Amd §§50 & 51, Civ Rts L; add Art 32-A §§676 - 676-q, Gen Bus L
Establishes the "It's Your Data Act" for the purposes of providing protections and transparency in the collection, use, retention, and sharing of personal information.
STATE OF NEW YORK
________________________________________________________________________
9073
IN SENATE
October 28, 2020
___________
Introduced by Sen. COMRIE -- read twice and ordered printed, and when
printed to be committed to the Committee on Rules
AN ACT to amend the civil rights law and the general business law, in
relation to establishing the "It's Your Data Act"
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as the "It's Your
2 Data Act".
3 § 2. Section 50 of the civil rights law is amended to read as follows:
4 § 50. Right of privacy. A person, firm or corporation that collects,
5 stores, and/or uses for the purpose of advertising [purposes, or for the
6 purposes of], trade, data-mining, or generating commercial or economic
7 value, the name, portrait [or], picture, video, voice, likeness, and all
8 other personal data, biometric data, and location data of any living
9 person without having first obtained the written consent of such person,
10 or if a minor of his or her parent or guardian, or, if such consent is
11 obtained, subsequently fails to exercise reasonable care consistent with
12 its obligations as bailee of that individual's name, portrait, picture,
13 video, voice, likeness, and all other personal data, biometric data, and
14 location data, is guilty of a misdemeanor.
15 § 3. Section 51 of the civil rights law, as amended by chapter 674 of
16 the laws of 1995, is amended to read as follows:
17 § 51. Action for injunction and for damages. Any person [whose name,
18 portrait, picture or voice is used within this state for advertising
19 purposes or for the purposes of trade without the written consent], firm
20 or corporation that collects, stores, and/or uses for the purpose of
21 advertising, trade, data-mining, or generating commercial or economic
22 value, name, portrait, picture, video, voice, likeness, and all other
23 personal data, biometric data, and location data of any living person
24 without having first obtained the written consent of such person, or if
25 a minor of his or her parent or guardian, or, when such consent is
26 obtained, subsequently fails to exercise reasonable care consistent with
27 its obligations as bailee of that individual's name, portrait, picture,
28 video, voice, likeness, and all other personal data, biometric data, and
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11575-01-9
S. 9073 2
1 location data first obtained as above provided may maintain an equitable
2 action in the supreme court of this state against the person, firm or
3 corporation so using his or her name, portrait, picture [or], video,
4 voice, likeness, and all other personal data, biometric data, and
5 location data to prevent and restrain the use thereof; and may also sue
6 and recover damages for any injuries sustained by reason of such use and
7 if the defendant shall have knowingly used such person's name, portrait,
8 picture [or], video, voice, likeness, and all other personal data, biom-
9 etric data, and location data in such manner as is forbidden or declared
10 to be unlawful by section fifty of this article, the jury, in its
11 discretion, may award exemplary damages. But nothing contained in this
12 article shall be so construed as to prevent any person, firm or corpo-
13 ration from selling or otherwise transferring any material containing
14 such name, portrait, picture [or], video, voice, likeness, and all other
15 personal data, biometric data, and location data in whatever medium to
16 any user of such name, portrait, picture [or], video, voice, likeness,
17 and all other personal data, biometric data, and location data or to any
18 third party [for sale] or transfer directly or indirectly to such a
19 user, for use, provided that the transferring party undertakes reason-
20 able steps to ensure that any such use is consistent with the selling or
21 transferring party's obligations as bailee of that individual's name,
22 portrait, picture, video, voice, likeness, and all other personal data,
23 biometric data, and location data and use in a manner lawful under this
24 article; nothing contained in this article shall be so construed as to
25 prevent any person, firm or corporation, practicing the profession of
26 photography, from exhibiting in or about his or its establishment speci-
27 mens of the work of such establishment, unless the same is continued by
28 such person, firm or corporation after written notice objecting thereto
29 has been given by the person portrayed; and nothing contained in this
30 article shall be so construed as to prevent any person, firm or corpo-
31 ration from using the name, portrait, picture [or], video, voice, like-
32 ness, and all other personal data, biometric data, and location data of
33 any manufacturer or dealer in connection with the goods, wares and
34 merchandise manufactured, produced or dealt in by him or her which he or
35 she has sold or disposed of with such name, portrait, picture [or],
36 video, voice, likeness, and all other personal data, biometric data, and
37 location data used in connection therewith; or from using the name,
38 portrait, picture [or], video, voice, likeness, and all other personal
39 data, biometric data, and location data of any author, composer or
40 artist in connection with his or her literary, musical or artistic
41 productions which he or she has sold or disposed of with such name,
42 portrait, picture [or], video, voice, likeness, and all other personal
43 data, biometric data, and location data used in connection therewith.
44 Nothing contained in this section shall be construed to prohibit the
45 copyright owner of a sound recording from disposing of, dealing in,
46 licensing or selling that sound recording to any party, if the right to
47 dispose of, deal in, license or sell such sound recording has been
48 conferred by contract or other written document by such living person or
49 the holder of such right. Nothing contained in the foregoing sentence
50 shall be deemed to abrogate or otherwise limit any rights or remedies
51 otherwise conferred by federal law or state law.
52 § 4. The general business law is amended by adding a new article 32-A
53 to read as follows:
54 ARTICLE 32-A
55 IT'S YOUR DATA ACT
56 Section 676. Definitions.
S. 9073 3
1 676-a. Transparency of the collection, use, retention, and shar-
2 ing of personal information.
3 676-b. Fair collection and use of personal information.
4 676-c. Deletion of personal information.
5 676-d. Access to retained personal information.
6 676-e. Access to disclosure of personal information.
7 676-f. Consent to additional collection or sharing of personal
8 information.
9 676-g. No discrimination by a business against a consumer for
10 exercise of rights.
11 676-h. Reasonable security.
12 676-i. Business implementation of duties.
13 676-j. Exceptions.
14 676-k. Consumer's private right of action.
15 676-l. Agency enforcement action.
16 676-m. Construction.
17 676-n. Attorney general regulations.
18 676-o. Intermediate transactions.
19 676-p. Non-waiver.
20 676-q. Severability.
21 § 676. Definitions. 1. For the purposes of this article:
22 (a) "Aggregate consumer information" means information that relates to
23 a group of consumers, from which individual consumer identities have
24 been removed, that is not linked or reasonably linkable to any consumer
25 or household, including via a device. Aggregate consumer information
26 does not mean one or more individual consumer records that have been
27 de-identified.
28 (b) "Biometric information" means an individual's physiological,
29 biological or behavioral characteristics or an electronic representation
30 of such, including an individual's deoxyribonucleic acid (DNA), that can
31 be used, singly or in combination with each other or with other identi-
32 fying data, to establish individual identity. Biometric information
33 includes, but is not limited to, imagery of the iris, retina, finger-
34 print, face, hand, palm, vein patterns, and voice recordings, from which
35 an identifier template, such as a faceprint, a minutiae template, or a
36 voiceprint, can be extracted, and keystroke patterns or rhythms, gait
37 patterns or rhythms, and sleep, health, or exercise data that contain
38 identifying information.
39 (c) "Business" means:
40 (i) A sole proprietorship, partnership, limited liability company,
41 corporation, association, or other legal entity that is organized or
42 operated for the profit or financial benefit of its shareholders or
43 other owners, that collects consumers' personal information, or on the
44 behalf of which such information is collected and that alone, or jointly
45 with others, determines the purposes and means of the processing of
46 consumers' personal information, that does business in the state of New
47 York, and that satisfies one or more of the following thresholds:
48 (1) has annual gross revenues in excess of fifty million dollars, as
49 adjusted pursuant to paragraph (f) of subdivision one of section six
50 hundred seventy-six-n of this article;
51 (2) alone or in combination, annually buys, receives for the business'
52 commercial purposes, sells, or discloses for commercial purposes, alone
53 or in combination, the personal information of fifty thousand or more
54 consumers, households, or devices; or
55 (3) derives fifty percent or more of its annual revenues from selling
56 consumers' personal information; and
S. 9073 4
1 (ii) Any entity that controls or is controlled by a business, as
2 defined in subparagraph (i) of this paragraph, and that shares common
3 branding with such business.
4 (d) "Control" or "controlled" means ownership of, or the power to
5 vote, more than fifty percent of the outstanding shares of any class of
6 voting security of a business; control in any manner over the election
7 of a majority of the directors, or of individuals exercising similar
8 functions; or the power to exercise a controlling influence over the
9 management of a business.
10 (e) "Common branding" means a shared name, servicemark, or trademark.
11 (f) "Operational purpose" means the use of personal information when
12 reasonably necessary and proportionate to achieve one of the following
13 operational purposes:
14 (i) auditing related to a current interaction with the consumer and
15 concurrent transactions, including, but not limited to, counting ad
16 impressions to unique visitors, verifying positioning and quality of ad
17 impressions, and auditing compliance with this paragraph and other stan-
18 dards;
19 (ii) detecting and responding to security incidents, protecting
20 against malicious, deceptive, fraudulent, or illegal activity, and pros-
21 ecuting those responsible for that activity;
22 (iii) debugging to identify and repair errors that impair existing
23 intended functionality;
24 (iv) short-term, transient use, provided the personal information is
25 not disclosed to another third party and is not used to build a profile
26 about a consumer or otherwise alter an individual consumer's experience
27 outside the current interaction, including, but not limited to, the
28 contextual customization of ads shown as part of the same interaction;
29 (v) performing or providing services on behalf of the business or
30 service provider, including maintaining or servicing accounts, billing
31 or collecting for requested products or services, providing customer
32 service, processing or fulfilling orders and transactions, verifying
33 customer information, processing payments, providing financing, provid-
34 ing advertising or marketing services, providing analytic services, or
35 providing similar services on behalf of the business or service provid-
36 er;
37 (vi) undertaking internal research for technological development and
38 demonstration;
39 (vii) undertaking activities to verify or maintain the quality or
40 safety of a service or device that is owned, manufactured, manufactured
41 for, or controlled by the business, or to improve, upgrade, or enhance
42 the service or device that is owned, manufactured, manufactured for, or
43 controlled by the business;
44 (viii) customization of content; or
45 (ix) customization of advertising or marketing.
46 (g) "Collects," "collected," or "collection" means buying, renting,
47 gathering, obtaining, receiving, or accessing any personal information
48 pertaining to a consumer by any means. This shall include, but shall not
49 be limited to, receiving information from the consumer, either actively
50 or passively, or by observing the consumer's behavior.
51 (h) "Commercial purposes" means to advance a person's commercial or
52 economic interests, such as by inducing another person to buy, rent,
53 lease, join, subscribe to, provide, or exchange products, goods, proper-
54 ty, information, or services, or enabling or effecting, directly or
55 indirectly, a commercial transaction. Commercial purposes shall not
56 include engaging in speech that state or federal courts have recognized
S. 9073 5
1 as noncommercial speech, including, but not limited to, political speech
2 and journalism.
3 (i) "Consumer" means a natural person who is a resident of the state
4 of New York.
5 (j) "De-identified" means information that cannot reasonably identify,
6 relate to, describe, be capable of being associated with, or be linked,
7 directly or indirectly, to a particular consumer, provided that a busi-
8 ness that uses de-identified information:
9 (i) takes reasonable measures to ensure that the data is de-identi-
10 fied;
11 (ii) publicly commits to maintain and use the data in a de-identified
12 fashion and not to attempt to re-identify the data; and
13 (iii) contractually prohibits downstream recipients from attempting to
14 re-identify the data.
15 (k) "Designated methods for submitting requests" means a mailing
16 address, email address, internet web page, internet web portal, toll-
17 free telephone number, or other applicable contact information, whereby
18 consumers may submit a request under this article, and any new, consum-
19 er-friendly means of contacting a business, as approved by the attorney
20 general pursuant to section six hundred seventy-six-n of this article.
21 (l) "Device" means any physical object that is capable of connecting
22 to the internet, directly or indirectly, or to another device.
23 (m) "Health insurance information" means a consumer's insurance policy
24 number or subscriber identification number, any unique identifier used
25 by a health insurer to identify the consumer, or any information in the
26 consumer's application and claims history, including any appeals
27 records, if the information is linked or reasonably linkable to a
28 consumer or household, including via a device, by a business or service
29 provider.
30 (n) "Infer" or "inference" means the derivation of information, data,
31 assumptions, or conclusions from facts, evidence, or another source of
32 information or data.
33 (o) "Person" means an individual, proprietorship, firm, partnership,
34 joint venture, syndicate, business trust, company, corporation, limited
35 liability company, association, committee, and any other organization or
36 group of persons acting in concert.
37 (p) "Personal information" means information that identifies or could
38 reasonably be linked, directly or indirectly, with a particular consum-
39 er, household, or consumer device. Personal information shall not
40 include publicly available information, information that is de-identi-
41 fied, or aggregate consumer information.
42 (q) "Publicly available" means information that is lawfully made
43 available from federal, state, or local government records. Publicly
44 available does not mean information collected by a business about a
45 consumer without the consumer's knowledge.
46 (r) "Service" or "services" means work, labor, and services, including
47 services furnished in connection with the production, sale or repair of
48 goods.
49 (s) "Service provider" means an individual sole proprietorship, part-
50 nership, limited liability company, corporation, association, or other
51 legal entity that is organized or operated for the profit or financial
52 benefit of its shareholders or other owners, that processes information
53 on behalf of a business and to which such business discloses a consum-
54 er's personal information for an operational purpose pursuant to a writ-
55 ten or electronic contract, provided that the contract prohibits the
56 entity receiving the information from retaining, using, or disclosing
S. 9073 6
1 the personal information for any purpose other than for the specific
2 purpose of performing the services specified in the contract for such
3 business, or as otherwise permitted by this article, including a prohi-
4 bition on retaining, using, or disclosing the personal information for a
5 commercial purpose other than providing the services specified in the
6 contract with such business.
7 (t) "Verifiable consumer request" means a request that is made by a
8 consumer, by a consumer on behalf of the consumer's minor child, or by a
9 natural person or a person registered with the secretary of state,
10 authorized by the consumer to act on the consumer's behalf, and that the
11 business can reasonably verify. A business shall not be obligated to
12 provide any personal information to a consumer if such business cannot
13 verify that the consumer making the request is the consumer about whom
14 such business has collected personal information or is a person author-
15 ized by the consumer to act on such consumer's behalf.
16 (u) "Third party" means a person or business that is not any of the
17 following:
18 (i) the business that collects personal information from consumers
19 under this article; or
20 (ii) a person to whom the business discloses a consumer's personal
21 information for an operational purpose pursuant to a written contract,
22 provided that the contract:
23 (1) prohibits the person receiving the personal information from:
24 (A) selling the personal information;
25 (B) retaining, using, or disclosing the personal information for any
26 purpose other than for the specific purpose of performing the services
27 specified in the contract, including retaining, using, or disclosing the
28 personal information for a commercial purpose other than providing the
29 services specified in the contract; and
30 (C) retaining, using, or disclosing the information outside of the
31 direct business relationship between the person and the business; and
32 (2) includes a certification made by the person receiving the personal
33 information that the person understands the restrictions in clause one
34 of this paragraph and will comply with such restrictions.
35 2. For references to a category or categories of personal information
36 required to be disclosed pursuant to this article:
37 (a) "Processing" means any operation or set of operations that are
38 performed on personal data or on sets of personal data, whether or not
39 by automated means.
40 (b) "Research" means scientific and systematic study and observation,
41 including basic research or applied research that is in the public
42 interest and that adheres to all other applicable ethics and privacy
43 laws or studies conducted in the public interest in the area of public
44 health. Research with personal information that may have been collected
45 from a consumer in the course of the consumer's interactions with a
46 business' service or device for other purposes shall be:
47 (i) compatible with an operational purpose for which the personal
48 information was collected;
49 (ii) subsequently de-identified, or in the aggregate, such that the
50 information cannot reasonably identify, relate to, describe, be capable
51 of being associated with, or be linked, directly or indirectly, to a
52 particular consumer;
53 (iii) made subject to technical safeguards to prevent re-identifica-
54 tion of the consumer to whom the information may pertain;
55 (iv) subject to business processes that specifically prohibit re-iden-
56 tification of the information;
S. 9073 7
1 (v) made subject to business processes to prevent inadvertent release
2 of de-identified information;
3 (vi) protected from any re-identification attempts;
4 (vii) used solely for research purposes that are compatible with the
5 context in which the personal information was collected;
6 (viii) not be used for any commercial purpose; and
7 (ix) subjected by the business conducting the research to additional
8 security controls that limit access to the research data to only those
9 individuals in a business as are necessary to carry out the research
10 purpose.
11 (c) (i) "Sell," "selling," "sale," or "sold," means selling, renting,
12 releasing, disclosing, disseminating, making available, transferring, or
13 otherwise communicating orally, in writing, or by electronic or other
14 means, a consumer's personal information by the business to another
15 business or a third party for monetary or other valuable consideration.
16 (ii) For purposes of this article, a business does not sell personal
17 information when:
18 (1) a consumer uses or directs the business to intentionally disclose
19 personal information or uses the business to intentionally interact with
20 a third party, provided such third party does not also sell the personal
21 information, unless such disclosure would be consistent with the
22 provisions of this article. An intentional interaction occurs when the
23 consumer intends to interact with the third party, via one or more
24 deliberate interactions. Hovering over, muting, pausing, or closing a
25 given piece of content shall not constitute a consumer's intent to
26 interact with a third party;
27 (2) the business uses or discloses an identifier for a consumer who
28 has opted out of the sale of the consumer's personal information for the
29 purposes of alerting third parties that the consumer has opted out of
30 the sale of the consumer's personal information;
31 (3) the business uses or discloses personal information of a consumer
32 with a service provider that is necessary to perform an operational
33 purpose and the business has provided notice that information being used
34 or disclosed in its terms and conditions consistent with section six
35 hundred seventy-six-i of this article; or
36 (4) the business transfers to a third party the personal information
37 of a consumer as an asset that is part of a merger, acquisition, bank-
38 ruptcy, or other transaction in which the third party assumes control of
39 all or part of the business, provided that information is used or
40 disclosed consistently with this article. A third party may not mate-
41 rially alter how it uses or discloses the personal information of a
42 consumer in a manner that is materially inconsistent with the promises
43 made at the time of collection, unless it first obtains opt-in consent,
44 as set forth in this article.
45 § 676-a. Transparency of the collection, use, retention, and sharing
46 of personal information. Any business that collects a consumer's
47 personal information shall disclose the following information in its
48 online privacy policy or policies, if the business has an online privacy
49 policy, and update such information at least once every twelve months:
50 1. a description of a consumer's rights pursuant to sections six
51 hundred seventy-six-b, six hundred seventy-six-d, six hundred seventy-
52 six-e, six hundred seventy-six-f and six hundred seventy-six-g of this
53 article and one or more designated methods for submitting requests
54 pursuant to sections six hundred seventy-six-c, six hundred
55 seventy-six-d, and six hundred seventy-six-e of this article;
S. 9073 8
1 2. a description of the personal information such business collects
2 about consumers;
3 3. the categories of sources from which the personal information is
4 collected;
5 4. a description of the methods such business uses to collect personal
6 information;
7 5. the specific purposes for collecting, disclosing, or retaining
8 personal information;
9 6. a description of the personal information it discloses about
10 consumers, or if the business does not disclose consumers' personal
11 information, the business shall disclose such fact;
12 7. the categories of third parties with whom such business shares
13 personal information with, or if the business does not disclose consum-
14 ers' personal information to third parties, the business shall disclose
15 such fact;
16 8. the categories of service providers with whom such business shares
17 personal information with, or if the business does not disclose consum-
18 ers' personal information to service providers, the business shall
19 disclose such fact;
20 9. a description of the length of time for which personal information
21 is retained; and
22 10. if personal data is de-identified such that it is no longer
23 considered personal information but subsequently retained, used, or
24 shared by the business, a description of the method or methods of de-i-
25 dentification.
26 § 676-b. Fair collection and use of personal information. 1. Subject
27 to section six hundred seventy-six-f of this article a business that
28 collects a consumer's personal information shall limit its collection
29 and sharing of personal information with third parties to what is
30 reasonably necessary to provide a service or conduct an activity that a
31 consumer has requested or is reasonably necessary for security or fraud
32 prevention, and shall require any such third party to exercise care over
33 the consumer's personal information consistent with the original busi-
34 ness's obligations as bailee of such information.
35 2. Subject to section six hundred seventy-six-f of this article, a
36 business that collects a consumer's personal information shall be obli-
37 gated to exercise reasonable care with respect to the collection, stor-
38 age, and use of that information, consistent with its obligations as a
39 bailee, and shall limit its use and retention of personal information to
40 what is reasonably necessary to provide a service or conduct an activity
41 that a consumer has requested or a related operational purpose, provided
42 however that data collected or retained solely for security or fraud
43 prevention may not be used for related operational purposes.
44 § 676-c. Deletion of personal information. 1. A consumer shall have
45 the right to request that a business delete any personal information
46 about such consumer which the business has collected from the consumer.
47 2. A business that collects personal information about consumers shall
48 disclose, pursuant to the notice requirements of section six hundred
49 seventy-six-i of this article, the consumer's rights to request the
50 deletion of the consumer's personal information.
51 3. A business that receives a verifiable consumer request from a
52 consumer to delete the consumer's personal information pursuant to
53 subdivision one of this section shall delete the consumer's personal
54 information from its records and direct any service providers to delete
55 the consumer's personal information from their records.
S. 9073 9
1 4. A business or a service provider shall not be required to comply
2 with a consumer's request to delete the consumer's personal information
3 if:
4 (a) such retention of personal information is reasonably anticipated
5 within the context of a business's ongoing business relationship with
6 the consumer; or
7 (b) it is necessary for the business or service provider to maintain
8 the consumer's personal information in order to:
9 (i) complete the transaction for which the personal information was
10 collected, provide a good or service requested by the consumer, or
11 otherwise perform a contract between the business and the consumer;
12 (ii) detect or respond to security incidents, protect against mali-
13 cious, deceptive, fraudulent, or illegal activity, or prosecute those
14 responsible for that activity;
15 (iii) debug to identify and repair errors that impair existing
16 intended functionality;
17 (iv) exercise free speech, ensure the right of another consumer to
18 exercise his or her right of free speech;
19 (v) engage in public or peer-reviewed scientific, historical, or
20 statistical research in the public interest that adheres to all other
21 applicable ethics and privacy laws, when the businesses' deletion of the
22 information is likely to render impossible or seriously impair the
23 achievement of such research, if the consumer has provided informed
24 consent; or
25 (vi) comply with a legal obligation.
26 § 676-d. Access to retained personal information. 1. If a business
27 collects personal information about a consumer, the consumer shall have
28 the right to ask the business for the following information, and the
29 business shall have the duty to provide it, promptly and free of charge,
30 upon receipt of a verifiable request:
31 (a) the specific pieces of personal information that the business
32 retains about that consumer;
33 (b) the specific sources from which the business collected the
34 personal information; and
35 (c) its purpose for collecting the personal information.
36 2. When a business receives a verifiable consumer request from a
37 consumer for the specific pieces of their personal information, such
38 business shall disclose such information in an electronic, portable,
39 machine-readable, and readily-useable format or formats that allow the
40 consumer to understand such information and to transmit such information
41 to another entity without hindrance.
42 § 676-e. Access to disclosure of personal information. If a business
43 discloses personal information about a consumer to a third party, the
44 consumer shall have the right to request the following information from
45 the business, and such business shall have the duty to provide it,
46 promptly and free of charge, upon receipt of a verifiable request:
47 1. the categories of personal information that the business disclosed
48 about the consumer, and the categories of third parties to whom the
49 personal information was disclosed, by category of personal information
50 for each category of third party; and
51 2. the specific third parties to whom the personal information was
52 disclosed.
53 § 676-f. Consent to additional collection or sharing of personal
54 information. 1. Other than as described in section six hundred seventy-
55 six-b of this article, a business shall not collect or share a consum-
56 er's personal information unless the consumer has affirmatively author-
S. 9073 10
1 ized the collection or disclosure. This right to collect or share a
2 consumer's personal information may be referred to as the right to
3 "opt-in consent".
4 2. Any personal information of a consumer collected or shared by a
5 business upon the affirmative authorization of the consumer shall remain
6 the property of such consumer, and the business shall be required to
7 exercise reasonable care in the collection and sharing of such data,
8 consistent with its obligations towards the consumer as bailee of his or
9 her personal information.
10 3. A business shall request a user's opt-in consent separately from
11 any other permission or consent, with the option to decline consent at
12 least as prominent as the option to provide consent.
13 4. If a consumer declines to provide their opt-in consent to the
14 disclosure of their personal information, a business shall refrain for
15 at least twelve months before again requesting that the consumer provide
16 their opt-in consent to the disclosure of their personal information.
17 5. A business may make available a setting or other user control that
18 the consumer may affirmatively access in order to consent to additional
19 data collection or sharing.
20 6. A business that obtains a consumer's opt-in consent to collect or
21 disclose their personal information pursuant to this section shall
22 provide consumers the ability to withdraw such consent through a readily
23 usable and automated means at any time.
24 § 676-g. No discrimination by a business against a consumer for exer-
25 cise of rights. A business shall not discriminate against a consumer
26 because the consumer exercised any of the consumer's rights under this
27 article or does not provide consent to additional data collection or
28 sharing under section six hundred seventy-six-f of this article includ-
29 ing, but not limited to, by:
30 1. denying goods or services to the consumer;
31 2. charging different prices or rates for goods or services, including
32 through the use of discounts or other benefits or imposing penalties;
33 3. providing a different level or quality of goods or services to the
34 consumer; or
35 4. suggesting that the consumer will receive a different price or rate
36 for goods or services or a different level or quality of goods or
37 services.
38 § 676-h. Reasonable security. 1. A business or service provider shall
39 implement and maintain reasonable security procedures and practices,
40 including administrative, physical, and technical safeguards, appropri-
41 ate to the nature of the information and the purposes for which the
42 personal information will be used, to protect consumers' personal infor-
43 mation from unauthorized use, disclosure, access, destruction, or
44 modification.
45 2. A business or service provider may employ any lawful security meas-
46 ures that allow it to comply with the requirements set forth in this
47 section.
48 § 676-i. Business implementation of duties. 1. A business shall:
49 (a) make available to consumers two or more designated methods for
50 submitting requests pursuant to sections six hundred seventy-six-c, six
51 hundred seventy-six-d, and six hundred seventy-six-e of this article,
52 including, at a minimum, a telephone number, and, if the business main-
53 tains an internet web site, a web site address;
54 (b) disclose and deliver the required information to a consumer free
55 of charge within forty-five days of receiving a verifiable consumer
56 request. A business shall take steps to determine whether the request is
S. 9073 11
1 a verifiable consumer request from the identified consumer. The time
2 period may be extended once by forty-five days when reasonably neces-
3 sary, provided the consumer is provided notice of the extension within
4 the first forty-five day period. The disclosure shall cover the twelve
5 month period preceding the request. It shall be delivered through the
6 consumer's account with the business, if the consumer maintains an
7 account with the business, or by mail or electronically at the consum-
8 er's option, if the consumer does not maintain an account with the busi-
9 ness. The business shall not require the consumer to create an account
10 with the business in order to make a verifiable request;
11 (c) ensure that all individuals responsible for handling consumer
12 inquiries about the business's privacy practices or the business's
13 compliance with this article are informed of all requirements in this
14 article, and how to direct consumers to exercise their rights in this
15 article; and
16 (d) limit the use of any personal information collected from the
17 consumer in connection with a business's verification of the consumer's
18 request solely for the purposes of verification.
19 2. A business shall not be obligated to provide the information
20 required by sections six hundred seventy-six-d and six hundred seventy-
21 six-e of this article to the same consumer more than twice in a twelve
22 month period.
23 § 676-j. Exceptions. 1. The obligations imposed on businesses by this
24 article shall not restrict a business's or service provider's ability
25 to:
26 (a) comply with federal, state, or local laws;
27 (b) comply with a civil, criminal, or regulatory inquiry, investi-
28 gation, subpoena, or summons by federal, state, or local authorities;
29 (c) cooperate with law enforcement agencies concerning conduct or
30 activity that the business, service provider, or third party reasonably
31 and in good faith believes may violate federal, state, or local law;
32 (d) exercise or defend legal claims;
33 (e) collect, use, retain, sell, or disclose consumer information that
34 is de-identified or in the aggregate; or
35 (f) collect or sell a consumer's personal information if every aspect
36 of that commercial conduct takes place wholly outside of the state. For
37 purposes of this section, commercial conduct takes place wholly outside
38 of the state if the business collected information while the consumer
39 was outside of the state, no part of the sale of the consumer's personal
40 information occurred in the state, and no personal information collected
41 while the consumer was in the state is sold. This paragraph shall not
42 permit a business from storing, including on a device, personal informa-
43 tion about a consumer when such consumer is in the state and then
44 collecting such personal information when such consumer and stored
45 personal information is outside of the state.
46 2. Nothing in this article shall require a business to violate an
47 evidentiary privilege under state or federal law or prevent a business
48 from providing the personal information of a consumer who is covered by
49 an evidentiary privilege under state or federal law as part of a privi-
50 leged communication.
51 3. This article shall not apply to any of the following:
52 (a) medical information governed by part 2.6 of the Confidentiality of
53 Medical Information Act or protected health information that is
54 collected by a covered entity or business associate governed by the
55 privacy, security, and breach notification rules issued or established
56 by the United States department of health and human services, 45 C.F.R.
S. 9073 12
1 parts 160 and 164, the Health Insurance Portability and Accountability
2 Act of 1996, or the Health Information Technology for Economic and Clin-
3 ical Health Act;
4 (b) a provider of health care governed by part 2.6 of the Confiden-
5 tiality of Medical Information Act or a covered entity governed by the
6 privacy, security, and breach notification rules issued or established
7 by the United States department of health and human services, 45 C.F.R.
8 parts 160 and 164, or the Health Insurance Portability and Accountabil-
9 ity Act of 1996, to the extent the provider or covered entity maintains
10 patient information in the same manner as medical information or
11 protected health information as described in paragraph (a) of this
12 subdivision;
13 (c) information collected as part of a clinical trial subject to the
14 Federal Policy for the Protection of Human Subjects, also known as the
15 "Common Rule", pursuant to good clinical practice guidelines issued by
16 the International Council for Harmonization or pursuant to human subject
17 protection requirements of the United States Food and Drug Adminis-
18 tration;
19 (d) the sale of personal information to or from a consumer reporting
20 agency if such information is to be reported in, or used to generate, a
21 consumer report as defined in section three hundred eighty-a of this
22 chapter and use of that information is limited by the federal Fair Cred-
23 it Reporting Act, 15 USC 1681;
24 (e) personal information collected, processed, sold, or disclosed
25 pursuant to the federal Gramm-Leach-Bliley Act or any financial privacy
26 laws or regulations of the state of New York, and implementing regu-
27 lations, if it is in conflict with such law; or
28 (f) personal information collected, processed, sold, or disclosed
29 pursuant to the Driver's Privacy Protection Act of 1994, if it is in
30 conflict with such act.
31 4. Notwithstanding a business' obligations to respond to and honor
32 consumer rights requests pursuant to sections six hundred seventy-six-c,
33 six hundred seventy-six-d, and six hundred seventy-six-e of this arti-
34 cle:
35 (a) the time period for a business to respond to any verified consumer
36 request may be extended by up to ninety additional days where necessary,
37 taking into account the complexity and number of the requests. A busi-
38 ness shall inform the consumer of any such extension within forty-five
39 days of receipt of the request, together with the reasons for the delay;
40 (b) if a business does not take action on the request of the consumer,
41 such business shall inform the consumer, without delay and at the latest
42 within the time period permitted of response by this section, of the
43 reasons for not taking action and any rights the consumer may have to
44 appeal the decision to the business; and
45 (c) if requests from a consumer are manifestly unfounded or excessive,
46 in particular because of their repetitive character, a business may
47 either charge a reasonable fee, taking into account the administrative
48 costs of providing the information or communication or taking the action
49 requested, or refuse to act on the request and notify the consumer of
50 the reason for refusing the request. Such business shall bear the burden
51 of demonstrating that any verified consumer request is manifestly
52 unfounded or excessive.
53 5. A business that discloses personal information to a service provid-
54 er shall not be liable under this article if the service provider
55 receiving the personal information uses it in violation of the
56 restrictions set forth in this article, provided that, at the time of
S. 9073 13
1 disclosing the personal information, such business does not have actual
2 knowledge, or reason to believe, that the service provider intends to
3 commit such a violation. A service provider shall not be liable under
4 this article for the obligations of a business for which it provides
5 services as set forth in this article.
6 6. This article shall not be construed to: (a) require a business to
7 collect or retain personal information about a consumer longer than it
8 would be retained such information in the ordinary course of business;
9 or
10 (b) require a business to re-identify or otherwise link information
11 that is not maintained in a manner that would be considered personal
12 information.
13 7. The rights afforded to consumers and the obligations imposed on a
14 business pursuant to this article shall not adversely affect the rights
15 and freedoms of other consumers.
16 8. The rights afforded to consumers and the obligations imposed on any
17 business pursuant to this article shall not apply to the extent that
18 they infringe on the noncommercial activities of a publisher, editor,
19 reporter, or other person connected with or employed upon a newspaper,
20 magazine, or other periodical publication, or by a press association or
21 wire service.
22 § 676-k. Consumer's private right of action. 1. A consumer who has
23 suffered a violation of this article may bring a lawsuit against the
24 business that committed such violation. A violation of this article
25 shall be deemed to constitute an injury in fact to the consumer who has
26 suffered such violation, and the consumer need not suffer monetary or
27 property loss as a result of such violation in order to bring an action
28 for a violation of this article.
29 2. A consumer who prevails in such an action shall obtain the follow-
30 ing remedies:
31 (a) damages in an amount not to exceed seven hundred fifty dollars per
32 consumer per violation or actual damages, whichever is greater;
33 (b) injunctive or declaratory relief, as the court deems proper;
34 (c) reasonable attorney fees and costs; and
35 (d) any other relief the court deems proper.
36 3. In assessing the amount of statutory damages, the court shall
37 consider any one or more of the relevant circumstances presented by any
38 of the parties to the case, including, but not limited to, the nature
39 and seriousness of the misconduct, the number of violations, the
40 persistence of the misconduct, the length of time over which the miscon-
41 duct occurred, the willfulness of the defendant's misconduct, and the
42 defendant's assets, liabilities, and net worth.
43 4. A consumer bringing an action pursuant to this section shall notify
44 the attorney general within thirty days of the filing of such action.
45 § 676-l. Agency enforcement action. 1. The attorney general, county
46 district attorney, or city corporation counsel having proper jurisdic-
47 tion may bring a civil action in the name of the people of the state of
48 New York against any person, business, or service provider who violates
49 any provision of this article.
50 2. Any person, business, or service provider who violates the
51 provisions of this article may be liable for a civil penalty of up to
52 seven thousand five hundred dollars for each intentional violation and
53 of up to two thousand five hundred dollars for each unintentional
54 violation.
55 § 676-m. Construction. This article is intended to further the consti-
56 tutional right of privacy and to supplement existing laws relating to
S. 9073 14
1 consumers' personal information. The provisions of this article are not
2 limited to information collected electronically or over the internet,
3 but shall apply to the collection and sale of all personal information
4 collected by a business from consumers. Wherever possible, law relating
5 to consumers' personal information should be construed to harmonize with
6 the provisions of this article, but in the event of a conflict between
7 other laws and the provisions of this article, the provisions of the law
8 that afford the greatest protection for the right of privacy for consum-
9 ers shall control.
10 § 676-n. Attorney general regulations. 1. Within one year of the
11 effective date of this article, the attorney general shall adopt regu-
12 lations to further the purposes of this article, including, but not
13 limited to:
14 (a) detailing as needed the types of information that are personal
15 information in technology, data collection practices, obstacles to
16 implementation, and privacy concerns;
17 (b) establishing any exceptions necessary to comply with state or
18 federal law, including, but not limited to, those relating to trade
19 secrets and intellectual property rights;
20 (c) facilitating and governing the submission of a request by a
21 consumer to opt out of the sale of personal information pursuant to
22 section six hundred seventy-six-f of this article;
23 (d) governing business compliance with a consumer's opt-out request;
24 (e) developing a recognizable and uniform opt-out logo or button by
25 all businesses to promote consumer awareness of the opportunity to opt-
26 out of the sale of personal information;
27 (f) adjusting the monetary threshold in clause one of subparagraph (i)
28 of paragraph (c) of subdivision one of section six hundred seventy-six
29 of this article in January of every odd-numbered year to reflect any
30 increase in the consumer price index;
31 (g) establishing rules, procedures, and any exceptions necessary to
32 ensure that the notices and information that businesses are required to
33 provide pursuant to this article are provided in a manner that may be
34 easily understood by the average consumer, are accessible to consumers
35 with disabilities, and are available in the language primarily used to
36 interact with the consumer, including establishing rules and guidelines
37 regarding financial incentive offerings; and
38 (h) establishing rules and procedures to further the purposes of
39 sections six hundred seventy-six-d and six hundred seventy-six-e of this
40 article and to facilitate a consumer's or the consumer's authorized
41 agent's ability to obtain information pursuant to section six hundred
42 seventy-six-i of this article, with the goal of minimizing the adminis-
43 trative burden on consumers, taking into account available technology,
44 security concerns, and the burden on the business, to govern a business'
45 determination that a request for information received by a consumer is a
46 verifiable consumer request, including treating a request submitted
47 through a password-protected account maintained by the consumer with the
48 business while the consumer is logged into the account as a verifiable
49 consumer request and providing a mechanism for a consumer who does not
50 maintain an account with the business to request information through the
51 business' authentication of the consumer's identity.
52 2. The attorney general may update the foregoing regulations, and
53 adopt additional regulations, as necessary to further the purposes of
54 this article.
55 3. Before adopting any regulations, the attorney general shall solicit
56 broad public participation concerning those regulations.
S. 9073 15
1 § 676-o. Intermediate transactions. If a series of steps or trans-
2 actions were component parts of a single transaction intended from the
3 beginning to be taken with the intention of avoiding the reach of this
4 article, a court shall disregard the intermediate steps or transactions
5 for purposes of effectuating the purposes of this article.
6 § 676-p. Non-waiver. Any provision of a contract or agreement of any
7 kind that purports to waive or limit in any way a consumer's rights
8 under this article, including, but not limited to, any right to a remedy
9 or means of enforcement, shall be deemed contrary to public policy and
10 shall be void and unenforceable. This section shall not prevent a
11 consumer from declining to request information from a business, declin-
12 ing to opt out of a business' sale of the consumer's personal informa-
13 tion, or authorizing a business to sell the consumer's personal informa-
14 tion after previously opting out.
15 § 676-q. Severability. If any provision of this article or the appli-
16 cation thereof to any person, business, service provider, or circum-
17 stances is held invalid, such invalidity shall not affect other
18 provisions or applications of this article which can be given effect
19 without the invalid provision or application, and to this end the
20 provisions of this article are declared to be severable.
21 § 5. This act shall take effect one year after it shall have become a
22 law.
