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PRINTER'S NO. 2359
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1879
Session of
2023
INTRODUCED BY BULLOCK, GREGORY, STEELE, KINSEY, BURGOS, GUENST,
MADDEN, HILL-EVANS, CERRATO, SANCHEZ, FLICK, HADDOCK, PARKER,
BOYD, GERGELY, KHAN, CEPHAS, SIEGEL, ISAACSON, KUZMA, GIRAL,
ABNEY, A. BROWN, FRIEL, ORTITAY, DALEY, DAWKINS, ROZZI,
METZGAR AND MERCURI, DECEMBER 5, 2023
REFERRED TO COMMITTEE ON CHILDREN AND YOUTH, DECEMBER 5, 2023
AN ACT
Providing for duties of covered entities to protect the best
interests of children that use online services, products or
features and for data protection impact assessments;
prohibiting certain actions by covered entities; and imposing
penalties.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Short title.
This act shall be known and may be cited as the Online Safety
Protection Act.
Section 2. Findings and declarations.
The General Assembly finds and declares as follows:
(1) Covered entities that develop and provide online
services, products or features that children are likely to
access should consider the best interests of children when
designing, developing and providing that online service,
product or feature.
(2) If a conflict arises between commercial interests
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and the best interests of children, covered entities that
develop online products, services or features likely to be
accessed by children should prioritize the privacy, safety
and well-being of children over commercial interests.
Section 3. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Best interests of a child." A child's privacy, safety,
mental and physical health, access to information, freedom to
participate in society, meaningful access to digital
technologies and well-being.
"Child." A consumer who a covered entity has actual
knowledge is younger than 18 years of age. For the purpose of
this definition, if a covered entity chooses to conduct age
estimation to determine which user is a consumer younger than 18
years of age, the covered entity shall not be considered to have
actual knowledge for data processing undertaken during the
period when the covered entity is estimating age or for an
erroneous estimation or for data processing in the absence of
reasonable evidence that a user is a consumer younger than 18
years of age.
"Collect." The act of buying, renting, gathering, obtaining,
receiving or accessing personal information pertaining to a
consumer by any means. The term includes receiving information
from a consumer, either actively or passively, or by observing
the consumer's behavior.
"Consumer." An individual who is a resident of this
Commonwealth. The term does not include an individual acting in
a commercial or employment context or as an employee, owner,
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director, officer or contractor of a company, partnership, sole
proprietorship, nonprofit entity or State agency whose
communications or transactions with a covered entity occur
solely within the context of that individual's role with the
company, partnership, sole proprietorship, nonprofit entity or
State agency.
"Covered entity." A business or organization that knowingly
processes a child's personal information.
"Dark pattern." A user interface knowingly designed with the
intended purpose of subverting or impairing user decision-making
or choice.
"Data protection impact assessment." A systematic survey to
assess compliance with the duty to act in the best interests of
a child.
"Default." A preselected option adopted by a covered entity
for the online service, product or feature.
"Deidentified data." Data that meets all of the following
criteria:
(1) The data cannot reasonably be linked to an
individual or a device linked to the individual.
(2) The data is in possession of a covered entity that:
(i) takes reasonable technical and administrative
measures to prevent the data from being reidentified;
(ii) does not attempt to reidentify the data and
publicly commits not to attempt to reidentify the data;
and
(iii) contractually obligates a person to which the
covered entity transfers the data to comply with the
requirements of this paragraph.
"Likely to be accessed by a child." It is reasonable to
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expect, based on the following indicators, that an online
service, product or feature would be accessed by a child:
(1) The online service, product or feature is directed
to a child as defined in 15 U.S.C. § 6501 (relating to
definitions).
(2) The online service, product or feature is
determined, based on competent and reliable evidence
regarding audience composition, to be routinely accessed by a
significant number of children.
"Online service, product or feature." The term does not
include any of the following:
(1) A telecommunications service as defined in 47 U.S.C.
§ 153(53) (relating to definitions).
(2) The delivery or use of a physical product.
"Personal information." Information that is linked or
reasonably linkable to an identified or identifiable individual.
The term does not include deidentified data or publicly
available information.
"Precise geolocation data." Data that is derived from a
device and used or intended to be used to locate a consumer
within a geographic area that is equal to or less than the area
of a circle with a radius of 1,850 feet.
"Profile." A form of automated processing of personal
information that uses personal information to evaluate certain
aspects relating to an individual, including analyzing or
predicting aspects concerning an individual's performance at
work, economic situation, health, personal preferences,
interests, reliability, behavior, location or movements. The
term does not include processing that does not result in some
assessment or judgment about an individual.
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Section 4. Duties of covered entities.
A covered entity that provides an online service, product or
feature likely to be accessed by a child shall have the
following duties:
(1) Within two years before any new online service,
product or feature is offered to the public on or after the
effective date of this paragraph, complete a data protection
impact assessment in accordance with section 5 for an online
service, product or feature likely to be accessed by a child.
In completing the data protection impact assessment, the
covered entity shall consider the type of processing used in
the online service, product or feature, including new
technology, and take into account the nature, scope, context
and purpose of the processing that is likely to result in
high risk to a child.
(2) Maintain documentation of each data protection
impact assessment completed under paragraph (1) during the
time period when the online service, product or feature is
reasonably likely to be accessed by a child and uses
processing that is likely to result in high risk to a child.
(3) Review each data protection impact assessment
completed under paragraph (1) as necessary to account for any
significant change to the processing operations of an online
service, product or feature.
(4) Make each data protection impact assessment
completed under paragraph (1) available, within a reasonable
time period, to the Office of Attorney General upon written
request. Nothing in this paragraph shall be construed to
require the covered entity to disclose information to the
Office of Attorney General in a manner that would disclose
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the covered entity's trade secrets.
(5) Configure default privacy settings provided to a
child by an online service, product or feature to settings
that offer a high level of privacy, unless the underlying
processing enhances the child's experience of the online
service, product or feature and the covered entity offers
settings to control the use of the child's data for the
purpose of enhancing the child's experience. If default
privacy settings meet the criteria specified under this
paragraph, the default privacy settings shall not be
considered a dark pattern.
Section 5. Data protection impact assessments.
(a) Information.--A covered entity shall include all of the
following information in a data protection impact assessment
required under section 4(1):
(1) The purpose of an online service, product or feature
provided by the covered entity.
(2) The manner in which the online service, product or
feature uses a child's personal information.
(3) A determination whether the online service, product
or feature is designed and offered in a manner consistent
with the best interests of a child who is reasonably likely
to access the online service, product or feature. In making
the determination under this paragraph, the covered entity
shall include all of the following information:
(i) A systematic description of the anticipated
processing operations and the purpose of the processing.
(ii) An assessment of the necessity and
proportionality of the processing operations in relation
to the purpose of the processing. For the purpose of this
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subparagraph, a single assessment may address a set of
similar processing operations that present similar risks.
(iii) An assessment of the risks to the rights and
freedoms of a child.
(iv) The measures anticipated to address the risks,
including safeguards, security measures and mechanisms,
to ensure the protection of personal information and to
demonstrate compliance with this act, taking into account
the rights and freedoms of a child.
(b) Accessibility.--Notwithstanding any other provision of
law, a data protection impact assessment required under section
4(1) shall be protected as confidential and shall not be
accessible under the act of February 14, 2008 (P.L.6, No.3),
known as the Right-to-Know Law.
(c) Attorney-client privilege.--To the extent information
contained in a data protection impact assessment required under
section 4(1) and disclosed to the Office of Attorney General
under section 4(4) includes information subject to attorney-
client privilege or work product protection, the disclosure
shall not constitute a waiver of attorney-client privilege or
work product protection.
(d) Compliance.--A data protection impact assessment
conducted by a covered entity for the purpose of compliance with
any other law of this Commonwealth shall be deemed to comply
with the requirements under this act.
Section 6. Prohibition on certain actions by covered entities.
A covered entity that provides an online service, product or
feature reasonably likely to be accessed by a child may not take
any of the following actions:
(1) Use the personal information of a child likely to
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access the online service, product or feature in a way that
the covered entity knows is likely to result in high risk to
the child on the basis of a data protection impact assessment
required under section 4(1) if the high risk has not been
suitably mitigated through measures identified in the data
protection impact assessment.
(2) Profile a child by default if the profiling has been
identified as high risk to the child on the basis of a data
protection impact assessment required under section 4(1) if
the high risk has not been suitably mitigated through
measures identified in the data protection impact assessment.
If the covered entity profiles by default, there shall be a
presumption that the profiling does not violate this
paragraph if any of the following apply:
(i) The covered entity can demonstrate that the
covered entity has appropriate safeguards in place to
protect a child.
(ii) The profiling is necessary to provide the
online service, product or feature requested and only
used regarding the aspects of the online service, product
or feature with which a child is actively and knowingly
engaged.
(iii) The profiling enhances a child's experience on
an online service, product or feature and the covered
entity offers settings to control the use of the child's
data for the purpose of enhancing the child's experience.
(3) Collect, retain, process or disclose the personal
information of a child in a manner that has been identified
as high risk to the child on the basis of a data protection
impact assessment required under section 4(1) if the high
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risk has not been suitably mitigated through measures
identified in the data protection impact assessment.
(4) If the end user is a child, use personal information
for any reason other than a reason for which that personal
information was collected, unless the covered entity can
demonstrate a compelling reason that use of the personal
information is in the best interests of a child.
(5) Collect, sell, process or retain the precise
geolocation information of a child by default unless any of
the following apply:
(i) The covered entity can demonstrate a compelling
reason that the processing is in the best interests of a
child.
(ii) The processing enhances a child's experience of
an online service, product or feature and the covered
entity offers settings to control the use of the child's
data for the purposes of enhancing the child's
experience.
(6) Track the precise geolocation information of a child
without providing notice regarding the tracking of the
child's precise geolocation information.
(7) Use dark patterns to knowingly lead or encourage a
child to do any of the following:
(i) Provide personal information in excess of what
is reasonably expected to furnish an online service,
product or feature.
(ii) Forego privacy protections.
(iii) Take any action that the covered entity knows
is not in the best interests of a child reasonably likely
to access the online service, product or feature.
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Section 7. Penalties.
(a) Actions.--The Office of Attorney General may initiate a
civil action in a court of competent jurisdiction seeking
injunctive relief or a civil penalty against a covered entity
that violates this act in accordance with this section. Upon a
covered entity being found liable for a violation of this act by
a court of competent jurisdiction, the court may issue an order:
(1) granting injunctive relief; or
(2) imposing a civil penalty of no more than $2,500 per
affected child for each negligent violation or no more than
$7,500 per affected child for each intentional violation.
(b) Remittance.--Civil penalties awarded under subsection
(a) shall be remitted to the Office of Attorney General to
offset the costs incurred by the Office of Attorney General in
enforcing the provisions of this act.
(c) Notice.--If a covered entity has made a good faith
effort to comply with the requirements under section 4, the
Office of Attorney General shall provide written notice to the
covered entity before initiating a civil action under subsection
(a). The Office of Attorney General shall identify the specific
provisions of this act that the Office of Attorney General
alleges to have been or are being violated in the written
notice.
(d) Cured violation.--If, within 90 days of receipt of the
written notice required under subsection (c), the covered entity
cures an alleged violation specified in the written notice and
provides the Office of Attorney General with written evidence
that the alleged violation has been cured and the covered entity
has taken sufficient measures to prevent a future violation of
this act, the covered entity shall not be civilly liable for the
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alleged violation.
(e) Compliance with Federal law.--Compliance by a covered
entity with 15 U.S.C. Ch. 91 (relating to children's online
privacy protection) shall constitute compliance with this act
for a child younger than 13 years of age.
Section 8. Construction.
Nothing in this act shall be construed to:
(1) provide a private right of action under this act or
any other law of this Commonwealth;
(2) impose liability in a manner that is inconsistent
with 47 U.S.C. § 230 (relating to protection for private
blocking and screening of offensive material); or
(3) infringe on the existing rights and freedoms of a
child.
Section 9. Applicability.
(a) Nonapplicability.--This act shall not apply to any of
the following:
(1) An online service, product or feature that is not
offered to the public.
(2) Protected health information that is collected by a
covered entity or a covered entity's associate governed by
the privacy, security and breach notification rules issued by
the United States Department of Health and Human Services
under 45 CFR Subt. A Subch. C Pts. 160 (relating to general
administrative requirements) and 164 (relating to security
and privacy) in accordance with the Health Insurance
Portability and Accountability Act of 1996 (Public Law 104-
191, 110 Stat. 1936) and the Health Information Technology
for Economic and Clinical Health Act (Public Law 111-5, 123
Stat. 226-279 and 467-496).
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(3) A covered entity governed by the privacy, security
and breach notification rules issued by the United States
Department of Health and Human Services under 45 CFR Subt. A
Subch. C Pts. 160 and 164 in accordance with the Health
Insurance Portability and Accountability Act of 1996 to the
extent the covered entity maintains patient information in
the same manner as protected health information under
paragraph (2).
(4) Information collected as part of a clinical trial
subject to the Federal Policy for the Protection of Human
Subjects, also known as the Common Rule, in accordance with
good clinical practice guidelines issued by the International
Council for Harmonisation of Technical Requirements for
Pharmaceuticals for Human Use or in accordance with the human
subject protection requirements of the United States Food and
Drug Administration.
(b) Conflicting Federal laws.--
(1) This act shall not apply upon the effective date of
a Federal law, regulation or rule or an amendment or
modification to a Federal law, regulation or rule, including
an amendment to 15 U.S.C. Ch. 91 (relating to children's
online privacy protection), relating to any of the following:
(i) A covered entity's collection, use, retention or
disclosure of personal information of an individual
younger than 18 years of age.
(ii) Consent requirements for the collection, use,
retention or disclosure of personal information of an
individual younger than 18 years of age, including
consent requirements to register for or maintain an
account with an online service.
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(iii) Requirements to ascertain or verify the age of
an individual.
(iv) Parental settings, controls or other oversight
or monitoring mechanisms.
(2) The Office of Attorney General shall submit a notice
to the Legislative Reference Bureau for publication in the
next available issue of the Pennsylvania Bulletin of the
effective date of a Federal law, regulation or rule or an
amendment or modification to a Federal law, regulation or
rule specified under paragraph (1).
Section 10. Effective date.
This act shall take effect in 60 days.
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