Nebraska Enacts a Comprehensive Consumer Data Privacy Law

On April 17, Nebraska’s governor signed Legislative Bill 1074, which establishes a consumer data privacy law for the state. Nebraska’s law takes effect Jan. 1, 2025.

To Whom Does the Law Apply?

The law applies to businesses that:

• Conduct business in Nebraska or produce a product or service consumed by residents of Nebraska.
• Process or sell personal data of residents of Nebraska.
• Are not a small business as defined under the federal Small Business Act.

Note that, unlike the comprehensive privacy laws in most other states, Nebraska’s law does not condition the application of the law on certain thresholds, such as the number of consumers from whom the entity collects personal information.

The statute also provides a combination of exemptions based on entity and type of data. Specifically, the statute excludes certain entities such as financial institutions subject to the Gramm-Leach-Bliley Act, institutions of higher education, and entities that are covered entities and business associates covered by the Health Insurance Portability and Accountability Act (HIPAA). Examples of the types of personal information that are excluded from the law include protected health information covered by HIPAA and personal information regulated by the Fair Credit Reporting Act.

Who Is Protected by the Law?

Consumer means an individual who is a resident of the State of Nebraska acting only in an individual or household context. The definition of consumer does not include an individual acting in a commercial or employment context.

What Data Is Protected by the Law?

Personal data is protected which is defined as any information that is linked or reasonably linked to an identified or identifiable individual. The law excludes de-identified data and publicly available information. The law also excludes personal data when in the context of commercial activities and employment.

What Are the Rights of Consumers?

Under the law, consumers have the following rights:

• To confirm whether a controller is processing their personal data.
• To access personal data processed by a controller.
• To correct inaccuracies in their personal data.
• To delete personal data provided by or obtained about the consumers
• To obtain a copy of their personal data that was previously provided to the controller
• To opt out of the processing of personal data for the purposes of targeted advertising, the sale of their personal data, or profiling in furtherance of a decision that produces a legal or similarly significant effect concerning the consumer.

Similar to the frameworks established in other states to process requests from consumers concerning these rights, controllers are required to respond within certain timeframes—generally 45 days—and provide a mechanism for appealing the denial of a right.

What Obligations Do Controllers Have?

In addition to responding to requests from consumers seeking to exercise their rights, the law also requires that controllers provide consumers with a reasonably accessible and clear privacy notice that includes:

• The categories of personal data processed by the controller.
• The purpose for processing the personal data.
• Information on how consumers may exercise their rights and appeal a controller’s decisions.
• The categories of data it shares and a description of at least two methods through which the consumer may use to submit a request to exercise a consumer right.

A description of its sale of personal information to third parties and processing of same for targeted advertising (including the process of opting out of that process).

Existing Nebraska law (Revised Statute 87-808) requires certain individuals and commercial entities in Nebraska to: “implement and maintain reasonable security procedures and practices that are appropriate to the nature and sensitivity of the personal information owned, licensed, or maintained and the nature and size of, and the resources available to, the business and its operations, including safeguards that protect the personal information when the individual or commercial entity disposes of the personal information.”

The state’s comprehensive privacy law includes a similar obligation to maintain reasonable administrative, technical, and physical data security practices that are appropriate to the volume and nature of the personal data at issue. Additionally, the comprehensive privacy law provides that, in general, controllers may not:

Process personal data for a purpose that is neither reasonably necessary to nor compatible with the disclosed purpose for which the personal data is processed, as disclosed to the consumer unless the controller obtains the consumer’s consent.

This and other language in the statute may raise data minimization obligations similar to those recently addressed by the California Privacy Protection Agency. 

Additionally, controllers must enter into written agreements with processors that process personal information on behalf of the controller. Examples of required provisions in these agreements include:

• Instructions for the processing of personal information.
• Ensure that any person at the processor responsible for processing personal information is subject to a duty of confidentiality.
• Cooperate with the controller’s data protection assessments, or obtain its own assessments which includes a requirement to provide a report of the assessment to the controller on request.
• At the controller’s direction, delete or return personal data at the termination of the agreement, unless retention is required by law.

How Is the Law Enforced?

The State Attorney General has exclusive enforcement authority and there is no private right of action available.

Joseph J. Lazzarotti is an attorney with Jackson Lewis in Tampa, Fla. © 2024 Jackson Lewis. All rights reserved. Reposted with permission.