New Hampshire Joins a Growing Number of States Considering Comprehensive Consumer Privacy Bill

On January 19, 2023, a bipartisan group of 10 New Hampshire state senators and representatives introduced Senate Bill 255-FN (“SB 255-FN”), titled “[a]n act relative to the expectation of privacy.” Senator Sharon Carson, the lead sponsor, noted that the right to privacy is enshrined in the state’s Constitution and stated that SB 255-FN will “establish the right of consumers to protect their data and the responsibility of businesses they deal with to respect their customer’s privacy wishes.” The 18-page bill would provide New Hampshire consumers with various rights around their data vis-à-vis “controllers,” i.e. the entities that conduct business in New Hampshire or produce goods and services targeted to New Hampshire residents and that handle personal data of New Hampshire consumers. The bill, among other things, creates for consumers the right to know whether their personal information is being collected and stored, the right to obtain a copy of their data, the right to correct any inaccuracies present in that data, the right to request the deletion of data, and the right to opt out of sale of their data for advertising, including by using universal opt-out signals. Controllers would in turn be required to comply with these consumer requests within 45 days or face investigation by the New Hampshire Department of Justice. With the introduction of SB 255-FN, New Hampshire is now one of the 19 states considering at least one comprehensive consumer privacy bill in 2023, hoping to join the five states (California, Colorado, Connecticut, Utah, and Virginia) that have adopted comprehensive consumer privacy bills in the last few years. SB 255-FN is modeled on three of the state privacy bills that were passed in the last two years: the privacy acts of Virginia, Colorado, and Connecticut.

The reaction from New Hampshire’s commercial sector to SB 255-FN has been largely positive. During the Senate hearing for SB 255-FN, held on February 17, 2023, some industry leaders stated their support for SB 255-FN, praising it for “providing ‘reasonable protections for businesses and consumers,’” and for its requirements being compatible with standards imposed by the European Union and other existing privacy frameworks. Some industry leaders voiced their dissatisfaction at the state-by-state approach to privacy legislation, emphasizing that privacy frameworks are “largely a national and international issue” and that they would prefer a federal solution to a state-by-state privacy solution. Nevertheless, in the absence of a federal solution in the near future, they showed their appreciation for the approach to privacy protection that SB 255-FN took and offered to work with the bill sponsor to strengthen it, suggesting a few modifications they would like to see, such as exempting small businesses from the scope of the bill. Since then, an amendment has been proposed to limit the scope of the bill.

The Attorney General’s Office of New Hampshire, which would be tasked with enforcing the provisions of SB 255-FN, voiced its unequivocal support for the bill, saying that its purpose is aligned with the Office’s goals. However, the Office also voiced some concerns around enforcement should the bill pass in its current format. For one, according to Brandon Garod, Senior Assistant Attorney General and Chief of the Consumer Protection and Antitrust Bureau (which would handle the enforcement), the Office does not have enough staff or the level of expertise that it would need to handle additional responsibility. Garod further pointed out certain provisions that are too vague or inconsistent and would hamper the Office’s ability to effectively enforce the requirements of SB 255-FN. As a potential solution to some of the issues he raised, Garod suggested adding a private right of action to the bill with a requirement to notify the Office to aid with enforcement. Sen. Carson later released a statement claiming that the concerns raised by the Attorney General’s Office “would be addressed ‘in the final bill.’”

SB 255-FN is currently under consideration by the Senate Judiciary Committee, which is chaired by Sen. Carson, the lead sponsor of the bill. The Committee is expected to make a recommendation on the bill in early March; the bill will later go to the Senate floor for a vote.

On March 8, 2023, the New Hampshire Senate Judiciary Committee unanimously recommended the bill with amendments; the floor date is set for March 16, 2023.

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