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Nebraska becomes latest state to join US privacy landscape
Governor Jim Pillin signed the Nebraska Data Privacy Act into law on April 17, 2024 making it the fourth state to pass such legislation in 2024
Alexis Kateifides
Director, Regulatory Intelligence
April 19, 2024
On April 17, 2024, the Nebraska Data Privacy Act (NDPA) was signed into law by Governor Jim Pillin, making it the latest state to join the US privacy landscape this year - and the 17th overall. The NDPA bears similarities with many of the laws passed in 2024 including provisions for risk assessments and a range of consumer rights. As with many state privacy laws, the NDPA will be enforced by the Attorney General and is set to enter into effect on January 1, 2025. Here is a closer look at some of the key requirements of the law.
Who does the Nebraska Data Privacy Act apply to?
Unlike most US state privacy laws, the NDPA does not outline a quantifiable application threshold. However, it does define three criteria that an organization must meet for the act to apply. The NDPA will apply to organizations that:
Conduct business in the state of Nebraska or produce a product or service consumed by residents of Nebraska
Process or engage in the sale of personal data
Are not a small business as determined under the federal Small Business Act
There are a range of organizational exemptions to the NDPA including where organizations are a state agency or a financial institution subject to the Gramm-Leach-Bliley Act (GLBA), among others. There are also data level exemptions such as protected health information under the Health Insurance Portability and Accountability Act (HIPAA) and the NDPA does not apply to the processing of personal data by a person in the course of a purely personal or household activity.
What are the key requirements of the NDPA?
The NDPA follows closely in the footsteps of other state laws passed in 2024 such as in New Jersey, New Hampshire, and Kentucky. The NDPA sets out rules for privacy notices, consent, and risk assessments while also outlining a set of consumer rights to give individuals greater control over their personal information.
Consumer rights
A key element of the NDPA is the set of consumer rights it grants individuals. Consumer rights under the NDPA include:
- The right to confirm processing
- The right to access
- The right to correct inaccuracies
- The right to deletion
- The right to data portability
- The right to opt out of processing for the purposes of:
- Targeted advertising
- The sale of personal data
- Profiling
- Targeted advertising
Under the NDPA, controllers must respond to consumer requests without undue delay and within 45 days but can request a 45-day extension. Controllers must also establish at least two secure methods for consumers to submit requests.
Consent
The NDPA defines consent as “a clear and affirmative act signifying a consumer's freely given, specific, informed, and unambiguous agreement to process personal data relating to the consumer, including a statement written by electronic means or any other unambiguous affirmative action by the consumer.”
Consent cannot be obtained through the acceptance of broad terms, actions such as hovering over, muting, pausing, or closing a given piece of content, or through the use of dark patterns.
In the context of processing sensitive data - which under the NDPA includes, racial or ethnic origin, religious beliefs, mental or physical health diagnosis, sexual orientation, citizenship or immigration status, and biometric data - organizations are required to operate on an opt-in basis, meaning that they cannot process a consumer’s sensitive data without first obtaining explicit consent to do so.
Privacy notices
To meet transparency requirements, organizations must provide individuals with a “reasonably accessible and clear privacy notice.” This privacy notice should contain the following information at a minimum:
The categories of personal data being processed
The purposes of processing
How a consumer can exercise their rights
How a consumer may appeal a controller's decision relating to a rights request
The categories of personal data shared with third parties
The categories of third parties that personal data; is shared with
A description of the methods individuals can use to make a consumer request
Data protection assessments
The NDPA sets out requirements for conducting data protection assessments for a range of specified processing activities. Controllers should undertake a data protection assessment when processing involves:
Processing personal data for targeted advertising
The sale of personal data
Processing personal data for profiling
The processing of sensitive data
Any processing activity that presents a heightened risk of harm to the consumer
Data protection assessments should identify and balance the benefits of the processing activities against the potential risks to the rights of the consumer. The NDPA also specifies that a single assessment may address a comparable set of processing activities and assessments conducted for compliance with other laws may satisfy the requirements of the NDPA.
Enforcement
As with most US state privacy laws, the local Attorney General will have exclusive authority to enforce NDPA and will post to its website further Information relating to:
The responsibilities of a controller
The responsibilities of a processor
A consumer's rights under the NDPA
The Attorney General will have the responsibility to investigate potential violations of the act and can issue a 30-day cure period for organizations to remediate any violations found. Failure to remedy violations after such a cure period will result in the organization being liable for civil penalties of up to $7,500 per violation. There is no privacy right of action.
Next steps and how to prepare for the NDPA
The Nebraska Data Privacy Act will take effect on January 1, 2025, providing organizations with less than one year to align their privacy programs with this new set of rules. While many of the requirements set out by the NDPA resemble those found under other state privacy laws, organizations should first ensure that highly visible areas of compliance such as privacy notices and consumer rights requests processes meet the specific criteria this law sets out.
Learn more about how the OneTrust Privacy & Data Governance cloud can help you to get your privacy program up to speed with the Nebraska Data Privacy Act.
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