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FL Data privacy bill

Kelly Hayes - March 23, 2021

The proposal would give consumers the right to control how their personal data is shared and sold.

A bill to enhance protection for internet users’ data cleared its second House panel Tuesday morning, accompanied by a bevy of amendments.

The legislation (HB 969), filed by Sarasota Republican Rep. Fiona McFarland, passed unanimously in the House Civil Justice and Property Rights Subcommittee. The proposal would give consumers the right to control how their personal data is shared and sold. That data helps businesses know more about individual consumers and helps direct targeted ads.

The bill would require businesses to publish a privacy policy and tell consumers, if asked, what data they have on them, how they got it, and how they use it. Consumers could ask to have that information deleted or corrected.

“This bold frontier has created a digital universe where a parallel but shapeless version of our identities exist,” McFarland said at the meeting. “And we believe that in Florida, our consumers ought to have a consistent expectation of how companies are handling that.”

The legislation faced a number of amendments at the committee hearing, ranging from technical corrections to content additions — and including one that drew criticism in public testimony. That amendment would allow a consumer to bring forward civil action against and receive relief from a business for continuing to sell, share or keep personal information after opting out.

The amendment would add the option of civil action in addition to the bill’s existing enforcement through the Attorney General, who would be given the power to enforce intentional and unintentional violations of the bill. It would allow between $100 and $750 in damages to be collected by a consumer per incident. If successful, the consumer could recover attorney’s fees and court costs.

Critics expressed concern the provision would lead to extraneous litigation and attorney fees for an ultimately small payout. Several commenters compared the amendment to Florida’s Personal Injury Protection (PIP) law.

“The problem with PIP is you see litigation over low dollar amounts that lead to big fees,” said William Large, president of the Florida Justice Reform Institute. “This bill has so many pitfalls that if you add the attorney’s fee piece to it, it’s going to be a litigation magnet like PIP and like workers compensation.”

Several members of the committee, including Republican Rep. Tom Gregory and Democrat Reps. Yvonne Hinson and Ben Diamond, echoed that apprehension.

“I totally support the goal of this bill, of providing additional protections for consumer privacy and personal information. I think the enforcement piece is the hard piece to sort,” Diamond said. 

While the amendment was approved, the members made clear they would like to come back to it. Other amendments added at the meeting clarify exceptions for medical information, information related to consumer reports and for transactional uses of information for credit card purchases. It also added an exemption for first party advertising.

Another amendment adds a provision requiring a business that collects a consumer’s personal information to implement and maintain reasonable security procedures and practices.

“I do not pretend this is a small bill, and am well-aware of the broad reaching consequences, and have worked to balanced feedback from industry and with the bill’s previous committee stop,” McFarland said. “Much of that feedback, and the conversations we’ve had at the bill’s first stop is reflected in the fact that I’m bringing seven amendments today.”

McFarland did receive praise from across the aisle for the bill, including from Orlando Democrat Rep. Anna Eskamani.

“The fact that she had seven amendments today I think is an indication that her door is open,” Eskamani said of the bill’s sponsor. “She’s trying to walk the line of protecting consumer data and consumer privacy, while also ensuring that the implementation will be smooth and the rules will work.”

The data privacy proposal is a priority of Gov. Ron DeSantis and House Speaker Chris Sprowls, announced as part of their plans this Session to combat “Big Tech,” both in social media and on consumer privacy.

The bill would also add biometric data to the list of protected information. That builds off of Sprowls’ 2020 DNA privacy bill, which DeSantis signed into law last year, making Florida the first state to guarantee such privacy for customers’ life, disability and long-term care insurance.

“This bill establishes data security that is akin to merely locking the front door,” she said. “Let’s get to the place where ‘Chad’ in grandma’s basement is not getting access to our personal information, and expect a hardened, private sector cybersecurity standards that are at least locking the front doors and windows.”

The House bill passed through its previous committee unanimously, and is now onto its final hearing in the House Commerce Committee.

A Senate version of the bill (SB 1734), which is being carried by Fleming Island Republican Sen. Jennifer Bradley, passed through its first committee Monday.