Commerce and Trade

§ 12D-101 Short title. This chapter shall be known and may be cited as the “Delaware Personal Data Privacy Act.” 84 Del. Laws, c. 197, § 1 ; § 12D-102 Definitions [Effective until Jan. 1, 2027]. For purposes of this chapter, the following definitions shall apply: (1) “Affiliate” means a legal entity that shares common branding with another legal entity or controls, is controlled by, or is under common control with another legal entity. For the purposes of this paragraph, “control” or “controlled” means any of the following: a. Ownership of, or the power to vote, more than 50% of the outstanding shares of any class of voting security of a legal entity. b. Control in any manner over the election of a majority of the directors or of individuals exercising similar functions. c. The power to exercise controlling influence over the management of a legal entity. (2) “Authenticate” means to use reasonable means to determine that a request to exercise any of the rights afforded under § 12D-104(a)(1) to (a)(4) of this title, inclusive, is being made by, or on behalf of, the consumer who is entitled to exercise such consumer rights with respect to the personal data at issue. (3) “Biometric data” means data generated by automatic measurements of an individual’s unique biological characteristics, such as a fingerprint, a voiceprint, eye retinas, irises, or other unique biological patterns or characteristics that are used to identify a specific individual. “Biometric data” does not include any of the following: a. A digital or physical photograph. b. An audio or video recording. c. Any data generated from a digital or physical photograph, or an audio or video recording, unless such data is generated to identify a specific individual. (4) “Business associate” means as defined in HIPAA. (5) “Child” means as defined in COPPA. (6) “Child abuse” means, with respect to an individual under 18 years of age, as defined in § 901(1) of Title 10, or any equivalent provision in the laws of any other state, the United States, any territory, district, or subdivision of the United States, or any foreign jurisdiction. (7) “Consent” means a clear affirmative act signifying a consumer’s freely given, specific, informed and unambiguous agreement to allow the processing of personal data relating to the consumer. “Consent” may include a written statement, including by electronic means, or any other unambiguous affirmative action. “Consent” does not include any of the following: a. Acceptance of a general or broad terms of use or similar document that contains descriptions of personal data processing along with other, unrelated information. b. Hovering over, muting, pausing, or closing a given piece of content. c. Agreement obtained through the use of dark patterns. (8) “Consumer” means an individual who is a resident of this State. “Consumer” does not include an individual acting in a commercial or employment context or as an employee, owner, director, officer, or contractor of a company, partnership, sole proprietorship, nonprofit organization, or government agency whose communications or transactions with the controller occur solely within the context of that individual’s role with the company, partnership, sole proprietorship, nonprofit organization, or government agency. (9) “Controller” means a person that, alone or jointly with others, determines the purpose and means of processing personal data. (10) “COPPA” means the Children’s Online Privacy Protection Act of 1998, 15 U.S.C. § 6501, et seq., and the regulations, rules, guidance, and exemptions adopted pursuant to said act, as said act and such regulations, rules, guidance, and exemptions may be amended. (11) “Covered entity” means as defined in HIPAA. (12) “Dark pattern” means any of the following: a. A user interface designed or manipulated with the substantial effect of subverting or impairing user autonomy, decision-making, or choice. b. Any other practice the Federal Trade Commission refers to as a “dark pattern.” (13) “Decisions that produce legal or similarly significant effects concerning the consumer” means decisions made by the controller that result in the provision or denial by the controller of financial or lending services, housing, insurance, education enrollment or opportunity, criminal justice, employment opportunities, health-care services, or access to essential goods or services. (14) “De-identified data” means data that cannot reasonably be used to infer information about, or otherwise be linked to, an identified or identifiable individual, or a device linked to such individual, if the controller that possesses such data does all of the following: a. Takes reasonable measures to ensure that such data cannot be associated with an individual. b. Publicly commits to process such data only in a de-identified fashion and not attempt to re-identify such data. c. Contractually obligates any recipients of such data to comply with all of the provisions of this chapter applicable to the controller with respect to such data. (15) “Domestic violence” means as defined in § 1041 of Title 10, or any equivalent provision in the laws of any other state, the United States, any territory, district, or subdivision of the United States, or any foreign jurisdiction. (16) “Genetic data” means any data, regardless of its format, that results from the analysis of a biological sample of an individual, or from another source enabling equivalent information to be obtained, and concerns genetic material. For purposes of this paragraph, “genetic material” includes deoxyribonucleic acids (DNA), ribonucleic acids (RNA), genes, chromosomes, alleles, genomes, alterations or modifications to DNA or RNA, single nucleotide polymorphisms (SNPs), uninterpreted data that results from analysis of the biological sample or other source, and any information extrapolated, derived, or inferred therefrom. (17) “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. § 1320d, et seq., as amended. (18) “Human trafficking” means the offense defined in § 787 of Title 11, or any equivalent provision in the laws of any other state, the United States, any territory, district, or subdivision of the United States, or any foreign jurisdiction. (19) “Identified or identifiable individual” means an individual who can be readily identified, directly or indirectly. (20) “Nonprofit organization” means any organization that is exempt from taxation under § 501(c)(3), (c)(4), (c)(6) or (c)(12) of the Internal Revenue Code of 1986 [26 U.S.C. § 501(c)(3), (c)(4), (c)(6) or (c)(12)], or any subsequent corresponding internal revenue code of the United States, as amended. (21) “Personal data” means any information that is linked or reasonably linkable to an identified or identifiable individual, and does not include de-identified data or publicly available information. (22) “Precise geolocation data” means information derived from technology, including global positioning system level latitude and longitude coordinates or other mechanisms, that directly identifies the specific location of an individual with precision and accuracy within a radius of 1,750 feet. “Precise geolocation data” does not include the content of communications or any data generated by or connected to advanced utility metering infrastructure systems or equipment for use by a utility. (23) “Process” or “processing” means any 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. (24) “Processor” means a person that processes personal data on behalf of a controller. (25) “Profiling” means any form of automated processing performed on personal data to evaluate, analyze, or predict personal aspects related to an identified or identifiable individual’s economic situation, health, demographic characteristics, personal preferences, interests, reliability, behavior, location, or movements. (26) “Protected health information” means as defined in HIPAA. (27) “Pseudonymous data” means personal data that cannot be attributed to a specific individual without the use of additional information, provided such additional information is kept separately and is subject to appropriate technical and organizational measures to ensure that the personal data is not attributed to an identified or identifiable individual. (28) “Publicly available information” means any of the following: a. Information that is lawfully made available through federal, state, or local government records. b. Information that a controller has a reasonable basis to believe that the consumer has lawfully made available to the general public through widely distributed media. (29) “Sale of personal data” means the exchange of personal data for monetary or other valuable consideration by the controller to a third party. “Sale of personal data” does not include any of the following: a. The disclosure of personal data to a processor that processes the personal data on behalf of the controller where limited to the purpose of such processing. b. The disclosure of personal data to a third party for purposes of providing a product or service affirmatively requested by the consumer. c. The disclosure or transfer of personal data to an affiliate of the controller. d. The disclosure of personal data where the consumer directs the controller to disclose the personal data or intentionally uses the controller to interact with a third party. e. The disclosure of personal data that the consumer intentionally made available to the general public via a channel of mass media, and did not restrict to a specific audience. f. The disclosure or transfer of personal data to a third party as an asset that is part of a merger, acquisition, bankruptcy, or other similar transaction in which the third party assumes control of all or part of the controller’s assets, or a proposed merger, acquisition, bankruptcy, or other similar transaction in which the third party assumes control of all or part of the controller’s assets. (30) “Sensitive data” means personal data that includes any of the following: a. Data revealing racial or ethnic origin, religious beliefs, mental or physical health condition or diagnosis (including pregnancy), sex life, sexual orientation, status as transgender or nonbinary, citizenship status, or immigration status. b. Genetic or biometric data. c. Personal data of a known child. d. Precise geolocation data. (31) “Sexual assault” means any of the offenses defined in §§ 768 to 780 and § 787 of Title 11, or any equivalent provision in the laws of any other state, the United States, any territory, district, or subdivision of the United States, or any foreign jurisdiction. (32) “Stalking” means the offense defined in § 1312 of Title 11, or any equivalent provision in the laws of any other state, the United States, any territory, district, or subdivision of the United States, or any foreign jurisdiction. (33) “Targeted advertising” means displaying advertisements to a consumer where the advertisement is selected based on personal data obtained or inferred from that consumer’s activities over time and across nonaffiliated Internet websites or online applications to predict such consumer’s preferences or interests. “Targeted advertising” does not include any of the following: a. Advertisements based on activities within a controller’s own Internet websites or online applications. b. Advertisements based on the context of a consumer’s current search query, visit to an Internet website, or online application. c. Advertisements directed to a consumer in direct response to the consumer’s request for information or feedback. d. Processing personal data solely to measure or report advertising frequency, performance, or reach. (34) “Third party” means, with respect to personal data controlled by a controller, any person other than the relevant consumer, the controller of such personal data, or a processor or an affiliate of the processor or the controller. (35) “Trade secret” means as defined in § 2001(4) of this title. (36) “Violent felony” means as defined in § 4201 of Title 11 and includes any equivalent provision in the laws of any other state, the United States, and territory, district, or subdivision of the United States, or any foreign jurisdiction. 84 Del. Laws, c. 197, § 1 ; § 12D-102 Definitions [Effective Jan. 1, 2027]. For purposes of this chapter, the following definitions shall apply: (1) “Adverse action” means any denial, cancellation, unfavorable change, increase in charge, exclusion of benefit, or other action adverse to the interests of a consumer or resident in connection with a decision that produces legal or similarly significant effects. (2) “Affiliate” means a legal entity that shares common branding with another legal entity or controls, is controlled by, or is under common control with another legal entity. For the purposes of this paragraph, “control” or “controlled” means any of the following: a. Ownership of, or the power to vote, more than 50% of the outstanding shares of any class of voting security of a legal entity. b. Control in any manner over the election of a majority of the directors or of individuals exercising similar functions. c. The power to exercise controlling influence over the management of a legal entity. (3) “Authenticate” means to use reasonable means to determine that a request to exercise any of the rights afforded under § 12D-104(a)(1) to (a)(4) of this title, inclusive, is being made by, or on behalf of, the consumer who is entitled to exercise such consumer rights with respect to the personal data at issue. (4) “Biometric data” means data generated by automatic measurements of an individual’s unique biological characteristics, such as a fingerprint, a voiceprint, eye retinas, irises, or other unique biological patterns or characteristics that are used to identify a specific individual. “Biometric data” does not include any of the following: a. A digital or physical photograph. b. An audio or video recording. c. Any data generated from a digital or physical photograph, or an audio or video recording, unless such data is generated to identify a specific individual. (5) “Business associate” means as defined in HIPAA. (6) “Child” means as defined in COPPA. (7) “Child abuse” means, with respect to an individual under 18 years of age, as defined in § 901(1) of Title 10, or any equivalent provision in the laws of any other state, the United States, any territory, district, or subdivision of the United States, or any foreign jurisdiction. (8) “Consent” means a clear affirmative act signifying a consumer’s freely given, specific, informed and unambiguous agreement to allow the processing of personal data relating to the consumer. “Consent” may include a written statement, including by electronic means, or any other unambiguous affirmative action. “Consent” does not include any of the following: a. Acceptance of a general or broad terms of use or similar document that contains descriptions of personal data processing along with other, unrelated information. b. Hovering over, muting, pausing, or closing a given piece of content. c. Agreement obtained through the use of dark patterns. (9) “Consumer” means an individual who is a resident of this State. “Consumer” does not include an individual acting in a commercial or employment context or as an employee, owner, director, officer, or contractor of a company, partnership, sole proprietorship, nonprofit organization, or government agency whose communications or transactions with the controller occur solely within the context of that individual’s role with the company, partnership, sole proprietorship, nonprofit organization, or government agency. (10) “Controller” means a person that, alone or jointly with others, determines the purpose and means of processing personal data. (11) “COPPA” means the Children’s Online Privacy Protection Act of 1998, 15 U.S.C. § 6501, et seq., and the regulations, rules, guidance, and exemptions adopted pursuant to said act, as said act and such regulations, rules, guidance, and exemptions may be amended. (12) “Covered entity” means as defined in HIPAA. (13) “Dark pattern” means any of the following: a. A user interface designed or manipulated with the substantial effect of subverting or impairing user autonomy, decision-making, or choice. b. Any other practice the Federal Trade Commission refers to as a “dark pattern.” (14) “Decisions that produce legal or similarly significant effects” means decisions that result in the provision or denial of financial or lending services, housing, insurance, education enrollment or opportunity, criminal justice, employment opportunities, health-care services, or access to essential goods or services. (15) “De-identified data” means data that cannot reasonably be used to infer information about, or otherwise be linked to, an identified or identifiable individual, or a device linked to such individual, if the controller that possesses such data does all of the following: a. Takes reasonable measures to ensure that such data cannot be associated with an individual. b. Publicly commits to process such data only in a de-identified fashion and not attempt to re-identify such data. c. Contractually obligates any recipients of such data to comply with all of the provisions of this chapter applicable to the controller with respect to such data. (16) “Domestic violence” means as defined in § 1041 of Title 10, or any equivalent provision in the laws of any other state, the United States, any territory, district, or subdivision of the United States, or any foreign jurisdiction. (17) “Genetic data” means any data, regardless of its format, that results from the analysis of a biological sample of an individual, or from another source enabling equivalent information to be obtained, and concerns genetic material. For purposes of this paragraph, “genetic material” includes deoxyribonucleic acids (DNA), ribonucleic acids (RNA), genes, chromosomes, alleles, genomes, alterations or modifications to DNA or RNA, single nucleotide polymorphisms (SNPs), uninterpreted data that results from analysis of the biological sample or other source, and any information extrapolated, derived, or inferred therefrom. (18) “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. § 1320d, et seq., as amended. (19) “Human trafficking” means the offense defined in § 787 of Title 11, or any equivalent provision in the laws of any other state, the United States, any territory, district, or subdivision of the United States, or any foreign jurisdiction. (20) “Identified or identifiable individual” means an individual who can be readily identified, directly or indirectly. (21) “Nonprofit organization” means any organization that is exempt from taxation under § 501(c)(3), (c)(4), (c)(6) or (c)(12) of the Internal Revenue Code of 1986 [26 U.S.C. § 501(c)(3), (c)(4), (c)(6) or (c)(12)], or any subsequent corresponding internal revenue code of the United States, as amended. (22) “Personal data” means any information that is linked or reasonably linkable to an identified or identifiable individual, and does not include de-identified data or publicly available information. (23) “Precise geolocation data” means information derived from technology, including global positioning system level latitude and longitude coordinates or other mechanisms, that directly identifies the specific location of an individual with precision and accuracy within a radius of 1,750 feet. “Precise geolocation data” does not include the content of communications or any data generated by or connected to advanced utility metering infrastructure systems or equipment for use by a utility. (24) “Process” or “processing” means any 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. (25) “Processor” means a person that processes personal data on behalf of a controller. (26) “Profiling” means any form of automated processing performed on personal data to evaluate, analyze, or predict personal aspects related to an identified or identifiable individual’s economic situation, health, demographic characteristics, personal preferences, interests, reliability, behavior, location, or movements. (27) “Protected health information” means as defined in HIPAA. (28) “Pseudonymous data” means personal data that cannot be attributed to a specific individual without the use of additional information, provided such additional information is kept separately and is subject to appropriate technical and organizational measures to ensure that the personal data is not attributed to an identified or identifiable individual. (29) “Publicly available information” means any of the following: a. Information that is lawfully made available through federal, state, or local government records. b. Information that a controller has a reasonable basis to believe that the consumer has lawfully made available to the general public through widely distributed media and that does not include biometric data that can be associated with a specific consumer that was collected without the consumer’s consent. (30) “Report” means any written, oral, or other communication of any personal data by a controller or processor, including recommendations, summaries, or automated decisions based on personal data or profiling. (31) “Resident” means any natural person residing in this State. (32) “Sale of personal data” means the exchange of personal data for monetary or other valuable consideration by the controller to a third party. “Sale of personal data” does not include any of the following: a. The disclosure of personal data to a processor that processes the personal data on behalf of the controller where limited to the purpose of such processing. b. The disclosure of personal data to a third party for purposes of providing a product or service affirmatively requested by the consumer, except that the disclosure of sensitive data for monetary or other valuable consideration by the controller to a third party must comply with § 12D-106(a)(2) of this title. c. The disclosure or transfer of personal data to an affiliate of the controller. d. The disclosure of personal data where the consumer directs the controller to disclose the personal data or intentionally uses the controller to interact with a third party. e. The disclosure of personal data that the consumer intentionally made available to the general public via a channel of mass media, and did not restrict to a specific audience. f. The disclosure or transfer of personal data to a third party as an asset that is part of a merger, acquisition, bankruptcy, or other similar transaction in which the third party assumes control of all or part of the controller’s assets, or a proposed merger, acquisition, bankruptcy, or other similar transaction in which the third party assumes control of all or part of the controller’s assets. (33) “Sensitive data” means personal data that includes any of the following, and includes inferences made based on personal data, alone or in combination with other data, that are used to reveal or identify any of the following: a. Data that reveals or identifies racial, national, or ethnic origin, religious beliefs, mental or physical health condition, diagnosis, treatment, or status (including pregnancy), sex life, sexual orientation, treatment or status as transgender or nonbinary, citizenship status, or immigration status. b. Genetic or biometric data. c. Personal data of a known child. d. Precise geolocation data. e. Neural data that is generated by measuring the activity of an individual’s central nervous system. f. A consumer’s financial account number, financial account log-in information, or credit card or debit card number that, alone or in combination with any required access or security code, password, or credential, would allow access to a consumer’s financial account. g. A government-issued identification number, including a Social Security number, passport number, state identification card number, or driver’s license number, that applicable law does not require to be publicly displayed. (34) “Sexual assault” means any of the offenses defined in §§ 768 to 780 and § 787 of Title 11, or any equivalent provision in the laws of any other state, the United States, any territory, district, or subdivision of the United States, or any foreign jurisdiction. (35) “Stalking” means the offense defined in § 1312 of Title 11, or any equivalent provision in the laws of any other state, the United States, any territory, district, or subdivision of the United States, or any foreign jurisdiction. (36) “Targeted advertising” means displaying advertisements to a consumer where the advertisement is selected based on personal data obtained or inferred from that consumer’s activities over time and across nonaffiliated Internet websites or online applications to predict such consumer’s preferences or interests. “Targeted advertising” does not include any of the following: a. Advertisements based on activities within a controller’s own Internet websites or online applications. b. Advertisements based on the context of a consumer’s current search query, visit to an Internet website, or online application. c. Advertisements directed to a consumer in direct response to the consumer’s request for information or feedback. d. Processing personal data solely to measure or report advertising frequency, performance, or reach. (37) “Third party” means, with respect to personal data controlled by a controller, any person other than the relevant consumer, the controller of such personal data, or a processor or an affiliate of the processor or the controller, except for entities listed under § 12D-103(b) of this title. (38) “Trade secret” means as defined in § 2001(4) of this title. (39) “Violent felony” means as defined in § 4201 of Title 11 and includes any equivalent provision in the laws of any other state, the United States, and territory, district, or subdivision of the United States, or any foreign jurisdiction. 84 Del. Laws, c. 197, § 1 ; 85 Del. Laws, c. 463, § 1 ; § 12D-103 Applicability of chapter [Effective until Jan. 1, 2027]. (a) This chapter applies to persons that conduct business in the State or persons that produce products or services that are targeted to residents of the State and that during the preceding calendar year did any of the following: (1) Controlled or processed the personal data of not less than 35,000 consumers, excluding personal data controlled or processed solely for the purpose of completing a payment transaction. (2) Controlled or processed the personal data of not less than 10,000 consumers and derived more than 20% of their gross revenue from the sale of personal data. (b) This chapter does not apply to any of the following entities: (1) Any regulatory, administrative, advisory, executive, appointive, legislative, or judicial body of the State or a political subdivision of the State, including any board, bureau, commission, agency of the State or a political subdivision of the State, but excluding any institution of higher education. (2) Any financial institution or affiliate of a financial institution, all as defined in 15 U.S.C. §  6809, to the extent that the financial institution or affiliate is subject to Title V of the Gramm Leach Bliley Act (15 U.S.C. § 6801, et seq., as amended) and the rules and implementing regulations promulgated thereunder. (3) Any nonprofit organization dedicated exclusively to preventing and addressing insurance crime. (4) A national securities association registered pursuant to § 15A of the Securities Exchange Act of 1934 (15 U.S.C. § 78o-3, as amended) and the rules and implementing regulations promulgated thereunder, or a registered futures association so designated pursuant to § 17 of the Commodity Exchange Act (7 U.S.C. § 21, as amended) and the rules and implementing regulations promulgated thereunder. (c) This chapter does not apply to the following information and data: (1) Protected health information under HIPAA. (2) Patient-identifying information for purposes of 42 U.S.C. § 290dd-2. (3) Identifiable private information, as defined in 45 C.F.R. § 46.102, to the extent that it is used for purposes of the federal policy for the protection of human subjects pursuant to 45 C.F.R. Part 46. (4) Identifiable private information to the extent it is collected and used as part of human subjects research pursuant to the ICH E6 Good Clinical Practice Guideline issued by the International Council for Harmonisation of Technical Requirements for Pharmaceuticals for Human Use or the protection of human subjects under 21 C.F.R. Parts 50 and 56. (5) Patient safety work product, as defined in 42 C.F.R. § 3.20, that is created and used for purposes of patient safety improvement pursuant to 42 C.F.R. Part 3, established pursuant to 42 U.S.C. §§ 299b-21 to 299b-26. (6) Information to the extent it is used for public health, community health, or population health activities and purposes, as authorized by HIPAA, when provided by or to a covered entity or when provided by or to a business associate pursuant to a business associate agreement with a covered entity. (7) The collection, maintenance, disclosure, sale, communication, or use of any personal information bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living by a consumer reporting agency, furnisher, or user that provides information for use in a consumer report, and by a user of a consumer report, but only to the extent that such activity is regulated by and authorized under the federal Fair Credit Reporting Act (15 U.S.C. § 1681, et seq., as amended). (8) Personal data collected, processed, sold, or disclosed in compliance with the Driver’s Privacy Protection Act of 1994, 18 U.S.C. § 2721, et seq., as amended. (9) Personal data regulated by the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, et seq., as amended. (10) Personal data collected, processed, sold, or disclosed in compliance with the Farm Credit Act, 12 U.S.C. § 2001, et seq., as amended. (11) Data processed or maintained in any of the following ways: a. In the course of an individual applying to, employed by, or acting as an agent or independent contractor of a controller, processor, or third party, to the extent that the data is collected and used within the context of that role. b. As the emergency contact information of an individual, used for emergency contact purposes. c. Necessary to retain to administer benefits for another individual relating to the individual who is the subject of the information under paragraph (c)(11)a. of this section and used for the purposes of administering such benefits. (12) Personal data collected, processed, sold, or disclosed in relation to price, route, or service, as such terms are used in the Airline Deregulation Act, 49 U.S.C. § 40101, et seq., as amended, by an air carrier subject to said act, to the extent any part of this chapter is preempted by the Airline Deregulation Act, 49 U.S.C. § 41713, as amended. (13) Personal data of a victim of or witness to child abuse, domestic violence, human trafficking, sexual assault, violent felony, or stalking that is collected, processed, or maintained by a nonprofit organization that provides services to victims of or witnesses to child abuse, domestic violence, human trafficking, sexual assault, violent felony, or stalking. (14) Data subject to Title V of the Gramm Leach Bliley Act (15 U.S.C. § 6801, et. seq., as amended) and the rules and implementing regulations promulgated thereunder. (d) Controllers and processors that comply with the verifiable parental consent requirements of COPPA shall be deemed compliant with any obligation to obtain parental consent set forth in this chapter with respect to a consumer who is a child. 84 Del. Laws, c. 197, § 1 ; § 12D-103 Applicability of chapter [Effective Jan. 1, 2027]. (a) This chapter applies to persons that conduct business in this State or persons that produce products or services that are targeted to residents of this State and that during the preceding calendar year did any of the following: (1) Controlled or processed the personal data of not less than 10,000 consumers, excluding personal data controlled or processed solely for the purpose of completing a payment transaction. (2) Controlled or processed the personal data of not less than 5,000 consumers and derived more than 20% of their gross revenue from the sale of personal data. (3) Third parties who acquire personal data from a controller. (b) This chapter does not apply to any of the following entities: (1) Any regulatory, administrative, advisory, executive, appointive, legislative, or judicial body of the State or a political subdivision of the State, including any board, bureau, commission, agency of the State or a political subdivision of the State, but excluding any institution of higher education. (2) Any insurer, insurance company, insurance producer, surplus lines broker, third-party administrator of self-insurance, health carrier, health services corporation, insurance-support organization, or insurance agent, or any affiliate or subsidiary thereof that is principally engaged in financial activities as described in 12 U.S.C. § 1843(k). (3) Any nonprofit organization dedicated exclusively to preventing and addressing insurance crime. (4) A national securities association registered pursuant to § 15A of the Securities Exchange Act of 1934 (15 U.S.C. § 78o-3, as amended) and the rules and implementing regulations promulgated thereunder, or a registered futures association so designated pursuant to § 17 of the Commodity Exchange Act (7 U.S.C. § 21, as amended) and the rules and implementing regulations promulgated thereunder. (5) Any federal or state-chartered bank, credit union, savings association, or any affiliate or subsidiary thereof that is principally engaged in financial activities as described in 12 U.S.C. § 1843(k). (6) Any "agent, " "broker-dealer," or "investment adviser," or "investment adviser representative" as defined in § 73-103 of this title, who is regulated by the Delaware Investor Protection Unit or the Securities and Exchange Commission. (c) This chapter does not apply to the following information and data: (1) Protected health information under HIPAA. (2) Patient-identifying information for purposes of 42 U.S.C. § 290dd-2. (3) Identifiable private information, as defined in 45 C.F.R. § 46.102, to the extent that it is used for purposes of the federal policy for the protection of human subjects pursuant to 45 C.F.R. Part 46. (4) Identifiable private information to the extent it is collected and used as part of human subjects research pursuant to the ICH E6 Good Clinical Practice Guideline issued by the International Council for Harmonisation of Technical Requirements for Pharmaceuticals for Human Use or the protection of human subjects under 21 C.F.R. Parts 50 and 56. (5) Patient safety work product, as defined in 42 C.F.R. § 3.20, that is created and used for purposes of patient safety improvement pursuant to 42 C.F.R. Part 3, established pursuant to 42 U.S.C. §§ 299b-21 to 299b-26. (6) Information to the extent it is used for public health, community health, or population health activities and purposes, as authorized by HIPAA, when provided by or to a covered entity or when provided by or to a business associate pursuant to a business associate agreement with a covered entity. (7) The collection, maintenance, disclosure, sale, communication, or use of any personal information bearing on a consumer’s credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living by a consumer reporting agency, furnisher, or user that provides information for use in a consumer report, and by a user of a consumer report, but only to the extent that such activity is regulated by and authorized under the federal Fair Credit Reporting Act (15 U.S.C. § 1681, et seq., as amended). (8) Personal data collected, processed, sold, or disclosed in compliance with the Driver’s Privacy Protection Act of 1994, 18 U.S.C. § 2721, et seq., as amended. (9) Personal data regulated by the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g, et seq., as amended. (10) Personal data collected, processed, sold, or disclosed in compliance with the Farm Credit Act, 12 U.S.C. § 2001, et seq., as amended. (11) Data processed or maintained in any of the following ways: a. In the course of an individual applying to, employed by, or acting as an agent or independent contractor of a controller, processor, or third party, to the extent that the data is collected and used within the context of that role, except for personal data processed in connection with profiling and reports under § 12D-106(f) of this title. b. As the emergency contact information of an individual, used for emergency contact purposes. c. Necessary to retain to administer benefits for another individual relating to the individual who is the subject of the information under paragraph (c)(11)a. of this section and used for the purposes of administering such benefits. (12) Personal data collected, processed, sold, or disclosed in relation to price, route, or service, as such terms are used in the Airline Deregulation Act, 49 U.S.C. § 40101, et seq., as amended, by an air carrier subject to said act, to the extent any part of this chapter is preempted by the Airline Deregulation Act, 49 U.S.C. § 41713, as amended. (13) Personal data of a victim of or witness to child abuse, domestic violence, human trafficking, sexual assault, violent felony, or stalking that is collected, processed, or maintained by a nonprofit organization that provides services to victims of or witnesses to child abuse, domestic violence, human trafficking, sexual assault, violent felony, or stalking. (14) Data subject to Title V of the Gramm Leach Bliley Act (15 U.S.C. § 6801, et. seq., as amended) and the rules and implementing regulations promulgated thereunder. (15) Information created specifically for and collected and maintained by a "manufacturer," as defined under 21 C.F.R. § 820.3(b), when collected, used, or disclosed for treatment, payment, or health care operations purposes as specified under HIPPA. (16) Information created for purposes of the federal Health Care Quality Improvement Act of 1986 [42 U.S.C. § 11101 et seq.] and related regulations. (17) Information derived from protected health information regulated under HIPPA or the federal policy for the protection of human subjects under 45 C.F.R. Part 46, and deidentified as provided under 45 C.F.R. § 164.514. (18) Information included in a "limited data set" as described under 45 CFR § 164.514(e), to the extent that the information is used, disclosed, and maintained in the manner specified under 45 CFR § 164.514(e). (d) Controllers and processors that comply with the verifiable parental consent requirements of COPPA shall be deemed compliant with any obligation to obtain parental consent set forth in this chapter with respect to a consumer who is a child. 84 Del. Laws, c. 197, § 1 ; 85 Del. Laws, c. 463, § 1 ; § 12D-104 Consumer personal data rights [Effective until Jan. 1, 2027]. (a) A consumer has the right to do all of the following: (1) Confirm whether a controller is processing the consumer’s personal data and access such personal data, unless such confirmation or access would require the controller to reveal a trade secret. (2) Correct inaccuracies in the consumer’s personal data, taking into account the nature of the personal data and the purposes of the processing of the consumer’s personal data. (3) Delete personal data provided by, or obtained about, the consumer. (4) Obtain a copy of the consumer’s personal data processed by the controller, in a portable and, to the extent technically feasible, readily-usable format that allows the consumer to transmit the data to another controller without hindrance, where the processing is carried out by automated means, provided such controller shall not be required to reveal any trade secret. (5) Obtain a list of the categories of third parties to which the controller has disclosed the consumer’s personal data. (6) Opt out of the processing of the personal data for purposes of any of the following: a. Targeted advertising. b. The sale of personal data, except as provided in § 12D-106(b) of this title. c. Profiling in furtherance of solely-automated decisions that produce legal or similarly significant effects concerning the consumer. (b) A consumer may exercise rights under this section by a secure and reliable means established by the controller and described to the consumer in the controller’s privacy notice. A consumer may designate an authorized agent in accordance with § 12D-105 of this title to exercise the rights of such consumer to opt out of the processing of such consumer’s personal data for purposes of paragraph (a)(6) of this section on behalf of the consumer. In the case of processing personal data of a known child, the parent or legal guardian may exercise such consumer rights on the child’s behalf. In the case of processing personal data concerning a consumer subject to a guardianship, conservatorship or other protective arrangement, the guardian or the conservator of the consumer may exercise such rights on the consumer’s behalf. (c) Except as otherwise provided in this chapter, a controller shall comply with a request by a consumer to exercise the consumer rights authorized pursuant to said sections as follows: (1) A controller shall respond to the consumer without undue delay, but not later than 45 days after receipt of the request. The controller may extend the response period by 45 additional days when reasonably necessary, considering the complexity and number of the consumer’s requests, provided the controller informs the consumer of any such extension within the initial 45-day response period and of the reason for the extension. (2) If a controller declines to take action regarding the consumer’s request, the controller shall inform the consumer without undue delay, but not later than 45 days after receipt of the request, of the justification for declining to take action and instructions for how to appeal the decision. (3) Information provided in response to a consumer request shall be provided by a controller, free of charge, once per consumer during any 12-month period. If requests from a consumer are manifestly unfounded, excessive or repetitive, the controller may charge the consumer a reasonable fee to cover the administrative costs of complying with the request or decline to act on the request. The controller bears the burden of demonstrating the manifestly unfounded, excessive or repetitive nature of the request. (4) If a controller is unable to authenticate a request to exercise any of the rights afforded under paragraphs (a)(1) through (a)(5) of this section, inclusive, using commercially-reasonable efforts, the controller shall not be required to comply with a request to initiate an action pursuant to this section and shall provide notice to the consumer that the controller is unable to authenticate the request to exercise such right or rights until such consumer provides additional information reasonably necessary to authenticate such consumer and such consumer’s request to exercise such right or rights. A controller shall not be required to authenticate an opt-out request, but a controller may deny an opt-out request if the controller has a good faith, reasonable, and documented belief that such request is fraudulent. If a controller denies an opt-out request because the controller believes such request is fraudulent, the controller shall send a notice to the person who made such request disclosing that such controller believes such request is fraudulent, why such controller believes such request is fraudulent, and that such controller shall not comply with such request. (5) A controller that has obtained personal data about a consumer from a source other than the consumer shall be deemed in compliance with a consumer’s request to delete such data pursuant to paragraph (a)(3) of this section if the controller retains a record of the deletion request and the minimum data necessary for the purpose of ensuring the consumer’s personal data remains deleted from the controller’s records and does not use such retained data for any other purpose. (d) A controller shall establish a process for a consumer to appeal the controller’s refusal to take action on a request within a reasonable period of time after the consumer’s receipt of the decision. The appeal process shall be conspicuously available and similar to the process for submitting requests to initiate action pursuant to this section. Not later than 60 days after receipt of an appeal, a controller shall inform the consumer in writing of any action taken or not taken in response to the appeal, including a written explanation of the reasons for the decisions. If the appeal is denied, the controller shall also provide the consumer with an online mechanism, if available, or other method through which the consumer may contact the Department of Justice to submit a complaint. 84 Del. Laws, c. 197, § 1 ; § 12D-104 Consumer personal data rights [Effective Jan. 1, 2027]. (a) A consumer has the right to do all of the following: (1) Confirm whether a controller is processing the consumer’s personal data and access such personal data, including any inferences about the consumer derived from such personal data and whether a controller or processor is processing a consumer’s personal data for the purpose of profiling to make a decision that produces any legal or similarly significant effect concerning the consumer, unless such confirmation or access would require the controller to reveal a trade secret. (2) Correct inaccuracies in the consumer’s personal data, taking into account the nature of the personal data and the purposes of the processing of the consumer’s personal data. (3) Delete personal data provided by, or obtained about, the consumer. (4) Obtain a copy of the consumer’s personal data processed by the controller, in a portable and, to the extent technically feasible, readily-usable format that allows the consumer to transmit the data to another controller without hindrance, where the processing is carried out by automated means, provided the controller is not required to reveal any trade secret. (5) Obtain a list of third parties to which the controller has disclosed the consumer’s personal data unless any of the following apply: a. The disclosed personal data is pseudonymous data. b. The controller cannot compile such a list with reasonable effort, in which case the controller must disclose all third parties to which the controller discloses personal data. c. The listing of a third party would reveal a trade secret. (6) Opt out of the processing of the personal data for purposes of any of the following: a. Targeted advertising. b. The sale of personal data, except as provided in § 12D-106(b) of this title. c. Profiling in furtherance of automated decisions that produce legal or similarly significant effects concerning the consumer. (b) A consumer may exercise rights under this section by a secure and reliable means established by the controller and described to the consumer in the controller’s privacy notice. A consumer may designate an authorized agent in accordance with § 12D-105 of this title to exercise the rights of such consumer to opt out of the processing of such consumer’s personal data for purposes of paragraph (a)(6) of this section on behalf of the consumer. In the case of processing personal data of a known child, the parent or legal guardian may exercise such consumer rights on the child’s behalf. In the case of processing personal data concerning a consumer subject to a guardianship, conservatorship or other protective arrangement, the guardian or the conservator of the consumer may exercise such rights on the consumer’s behalf. (c) Except as otherwise provided in this chapter, a controller shall comply with a request by a consumer to exercise the consumer rights under this chapter as follows: (1) A controller shall respond to the consumer without undue delay, but not later than 45 days after receipt of the request. The controller may extend the response period by 45 additional days when reasonably necessary, considering the complexity and number of the consumer’s requests, provided the controller informs the consumer of any such extension within the initial 45-day response period and of the reason for the extension. (2) If a controller declines to take action regarding the consumer’s request, the controller shall inform the consumer without undue delay, but not later than 45 days after receipt of the request, of the justification for declining to take action and instructions for how to appeal the decision. (3) Information provided in response to a consumer request shall be provided by a controller, free of charge, once per consumer during any 12-month period. If requests from a consumer are manifestly unfounded, excessive or repetitive, the controller may charge the consumer a reasonable fee to cover the administrative costs of complying with the request or decline to act on the request. The controller bears the burden of demonstrating the manifestly unfounded, excessive or repetitive nature of the request. (4) If a controller is unable to authenticate a request to exercise any of the rights afforded under paragraphs (a)(1) through (a)(5) of this section, inclusive, using commercially-reasonable efforts, the controller shall not be required to comply with a request to initiate an action pursuant to this section and shall provide notice to the consumer that the controller is unable to authenticate the request to exercise such right or rights until such consumer provides additional information reasonably necessary to authenticate such consumer and such consumer’s request to exercise such right or rights. A controller shall not be required to authenticate an opt-out request, but a controller may deny an opt-out request if the controller has a good faith, reasonable, and documented belief that such request is fraudulent. If a controller denies an opt-out request because the controller believes such request is fraudulent, the controller shall send a notice to the person who made such request disclosing that such controller believes such request is fraudulent, why such controller believes such request is fraudulent, and that such controller shall not comply with such request. (5) A controller that has obtained personal data about a consumer from a source other than the consumer shall be deemed in compliance with a consumer’s request to delete such data pursuant to paragraph (a)(3) of this section if the controller retains a record of the deletion request and the minimum data necessary for the purpose of ensuring the consumer’s personal data remains deleted from the controller’s records and does not use such retained data for any other purpose. (6) Notwithstanding the right of access provided in paragraph (a)(1) of this section, a controller may not disclose the following personal data in response to a consumer’s request and may only inform the consumer or the person exercising such right on behalf of the consumer, with sufficient particularity, that the controller processes any of the following personal data: a. The consumer’s Social Security number. b. The consumer’s driver’s license number, state identification card number, or other government-issued identification number. c. The consumer’s financial account number. d. The consumer’s health insurance identification number or medical identification number. e. The consumer’s account password. f. The consumer’s security question or answer thereto. g. The consumer’s biometric data. (d) A controller shall establish a process for a consumer to appeal the controller’s refusal to take action on a request within a reasonable period of time after the consumer’s receipt of the decision. The appeal process shall be conspicuously available and similar to the process for submitting requests to initiate action pursuant to this section. Not later than 60 days after receipt of an appeal, a controller shall inform the consumer in writing of any action taken or not taken in response to the appeal, including a written explanation of the reasons for the decisions. If the appeal is denied, the controller shall also provide the consumer with an online mechanism, if available, or other method through which the consumer may contact the Department of Justice to submit a complaint. 84 Del. Laws, c. 197, § 1 ; 85 Del. Laws, c. 463, § 1 ; § 12D-105 Designation of agent to exercise rights of consumer, including through universal opt-out mechanisms. (a) A consumer may designate an authorized agent to act on the consumer’s behalf to opt out of the processing of such consumer’s personal data for 1 or more of the purposes specified in § 12D-104(a)(6) of this title. The consumer may designate such authorized agent by way of, among other things, a platform, technology, or mechanism, including an Internet link or a browser setting, browser extension, or global device setting, indicating such consumer’s intent to opt out of such processing. For the purposes of such designation, the platform, technology, or mechanism may function as the agent for purposes of conveying the consumer’s decision to opt-out. (b) A controller shall comply with an opt-out request received from an authorized agent if the controller is able to verify, with commercially-reasonable effort, the identity of the consumer and the authorized agent’s authority to act on such consumer’s behalf. The Department of Justice may publish or reference on its website a list of agents who presumptively shall have such authority unless the controller has established a reasonable basis to conclude that the agent lacks such authority. 84 Del. Laws, c. 197, § 1 ; § 12D-106 Duties of controllers [Effective until Jan. 1, 2027]. (a) A controller shall do all of the following: (1) Limit the collection of personal data to what is adequate, relevant, and reasonably necessary in relation to the purposes for which such data is processed, as disclosed to the consumer. (2) Except as otherwise permitted by this chapter, not process personal data for purposes that are neither reasonably necessary to, nor compatible with, the disclosed purposes for which such personal data is processed, as disclosed to the consumer, unless the controller obtains the consumer’s consent. (3) Establish, implement, and maintain reasonable administrative, technical, and physical data security practices to protect the confidentiality, integrity, and accessibility of personal data appropriate to the volume and nature of the personal data at issue. (4) Not process sensitive data concerning a consumer without obtaining the consumer’s consent, or, in the case of the processing of sensitive data concerning a known child, without first obtaining consent from the child’s parent or lawful guardian and otherwise complying with § 1204C of this title. (5) Not process personal data in violation of the laws of this State and federal laws that prohibit unlawful discrimination. (6) Provide an effective mechanism for a consumer to revoke the consumer’s consent under this section that is at least as easy as the mechanism by which the consumer provided the consumer’s consent and, upon revocation of such consent, cease to process the data as soon as practicable, but not later than 15 days after the receipt of such request. (7) Not process the personal data of a consumer for purposes of targeted advertising, or sell the consumer’s personal data without the consumer’s consent, under circumstances where a controller has actual knowledge or wilfully disregards that the consumer is at least 13 years of age but younger than 18 years of age. (8) Not discriminate against a consumer for exercising any of the consumer rights contained in this chapter, including denying goods or services, charging different prices or rates for goods or services, or providing a different level of quality of goods or services to the consumer. (b) Nothing in subsection (a) of this section shall be construed to require a controller to provide a product or service that requires the personal data of a consumer which the controller does not collect or maintain, or prohibit a controller from offering a different price, rate, level, quality, or selection of goods or services to a consumer, including offering goods or services for no fee, if the offering is in connection with a consumer’s voluntary participation in a bona fide loyalty, rewards, premium features, discounts, or club card program. (c) A controller shall provide consumers with a reasonably accessible, clear, and meaningful privacy notice that includes all of the following: (1) The categories of personal data processed by the controller. (2) The purpose for processing personal data. (3) How consumers may exercise their consumer rights, including how a consumer may appeal a controller’s decision with regard to the consumer’s request. (4) The categories of personal data that the controller shares with third parties, if any. (5) The categories of third parties with which the controller shares personal data, if any. (6) An active electronic mail address or other online mechanism that the consumer may use to contact the controller. (d) If a controller sells personal data to third parties or processes personal data for targeted advertising, the controller shall clearly and conspicuously disclose such processing, as well as the manner in which a consumer may exercise the right to opt out of such processing. (e) (1) A controller shall establish, and shall describe in the privacy notice required by subsection (c) of this section, 1 or more secure and reliable means for consumers to submit a request to exercise their consumer rights pursuant to this chapter. Such means shall take into account the ways in which consumers normally interact with the controller, the need for secure and reliable communication of such requests, and the ability of the controller to verify the identity of the consumer making the request. A controller shall not require a consumer to create a new account in order to exercise consumer rights, but may require a consumer or the consumer’s authorized agent to use an exi