Bill Text: IN HB1376 | 2013 | Regular Session | Enrolled
Bill Title: Various privacy issues.
Sponsorship: Partisan Bill (Republican 2)
Status: (Passed) 2013-05-13 - Public Law 151 [HB1376 Detail]
Download: Indiana-2013-HB1376-Enrolled.html
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AN ACT to amend the Indiana Code concerning trade regulation.
caller ID identification service. The commission may not require that
caller ID identification service be provided with blocking, except that
the commission may approve either per-call or per-line blocking for
law enforcement and crisis intervention agencies that are certified by
the commission.
(b) Rates and charges for caller ID services identification service
are not subject to commission approval under this section.
(1) this article;
(2) IC 24-5-0.5-3(a)(19); and
(3) IC 24-5-14.5.
The fund shall be used exclusively for this purpose.
(b) The division shall administer the fund.
(c) The division shall deposit all revenue received:
(1) under this article;
(2) from civil penalties deposited under IC 24-5-0.5-4(h); and
(3) from civil penalties deposited under IC 24-5-14.5-12.
in the fund.
(d) Money in the fund is continuously appropriated to the division for the administration of:
(1) this article;
(2) IC 24-5-0.5-3(a)(19); and
(3) IC 24-5-14.5.
(e) Money in the fund at the end of a state fiscal year does not revert to the state general fund. However, if the amount of money in the fund at the end of a particular state fiscal year exceeds two hundred thousand dollars ($200,000), the treasurer of state shall transfer the excess from the fund to the state general fund.
(1) three (3) times the actual damages of the consumer suffering the loss; or
(2) one thousand dollars ($1,000).
Except as provided in subsection (j), the court may award reasonable attorney fees to the party that prevails in an action under this subsection. This subsection does not apply to a consumer transaction in real property, including a claim or action involving a construction defect (as defined in IC 32-27-3-1(5)) brought against a construction professional (as defined in IC 32-27-3-1(4)), except for purchases of time shares and camping club memberships. This subsection does not apply with respect to a deceptive act described in section 3(a)(20) of this chapter. This subsection also does not apply to a violation of IC 24-4.7, IC 24-5-12,
(b) Any person who is entitled to bring an action under subsection (a) on the person's own behalf against a supplier for damages for a deceptive act may bring a class action against such supplier on behalf of any class of persons of which that person is a member and which has been damaged by such deceptive act, subject to and under the Indiana Rules of Trial Procedure governing class actions, except as herein expressly provided. Except as provided in subsection (j), the court may award reasonable attorney fees to the party that prevails in a class action under this subsection, provided that such fee shall be determined by the amount of time reasonably expended by the attorney and not by the amount of the judgment, although the contingency of the fee may be considered. Except in the case of an extension of time granted by the attorney general under IC 24-10-2-2(b) in an action subject to IC 24-10, any money or other property recovered in a class action under this subsection which cannot, with due diligence, be restored to consumers within one (1) year after the judgment becomes final shall be returned to the party depositing the same. This subsection does not apply to a consumer transaction in real property, except for purchases of time shares and camping club memberships. This subsection does not apply with respect to a deceptive act described in section 3(a)(20) of this chapter. Actual damages awarded to a class have priority over any civil penalty imposed under this chapter.
(c) The attorney general may bring an action to enjoin a deceptive act, including a deceptive act described in section 3(a)(20) of this chapter, notwithstanding subsections (a) and (b). However, the attorney general may seek to enjoin patterns of incurable deceptive acts with respect to consumer transactions in real property. In addition, the court may:
(1) issue an injunction;
(2) order the supplier to make payment of the money unlawfully
received from the aggrieved consumers to be held in escrow for
distribution to aggrieved consumers;
(3) order the supplier to pay to the state the reasonable costs of
the attorney general's investigation and prosecution related to the
action; and
(4) provide for the appointment of a receiver.
(d) In an action under subsection (a), (b), or (c), the court may void
or limit the application of contracts or clauses resulting from deceptive
acts and order restitution to be paid to aggrieved consumers.
(e) In any action under subsection (a) or (b), upon the filing of the
complaint or on the appearance of any defendant, claimant, or any
other party, or at any later time, the trial court, the supreme court, or the
court of appeals may require the plaintiff, defendant, claimant, or any
other party or parties to give security, or additional security, in such
sum as the court shall direct to pay all costs, expenses, and
disbursements that shall be awarded against that party or which that
party may be directed to pay by any interlocutory order by the final
judgment or on appeal.
(f) Any person who violates the terms of an injunction issued under
subsection (c) shall forfeit and pay to the state a civil penalty of not
more than fifteen thousand dollars ($15,000) per violation. For the
purposes of this section, the court issuing an injunction shall retain
jurisdiction, the cause shall be continued, and the attorney general
acting in the name of the state may petition for recovery of civil
penalties. Whenever the court determines that an injunction issued
under subsection (c) has been violated, the court shall award
reasonable costs to the state.
(g) If a court finds any person has knowingly violated section 3 or
10 of this chapter, other than section 3(a)(19) or 3(a)(20) of this
chapter, the attorney general, in an action pursuant to subsection (c),
may recover from the person on behalf of the state a civil penalty of a
fine not exceeding five thousand dollars ($5,000) per violation.
(h) If a court finds that a person has violated section 3(a)(19) of this
chapter, the attorney general, in an action under subsection (c), may
recover from the person on behalf of the state a civil penalty as follows:
(1) For a knowing or intentional violation, one thousand five
hundred dollars ($1,500).
(2) For a violation other than a knowing or intentional violation,
five hundred dollars ($500).
A civil penalty recovered under this subsection shall be deposited in
the consumer protection division telephone solicitation fund
established by IC 24-4.7-3-6 to be used for the administration and
enforcement of section 3(a)(19) of this chapter.
(i) An elderly person relying upon an uncured or incurable
deceptive act, including an act related to hypnotism, may bring an
action to recover treble damages, if appropriate.
(j) An offer to cure is:
(1) not admissible as evidence in a proceeding initiated under this
section unless the offer to cure is delivered by a supplier to the
consumer or a representative of the consumer before the supplier
files the supplier's initial response to a complaint; and
(2) only admissible as evidence in a proceeding initiated under
this section to prove that a supplier is not liable for attorney's fees
under subsection (k).
If the offer to cure is timely delivered by the supplier, the supplier may
submit the offer to cure as evidence to prove in the proceeding in
accordance with the Indiana Rules of Trial Procedure that the supplier
made an offer to cure.
(k) A supplier may not be held liable for the attorney's fees and
court costs of the consumer that are incurred following the timely
delivery of an offer to cure as described in subsection (j) unless the
actual damages awarded, not including attorney's fees and costs, exceed
the value of the offer to cure.
(l) If a court finds that a person has knowingly violated section
3(a)(20) of this chapter, the attorney general, in an action under
subsection (c), may recover from the person on behalf of the state a
civil penalty not exceeding one thousand dollars ($1,000) per
consumer. In determining the amount of the civil penalty in any action
by the attorney general under this subsection, the court shall consider,
among other relevant factors, the frequency and persistence of
noncompliance by the debt collector, the nature of the noncompliance,
and the extent to which the noncompliance was intentional. A person
may not be held liable in any action by the attorney general for a
violation of section 3(a)(20) of this chapter if the person shows by a
preponderance of evidence that the violation was not intentional and
resulted from a bona fide error, notwithstanding the maintenance of
procedures reasonably adapted to avoid the error. A person may not be
held liable in any action for a violation of this chapter for contacting a
person other than the debtor, if the contact is made in compliance with
the Fair Debt Collection Practices Act.
salespersons, or through the use of an automated dialing and answering
device, the person may not knowingly or intentionally block or attempt
to block the display of the person's:
(1) telephone number; or
(2) identity;
by a caller ID identification service (as defined by IC 8-1-2.9-1) in
IC 24-5-14.5-3) when attempting to initiate a telephone conversation
for the purpose of making a solicitation to a prospect.
(b) A person who knowingly or intentionally violates this section
commits a Class B misdemeanor. However, the offense is a Class A
misdemeanor if the person has a previous unrelated conviction under
this subsection.
Chapter 14.5. False or Misleading Caller Identification
Sec. 1. This chapter applies to the transmission of information through a caller identification service with respect to calls made after June 30, 2013, to a subscriber.
Sec. 2. As used in this chapter, "caller identification information" means information provided by a caller identification service regarding the telephone number of, or other information regarding the origination of, a call made using a telecommunications service or interconnected VOIP service.
Sec. 3. (a) As used in this chapter, "caller identification service" means any service or device designed to provide the user of the service or device with the telephone number of, or other information regarding the origination of, a call made using a telecommunications service or interconnected VOIP service.
(b) The term includes automatic number identification (as defined in 47 CFR 20.3) services.
Sec. 4. As used in this chapter, "interconnected VOIP service" has the meaning set forth in 47 CFR 9.3.
Sec. 5. As used in this chapter, "place of primary use" means the street address representative of where a subscriber's use of a telecommunications service or interconnected VOIP service primarily occurs, which must be:
(1) the residential street address or the primary business street address of the subscriber or, in the case of a subscriber of interconnected VOIP service, the subscriber's registered location (as defined in 47 CFR 9.3);
(2) within the licensed service area of the provider; and
(3) in the case of:
(A) mobile telecommunications service, determined in the manner provided in IC 6-8.1-15; and
(B) nonmobile telecommunications communications service, determined in the manner provided in IC 6-2.5-12.
Sec. 6. As used in this chapter, "provider" means a person that offers telecommunications service or interconnected VOIP service.
Sec. 7. As used in this chapter, "subscriber" means a person:
(1) that subscribes to a caller identification service in connection with:
(A) a telecommunications service; or
(B) an interconnected VOIP service;
to which the person subscribes; and
(2) whose place of primary use for the service described in subdivision (1)(A) or (1)(B) is in Indiana.
Sec. 8. As used in this chapter, "telecommunications service" has the meaning set forth in 47 U.S.C. 153.
Sec. 9. Except as provided in section 10 of this chapter, a person shall not, in connection with any telecommunications service or interconnected VOIP service, knowingly and with the intent to defraud or cause harm to another person or to wrongfully obtain anything of value, cause any caller identification service to transmit misleading or inaccurate caller identification information to a subscriber.
Sec. 10. This chapter does not prohibit or restrict any of the following:
(1) Subject to IC 24-5-12-25, blocking the capability of a caller identification service to transmit caller identification information.
(2) Any authorized activity of a law enforcement agency.
(3) Any lawfully authorized investigative, protective, or intelligence activity of:
(A) the United States or an intelligence agency of the United States;
(B) the state or a political subdivision of the state; or
(C) any other state or a political subdivision of that state.
(4) A court order that specifically authorizes the use of caller identification manipulation.
(5) The right of the attorney general to bring a civil action under 47 U.S.C. 227(e)(6) to enforce the federal Truth in Caller ID Act of 2009 (47 U.S.C. 227).
Sec. 11. A person who knowingly violates this chapter commits
a Class B misdemeanor. However, the offense is a Class A
misdemeanor if the person has a previous unrelated conviction
under this chapter.
Sec. 12. (a) Except as provided in subsection (b), a person who
violates this chapter commits a deceptive act that is:
(1) actionable by the attorney general under IC 24-5-0.5-4(c);
and
(2) subject to the remedies and penalties set forth in
IC 24-5-0.5.
An action by the attorney general for a violation of this chapter
may be brought in the circuit or superior court of Marion County.
(b) If the attorney general brings an action under this section
and proves by a preponderance of the evidence that a person has
knowingly or intentionally violated section 9 of this chapter, the
attorney general may recover from the person on behalf of the
state a civil penalty of not more than ten thousand dollars ($10,000)
per violation. A civil penalty recovered under this subsection shall
be deposited in the consumer protection division telephone
solicitation fund established by IC 24-4.7-3-6 to be used for the
administration and enforcement of this chapter.
Sec. 13. (a) Except as provided in section 14 of this chapter, any
person who is aggrieved by a violation of this chapter may bring an
action for the recovery of the person's actual damages, including
court costs and attorney's fees, against any person:
(1) responsible for; or
(2) who knowingly participated in;
the violation. An action under this subsection may be brought in
the circuit or superior court of the aggrieved person's county of
residence or principal place of business in Indiana.
(b) Upon petition by any person that another person has
violated this chapter, the circuit or superior court of the
petitioner's county of residence or principal place of business in
Indiana may enjoin the respondent from further violations. The
injunctive relief available under this subsection is in addition to
any damages to which a person may be entitled under subsection
(a).
Sec. 14. A person does not have a cause of action against a
provider for a violation of this chapter unless the violation resulted
from the provider's gross negligence or intentional wrongdoing.
means an individual who applies for a license, certificate,
registration, or permit issued by a board under this title.
(b) As used in this section, "licensee" means an individual who
is or has been licensed, certified, or registered by a board under
this title.
(c) As used in this section, "personal information" means the
following:
(1) Home telephone number.
(2) Electronic mail address.
(d) Except as otherwise provided in this section, the personal
information of an individual who is:
(1) a licensee;
(2) an applicant; or
(3) a board member;
is confidential for purposes of IC 5-14-3-4 and may not be disclosed
to the public by the agency or a board.
(a) (e) An individual who applies for a license issued by a board
under this chapter applicant or who holds a license issued by a board
under this chapter a licensee shall provide the individual's applicant's
or licensee's Social Security number to the agency.
(b) (f) The agency and the boards shall collect and release the
applicant's or licensee's Social Security number as provided in state or
federal law.
(c) (g) Notwithstanding IC 4-1-10-3, the agency and the boards may
allow access to the Social Security number of each person who is
licensed under this chapter or has applied for a license under this
chapter applicant or licensee to:
(1) a testing service that provides the examination for licensure,
certification, or registration to the agency or the boards; or
(2) an individual state regulatory board or an organization
composed of state regulatory boards for the applicant's or
licensee's profession for the purpose of coordinating:
(A) licensure, certification, or registration; and
(B) disciplinary activities among the individual states.
(h) Notwithstanding subsection (d), the agency or a board may
disclose personal information of an individual described in
subsection (d) if the person requesting the information provides
proof of identity and represents that the use of the personal
information will be strictly limited to at least one (1) of the
following:
(1) For use by a government agency, including a court or law
enforcement agency, in carrying out its functions, or a person
acting on behalf of a government agency in carrying out its
functions.
(2) For use in connection with a civil, a criminal, an
administrative, or an arbitration proceeding in a court or
government agency or before a self-regulatory body,
including the service of process, investigation in anticipation
of litigation, and the execution or enforcement of judgments
and orders, or under an order of a court.
(3) For use in research activities, and for use in producing
statistical reports, as long as the personal information is not
published, re-disclosed, or used to contact the individuals who
are the subject of the personal information.
(4) For use by any person, when the person demonstrates, in
a form and manner prescribed by the agency, that written
consent has been obtained from the individual who is the
subject of the information.
(5) For any other use specifically authorized by law that is
related to the agency or a board or to public safety.
IC 24-1-1-3 (Concerning combinations in restraint of trade).
IC 24-1-2-1 (Concerning combinations in restraint of trade).
IC 24-1-2-2 (Concerning combinations in restraint of trade).
IC 24-1-2-3 (Concerning combinations in restraint of trade).
IC 24-1-3-1 (Concerning combinations in restraint of trade).
IC 24-1-4-3 (Concerning combinations in restraint of trade).
IC 24-2-2-3 (Concerning trademarks, trade names, and trade secrets).
IC 24-3-4-15 (Concerning regulated prices).
IC 24-3-4-16 (Concerning regulated prices).
IC 24-3-4-17 (Concerning regulated prices).
IC 24-3-5.4-24 (Concerning regulated prices).
IC 24-4-1-1 (Concerning regulated businesses).
IC 24-4-3-5 (Concerning regulated businesses).
IC 24-4-4-5 (Concerning regulated businesses).
IC 24-4-6-1 (Concerning regulated businesses).
IC 24-4-11-11 (Concerning regulated businesses).
IC 24-4-12-11 (Concerning regulated businesses).
IC 24-4-13-6 (Concerning regulated businesses).
IC 24-16.4-4 (Concerning regulated businesses).
IC 24-4.5-5-301 (Concerning Uniform Consumer Credit Code).
IC 24-4.5-5-302 (Concerning Uniform Consumer Credit Code).
IC 24-4.6-3-4 (Concerning unauthorized solicitation of money using the name of a public safety agency).
IC 24-5-8-19 (Concerning consumer sales).
IC 24-5-12-22 (Concerning consumer sales).
IC 24-5-12-25 (Concerning consumer sales).
IC 24-5-14-10 (Concerning consumer sales).
IC 24-5-14.5-11 (Concerning false or misleading caller identification).
IC 24-5-16-16 (Concerning consumer sales).
IC 24-5-23.5-9 (Concerning consumer sales).
IC 24-5.5-6-1 (Concerning mortgage rescue protection fraud).
IC 24-6-1-1 (Concerning standard weights and measures).
IC 24-6-3-15 (Concerning standard weights and measures).
IC 24-6-6-11 (Concerning standard weights and measures).
IC 24-7-9-1 (Concerning retail purchase agreements).
IC 24-7-9-2 (Concerning retail purchase agreements).
IC 24-7-9-3 (Concerning retail purchase agreements).
IC 24-8-6-1 (Concerning promotional gifts and contests).
IC 24-9-8-1 (Concerning home loan practices).
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