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Delaware’s Governor Signed the Delaware Personal Data Privacy Act

By Jason C. Gavejian & Joseph J. Lazzarotti on October 24, 2023
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On September 11, 2023, Delaware’s Governor signed House Bill 154 which enacts the state’s comprehensive consumer data privacy statute. Delaware joins  California, Colorado, Connecticut, Indiana, Iowa, Montana, Oregon, Tennessee, Texas, Utah, and Virginia in enacting a comprehensive consumer privacy law. 

The law will take effect on January 1, 2025.

To whom does the law apply?

The statute applies to persons who conduct business in the state or persons who produce products or services that are targeted to residents of the state and who during the prior calendar year did any of the following:

  • Controlled or processed the personal data of 35,000 consumers or more, excluding personal data controlled or processed for the purpose of completing a payment transaction.
  • Controlled or processed personal data of 10,000 consumers or more and derived more than 20 percent of their gross revenue from the sale of personal data.

Hereafter, covered businesses are referred to as controllers.

However, the statute does not apply to the following entities:

  • Any regulatory, administrative, advisory, executive, legislative, or similar body of Delaware.
  • Any financial institution subject to Title V of the Gamm Leach Bliley Act.
  • Any non-profit organization dedicated exclusively to preventing and addressing insurance crime.

Who is protected by the law?

The law protects consumers which is defined under the law as an individual who is a resident of Delaware but does not include an individual acting in a commercial or employment context or as an employee, owner, director, officer, or contractor whose communications or transaction with the controller occur solely within the context of the individual’s role with the entity.

What data is protected by the law?

The law protects personal data which means any information that is linked or reasonably linkable to an identified or identifiable individual and does not include de-identified data or publicly available information.

The statute does not apply to certain health data including protected health information under the Health Insurance Portability and Accountability Act (HIPAA).

What are the rights of consumers?

Under the statute, consumers have the following rights:

  • To confirm whether a controller is processing the consumer’s personal data.
  • To access personal data processed by a controller.
  • To correct inaccuracies in the consumer’s personal data.
  • To delete personal data provided by or obtained about the consumer.
  • To obtain a copy of the consumer’s personal data processed by the controller.
  • To obtain a list of the categories of third parties to which the controller has disclosed the consumer’s personal data.
  • To opt out of the processing of the personal data for purposes of targeted advertising and profiling.

What obligations do businesses have?

Generally, a covered controller shall respond to a consumer exercising their rights under the statute without undue delay but not later than 45 days after receipt of the request. The controller may extend the response person by 45 additional days when reasonably necessary based upon the complexity and number of requests and other factors.

Information provided to a consumer in response to a request shall be provided free of charge, once per consumer during any 12-month period.

If the controller declines to take action in response to a consumer request they must inform the consumer without undue delay, but not later than 45 days after receipt of the request.

Moreover, controllers must limit the collection of personal data to what is adequate, relevant, and reasonably necessary in relation to the purpose for which the data is processed.

Controllers must also establish and maintain reasonable administrative, technical, and physical data security practices to protect personal data.

Further, controllers must provide reasonably accessible, clear, and meaningful privacy notices that include the following:

  • The categories of personal data processed by the controller.
  • The purposes for processing the personal data.
  • How consumers may exercise their rights under the statute.
  • The categories of personal data that the controller shares personal data.
  • An active electronic mail address or the online mechanism that the consumer may use to contact the controller.

Processors of data also have enumerated obligations under the statute.

How is the law enforced?

Delaware’s Department of Justice has enforcement authority over the statute and may investigate and prosecute violations.

There is no private right of action under the statute.

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

Photo of Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is the office managing principal of the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and a member of the firm’s Board of Directors. He is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy…

Jason C. Gavejian is the office managing principal of the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and a member of the firm’s Board of Directors. He is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Jason focuses on the matrix of laws governing privacy, security, and management of data. Jason is co-editor of, and a regular contributor to, the firm’s Privacy blog.

Jason’s work in the area of privacy and data security includes counseling international, national, and regional companies on the vast array of privacy and security mandates, preventive measures, policies, procedures, and best practices. This includes, but is not limited to, the privacy and security requirements under state, federal, and international law (e.g., HIPAA/HITECH, GDPR, California Consumer Privacy Act (CCPA), FTC Act, ECPA, SCA, GLBA etc.). Jason helps companies in all industries to assess information risk and security as part of the development and implementation of comprehensive data security safeguards including written information security programs (WISP). Additionally, Jason assists companies in analyzing issues related to: electronic communications, social media, electronic signatures (ESIGN/UETA), monitoring and recording (GPS, video, audio, etc.), biometrics, and bring your own device (BYOD) and company owned personally enabled device (COPE) programs, including policies and procedures to address same. He regularly advises clients on compliance issues under the Telephone Consumer Protection Act (TCPA) and has represented clients in suits, including class actions, brought in various jurisdictions throughout the country under the TCPA.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joe has had the honor of being a part of the AmLaw 100, nationwide law firm, Jackson Lewis, which has 60+ offices around the country, for nearly 25 years. After practicing in the northeast for most of his career, Joe is resident in…

Joe has had the honor of being a part of the AmLaw 100, nationwide law firm, Jackson Lewis, which has 60+ offices around the country, for nearly 25 years. After practicing in the northeast for most of his career, Joe is resident in the firm’s growing Tampa office.

In 2005, as an associate, Joe founded and currently co-leads the firm’s national privacy, cybersecurity, and AI practice groups, which touts 25+ attorneys navigating complex and emerging challenges, particularly around the collection, use, disclosure, and retention of personal information, the deployment of artificial intelligence, and overall governance, risk and compliance in these areas, including FTCA, HIPAA, NIST, CCPA, CPRA, BIPA, GIPA, NY SHIELD, CIPA, etc. Joe has handled hundreds of data breaches, stood up cybersecurity compliance programs, and established AI governance programs.

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  • Posted in:
    Privacy and Cybersecurity
  • Blog:
    Workplace Privacy, Data Management & Security Report
  • Organization:
    Jackson Lewis P.C.
  • Article: View Original Source

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