By: Johnson, et al. S.B. No. 2105
 
  (Holland)
 
   
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the registration of and certain other requirements
  relating to data brokers; providing a civil penalty and authorizing
  a fee.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Subtitle A, Title 11, Business & Commerce Code,
  is amended by adding Chapter 509 to read as follows:
  CHAPTER 509.  DATA BROKERS
         Sec. 509.001.  DEFINITIONS. In this chapter:
               (1)  "Biometric data" means data generated by automatic
  measurements of an individual's biological patterns or
  characteristics, including fingerprint, voiceprint, retina or iris
  scan, information pertaining to an individual's DNA, or another
  unique biological pattern or characteristic that is used to
  identify a specific individual.
               (2)  "Child" means an individual younger than 13 years
  of age.
               (3)  "Collect," in the context of data, means to
  obtain, receive, access, or otherwise acquire the data by any
  means, including by purchasing or renting the data.
               (4)  "Data broker" means a business entity whose
  principal source of revenue is derived from the collecting,
  processing, or transferring of personal data that the entity did
  not collect directly from the individual linked or linkable to the
  data.
               (5)  "Deidentified data" means data that cannot
  reasonably be linked to an identified or identifiable individual or
  to a device linked to that individual.
               (6)  "Employee" includes an individual who is a
  director, officer, staff member, trainee, volunteer, or intern of
  an employer or an individual working as an independent contractor
  for an employer, regardless of whether the individual is paid,
  unpaid, or employed on a temporary basis. The term does not include
  an individual contractor who is a service provider.
               (7)  "Employee data" means information collected,
  processed, or transferred by an employer if the information:
                     (A)  is related to:
                           (i)  a job applicant and was collected
  during the course of the hiring and application process;
                           (ii)  an employee who is acting in a
  professional capacity for the employer, including the employee's
  business contact information such as the employee's name, position,
  title, business telephone number, business address, or business
  e-mail address;
                           (iii)  an employee's emergency contact
  information; or
                           (iv)  an employee or the employee's spouse,
  dependent, covered family member, or beneficiary; and
                     (B)  was collected, processed, or transferred
  solely for:
                           (i)  a purpose relating to the status of a
  person described by Paragraph (A)(i) as a current or former job
  applicant of the employer;
                           (ii)  a purpose relating to the professional
  activities of an employee described by Paragraph (A)(ii) on behalf
  of the employer;
                           (iii)  the purpose of having an emergency
  contact on file for an employee described by Paragraph (A)(iii) and
  for transferring the information in case of an emergency; and
                           (iv)  the purpose of administering benefits
  to which an employee described by Paragraph (A)(iv) is entitled or
  to which another person described by that paragraph is entitled on
  the basis of the employee's position with the employer.
               (8)  "Genetic data" means any data, regardless of
  format, concerning an individual's genetic characteristics. The
  term includes:
                     (A)  raw sequence data derived from sequencing all
  or a portion of an individual's extracted DNA; and
                     (B)  genotypic and phenotypic information
  obtained from analyzing an individual's raw sequence data.
               (9)  "Individual" means a natural person residing in
  this state.
               (10)  "Known child" means a child under circumstances
  where a data broker has actual knowledge of, or wilfully disregards
  obtaining actual knowledge of, the child's age.
               (11)  "Personal data" means any information, including
  sensitive data, that is linked or reasonably linkable to an
  identified or identifiable individual. The term includes
  pseudonymous data when the information is used by a controller or
  processor in conjunction with additional information that
  reasonably links the information to an identified or identifiable
  individual. The term does not include deidentified data, employee
  data, or publicly available information.
               (12)  "Precise geolocation data" means information
  accessed on a device or technology that shows the past or present
  physical location of an individual or the individual's device with
  sufficient precision to identify street-level location information
  of the individual or device in a range of not more than 1,850 feet.  
  The term does not include location information regarding an
  individual or device identifiable or derived solely from the visual
  content of a legally obtained image, including the location of a
  device that captured the image.
               (13)  "Process," in the context of data, means an
  operation or set of operations performed, whether by manual or
  automated means, on personal data or on sets of personal data, such
  as the collection, use, storage, disclosure, analysis, deletion, or
  modification of personal data.
               (14)  "Publicly available information" means
  information that:
                     (A)  is lawfully made available through
  government records;
                     (B)  a business has a reasonable basis to believe
  is lawfully available to the general public through widely
  distributed media; or
                     (C)  is lawfully made available by a consumer, or
  by a person to whom a consumer has disclosed the information, unless
  the consumer has restricted access to the information to a specific
  audience.
               (15)  "Sensitive data" means:
                     (A)  a government-issued identifier not required
  by law to be available publicly, including:
                           (i)  a social security number;
                           (ii)  a passport number; or
                           (iii)  a driver's license number;
                     (B)  information that describes or reveals an
  individual's mental or physical health diagnosis, condition, or
  treatment;
                     (C)  an individual's financial information,
  except the last four digits of a debit or credit card number,
  including:
                           (i)  a financial account number;
                           (ii)  a credit or debit card number; or
                           (iii)  information that describes or reveals
  the income level or bank account balances of the individual;
                     (D)  biometric data;
                     (E)  genetic data;
                     (F)  precise geolocation data;
                     (G)  an individual's private communication that:
                           (i)  if made using a device, is not made
  using a device provided by the individual's employer that provides
  conspicuous notice to the individual that the employer may access
  communication made using the device; and
                           (ii)  includes, unless the data broker is
  the sender or an intended recipient of the communication:
                                 (a)  the individual's voicemails,
  e-mails, texts, direct messages, or mail;
                                 (b)  information that identifies the
  parties involved in the communications; and
                                 (c)  information that relates to the
  transmission of the communications, including telephone numbers
  called, telephone numbers from which calls were placed, the time
  calls were made, call duration, and location information of the
  parties to the call;
                     (H)  a log-in credential, security code, or access
  code for an account or device;
                     (I)  information identifying the sexual behavior
  of the individual in a manner inconsistent with the individual's
  reasonable expectation regarding the collection, processing, or
  transfer of the information;
                     (J)  calendar information, address book
  information, phone or text logs, photos, audio recordings, or
  videos:
                           (i)  maintained for private use by an
  individual and stored on the individual's device or in another
  location; and
                           (ii)  not communicated using a device
  provided by the individual's employer unless the employee was
  provided conspicuous notice that the employer may access
  communication made using the device;
                     (K)  a photograph, film, video recording, or other
  similar medium that shows the individual or a part of the individual
  nude or wearing undergarments;
                     (L)  information revealing the video content
  requested or selected by an individual that is not:
                           (i)  collected by a provider of broadcast
  television service, cable service, satellite service, streaming
  media service, or other video programming, as that term is defined
  by 47 U.S.C. Section 613(h)(2); or
                           (ii)  used solely for transfers for
  independent video measurement;
                     (M)  information regarding a known child;
                     (N)  information revealing an individual's racial
  or ethnic origin, color, religious beliefs, or union membership;
                     (O)  information identifying an individual's
  online activities over time accessing multiple Internet websites or
  online services; or
                     (P)  information collected, processed, or
  transferred for the purpose of identifying information described by
  this subdivision.
               (16)  "Service provider" means a person that receives,
  collects, processes, or transfers personal data on behalf of, and
  at the direction of, a business or governmental entity, including a
  business or governmental entity that is another service provider,
  in order for the person to perform a service or function with or on
  behalf of the business or governmental entity.
               (17)  "Transfer," in the context of data, means to
  disclose, release, share, disseminate, make available, sell, or
  license the data by any means or medium.
         Sec. 509.002.  APPLICABILITY TO CERTAIN DATA. (a)  Except as
  provided by Subsection (b), this chapter applies to personal data
  from an individual that is collected, transferred, or processed by
  a data broker.
         (b)  This chapter does not apply to the following data:
               (1)  deidentified data, if the data broker:
                     (A)  takes reasonable technical measures to
  ensure that the data is not able to be used to identify an
  individual with whom the data is associated;
                     (B)  publicly commits in a clear and conspicuous
  manner:
                           (i)  to process and transfer the data solely
  in a deidentified form without any reasonable means for
  reidentification; and
                           (ii)  to not attempt to identify the
  information to an individual with whom the data is associated; and
                     (C)  contractually obligates a person that
  receives the information from the provider:
                           (i)  to comply with this subsection with
  respect to the information; and
                           (ii)  to require that those contractual
  obligations be included in any subsequent transfer of the data to
  another person;
               (2)  employee data;
               (3)  publicly available information;
               (4)  inferences made exclusively from multiple
  independent sources of publicly available information that do not
  reveal sensitive data with respect to an individual; or
               (5)  data subject to Title V, Gramm-Leach-Bliley Act
  (15 U.S.C. Section 6801 et seq.).
         Sec. 509.003.  APPLICABILITY OF CHAPTER TO CERTAIN ENTITIES.
  (a)  Except as provided by Subsection (b), this chapter applies only
  to a data broker that, in a 12-month period, derives:
               (1)  more than 50 percent of the data broker's revenue
  from processing or transferring personal data that the data broker
  did not collect directly from the individuals to whom the data
  pertains; or
               (2)  revenue from processing or transferring the
  personal data of more than 50,000 individuals that the data broker
  did not collect directly from the individuals to whom the data
  pertains.
         (b)  This chapter does not apply to:
               (1)  a service provider, including a service provider
  that engages in the business of processing employee data for a
  third-party employer for the sole purpose of providing benefits to
  the third-party employer's employees;
               (2)  a person or entity that collects personal data
  from another person or entity to which the person or entity is
  related by common ownership or corporate control, provided a
  reasonable consumer would expect the persons or entities to share
  data;
               (3)  a federal, state, tribal, territorial, or local
  governmental entity, including a body, authority, board, bureau,
  commission, district, agency, or political subdivision of a
  governmental entity;
               (4)  an entity that serves as a congressionally
  designated nonprofit, national resource center, or clearinghouse
  to provide assistance to victims, families, child-serving
  professionals, and the general public on missing and exploited
  children issues;
               (5)  a consumer reporting agency or other person or
  entity that furnishes information for inclusion in a consumer
  credit report or obtains a consumer credit report, but only to the
  extent the person or entity engages in activity regulated or
  authorized by the Fair Credit Reporting Act (15 U.S.C. Section 1681
  et seq.), including the collection, maintenance, disclosure, sale,
  communication, or use of any personal information bearing on a
  consumer's creditworthiness, credit standing, credit capacity,
  character, general reputation, personal characteristics, or mode
  of living; or
               (6)  a financial institution subject to Title V,
  Gramm-Leach-Bliley Act (15 U.S.C. Section 6801 et seq.).
         Sec. 509.004.  NOTICE ON WEBSITE OR MOBILE APPLICATION. A
  data broker that maintains an Internet website or mobile
  application shall post a conspicuous notice on the website or
  application that:
               (1)  states that the entity maintaining the website or
  application is a data broker;
               (2)  is clear, not misleading, and readily accessible
  by the general public, including individuals with a disability; and
               (3)  contains language provided by rule of the
  secretary of state for inclusion in the notice.
         Sec. 509.005.  REGISTRATION. (a)  To conduct business in
  this state, a data broker to which this chapter applies shall
  register with the secretary of state by filing a registration
  statement and paying a registration fee of $300.
         (b)  The registration statement must include:
               (1)  the legal name of the data broker;
               (2)  a contact person and the primary physical address,
  e-mail address, telephone number, and Internet website address for
  the data broker;
               (3)  a description of the categories of data the data
  broker processes and transfers;
               (4)  a statement of whether or not the data broker
  implements a purchaser credentialing process;
               (5)  if the data broker has actual knowledge that the
  data broker possesses personal data of a known child:
                     (A)  a statement detailing the data collection
  practices, databases, sales activities, and opt-out policies that
  are applicable to the personal data of a known child; and
                     (B)  a statement on how the data broker complies
  with applicable federal and state law regarding the collection,
  use, or disclosure of personal data from and about a child on the
  Internet; and
               (6)  the number of security breaches the data broker
  has experienced during the year immediately preceding the year in
  which the registration is filed, and if known, the total number of
  consumers affected by each breach.
         (c)  A registration of a data broker may include any
  additional information or explanation the data broker chooses to
  provide to the secretary of state concerning the data broker's data
  collection practices.
         (d)  A registration certificate expires on the first
  anniversary of its date of issuance. A data broker may renew a
  registration certificate by filing a renewal application, in the
  form prescribed by the secretary of state, and paying a renewal fee
  in the amount of $300.
         Sec. 509.006.  REGISTRY OF DATA BROKERS.  (a)  The secretary
  of state shall establish and maintain, on its Internet website, a
  searchable, central registry of data brokers registered under
  Section 509.005.
         (b)  The registry must include:
               (1)  a search feature that allows a person searching
  the registry to identify a specific data broker; and
               (2)  for each data broker, the information filed under
  Section 509.005(b).
         Sec. 509.007.  PROTECTION OF PERSONAL DATA: COMPREHENSIVE
  INFORMATION SECURITY PROGRAM.  (a)  A data broker conducting
  business in this state has a duty to protect personal data held by
  that data broker as provided by this section. 
         (b)  A data broker shall develop, implement, and maintain a
  comprehensive information security program that is written in one
  or more readily accessible parts and contains administrative,
  technical, and physical safeguards that are appropriate for:
               (1)  the data broker's size, scope, and type of
  business;
               (2)  the amount of resources available to the data
  broker;
               (3)  the amount of data stored by the data broker; and
               (4)  the need for security and confidentiality of
  personal data stored by the data broker.
         (c)  The comprehensive information security program required
  by this section must:
               (1)  incorporate safeguards that are consistent with
  the safeguards for protection of personal data and information of a
  similar character under state or federal laws and regulations
  applicable to the data broker;
               (2)  include the designation of one or more employees
  of the data broker to maintain the program;
               (3)  require the identification and assessment of
  reasonably foreseeable internal and external risks to the security,
  confidentiality, and integrity of any electronic, paper, or other
  record containing personal data, and the establishment of a process
  for evaluating and improving, as necessary, the effectiveness of
  the current safeguards for limiting those risks, including by:
                     (A)  requiring ongoing employee and contractor
  education and training, including education and training for
  temporary employees and contractors of the data broker, on the
  proper use of security procedures and protocols and the importance
  of personal data security;
                     (B)  mandating employee compliance with policies
  and procedures established under the program; and
                     (C)  providing a means for detecting and
  preventing security system failures;
               (4)  include security policies for the data broker's
  employees relating to the storage, access, and transportation of
  records containing personal data outside of the broker's physical
  business premises;
               (5)  provide disciplinary measures for violations of a
  policy or procedure established under the program;
               (6)  include measures for preventing a terminated
  employee from accessing records containing personal data;
               (7)  provide policies for the supervision of
  third-party service providers that include:
                     (A)  taking reasonable steps to select and retain
  third-party service providers that are capable of maintaining
  appropriate security measures to protect personal data consistent
  with applicable law; and
                     (B)  requiring third-party service providers by
  contract to implement and maintain appropriate security measures
  for personal data;
               (8)  provide reasonable restrictions on physical
  access to records containing personal data, including by requiring
  the records containing the data to be stored in a locked facility,
  storage area, or container;
               (9)  include regular monitoring to ensure that the
  program is operating in a manner reasonably calculated to prevent
  unauthorized access to or unauthorized use of personal data and, as
  necessary, upgrading information safeguards to limit the risk of
  unauthorized access to or unauthorized use of personal data;
               (10)  require the regular review of the scope of the
  program's security measures that must occur:
                     (A)  at least annually; and
                     (B)  whenever there is a material change in the
  data broker's business practices that may reasonably affect the
  security or integrity of records containing personal data; 
               (11)  require the documentation of responsive actions
  taken in connection with any incident involving a breach of
  security, including a mandatory post-incident review of each event
  and the actions taken, if any, to make changes in business practices
  relating to protection of personal data in response to that event;
  and
               (12)  to the extent technically feasible, include the
  following procedures and protocols with respect to computer system
  security requirements or procedures and protocols providing a
  higher degree of security, for the protection of personal data:
                     (A)  the use of secure user authentication
  protocols that include each of the following features:
                           (i)  controlling user log-in credentials and
  other identifiers;
                           (ii)  using a reasonably secure method of
  assigning and selecting passwords or using unique identifier
  technologies, which may include biometrics or token devices;
                           (iii)  controlling data security passwords
  to ensure that the passwords are kept in a location and format that
  do not compromise the security of the data the passwords protect;
                           (iv)  restricting access to only active
  users and active user accounts; and
                           (v)  blocking access to user credentials or
  identification after multiple unsuccessful attempts to gain
  access;
                     (B)  the use of secure access control measures
  that include:
                           (i)  restricting access to records and files
  containing personal data to only employees or contractors who need
  access to that personal data to perform the job duties of the
  employees or contractors; and
                           (ii)  assigning to each employee or
  contractor with access to a computer containing personal data
  unique identification and a password, which may not be a
  vendor-supplied default password, or using another protocol
  reasonably designed to maintain the integrity of the security of
  the access controls to personal data;
                     (C)  encryption of:
                           (i)  transmitted records and files
  containing personal data that will travel across public networks;
  and
                           (ii)  data containing personal data that is
  transmitted wirelessly;
                     (D)  reasonable monitoring of systems for
  unauthorized use of or access to personal data;
                     (E)  encryption of all personal data stored on
  laptop computers or other portable devices;
                     (F)  for files containing personal data on a
  system that is connected to the Internet, the use of reasonably
  current firewall protection and operating system security patches
  that are reasonably designed to maintain the integrity of the
  personal data; and
                     (G)  the use of:
                           (i)  a reasonably current version of system
  security agent software that must include malware protection and
  reasonably current patches and virus definitions; or
                           (ii)  a version of system security agent
  software that is supportable with current patches and virus
  definitions and is set to receive the most current security updates
  on a regular basis.
         Sec. 509.008.  CIVIL PENALTY. (a)  A data broker that
  violates Section 509.004 or 509.005 is liable to this state for a
  civil penalty as prescribed by this section.
         (b)  A civil penalty imposed against a data broker under this
  section:
               (1)  subject to Subdivision (2), may not be in an amount
  less than the total of:
                     (A)  $100 for each day the entity is in violation
  of Section 509.004 or 509.005; and
                     (B)  the amount of unpaid registration fees for
  each year the entity failed to register in violation of Section
  509.005; and
               (2)  may not exceed $10,000 assessed against the same
  data broker in a 12-month period.
         (c)  The attorney general may bring an action to recover a
  civil penalty imposed under this section. The attorney general may
  recover reasonable attorney's fees and court costs incurred in
  bringing the action.
         Sec. 509.009.  DECEPTIVE TRADE PRACTICE.  A violation of
  Section 509.007 by a data broker constitutes a deceptive trade
  practice in addition to the practices described by Subchapter E,
  Chapter 17, and is actionable under that subchapter.
         Sec. 509.010.  RULES. The secretary of state shall adopt
  rules as necessary to implement this chapter.
         SECTION 2.  Not later than December 1, 2023, the secretary of
  state shall adopt rules necessary to facilitate registration by a
  data broker under Section 509.005, Business & Commerce Code, as
  added by this Act, including by incorporating into the rules
  adequate time for a data broker to comply with Chapter 509, Business &
  Commerce Code, as added by this Act, following the adoption of the
  rules.
         SECTION 3.  Chapter 509, Business & Commerce Code, as added
  by this Act, applies only to the collection, processing, or
  transfer of personal data by a data broker on or after December 1,
  2023.
         SECTION 4.  This Act takes effect September 1, 2023.