Nebraska Data Privacy Act
The Nebraska Data Privacy Act (NDPA) was signed into law on April 17, 2024, and has an effective date of January 1, 2025. The law follows the Washington Privacy Act model. The law tracks closest with Texas in scope, eliminating the number of records processed as a qualifier and instead using a federal definition of a small business. Additionally, it has no obligation for consent to sell the personal information of minors 13 years and older and a unique provision around universal opt-out mechanisms.
What you need to know about the NDPA:
The NDPA applies to for-profit entities that:
- Conduct business or provide products or services to residents of Nebraska (consumers), and
- Processes or engages in the sale of personal information, and
- Is not a small business under the federal Small Business Act.
- Small businesses’ only obligation is that they not engage in the sale of sensitive PI without the consumers consent.
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
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.
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.
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.
In a word: YES!
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.
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.
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.
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.
Privacy Rights
If NDPA applies to your business, you must provide the following privacy rights to consumers:
- Right to know whether a business is processing your PI;
- Right to access PI;
- Right to Correct inaccuracies in PI;
- Right to delete PI about them;
- Right to obtain a copy of PI (data portability) provided by them, with restrictions; and
- Right to opt out of the sale of personal, processing for targeted advertising, or profiling in furtherance of decisions that produce legal or similarly significant effects concerning the consumer.
Nebraska requires that businesses respond to individual rights requests within 45 days of receipt of the request, with a permissible 45-day extension in limited circumstances. Responses must be provided free of charge twice a year. Businesses may deny a rights request in certain circumstances, including inability to verify the identity of a requestor. When a business denies a request, the business must notify the consumer within the 45-day timeframe and provide the reason for the denial as well as instructions for how to appeal the decision.
The appeals process must be conspicuously available to consumers and similar to the process for submitting an initial privacy rights request. Businesses must respond to appeals within 60 days of receipt and, if denying an appeal, must provide the consumer with an online method to file a complaint with the attorney general.
Universal Opt Out
Uniquely, Nebraska requires that businesses recognize universal opt-out signals, but only if the controller is required to do so by another state’s law. Universal opt-out, or global privacy control, is a technical standard that enables users to automatically communicate their privacy preferences, such as opting out of the sale of their personal information, to websites through their web browser or other technologies.
Privacy Impact Assessments
NDPA requires that covered organizations conduct data protection impact assessments, or privacy impact assessments (PIAs), for certain high-risk processing.
NDPA requires assessments for activities that present a heightened risk of harm, specifically including:
- Processing for targeted advertising;
- Processing sensitive data;
- Selling PI;
- Processing for the purposes of profiling if it presents a ‘reasonably foreseeable risk’ of
- Unfair or deceptive treatment or unlawful disparate impact on consumers;
- Financial, physical or reputational injury to consumers;
- Physical or other intrusion on the solitude or seclusion, or private affairs or concerns, which would be offensive to a reasonable person; or
- Other substantial injury.
Vendor Contracts
Nebraska requires controllers to have a contract in place with vendors that dictates obligations with respect to processing PI. Contracts must include:
- Instructions for processing PI;
- The nature and purpose of processing;
- Type of data that is subject to processing;
- The duration of processing;
- A duty of confidentiality for individuals who process the PI;
- The rights and obligations of both parties;
- Obligation to delete or return all PI at the controller’s direction or when it has completed the services, unless retention of the PI is required by law;
- Obligation to make available all information necessary to demonstrate the vendor’s compliance with its obligations;
- Compliance with audits by the controller or independent auditor and to provide a report of the assessment to the controller; and
- Pass along obligations to any subcontractor in a written contract.
Data Minimization
Nebraska limits the collection of PI “to what is adequate, relevant, and reasonably necessary in relation to the purposes for which that personal data is processed, as disclosed to the consumer.” Where processing is not necessary or compatible with the purpose for collection, organizations must obtain consumers’ consent for the processing.
Data Privacy is Just Good Business
Managing privacy compliance with all these new state privacy laws popping up in the U.S., might seem like a daunting task. But just because the task appears daunting, it doesn’t mean that it’s impossible to handle.
You don’t have to go at it alone! With the right support, you can make data privacy measures a sustainable part of your daily operations. That’s where Red Clover Advisors comes in – to deliver practical, actionable, business-friendly privacy strategies to help you achieve data privacy compliance and establish yourself as a consumer-friendly privacy champion that customers will appreciate.
