A07736 Summary:
| BILL NO | A07736 |
| SAME AS | No Same As |
| SPONSOR | Kim |
| COSPNSR | Dickens, Cook, Hyndman, Colton, Sayegh, Gunther, Mosley, Montesano, Englebright, Niou, Jaffee, Blake, Rivera |
| MLTSPNSR | De La Rosa |
| 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. | |
A07736 Actions:
| BILL NO | A07736 | |||||||||||||||||||||||||||||||||||||||||||||||||
| 05/17/2019 | referred to consumer affairs and protection | |||||||||||||||||||||||||||||||||||||||||||||||||
A07736 Committee Votes:
Go to topA07736 Floor Votes:
There are no votes for this bill in this legislative session.Go to top
A07736 Memo:
Go to topNEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
TITLE OF BILL: An act to amend the civil rights law and the general business law, in relation to establishing the "It's Your Data Act" PURPOSE OR GENERAL IDEA OF BILL: This bill seeks to establish a duty of care requirement for data extrac- tors & miners, and mandates these entities adhere strictly to this legal obligation when it comes to the sovereignty and privacy of an individ- ual's private information. SUMMARY OF PROVISIONS: Section one sets the title as the "Its Your Data Act" Section two amends section 50 of the civil rights law so any person, firm or corporation that collects, stores, or uses for the purpose of advertising, trade, data-mining, or generating commercial or economic value, the name, portrait, picture, video, voice, likeness, and all other personal data, biometric data, and location data of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, or, if such consent is obtained, subsequently fails to exercise reasonable care consistent with its obligations as bailee of that individual's name, portrait, picture, video, voice, likeness, and all other personal data, biometric data, and location data, is guilty of a misdemeanor. Section three amends section 51 of the civil rights law to establish the means of redress for individuals whose rights under this act have been violated. Section four amends the general business law to establish the defi- nitions for terms or phrases used in this act, and introduces the following clauses in relation to this act: "Transparency of the collection , use, retention, and sharing of personal information", "Fair Collection and use of personal information", "Deletion of personal information", " Access to retained personal information", "Access to disclosure of personal information", "Consent to additional collection or sharing of personal information", "No discrimination by a business against a consumer for exercise of rights", "Reasonable security", " Business implementation of duties", "Exceptions", "Consumer's private right of actions", " Agency enforcement action", "Construction", "Attor- ney general regulations", "Intermediate transactions", "Non-waiver", and "Severability". Section five sets forward an effective date 1 year after enactment. JUSTIFICATION: In the 21st century, Americans' fundamental right to privacy has steadi- ly eroded in the shadow of surveillance capitalism. The passage of the Patriot Act and the rise of big tech companies have enabled the public and private sector to siphon more and more of our personal data, often without our consent or knowledge. The institutional legitimization of mass surveillance and data extraction has begun to warp our society's very perspective on individual autonomy and privacy. The commercial sector of the Internet is now being used in ways that repeatedly wear away an individual's ability to exercise control over his or her life. Every video we watch, every ad we click on, and every word we search is now being logged, analyzed, and synthesized by corpo- rations in order to predict and influence our behaviors as consumers. The internet is no longer a peer-to-peer experiment; it has morphed into a data extraction infrastructure that relies on machine-learning algo- rithms which can ultimately shape our views or control our future actions. We have to recognize that life in a society of pervasive monitoring is not truly life under the rule of law. Businesses that make hundreds of billions of dollars monitoring every aspect of our daily lives - the essence of Surveillance Capitalism - represent new, unregulated, and dangerous territory. The It's Your Data Act (IYD) is designed to regain individual sovereignty and end abusive and exploitative data-mining practices, so that an individual's inalienable rights includes their right to retain control of their own data under all circumstances. The IYD Act institutes a duty of care requirement for data extractors & miners, and mandates that they strictly adhere to this legal obligation when it comes to the sovereignty and privacy of a person's private information. Our data is more than alienable property that can be sold to the highest bidder. PRIOR LEGISLATIVE HISTORY: This is a new bill. FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: To be determined. EFFECTIVE DATE: This act shall take effect one year after it shall have become law.
A07736 Text:
Go to topSTATE OF NEW YORK ________________________________________________________________________ 7736 2019-2020 Regular Sessions IN ASSEMBLY May 17, 2019 ___________ Introduced by M. of A. KIM -- read once and referred to the Committee on Consumer Affairs and Protection 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 the6purposes 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,18portrait, picture or voice is used within this state for advertising19purposes 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 EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD11575-01-9A. 7736 2 1 obtained, subsequently fails to exercise reasonable care consistent with 2 its obligations as bailee of that individual's name, portrait, picture, 3 video, voice, likeness, and all other personal data, biometric data, and 4 location data first obtained as above provided may maintain an equitable 5 action in the supreme court of this state against the person, firm or 6 corporation so using his or her name, portrait, picture [or], video, 7 voice, likeness, and all other personal data, biometric data, and 8 location data to prevent and restrain the use thereof; and may also sue 9 and recover damages for any injuries sustained by reason of such use and 10 if the defendant shall have knowingly used such person's name, portrait, 11 picture [or], video, voice, likeness, and all other personal data, biom- 12 etric data, and location data in such manner as is forbidden or declared 13 to be unlawful by section fifty of this article, the jury, in its 14 discretion, may award exemplary damages. But nothing contained in this 15 article shall be so construed as to prevent any person, firm or corpo- 16 ration from selling or otherwise transferring any material containing 17 such name, portrait, picture [or], video, voice, likeness, and all other 18 personal data, biometric data, and location data in whatever medium to 19 any user of such name, portrait, picture [or], video, voice, likeness, 20 and all other personal data, biometric data, and location data or to any 21 third party [for sale] or transfer directly or indirectly to such a 22 user, for use, provided that the transferring party undertakes reason- 23 able steps to ensure that any such use is consistent with the selling or 24 transferring party's obligations as bailee of that individual's name, 25 portrait, picture, video, voice, likeness, and all other personal data, 26 biometric data, and location data and use in a manner lawful under this 27 article; nothing contained in this article shall be so construed as to 28 prevent any person, firm or corporation, practicing the profession of 29 photography, from exhibiting in or about his or its establishment speci- 30 mens of the work of such establishment, unless the same is continued by 31 such person, firm or corporation after written notice objecting thereto 32 has been given by the person portrayed; and nothing contained in this 33 article shall be so construed as to prevent any person, firm or corpo- 34 ration from using the name, portrait, picture [or], video, voice, like- 35 ness, and all other personal data, biometric data, and location data of 36 any manufacturer or dealer in connection with the goods, wares and 37 merchandise manufactured, produced or dealt in by him or her which he or 38 she has sold or disposed of with such name, portrait, picture [or], 39 video, voice, likeness, and all other personal data, biometric data, and 40 location data used in connection therewith; or from using the name, 41 portrait, picture [or], video, voice, likeness, and all other personal 42 data, biometric data, and location data of any author, composer or 43 artist in connection with his or her literary, musical or artistic 44 productions which he or she has sold or disposed of with such name, 45 portrait, picture [or], video, voice, likeness, and all other personal 46 data, biometric data, and location data used in connection therewith. 47 Nothing contained in this section shall be construed to prohibit the 48 copyright owner of a sound recording from disposing of, dealing in, 49 licensing or selling that sound recording to any party, if the right to 50 dispose of, deal in, license or sell such sound recording has been 51 conferred by contract or other written document by such living person or 52 the holder of such right. Nothing contained in the foregoing sentence 53 shall be deemed to abrogate or otherwise limit any rights or remedies 54 otherwise conferred by federal law or state law. 55 § 4. The general business law is amended by adding a new article 32-A 56 to read as follows:A. 7736 3 1 ARTICLE 32-A 2 IT'S YOUR DATA ACT 3 Section 676. Definitions. 4 676-a. Transparency of the collection, use, retention, and shar- 5 ing of personal information. 6 676-b. Fair collection and use of personal information. 7 676-c. Deletion of personal information. 8 676-d. Access to retained personal information. 9 676-e. Access to disclosure of personal information. 10 676-f. Consent to additional collection or sharing of personal 11 information. 12 676-g. No discrimination by a business against a consumer for 13 exercise of rights. 14 676-h. Reasonable security. 15 676-i. Business implementation of duties. 16 676-j. Exceptions. 17 676-k. Consumer's private right of action. 18 676-l. Agency enforcement action. 19 676-m. Construction. 20 676-n. Attorney general regulations. 21 676-o. Intermediate transactions. 22 676-p. Non-waiver. 23 676-q. Severability. 24 § 676. Definitions. 1. For the purposes of this article: 25 (a) "Aggregate consumer information" means information that relates to 26 a group of consumers, from which individual consumer identities have 27 been removed, that is not linked or reasonably linkable to any consumer 28 or household, including via a device. Aggregate consumer information 29 does not mean one or more individual consumer records that have been 30 de-identified. 31 (b) "Biometric information" means an individual's physiological, 32 biological or behavioral characteristics or an electronic representation 33 of such, including an individual's deoxyribonucleic acid (DNA), that can 34 be used, singly or in combination with each other or with other identi- 35 fying data, to establish individual identity. Biometric information 36 includes, but is not limited to, imagery of the iris, retina, finger- 37 print, face, hand, palm, vein patterns, and voice recordings, from which 38 an identifier template, such as a faceprint, a minutiae template, or a 39 voiceprint, can be extracted, and keystroke patterns or rhythms, gait 40 patterns or rhythms, and sleep, health, or exercise data that contain 41 identifying information. 42 (c) "Business" means: 43 (i) A sole proprietorship, partnership, limited liability company, 44 corporation, association, or other legal entity that is organized or 45 operated for the profit or financial benefit of its shareholders or 46 other owners, that collects consumers' personal information, or on the 47 behalf of which such information is collected and that alone, or jointly 48 with others, determines the purposes and means of the processing of 49 consumers' personal information, that does business in the state of New 50 York, and that satisfies one or more of the following thresholds: 51 (1) has annual gross revenues in excess of fifty million dollars, as 52 adjusted pursuant to paragraph (f) of subdivision one of section six 53 hundred seventy-six-n of this article; 54 (2) alone or in combination, annually buys, receives for the business' 55 commercial purposes, sells, or discloses for commercial purposes, aloneA. 7736 4 1 or in combination, the personal information of fifty thousand or more 2 consumers, households, or devices; or 3 (3) derives fifty percent or more of its annual revenues from selling 4 consumers' personal information; and 5 (ii) Any entity that controls or is controlled by a business, as 6 defined in subparagraph (i) of this paragraph, and that shares common 7 branding with such business. 8 (d) "Control" or "controlled" means ownership of, or the power to 9 vote, more than fifty percent of the outstanding shares of any class of 10 voting security of a business; control in any manner over the election 11 of a majority of the directors, or of individuals exercising similar 12 functions; or the power to exercise a controlling influence over the 13 management of a business. 14 (e) "Common branding" means a shared name, servicemark, or trademark. 15 (f) "Operational purpose" means the use of personal information when 16 reasonably necessary and proportionate to achieve one of the following 17 operational purposes: 18 (i) auditing related to a current interaction with the consumer and 19 concurrent transactions, including, but not limited to, counting ad 20 impressions to unique visitors, verifying positioning and quality of ad 21 impressions, and auditing compliance with this paragraph and other stan- 22 dards; 23 (ii) detecting and responding to security incidents, protecting 24 against malicious, deceptive, fraudulent, or illegal activity, and pros- 25 ecuting those responsible for that activity; 26 (iii) debugging to identify and repair errors that impair existing 27 intended functionality; 28 (iv) short-term, transient use, provided the personal information is 29 not disclosed to another third party and is not used to build a profile 30 about a consumer or otherwise alter an individual consumer's experience 31 outside the current interaction, including, but not limited to, the 32 contextual customization of ads shown as part of the same interaction; 33 (v) performing or providing services on behalf of the business or 34 service provider, including maintaining or servicing accounts, billing 35 or collecting for requested products or services, providing customer 36 service, processing or fulfilling orders and transactions, verifying 37 customer information, processing payments, providing financing, provid- 38 ing advertising or marketing services, providing analytic services, or 39 providing similar services on behalf of the business or service provid- 40 er; 41 (vi) undertaking internal research for technological development and 42 demonstration; 43 (vii) undertaking activities to verify or maintain the quality or 44 safety of a service or device that is owned, manufactured, manufactured 45 for, or controlled by the business, or to improve, upgrade, or enhance 46 the service or device that is owned, manufactured, manufactured for, or 47 controlled by the business; 48 (viii) customization of content; or 49 (ix) customization of advertising or marketing. 50 (g) "Collects," "collected," or "collection" means buying, renting, 51 gathering, obtaining, receiving, or accessing any personal information 52 pertaining to a consumer by any means. This shall include, but shall not 53 be limited to, receiving information from the consumer, either actively 54 or passively, or by observing the consumer's behavior. 55 (h) "Commercial purposes" means to advance a person's commercial or 56 economic interests, such as by inducing another person to buy, rent,A. 7736 5 1 lease, join, subscribe to, provide, or exchange products, goods, proper- 2 ty, information, or services, or enabling or effecting, directly or 3 indirectly, a commercial transaction. Commercial purposes shall not 4 include engaging in speech that state or federal courts have recognized 5 as noncommercial speech, including, but not limited to, political speech 6 and journalism. 7 (i) "Consumer" means a natural person who is a resident of the state 8 of New York. 9 (j) "De-identified" means information that cannot reasonably identify, 10 relate to, describe, be capable of being associated with, or be linked, 11 directly or indirectly, to a particular consumer, provided that a busi- 12 ness that uses de-identified information: 13 (i) takes reasonable measures to ensure that the data is de-identi- 14 fied; 15 (ii) publicly commits to maintain and use the data in a de-identified 16 fashion and not to attempt to re-identify the data; and 17 (iii) contractually prohibits downstream recipients from attempting to 18 re-identify the data. 19 (k) "Designated methods for submitting requests" means a mailing 20 address, email address, internet web page, internet web portal, toll- 21 free telephone number, or other applicable contact information, whereby 22 consumers may submit a request under this article, and any new, consum- 23 er-friendly means of contacting a business, as approved by the attorney 24 general pursuant to section six hundred seventy-six-n of this article. 25 (l) "Device" means any physical object that is capable of connecting 26 to the internet, directly or indirectly, or to another device. 27 (m) "Health insurance information" means a consumer's insurance policy 28 number or subscriber identification number, any unique identifier used 29 by a health insurer to identify the consumer, or any information in the 30 consumer's application and claims history, including any appeals 31 records, if the information is linked or reasonably linkable to a 32 consumer or household, including via a device, by a business or service 33 provider. 34 (n) "Infer" or "inference" means the derivation of information, data, 35 assumptions, or conclusions from facts, evidence, or another source of 36 information or data. 37 (o) "Person" means an individual, proprietorship, firm, partnership, 38 joint venture, syndicate, business trust, company, corporation, limited 39 liability company, association, committee, and any other organization or 40 group of persons acting in concert. 41 (p) "Personal information" means information that identifies or could 42 reasonably be linked, directly or indirectly, with a particular consum- 43 er, household, or consumer device. Personal information shall not 44 include publicly available information, information that is de-identi- 45 fied, or aggregate consumer information. 46 (q) "Publicly available" means information that is lawfully made 47 available from federal, state, or local government records. Publicly 48 available does not mean information collected by a business about a 49 consumer without the consumer's knowledge. 50 (r) "Service" or "services" means work, labor, and services, including 51 services furnished in connection with the production, sale or repair of 52 goods. 53 (s) "Service provider" means an individual sole proprietorship, part- 54 nership, limited liability company, corporation, association, or other 55 legal entity that is organized or operated for the profit or financial 56 benefit of its shareholders or other owners, that processes informationA. 7736 6 1 on behalf of a business and to which such business discloses a consum- 2 er's personal information for an operational purpose pursuant to a writ- 3 ten or electronic contract, provided that the contract prohibits the 4 entity receiving the information from retaining, using, or disclosing 5 the personal information for any purpose other than for the specific 6 purpose of performing the services specified in the contract for such 7 business, or as otherwise permitted by this article, including a prohi- 8 bition on retaining, using, or disclosing the personal information for a 9 commercial purpose other than providing the services specified in the 10 contract with such business. 11 (t) "Verifiable consumer request" means a request that is made by a 12 consumer, by a consumer on behalf of the consumer's minor child, or by a 13 natural person or a person registered with the secretary of state, 14 authorized by the consumer to act on the consumer's behalf, and that the 15 business can reasonably verify. A business shall not be obligated to 16 provide any personal information to a consumer if such business cannot 17 verify that the consumer making the request is the consumer about whom 18 such business has collected personal information or is a person author- 19 ized by the consumer to act on such consumer's behalf. 20 (u) "Third party" means a person or business that is not any of the 21 following: 22 (i) the business that collects personal information from consumers 23 under this article; or 24 (ii) a person to whom the business discloses a consumer's personal 25 information for an operational purpose pursuant to a written contract, 26 provided that the contract: 27 (1) prohibits the person receiving the personal information from: 28 (A) selling the personal information; 29 (B) retaining, using, or disclosing the personal information for any 30 purpose other than for the specific purpose of performing the services 31 specified in the contract, including retaining, using, or disclosing the 32 personal information for a commercial purpose other than providing the 33 services specified in the contract; and 34 (C) retaining, using, or disclosing the information outside of the 35 direct business relationship between the person and the business; and 36 (2) includes a certification made by the person receiving the personal 37 information that the person understands the restrictions in clause one 38 of this paragraph and will comply with such restrictions. 39 2. For references to a category or categories of personal information 40 required to be disclosed pursuant to this article: 41 (a) "Processing" means any operation or set of operations that are 42 performed on personal data or on sets of personal data, whether or not 43 by automated means. 44 (b) "Research" means scientific and systematic study and observation, 45 including basic research or applied research that is in the public 46 interest and that adheres to all other applicable ethics and privacy 47 laws or studies conducted in the public interest in the area of public 48 health. Research with personal information that may have been collected 49 from a consumer in the course of the consumer's interactions with a 50 business' service or device for other purposes shall be: 51 (i) compatible with an operational purpose for which the personal 52 information was collected; 53 (ii) subsequently de-identified, or in the aggregate, such that the 54 information cannot reasonably identify, relate to, describe, be capable 55 of being associated with, or be linked, directly or indirectly, to a 56 particular consumer;A. 7736 7 1 (iii) made subject to technical safeguards to prevent re-identifica- 2 tion of the consumer to whom the information may pertain; 3 (iv) subject to business processes that specifically prohibit re-iden- 4 tification of the information; 5 (v) made subject to business processes to prevent inadvertent release 6 of de-identified information; 7 (vi) protected from any re-identification attempts; 8 (vii) used solely for research purposes that are compatible with the 9 context in which the personal information was collected; 10 (viii) not be used for any commercial purpose; and 11 (ix) subjected by the business conducting the research to additional 12 security controls that limit access to the research data to only those 13 individuals in a business as are necessary to carry out the research 14 purpose. 15 (c) (i) "Sell," "selling," "sale," or "sold," means selling, renting, 16 releasing, disclosing, disseminating, making available, transferring, or 17 otherwise communicating orally, in writing, or by electronic or other 18 means, a consumer's personal information by the business to another 19 business or a third party for monetary or other valuable consideration. 20 (ii) For purposes of this article, a business does not sell personal 21 information when: 22 (1) a consumer uses or directs the business to intentionally disclose 23 personal information or uses the business to intentionally interact with 24 a third party, provided such third party does not also sell the personal 25 information, unless such disclosure would be consistent with the 26 provisions of this article. An intentional interaction occurs when the 27 consumer intends to interact with the third party, via one or more 28 deliberate interactions. Hovering over, muting, pausing, or closing a 29 given piece of content shall not constitute a consumer's intent to 30 interact with a third party; 31 (2) the business uses or discloses an identifier for a consumer who 32 has opted out of the sale of the consumer's personal information for the 33 purposes of alerting third parties that the consumer has opted out of 34 the sale of the consumer's personal information; 35 (3) the business uses or discloses personal information of a consumer 36 with a service provider that is necessary to perform an operational 37 purpose and the business has provided notice that information being used 38 or disclosed in its terms and conditions consistent with section six 39 hundred seventy-six-i of this article; or 40 (4) the business transfers to a third party the personal information 41 of a consumer as an asset that is part of a merger, acquisition, bank- 42 ruptcy, or other transaction in which the third party assumes control of 43 all or part of the business, provided that information is used or 44 disclosed consistently with this article. A third party may not mate- 45 rially alter how it uses or discloses the personal information of a 46 consumer in a manner that is materially inconsistent with the promises 47 made at the time of collection, unless it first obtains opt-in consent, 48 as set forth in this article. 49 § 676-a. Transparency of the collection, use, retention, and sharing 50 of personal information. Any business that collects a consumer's 51 personal information shall disclose the following information in its 52 online privacy policy or policies, if the business has an online privacy 53 policy, and update such information at least once every twelve months: 54 1. a description of a consumer's rights pursuant to sections six 55 hundred seventy-six-b, six hundred seventy-six-d, six hundred seventy- 56 six-e, six hundred seventy-six-f and six hundred seventy-six-g of thisA. 7736 8 1 article and one or more designated methods for submitting requests 2 pursuant to sections six hundred seventy-six-c, six hundred 3 seventy-six-d, and six hundred seventy-six-e of this article; 4 2. a description of the personal information such business collects 5 about consumers; 6 3. the categories of sources from which the personal information is 7 collected; 8 4. a description of the methods such business uses to collect personal 9 information; 10 5. the specific purposes for collecting, disclosing, or retaining 11 personal information; 12 6. a description of the personal information it discloses about 13 consumers, or if the business does not disclose consumers' personal 14 information, the business shall disclose such fact; 15 7. the categories of third parties with whom such business shares 16 personal information with, or if the business does not disclose consum- 17 ers' personal information to third parties, the business shall disclose 18 such fact; 19 8. the categories of service providers with whom such business shares 20 personal information with, or if the business does not disclose consum- 21 ers' personal information to service providers, the business shall 22 disclose such fact; 23 9. a description of the length of time for which personal information 24 is retained; and 25 10. if personal data is de-identified such that it is no longer 26 considered personal information but subsequently retained, used, or 27 shared by the business, a description of the method or methods of de-i- 28 dentification. 29 § 676-b. Fair collection and use of personal information. 1. Subject 30 to section six hundred seventy-six-f of this article a business that 31 collects a consumer's personal information shall limit its collection 32 and sharing of personal information with third parties to what is 33 reasonably necessary to provide a service or conduct an activity that a 34 consumer has requested or is reasonably necessary for security or fraud 35 prevention, and shall require any such third party to exercise care over 36 the consumer's personal information consistent with the original busi- 37 ness's obligations as bailee of such information. 38 2. Subject to section six hundred seventy-six-f of this article, a 39 business that collects a consumer's personal information shall be obli- 40 gated to exercise reasonable care with respect to the collection, stor- 41 age, and use of that information, consistent with its obligations as a 42 bailee, and shall limit its use and retention of personal information to 43 what is reasonably necessary to provide a service or conduct an activity 44 that a consumer has requested or a related operational purpose, provided 45 however that data collected or retained solely for security or fraud 46 prevention may not be used for related operational purposes. 47 § 676-c. Deletion of personal information. 1. A consumer shall have 48 the right to request that a business delete any personal information 49 about such consumer which the business has collected from the consumer. 50 2. A business that collects personal information about consumers shall 51 disclose, pursuant to the notice requirements of section six hundred 52 seventy-six-i of this article, the consumer's rights to request the 53 deletion of the consumer's personal information. 54 3. A business that receives a verifiable consumer request from a 55 consumer to delete the consumer's personal information pursuant to 56 subdivision one of this section shall delete the consumer's personalA. 7736 9 1 information from its records and direct any service providers to delete 2 the consumer's personal information from their records. 3 4. A business or a service provider shall not be required to comply 4 with a consumer's request to delete the consumer's personal information 5 if: 6 (a) such retention of personal information is reasonably anticipated 7 within the context of a business's ongoing business relationship with 8 the consumer; or 9 (b) it is necessary for the business or service provider to maintain 10 the consumer's personal information in order to: 11 (i) complete the transaction for which the personal information was 12 collected, provide a good or service requested by the consumer, or 13 otherwise perform a contract between the business and the consumer; 14 (ii) detect or respond to security incidents, protect against mali- 15 cious, deceptive, fraudulent, or illegal activity, or prosecute those 16 responsible for that activity; 17 (iii) debug to identify and repair errors that impair existing 18 intended functionality; 19 (iv) exercise free speech, ensure the right of another consumer to 20 exercise his or her right of free speech; 21 (v) engage in public or peer-reviewed scientific, historical, or 22 statistical research in the public interest that adheres to all other 23 applicable ethics and privacy laws, when the businesses' deletion of the 24 information is likely to render impossible or seriously impair the 25 achievement of such research, if the consumer has provided informed 26 consent; or 27 (vi) comply with a legal obligation. 28 § 676-d. Access to retained personal information. 1. If a business 29 collects personal information about a consumer, the consumer shall have 30 the right to ask the business for the following information, and the 31 business shall have the duty to provide it, promptly and free of charge, 32 upon receipt of a verifiable request: 33 (a) the specific pieces of personal information that the business 34 retains about that consumer; 35 (b) the specific sources from which the business collected the 36 personal information; and 37 (c) its purpose for collecting the personal information. 38 2. When a business receives a verifiable consumer request from a 39 consumer for the specific pieces of their personal information, such 40 business shall disclose such information in an electronic, portable, 41 machine-readable, and readily-useable format or formats that allow the 42 consumer to understand such information and to transmit such information 43 to another entity without hindrance. 44 § 676-e. Access to disclosure of personal information. If a business 45 discloses personal information about a consumer to a third party, the 46 consumer shall have the right to request the following information from 47 the business, and such business shall have the duty to provide it, 48 promptly and free of charge, upon receipt of a verifiable request: 49 1. the categories of personal information that the business disclosed 50 about the consumer, and the categories of third parties to whom the 51 personal information was disclosed, by category of personal information 52 for each category of third party; and 53 2. the specific third parties to whom the personal information was 54 disclosed. 55 § 676-f. Consent to additional collection or sharing of personal 56 information. 1. Other than as described in section six hundred seventy-A. 7736 10 1 six-b of this article, a business shall not collect or share a consum- 2 er's personal information unless the consumer has affirmatively author- 3 ized the collection or disclosure. This right to collect or share a 4 consumer's personal information may be referred to as the right to 5 "opt-in consent". 6 2. Any personal information of a consumer collected or shared by a 7 business upon the affirmative authorization of the consumer shall remain 8 the property of such consumer, and the business shall be required to 9 exercise reasonable care in the collection and sharing of such data, 10 consistent with its obligations towards the consumer as bailee of his or 11 her personal information. 12 3. A business shall request a user's opt-in consent separately from 13 any other permission or consent, with the option to decline consent at 14 least as prominent as the option to provide consent. 15 4. If a consumer declines to provide their opt-in consent to the 16 disclosure of their personal information, a business shall refrain for 17 at least twelve months before again requesting that the consumer provide 18 their opt-in consent to the disclosure of their personal information. 19 5. A business may make available a setting or other user control that 20 the consumer may affirmatively access in order to consent to additional 21 data collection or sharing. 22 6. A business that obtains a consumer's opt-in consent to collect or 23 disclose their personal information pursuant to this section shall 24 provide consumers the ability to withdraw such consent through a readily 25 usable and automated means at any time. 26 § 676-g. No discrimination by a business against a consumer for exer- 27 cise of rights. A business shall not discriminate against a consumer 28 because the consumer exercised any of the consumer's rights under this 29 article or does not provide consent to additional data collection or 30 sharing under section six hundred seventy-six-f of this article includ- 31 ing, but not limited to, by: 32 1. denying goods or services to the consumer; 33 2. charging different prices or rates for goods or services, including 34 through the use of discounts or other benefits or imposing penalties; 35 3. providing a different level or quality of goods or services to the 36 consumer; or 37 4. suggesting that the consumer will receive a different price or rate 38 for goods or services or a different level or quality of goods or 39 services. 40 § 676-h. Reasonable security. 1. A business or service provider shall 41 implement and maintain reasonable security procedures and practices, 42 including administrative, physical, and technical safeguards, appropri- 43 ate to the nature of the information and the purposes for which the 44 personal information will be used, to protect consumers' personal infor- 45 mation from unauthorized use, disclosure, access, destruction, or 46 modification. 47 2. A business or service provider may employ any lawful security meas- 48 ures that allow it to comply with the requirements set forth in this 49 section. 50 § 676-i. Business implementation of duties. 1. A business shall: 51 (a) make available to consumers two or more designated methods for 52 submitting requests pursuant to sections six hundred seventy-six-c, six 53 hundred seventy-six-d, and six hundred seventy-six-e of this article, 54 including, at a minimum, a telephone number, and, if the business main- 55 tains an internet web site, a web site address;A. 7736 11 1 (b) disclose and deliver the required information to a consumer free 2 of charge within forty-five days of receiving a verifiable consumer 3 request. A business shall take steps to determine whether the request is 4 a verifiable consumer request from the identified consumer. The time 5 period may be extended once by forty-five days when reasonably neces- 6 sary, provided the consumer is provided notice of the extension within 7 the first forty-five day period. The disclosure shall cover the twelve 8 month period preceding the request. It shall be delivered through the 9 consumer's account with the business, if the consumer maintains an 10 account with the business, or by mail or electronically at the consum- 11 er's option, if the consumer does not maintain an account with the busi- 12 ness. The business shall not require the consumer to create an account 13 with the business in order to make a verifiable request; 14 (c) ensure that all individuals responsible for handling consumer 15 inquiries about the business's privacy practices or the business's 16 compliance with this article are informed of all requirements in this 17 article, and how to direct consumers to exercise their rights in this 18 article; and 19 (d) limit the use of any personal information collected from the 20 consumer in connection with a business's verification of the consumer's 21 request solely for the purposes of verification. 22 2. A business shall not be obligated to provide the information 23 required by sections six hundred seventy-six-d and six hundred seventy- 24 six-e of this article to the same consumer more than twice in a twelve 25 month period. 26 § 676-j. Exceptions. 1. The obligations imposed on businesses by this 27 article shall not restrict a business's or service provider's ability 28 to: 29 (a) comply with federal, state, or local laws; 30 (b) comply with a civil, criminal, or regulatory inquiry, investi- 31 gation, subpoena, or summons by federal, state, or local authorities; 32 (c) cooperate with law enforcement agencies concerning conduct or 33 activity that the business, service provider, or third party reasonably 34 and in good faith believes may violate federal, state, or local law; 35 (d) exercise or defend legal claims; 36 (e) collect, use, retain, sell, or disclose consumer information that 37 is de-identified or in the aggregate; or 38 (f) collect or sell a consumer's personal information if every aspect 39 of that commercial conduct takes place wholly outside of the state. For 40 purposes of this section, commercial conduct takes place wholly outside 41 of the state if the business collected information while the consumer 42 was outside of the state, no part of the sale of the consumer's personal 43 information occurred in the state, and no personal information collected 44 while the consumer was in the state is sold. This paragraph shall not 45 permit a business from storing, including on a device, personal informa- 46 tion about a consumer when such consumer is in the state and then 47 collecting such personal information when such consumer and stored 48 personal information is outside of the state. 49 2. Nothing in this article shall require a business to violate an 50 evidentiary privilege under state or federal law or prevent a business 51 from providing the personal information of a consumer who is covered by 52 an evidentiary privilege under state or federal law as part of a privi- 53 leged communication. 54 3. This article shall not apply to any of the following: 55 (a) medical information governed by part 2.6 of the Confidentiality of 56 Medical Information Act or protected health information that isA. 7736 12 1 collected by a covered entity or business associate governed by the 2 privacy, security, and breach notification rules issued or established 3 by the United States department of health and human services, 45 C.F.R. 4 parts 160 and 164, the Health Insurance Portability and Accountability 5 Act of 1996, or the Health Information Technology for Economic and Clin- 6 ical Health Act; 7 (b) a provider of health care governed by part 2.6 of the Confiden- 8 tiality of Medical Information Act or a covered entity governed by the 9 privacy, security, and breach notification rules issued or established 10 by the United States department of health and human services, 45 C.F.R. 11 parts 160 and 164, or the Health Insurance Portability and Accountabil- 12 ity Act of 1996, to the extent the provider or covered entity maintains 13 patient information in the same manner as medical information or 14 protected health information as described in paragraph (a) of this 15 subdivision; 16 (c) information collected as part of a clinical trial subject to the 17 Federal Policy for the Protection of Human Subjects, also known as the 18 "Common Rule", pursuant to good clinical practice guidelines issued by 19 the International Council for Harmonization or pursuant to human subject 20 protection requirements of the United States Food and Drug Adminis- 21 tration; 22 (d) the sale of personal information to or from a consumer reporting 23 agency if such information is to be reported in, or used to generate, a 24 consumer report as defined in section three hundred eighty-a of this 25 chapter and use of that information is limited by the federal Fair Cred- 26 it Reporting Act, 15 USC 1681; 27 (e) personal information collected, processed, sold, or disclosed 28 pursuant to the federal Gramm-Leach-Bliley Act or any financial privacy 29 laws or regulations of the state of New York, and implementing regu- 30 lations, if it is in conflict with such law; or 31 (f) personal information collected, processed, sold, or disclosed 32 pursuant to the Driver's Privacy Protection Act of 1994, if it is in 33 conflict with such act. 34 4. Notwithstanding a business' obligations to respond to and honor 35 consumer rights requests pursuant to sections six hundred seventy-six-c, 36 six hundred seventy-six-d, and six hundred seventy-six-e of this arti- 37 cle: 38 (a) the time period for a business to respond to any verified consumer 39 request may be extended by up to ninety additional days where necessary, 40 taking into account the complexity and number of the requests. A busi- 41 ness shall inform the consumer of any such extension within forty-five 42 days of receipt of the request, together with the reasons for the delay; 43 (b) if a business does not take action on the request of the consumer, 44 such business shall inform the consumer, without delay and at the latest 45 within the time period permitted of response by this section, of the 46 reasons for not taking action and any rights the consumer may have to 47 appeal the decision to the business; and 48 (c) if requests from a consumer are manifestly unfounded or excessive, 49 in particular because of their repetitive character, a business may 50 either charge a reasonable fee, taking into account the administrative 51 costs of providing the information or communication or taking the action 52 requested, or refuse to act on the request and notify the consumer of 53 the reason for refusing the request. Such business shall bear the burden 54 of demonstrating that any verified consumer request is manifestly 55 unfounded or excessive.A. 7736 13 1 5. A business that discloses personal information to a service provid- 2 er shall not be liable under this article if the service provider 3 receiving the personal information uses it in violation of the 4 restrictions set forth in this article, provided that, at the time of 5 disclosing the personal information, such business does not have actual 6 knowledge, or reason to believe, that the service provider intends to 7 commit such a violation. A service provider shall not be liable under 8 this article for the obligations of a business for which it provides 9 services as set forth in this article. 10 6. This article shall not be construed to: (a) require a business to 11 collect or retain personal information about a consumer longer than it 12 would be retained such information in the ordinary course of business; 13 or 14 (b) require a business to re-identify or otherwise link information 15 that is not maintained in a manner that would be considered personal 16 information. 17 7. The rights afforded to consumers and the obligations imposed on a 18 business pursuant to this article shall not adversely affect the rights 19 and freedoms of other consumers. 20 8. The rights afforded to consumers and the obligations imposed on any 21 business pursuant to this article shall not apply to the extent that 22 they infringe on the noncommercial activities of a publisher, editor, 23 reporter, or other person connected with or employed upon a newspaper, 24 magazine, or other periodical publication, or by a press association or 25 wire service. 26 § 676-k. Consumer's private right of action. 1. A consumer who has 27 suffered a violation of this article may bring a lawsuit against the 28 business that committed such violation. A violation of this article 29 shall be deemed to constitute an injury in fact to the consumer who has 30 suffered such violation, and the consumer need not suffer monetary or 31 property loss as a result of such violation in order to bring an action 32 for a violation of this article. 33 2. A consumer who prevails in such an action shall obtain the follow- 34 ing remedies: 35 (a) damages in an amount not to exceed seven hundred fifty dollars per 36 consumer per violation or actual damages, whichever is greater; 37 (b) injunctive or declaratory relief, as the court deems proper; 38 (c) reasonable attorney fees and costs; and 39 (d) any other relief the court deems proper. 40 3. In assessing the amount of statutory damages, the court shall 41 consider any one or more of the relevant circumstances presented by any 42 of the parties to the case, including, but not limited to, the nature 43 and seriousness of the misconduct, the number of violations, the 44 persistence of the misconduct, the length of time over which the miscon- 45 duct occurred, the willfulness of the defendant's misconduct, and the 46 defendant's assets, liabilities, and net worth. 47 4. A consumer bringing an action pursuant to this section shall notify 48 the attorney general within thirty days of the filing of such action. 49 § 676-l. Agency enforcement action. 1. The attorney general, county 50 district attorney, or city corporation counsel having proper jurisdic- 51 tion may bring a civil action in the name of the people of the state of 52 New York against any person, business, or service provider who violates 53 any provision of this article. 54 2. Any person, business, or service provider who violates the 55 provisions of this article may be liable for a civil penalty of up to 56 seven thousand five hundred dollars for each intentional violation andA. 7736 14 1 of up to two thousand five hundred dollars for each unintentional 2 violation. 3 § 676-m. Construction. This article is intended to further the consti- 4 tutional right of privacy and to supplement existing laws relating to 5 consumers' personal information. The provisions of this article are not 6 limited to information collected electronically or over the internet, 7 but shall apply to the collection and sale of all personal information 8 collected by a business from consumers. Wherever possible, law relating 9 to consumers' personal information should be construed to harmonize with 10 the provisions of this article, but in the event of a conflict between 11 other laws and the provisions of this article, the provisions of the law 12 that afford the greatest protection for the right of privacy for consum- 13 ers shall control. 14 § 676-n. Attorney general regulations. 1. Within one year of the 15 effective date of this article, the attorney general shall adopt regu- 16 lations to further the purposes of this article, including, but not 17 limited to: 18 (a) detailing as needed the types of information that are personal 19 information in technology, data collection practices, obstacles to 20 implementation, and privacy concerns; 21 (b) establishing any exceptions necessary to comply with state or 22 federal law, including, but not limited to, those relating to trade 23 secrets and intellectual property rights; 24 (c) facilitating and governing the submission of a request by a 25 consumer to opt out of the sale of personal information pursuant to 26 section six hundred seventy-six-f of this article; 27 (d) governing business compliance with a consumer's opt-out request; 28 (e) developing a recognizable and uniform opt-out logo or button by 29 all businesses to promote consumer awareness of the opportunity to opt- 30 out of the sale of personal information; 31 (f) adjusting the monetary threshold in clause one of subparagraph (i) 32 of paragraph (c) of subdivision one of section six hundred seventy-six 33 of this article in January of every odd-numbered year to reflect any 34 increase in the consumer price index; 35 (g) establishing rules, procedures, and any exceptions necessary to 36 ensure that the notices and information that businesses are required to 37 provide pursuant to this article are provided in a manner that may be 38 easily understood by the average consumer, are accessible to consumers 39 with disabilities, and are available in the language primarily used to 40 interact with the consumer, including establishing rules and guidelines 41 regarding financial incentive offerings; and 42 (h) establishing rules and procedures to further the purposes of 43 sections six hundred seventy-six-d and six hundred seventy-six-e of this 44 article and to facilitate a consumer's or the consumer's authorized 45 agent's ability to obtain information pursuant to section six hundred 46 seventy-six-i of this article, with the goal of minimizing the adminis- 47 trative burden on consumers, taking into account available technology, 48 security concerns, and the burden on the business, to govern a business' 49 determination that a request for information received by a consumer is a 50 verifiable consumer request, including treating a request submitted 51 through a password-protected account maintained by the consumer with the 52 business while the consumer is logged into the account as a verifiable 53 consumer request and providing a mechanism for a consumer who does not 54 maintain an account with the business to request information through the 55 business' authentication of the consumer's identity.A. 7736 15 1 2. The attorney general may update the foregoing regulations, and 2 adopt additional regulations, as necessary to further the purposes of 3 this article. 4 3. Before adopting any regulations, the attorney general shall solicit 5 broad public participation concerning those regulations. 6 § 676-o. Intermediate transactions. If a series of steps or trans- 7 actions were component parts of a single transaction intended from the 8 beginning to be taken with the intention of avoiding the reach of this 9 article, a court shall disregard the intermediate steps or transactions 10 for purposes of effectuating the purposes of this article. 11 § 676-p. Non-waiver. Any provision of a contract or agreement of any 12 kind that purports to waive or limit in any way a consumer's rights 13 under this article, including, but not limited to, any right to a remedy 14 or means of enforcement, shall be deemed contrary to public policy and 15 shall be void and unenforceable. This section shall not prevent a 16 consumer from declining to request information from a business, declin- 17 ing to opt out of a business' sale of the consumer's personal informa- 18 tion, or authorizing a business to sell the consumer's personal informa- 19 tion after previously opting out. 20 § 676-q. Severability. If any provision of this article or the appli- 21 cation thereof to any person, business, service provider, or circum- 22 stances is held invalid, such invalidity shall not affect other 23 provisions or applications of this article which can be given effect 24 without the invalid provision or application, and to this end the 25 provisions of this article are declared to be severable. 26 § 5. This act shall take effect one year after it shall have become a 27 law.
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