A01324 Summary:

BILL NOA01324
 
SAME ASNo same as
 
SPONSOROrtiz (MS)
 
COSPNSRDinowitz, Hikind, Castro
 
MLTSPNSRGottfried, Mayersohn, McEneny
 
Add S397-b, Gen Bus L
 
Regulates the collection, disclosure and dissemination of personal information acquired by a provider of on-line computer services in order to ensure the privacy of subscriber information and wage patterns.
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A01324 Actions:

BILL NOA01324
 
01/05/2011referred to consumer affairs and protection
01/04/2012referred to consumer affairs and protection
05/31/2012held for consideration in consumer affairs and protection
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A01324 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A1324
 
SPONSOR: Ortiz (MS)
  TITLE OF BILL: An act to amend the general business law, in relation to the collection and disclosure of certain information collected by on-line computer services   PURPOSE OR GENERAL IDEA OF BILL: This bill will make it unlawful for an online computer service to share personal information from any person, firm, partnership, or corporation.   SUMMARY OF SPECIFIC PROVISIONS: This bill will amend the general business law by adding a new section 397-a. Any person, firm, partnership, or corporation, which provides an online computer service, may not disclose personal information concern- ing a subscriber. However, information may be shared for reasons such as consent of the subscriber. In addition, information may be shared if the subscriber requests it, or if it is necessary to render or conduct busi- ness or service to the subscriber. An online computer service will not be deemed in violation of the law, if the violation was unintentional.   JUSTIFICATION: Unfortunately, many people suffer financially and emotionally because of reasons that are not of their own doing. This suffering is often caused by a consumer's personal information being shared unlawfully and without prior knowledge. In a time where the Internet is a major place for busi- ness, many errors and problems can occur. To ensure that these problems do not lead to adverse effects on the consumer, corrective measures must be taken. Those online computer services that disclose their subscribers' personal information often open doors to identity theft and crime, crimes which can ruin the credit and lives of victims. Because of the dire effects of this, online computer services must not be allowed to share their consumers' information with others.   PRIOR LEGISLATIVE HISTORY: 1999/00- A.1909 - Referred to Consumer Affairs & Protection 2001/02- A.6191 - Referred to Consumer Affairs & Protection 2003/04- A.3787 - Held in Consumer Affairs 2005/06- A.4304 - Referred to Consumer Affairs & Protection 2007/08- A.3753 - Referred to Consumer Affairs & Protection 2009/10- A.5650 - Held in Consumer Affairs & Protection   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None   EFFECTIVE DATE: This act shall take effect on the first of November next succeeding the date on which it shall become a law.
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A01324 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          1324
 
                               2011-2012 Regular Sessions
 
                   IN ASSEMBLY
 
                                       (Prefiled)
 
                                     January 5, 2011
                                       ___________
 
        Introduced  by  M.  of A. ORTIZ, DINOWITZ, HIKIND, CASTRO -- Multi-Spon-
          sored by -- M. of A.  GOTTFRIED, MAYERSOHN, McENENY -- read  once  and
          referred to the Committee on Consumer Affairs and Protection
 
        AN  ACT to amend the general business law, in relation to the collection

          and disclosure of certain information collected  by  on-line  computer
          services
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. The general business law is amended by adding a new section
     2  397-b to read as follows:
     3    § 397-b. On-line computer services.  1. As used in this  section,  the
     4  following terms shall have the following meanings:
     5    (a)  "On-line computer service" means the offering of a capability for
     6  generating, acquiring, storing,  transforming,  processing,  retrieving,
     7  utilizing  or making available information using computer-based telecom-
     8  munications. On-line computer service shall also include a service  that

     9  permits  a subscriber to retrieve stored information from or file infor-
    10  mation  for  storage  in  information  storage  facilities,   electronic
    11  publishing or an electronic messaging service.
    12    (b) "Personal information" means information which identifies either a
    13  specific  file  or  service utilized or from an on-line computer service
    14  and the subscriber and/or such subscriber's on-line computer address who
    15  obtained such file or service. Personal information  shall  not  include
    16  any  record  of aggregate data which does not identify a file or service
    17  utilized and a subscriber  and/or  such  subscriber's  on-line  computer
    18  address.
    19    (c) "Disclose" or "disclosure" means the sale, rental or other dissem-

    20  ination of personal information.
    21    (d) "File" means a collection of related records treated as a unit.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03625-01-1

        A. 1324                             2
 
     1    (e)  "Records"  means  a  group  of  distinct data items in a computer
     2  system, manipulated as a unit.
     3    2.  Any  person,  firm,  partnership  or corporation which provides an
     4  on-line computer service may not disclose personal information  concern-
     5  ing  a  subscriber to any other person, firm, partnership or corporation
     6  unless such subscriber:

     7    (a) has received the notice provided for in subdivision three of  this
     8  section; and
     9    (b) has consented to the disclosure.
    10    3.  At  the  time  of entering into an agreement to provide an on-line
    11  computer service to a subscriber and at such  time  when  a  service  is
    12  obtained each and every on-line computer service shall provide notice in
    13  the  form  of  a  separate  statement to the subscriber that clearly and
    14  conspicuously disclose the following to such subscriber:
    15    (a) the nature of personal information collected or  to  be  collected
    16  with respect to the subscriber and the nature and use of the information
    17  if any;
    18    (b)  the  nature, frequency and purpose of any disclosure which may be

    19  made of such information, including an identification of  the  types  of
    20  persons or person to whom such disclosure may be made;
    21    (c) the period of time the information will be maintained; and
    22    (d)  a  description of the procedures by which the subscriber may gain
    23  access to the information.
    24    Such notices may be provided electronically  by  using  computer-based
    25  telecommunications.
    26    4.  Upon request a subscriber shall be provided access to all personal
    27  information regarding such subscriber that is collected  and  maintained
    28  by an on-line computer service. Such information shall be made available
    29  at  reasonable  times  and  at  a convenient location to the subscriber.

    30  Computer-based telecommunications may be the means by which such  infor-
    31  mation  is  provided to the subscriber. The subscriber shall be provided
    32  reasonable opportunity by the on-line computer service to correct errors
    33  in personal information and the on-line computer service shall  promptly
    34  correct  such  information. If the on-line computer service is unable to
    35  resolve any remaining differences, a subscriber shall also  be  provided
    36  with  the  opportunity to file a statement of explanation concerning the
    37  nature of any dispute.
    38    5. Notwithstanding subdivision two of this section, an on-line comput-
    39  er service may disclose personal information if the disclosure is:
    40    (a) necessary to render or conduct business or provide service to  the

    41  subscriber;
    42    (b) made pursuant to a court order;
    43    (c)  for  the  purpose  of extending credit to the subscriber or for a
    44  check or credit card transaction when it is incidental to  the  sale  or
    45  other  transfer  of  the  accounts  receivable  of  the on-line computer
    46  service; and
    47    (d) for the purpose of validating a check written by the subscriber.
    48    6. No on-line computer service shall be deemed to  have  violated  the
    49  provisions  of this section, if such on-line computer service shows by a
    50  preponderance of the evidence that the violation was not intentional and
    51  that it resulted from a bona fide error made notwithstanding the mainte-
    52  nance of procedures reasonably adopted to avoid any such error.

    53    7. Any subscriber who has been injured by reason of any  violation  of
    54  this  section  may bring an action in his or her own name to enjoin such
    55  unlawful act or practice, an action to recover his actual damages or one
    56  hundred dollars, whichever is greater, or both such actions.  The  court

        A. 1324                             3
 
     1  may,  in  its discretion, increase the award of damages to an amount not
     2  to exceed three times the actual damages up to one thousand dollars,  if
     3  the  court  finds  the  defendant  willfully  or knowingly violated this
     4  section.  The court may award reasonable attorney's fees to a prevailing
     5  plaintiff.
     6    8. Whenever there shall be a violation of this section, an application

     7  may be made by the attorney general in the name of  the  people  of  the
     8  state  of New York to a court or justice having jurisdiction to issue an
     9  injunction, and upon notice to the defendant of not less than five days,
    10  to enjoin and restrain the continuance of such  violations;  and  if  it
    11  shall  appear  to  the  satisfaction  of  the  court or justice that the
    12  defendant has, in fact, violated this  section,  an  injunction  may  be
    13  issued  by  such court or justice, enjoining and restraining any further
    14  violation, without requiring proof that any person has,  in  fact,  been
    15  injured  or  damaged  thereby. In any such proceeding the court may make
    16  allowances to the attorney general  as  provided  in  paragraph  six  of

    17  subdivision (a) of section eighty-three hundred three of the civil prac-
    18  tice  law  and  rules,  and direct restitution. Whenever the court shall
    19  determine that a violation of this section has occurred, the  court  may
    20  impose  a  civil  penalty of not more than one thousand dollars for each
    21  violation. In connection with any such proposed application, the  attor-
    22  ney  general is authorized to take proof and make a determination of the
    23  relevant facts and to issue subpoenas in accordance with the civil prac-
    24  tice law and rules.
    25    § 2. This act shall take effect on the first of November next succeed-
    26  ing the date on which it shall have become a law.
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