Massachusetts 2023-2024 Regular Session

Massachusetts Senate Bill S2770 Compare Versions

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1	1	SENATE . . . . . . . . . . . . . . No. 2770
2	2	The Commonwealth of Massachusetts
3	3	_______________
4	4	In the One Hundred and Ninety-Third General Court
5	5	(2023-2024)
6	6	_______________
7	7	SENATE, May 9, 2024.
8	8	The committee on Advanced Information Technology, the Internet and Cybersecurity, to
9	9	whom was referred the petitions (accompanied by bill, Senate, No. 25) of Cynthia Stone Creem
10	10	and Jason M. Lewis for legislation to establish the Massachusetts Data Privacy Protection Act,
11	11	report the accompanying bill (Senate, No. 2770).
12	12	For the committee,
13	13	Michael O. Moore 1 of 64
14	14	FILED ON: 5/6/2024
15	15	SENATE . . . . . . . . . . . . . . No. 2770
16	16	The Commonwealth of Massachusetts
17	17	_______________
18	18	In the One Hundred and Ninety-Third General Court
19	19	(2023-2024)
20	20	_______________
21	21	An Act establishing the Massachusetts Data Privacy Act.
22	22	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
23	23	of the same, as follows:
24	24	1 SECTION 1.
25	25	2 The General Laws, as appearing in the 2022 Official Edition, are hereby amended by
26	26	3inserting after chapter 93L the following chapter:
27	27	4 Chapter 93M. Massachusetts Data Privacy Protection Act
28	28	5 Section 1. Definitions
29	29	6 (a)As used in this chapter, the following words shall, unless the context clearly
30	30	7requires otherwise, have the following meanings:
31	31	8 (1)“authentication”, the process of verifying an individual or entity for security
32	32	9purposes.
33	33	10 (2)“biometric data”, data generated from the technological processing of an
34	34	11individual’s unique biological, physical, or physiological characteristics that is linked or
35	35	12reasonably linkable to an individual, including but not limited to retina or iris scans, fingerprint, 2 of 64
36	36	13voiceprint, map or scan of hand or face geometry, vein pattern, gait pattern; provided, however,
37	37	14that “biometric information” shall not include:
38	38	15 (i)a digital or physical photograph;
39	39	16 (ii)an audio or video recording; or
40	40	17 (iii)data generated from a digital or physical photograph, or an audio or video
41	41	18recording, unless such data is generated to identify a specific individual.
42	42	19 (3)"chapter”, this chapter of the General Laws, as from time to time may be
43	43	20amended, and any regulations promulgated under said chapter.
44	44	21 (4)“collect” and “collection”, buying, renting, licensing, gathering, obtaining,
45	45	22receiving, accessing, or otherwise acquiring covered data by any means. This includes receiving
46	46	23information from the consumer either actively, through interactions such as user registration, or
47	47	24passively, by observing the consumer’s behavior.
48	48	25 (5)“consent”, a clear affirmative act signifying an individual’s freely given, specific,
49	49	26informed, and unambiguous agreement to allow the processing of specific categories of personal
50	50	27information relating to the individual for a narrowly defined particular purpose after having been
51	51	28informed, in response to a specific request from a covered entity that meets the requirements of
52	52	29this chapter; provided, however, that “consent” may include a written statement, including a
53	53	30statement written by electronic means, or any other unambiguous affirmative action; and
54	54	31provided further, that the following shall not constitute “consent”:
55	55	32 (i)acceptance of a general or broad terms of use or similar document that contains
56	56	33descriptions of personal information processing along with other, unrelated information; 3 of 64
57	57	34 (ii)hovering over, muting, pausing, or closing a given piece of content; or
58	58	35 (iii)agreement obtained through dark patterns or a false, fictitious, fraudulent, or
59	59	36materially misleading statement or representation.
60	60	37 (6)“control”, with respect to an entity:
61	61	38 (i)ownership of, or the power to vote, more than 50 percent of the outstanding shares
62	62	39of any class of voting security of the entity;
63	63	40 (ii)control over the election of a majority of the directors of the entity (or of
64	64	41individuals exercising similar functions); or
65	65	42 (iii)the power to exercise a controlling influence over the management of the entity.
66	66	43 (7)“covered data”, information, including derived data, inferences, and unique
67	67	44persistent identifiers, that identifies or is linked or reasonably linkable, alone or in combination
68	68	45with other information, to an individual or a device that identifies or is linked or reasonably
69	69	46linkable to an individual. However, the term “covered data” does not include de-identified data
70	70	47or publicly available information.
71	71	48 (8)“covered entity”, any entity or any person, other than an individual acting in a
72	72	49non-commercial context, that alone or jointly with others determines the purposes and means of
73	73	50collecting, processing, or transferring covered data.
74	74	51 The term “covered entity” does not include:
75	75	52 (i)government agencies or service providers to government agencies that exclusively
76	76	53and solely process information provided by government entities; 4 of 64
77	77	54 (ii)any entity or person that meets the following criteria for the period of the 3
78	78	55preceding calendar years (or for the period during which the covered entity or service provider
79	79	56has been in existence if such period is less than 3 years):
80	80	57 (A)the entity or person’s average annual gross revenues during the period did not
81	81	58exceed $20,000,000;
82	82	59 (B)the entity or person, on average, did not annually collect or process the covered
83	83	60data of more than 25,000 individuals during the period, other than for the purpose of initiating,
84	84	61rendering, billing for, finalizing, completing, or otherwise collecting payment for a requested
85	85	62service or product, so long as all covered data for such purpose was deleted or de-identified
86	86	63within 90 days, except when necessary to investigate fraud or as consistent with a covered
87	87	64entity’s return policy; and
88	88	65 (C)no component of its revenue comes from transferring covered data during any
89	89	66year (or part of a year if the covered entity has been in existence for less than 1 year) that occurs
90	90	67during the period.
91	91	68 (iii)a national securities association that is registered under 15 U.S.C. 78o-3 of the
92	92	69Securities Exchange Act of 1934.and is operating solely for purposes under that act.
93	93	70 (iv)a nonprofit organization that is established to detect and prevent fraudulent acts in
94	94	71connection with insurance and is operating solely for that purpose.
95	95	72 (9)“covered high-impact social media company”, a covered entity that provides any
96	96	73internet-accessible platform where:
97	97	74 (i)such covered entity generates $3,000,000,000 or more in annual revenue; 5 of 64
98	98	75 (ii)such platform has 300,000,000 or more monthly active users for not fewer than 3
99	99	76of the preceding 12 months on the online product or service of such covered entity; and
100	100	77 (iii)such platform constitutes an online product or service that is primarily used by
101	101	78users to access or share user-generated content.
102	102	79 (10)“dark pattern or deceptive design”, a user interface that is designed, modified, or
103	103	80manipulated with the purpose or substantial effect of obscuring, subverting, or impairing a
104	104	81reasonable individual’s autonomy, decision-making, or choice, including, but not limited to, any
105	105	82practice the Federal Trade Commission refers to as a “dark pattern.”
106	106	83 (11)“data broker”, a covered entity whose principal source of revenue is derived from
107	107	84processing or transferring covered data that the covered entity did not collect directly from the
108	108	85individuals linked or linkable to the covered data. This term does not include a covered entity
109	109	86insofar as such entity processes employee data collected by and received from a third party
110	110	87concerning any individual who is an employee of the third party for the sole purpose of such
111	111	88third-party providing benefits to the employee. An entity may not be considered to be a data
112	112	89broker for purposes of this chapter if the entity is acting as a service provider.
113	113	90 (12)“de-identified data”, information that does not identify and is not linked or
114	114	91reasonably linkable to a distinct individual or a device, regardless of whether the information is
115	115	92aggregated, and if the covered entity or service provider:
116	116	93 (i)takes technical measures to ensure that the information cannot, at any point, be
117	117	94used to re-identify any individual or device that identifies or is linked or reasonably linkable to
118	118	95an individual; 6 of 64
119	119	96 (ii)publicly commits in a clear and conspicuous manner:
120	120	97 (A)to process and transfer the information solely in a de-identified form without any
121	121	98reasonable means for re-identification; and
122	122	99 (B)to not attempt to re-identify the information with any individual or device that
123	123	100identifies or is linked or reasonably linkable to an individual; and
124	124	101 (iii)contractually obligates any person or entity that receives the information from the
125	125	102covered entity or service provider:
126	126	103 (A)to comply with all the provisions of this paragraph with respect to the
127	127	104information; and
128	128	105 (B)to require that such contractual obligations be included contractually in all
129	129	106subsequent instances for which the data may be received.
130	130	107 (13)“derived data”, covered data that is created by the derivation of information, data,
131	131	108assumptions, correlations, inferences, predictions, or conclusions from facts, evidence, or another
132	132	109source of information or data about an individual or an individual’s device.
133	133	110 (14)“device”, any electronic equipment capable of collecting, processing, or
134	134	111transferring data that is used by one or more individuals or households.
135	135	112 (15)“genetic information”, any covered data, regardless of its format, that concerns an
136	136	113individual’s genetic characteristics, including but not limited to:
137	137	114 (i)raw sequence data that results from the sequencing of the complete, or a portion
138	138	115of the, extracted deoxyribonucleic acid (DNA) of an individual; or 7 of 64
139	139	116 (ii)genotypic and phenotypic information that results from analyzing raw sequence
140	140	117data described in subparagraph (i).
141	141	118 (16)“homepage”, the introductory page of an internet website and any internet web
142	142	119page where personal information is collected; provided, however, that in the case of an online
143	143	120service, such as a mobile application, “homepage” shall include:
144	144	121 (i)the application’s platform page or download page;
145	145	122 (ii)a link within the application, such as from the application configuration, “About,”
146	146	123“Information,” or settings page; and
147	147	124 (iii)any other location that allows individuals to review the notices required by this
148	148	125chapter, including, but not limited to, before downloading the application.
149	149	126 (17)“individual”, a natural person who is a Massachusetts resident or is present in
150	150	127Massachusetts.
151	151	128 (18)“knowledge”,
152	152	129 (i)with respect to a covered entity that is a covered high-impact social media company,
153	153	130the entity knew or should have known the individual was a minor;
154	154	131 (ii)with respect to a covered entity or service provider that is a large data holder, and
155	155	132otherwise is not a covered high-impact social media company, that the covered entity knew or
156	156	133acted in willful disregard of the fact that the individual was a minor; and
157	157	134 (iii)with respect to a covered entity or service provider that does not meet the
158	158	135requirements of clause (i) or (ii), actual knowledge. 8 of 64
159	159	136 (19)“large data holder”, a covered entity or service provider that in the most recent
160	160	137calendar year:
161	161	138 (i)had annual gross revenues of $200,000,000 or more; and
162	162	139 (ii)collected, processed, or transferred the covered data of more than 2,000,000
163	163	140individuals or devices that identify or are linked or reasonably linkable to one or more
164	164	141individuals, excluding covered data collected and processed solely for the purpose of initiating,
165	165	142rendering, billing for, finalizing, completing, or otherwise collecting payment for a requested
166	166	143product or service; or the sensitive covered data of more than 200,000 individuals or devices that
167	167	144identify or are linked or reasonably linkable to one or more individuals.
168	168	145 The term “large data holder” does not include any instance in which the covered entity or
169	169	146service provider would qualify as a large data holder solely on the basis of collecting or
170	170	147processing personal email addresses, personal telephone numbers, or log-in information of an
171	171	148individual or device to allow the individual or device to log in to an account administered by the
172	172	149covered entity or service provider.
173	173	150 (20)“material”, with respect to an act, practice, or representation of a covered entity
174	174	151(including a representation made by the covered entity in a privacy policy or similar disclosure to
175	175	152individuals) involving the collection, processing, or transfer of covered data, that such act,
176	176	153practice, or representation is likely to affect a reasonable individual’s decision or conduct
177	177	154regarding a product or service
178	178	155 (21)“minor”, an individual under the age of 18.
179	179	156 (22)“OCABR”, the Office of Consumer Affairs and Business Regulation. 9 of 64
180	180	157 (23)“precise geolocation information,” information derived from a device or from
181	181	158interactions between devices, with or without the knowledge of the user and regardless of the
182	182	159technological method used, that pertains to or directly or indirectly reveals the present or past
183	183	160geographical location of an individual or device within the Commonwealth of Massachusetts
184	184	161with sufficient precision to identify street-level location information within a range of 1,850 feet
185	185	162or less.
186	186	163 (24)“process”, any operation or set of operations performed on information or on sets
187	187	164of information, whether or not by automated means, including but not limited to the use, storage,
188	188	165analysis, deletion, or modification of information.
189	189	166 (25)“processing purpose”, a reason for which a covered entity or service provider
190	190	167collects, processes, or transfers covered data that is specific and granular enough for a reasonable
191	191	168individual to understand the material facts of how and why the covered entity or service provider
192	192	169collects, processes, or transfers the covered data.
193	193	170 (26)"profiling", any form of automated processing performed on personal data to
194	194	171evaluate, analyze or predict personal aspects related to an identified or identifiable individual's
195	195	172economic situation, health, personal preferences, interests, reliability, behavior, location or
196	196	173movements.
197	197	174 (27)“publicly available information”, any information that a covered entity or service
198	198	175provider has a reasonable basis to believe has been lawfully made available to the general public
199	199	176from: 10 of 64
200	200	177 (i)federal, state, or local government records, if the covered entity collects,
201	201	178processes, and transfers such information in accordance with any restrictions or terms of use
202	202	179placed on the information by the relevant government entity;
203	203	180 (ii)widely distributed media;
204	204	181 (iii)a website or online service made available to all members of the public, for free or
205	205	182for a fee, including where all members of the public, for free or for a fee, can log in to the
206	206	183website or online service;
207	207	184 (iv)a disclosure that has been made to the general public as required by federal, state,
208	208	185or local law; or
209	209	186 (v)the visual observation of the physical presence of an individual or a device in a
210	210	187public place, not including data collected by a device in the individual’s possession.
211	211	188 For purposes of this paragraph, information from a website or online service is not
212	212	189available to all members of the public if the individual who made the information available via
213	213	190the website or online service has either restricted the information to a specific audience or
214	214	191reasonably expects that the information will not be distributed to so many persons as to become a
215	215	192matter of public knowledge.
216	216	193 The term “publicly available information” does not include:
217	217	194 (i)any obscene visual depiction, as defined in 18 U.S.C. section 1460;
218	218	195 (ii)any inference made exclusively from multiple independent sources of publicly
219	219	196available information that reveals sensitive covered data with respect to an individual; 11 of 64
220	220	197 (iii)biometric information;
221	221	198 (iv)publicly available information that has been combined with covered data;
222	222	199 (v)genetic information, unless otherwise made available by the individual to whom
223	223	200the information pertains:
224	224	201 (vi)intimate images known to have been created or shared without consent.
225	225	202 (28)“reasonably understandable”, of length and complexity such that an individual
226	226	203with an eighth-grade reading level, as established by the department of elementary and secondary
227	227	204education, can read and comprehend.
228	228	205 (29)“sensitive covered data”, a form of coved data, including:
229	229	206 (i)an individual’s precise geolocation information;
230	230	207 (ii)biometric or genetic information;
231	231	208 (iii)the covered data of an individual when a covered entity or service provider has
232	232	209knowledge the individual is a minor;
233	233	210 (iv)covered data that reveals an individual’s:
234	234	211 (A)race, color, ethnicity, or national origin;
235	235	212 (B)sex or gender identity;
236	236	213 (C)religious beliefs;
237	237	214 (D)citizenship or immigration status; 12 of 64
238	238	215 (E)military service; or
239	239	216 (F)status as a victim of a crime.
240	240	217 (v)covered data processed concerning an individual’s past, present or future mental
241	241	218or physical health condition, disability, diagnosis or treatment, including pregnancy and cosmetic
242	242	219treatment;
243	243	220 (vi)covered data processed concerning an individual’s sexual orientation, sex life or
244	244	221reproductive health, including, but not limited to, the use or purchase of contraceptives, birth
245	245	222control, abortifacients or other medication, products or services related to reproductive health;
246	246	223 (vii)covered data that reveals an individual’s philosophical beliefs or union
247	247	224membership;
248	248	225 (viii)covered data that reveals an individual’s government-issued identifier, including
249	249	226but not limited to, social security number, driver’s license number, military identification
250	250	227number, passport number or state-issued identification card number but does not include a
251	251	228government-issued identifier required by law to be displayed in public;
252	252	229 (ix)covered data that reveals an individual’s financial account number, or credit or
253	253	230debit card number, with or without any required security code, access code, personal
254	254	231identification number or password, that would permit access to an individual’s financial account,
255	255	232or information that describes or reveals the income level or bank account balances of an
256	256	233individual;
257	257	234 (x)covered data that reveals account or device log-in credentials, or security or
258	258	235access codes for an account or device; 13 of 64
259	259	236 (xi)covered data that reveals an individual’s private communications such as
260	260	237voicemails, emails, texts, direct messages, or mail, or information identifying the parties to such
261	261	238communications, voice communications, video communications, and any information that
262	262	239pertains to the transmission of such communications, including telephone numbers called,
263	263	240telephone numbers from which calls were placed, the time calls were made, call duration, and
264	264	241location information of the parties to the call, unless the covered entity or a service provider
265	265	242acting on behalf of the covered entity is the sender or an intended recipient of the
266	266	243communication. Communications are not private for purposes of this clause if such
267	267	244communications are made from or to a device provided by an employer to an employee insofar
268	268	245as such employer provides conspicuous notice that such employer may access such
269	269	246communications;
270	270	247 (xii)covered data that reveals calendar information, address book information, phone
271	271	248or text logs, photos, audio recordings, or videos, maintained for private use by an individual,
272	272	249regardless of whether such information is stored on the individual’s device or is accessible from
273	273	250that device and is backed up in a separate location. Such information is not sensitive for purposes
274	274	251of this paragraph if such information is sent from or to a device provided by an employer to an
275	275	252employee insofar as such employer provides conspicuous notice that it may access such
276	276	253information.
277	277	254 (xiii)a photograph, film, video recording, or other similar medium that shows the
278	278	255naked or undergarment-clad private area of an individual; 14 of 64
279	279	256 (xiv)covered data that reveals the video content requested or selected by an individual
280	280	257collected by a covered entity. This clause does not include covered data used solely for transfers
281	281	258for independent video measurement.
282	282	259 (xv)covered data that reveals an individual’s online activities over time and across
283	283	260third-party websites or online services.
284	284	261 (xvi)any other covered data collected, processed, or transferred for the purpose of
285	285	262identifying the types of covered data listed in clauses (i) through (xv), inclusive.
286	286	263 (30)“service provider”, a person or entity that:
287	287	264 (i)collects, processes, or transfers covered data on behalf of, and at the direction of,
288	288	265a covered entity or a government agency; and
289	289	266 (ii)receives covered data from or on behalf of a covered entity or a government
290	290	267agency.
291	291	268 A service provider that receives service provider data from another service provider as
292	292	269permitted under this chapter shall be treated as a service provider under this chapter with respect
293	293	270to such data.
294	294	271 (31)“service provider data”, covered data that is collected or processed by or has been
295	295	272transferred to a service provider by or on behalf of a covered entity or a government agency or
296	296	273another service provider for the purpose of allowing the service provider to whom such covered
297	297	274data is transferred to perform a service or function on behalf of, and at the direction of, such
298	298	275covered entity or government agency. 15 of 64
299	299	276 (32)“targeted advertising”, presenting to an individual or device identified by a unique
300	300	277identifier, or groups of individuals or devices identified by unique identifiers, an online
301	301	278advertisement that is selected based on known or predicted preferences, characteristics, or
302	302	279interests associated with the individual or a device identified by a unique identifier; provided,
303	303	280however, that “targeted advertising” does not include:
304	304	281 (i)advertising or marketing to an individual or an individual’s device in response to
305	305	282the individual’s specific request for information or feedback;
306	306	283 (ii)contextual advertising, which is when an advertisement is displayed based on the
307	307	284content with or in which the advertisement appears and does not vary based on who is viewing
308	308	285the advertisement; or
309	309	286 (iii)processing covered data strictly necessary for the sole purpose of measuring or
310	310	287reporting advertising or content performance, reach, or frequency, including independent
311	311	288measurement.
312	312	289 (33)“third party”, any person or entity, including a covered entity, that
313	313	290 (i)collects, processes, or transfers covered data and is not a consumer-facing
314	314	291business with which the individual linked or reasonably linkable to such covered data expects
315	315	292and intends to interact; and
316	316	293 (ii)is not a service provider with respect to such data.
317	317	294 This term does not include a person or entity that collects covered data from another
318	318	295entity if the two entities are related by common ownership or corporate control, but only if a
319	319	296reasonable consumer’s reasonable expectation would be that such entities share information. 16 of 64
320	320	297 (34)“third party data”, covered data that has been transferred to a third party.
321	321	298 (35)“transfer”, to disclose, sell, release, disseminate, make available, license, rent, or
322	322	299share covered data orally, in writing, electronically, or by any other means.
323	323	300 (36)“unique identifier”, an identifier to the extent that such identifier is reasonably
324	324	301linkable to an individual or device that identifies or is linked or reasonably linkable to 1 or more
325	325	302individuals, including a device identifier, Internet Protocol address, cookie, beacon, pixel tag,
326	326	303mobile ad identifier, or similar technology, customer number, unique pseudonym, user alias,
327	327	304telephone number, or other form of persistent or probabilistic identifier that is linked or
328	328	305reasonably linkable to an individual or device. This term does not include an identifier assigned
329	329	306by a covered entity for the specific purpose of giving effect to an individual’s exercise of consent
330	330	307or opt-outs of the collection, processing, and transfer of covered data pursuant to this chapter or
331	331	308otherwise limiting the collection, processing, or transfer of such information.
332	332	309 (37)“widely distributed media”, information that is available to the general public,
333	333	310including information from a telephone book or online directory, a television, internet, or radio
334	334	311program, the news media, or an internet site that is available to the general public on an
335	335	312unrestricted basis, but does not include an obscene visual depiction, as defined in 18 U.S.C.
336	336	313section 1460.
337	337	314 Section 2. Duty of Loyalty
338	338	315 (a) A covered entity or service provider may not collect, process, or transfer covered data
339	339	316unless the collection, processing, or transfer is limited to what is reasonably necessary and
340	340	317proportionate to carry out one of the following purposes: 17 of 64
341	341	318 (1) provide or maintain a specific product or service requested by the individual to whom
342	342	319the data pertains;
343	343	320 (2) initiate, manage, complete a transaction, or fulfill an order for specific products or
344	344	321services requested by an individual, including any associated routine administrative, operational,
345	345	322and account-servicing activity such as billing, shipping, delivery, storage, and accounting;
346	346	323 (3) authenticate users of a product or service;
347	347	324 (4) fulfill a product or service warranty;
348	348	325 (5) prevent, detect, protect against, or respond to a security incident. For purposes of this
349	349	326paragraph, security is defined as network security and physical security and life safety, including
350	350	327an intrusion or trespass, medical alerts, fire alarms, and access control security;
351	351	328 (6) to prevent, detect, protect against, or respond to fraud, harassment, or illegal activity
352	352	329targeted at or involving the covered entity or its services. For purposes of this paragraph, the
353	353	330term “illegal activity”, a violation of a federal, state, or local law punishable as a felony or
354	354	331misdemeanor that can directly harm;
355	355	332 (7) comply with a legal obligation imposed by state or federal law, or to investigate,
356	356	333establish, prepare for, exercise, or defend legal claims involving the covered entity or service
357	357	334provider;
358	358	335 (8) effectuate a product recall pursuant to state or federal law;
359	359	336 (9) conduct a public or peer-reviewed scientific, historical, or statistical research project
360	360	337that: 18 of 64
361	361	338 (i) is in the public interest; and
362	362	339 (ii) adheres to all relevant laws and regulations governing such research, including
363	363	340regulations for the protection of human subjects, or is excluded from criteria of the institutional
364	364	341review board;
365	365	342 (10) deliver a communication that is not an advertisement to an individual, if the
366	366	343communication is reasonably anticipated by the individual within the context of the individual’s
367	367	344interactions with the covered entity;
368	368	345 (11) deliver a communication at the direction of an individual between such individual
369	369	346and one or more individuals or entities;
370	370	347 (12) ensure the data security and integrity of covered data in accordance with chapter
371	371	34893H; or
372	372	349 (13) transfer assets to a third party in the context of a merger, acquisition, bankruptcy, or
373	373	350similar transaction when the third party assumes control, in whole or in part, of the covered
374	374	351entity’s assets, only if the covered entity, in a reasonable time prior to such transfer, provides
375	375	352each affected individual with:
376	376	353 (i) a notice describing such transfer, including the name of the entity or entities receiving
377	377	354the individual’s covered data and their privacy policies; and
378	378	355 (ii) a reasonable opportunity to withdraw any previously given consents related to the
379	379	356individual’s covered data and a reasonable opportunity to request the deletion of the individual’s
380	380	357covered data. 19 of 64
381	381	358 (b) A covered entity or service provider may, with respect to covered data previously
382	382	359collected in accordance with the previous subsection, process such data:
383	383	360 (1) as necessary to provide advertising or marketing of products or services provided by
384	384	361the covered entity to an individual who is not a minor or device by electronic or non-electronic
385	385	362means, provided that the delivery of such advertising or marketing complies with the
386	386	363requirements of this chapter;
387	387	364 (2) process such data as necessary to perform system maintenance or diagnostics;
388	388	365 (3) develop, maintain, repair, or enhance a product or service for which such data was
389	389	366collected;
390	390	367 (4) to conduct internal research or analytics to improve a product or service for which
391	391	368such data was collected;
392	392	369 (5) perform inventory management or reasonable network management;
393	393	370 (6) protect against spam; or
394	394	371 (7) debug or repair errors that impair the functionality of a service or product for which
395	395	372such data was collected.
396	396	373 (c) A covered entity or service provider shall not:
397	397	374 (1) engage in deceptive advertising or marketing with respect to a product or service
398	398	375offered to an individual; or
399	399	376 (2) draw an individual into signing up for or acquiring a product or service through:— 20 of 64
400	400	377 (i) the use of any false, fictitious, fraudulent, or materially misleading statement or
401	401	378representation; or
402	402	379 (ii) the use of a dark pattern or deceptive design.
403	403	380 (d) Nothing in this chapter shall be construed or interpreted to:
404	404	381 (1) limit or diminish free speech rights of covered entities guaranteed under the First
405	405	382Amendment to the Constitution of the United States or under Article 16 of Massachusetts
406	406	383Declaration of Rights; or
407	407	384 (2) imply any purpose that is not enumerated in subsections (a) and (b), when applicable.
408	408	385 Section 3. Sensitive Covered Data
409	409	386 (a) A covered entity or service provider shall not:
410	410	387 (1) collect, process, or transfer a Social Security number, except when necessary to
411	411	388facilitate an extension of credit, authentication, fraud and identity fraud detection and prevention,
412	412	389the payment or collection of taxes, the enforcement of a contract between parties, or the
413	413	390prevention, investigation, or prosecution of fraud or illegal activity, or as otherwise required by
414	414	391state or federal law;
415	415	392 (2) collect or process sensitive covered data, except where such collection or processing
416	416	393is strictly necessary to provide or maintain a specific product or service requested by the
417	417	394individual to whom the covered data pertains or is strictly necessary to effect a purpose
418	418	395enumerated in paragraphs (1), (2), (3), (5), (7), (9), (10), (11), (13), of subsection (a) of section 2,
419	419	396and such data is only used for that purposes; 21 of 64
420	420	397 (3) transfer an individual’s sensitive covered data to a third party, unless:
421	421	398 (i) the transfer is made pursuant to the consent of the individual, given before each
422	422	399specific transfer takes place;
423	423	400 (ii) the transfer is necessary to comply with a legal obligation imposed by state or federal
424	424	401law, so long as such obligation preexisted the collection and previous notice of such obligation
425	425	402was provided to the individual to whom the data pertains;
426	426	403 (iii) the transfer is necessary to prevent an individual from imminent injury where the
427	427	404covered entity believes in good faith that the individual is at risk of death, serious physical
428	428	405injury, or serious health risk;
429	429	406 (iv) in the case of the transfer of a password, the transfer is necessary to use a designated
430	430	407password manager or is to a covered entity for the exclusive purpose of identifying passwords
431	431	408that are being reused across sites or accounts;
432	432	409 (v) in the case of the transfer of genetic information, the transfer is necessary to perform a
433	433	410medical diagnosis or medical treatment specifically requested by an individual, or to conduct
434	434	411medical research in accordance with federal and state law; or
435	435	412 (vi) in the case of transfer assets in case of a merger, if the transfer is made in accordance
436	436	413with paragraph (13) of subsection (a) of section (2); or
437	437	414 (4) process sensitive covered data for the purposes of targeted advertising.
438	438	415 Section 4. Data Subject Rights 22 of 64
439	439	416 (a) A covered entity shall provide an individual, after receiving a verified request from
440	440	417the individual, with the right to:
441	441	418 (1) access:
442	442	419 (i) in a human-readable format that a reasonable individual can understand and download
443	443	420from the internet and transmit freely, the covered data (except covered data in a back-up or
444	444	421archival system) of the individual making the request that is collected, processed, or transferred
445	445	422by the covered entity or any service provider of the covered entity within the 12 months
446	446	423preceding the request;
447	447	424 (ii) the categories of any third party or service provider, if applicable, and an option for
448	448	425consumers to obtain the names of any such third party as well as and the categories of any
449	449	426service providers to whom the covered entity has transferred the covered data of the individual,
450	450	427as well as the categories of sources from which the covered data was collected; and
451	451	428 (iii) a description of the purpose for which the covered entity transferred the covered data
452	452	429of the individual to a third party or service provider;
453	453	430 (2) correct any verifiable substantial inaccuracy or substantially incomplete information
454	454	431with respect to the covered data of the individual that is processed by the covered entity and
455	455	432instruct the covered entity to make reasonable efforts to notify all third parties or service
456	456	433providers to which the covered entity transferred such covered data of the corrected information;
457	457	434 (3) delete covered data of the individual that is processed by the covered entity and
458	458	435instruct the covered entity to make reasonable efforts to notify all third parties or service 23 of 64
459	459	436provider to which the covered entity transferred such covered data of the individual’s deletion
460	460	437request; and
461	461	438 (4) to the extent technically feasible, export to the individual or directly to another entity
462	462	439the covered data of the individual that is processed by the covered entity, including inferences
463	463	440linked or reasonably linkable to the individual but not including other derived data, without
464	464	441licensing restrictions that limit such transfers in:
465	465	442 (i) a human-readable format that a reasonable individual can understand and download
466	466	443from the internet and transmit freely; and
467	467	444 (ii) a portable, structured, interoperable, and machine-readable format.
468	468	445 (b) A covered entity may not condition, effectively condition, attempt to condition, or
469	469	446attempt to effectively condition the exercise of a right described in subsection (a) through:
470	470	447 (1) the use of any false, fictitious, fraudulent, or materially misleading statement or
471	471	448representation; or
472	472	449 (2) the use of any dark pattern or deceptive design.
473	473	450 (c) Subject to subsections (d) and (e), each request under subsection (a) shall be
474	474	451completed within 45 days of such request from an individual, unless it is demonstrably
475	475	452impracticable or impracticably costly to verify such individual’s request.
476	476	453 (d)A response period set forth in this subsection may be extended once by 20 additional
477	477	454days when reasonably necessary, considering the complexity and number of the individual’s
478	478	455requests, so long as the covered entity informs the individual of any such extension within the
479	479	456initial 45-day response period, together with the reason for the extension. 24 of 64
480	480	457 (e) A covered entity:
481	481	458 (1) shall provide an individual with the opportunity to exercise each of the rights
482	482	459described in subsection (a) and with respect to:
483	483	460 (i) the first two times that an individual exercises any right described in subsection (a) in
484	484	461any 12-month period, shall allow the individual to exercise such right free of charge; and
485	485	462 (ii) any time beyond the initial two times described in subparagraph (i), may allow the
486	486	463individual to exercise such right for a reasonable fee for each request.
487	487	464 (f) A covered entity may not permit an individual to exercise a right described in
488	488	465subsection (a), in whole or in part, if the covered entity:
489	489	466 (1) cannot reasonably verify that the individual making the request to exercise the right is
490	490	467the individual whose covered data is the subject of the request or an agent authorized to make
491	491	468such a request on the individual’s behalf;
492	492	469 (2) reasonably believes that the request is made to interfere with a contract between the
493	493	470covered entity and another individual;
494	494	471 (3) determines that the exercise of the right would require access to or correction of
495	495	472another individual’s sensitive covered data;
496	496	473 (4) reasonably believes that the exercise of the right would require the covered entity to
497	497	474engage in an unfair or deceptive practice under state law; or
498	498	475 (5) reasonably believes that the request is made to further fraud, support criminal activity,
499	499	476or the exercise of the right presents a data security threat. 25 of 64
500	500	477 (g) If a covered entity cannot reasonably verify that a request to exercise a right described
501	501	478in subsection (a) is made by the individual whose covered data is the subject of the request, the
502	502	479covered entity:
503	503	480 (1) may request that the individual making the request to exercise the right provide any
504	504	481additional information necessary for the sole purpose of verifying the identity of the individual;
505	505	482and
506	506	483 (2) may not process or transfer such additional information for any other purpose.
507	507	484 (h) A covered entity may decline, with adequate explanation to the individual, to comply
508	508	485with a request to exercise a right described in subsection (a), in whole or in part, that would:
509	509	486 (1) require the covered entity to retain any covered data collected for a single, one-time
510	510	487transaction, if such covered data is not processed or transferred by the covered entity for any
511	511	488purpose other than completing such transaction;
512	512	489 (2) be demonstrably impracticable or prohibitively costly to comply with, and the
513	513	490covered entity shall provide a description to the requestor detailing the inability to comply with
514	514	491the request;
515	515	492 (3) require the covered entity to attempt to re-identify any de-identified data;
516	516	493 (4) require the covered entity to either maintain covered data in an identifiable form or to
517	517	494collect, retain, or access any data in order to be capable of associating a verified individual
518	518	495request with covered data of such individual;
519	519	496 (5) result in the release of trade secrets or other privileged or confidential business
520	520	497information; 26 of 64
521	521	498 (6) require the covered entity to correct any covered data that cannot be reasonably
522	522	499verified as being inaccurate or incomplete;
523	523	500 (7) interfere with law enforcement, judicial proceedings, investigations, or reasonable
524	524	501efforts to guard against, detect, prevent, or investigate fraudulent, malicious, or unlawful activity,
525	525	502or enforce valid contracts;
526	526	503 (8) violate state or federal law or the rights and freedoms of another individual, including
527	527	504under the Constitution of the United States and Massachusetts Declaration of Rights;
528	528	505 (9) prevent a covered entity from being able to maintain a confidential record of deletion
529	529	506requests, maintained solely for the purpose of preventing covered data of an individual from
530	530	507being recollected after the individual submitted a deletion request and requested that the covered
531	531	508entity no longer collect, process, or transfer such data; or
532	532	509 (10) endanger the source of the data if such data could only have been obtained from a
533	533	510single identified source.
534	534	511 (i) A covered entity may decline, with adequate explanation to the individual, to comply
535	535	512with a request for deletion pursuant to paragraph (3) of subsection (a) if such request:
536	536	513 (1) unreasonably interferes with the provision of products or services by the covered
537	537	514entity to another person it currently serves;
538	538	515 (2) requests to delete covered data that relates to (A) a public figure, public official, or
539	539	516limited-purpose public figure; or (B) any other individual that has no reasonable expectation of
540	540	517privacy with respect to such data; 27 of 64
541	541	518 (3) requests to delete covered data reasonably necessary to perform a contract between
542	542	519the covered entity and the individual;
543	543	520 (4) requests to delete covered data that the covered entity needs to retain in order to
544	544	521comply with professional ethical obligations;
545	545	522 (5) requests to delete covered data that the covered entity reasonably believes may be
546	546	523evidence of unlawful activity or an abuse of the covered entity’s products or service; or
547	547	524 (6) is directed to a consumer reporting agency, as defined in 15 U.S.C. 1681a(f) and
548	548	525targets covered data that is used for the purpose of evaluating a consumer’s creditworthiness,
549	549	526credit standing, credit capacity, character, general reputation, personal characteristics or mode of
550	550	527living, subject to and strictly maintained in accordance with, the provisions of the Fair Credit
551	551	528Reporting Act, 15 U.S.C. 1681 et seq.
552	552	529 (j) In a circumstance that would allow a denial pursuant to this section, a covered entity
553	553	530shall partially comply with the remainder of the request if it is possible and not unduly
554	554	531burdensome to do so.
555	555	532 (k) The receipt of a large number of verified requests, on its own, may not be considered
556	556	533to render compliance with a request demonstrably impracticable.
557	557	534 (l) A covered entity shall facilitate the ability of individuals to make requests under
558	558	535subsection (a) in any language in which the covered entity provides a product or service. The
559	559	536mechanisms by which a covered entity enables individuals to make requests under subsection (a)
560	560	537shall be readily accessible and usable by individuals with disabilities. Such mechanisms shall, at 28 of 64
561	561	538a minimum, be accessible in the same or a similar location as the privacy policies required by
562	562	539section 9 of this chapter.
563	563	540 Section 5. Consent Practices
564	564	541 (a) The requirements of this chapter with respect to a request for consent from a covered
565	565	542entity or service provider to an individual are the following:
566	566	543 (1) The request for consent shall be provided to the individual in a clear and conspicuous
567	567	544standalone disclosure made through the primary medium used to offer the covered entity’s
568	568	545product or service, or, in the case that the product or service is not offered in a medium that does
569	569	546permits the making of the request under this paragraph, another medium regularly used in
570	570	547conjunction with the covered entity’s product or service;
571	571	548 (2) The request includes a description of the processing purpose for which the
572	572	549individual’s consent is sought by:
573	573	550 (i) clearly stating the specific categories of covered data that the covered entity shall
574	574	551collect, process, and transfer necessary to effectuate the processing purpose; and
575	575	552 (ii) including a prominent heading and is reasonably understandable so that an individual
576	576	553can identify and understand the processing purpose for which consent is sought and the covered
577	577	554data to be collected, processed, or transferred by the covered entity for such processing purpose;
578	578	555 (3) The request clearly explains the individual’s applicable rights related to consent;
579	579	556 (4) The request is made in a manner reasonably accessible to and usable by individuals
580	580	557with disabilities; 29 of 64
581	581	558 (5) The request is made available to the individual in each covered language in which the
582	582	559covered entity provides a product or service for which authorization is sought;
583	583	560 (6) The option to refuse consent shall be at least as prominent as the option to accept, and
584	584	561the option to refuse consent shall take the same number of steps or fewer as the option to accept;
585	585	562 (7)Processing or transferring any covered data collected pursuant to consent for a
586	586	563different processing purpose than that for which consent was obtained shall require consent for
587	587	564the subsequent processing purpose;
588	588	565 (8)The request for consent must be displayed at or before the point of collection; and
589	589	566 (9) The request must be accompanied by a copy of the covered entity’s or service
590	590	567provider’s privacy policy subject to the requirements of section 9, which may be included with
591	591	568the request as a hyperlink, and, if the covered entity is a large data holder, shall also include the
592	592	569short form privacy policy as required by subsection (h) of section 9.
593	593	570 (b) A covered entity shall not infer that an individual has provided consent to a practice
594	594	571from the inaction of the individual or the individual’s continued use of a service or product
595	595	572provided by the covered entity.
596	596	573 (c)A covered entity shall not obtain or attempt to obtain the consent of an individual
597	597	574through:
598	598	575 (1) the use of any false, fictitious, fraudulent, or materially misleading statement or
599	599	576representation;
600	600	577 (2) the use of any dark pattern or deceptive design; or 30 of 64
601	601	578 (3) conditioning or limiting access to an individual’s account.
602	602	579 Section 6. Privacy by Design
603	603	580 (a) A covered entity or service provider shall establish, implement, and maintain
604	604	581reasonable policies, practices, and procedures that reflect the role of the covered entity or service
605	605	582provider in the collection, processing, and transferring of covered data and that:
606	606	583 (1 ) consider applicable federal and state laws, rules, or regulations related to covered
607	607	584data the covered entity or service provider collects, processes, or transfers;
608	608	585 (2) identify, assess, and mitigate privacy risks related to minors;
609	609	586 (3) mitigate privacy risks related to the products and services of the covered entity or the
610	610	587service provider, including in the design, development, and implementation of such products and
611	611	588services, considering the role of the covered entity or service provider and the information
612	612	589available to it;
613	613	590 (4) evaluate the length of time that covered data shall be retained and circumstances
614	614	591under which covered data shall be deleted, de-identified, or otherwise modified with respect to
615	615	592the purposes for which it was collected or processed and the sensitivity of the covered data; and
616	616	593 (5) implement reasonable training and safeguards within the covered entity and service
617	617	594provider to promote compliance with all privacy laws applicable to covered data the covered
618	618	595entity collects, processes, or transfers or covered data the service provider collects, processes, or
619	619	596transfers on behalf of the covered entity and mitigate privacy risks taking into account the role of
620	620	597the covered entity or service provider and the information available to it. 31 of 64
621	621	598 (b)The policies, practices, and procedures established by a covered entity or service
622	622	599provider under subsection (a), shall correspond with, as applicable:
623	623	600 (1) the size of the covered entity or the service provider and the nature, scope, and
624	624	601complexity of the activities engaged in by the covered entity or service provider, including
625	625	602whether the covered entity or service provider is a large data holder, nonprofit organization,
626	626	603small business, third party, or data broker, considering the role of the covered entity or service
627	627	604provider and the information available to it;
628	628	605 (2) the sensitivity of the covered data collected, processed, or transferred by the covered
629	629	606entity or service provider;
630	630	607 (3)the volume of covered data collected, processed, or transferred by the covered entity
631	631	608or service provider;
632	632	609 (4)the number of individuals and devices to which the covered data collected, processed,
633	633	610or transferred by the covered entity or service provider relates; and
634	634	611 (5)the cost of implementing such policies, practices, and procedures in relation to the
635	635	612risks and nature of the covered data.
636	636	613 Section 7. Pricing
637	637	614 (a) A covered entity may not retaliate against an individual for:
638	638	615 (1) exercising any of the rights guaranteed by this chapter, or any regulations
639	639	616promulgated under this chapter; or 32 of 64
640	640	617 (2) refusing to agree to collection or processing of covered data for a separate product or
641	641	618service, including denying goods or services, charging different prices or rates for goods or
642	642	619services, or providing a different level of quality of goods or services.
643	643	620 (b) Nothing in subsection (a) shall be construed to:
644	644	621 (1) prohibit the relation of the price of a service or the level of service provided to an
645	645	622individual to the provision, by the individual, of financial information that is necessarily
646	646	623collected and processed only for the purpose of initiating, rendering, billing for, or collecting
647	647	624payment for a service or product requested by the individual;
648	648	625 (2) prohibit a covered entity from offering a different price, rate, level, quality or
649	649	626selection of goods or services to an individual, including offering goods or services for no fee, if
650	650	627the offering is in connection with an individual’s voluntary participation in a bona fide loyalty,
651	651	628rewards, premium features, discount or club card program, provided, that the covered entity may
652	652	629not sell covered data to a third-party as part of such a program unless:
653	653	630 (i) the sale is reasonably necessary to enable the third party to provide a benefit to which
654	654	631the consumer is entitled;
655	655	632 (ii) the sale of personal data to third parties is clearly disclosed in the terms of the
656	656	633program; and
657	657	634 (iii) the third party uses the personal data only for purposes of facilitating such a benefit
658	658	635to which the consumer is entitled and does not retain or otherwise use or disclose the personal
659	659	636data for any other purpose; 33 of 64
660	660	637 (3) require a covered entity to provide a bona fide loyalty program that would require the
661	661	638covered entity to collect, process, or transfer covered data that the covered entity otherwise
662	662	639would not collect, process, or transfer;
663	663	640 (4) prohibit a covered entity from offering a financial incentive or other consideration to
664	664	641an individual for participation in market research;
665	665	642 (5)prohibit a covered entity from offering different types of pricing or functionalities with
666	666	643respect to a product or service based on an individual’s exercise of a right to delete; or
667	667	644 (6)prohibit a covered entity from declining to provide a product or service insofar as the
668	668	645collection and processing of covered data is strictly necessary for such product or service.
669	669	646 (c) Notwithstanding the provisions in this section, no covered entity may offer different
670	670	647types of pricing that are unjust, unreasonable, coercive, or usurious in nature.
671	671	648 Section 8. Civil Rights Protections
672	672	649 (a) A covered entity or a service provider may not collect, process, or transfer covered
673	673	650data or publicly available data in a manner that discriminates in or otherwise makes unavailable
674	674	651the equal enjoyment of goods or services (i.e., has a disparate impact) on the basis of race, color,
675	675	652religion, national origin, sex, sexual orientation, gender identity, disability, genetic information,
676	676	653pregnancy or a condition related to said pregnancy including, but not limited to, lactation or the
677	677	654need to express breast milk for a nursing child, ancestry or status as a veteran, or any other basis
678	678	655protected by chapter 151B.
679	679	656 (b) This subsection shall not apply to:
680	680	657 (1) the collection, processing, or transfer of covered data for the purpose of: 34 of 64
681	681	658 (i) covered entity’s or a service provider’s self-testing to prevent or mitigate unlawful
682	682	659discrimination; or
683	683	660 (ii) diversifying an applicant, participant, or customer pool; or
684	684	661 (2) any private club or group not open to the public, as described in section 201(e) of the
685	685	662Civil Rights Act of 1964, 42 U.S.C. section 2000a(e).
686	686	663 (c) Whenever the Attorney General obtains information that a covered entity or service
687	687	664provider may have collected, processed, or transferred covered data in violation of subsection
688	688	665(a), the Attorney General shall initiate enforcement actions relating to such violation in
689	689	666accordance with section 12 of this chapter.
690	690	667 (1) Not later than 3 years after the date of enactment of this chapter, and annually no
691	691	668later than December 31 of each year thereafter, the Attorney General shall submit to the joint
692	692	669committee on ways and means, the joint committee on racial equity, civil rights, and inclusion,
693	693	670and the joint committee on advanced information technology, the internet and cybersecurity a
694	694	671report that includes a summary of the enforcement actions taken under this subsection.
695	695	672 Section 9. Privacy Policy
696	696	673 (a) Each covered entity or service provider shall make publicly available, in a clear and
697	697	674conspicuous location on its homepage, a reasonably understandable and not misleading privacy
698	698	675policy that provides a detailed and accurate representation of the data collection, processing, and
699	699	676transfer activities of the covered entity or service provider.
700	700	677 (b)The privacy policy must be provided in a manner that is reasonably accessible to and
701	701	678usable by individuals with disabilities. The policy shall be made available to the public in each 35 of 64
702	702	679covered language in which the covered entity or service provider provides a product or service
703	703	680that is subject to the privacy policy; or carries out activities related to such product or service.
704	704	681 (c) The privacy policy must include, at a minimum:
705	705	682 (1) The identity and the contact information of:
706	706	683 (i) the covered entity or service provider to which the privacy policy applies, including
707	707	684the covered entity’s or service provider’s points of contact and generic electronic mail addresses,
708	708	685as applicable for privacy and data security inquiries;
709	709	686 (ii) any other entity within the same corporate structure as the covered entity or service
710	710	687provider to which covered data is transferred by the covered entity;
711	711	688 (2) the categories of covered data the covered entity or service provider collects or
712	712	689processes;
713	713	690 (3) the processing purposes for each category of covered data the covered entity or
714	714	691service provider collects or processes;
715	715	692 (4) whether the covered entity or service provider transfers covered data and, if so, each
716	716	693category of service provider and third party to which the covered entity or service provider
717	717	694transfers covered data, the name of each data broker to which the covered entity or service
718	718	695provider transfers covered data, and the purposes for which such data is transferred to such
719	719	696categories of service providers and third parties or third-party collecting entities, except for a
720	720	697transfer to a governmental entity pursuant to a court order or law that prohibits the covered entity
721	721	698or service provider from disclosing such transfer; 36 of 64
722	722	699 (5) The length of time the covered entity or service provider intends to retain each
723	723	700category of covered data, including sensitive covered data, or, if it is not possible to identify that
724	724	701timeframe, the criteria used to determine the length of time the covered entity or service provider
725	725	702intends to retain categories of covered data;
726	726	703 (6) A prominent, clear, and reasonably understandable description of how an individual
727	727	704can exercise the rights described in this chapter;
728	728	705 (7) A general description of the covered entity’s or service provider’s data security
729	729	706practices; and
730	730	707 (8) The effective date of the privacy policy.
731	731	708 (d) If a covered entity or service provider makes a material change to its privacy policy or
732	732	709practices, the covered entity or service provider shall notify each individual affected by such
733	733	710material change before implementing the material change with respect to any prospectively
734	734	711collected covered data and, except as provided in paragraphs (1) through (13) of section 2,
735	735	712subsection (a), provide a reasonable opportunity for each individual to withdraw consent to any
736	736	713further materially different collection, processing, or transfer of previously collected covered
737	737	714data under the changed policy.
738	738	715 (e) A covered entity or service provider shall take all reasonable electronic measures to
739	739	716provide direct notification regarding material changes to the privacy policy to each affected
740	740	717individual, in each covered language in which the privacy policy is made available, and taking
741	741	718into account available technology and the nature of the relationship. 37 of 64
742	742	719 (f) Nothing in this section shall be construed to affect the requirements for covered
743	743	720entities or service providers under other sections of this chapter.
744	744	721 (g) Each large data holder shall retain copies of previous versions of its privacy policy for
745	745	722at least 10 years beginning after the date of enactment of this chapter and publish them on its
746	746	723website. Such large data holder shall make publicly available, in a clear, conspicuous, and
747	747	724readily accessible manner, a log describing the date and nature of each material change to its
748	748	725privacy policy over the past 10 years. The descriptions shall be sufficient for a reasonable
749	749	726individual to understand the material effect of each material change. The obligations in this
750	750	727paragraph shall not apply to any previous versions of a large data holder’s privacy policy, or any
751	751	728material changes to such policy, that precede the date of enactment of this Act.
752	752	729 (h) In addition to the privacy policy required under subsection (a), a large data holder that
753	753	730is a covered entity shall provide a short form notice of no more than 500 words in length that
754	754	731includes the main features of their data practices.
755	755	732 (i) Each covered entity or service provider that collects, processes, or transfers biometric
756	756	733data shall provide a separate privacy policy detailing the collection, processing, and transfer of
757	757	734such biometric data, subject to the provisions of subsections (a) through (h) of this section.
758	758	735 (j)Each covered entity or service provider that collects, processes, or transfers specific
759	759	736precise geolocation information shall provide a separate privacy policy detailing the collection,
760	760	737processing, and transfer of such precise geolocation information, subject to the provisions of
761	761	738subsections (a) through (h) of this section.
762	762	739 Section 10. Advanced Data Rights 38 of 64
763	763	740 (a)A covered entity or service provider shall provide an individual with a clear and
764	764	741conspicuous, easy-to-execute means to withdraw consent. Those means shall be at least as easy
765	765	742to execute by an individual as the means to provide consent and shall, at a minimum, be
766	766	743accessible in the same or a substantially similar location as the privacy policies required by
767	767	744section 9.
768	768	745 (b)Right to opt out of covered data transfers. A covered entity:
769	769	746 (1)may not transfer or direct the transfer of the covered data of an individual to a
770	770	747third party if the individual or an agent authorized to make such a request on the individual’s
771	771	748behalf objects to the transfer; and
772	772	749 (2)shall allow an individual to object to such a transfer through an opt out
773	773	750mechanism, at a minimum, accessible in the same or a substantially similar location as the
774	774	751privacy policies required by section 9.
775	775	752 (c)Right to opt out of targeted advertising. A covered entity or service provider that
776	776	753directly delivers a targeted advertisement shall:
777	777	754 (1)prior to engaging in targeted advertising to an individual or device and at all
778	778	755times, thereafter, provide such individual with a clear and conspicuous means to opt out of
779	779	756targeted advertising;
780	780	757 (2)abide by any opt out designation by an individual or an agent authorized to make
781	781	758such a request on the individual’s behalf with respect to targeted advertising and notify the
782	782	759covered entity that directed the service provider to deliver the targeted advertisement of the opt
783	783	760out decision; and 39 of 64
784	784	761 (3)allow an individual to make an opt out designation with respect to targeted
785	785	762advertising through an opt out mechanism, at a minimum, accessible in the same or a
786	786	763substantially similar location as the privacy policies required by section 9.
787	787	764 (d)Right to opt out of profiling. A covered entity or service provider that engages in
788	788	765profiling in furtherance of automated decisions that produce legal or similarly significant effects
789	789	766on an individual shall:
790	790	767 (1)provide such individual with a clear and conspicuous means to opt out of such
791	791	768profiling; and
792	792	769 (2)allow an individual to object to such profiling through an opt out mechanism, at a
793	793	770minimum, accessible in the same or a substantially similar location as the privacy policies
794	794	771required by section 9.
795	795	772 (e)A covered entity or service provider that receives an opt out notification pursuant
796	796	773to this section shall abide by such opt out designations in a commercially reasonable timeframe.
797	797	774Such covered entity or service provider shall notify any other person that directed the covered
798	798	775entity or service provider to either serve, deliver, or otherwise process targeted advertisements or
799	799	776to engage in profiling in furtherance of automated decisions of the individual's opt out decision
800	800	777within a commercially reasonable timeframe.
801	801	778 (f)A covered entity or service provider may not condition, effectively condition,
802	802	779attempt to condition, or attempt to effectively condition the exercise of any individual right under
803	803	780this section through: 40 of 64
804	804	781 (1)the use of any false, fictitious, fraudulent, or materially misleading statement or
805	805	782representation; or
806	806	783 (2)the use of a dark pattern or deceptive design.
807	807	784 (g)A covered entity shall notify third parties who had access to an individual’s
808	808	785covered data when the individual exercises any of the rights established in this section. The third
809	809	786party shall comply with the request to opt out of sale or data transfer forwarded to them from a
810	810	787covered entity that provided, made available, or authorized the collection of the individual’s
811	811	788covered data. The third party shall comply with the request in the same way a covered entity is
812	812	789required to comply with the request. The third party shall no longer retain, use, or disclose the
813	813	790personal information unless the third party becomes a service provider or a covered entity in the
814	814	791terms of this chapter.
815	815	792 (h)A covered entity that communicates an individual’s opt out request to a third
816	816	793party or service provider pursuant to this section shall not be liable under this chapter if the third
817	817	794party or service provider receiving the opt-out request violates the restrictions set forth in this
818	818	795chapter; provided, however, that at the time of communicating the opt-out request, the covered
819	819	796entity does not know or should not reasonably know that the third party or service provider
820	820	797intends to commit such a violation.
821	821	798 (i)If an individual decides to opt out of the processing of the individual’s covered
822	822	799data for the purposes specified in subsections (b), (c), or (d) and such decision conflicts with the
823	823	800individual’s existing, voluntary participation in a covered entity’s bona fide loyalty, rewards,
824	824	801premium features, discounts or club card program, the covered entity shall comply with the
825	825	802individual’s opt out preference signal but may notify the individual of the conflict and provide 41 of 64
826	826	803the individual with the choice to opt back into such processing for participation in such a
827	827	804program; provided, however, that the controller shall not use dark patterns or deceptive design to
828	828	805coerce the individual to opt back into such processing related to that individual’s participation in
829	829	806such program.
830	830	807 (j)A covered entity or service provider shall not require an individual to create an
831	831	808account for the purposes of exercising any right under this chapter.
832	832	809 Section 11. Service Providers
833	833	810 (a)A service provider:
834	834	811 (1)shall adhere to the instructions of a covered entity and only collect, process, and
835	835	812transfer service provider data to the extent necessary and proportionate to provide a service
836	836	813requested by the covered entity, as set out in the contract required by subsection (b), and this
837	837	814paragraph does not require a service provider to collect, process, or transfer covered data if the
838	838	815service provider would not otherwise do so;
839	839	816 (2)may not collect, process, or transfer service provider data if the service provider has
840	840	817actual knowledge that a covered entity violated this chapter with respect to such data;
841	841	818 (3)shall assist a covered entity in responding to a request made by an individual under
842	842	819this chapter, by either:
843	843	820 (i)providing appropriate technical and organizational measures, considering the nature of
844	844	821the processing and the information reasonably available to the service provider, for the covered
845	845	822entity to comply with such request for service provider data; or 42 of 64
846	846	823 (ii)fulfilling a request by a covered entity to execute an individual rights request that the
847	847	824covered entity has determined should be complied with, by either:
848	848	825 (A)complying with the request pursuant to the covered entity’s instructions; or
849	849	826 (B)providing written verification to the covered entity that it does not hold covered data
850	850	827related to the request, that complying with the request would be inconsistent with its legal
851	851	828obligations, or that the request falls within an exception under this chapter;
852	852	829 (4)may engage another service provider for purposes of processing service provider data
853	853	830on behalf of a covered entity only after providing that covered entity with notice and pursuant to
854	854	831a written contract that requires such other service provider to satisfy the obligations of the
855	855	832service provider with respect to such service provider data, including that the other service
856	856	833provider be treated as a service provider under this chapter;
857	857	834 (5)shall, upon the reasonable request of the covered entity, make available to the covered
858	858	835entity information necessary to demonstrate the compliance of the service provider with the
859	859	836requirements of this chapter, which may include making available a report of an independent
860	860	837assessment arranged by the service provider on terms agreed to by the service provider and the
861	861	838covered entity or providing information necessary to enable the covered entity to conduct and
862	862	839document a privacy impact assessment;
863	863	840 (6)shall, at the covered entity’s direction, delete or return all covered data to the covered
864	864	841entity as requested at the end of the provision of services, unless retention of the covered data is
865	865	842required by law; 43 of 64
866	866	843 (7)shall develop, implement, and maintain reasonable administrative, technical, and
867	867	844physical safeguards that are designed to protect the security and confidentiality of covered data
868	868	845the service provider processes consistent with chapter 93H of the general laws; and
869	869	846 (8)shall allow and cooperate with reasonable assessments by the covered entity or the
870	870	847covered entity’s designated assessor. Alternatively, the service provider may arrange for a
871	871	848qualified and independent assessor to conduct an assessment of the service provider’s policies
872	872	849and technical and organizational measures in support of the obligations under this chapter using
873	873	850an appropriate and accepted control standard or framework and assessment procedure for such
874	874	851assessments. The service provider shall provide a report of such assessment to the covered entity
875	875	852upon request.
876	876	853 (b)A person or entity may only act as a service provider pursuant to a written contract
877	877	854between the covered entity and the service provider, or a written contract between one service
878	878	855provider and a second service provider as described under paragraph (4) of subsection (a), if the
879	879	856contract:
880	880	857 (1)sets forth the data processing procedures of the service provider with respect to
881	881	858collection, processing, or transfer performed on behalf of the covered entity or service provider;
882	882	859 (2)clearly sets forth:
883	883	860 (i)instructions for collecting, processing, or transferring data;
884	884	861 (ii)the nature and purpose of collecting, processing, or transferring;
885	885	862 (iii)the type of data subject to collecting, processing, or transferring;
886	886	863 (iv)the duration of processing; and 44 of 64
887	887	864 (v)the rights and obligations of both parties, including a method by which the service
888	888	865provider shall notify the covered entity of material changes to its privacy practices;
889	889	866 (3)does not relieve a covered entity or a service provider of any requirement or liability
890	890	867imposed on such covered entity or service provider under this chapter; and
891	891	868 (4)prohibits:
892	892	869 (i)collecting, processing, or transferring covered data in contravention to subsection (a);
893	893	870and
894	894	871 (ii)combining service provider data with covered data which the service provider receives
895	895	872from or on behalf of another person or persons or collects from the interaction of the service
896	896	873provider with an individual, provided that such combining is not necessary to effectuate a
897	897	874purpose described in paragraphs (1) through (13) of section 2(a) and is otherwise permitted under
898	898	875the contract required by this subsection.
899	899	876 (c)Each service provider shall retain copies of previous contracts entered into in
900	900	877compliance with this subsection with each covered entity to which it provides requested products
901	901	878or services.
902	902	879 (d)The classification of a person or entity as a covered entity or as a service provider and
903	903	880the relationship between covered entities and service providers are regulated by the following
904	904	881provisions:
905	905	882 (1)Determining whether a person is acting as a covered entity or service provider with
906	906	883respect to a specific processing of covered data is a fact-based determination that depends upon
907	907	884the context in which such data is processed. 45 of 64
908	908	885 (2)A person or entity that is not limited in its processing of covered data pursuant to the
909	909	886instructions of a covered entity, or that fails to adhere to such instructions, is a covered entity and
910	910	887not a service provider with respect to a specific processing of covered data. A service provider
911	911	888that continues to adhere to the instructions of a covered entity with respect to a specific
912	912	889processing of covered data remains a service provider. If a service provider begins, alone or
913	913	890jointly with others, determining the purposes and means of the processing of covered data, it is a
914	914	891covered entity and not a service provider with respect to the processing of such data.
915	915	892 (3)A covered entity that transfers covered data to a service provider or a service provider
916	916	893that transfers covered data to a covered entity or another service provider, in compliance with the
917	917	894requirements of this chapter, is not liable for a violation of this chapter by the service provider or
918	918	895covered entity to whom such covered data was transferred, if at the time of transferring such
919	919	896covered data, the covered entity or service provider did not have actual knowledge that the
920	920	897service provider or covered entity would violate this chapter.
921	921	898 (4)A covered entity or service provider that receives covered data in compliance with the
922	922	899requirements of this chapter is not in violation of this chapter as a result of a violation by a
923	923	900covered entity or service provider from which such data was received.
924	924	901 (e)A third party:
925	925	902 (1)shall not process third party data for a processing purpose other than the processing
926	926	903purpose for which
927	927	904 (i)the individual gave consent or to effect a purpose enumerated in paragraph (2), (3), or
928	928	905(5) of subsection (a) of section 2 in the case of sensitive covered data; or 46 of 64
929	929	906 (ii)the covered entity made a disclosure pursuant to their privacy policy and in the case of
930	930	907data that is not sensitive covered data; and
931	931	908 (2)may reasonably rely on representations made by the covered entity that transferred the
932	932	909third-party data if the third party conducts reasonable due diligence on the representations of the
933	933	910covered entity and finds those representations to be credible.
934	934	911 (f)Solely for the purposes of this section, the requirements for service providers to
935	935	912contract with, assist, and follow the instructions of covered entities shall be read to include
936	936	913requirements to contract with, assist, and follow the instructions of a government entity if the
937	937	914service provider is providing a service to a government entity.
938	938	915 Section 12. Enforcement
939	939	916 (a) A violation of this chapter constitutes an injury to that individual and shall be deemed
940	940	917an unfair or deceptive act or practice in the conduct of trade or commerce under chapter 93A,
941	941	918provided that if the court finds for any petitioner, subject to section 9, paragraph (3) of such
942	942	919chapter, recovery under such chapter shall be in the amount of actual damages or $5,000,
943	943	920whichever is higher.
944	944	921 (b) Private right of action. Any individual alleging a violation of this chapter by a covered
945	945	922entity, service provider, or third party that is a large data holder may bring a civil action in the
946	946	923superior court or any court of competent jurisdiction.
947	947	924 (c) An individual protected by this chapter may not be required, as a condition of service
948	948	925or otherwise, to file an administrative complaint with the attorney general or to accept mandatory
949	949	926arbitration of a claim under this chapter. 47 of 64
950	950	927 (d) The civil action shall be directed to the covered entity, service provider, and third-
951	951	928parties alleged to have committed the violation.
952	952	929 (e) In a civil action in which the plaintiff prevails, the court may award:
953	953	930 (1)liquidated damages of not less than 0.15% of the annual global revenue of the covered
954	954	931entity or $15,000 per violation, whichever is greater;
955	955	932 (2)punitive damages; and
956	956	933 (3)any other relief, including but not limited to an injunction, that the court deems to be
957	957	934appropriate.
958	958	935 (f) In addition to any relief awarded pursuant to the previous paragraph, the court shall
959	959	936award reasonable attorney’s fees and costs to any prevailing plaintiff.
960	960	937 (g) The Attorney General may bring an action pursuant to section 4 of chapter 93A
961	961	938against a covered entity, service provider, or third party to remedy violations of this chapter and
962	962	939for other relief, including but not limited to an injunction, that may be appropriate, subject to the
963	963	940following:
964	964	941 (1)If the court finds that the defendant has employed any method, act, or practice
965	965	942which they knew or should have known to be in violation of this chapter, the court may require
966	966	943the defendant to pay to the commonwealth a civil penalty of:
967	967	944 (i) not less than 0.15% of the annual global revenue or $15,000, whichever is greater, per
968	968	945violation; and 48 of 64
969	969	946 (ii) not more than 4% of the annual global revenue of the covered entity, service provider,
970	970	947or third-party or $20,000,000, whichever is greater, per action if such action includes multiple
971	971	948violations to multiple individuals;
972	972	949 (2)If the court finds that a defendant has engaged in flagrant, willful and repeat
973	973	950violations of this chapter, the court may issue an order to suspend or prohibit a covered entity,
974	974	951service provider, or third party from operating in the commonwealth or collecting, processing,
975	975	952and transferring covered data and any other relief, including but not limited to an injunction, that
976	976	953the court deems to be appropriate.
977	977	954 (3)In addition to any penalty or relief awarded under this subsection, a defendant
978	978	955violating this chapter shall also be liable to the commonwealth for the reasonable costs of
979	979	956investigation and litigation of such violation, including reasonable attorneys’ fees and reasonable
980	980	957expert fees.
981	981	958 (h) When calculating awards and civil penalties in all the actions in this section, the court
982	982	959shall consider:
983	983	960 (1)the number of affected individuals;
984	984	961 (2)the severity of the violation or noncompliance;
985	985	962 (3)the risks caused by the violation or noncompliance;
986	986	963 (4)whether the violation or noncompliance was part of a pattern of noncompliance
987	987	964and violations and not an isolated instance;
988	988	965 (5)whether the violation or noncompliance was willful and not the result of error; 49 of 64
989	989	966 (6)the precautions taken by the defendant to prevent a violation;
990	990	967 (7)the number of administrative actions, lawsuits, settlements, and consent-decrees
991	991	968under this chapter involving the defendant;
992	992	969 (8)the number of administrative actions, lawsuits, settlements, and consent-decrees
993	993	970involving the defendant in other states and at the federal level in issues involving information
994	994	971privacy; and
995	995	972 (9)the international record of the defendant when it comes to information privacy
996	996	973issues.
997	997	974 (i) It is a violation of this chapter for a covered entity or anyone else acting on behalf of a
998	998	975covered entity to retaliate against an individual who makes a good-faith complaint that there has
999	999	976been a failure to comply with any part of this chapter.
1000	1000	977 (1)An injured individual by a violation of the previous paragraph may bring a civil
1001	1001	978action for monetary damages and injunctive relief in any court of competent jurisdiction.
1002	1002	979 (j) Any provision of a contract or agreement of any kind, including a covered entity’s
1003	1003	980terms of service or a privacy policy, including the short-form privacy notice required under
1004	1004	981section 9 subsection (h) that purports to waive or limit in any way an individual’s rights under
1005	1005	982this chapter, including but not limited to any right to a remedy or means of enforcement shall be
1006	1006	983deemed contrary to public policy and shall be void and unenforceable.
1007	1007	984 (k) No private or government action brought pursuant to this chapter shall preclude any
1008	1008	985other action under this chapter.
1009	1009	986 Section 13. Information Non-applicability 50 of 64
1010	1010	987 (a)This chapter shall not apply to only the following specific types of information:
1011	1011	988 (1)personal information captured from a patient by a health care provider or health
1012	1012	989care facility or biometric information collected, processed, used, or stored exclusively for
1013	1013	990medical education or research, public health or epidemiological purposes, health care treatment,
1014	1014	991insurance, payment, or operations under the federal Health Insurance Portability and
1015	1015	992Accountability Act of 1996, or to X-ray, roentgen process, computed tomography, MRI, PET
1016	1016	993scan, mammography, or other image or film of the human anatomy used exclusively to diagnose,
1017	1017	994prognose, or treat an illness or other medical condition or to further validate scientific testing or
1018	1018	995screening;
1019	1019	996 (2)nonpublic personal information that is processed by a financial institution subject
1020	1020	997to, and in compliance with, the Gramm-Leach-Bliley Act, 15 U.S.C. 6801 et seq., as amended
1021	1021	998from time to time;
1022	1022	999 (3)personal information regulated by the federal Family Educational Rights and
1023	1023	1000Privacy Act, 20 U.S.C. 1232g et seq., as amended from time to time;
1024	1024	1001 (4)individuals sharing their personal contact information such as email addresses
1025	1025	1002with other individuals in the workplace, or other social, political, or similar settings where the
1026	1026	1003purpose of the information is to facilitate communication among such individuals, provided that
1027	1027	1004this chapter shall cover any processing of such contact information beyond interpersonal
1028	1028	1005communication; or
1029	1029	1006 (5)covered entities’ publication of entity-based member or employee contact
1030	1030	1007information where such publication is intended to allow members of the public to contact such
1031	1031	1008member or employee in the ordinary course of the entity’s operations. 51 of 64
1032	1032	1009 (b)For the purpose of this section, the burden of proving that information is exempt
1033	1033	1010from the provisions of this chapter shall be upon the party claiming the exemption.
1034	1034	1011 Section 14. Implementation
1035	1035	1012 (a) The Attorney General shall adopt rules and regulations for the implementation,
1036	1036	1013administration, and enforcement of this chapter and may from time to time amend or repeal said
1037	1037	1014regulations. The rules and regulations shall include but are not limited to:
1038	1038	1015 (1) establishing or adopting baseline technical requirements that determine if a given
1039	1039	1016dataset has been or can be considered sufficiently de-identified;
1040	1040	1017 (2) establishing reasonable policies, practices, and procedures that satisfy the
1041	1041	1018requirements set forward in Section 6;
1042	1042	1019 (3) establishing a nonexclusive list of practices that constitute deceptive designs or dark
1043	1043	1020patterns or otherwise violate the requirements set forward in Section 5; and
1044	1044	1021 (4) further defining when a covered entity is a data broker and additional compliance
1045	1045	1022requirements for data brokers under this chapter.
1046	1046	1023 (b) The Attorney General may:
1047	1047	1024 (1)gather facts and information applicable to the Attorney General’s obligation to enforce
1048	1048	1025this chapter and ensure its compliance, consistent with the provisions of section 4 of chapter
1049	1049	102693A;
1050	1050	1027 (2) conduct investigations for possible violations of this chapter; and 52 of 64
1051	1051	1028 (3) refer cases for civil enforcement or criminal prosecution to the appropriate federal,
1052	1052	1029state, or local authorities.
1053	1053	1030 (c) The Attorney General shall, within one year after the effective date of chapter, create
1054	1054	1031an official internet website that outlines the provisions of this chapter and provides individuals
1055	1055	1032with a form or other mechanism to report violations of this chapter to the Office of the Attorney
1056	1056	1033General. The Attorney General shall update the website at least annually. The website shall
1057	1057	1034include statistics on the Attorney General’s enforcement actions undertaken under this chapter,
1058	1058	1035broken down by fiscal year, including but not limited to:
1059	1059	1036 (1) number of complaints received;
1060	1060	1037 (2) number of open investigations;
1061	1061	1038 (3) number of closed investigations; and
1062	1062	1039 (4) a summary of case dispositions in which a violation of this chapter occurred.
1063	1063	1040 Section 15. Authorized Agents
1064	1064	1041 (a)An individual may designate another person to serve as the individual’s
1065	1065	1042authorized agent to exercise the individual’s rights under section 4, to withdraw consent under
1066	1066	1043section 10, or opt out of the processing of such individual's covered data for one or more of the
1067	1067	1044purposes specified in section 10.
1068	1068	1045 (b)An individual may designate an authorized agent as provided in subsection (a) by
1069	1069	1046technological means, including, but not limited to, an Internet link or a browser setting, browser
1070	1070	1047extension or global device setting that indicates the individual’s intent to opt out processing for
1071	1071	1048one or more of the purposes specified in section 10. 53 of 64
1072	1072	1049 (c)A covered entity or service provider shall comply with a request received from an
1073	1073	1050authorized agent if the covered entity or service provider is able to verify the identity of the
1074	1074	1051individual and the authorized agent's authority to act on such individual’s behalf by the same
1075	1075	1052means and subject to the same restrictions as a covered entity under section 4(g).
1076	1076	1053 (d)In the case of covered data concerning an individual known to be a child as
1077	1077	1054defined by the Children’s Online Privacy Protection Act, 15 U.S.C. 6501, the parent or legal
1078	1078	1055guardian of such child may exercise the rights provided under this chapter on the child's behalf.
1079	1079	1056 (e)In the case of covered data concerning an individual subject to a guardianship,
1080	1080	1057conservatorship or other protective arrangement, the guardian or the conservator of the
1081	1081	1058individual may exercise the rights provided under this chapter on the individual's behalf.
1082	1082	1059 Section 16. Advertising to Minors
1083	1083	1060 (a)A covered entity or service provider may not engage in targeted advertising to any
1084	1084	1061individual if the covered entity has knowledge that the individual is a minor.
1085	1085	1062 Section 17. Data Brokers
1086	1086	1063 (a)Each data broker shall place a clear, conspicuous, not misleading, and readily
1087	1087	1064accessible notice on the website or mobile application of the data broker (if the data broker
1088	1088	1065maintains such a website or mobile application) that:
1089	1089	1066 (1)notifies individuals that the entity is a data broker;
1090	1090	1067 (2)includes a link to the data broker registry website; and
1091	1091	1068 (3)is reasonably accessible to and usable by individuals with disabilities. 54 of 64
1092	1092	1069 (b)Data broker registration. Not later than January 31 of each calendar year that follows a
1093	1093	1070calendar year during which a covered entity acted as a data broker, data brokers shall register
1094	1094	1071with the OCABR in accordance with this subsection.
1095	1095	1072 (1)In registering with the OCABR, a data broker shall do the following:
1096	1096	1073 (i)Pay to the OCABR a registration fee of $100;
1097	1097	1074 (ii)Provide the OCABR with the following information:
1098	1098	1075 (A)The legal name and primary physical, email, and internet addresses of the data broker;
1099	1099	1076 (B)A description of the categories of covered data the data broker processes and
1100	1100	1077transfers;
1101	1101	1078 (C) The contact information of the data broker, including a contact person, a telephone
1102	1102	1079number, an e-mail address, a website, and a physical mailing address; and
1103	1103	1080 (D) A link to a website through which an individual may easily exercise the rights
1104	1104	1081provided under this subsection.
1105	1105	1082 (c)The OCABR shall establish and maintain on a website a searchable, publicly available,
1106	1106	1083central registry of third-party collecting entities that are registered with the OCABR under this
1107	1107	1084subsection that includes a listing of all registered data brokers and a search feature that allows
1108	1108	1085members of the public to identify individual data brokers and access to the registration
1109	1109	1086information provided under subsection (b).
1110	1110	1087 (d)Penalties. A data broker that fails to register or provide the notice as required under
1111	1111	1088this section shall be subject to enforcement proceedings under section 12. 55 of 64
1112	1112	1089 Section 18. Severability and Relationship to Other Laws
1113	1113	1090 (a)Should any provision of this chapter or part hereof be held under any
1114	1114	1091circumstances in any court of competent jurisdiction to be invalid or unenforceable, such
1115	1115	1092invalidity or unenforceability shall not affect the validity or enforceability of any other provision
1116	1116	1093of this or other parts of this chapter.
1117	1117	1094 (b)Nothing in this chapter shall diminish any individual’s rights or obligations under
1118	1118	1095chapters 66A, 93A, 93H, or under sections 1B or 3B of chapter 214.
1119	1119	1096 SECTION 2. The General Laws, as appearing in the 2022 Official Edition, are hereby
1120	1120	1097further amended by inserting after chapter 93M the following chapter:
1121	1121	1098 Chapter 93N. Privacy Protections for Location Information Derived from Electronic
1122	1122	1099Devices
1123	1123	1100 Section 1. Definitions
1124	1124	1101 (a)As used in this chapter, the following words shall, unless the context clearly
1125	1125	1102requires otherwise, have the following meanings:
1126	1126	1103 (1)“Application”, a software program that runs on the operating system of a device.
1127	1127	1104 (2)“Collect”, to obtain, infer, generate, create, receive, or access an individual’s
1128	1128	1105location information.
1129	1129	1106 (3)“Consent”, freely given, specific, informed, unambiguous, opt-in consent. This
1130	1130	1107term does not include either of the following: (i) agreement secured without first providing to the
1131	1131	1108individual a clear and conspicuous disclosure of all information material to the provision of 56 of 64
1132	1132	1109consent, apart from any privacy policy, terms of service, terms of use, general release, user
1133	1133	1110agreement, or other similar document; or (ii) agreement obtained through the use of a user
1134	1134	1111interface designed or manipulated with the substantial effect of subverting or impairing user
1135	1135	1112autonomy, decision making, or choice.
1136	1136	1113 (4)“Covered entity”, any individual, partnership, corporation, limited liability
1137	1137	1114company, association, or other group, however organized. A covered entity does not include a
1138	1138	1115state or local government agency, or any court of Massachusetts, a clerk of the court, or a judge
1139	1139	1116or justice thereof. A covered entity does not include an individual acting in a non-commercial
1140	1140	1117context. A covered entity includes all agents of the entity.
1141	1141	1118 (5)“Device”, a mobile telephone, as defined in section 1 of chapter 90 of the general
1142	1142	1119laws, or any other electronic device that is or may commonly be carried by or on an individual
1143	1143	1120and is capable of connecting to a cellular, bluetooth, or other wireless network.
1144	1144	1121 (6) “Disclose”, to make location information available to a third party, including but
1145	1145	1122not limited to by sharing, publishing, releasing, transferring, disseminating, providing access to,
1146	1146	1123or otherwise communicating such location information orally, in writing, electronically, or by
1147	1147	1124any other means.
1148	1148	1125 (7)“Individual”, a person located in the Commonwealth of Massachusetts.
1149	1149	1126 (8)“Location information”, information derived from a device or from interactions
1150	1150	1127between devices, with or without the knowledge of the user and regardless of the technological
1151	1151	1128method used, that pertains to or directly or indirectly reveals the present or past geographical
1152	1152	1129location of an individual or device within the Commonwealth of Massachusetts with sufficient
1153	1153	1130precision to identify street-level location information within a range of 1,850 feet or less. 57 of 64
1154	1154	1131Location information includes but is not limited to (i) an internet protocol address capable of
1155	1155	1132revealing the physical or geographical location of an individual; (ii) Global Positioning System
1156	1156	1133(GPS) coordinates; and (iii) cell-site location information. This term does not include location
1157	1157	1134information identifiable or derived solely from the visual content of a legally obtained image,
1158	1158	1135including the location of the device that captured such image, or publicly posted words.
1159	1159	1136 (9)“Location Privacy Policy”, a description of the policies, practices, and procedures
1160	1160	1137controlling a covered entity’s collection, processing, management, storage, retention, and
1161	1161	1138deletion of location information.
1162	1162	1139 (10)“Monetize”, to collect, process, or disclose an individual’s location information
1163	1163	1140for profit or in exchange for monetary or other consideration. This term includes but is not
1164	1164	1141limited to selling, renting, trading, or leasing location information.
1165	1165	1142 (11)“Person”, any natural person.
1166	1166	1143 (12)“Permissible purpose”, one of the following purposes: (i) provision of a product,
1167	1167	1144service, or service feature to the individual to whom the location information pertains when that
1168	1168	1145individual requested the provision of such product, service, or service feature by subscribing to,
1169	1169	1146creating an account, or otherwise contracting with a covered entity; (ii) initiation, management,
1170	1170	1147execution, or completion of a financial or commercial transaction or fulfill an order for specific
1171	1171	1148products or services requested by an individual, including any associated routine administrative,
1172	1172	1149operational, and account-servicing activity such as billing, shipping, delivery, storage, and
1173	1173	1150accounting; (iii) compliance with an obligation under federal or state law; or (iv) response to an
1174	1174	1151emergency service agency, an emergency alert, a 911 communication, or any other
1175	1175	1152communication reporting an imminent threat to human life. 58 of 64
1176	1176	1153 (13)“Process”, to perform any action or set of actions on or with location information,
1177	1177	1154including but not limited to collecting, accessing, using, storing, retaining, analyzing, creating,
1178	1178	1155generating, aggregating, altering, correlating, operating on, recording, modifying, organizing,
1179	1179	1156structuring, disposing of, destroying, de-identifying, or otherwise manipulating location
1180	1180	1157information. This term does not include disclosing location information.
1181	1181	1158 (14)“Reasonably understandable”, of length and complexity such that an individual
1182	1182	1159with an eighth-grade reading level, as established by the department of elementary and secondary
1183	1183	1160education, can read and comprehend.
1184	1184	1161 (15)“Service feature”, a discrete aspect of a service provided by a covered entity,
1185	1185	1162including but not limited to real-time directions, real-time weather, and identity authentication.
1186	1186	1163 (16)"Service provider”, an individual, partnership, corporation, limited liability
1187	1187	1164company, association, or other group, however organized, that collects, processes, or transfers
1188	1188	1165location information for the sole purpose of, and only to the extent that such service provider is,
1189	1189	1166conducting business activities on behalf of, for the benefit of, at the direction of, and under
1190	1190	1167contractual agreement with a covered entity.
1191	1191	1168 (17)“Third party”, any covered entity or person other than (i) a covered entity that
1192	1192	1169collected or processed location information in accordance with this chapter or its service
1193	1193	1170providers, or (ii) the individual to whom the location information pertains. This term does not
1194	1194	1171include government entities.
1195	1195	1172 Section 2. Protection of location information 59 of 64
1196	1196	1173 (a)It shall be unlawful for a covered entity to collect or process an individual’s
1197	1197	1174location information except for a permissible purpose. Prior to collecting or processing an
1198	1198	1175individual’s location information for one of those permissible purposes, a covered entity shall
1199	1199	1176provide the individual with a copy of the Location Privacy Policy and obtain consent from that
1200	1200	1177individual; provided, however, that this shall not be required when the collection and processing
1201	1201	1178is done in (1) compliance with an obligation under federal or state law or (2) in response to an
1202	1202	1179emergency service agency, an emergency alert, a 911 communication, or any other
1203	1203	1180communication reporting an imminent threat to human life.
1204	1204	1181 (b)If a covered entity collects location information for the provision of multiple
1205	1205	1182permissible purposes, it shall be mentioned in the Location Privacy Policy and individuals shall
1206	1206	1183provide discrete consent for each purpose; provided, however, that this shall not be required for
1207	1207	1184the purpose of collecting and processing location information to comply with an obligation under
1208	1208	1185federal or state law or to respond to an emergency service agency, an emergency alert, a 911
1209	1209	1186communication, or any other communication reporting an imminent threat to human life.
1210	1210	1187 (c) A covered entity that directly delivers targeted advertisements as part of its product or
1211	1211	1188services shall provide individuals with a clear, conspicuous, and simple means to opt out of the
1212	1212	1189processing of their location information for purposes of selecting and delivering targeted
1213	1213	1190advertisements.
1214	1214	1191 (d) Consent provided under this section shall expire (1) after one year, (2) when the initial
1215	1215	1192purpose for processing the information has been satisfied, or (3) when the individual revokes
1216	1216	1193consent, whichever occurs first, provided that consent may be renewed pursuant to the same 60 of 64
1217	1217	1194procedures. Upon expiration of consent, any location information possessed by a covered entity
1218	1218	1195shall be permanently destroyed.
1219	1219	1196 (e) It shall be unlawful for a covered entity or service provider that lawfully collects and
1220	1220	1197processes location information to:
1221	1221	1198 (1)collect more precise location information than necessary to carry out the
1222	1222	1199permissible purpose;
1223	1223	1200 (2)retain location information longer than necessary to carry out the permissible
1224	1224	1201purpose;
1225	1225	1202 (3)sell, rent, trade, or lease location information to third parties; or
1226	1226	1203 (4)derive or infer from location information any data that is not necessary to carry
1227	1227	1204out a permissible purpose.
1228	1228	1205 (5)disclose, cause to disclose, or assist with or facilitate the disclosure of an
1229	1229	1206individual’s location information to third parties, unless such disclosure is (i) necessary to carry
1230	1230	1207out the permissible purpose for which the information was collected, or (ii) requested by the
1231	1231	1208individual to whom the location data pertains.
1232	1232	1209 (f) It shall be unlawful for a covered entity or service providers to disclose location
1233	1233	1210information to any federal, state, or local government agency or official unless (1) the agency or
1234	1234	1211official serves the covered entity or service provider with a valid warrant or establishes the
1235	1235	1212existence of exigent circumstances that make it impracticable to obtain a warrant, (2) disclosure
1236	1236	1213is mandated under federal or state law, including in response to a court order or lawfully issued 61 of 64
1237	1237	1214and properly served subpoena or civil investigative demand under state or federal law, or (3) the
1238	1238	1215data subject requests such disclosure.
1239	1239	1216 (g) A covered entity shall maintain and make available to the data subject a Location
1240	1240	1217Privacy Policy, which shall include, at a minimum, the following:
1241	1241	1218 (1)the permissible purpose for which the covered entity is collecting, processing, or
1242	1242	1219disclosing any location information;
1243	1243	1220 (2)the type of location information collected, including the precision of the data;
1244	1244	1221 (3)the identities of service providers with which the covered entity contracts with
1245	1245	1222respect to location data;
1246	1246	1223 (4)any disclosures of location data necessary to carry out a permissible purpose and
1247	1247	1224the identities of the third parties to whom the location information could be disclosed;
1248	1248	1225 (5)whether the covered entity’s practices include the internal use of location
1249	1249	1226information for purposes of targeted advertisement;
1250	1250	1227 (6)the data management and data security policies governing location information;
1251	1251	1228and
1252	1252	1229 (7)the retention schedule and guidelines for permanently deleting location
1253	1253	1230information.
1254	1254	1231 (h) A covered entity in lawful possession of location information shall provide notice to
1255	1255	1232individuals to whom that information pertains of any change to its Location Privacy Policy at
1256	1256	1233least 20 business days before the change goes into effect, and shall request and obtain consent 62 of 64
1257	1257	1234before collecting or processing location information in accordance with the new Location
1258	1258	1235Privacy Policy.
1259	1259	1236 (i) It shall be unlawful for a government entity to monetize location information.
1260	1260	1237 Section 3: Prohibition Against Retaliation
1261	1261	1238 A covered entity shall not take adverse action against an individual because the
1262	1262	1239individual exercised or refused to waive any of such individual’s rights under this chapter, unless
1263	1263	1240location data is essential to the provision of the good, service, or service feature that the
1264	1264	1241individual requests, and then only to the extent that such data is essential. This prohibition
1265	1265	1242includes but is not limited to:
1266	1266	1243 (1)refusing to provide a good or service to the individual;
1267	1267	1244 (2)charging different prices or rates for goods or services, including through the use
1268	1268	1245of discounts or other benefits or imposing penalties; or
1269	1269	1246 (3)providing a different level or quality of goods or services to the individual.
1270	1270	1247 Section 4. Enforcement
1271	1271	1248 (a)A violation of this chapter or a regulation promulgated under this chapter
1272	1272	1249regarding an individual’s location information constitutes an injury to that individual and shall be
1273	1273	1250deemed an unfair or deceptive act or practice in the conduct of trade or commerce under chapter
1274	1274	125193A.
1275	1275	1252 (b)Any individual alleging a violation of this chapter by a covered entity or service
1276	1276	1253provider may bring a civil action in the superior court or any court of competent jurisdiction; 63 of 64
1277	1277	1254provided that, venue in the superior court shall be proper in the county in which the plaintiff
1278	1278	1255resides or was located at the time of any violation.
1279	1279	1256 (c) An individual protected by this chapter shall not be required, as a condition of service
1280	1280	1257or otherwise, to file an administrative complaint with the attorney general or to accept mandatory
1281	1281	1258arbitration of a claim arising under this chapter.
1282	1282	1259 (d) In a civil action in which the plaintiff prevails, the court may award (1) actual
1283	1283	1260damages, including damages for emotional distress, or $5,000 per violation, whichever is greater,
1284	1284	1261(2) punitive damages; and (3) any other relief, including but not limited to an injunction or
1285	1285	1262declaratory judgment, that the court deems to be appropriate. The court shall consider each
1286	1286	1263instance in which a covered entity or service provider collects, processes, or discloses location
1287	1287	1264information in a manner prohibited by this chapter or a regulation promulgated under this chapter
1288	1288	1265as constituting a separate violation of this chapter or regulation promulgated under this chapter.
1289	1289	1266In addition to any relief awarded, the court shall award reasonable attorney’s fees and costs to
1290	1290	1267any prevailing plaintiff.
1291	1291	1268 (e) The attorney general may bring an action pursuant to section 4 of chapter 93A against
1292	1292	1269a covered entity or service provider to remedy violations of this chapter and for other relief that
1293	1293	1270may be appropriate.
1294	1294	1271 (f) Any provision of a contract or agreement of any kind, including a covered entity’s
1295	1295	1272terms of service or policies, including but not limited to the Location Privacy Policy, that
1296	1296	1273purports to waive or limit in any way an individual’s rights under this chapter, including but not
1297	1297	1274limited to any right to a remedy or means of enforcement, shall be deemed contrary to state law
1298	1298	1275and shall be void and unenforceable. 64 of 64
1299	1299	1276 (g) No private or government action brought pursuant to this chapter shall preclude any
1300	1300	1277other action under this chapter.
1301	1301	1278 Section 5. Implementation
1302	1302	1279 The Attorney General may adopt, amend or repeal rules and regulations for the
1303	1303	1280implementation, administration, and enforcement of this chapter.
1304	1304	1281 SECTION 3. Location Information Collected Before Effective Date
1305	1305	1282 Location information collected, processed, and stored prior to the effective date of this
1306	1306	1283Act shall be subject to subsections 2(e)(3), 2(e)(5), and 2(f) of Chapter 93N.
1307	1307	1284 SECTION 4. Effective Date
1308	1308	1285 This Act shall take effect 1 year after enactment.