Definitions

The Act contains definitions for terms including biometric data, consent, consumer, dark pattern, de-identified data, genetic data, and personal data among others. Notably, the Act defines a controller as a person that, alone or jointly with others, determines the purpose and means of processing personal data.

While personal data is defined as any information that is linked or reasonably linkable to an identified or identifiable individual and does not include de-identified data or publicly available information. On the other hand, de-identified data is defined as data that cannot reasonably be used to infer information about, or otherwise be linked to, an identified or identifiable individual, or a device linked to such individual, if the controller that possesses such data does all of the following:

• takes reasonable measures to ensure that such data cannot be associated with an individual;
• publicly commits to process such data only in a de-identified fashion and not attempt to re-identify such data;
• contractually obligates any recipients of such data to comply with all of the provisions of this chapter applicable to the controller with respect to such data.

Sensitive data is considered personal data that includes any of the following:

• data revealing racial or ethnic origin, religious beliefs, mental or physical health condition or diagnosis (including pregnancy), sex life, sexual orientation, status as transgender or nonbinary, national origin, citizenship status, or immigration status;
• genetic or biometric data;
• personal data of a known child;
• precise geolocation data.

Scope

The Act is applicable to persons that conduct business in Delaware or persons that produce products or services that are targeted to residents of Delaware and that during the preceding calendar year did any of the following:

• controlled or processed the personal data of not less than 35,000 consumers, excluding personal data controlled or processed solely for the purpose of completing a payment transaction; or
• controlled or processed the personal data of not less than 10,000 consumers and derived more than 20% of their gross revenue from the sale of personal data.

However, the Act clarifies that any regulatory, administrative, advisory, executive, appointive, legislative, or judicial body of the State or a political subdivision of the State, excluding any institution of higher education, and financial institutions subject to the Gramm Leach Bliley Act of 1999 are not subject to the Act. In addition, the Act does not apply to non-profit organizations dedicated exclusively to preventing and addressing insurance crime.

Certain types of information are also exempt under the Act including:

• protected health information under the Health Insurance Portability and Accountability Act of 1996 (HIPAA);
• the collection, maintenance, disclosure, sale, communication, or use of any personal information bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living by a consumer reporting agency, furnisher, or user that provides information for use in a consumer report and by a user of a consumer report, but only to the extent that the activity is regulated by, and authorized under, the Fair Credit Reporting Act of 1970 (FCRA);
• data processed or maintained in any of the following ways:
  • in the course of an individual applying to, employed by, or acting as an agent or independent contractor of a controller, processor, or third party, to the extent that the data is collected and used within the context of that role;
  • as the emergency contact information of an individual, used for emergency contact purposes; and
  • necessary to retain to administer benefits for another individual relating to the individual in certain circumstances and used for the purposes of administering such benefits; and
• personal data regulated by the Family Educational Rights and Privacy Act (FERPA).

Data subject rights

The consumer rights provided in the Act include the following:

• the right to confirm whether a controller is processing the consumer's personal data;
• the right to access such personal data;
• the right to correct inaccuracies in the consumer's personal data, taking into account the nature of the personal data and the purposes of the processing;
• the right to delete personal data provided by, or obtained about, the consumer;
• the right to obtain a copy of the consumer's personal data processed by the controller, in a portable, and to the extent technically feasible, readily usable format that allows the consumer to transmit the personal data to another controller without hindrance when the processing is carried out by automated means;
• the right to obtain a list of third parties to which the controller has disclosed the consumer's personal data; and
• the right to opt out of the processing of personal data for the purposes of:
  • targeted advertising;
  • the sale of personal data; or
  • profiling in furtherance of solely automated decisions that produce legal or similarly significant effects concerning the consumer.

The Act establishes that consumer rights must be exercised using secure and reliable means established by the controller and described to the consumer in the controller's privacy notice. Consumers may designate an authorized agent to exercise their rights to opt out of the processing of the consumer's personal data on behalf of the consumer. Likewise, in the case of processing of personal data concerning a known child or concerning a consumer subject to a guardianship, conservatorship, or other protective arrangement, the parent or legal guardian, or guardian or conservator respectively may exercise consumer rights on their behalf.

The Act provides guidance for compliance with consumer rights, outlining that controllers must respond to consumers without undue delay, but not later than 45 days after receipt of the request. Controllers may extend the response period by 45 additional days when reasonably necessary, considering the complexity and number of the consumer's requests, provided the controller informs the consumer of such extension within the initial 45-day response period and of the reason for the extension. However, if controllers decline to take action on a consumer request, they must inform the consumer without undue delay, but not later than 45 days after receipt of the request, of the justification for declining to take action and provide instructions for how to appeal the decision.

The information provided in response to a consumer request must be provided by a controller free of charge, once per consumer during any 12-month period. Where requests are manifestly unfounded, excessive, or repetitive, the controller may charge the consumer a reasonable fee to cover the administrative costs of complying with the request or decline to act on the request. Controllers must bear the burden of demonstrating the manifestly unfounded, excessive, or repetitive nature of the request.

Where controllers are unable to authenticate a request to exercise a consumer's right using commercially reasonable efforts, the controller must not be required to comply with the request until the consumer provides additional information reasonably necessary to authenticate it. Controllers are not required to authenticate an opt-out request, but may deny an opt-out request if the controller has a good faith, reasonable, and documented belief that such request is fraudulent. Where this is the believed case, the controller must send a notice to the person who made the request disclosing the controller's belief that the request is fraudulent, why the controller holds such belief, and informing the consumer that the controller will not comply with the opt-out request.

Controllers must also establish a process for a consumer to appeal the controller's refusal to act on a consumer request within a reasonable period of time after the consumer's receipt of the decision. The appeal process must be conspicuously available and similar to the process of submitting requests. Not later than 60 days after receiving an appeal, controllers must inform consumers of any action taken or not taken in response to the appeal, including a written explanation of the reasons for the decision. Notably, if the appeal is denied, the controller must provide the consumer with an online mechanism or other method through which the consumer may contact the Department of Justice.

In relation to personal data about a consumer obtained from a third party a controller is considered to comply with a deletion request by retaining a record of the deletion request and the minimum data necessary for the purpose of ensuring that the consumer's personal data remains deleted from the controller's records and not using such retained data for any other purpose.

Similarly, consumers may designate an authorized party to act on their behalf to opt out of their personal data or one or more of the purposes specified in paragraph (a)(5) of §12D-104 of the Act. Consumers may designate an authorized agent by a platform, technology, or mechanism, including an internet link or browser setting for example, indicating the consumer's intent to opt out of such processing. Controllers must comply with an opt-out request received from an authorized agent if the controller is able to verify, with commercially reasonable effort, the identity of the consumer and the authorized agent's authority to act on such consumer's behalf.

Controller obligations

The Act stipulates that controllers must:

• limit the collection of personal data to what is adequate, relevant, and reasonably necessary in relation to the purposes for which such data is processed, as disclosed to the consumer;
• not process personal data for purposes that are neither reasonably necessary to, nor compatible with, the disclosed purposes for which such personal data is processed, as disclosed to the consumer, unless the controller obtains the consumer's consent;
• establish, implement, and maintain reasonable administrative, technical, and physical data security practices to protect the confidentiality, integrity, and accessibility of personal data appropriate to the volume and nature of the personal data at issue;
• not process sensitive data concerning a consumer without obtaining the consumer's consent, or, in the case of the processing of sensitive data concerning a known child, without first obtaining consent from the child's parent or lawful guardian;
• provide an effective mechanism for a consumer to revoke the consumer's consent that is at least as easy as the mechanism by which the consumer provided the consumer's consent and, upon revocation of such consent, cease to process the data as soon as practicable, but not later than 15 days after the receipt of such request;
• not process the personal data of a consumer for purposes of targeted advertising or sell the consumer's personal data without the consumer's consent when a controller has actual knowledge or willfully disregards that the consumer is at least 13 years of age but younger than 18 years of age; and
• not discriminate against a consumer for exercising their consumer rights including denying goods or services, charging different prices or rates for goods or services, or providing a different level of quality of goods or services to the consumer.

Privacy Notice

Controllers must establish and describe in a privacy notice, which should include:

• the categories of personal data processed by the controller;
• the purpose for processing personal data;
• how consumers may exercise their consumer rights, including how a consumer may appeal a controller's decision with regard to the consumer's request;
• the categories of personal data that the controller shares with third parties, if any;
• the categories of third parties with which the controller shares personal data, if any;
• an active electronic mail address or other online mechanism that the consumer may use to contact the controller; and
• if a controller sells personal data to third parties or processes personal data for targeted advertising, the controller shall clearly and conspicuously disclose such processing, as well as the manner in which a consumer may exercise the right to opt out of such processing.

In addition, the controller must  – taking into account the ways in which consumers normally interact with the controller, the need for secure and reliable communication of such requests, and the ability of the controller to verify the identity of the consumer making the request –establish one or more secure and reliable means for consumers to submit a request to exercise their consumer rights. The controller must not require a consumer to create a new account in order to exercise consumer rights, but may require a consumer to use an existing account. These means shall include:

• a clear and conspicuous link on the controller's website or webpage that enables a consumer, or an agent of the consumer, to opt out of the targeted advertising or the sale of the consumer's personal data; and
• not later than one year following the effective date of the Act, allow a consumer to opt out of any processing of the consumer's personal data for the purposes of targeted advertising, or any sale of such personal data, through an opt-out preference signal sent, with such consumer's consent, by a platform, technology, or mechanism to the controller indicating such consumer's intent to opt out of any such processing or sale. Such platform, technology, or mechanism shall:
  • not unfairly disadvantage another controller.
  • not make use of a default setting, but, rather, require the consumer to make an affirmative, freely given, and unambiguous choice to opt out of any processing of their personal data;
  • be consumer-friendly and easy to use by the average consumer;
  • be as consistent as possible with any other similar platform, technology, or mechanism required by any federal or state law or regulation; and
  • enable the controller to reasonably determine whether the consumer is a resident of Delaware and whether the consumer has made a legitimate request to opt out of any sale of their personal data or targeted advertising.

DPAs

Controllers that control or process the data of not less than 100,000 consumers, excluding data controlled or processed solely for the purpose of completing a payment transaction, must conduct and document, on a regular basis, a data protection assessment (DPA) for each of the controller's processing activities that presents a heightened risk of harm to the consumer. Processing that presents a heightened risk of harm to consumers is considered to include:

• the processing of personal data for the purposes of targeted advertising;
• the sale of personal data;
• the processing of personal data for the purposes of profiling, where such profiling presents a reasonably foreseeable risk of any of the following:
  • unfair or deceptive treatment of, or unlawful disparate impact on, consumers;
  • financial, physical, or reputational injury to consumers;
  • a physical or other intrusion upon the solitude or seclusion, or the private affairs or concerns, of consumers, where such intrusion would be offensive to a reasonable person; or
  • other substantial injury to consumers; and

• the processing of sensitive data.

DPAs must identify and assess the benefits that may flow, both directly and indirectly, from the processing to the controller, the consumer, other stakeholders, and the public, against the potential risks to the rights of the consumer associated with such processing, as mitigated by safeguards that can be employed by the controller to reduce such risks. Controllers must factor into any such data protection assessment the use of de-identified data and the reasonable expectations of consumers, as well as the context of the processing and the relationship between the controller and the consumer whose personal data will be processed.

A single DPA may address a comparable set of processing operations that include similar activities under the Act. Specifically, the Act provides that a controller conducting a DPA for the purpose of complying with another applicable law or regulation shall be deemed to satisfy the requirements established under the Act if the DPA is reasonably similar in scope and effect. However, DPAs apply to processing activities created or generated on or after six months after the Act entered into force and are not retroactive.

Finally, the Delaware Attorney General (AG) may require controllers to disclose any DPA relevant to an investigation conducted by the AG, and the controller must make the DPA available.

Use of de-identified and anonymized data

The Act establishes that nothing shall be construed to require a controller or processor to re-identify de-identified data or pseudonymous data, or to maintain data in identifiable form, or collect, obtain, retain, or access any data or technology in order to be capable of associating an authenticated consumer request with personal data. In addition, nothing under the Act shall be construed to require a controller or processor to comply with an authenticated consumer rights request if:

• the controller is not reasonably capable of associating the request with the personal data or it would be unreasonably burdensome for the controller to associate the request with the personal data;
• the controller does not use the personal data to recognize or respond to the specific consumer who is the subject of the personal data or to associate the personal data with other personal data about the same specific consumer; and
• the controller does not sell the personal data to any third party or otherwise voluntarily disclose the personal data to any third party other than a processor, unless otherwise permitted under the Act.

However, the above provisions do not apply to pseudonymous data in cases where the controller is able to demonstrate that any information necessary to identify the consumer is kept separately and is subject to effective technical and organizational controls that prevent the controller from accessing such information.

Where a controller does disclose pseudonymous or de-identified data, they must exercise reasonable oversight to monitor compliance with any contractual commitments to which the pseudonymous data or de-identified data is subject and shall take appropriate steps to address any breach of contractual commitments. The determination of the reasonableness of such oversight and the appropriateness of contractual enforcement must take into account whether the disclosed data includes data that would be considered sensitive data if it were re-identified.

Processor obligations

Processors must adhere to the instructions of controllers and shall assist controllers in meeting the controller's obligations under the Act. This includes:

• taking into account the nature of processing and the information available to the processor, implementing appropriate technical and organizational measures, insofar as is reasonably practicable, to support the controller in responding to consumer rights requests;
• taking into account the nature of processing and the information available to the processor, by assisting the controller in meeting the controller's obligations in relation to the security of processing the personal data and in relation to the notification of a breach of security of the system of the processor;
• providing necessary information to enable the controller to conduct and document DPAs.

The relationship between a controller and processor must be governed by a contract, which is binding and must clearly set forth instructions for processing data, the nature and purpose of processing, the type of data subject to processing, the duration of processing, and the rights and obligations of both parties. The contract also requires that the processor must:

• ensure that each person processing personal data is subject to a duty of confidentiality with respect to the data;
• at the controller's direction, delete or return all personal data to the controller as requested at the end of the provision of services unless retention of the personal data is required by law;
• upon the reasonable request of the controller, make available to the controller all information in its possession necessary to demonstrate the processor's compliance;
• after providing the controller an opportunity to object, engage any subcontractor pursuant to a written contract that requires the subcontractor to meet the obligations of the processor with respect to the personal data;
• allow and cooperate with reasonable assessments by the controller or the controller's designated assessor, or the processor may alternatively arrange for a qualified and independent assessor to conduct an assessment of the processor's policies and technical and organizational measures using an appropriate and accepted control standard or framework and assessment procedure for such assessments. Processors must provide a report of such assessment to the controller upon request.

Determining whether a person is acting as a controller or processor is a fact-based determination dependent on the context in which personal data is to be processed. Persons who are not limited in their processing of personal data pursuant to a controller's instructions, or who fail to adhere to instructions, are considered controllers with respect to the processing of data in a specific context. A processor that continues to adhere to a controller's instructions with respect to a specific processing of personal data is considered to remain a processor. If a processor begins, alone or jointly with others, determining the purposes and means of the processing of personal data, the processor is considered a controller with respect to such processing and may be subject to enforcement action.

Limitations

The Act outlines a list of items that must not be intended as being restricted by the same, which includes a controller's or processor's ability to:

• comply with federal, state, or local laws, rules, or regulations;

• comply with a civil, criminal, or regulatory inquiry, investigation, subpoena, or summons by federal, state, local, or other governmental authorities;
• cooperate with law enforcement agencies concerning conduct or activity that the controller or processor reasonably and in good faith believes may violate federal, state, or local laws, rules, or regulations;
• investigate, establish, exercise, prepare for, or defend legal claims;
• provide a product or service specifically requested by a consumer;
• perform under a contract to which a consumer is a party, including fulfilling the terms of a written warranty;
• take steps at the request of a consumer prior to entering into a contract;
• take immediate steps to protect an interest that is essential for the life or physical safety of the consumer or another individual, and where the processing cannot be manifestly based on another legal basis;
• prevent, detect, protect against, or respond to security incidents, identity theft, fraud, harassment, malicious or deceptive activities, or any illegal activity, preserve the integrity or security of systems, or investigate, report, or prosecute those responsible for any such activity;
• engage in public or peer-reviewed scientific research in the public interest that adheres to all other applicable ethics and privacy laws and is approved, monitored, and governed by an institutional review board; or
• assist another controller, processor, or third party.

In addition, the Act stipulates that nothing shall restrict a controller's or processor's ability to collect data directly from consumers, or use or retain such data, for internal use only, to:

• conduct internal research to develop, improve, or repair products, services, or technology;
• effectuate a product recall;
• identify and repair technical errors that impair existing or intended functionality;
• perform internal operations that are reasonably aligned with the expectations of the consumer or reasonably anticipated based on the consumer's existing relationship with the controller or are otherwise compatible with processing data in furtherance of the provision of a product or service specifically requested by a consumer or the performance of a contract to which the consumer is a party.

Regarding third parties, controllers or processors that disclose personal data to a processor or third-party controller in compliance with the Act are not deemed to have violated the Act if the processor or third-party controller violates the Act, provided that:

• at the time the disclosing controller or processor disclosed such personal data, the disclosing controller or processor did not have actual knowledge that the receiving processor or third-party controller had violated or would violate said sections; and
• the disclosing controller or processor was, and remained, in compliance with its obligations as the discloser of such data.

Third-party controllers or processors receiving data from a controller or processor are similarly not in violation of sections of the Act for the independent misconduct of the controller or processor from which the third-party controller or processor receives personal data.

Further, the Act notes that nothing shall be construed under the Act to:

• impose an obligation on a controller or processor that adversely affects the rights of any person to freedom of speech or freedom of the press guaranteed in the First Amendment to the United States Constitution;
• apply to any person's processing of personal data in the course of such person's purely personal or household activities.

Enforcement

The Department of Justice has exclusive authority to enforce the Act's provisions.

The Department of Justice may, prior to initiating any action for a violation of any provision of the Act, issue a notice of violation to the controller or processor if it determines that a cure is possible. If the Department of Justice issues a notice of violation, the controller shall have at least 60 days to remedy the violation after receiving the notice. If the controller fails to cure such violation within such time period, the Department of Justice may bring an enforcement proceeding. In determining whether to grant a controller or processor an opportunity to cure an alleged violation, the Department of Justice may consider:

• the number of violations;
• the size and complexity of the controller or processor;
• the nature and extent of the controller's or processor's processing activities;
• the substantial likelihood of injury to the public;
• the safety of persons or property;
• whether such alleged violation was likely caused by human or technical error; and
• the extent to which the controller or processor has violated the Act or similar laws in the past.

Importantly, nothing within the Act should be construed as providing the basis for, or being subject to, a private right of action for violations of the same.

Harry Chambers Senior Privacy Analyst
[email protected]