1105location information.
1137	1137	1106 (3)“Consent”, freely given, specific, informed, unambiguous, opt-in consent. This
1138	1138	1107term does not include either of the following: (i) agreement secured without first providing to the
1139	1139	1108individual a clear and conspicuous disclosure of all information material to the provision of 56 of 64
1140	1140	1109consent, apart from any privacy policy, terms of service, terms of use, general release, user
1141	1141	1110agreement, or other similar document; or (ii) agreement obtained through the use of a user
1142	1142	1111interface designed or manipulated with the substantial effect of subverting or impairing user
1143	1143	1112autonomy, decision making, or choice.
1144	1144	1113 (4)“Covered entity”, any individual, partnership, corporation, limited liability
1145	1145	1114company, association, or other group, however organized. A covered entity does not include a
1146	1146	1115state or local government agency, or any court of Massachusetts, a clerk of the court, or a judge
1147	1147	1116or justice thereof. A covered entity does not include an individual acting in a non-commercial
1148	1148	1117context. A covered entity includes all agents of the entity.
1149	1149	1118 (5)“Device”, a mobile telephone, as defined in section 1 of chapter 90 of the general
1150	1150	1119laws, or any other electronic device that is or may commonly be carried by or on an individual
1151	1151	1120and is capable of connecting to a cellular, bluetooth, or other wireless network.
1152	1152	1121 (6) “Disclose”, to make location information available to a third party, including but
1153	1153	1122not limited to by sharing, publishing, releasing, transferring, disseminating, providing access to,
1154	1154	1123or otherwise communicating such location information orally, in writing, electronically, or by
1155	1155	1124any other means.
1156	1156	1125 (7)“Individual”, a person located in the Commonwealth of Massachusetts.
1157	1157	1126 (8)“Location information”, information derived from a device or from interactions
1158	1158	1127between devices, with or without the knowledge of the user and regardless of the technological
1159	1159	1128method used, that pertains to or directly or indirectly reveals the present or past geographical
1160	1160	1129location of an individual or device within the Commonwealth of Massachusetts with sufficient
1161	1161	1130precision to identify street-level location information within a range of 1,850 feet or less. 57 of 64
1162	1162	1131Location information includes but is not limited to (i) an internet protocol address capable of
1163	1163	1132revealing the physical or geographical location of an individual; (ii) Global Positioning System
1164	1164	1133(GPS) coordinates; and (iii) cell-site location information. This term does not include location
1165	1165	1134information identifiable or derived solely from the visual content of a legally obtained image,
1166	1166	1135including the location of the device that captured such image, or publicly posted words.
1167	1167	1136 (9)“Location Privacy Policy”, a description of the policies, practices, and procedures
1168	1168	1137controlling a covered entity’s collection, processing, management, storage, retention, and
1169	1169	1138deletion of location information.
1170	1170	1139 (10)“Monetize”, to collect, process, or disclose an individual’s location information
1171	1171	1140for profit or in exchange for monetary or other consideration. This term includes but is not
1172	1172	1141limited to selling, renting, trading, or leasing location information.
1173	1173	1142 (11)“Person”, any natural person.
1174	1174	1143 (12)“Permissible purpose”, one of the following purposes: (i) provision of a product,
1175	1175	1144service, or service feature to the individual to whom the location information pertains when that
1176	1176	1145individual requested the provision of such product, service, or service feature by subscribing to,
1177	1177	1146creating an account, or otherwise contracting with a covered entity; (ii) initiation, management,
1178	1178	1147execution, or completion of a financial or commercial transaction or fulfill an order for specific
1179	1179	1148products or services requested by an individual, including any associated routine administrative,
1180	1180	1149operational, and account-servicing activity such as billing, shipping, delivery, storage, and
1181	1181	1150accounting; (iii) compliance with an obligation under federal or state law; or (iv) response to an
1182	1182	1151emergency service agency, an emergency alert, a 911 communication, or any other
1183	1183	1152communication reporting an imminent threat to human life. 58 of 64
1184	1184	1153 (13)“Process”, to perform any action or set of actions on or with location information,
1185	1185	1154including but not limited to collecting, accessing, using, storing, retaining, analyzing, creating,
1186	1186	1155generating, aggregating, altering, correlating, operating on, recording, modifying, organizing,
1187	1187	1156structuring, disposing of, destroying, de-identifying, or otherwise manipulating location
1188	1188	1157information. This term does not include disclosing location information.
1189	1189	1158 (14)“Reasonably understandable”, of length and complexity such that an individual
1190	1190	1159with an eighth-grade reading level, as established by the department of elementary and secondary
1191	1191	1160education, can read and comprehend.
1192	1192	1161 (15)“Service feature”, a discrete aspect of a service provided by a covered entity,
1193	1193	1162including but not limited to real-time directions, real-time weather, and identity authentication.
1194	1194	1163 (16)"Service provider”, an individual, partnership, corporation, limited liability
1195	1195	1164company, association, or other group, however organized, that collects, processes, or transfers
1196	1196	1165location information for the sole purpose of, and only to the extent that such service provider is,
1197	1197	1166conducting business activities on behalf of, for the benefit of, at the direction of, and under
1198	1198	1167contractual agreement with a covered entity.
1199	1199	1168 (17)“Third party”, any covered entity or person other than (i) a covered entity that
1200	1200	1169collected or processed location information in accordance with this chapter or its service
1201	1201	1170providers, or (ii) the individual to whom the location information pertains. This term does not
1202	1202	1171include government entities.
1203	1203	1172 Section 2. Protection of location information 59 of 64
1204	1204	1173 (a)It shall be unlawful for a covered entity to collect or process an individual’s
1205	1205	1174location information except for a permissible purpose. Prior to collecting or processing an
1206	1206	1175individual’s location information for one of those permissible purposes, a covered entity shall
1207	1207	1176provide the individual with a copy of the Location Privacy Policy and obtain consent from that
1208	1208	1177individual; provided, however, that this shall not be required when the collection and processing
1209	1209	1178is done in (1) compliance with an obligation under federal or state law or (2) in response to an
1210	1210	1179emergency service agency, an emergency alert, a 911 communication, or any other
1211	1211	1180communication reporting an imminent threat to human life.
1212	1212	1181 (b)If a covered entity collects location information for the provision of multiple
1213	1213	1182permissible purposes, it shall be mentioned in the Location Privacy Policy and individuals shall
1214	1214	1183provide discrete consent for each purpose; provided, however, that this shall not be required for
1215	1215	1184the purpose of collecting and processing location information to comply with an obligation under
1216	1216	1185federal or state law or to respond to an emergency service agency, an emergency alert, a 911
1217	1217	1186communication, or any other communication reporting an imminent threat to human life.
1218	1218	1187 (c) A covered entity that directly delivers targeted advertisements as part of its product or
1219	1219	1188services shall provide individuals with a clear, conspicuous, and simple means to opt out of the
1220	1220	1189processing of their location information for purposes of selecting and delivering targeted
1221	1221	1190advertisements.
1222	1222	1191 (d) Consent provided under this section shall expire (1) after one year, (2) when the initial
1223	1223	1192purpose for processing the information has been satisfied, or (3) when the individual revokes
1224	1224	1193consent, whichever occurs first, provided that consent may be renewed pursuant to the same 60 of 64
1225	1225	1194procedures. Upon expiration of consent, any location information possessed by a covered entity
1226	1226	1195shall be permanently destroyed.
1227	1227	1196 (e) It shall be unlawful for a covered entity or service provider that lawfully collects and
1228	1228	1197processes location information to:
1229	1229	1198 (1)collect more precise location information than necessary to carry out the
1230	1230	1199permissible purpose;
1231	1231	1200 (2)retain location information longer than necessary to carry out the permissible
1232	1232	1201purpose;
1233	1233	1202 (3)sell, rent, trade, or lease location information to third parties; or
1234	1234	1203 (4)derive or infer from location information any data that is not necessary to carry
1235	1235	1204out a permissible purpose.
1236	1236	1205 (5)disclose, cause to disclose, or assist with or facilitate the disclosure of an
1237	1237	1206individual’s location information to third parties, unless such disclosure is (i) necessary to carry
1238	1238	1207out the permissible purpose for which the information was collected, or (ii) requested by the
1239	1239	1208individual to whom the location data pertains.
1240	1240	1209 (f) It shall be unlawful for a covered entity or service providers to disclose location
1241	1241	1210information to any federal, state, or local government agency or official unless (1) the agency or
1242	1242	1211official serves the covered entity or service provider with a valid warrant or establishes the
1243	1243	1212existence of exigent circumstances that make it impracticable to obtain a warrant, (2) disclosure
1244	1244	1213is mandated under federal or state law, including in response to a court order or lawfully issued 61 of 64
1245	1245	1214and properly served subpoena or civil investigative demand under state or federal law, or (3) the
1246	1246	1215data subject requests such disclosure.
1247	1247	1216 (g) A covered entity shall maintain and make available to the data subject a Location
1248	1248	1217Privacy Policy, which shall include, at a minimum, the following:
1249	1249	1218 (1)the permissible purpose for which the covered entity is collecting, processing, or
1250	1250	1219disclosing any location information;
1251	1251	1220 (2)the type of location information collected, including the precision of the data;
1252	1252	1221 (3)the identities of service providers with which the covered entity contracts with
1253	1253	1222respect to location data;
1254	1254	1223 (4)any disclosures of location data necessary to carry out a permissible purpose and
1255	1255	1224the identities of the third parties to whom the location information could be disclosed;
1256	1256	1225 (5)whether the covered entity’s practices include the internal use of location
1257	1257	1226information for purposes of targeted advertisement;
1258	1258	1227 (6)the data management and data security policies governing location information;
1259	1259	1228and
1260	1260	1229 (7)the retention schedule and guidelines for permanently deleting location
1261	1261	1230information.
1262	1262	1231 (h) A covered entity in lawful possession of location information shall provide notice to
1263	1263	1232individuals to whom that information pertains of any change to its Location Privacy Policy at
1264	1264	1233least 20 business days before the change goes into effect, and shall request and obtain consent 62 of 64
1265	1265	1234before collecting or processing location information in accordance with the new Location
1266	1266	1235Privacy Policy.
1267	1267	1236 (i) It shall be unlawful for a government entity to monetize location information.
1268	1268	1237 Section 3: Prohibition Against Retaliation
1269	1269	1238 A covered entity shall not take adverse action against an individual because the
1270	1270	1239individual exercised or refused to waive any of such individual’s rights under this chapter, unless
1271	1271	1240location data is essential to the provision of the good, service, or service feature that the
1272	1272	1241individual requests, and then only to the extent that such data is essential. This prohibition
1273	1273	1242includes but is not limited to:
1274	1274	1243 (1)refusing to provide a good or service to the individual;
1275	1275	1244 (2)charging different prices or rates for goods or services, including through the use
1276	1276	1245of discounts or other benefits or imposing penalties; or
1277	1277	1246 (3)providing a different level or quality of goods or services to the individual.
1278	1278	1247 Section 4. Enforcement
1279	1279	1248 (a)A violation of this chapter or a regulation promulgated under this chapter
1280	1280	1249regarding an individual’s location information constitutes an injury to that individual and shall be
1281	1281	1250deemed an unfair or deceptive act or practice in the conduct of trade or commerce under chapter
1282	1282	125193A.
1283	1283	1252 (b)Any individual alleging a violation of this chapter by a covered entity or service
1284	1284	1253provider may bring a civil action in the superior court or any court of competent jurisdiction; 63 of 64
1285	1285	1254provided that, venue in the superior court shall be proper in the county in which the plaintiff
1286	1286	1255resides or was located at the time of any violation.
1287	1287	1256 (c) An individual protected by this chapter shall not be required, as a condition of service
1288	1288	1257or otherwise, to file an administrative complaint with the attorney general or to accept mandatory
1289	1289	1258arbitration of a claim arising under this chapter.
1290	1290	1259 (d) In a civil action in which the plaintiff prevails, the court may award (1) actual
1291	1291	1260damages, including damages for emotional distress, or $5,000 per violation, whichever is greater,
1292	1292	1261(2) punitive damages; and (3) any other relief, including but not limited to an injunction or
1293	1293	1262declaratory judgment, that the court deems to be appropriate. The court shall consider each
1294	1294	1263instance in which a covered entity or service provider collects, processes, or discloses location
1295	1295	1264information in a manner prohibited by this chapter or a regulation promulgated under this chapter
1296	1296	1265as constituting a separate violation of this chapter or regulation promulgated under this chapter.
1297	1297	1266In addition to any relief awarded, the court shall award reasonable attorney’s fees and costs to
1298	1298	1267any prevailing plaintiff.
1299	1299	1268 (e) The attorney general may bring an action pursuant to section 4 of chapter 93A against
1300	1300	1269a covered entity or service provider to remedy violations of this chapter and for other relief that
1301	1301	1270may be appropriate.
1302	1302	1271 (f) Any provision of a contract or agreement of any kind, including a covered entity’s
1303	1303	1272terms of service or policies, including but not limited to the Location Privacy Policy, that
1304	1304	1273purports to waive or limit in any way an individual’s rights under this chapter, including but not
1305	1305	1274limited to any right to a remedy or means of enforcement, shall be deemed contrary to state law
1306	1306	1275and shall be void and unenforceable. 64 of 64
1307	1307	1276 (g) No private or government action brought pursuant to this chapter shall preclude any
1308	1308	1277other action under this chapter.
1309	1309	1278 Section 5. Implementation
1310	1310	1279 The Attorney General may adopt, amend or repeal rules and regulations for the
1311	1311	1280implementation, administration, and enforcement of this chapter.
1312	1312	1281 SECTION 3. Location Information Collected Before Effective Date
1313	1313	1282 Location information collected, processed, and stored prior to the effective date of this
1314	1314	1283Act shall be subject to subsections 2(e)(3), 2(e)(5), and 2(f) of Chapter 93N.
1315	1315	1284 SECTION 4. Effective Date
1316	1316	1285 This Act shall take effect 1 year after enactment.