Currently, there is no broad, generally applicable federal law or regulations concerning data privacy, the collection and use of data or consumers’ rights regarding same. Instead, the matter has been left to the individual states to address. California has led the charge and its data privacy laws are generally regarded as the strongest and most consumer-friendly.

2021 Florida Legislative Session

Earlier this year, the Florida legislature took up the question of online privacy and considered HB 969, the Florida Consumer Data Privacy Act. Modeled after similar legislation in California, HB 969 contained provisions that, among other things, imposed requirements on businesses that collect information from consumers via websites or apps. Specifically, such businesses would be required to inform consumers exactly what data they collect and how they use that data. Consumers would then have the opportunity to grant or deny authorization to collect and/or use that data. HB 969 also contained a provision that would have allowed consumers to sue businesses that used information without authorization.

Because of the parallels to California privacy law and the rights it would give consumers, HB 969 was a landmark piece of legislation that, in terms of data privacy, would rank Florida among the most protective states in the Union. However, HB 969 was heavily lobbied and debated as business interests did not like the potential exposure to suits from consumers relating to the use of personal data. While there was broad, bipartisan support for the bill, the Legislature could not compromise and HB 969 died on the floor on the final day of the legislative session.

Where does Florida rank?

While a revised version of HB 969 may be introduced in the next legislative session and consumers may receive more protection in the future, it is interesting to see where Florida ranks now in terms of protection of consumer online privacy. Comparitech, a U.K. company, recently published a study that ranked each of the states according to the strength of their data privacy protections. The study looked at 22 different data privacy criteria including a review of laws that regulate government and business collection and use of customer data and laws protecting journalists, children, employees from their employers. The study ranked the states based on how many of the 22 criteria they met.

Looking at the results, the average for all states was 6 of 22 criteria met. Not surprisingly, California ranked first in the results, meeting 17 of the 22 criteria, followed by Delaware (meeting 12 of 22). At the bottom were Wyoming, Mississippi and Idaho, each meeting only 2 of the 22 criteria. Florida (and 9 other states) met 5 of 22 criteria, only slightly below the average but solidly mid-pack among our sister states.

What can Florida do to improve?

Interestingly, many of the criteria that Florida did not meet in the study were contained in HB 969, including measures to protect the use of biometric data, data collected by IoT devices, use of artificial intelligence to collect data and disclosures by businesses regarding the collection and use of consumer data. Kaylee Tuck, a member of the Florida House of Representatives and an attorney of Henderson Franklin’s real estate and land use department, shares, “HB 969 was an important piece of legislation to the state and this remains a significant issue. Undoubtedly, the Legislature will take this issue up again in some form next Session.”

What could that look like and would Florida consumers receive greater privacy rights?

The trend is clearly toward stronger data privacy laws. HB 969 was a strong bill. Colorado and Virginia have recently enacted data privacy acts that closely parallel California. Nevada has made some significant and sweeping amendments to its data privacy act to give greater protection to consumer data. Florida will likely follow suit and address issues such as biometrics, AI, IoT, and the consumer’s right to control that data. While time will ultimately tell, given a proactive Legislature and the overall national trend, Florida consumers stand to ultimately gain more control over the use of the data obtained from them.

If you need assistance in this regard, I may be reached at mark.nieds@henlaw.com or by phone at 239-344-1153.