Florida's Digital Bill of Rights Has an Automated Decision-Making Provision and Most People Missed It

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Florida’s SB 262 — the Florida Digital Bill of Rights — took effect July 1, 2024. The coverage has mostly focused on the children’s data provisions and the social media restrictions for minors. Those provisions are real and significant. But buried in the statute is an automated decision-making provision that applies to adult consumers and deserves more attention than it’s gotten.

The Coverage Threshold

Before anything else, let’s be clear about who this law applies to. The Florida Digital Bill of Rights doesn’t apply to most companies. It applies to “controllers” that either:

• Operate in Florida and control or process personal data of at least 100,000 consumers per year, or
• Derive over 50% of their revenue from selling personal data and process data of at least 25,000 consumers

Or — and this is the one that hits big tech — they have global annual revenues exceeding $1 billion and meet lower consumer thresholds.

If you’re a startup or mid-market company, you might not hit these thresholds. The law was designed to target large platforms. Keep that in mind as you read the rest of this.

The Automated Decision-Making Right

Florida consumers covered by the statute have the right to opt out of the processing of their personal data for purposes of:

“profiling in furtherance of decisions that produce legal or similarly significant effects concerning the consumer.”

“Legal or similarly significant effects” includes decisions affecting access to credit, insurance, housing, employment, education, government services, and similar consequential domains.

This is the CCPA opt-out right for automated profiling, transplanted to Florida. A Florida consumer can tell a covered controller: don’t use my data to build a profile that gets used to make decisions about me in these covered categories.

How This Differs from the CCPA Approach

California’s automated decision-making rights come out of the CPPA rulemaking process — they’ve been proposed and contested over multiple rulemaking cycles and still aren’t fully settled. The California approach is detailed: consumers can access information about how automated decisions were made, request human review, and opt out of certain processing.

Florida’s statute is leaner. The opt-out right is there. The mechanisms for exercising it are less specified. Controllers have to establish “a reasonably accessible, clear, and meaningful” process for consumers to opt out of processing for the defined purposes.

“Reasonably accessible, clear, and meaningful” is the kind of phrase lawyers get paid to argue about. The Florida AG has enforcement authority. The contours of what “meaningful” opt-out actually requires will develop through enforcement actions and, eventually, litigation.

There’s no private right of action under the Florida Digital Bill of Rights — enforcement is exclusively through the AG. That limits the volume of litigation you’ll see, but it doesn’t limit AG enforcement, and Florida has historically been an aggressive enforcement state.

The Children’s Data Piece

The parts of the law that got more coverage are also worth understanding briefly. The statute prohibits covered online platforms from:

• Collecting or selling personal data of users under 18 without consent
• Using targeted advertising directed at users under 18
• Processing a minor’s precise geolocation data
• Using design features that encourage minors to spend more time on the platform

“Design features” that push minors toward more usage is the provision that will generate the most litigation. The definitions are contested. What counts as a “design feature” — is a recommendation algorithm a design feature? Almost certainly. Is a streak mechanic? Probably. Is any engagement optimization that happens to affect minors? The courts will decide.

What Compliance Looks Like for Covered Companies

If you’re a covered controller operating in Florida:

For the automated profiling opt-out: You need a documented process for receiving and honoring opt-out requests for processing in the covered decision categories. Your privacy notice needs to disclose that you engage in this kind of processing and explain how to opt out.

For children’s data: If you operate a platform likely to be accessed by minors, you need age-verification mechanisms and separate consent flows. The standard you’re being held to is “likely to be predominantly accessed by children” — you can’t design around this by saying you don’t verify ages.

The law has a knowledge standard for children’s data: liability attaches when you “knowingly” process a minor’s data in prohibited ways. Document your age-verification efforts. If a minor lies about their age to access your platform and you had a reasonable verification process, your exposure is limited. If you had no process, it’s not.

The Bigger Picture

Florida’s Digital Bill of Rights is part of the wave of state privacy laws — Virginia, Colorado, Connecticut, Montana, Iowa, and now more than a dozen states with comprehensive privacy frameworks. The automated decision-making provisions are converging on a common structure: consumers get an opt-out right for decisions with legal significance, controllers have to have a process for honoring it, and state AGs enforce it.

The patchwork of state laws is genuinely annoying for compliance. Each state’s law has slightly different definitions, different thresholds, different enforcement mechanisms. If you operate nationally, you’re managing a compliance matrix. The practical answer for most companies is to implement the most protective state’s requirements as your floor and apply them broadly — usually California’s requirements.

The automated decision-making piece of these laws hasn’t generated the same volume of enforcement attention as the data breach notification or children’s privacy provisions. That will change. As AI decision-making becomes more pervasive and consequential, the opt-out rights built into these statutes will become more significant. Florida put that right in the code. Companies subject to the statute need to be ready to honor it.

You can find the original text of Florida SB 262 on the Florida Legislature’s website.