PRINTER'S NO. 1101
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
797
Session of
2019
INTRODUCED BY PHILLIPS-HILL, FOLMER, MENSCH, J. WARD AND
A. WILLIAMS, JULY 9, 2019
REFERRED TO EDUCATION, JULY 9, 2019
AN ACT
Amending Title 24 (Education) of the Pennsylvania Consolidated
Statutes, in preliminary provisions, providing for student
data privacy and protection; imposing duties on the
Department of Education; and providing for penalties.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Part I of Title 24 of the Pennsylvania
Consolidated Statutes is amended by adding a chapter to read:
CHAPTER 5
STUDENT DATA PRIVACY AND PROTECTION
Subchapter
A. General Provisions
B. Powers and Duties
C. Disclosure and Use of Information
D. Enforcement
SUBCHAPTER A
GENERAL PROVISIONS
Sec.
501. Scope of chapter.
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502. Legislative intent.
503. Findings and declarations.
504. Definitions.
505. Effect of chapter.
§ 501. Scope of chapter.
This chapter relates to student data privacy and protection.
§ 502. Legislative intent.
It is the intent of the General Assembly to ensure the
following:
(1) Only essential student data shall be collected.
(2) Student data shall be safeguarded.
(3) The privacy rights of students and their parents or
legal guardians shall be honored, respected and protected.
§ 503. Findings and declarations.
The General Assembly finds and declares as follows:
(1) Educational entities in this Commonwealth are
custodians of vast amounts of personally identifiable
information through their collection and maintenance of
student data.
(2) It is critically important to ensure that only
essential student data shall be collected and that personal
information shall be protected, safeguarded, kept private and
only accessed or used by appropriate authorized persons.
(3) The Commonwealth lacks a sufficient plan to ensure
adequate protection of student data.
(4) The Commonwealth lacks guarantees for the protection
for student data and the personally identifiable information
contained within that data.
(5) Given the vast personally identifiable student
information held, educational entities are prime targets for
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data and information poaching by identity thieves and other
hackers.
(6) In emergencies, certain information should be
readily available to school officials and emergency personnel
to assist students and their families.
§ 504. Definitions.
The following words and phrases when used in this chapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Aggregate student data." Student data collected by an
educational entity which:
(1) is totaled and reported at the group, cohort,
school, school district, region or State level as determined
by the educational entity;
(2) does not reveal personally identifiable student
data; and
(3) cannot reasonably be used to identify, contact,
single out or infer information about a student or device
used by a student.
"Biometric identifier." A measurable biological or
behavioral characteristic that can be used for automated
recognition of an individual. The following apply:
(1) The term shall include any of the following:
(i) A retina or iris scan.
(ii) A fingerprint.
(iii) A human biological sample.
(iv) A scan of the hand.
(v) A voice print.
(vi) Facial geometry.
(2) The term shall not include any of the following:
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(i) A physical description, including, but not
limited to, height, weight, hair color or eye color.
(ii) A writing sample.
(iii) A written signature.
(iv) Demographic data.
"Data authorization." A written authorization by a student
or a student's parent or legal guardian if the student is under
18 years of age to collect or share the student's student data.
"Educational entity." An organized education provider,
including, but not limited to, any of the following:
(1) A school district of any class.
(2) A board of school directors of a school district of
any class.
(3) A public school.
(4) An institution of higher education.
"Educational record." Student data or other student
information created and maintained by an educational entity or a
third party.
"Eligible student." A student who is:
(1) Eighteen years of age or older or an emancipated
individual; and
(2) attending an institution of higher education.
"Institution of higher education." Any of the following:
(1) A community college operating under Article XIX-A of
the act of March 10, 1949 (P.L.30, No.14), known as the
Public School Code of 1949.
(2) A State-owned institution.
(3) A State-related institution.
(4) Any other institution that is designated as State-
related by the Commonwealth.
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(5) An accredited private or independent college or
university.
(6) A private licensed school as defined in the act of
December 15, 1986 (P.L.1585, No.174), known as the Private
Licensed Schools Act.
"Necessary student data." Student data required by Federal
or State law to conduct the regular activities of an educational
entity.
"Personally identifiable student data." Student data that,
by itself or in connection with other information, would enable
a specific student or other individual to be reasonably
identified.
"Public school." A school operated by a school district of
any class, intermediate unit, charter school, cyber charter
school or an area vocational-technical school.
"State-owned institution." An institution which is part of
the State System of Higher Education under Article XX-A of the
act of March 10, 1949 (P.L.30, No.14), known as the Public
School Code of 1949, and all branches and campuses of a State-
owned institution.
"State-related institution." The Pennsylvania State
University, including the Pennsylvania College of Technology,
the University of Pittsburgh, Temple University and Lincoln
University and their branch campuses.
"Student." An individual who attends a public school or
institution of higher education, whether enrolled on a full-
time, part-time, credit or noncredit basis.
"Student data." Information regarding a student that is
descriptive of the student and collected and maintained at the
individual student level, regardless of physical, electronic or
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other media or format, including, but not limited to, any of the
following:
(1) The following information regarding the student:
(i) Name.
(ii) Date and location of birth.
(iii) Social Security number.
(iv) Gender.
(v) Race.
(vi) Ethnicity.
(vii) Tribal affiliation.
(viii) Sexual identity or orientation.
(ix) Migrant status.
(x) English language learner status.
(xi) Disability status.
(xii) Mother's maiden name.
(xiii) Contact information, including telephone
numbers, electronic mail addresses, physical addresses
and other distinct contact identifiers.
(xiv) Special education records or an applicable
mandate under the Individuals with Disabilities Education
Act (Public Law 91-230, 20 U.S.C. § 1400 et seq.).
(xv) An individualized education program or other
written education plan, including special education
evaluation data for the program or plan.
(xvi) The student's identification number.
(xvii) Local or State assessment results or the
reason for an exception from taking a local or State
assessment.
(xviii) Courses taken and completed, credits earned
or other transcript information.
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(xix) Course grades, grade point average or another
indicator of academic achievement.
(xx) Grade level and expected graduation date.
(xxi) Cohort graduation rate or related information.
(xxii) Degree, diploma, credential attainment or
other school exit information.
(xxiii) Attendance and mobility.
(xxiv) Dropout data.
(xxv) An immunization record or the reason for an
exception from receiving an immunization.
(xxvi) Remediation efforts.
(xxvii) Cumulative disciplinary records.
(xxviii) Juvenile delinquency or dependency records.
(xxix) Criminal records.
(xxx) Medical or health records created or
maintained by an educational entity.
(xxxi) Political affiliation, voter registration
information or voting history.
(xxxii) Income or other socioeconomic information,
except as required by law or if an educational entity
determines income information is required to apply for,
administer, research or evaluate programs to assist
students from low-income families.
(xxxiii) Religious information or beliefs.
(xxxiv) A biometric identifier or other biometric
information.
(xxxv) Food purchases.
(xxxvi) Geolocation data.
(xxxvii) Any other information that either on its
own or collectively could reasonably be used to identify
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a specific student.
(2) The following information regarding family members,
including parents and legal guardians, of the student:
(i) Name of family members.
(ii) Contact information for family members,
including telephone numbers, electronic mail addresses,
physical addresses and other distinct contact
identifiers.
(iii) Education status, an educational record or
student data of a family member who is a student.
"Targeted marketing." Advertising to a student or a
student's parent or guardian that is selected based on
information obtained or inferred from the student's online or
offline behavior, usage of applications or student data. The
term does not include advertising to a student at an online
location based on the student's current visit to that location
or single search query without collection and retention of the
student's online activities over time. The term does not include
using the student's personally identifiable student data to
identify for the student institutions of higher education or
scholarship providers that are seeking students who meet
specific criteria , provided a written data authorization by the
student, or the student's parent or legal guardian if the
student is under 18 years of age, permits the disclosure and
use .
"Third party." A person that enters into a contract with an
educational entity to provide a good or service. The term
includes a subsequent subcontractor that may accompany the
person in the provision of the good or service.
§ 505. Effect of chapter.
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Nothing in this chapter shall be construed to prohibit or
otherwise limit the ability of an educational entity from
reporting or making available aggregate student data or other
collective data for reasonable usage.
SUBCHAPTER B
POWERS AND DUTIES
Sec.
511. Chief data privacy officer.
512. Data inventory and data elements.
513. Forms.
514. Rules and regulations.
515. Educational entities.
§ 511. Chief data privacy officer.
(a) Designation.--The Secretary of Education shall designate
an individual to serve as the chief data privacy officer within
the department to assume primary responsibility for student data
privacy and security policy.
(b) Specific duties.--The chief data privacy officer within
the department shall:
(1) Ensure that student data contained in the State data
system shall be handled in full compliance with:
(i) this chapter;
(ii) the Family Educational Rights and Privacy Act
of 1974 (Public Law 90-247, 20 U.S.C. § 1232g) and its
associated regulations; and
(iii) other Federal and State data privacy and
security laws.
(2) Establish, publish and make easily available
policies necessary to assure that the use of technologies
sustain, enhance and do not erode privacy protections
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relating to the use, collection and disclosure of student
data.
(3) Develop and provide to educational entities a model
student data privacy and security plan.
(4) Evaluate legislative and regulatory proposals
involving use, collection and disclosure of student data by
educational entities.
(5) Conduct a privacy impact assessment on legislative
proposals and regulations and program initiatives of the
department, including the type of personal information
collected and the number of students affected.
(6) Prepare an annual report for submission to the
General Assembly on activities of the department that affect
privacy, including complaints of privacy violations, internal
controls and other related matters.
(7) Consult and coordinate with other representatives of
the department and the Commonwealth and other persons
regarding the quality, usefulness, openness and privacy of
data and the implementation of this chapter.
(8) Establish and operate a privacy incident response
program to ensure that each data-related incident involving
the department is properly reported, investigated and
mitigated.
(9) Establish a model process and policy for an eligible
student and a student's parent or legal guardian if the
student is under 18 years of age to file a complaint
regarding a violation of data privacy or an inability to
access, review or correct the student's student data or other
information contained in the student's educational record.
(10) Provide training, guidance, technical assistance
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and outreach to build a culture of data privacy protection
and data security among educational entities and third
parties.
(c) Investigations.--The chief data privacy officer may
investigate issues of compliance with this chapter or another
data privacy or security law concerning a matter related to this
chapter. In conducting the investigation, the chief data privacy
officer shall:
(1) have access to all records, reports, audits,
reviews, documents, papers, recommendations and other
materials available to the educational entity or third party
under investigation;
(2) limit the investigation and any accompanying report
to those matters which are necessary or desirable to the
effective administration of this chapter; and
(3) in matters related to compliance with Federal law,
refer the matter to the appropriate Federal agency and
cooperate with any investigation by the Federal agency.
§ 512. Data inventory and data elements.
The department shall create and post on its publicly
accessible Internet website a data inventory and dictionary of
data elements with definitions of individual student data fields
currently in the student data system, including information
which:
(1) is required to be reported by Federal or State
education mandates;
(2) has been proposed for inclusion in the student data
system with a statement regarding the purpose or reason for
the proposed collection; and
(3) the department collects or maintains with no current
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purpose or reason.
§ 513. Forms.
The department shall develop forms, including, but not
limited to, the following:
(1) The notice of disclosure and acknowledgment under
section 522 (relating to notice of disclosure).
(2) The written data authorization to permit the
disclosure of information.
§ 514. Rules and regulations.
The department shall promulgate rules and regulations
necessary to implement the provisions of this chapter.
§ 515. Educational entities.
An educational entity shall:
(1) Subject to the approval of the chief data privacy
officer within the department and taking into account the
specific needs and priorities of the educational entity,
adopt and implement reasonable security policies and
procedures to protect educational records and student data in
accordance with this chapter to protect information from
unauthorized access, destruction, use, modification or
disclosure.
(2) Designate an individual to act as a student data
manager to fulfill the responsibilities under this section.
(3) Create, maintain and submit to the chief data
privacy officer under the department a data governance plan
addressing the protection of existing data and future data
records.
(4) Establish a review process for all requests for data
for the purpose of external research or evaluation.
(5) Prepare an annual report for submission to the chief
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data privacy officer within the department. Each annual
report shall include:
(i) Any proposed changes to data security policies.
(ii) Attempted occurrences of data security breach.
SUBCHAPTER C
DISCLOSURE AND USE OF INFORMATION
Sec.
521. Data ownership.
522. Notice of disclosure.
523. Disclosure by educational entity.
524. Biometric identifiers.
525. Targeted marketing.
526. Review and correction of educational records.
527. Use of information by third parties.
528. Third-party contracts.
529. Law enforcement.
530. Exception for use of personally identifiable student data.
§ 521. Data ownership.
(a) Authority of student.--A student is the owner of the
student's student data and may download, export, transfer or
otherwise save or maintain any document, data or other
information created by the student that may be held or
maintained, in whole or in part, by an educational entity.
(b) Work or product.--Any work or intellectual product
created by a student, whether for academic credit or otherwise,
shall be the property of the student.
§ 522. Notice of disclosure.
(a) Distribution.--An educational entity which collects
student data, regardless of whether that information is
developed and maintained as aggregate student data, shall
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provide to each eligible student and each student's parent or
legal guardian if the student is under 18 years of age an annual
written notice outlining the conditions under which the
student's student data may be disclosed.
(b) Form.--The notice under this section shall be:
(1) prominent and provided as a stand-alone document;
(2) annually updated and distributed; and
(3) written in plain language that is easily
comprehended by an average individual.
(c) Contents.--The notice under this section shall:
(1) list the necessary and optional student data which
the educational entity collects and the rationale for the
collection of the data;
(2) state that student data collected may not be shared
without a written data authorization by the eligible student
or a student's parent or legal guardian if the student is
under 18 years of age;
(3) list each third party with access or control of
student data under a contractual agreement;
(4) outline the rights and responsibilities under this
chapter; and
(5) contain an acknowledgment specifying that the
intended recipient of the notice actually received the notice
and understands its contents.
(d) Receipt and acknowledgment.--Each recipient of the
notice under this section shall sign the acknowledgment and
return it to the appropriate educational entity as soon as
possible.
(e) Maintenance.--An educational entity shall maintain on
file, electronically or otherwise, each signed acknowledgment
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received under this section.
§ 523. Disclosure by educational entity.
(a) Conditions for disclosure.--An educational entity may
not disclose student data unless the disclosure is:
(1) authorized in writing by an eligible student or a
student's parent or legal guardian if the student is under 18
years of age;
(2) authorized or required by Federal or State law;
(3) determined to be necessary due to an imminent health
or safety emergency; or
(4) ordered by a court of competent jurisdiction.
(b) Financial benefit.--Except as otherwise provided under
this chapter, an educational entity may not release or otherwise
disclose student data or information in an educational record in
exchange of any good, product, application, service or any other
thing of measurable value.
§ 524. Biometric identifiers.
An educational entity or third party may not collect any
biometric identifier on a student except as may be required by
law.
§ 525. Targeted marketing.
Student data may not be released or used for purposes of
targeted marketing unless the release is absolutely necessary
for education progression, which may include the use of adaptive
educational software or any other strictly educational endeavor
whose sole purpose is to provide a tailored education experience
to the student.
§ 526. Review and correction of educational records.
(a) Request for inspection.--An eligible student or a
student's parent or legal guardian if the student is under 18
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years of age may request the inspection and review of the
student's student data or other information contained in the
student's educational records and maintained by an educational
entity or a third party.
(b) Transmittal of information.--Upon the request under
subsection (a), the educational entity or third party shall
provide the information in a timely manner and in electronic
form unless the request information:
(1) is not maintained in electronic format, in which
case arrangements shall be made for transmittal in another
format; or
(2) cannot reasonably be made available to the
requesting individual or the reproduction of the requested
information would be unduly burdensome.
(c) Corrections and expungement.--
(1) A requesting individual under subsection (a) may
request that corrections be made to inaccurate or incomplete
information contained in the student's student data or other
educational record.
(2) A requesting individual under subsection (a) shall
have the right to expunge the student's student data or other
information contained in the student's educational record
that pertain to:
(i) an unsubstantiated accusation; or
(ii) an adjudicated matter if the student has been
found not at fault or not guilty of the charges raised.
(3) After receiving the request under this subsection,
the educational entity or third party that maintains the
information shall make the necessary changes to the student
data or other educational record and confirm the changes with
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the requesting individual within 90 days of the request under
this subsection.
§ 527. Use of information by third parties.
(a) Personally identifiable student data.--A third party
shall use personally identifiable student data received under a
contract with an educational entity strictly for the purpose of
providing the contracted product or service to the educational
entity, unless a student or the student's parent affirmatively
chooses to disclose the student's data for a secondary purpose.
(b) Prohibited uses.--A third party may not manage or use
student data or information from an educational record obtained
in the course of a contractual relationship with an educational
entity to do any of the following:
(1) Conduct targeted marketing.
(2) Create a student profile except:
(i) as allowed under the terms of the contractual
relation with the educational entity; or
(ii) in furtherance of the purposes of the
educational entity.
(3) Sell student data or information from an educational
record.
(4) Exchange student data or information from an
educational record for any goods, services or applications.
(5) Disclose student data or information from an
educational record except as provided under this chapter.
(6) Impede the ability of a student, an eligible student
or a student's parent or legal guardian if the student is
under 18 years of age from downloading, exporting or
otherwise saving or maintaining the student's student data
or other information from the student's educational record.
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(b.1) Limitation.--Subsection (b) shall not apply to
nonprofit organizations engaging in activities to provide
students with higher education, scholarship or other educational
opportunities.
(c) Permissive uses.--A third-party contractor may:
(1) Use student data for adaptive learning or customized
student learning purposes.
(2) Market an educational application or product to a
student's parent or legal guardian if the student is under 18
years of age if the third party did not use student data,
shared by or collected on behalf of an educational entity, to
develop the educational application or product.
(3) Use a recommendation engine to recommend to an
eligible student or a student's parent or legal guardian if
the student is under 18 years of age any of the following:
(i) Content that relates to learning or employment,
within the third party's internal application, if the
recommendation is not motivated by payment or other
consideration from another party.
(ii) Services that relate to learning or employment,
within the third party's internal application, if the
recommendation is not motivated by payment or other
consideration from another party.
(4) Respond to an eligible student or a student's parent
or legal guardian if the student is under 18 years of age
regarding a request for information or feedback, if the
content of the response is not motivated by payment or other
consideration from another party.
(5) Use student data to allow or improve operability and
functionality of the third party's internal application.
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(6) Disclose a student's personally identifiable
information at the student's request to institutions of
higher education and other educational organizations,
including scholarship providers.
(7) Disclose and utilize personally identifiable
information and aggregate student data when used solely for
research purposes that are compatible with the context in
which the information was collected.
§ 528. Third-party contracts.
When contracting with a third party, an educational entity
shall require the following provisions in the contract:
(1) Requirements and restrictions related to the
collection, use, storage or sharing of student data by the
third party that are necessary for the educational entity to
ensure compliance with the provisions of this chapter and
other State law.
(2) A description of a person, or type of person,
including an affiliate or subcontractor of the third party,
with whom the third party may share student data or other
information.
(3) When and how to delete student data or other
information received by the third party.
(4) A prohibition on the secondary use of personally
identifiable student data by the third party except when used
for research purposes or for legitimate educational interests
compatible with the context in which the personal information
was collected.
(5) An agreement by the third party that the educational
entity or the educational entity's designee may audit the
third party to verify compliance with the contract.
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(6) Requirements for the third party or a subcontractor
of the third party to effect security measures to prevent,
detect or mitigate a data breach.
(7) Requirements for the third party or a subcontractor
of the third party to notify the educational entity of a
suspected data breach or intrusion.
§ 529. Law enforcement.
As authorized by law or court order, a third party shall
share student data as requested by law enforcement.
§ 530. Exception for use of personally identifiable student
data.
Notwithstanding any provision of this chapter to the
contrary, this chapter does not apply to nonprofit organizations
using the student data for legitimate educational interests,
including, but not limited to, engaging in activities to provide
students higher education and scholarship opportunities or
prohibit the use of the student's personally identifiable
student data to identify for the student institutions of higher
education or scholarship providers that are seeking students who
meet specific criteria, provided a written data authorization by
the student or a student's parent or legal guardian if the
student is under 18 years of age permits the use. This section
shall apply regardless of whether the identified institutions of
higher education or scholarship providers provide consideration
to the school services contract provider.
SUBCHAPTER D
ENFORCEMENT
Sec.
541. Data breach or security compromise.
542. Funding.
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543. Civil and administrative penalties.
544. Effect on criminal liability.
§ 541. Data breach or security compromise.
(a) Notification of chief data privacy officer.--An
educational entity shall notify the chief data privacy officer
within the department of a suspected or confirmed data breach or
security compromise within 24 hours of becoming aware of the
data breach or security compromise.
(b) Notification of students, parents and legal guardians.--
If there is an unauthorized release or compromise of student
data by security breach or otherwise, the effected educational
entity shall, within three business days of verification of the
release or compromise, notify all of the following:
(1) Each eligible student whose information has been
released or compromised.
(2) Each student's parent or legal guardian if the
student is under 18 years of age and the student's
information has been released or compromised.
(c) Notification by third party.--If a suspected or
confirmed data breach or security compromise of student data
held by a third party has occurred, the third party shall:
(1) notify the educational entity with whom it has
contracted regarding the information within 24 hours of
becoming aware of the data breach or security compromise;
(2) take action to determine the scope of data breached
or otherwise compromised;
(3) update the educational entity once the full scope of
data breach and security compromise is known; and
(4) take all reasonable steps to notify the affected
individuals of the data breach or security compromise.
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§ 542. Funding.
No public funds shall be made available under an applicable
program to an educational entity that has a policy that denies
or effectively prevents an eligible student or a student's
parent or legal guardian if the student is under 18 years of age
the right to inspect, review or correct the student's student
record or information within the student's educational record.
§ 543. Civil and administrative penalties.
An educational entity or third party that fails to comply
with any duty or other provision under this chapter resulting in
the intentional, knowing, reckless or negligent data breach or
security compromise shall be subject to the following penalties:
(1) Civil penalties, which shall include the following:
(i) The costs of identity protection for each
individual affected by the data breach or security
compromise.
(ii) Legal fees and costs incurred by each
individual affected by the data breach or security
compromise.
(iii) Any other penalty that the court deems
reasonable or appropriate.
(2) Administrative penalties by the department, which
shall include a fine of not less than $1,000 nor more than
$5,000 for each offense committed. The aggregate amount of
fines under this paragraph may not exceed $1,000,000 in any
calendar year.
§ 544. Effect on criminal liability.
Nothing in this subchapter shall be construed to limit,
preclude or supersede criminal liability as may be applicable to
or enforceable under this chapter.
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Section 2. This act shall take effect as follows:
(1) This section shall take effect immediately.
(2) The following shall take effect August 1, 2020:
(i) The addition of 24 Pa.C.S. §§ 511(c) and 515.
(ii) The addition of 24 Pa.C.S. Ch. 5 Subchs. C and
D.
(3) The remainder of this act shall take effect in 120
days.
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