HB 969 Passes the House; Eyes Turn to Senate and “The Big Dog”

Shook, Hardy & Bacon L.L.P.
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Shook, Hardy & Bacon L.L.P.

The Florida House of Representatives has officially passed HB 969, which would create the most aggressive privacy law in the United States. The bill would apply to companies that generate $50 million or more in annual gross revenue and collect a significant amount of personal information about Florida residents. In addition to imposing CCPA-like compliance obligations on companies, it creates the broadest private right of action ever seen in privacy law. The private right of action for $100 to $750 per consumer per incident would apply to: (1) data breaches of broadly-defined personal information; (2) a company’s failure to comply with a consumer’s request to delete personal information; (3) a company’s failure to comply with a consumer’s request to correct personal information; and (4) a company’s failure to comply with a consumer’s request to opt-out of the sale of their personal information. Further encouraging these lawsuits, the bill would allow for attorney’s fees and costs (for the consumer only, not a prevailing defendant).

House Rep. Ben Diamond (a Democrat and someone who is destined to run for Florida Governor and/or Attorney General at some point in the future) expressed concern on the House Floor about the impact of the law on Florida businesses. He implied that enforcement by the Florida Attorney General, instead of a private right of action, would be the better approach. Nevertheless, he ultimately voted in favor of the bill. The only representative to vote against HB 969 was Rep. Anthony Sabatini (R).

In short, if ever there were a question as to whether the Speaker of the House is fully aligned with the plaintiffs’ bar, the movement of HB 969 through the House provided certainty that he is.

Attention now turns to the Florida Senate, which is considering SB 1734, a more moderate privacy law that does NOT contain a private right of action, but allows the law to be enforced by the Florida Attorney General’s office (like Florida’s data breach notification law). The bill still needs to go through a second and third reading, which is not expected to be completed until early next week (if at all). If the Senate does not pass its version by the end of next week, there will be no change in Florida privacy law.  If the Senate passes SB 1734, a race will begin with many behind-the-scenes negotiations taking place to determine which version of the two versions (or perhaps a modified version of one of them) will become law before the legislative session ends next Friday. These negotiations may include the House Speaker and Senate President pushing for and prioritizing their favorite pieces of legislation (it’s clear from HB 969’s ability to soar relatively untouched through the House how important that law is to the House Speaker).

Next week we can expect “The Big Dog” to get more involved in this dispute and put his finger on the scale, likely pushing one version over the other. But as it stands right now, Team Open-The-Floodgates has scored a touchdown in the fourth quarter to take the lead, but Team Protect-Florida-Businesses has the ball and is driving.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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