Nebraska Data Privacy Act

What you need to know about the NDPA:

To Whom Does NDPA Apply?

The NDPA applies to for-profit entities that:

  1. Conduct business or provide products or services to residents of Nebraska (consumers), and 
  2. Processes or engages in the sale of personal information, and
  3. Is not a small business under the federal Small Business Act.
    1. Small businesses’ only obligation is that they not engage in the sale of sensitive PI without the consumers consent.
Where Does Nebraska NOT Apply?

Exempt Entities: Exempt entities include:

  • Non-profits
  • State government entities;
  • Higher education Institutions;
  • HIPAA-covered entities;
  • GLBA-covered entities;
  • FINRA national securities associations that are registered under the SEC Act of 1934;
  • Certain electric and natural gas utilities.

Exempt Data:  NDPA exempts many different types of data from coverage under the law. Below is a list of some of the more commonly held data types that are exempt under the law.

  • Protected Health Information under HIPAA;
  • GLBA-covered data;
  • Various federally and internationally protected health and patient information, including that protected by the Common Rule, human subject data, and more;
  • Various forms of credit data regulated by the Fair Credit Reporting Act; and
  • Data covered by a wide variety of other federal laws including Family Educational Rights, Farm Credit Act, and Privacy Act, and Driver’s Privacy Protection Act.

Exempt Use Cases: The NDPA is not applicable in some circumstances, such as:

  • Processing PI in an employment or commercial (B2B) context;
  • Processing PI for emergency contact purposes; and
  • Processing PI of another individual in relation to the provision of benefits.

In addition, the VCDPA specifies that its law should not be construed to restrict a business’s collection, use, or retention of PI for:

  • Conducting internal research for development, improvement, and repair of products, services, and technology (R&D);
  • Product recalls;
  • Identifying and repairing technical errors that impair existing or intended functionality; and
  • Performing internal operations.


Key Components of Nebraska’s Data Privacy Law

What Constitutes Personal Information in Nebraska?

The NDPA covers “Personal Data,” or PI, which Nebraska defines as: “any information that is linked or reasonably linkable to an identified or identifiable individual.” The definition exempts de-identified and information made publicly available by government records, the media, or the consumer.

What Constitutes Sensitive PI?

Nebraska’s definition of sensitive personal information consists of:

  • Racial or ethnic origin;
  • Religious beliefs;
  • Mental or physical diagnosis;
  • Sexual orientation;
  • Citizenship or immigration status;
  • PI about a known child;
  • Precise geolocation;
  • Genetic or biometric data processed for the purpose of identification.
Any Other Categories of Data I Should Think About?

Where a controller processes de-identified data, NDPA requires it to take reasonable measures to ensure the data cannot be associated with an individual; publicly commit to maintaining such data without an attempt to re-identify it; and contractually obligate any recipients of the data to comply with Nebraska’s law.

Nebraska also exempts pseudonymous data from access, correction, and deletion rights requests where the controller can show it keeps information that would allow the data to be re-identified separate and subject to technical and organizational controls that prevent its use for re-identification.

Is consent needed to Process Sensitive PI?

In a word: YES!

Is Consent Needed for Any Other Processing?

Parental consent is required to process PI about a known child (under 13) in accordance with COPPA. Unlike many other laws no data subject consent is required to sell the PI of a minor above 13.

Consent is also required for secondary use of information that is not necessary or compatible with the purpose for collection and hasn’t been noticed to the consumer.

What Needs to Be Included in the Privacy Notice?

A privacy notice must include:

  • The categories of PI processed, including categories of sensitive PI if applicable;
  • The purpose for processing PI;
  • The categories of third parties with which PI is shared;
  • The categories of PI that are shared with third parties;
  • The methods for a consumer to exercise their rights (see below) and appeal a decision on their rights request; and
  • Description of targeted advertising and selling activities including a procedure for opting out of the processing for these purposes.
What Constitutes “Sale” of PI?

Nebraska defines “sale” to include exchange for monetary or other valuable consideration.

There are limits on the definition of “sale” to ensure that certain business functions are not unintentionally impeded by this law. Examples of activities deemed not to be a sale include: the disclosure of PI to provide a product or service requested by the consumer, the disclosure of PI to an affiliate, disclosure of PI intentionally made public, and the disclosure of PI as part of a merger.

How Will NDPA Be Enforced?

The Nebraska Attorney General (AG) has sole enforcement authority. The AG may bring an enforcement action after providing a 30-day notice and an opportunity for the business to cure the alleged violation(s); the cure period has no sunset. Penalties may include injunctive relief (the company must immediately stop certain behaviors) and/or fines of up to $7,500 per violation, plus attorney’s fees, investigative costs, and any other relief the court determines appropriate.

Data Privacy is Just Good Business