On April 17, 2024, Nebraska’s governor signed Legislative Bill 1074, which establishes a consumer data privacy law for the state.

Nebraska’s law takes effect January 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 (GLBA), 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 [emphasis added].

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.

If you have questions about Nebraska’s privacy law or related issues please reach out to a member of our Privacy, Data, and Cybersecurity practice group to discuss.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.