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FMG Law Blog Line

Currently pending in the Massachusetts legislature is Bill S.120 entitled “An Act Relative to Consumer Data Privacy”

Posted on: April 25th, 2019

By: Eric Martignetti

The proposed bill defines “personal information” as “information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or the consumer’s device.” “Personal information” includes “biometric information.” “Biometric information” is “an individual’s physiological, biological or behavioral characteristics, including an individual’s DNA, that can be used, singly or in combination with each other or with other identifying data, to establish individual identity,” including “imagery of the iris, retina, fingerprint, face, hand, palm, vein patterns, and voice recordings, from which an identifier template, such as a faceprint, a minutiae template, or a voiceprint, can be extracted, and keystroke patterns or rhythms, gait patterns or rhythms, and sleep, health, or exercise data that contain identifying information.”

Under the proposed bill, a business that collects a consumer’s personal information shall, at or before the point of collection, notify a consumer of: (1) the categories of personal information it will collect; (2) the business purpose for which their personal information will be used; (3) the categories of third parties to whom the business discloses their personal information; (4) the business purpose for the third-party disclosure; and (5) the consumer’s right to request a copy of their personal information, the deletion of their personal information, and the right to opt out of the disclosure of their personal information to third parties. Also, a business must include these five items either in its online privacy policy or on its website.

Under the proposed bill, a business shall also make reasonably available to consumers two or more methods, including a link on the home page of its website, for submitting a consumer verified request. Through a consumer verified request, a consumer can request: (1) the specific pieces of personal information the business has collected about them; (2) the sources from which their personal information was collected; (3) the names of third parties to whom the business disclosed their personal information; and (4) the business purpose for third-party disclosure.

The proposed bill applies to a “business” that: (1) “is organized or operated for the profit or financial benefit of its shareholders or other owners”; (2) “collects Massachusetts consumers’ personal information”; and (3) “has annual gross revenues in excess of $10,000,000” or “derives 50 percent or more of its annual revenues from third party disclosure of consumers’ personal information.”

The proposed bill carves out an exception for “a business collecting or disclosing personal information of the business’s employees so long as the business is collecting or disclosing such information within the scope of its role as an employer.” This exception would, in most cases, protect employers from lawsuits brought by employees under the Act.

The proposed bill creates a private right of action for consumers. In a private right of action, a consumer need not suffer a loss of money or property, and they may recover $750 in statutory damages of their actual damages, whichever is greater. A consumer may also recover costs and attorneys’ fees.

If you have any questions or would like more information, please contact Eric Martignetti at [email protected].

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