A Bill for an Act
Page 1, Line 101Concerning limiting the use of automated analysis of
Page 1, Line 102intimate personal data to make inferences that impact
Page 1, Line 103a person's financial position.
Bill Summary
(Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://leg.colorado.gov.)
Surveillance data is data that is obtained through observation, inference, or surveillance and that is related to personal characteristics, behaviors, or biometrics. The bill prohibits surveillance-based discrimination against a consumer or worker based on surveillance data through the use of automated decision systems to inform:
- Individualized prices based on surveillance data regarding a consumer; or
- Individualized wages based on surveillance data regarding a worker.
An automated decision system is defined by the bill and includes, in part, information derived from machine learning or other data processing or artificial intelligence.
The bill specifies activities that are not surveillance-based price or wage discrimination.
The attorney general or a district attorney may bring a civil action on behalf of the state against a person that violates the prohibition against surveillance-based discrimination to seek the imposition of civil penalties. In addition, a person aggrieved by a violation of the prohibition against surveillance-based discrimination may bring a civil action on behalf of themself or a group of similarly situated persons to restrain further violations and to recover damages, costs, and reasonable attorney fees.
A violation of the prohibition against surveillance-based discrimination is a deceptive trade practice under the "Colorado Consumer Protection Act".
Page 2, Line 1Be it enacted by the General Assembly of the State of Colorado:
Page 2, Line 2SECTION 1. In Colorado Revised Statutes, 6-1-105, add (1)(iiii) as follows:
Page 2, Line 36-1-105. Unfair or deceptive trade practices - definitions.
Page 2, Line 4(1) A person engages in a deceptive trade practice when, in the course of the person's business, vocation, or occupation, the person:
Page 2, Line 5(iiii) Violates part 18 of article 1 of title 6.
Page 2, Line 6SECTION 2. In Colorado Revised Statutes, add part 18 to article 1 of title 6 as follows:
Page 2, Line 7PART 18
PROHIBITING SURVEILLANCE-BASED
Page 2, Line 8PRICE AND WAGE DISCRIMINATION
Page 2, Line 96-1-1801. Definitions.As used in this part 18, unless the
Page 2, Line 10context otherwise requires:
Page 3, Line 1(1) (a) "Automated decision system" means a system,
Page 3, Line 2software, or process that uses computation, the result of which is used to assist or replace human decision-making.
Page 3, Line 3(b) "Automated decision system" includes a system,
Page 3, Line 4software, or process derived from machine learning, statistics,
Page 3, Line 5or other data processing or artificial intelligence techniques and excludes passive computing infrastructure.
Page 3, Line 6(2) "Behaviors" means an individual's observable,
Page 3, Line 7measurable, or inferred actions, habits, preferences, interests,
Page 3, Line 8or vulnerabilities, including the individual's political, personal,
Page 3, Line 9or professional affiliations, web browsing history, IP addresses
Page 3, Line 10used, locations frequented, purchase history, financial
Page 3, Line 11circumstances, consumer behaviors, or inferences associated
Page 3, Line 12with a group, band, class, or tier of individuals in which the individual belongs.
Page 3, Line 13(3) (a) "Biometrics" means data or information generated
Page 3, Line 14by the technological processing, measurement, or analysis of a
Page 3, Line 15consumer's or worker's biological, physical, or behavioral
Page 3, Line 16characteristics, which data or information can be processed for the purpose of uniquely identifying an individual.
Page 3, Line 17(b) "Biometrics" includes:
(I) A fingerprint;
Page 3, Line 18(II) A voiceprint;
(III) A scan or record of an eye retina or iris;
Page 3, Line 19(IV) A facial map, facial geometry, or facial template;
(V) Genetic information; or
Page 3, Line 20(VI) Other unique biological, physical, or behavioral patterns or characteristics.
Page 4, Line 1(4) "Consumer" means an individual who obtains,
Page 4, Line 2maintains, uses, purchases, leases, or has goods, services, or real
Page 4, Line 3or personal property, or the personal representative of that individual.
Page 4, Line 4(5) "Genetic information" has the meaning set forth in section 10-3-1104.6 (2)(c).
Page 4, Line 5(6) "Individualized" means specific to or inferred about an
Page 4, Line 6individual or group, band, class, or tier of individuals with particular personal characteristics, behaviors, or biometrics.
Page 4, Line 7(7) "Insurer" has the meaning set forth in section 10-1-102.
Page 4, Line 8(8) "Personal characteristics" means individual qualities,
Page 4, Line 9features, attributes, or traits, including immutable
Page 4, Line 10characteristics such as race and eye color, mutable
Page 4, Line 11characteristics such as address, weight, citizenship, or
Page 4, Line 12parenthood status, and any other personal identifying
Page 4, Line 13information, that could be used to uncover an individual's
Page 4, Line 14identity, including a social security number, full name, or phone number.
Page 4, Line 15(9) "Price" means the amount charged to a consumer in
Page 4, Line 16relation to a transaction, including all related costs and fees
Page 4, Line 17and other material terms of the transaction that have a direct
Page 4, Line 18bearing on the amount paid by the consumer or the value of the good or service offered or provided to the consumer.
Page 4, Line 19(10) "Surveillance-based price discrimination" means using
Page 4, Line 20an automated decision system to inform individualized prices
Page 4, Line 21based on surveillance data regarding a consumer.
Page 5, Line 1(11) "Surveillance-based wage discrimination" means
Page 5, Line 2using an automated decision system to inform individualized wages based on surveillance data regarding a worker.
Page 5, Line 3(12) (a) "Surveillance data" means data obtained through
Page 5, Line 4observation, inference, or surveillance of a consumer or
Page 5, Line 5worker that is related to personal characteristics, behaviors,
Page 5, Line 6or biometrics of the individual or a group, band, class, or tier in which the individual belongs.
Page 5, Line 7(b) "Surveillance data" includes information gathered, purchased, or otherwise acquired.
Page 5, Line 8(13) "Wage" means the material terms offered to a worker
Page 5, Line 9in exchange for labor, including the amount to be paid for the
Page 5, Line 10labor, whether in hourly rate, piece rate, salary, bonuses,
Page 5, Line 11commissions and incentives, scheduling, task assignment, or
Page 5, Line 12other similar material terms that have a direct impact on earnings.
Page 5, Line 13(14) "Worker" means an individual performing work and
Page 5, Line 14includes an employee, as defined in section 8-4-101, and any other
Page 5, Line 15individual performing work on behalf of or for the benefit of an employer or other person.
Page 5, Line 166-1-1802. Prohibition against surveillance-based price or wage
Page 5, Line 17discrimination - publication of procedures - rules. (1) Price
Page 5, Line 18discrimination. (a) A person shall not engage in surveillance-based price discrimination.
Page 5, Line 19(b) A person has not engaged in surveillance-based price discrimination if the person can demonstrate that:
Page 5, Line 20(I) Differential prices are justified based on differences in cost in providing a good or service to different consumers;
Page 6, Line 1(II) Differential prices reflect discounts offered to all
Page 6, Line 2consumers on equal terms in a manner consistent with applicable anti-discrimination laws where:
Page 6, Line 3(A) The terms of the discount are available and accessible to consumers and the public;
Page 6, Line 4(B) Discounts reward membership in a particular group,
Page 6, Line 5including active members of the military, veterans, teachers, students, or seniors; and
Page 6, Line 6(C) Eligibility for the discount is based on information
Page 6, Line 7affirmatively and voluntarily provided by the consumer to the person offering the discount; or
Page 6, Line 8(III) The person operates as an insurer complying with
Page 6, Line 9section 10-3-1104.9 and associated rules and only inputs
Page 6, Line 10risk-relevant data into an automated decision system that
Page 6, Line 11informs decisions related to the amount a consumer must pay for an insurance policy or contract.
Page 6, Line 12(c) A person has not engaged in surveillance-based price
Page 6, Line 13discrimination if the person can demonstrate that a refusal to
Page 6, Line 14extend credit at specific terms or the refusal to enter into a
Page 6, Line 15transaction with a specific consumer is based on data provided
Page 6, Line 16in a consumer report covered by the federal "Fair Credit Reporting Act", 15 U.S.C. sec. 1681 et seq.
Page 6, Line 17(2) Wage discrimination. (a) A person shall not engage in surveillance-based wage discrimination.
Page 6, Line 18(b) A person has not engaged in surveillance-based wage
Page 6, Line 19discrimination if the person can demonstrate that:
Page 7, Line 1(I) The person offers individualized wages based solely on:
Page 7, Line 2(A) Data specific to the individual worker that is directly related to the tasks the worker was hired to perform; or
Page 7, Line 3(B) Differences in the cost to the worker of providing labor to the person; and
Page 7, Line 4(II) The person discloses in plain language before hiring a
Page 7, Line 5worker to perform work, and to all workers whose wages are
Page 7, Line 6set in whole or in part through an automated decision system,
Page 7, Line 7what data is considered and how the automated decision system considers the data.
Page 7, Line 8(c) Surveillance-based wage discrimination does not
Page 7, Line 9include a person's decision not to hire an individual who has not
Page 7, Line 10previously worked for or through the person or the person's affiliates or subsidiaries.
Page 7, Line 11(3) Publication of procedures.Pursuant to procedures
Page 7, Line 12specified by the attorney general by rule, a person that uses an
Page 7, Line 13automated decision system to assist or replace human
Page 7, Line 14decision-making related to wages or prices shall develop and publish reasonable procedures:
Page 7, Line 15(a) To ensure the accuracy of all data considered by the automated decision system;
Page 7, Line 16(b) To allow a consumer or worker to correct or
Page 7, Line 17challenge the accuracy of data considered by the automated decision system; and
Page 7, Line 18(c) For consumers or workers to request and receive
Page 7, Line 19information regarding what data is considered and how
Page 8, Line 1automated decision-making considers the data when setting particular prices or wages.
Page 8, Line 26-1-1803. Rule-making authority.The attorney general
Page 8, Line 3shall adopt rules as necessary for the purpose of implementing and enforcing this part 18.
Page 8, Line 46-1-1804. No displacement of other applicable laws.Nothing
Page 8, Line 5in this part 18, including the enforcement authority granted to
Page 8, Line 6the attorney general or a district attorney pursuant to this
Page 8, Line 7part 18, preempts or otherwise affects any other right, claim, remedy, presumption, or defense available at law or in equity.
Page 8, Line 86-1-1805. Enforcement by attorney general or district attorney
Page 8, Line 9- civil penalties - attorney fees - costs - private right of action. (1) A
Page 8, Line 10person that violates this part 18 engages in a deceptive trade practice.
Page 8, Line 11(2) (a) The attorney general or a district attorney may
Page 8, Line 12bring a civil action on behalf of the state against a person that violates this part 18 to seek the imposition of civil penalties.
Page 8, Line 13(b) (I) A person that violates this part 18 shall forfeit and
Page 8, Line 14pay to the general fund of this state a civil penalty of not more than ten thousand dollars for each violation.
Page 8, Line 15(II) A violation of this part 18 constitutes a separate
Page 8, Line 16violation with respect to each consumer, worker, or transaction involved.
Page 8, Line 17(c) The attorney general or a district attorney shall be
Page 8, Line 18awarded costs and attorney fees in all actions in which the
Page 8, Line 19attorney general or the district attorney successfully
Page 8, Line 20enforces this part 18.
Page 9, Line 1(3) In addition to other remedies provided at law or in
Page 9, Line 2equity, a person aggrieved by a violation of this part 18 may
Page 9, Line 3bring a civil action on behalf of themself or a group of similarly
Page 9, Line 4situated persons to restrain further violations and to recover damages, costs, and reasonable attorney fees, including:
Page 9, Line 5(a) The greater of:
Page 9, Line 6(I) The amount of actual damages sustained, including
Page 9, Line 7prejudgment interest either of eight percent per year or at the
Page 9, Line 8rate provided in section 13-21-101, whichever is greater, from the date on which the claim under this part 18 accrued; or
Page 9, Line 9(II) Three thousand dollars for each violation of this
Page 9, Line 10part 18, with each violation of this part 18 constituting a
Page 9, Line 11separate violation with respect to each consumer, worker, or transaction involved; or
Page 9, Line 12(b) Three times the amount of actual damages sustained,
Page 9, Line 13if it is established by clear and convincing evidence that the
Page 9, Line 14person violating this part 18 engaged in bad faith conduct or intentionally violated this part 18.
Page 9, Line 15SECTION 3. Act subject to petition - effective date -
Page 9, Line 16applicability. (1) This act takes effect at 12:01 a.m. on the day following
Page 9, Line 17the expiration of the ninety-day period after final adjournment of the
Page 9, Line 18general assembly; except that, if a referendum petition is filed pursuant
Page 9, Line 19to section 1 (3) of article V of the state constitution against this act or an
Page 9, Line 20item, section, or part of this act within such period, then the act, item,
Page 9, Line 21section, or part will not take effect unless approved by the people at the
Page 9, Line 22general election to be held in November 2026 and, in such case, will take
Page 9, Line 23effect on the date of the official declaration of the vote thereon by the governor.
Page 10, Line 1(2) This act applies to conduct occurring on or after the applicable effective date of this act.