Bill Text: MI SB0149 | 2009-2010 | 95th Legislature | Engrossed
Bill Title: Communications; internet; obtaining personal information by false pretenses; prohibit. Amends secs. 3, 7 & 9 of 2004 PA 452 (MCL 445.63 et seq.) & adds sec. 7a.
Spectrum: Partisan Bill (Republican 8-0)
Status: (Passed) 2010-12-29 - Assigned Pa 0318'10 [SB0149 Detail]
Download: Michigan-2009-SB0149-Engrossed.html
SB-0149, As Passed Senate, April 23, 2009
SENATE BILL No. 149
January 29, 2009, Introduced by Senators PATTERSON, CROPSEY, JELINEK, KUIPERS, GARCIA, KAHN, HARDIMAN and RICHARDVILLE and referred to the Committee on Judiciary.
A bill to amend 2004 PA 452, entitled
"Identity theft protection act,"
by amending sections 3, 7, and 9 (MCL 445.63, 445.67, and 445.69),
section 3 as amended by 2006 PA 566, and by adding section 7a.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 3. As used in this act:
(a) "Agency" means a department, board, commission, office,
agency, authority, or other unit of state government of this state.
The term includes an institution of higher education of this state.
The term does not include a circuit, probate, district, or
municipal court.
(b) "Breach of the security of a database" or "security
breach" means the unauthorized access and acquisition of data that
compromises the security or confidentiality of personal information
maintained by a person or agency as part of a database of personal
information regarding multiple individuals. These terms do not
include unauthorized access to data by an employee or other
individual if the access meets all of the following:
(i) The employee or other individual acted in good faith in
accessing the data.
(ii) The access was related to the activities of the agency or
person.
(iii) The employee or other individual did not misuse any
personal information or disclose any personal information to an
unauthorized person.
(c) "Child or spousal support" means support for a child or
spouse, paid or provided pursuant to state or federal law under a
court order or judgment. Support includes, but is not limited to,
any of the following:
(i) Expenses for day-to-day care.
(ii) Medical, dental, or other health care.
(iii) Child care expenses.
(iv) Educational expenses.
(v) Expenses in connection with pregnancy or confinement under
the paternity act, 1956 PA 205, MCL 722.711 to 722.730.
(vi) Repayment of genetic testing expenses, under the paternity
act, 1956 PA 205, MCL 722.711 to 722.730.
(vii) A surcharge as provided by section 3a of the support and
parenting time enforcement act, 1982 PA 295, MCL 552.603a.
(d) "Credit card" means that term as defined in section 157m
of the Michigan penal code, 1931 PA 328, MCL 750.157m.
Senate Bill No. 149 as amended April 22, 2009
(e) "Data" means computerized personal information.
(f) "Depository institution" means a state or nationally
chartered bank or a state or federally chartered savings and loan
association, savings bank, or credit union.
(g) "Encrypted" means transformation of data through the use
of an algorithmic process into a form in which there is a low
probability of assigning meaning without use of a confidential
process or key, or securing information by another method that
renders the data elements unreadable or unusable.
(h) "False pretenses" <<includes, but is not limited to, a false,
misleading, or fraudulent representation, writing, communication,
statement, or message, communicated by any means to another person, that the maker of the representation, writing, communication, statement, or message knows or should have known is false or fraudulent. The false pretense may be a representation regarding a past or existing fact or circumstance or a representation regarding the intention to perform a future event or to have a future event performed.>>
(i) (h)
"Financial institution"
means a depository
institution, an affiliate of a depository institution, a licensee
under the consumer financial services act, 1988 PA 161, MCL
487.2051 to 487.2072, 1984 PA 379, MCL 493.101 to 493.114, the
motor vehicle sales finance act, 1950 (Ex Sess) PA 27, MCL 492.101
to 492.141, the secondary mortgage loan act, 1981 PA 125, MCL
493.51 to 493.81, the mortgage brokers, lenders, and servicers
licensing act, 1987 PA 173, MCL 445.1651 to 445.1684, or the
regulatory loan act, 1939 PA 21, MCL 493.1 to 493.24, a seller
under the home improvement finance act, 1965 PA 332, MCL 445.1101
to 445.1431, or the retail installment sales act, 1966 PA 224, MCL
445.851 to 445.873, or a person subject to subtitle A of title V of
the Gramm-Leach-Bliley act, 15 USC 6801 to 6809.
(j) (i)
"Financial transaction
device" means that term as
defined in section 157m of the Michigan penal code, 1931 PA 328,
MCL 750.157m.
(k) (j)
"Identity theft" means
engaging in an act or conduct
prohibited in section 5(1).
(l) "Interactive computer service" means an information service
or system that enables computer access by multiple users to a
computer server, including, but not limited to, a service or system
that provides access to the internet or to software services
available on a server.
(m) (k)
"Law enforcement agency"
means that term as defined in
section 2804 of the public health code, 1978 PA 368, MCL 333.2804.
(n) (l) "Local
registrar" means that term as defined in section
2804 of the public health code, 1978 PA 368, MCL 333.2804.
(o) (m)
"Medical records or
information" includes, but is not
limited to, medical and mental health histories, reports,
summaries, diagnoses and prognoses, treatment and medication
information, notes, entries, and x-rays and other imaging records.
(p) (n)
"Person" means an
individual, partnership,
corporation, limited liability company, association, or other legal
entity.
(q) (o)
"Personal identifying
information" means a name,
number, or other information that is used for the purpose of
identifying a specific person or providing access to a person's
financial accounts, including, but not limited to, a person's name,
address, telephone number, driver license or state personal
identification card number, social security number, place of
employment, employee identification number, employer or taxpayer
identification number, government passport number, health insurance
identification number, mother's maiden name, demand deposit account
number, savings account number, financial transaction device
account number or the person's account password, any other account
password in combination with sufficient information to identify and
access the account, automated or electronic signature, biometrics,
stock or other security certificate or account number, credit card
number, vital record, or medical records or information.
(r) (p)
"Personal information"
means the first name or first
initial and last name linked to 1 or more of the following data
elements of a resident of this state:
(i) Social security number.
(ii) Driver license number or state personal identification
card number.
(iii) Demand deposit or other financial account number, or
credit card or debit card number, in combination with any required
security code, access code, or password that would permit access to
any of the resident's financial accounts.
(s) (q)
"Public utility" means
that term as defined in section
1 of 1972 PA 299, MCL 460.111.
(t) (r)
"Redact" means to alter
or truncate data so that no
more than 4 sequential digits of a driver license number, state
personal identification card number, or account number, or no more
than 5 sequential digits of a social security number, are
accessible as part of personal information.
(u) (s)
"State registrar" means
that term as defined in
section 2805 of the public health code, 1978 PA 368, MCL 333.2805.
(v) (t)
"Trade or commerce" means
that term as defined in
section 2 of the Michigan consumer protection act, 1971 PA 331, MCL
445.902.
(w) (u)
"Vital record" means that
term as defined in section
2805 of the public health code, 1978 PA 368, MCL 333.2805.
(x) "Webpage" means a location that has a uniform resource
locator or URL with respect to the world wide web or another
location that can be accessed on the internet.
Sec. 7. A person shall not do any of the following:
(a) Make any electronic mail or other communication under
false pretenses purporting to be by or on behalf of a business,
without the authority or approval of the business, and use that
electronic mail or other communication to induce, request, or
solicit any individual to provide personal identifying information
with the intent to use that information to commit identity theft or
another crime.
(b) Create or operate a webpage that represents itself as
belonging to or being associated with a business, without the
authority or approval of that business, and induces, requests, or
solicits any user of the internet to provide personal identifying
information with the intent to use that information to commit
identity theft or another crime.
(c) Alter a setting on a user's computer or similar device or
software program through which the user may access the internet and
cause any user of the internet to view a communication that
represents itself as belonging to or being associated with a
business, which message has been created or is operated without the
authority or approval of that business, and induces, requests, or
solicits any user of the internet to provide personal identifying
information with the intent to use that information to commit
identity theft or another crime.
(d) (a)
Obtain or possess, or attempt to
obtain or possess,
personal identifying information of another person with the intent
to use that information to commit identity theft or another crime.
(e) (b)
Sell or transfer, or attempt to
sell or transfer,
personal identifying information of another person if the person
knows or has reason to know that the specific intended recipient
will use, attempt to use, or further transfer the information to
another person for the purpose of committing identity theft or
another crime.
(f) (c)
Falsify a police report of identity
theft, or
knowingly create, possess, or use a false police report of identity
theft.
Sec. 7a. (1) A person shall not do any of the following:
(a) Make any electronic mail or other communication under
false pretenses purporting to be by or on behalf of a business,
without the authority or approval of the business, and use that
electronic mail or other communication to induce, request, or
solicit any individual to provide personal identifying information.
(b) Create or operate a webpage that represents itself as
belonging to or being associated with a business, without the
authority or approval of that business, and induces, requests, or
solicits any user of the internet to provide personal identifying
information.
(c) Alter a setting on a user's computer or similar device or
software program through which the user may access the internet and
cause any user of the internet to view a communication that
represents itself as belonging to or being associated with a
business, which message has been created or is operated without the
authority or approval of that business, and induces, requests, or
solicits any user of the internet to provide personal identifying
information.
(2) An interactive computer service provider shall not be held
liable under any provision of the laws of this state for removing
or disabling access to an internet domain name controlled or
operated by the registrar or by the provider, or to content that
resides on an internet website or other online location controlled
or operated by the provider, that the provider believes in good
faith is used to engage in a violation of this act. This act does
not apply to a telecommunications provider's or internet service
provider's good faith transmission or routing of, or intermediate
temporary storing or caching of, personal identifying information.
(3) The attorney general, or an interactive computer service
provider harmed by a violation of subsection (1), may bring a civil
action against a person who has violated that subsection.
(4) Subsection (1) does not apply to the following:
(a) A law enforcement officer while that officer is engaged in
the performance of his or her official duties.
(b) Any other individual authorized to conduct lawful
investigations while that individual is engaged in a lawful
investigation.
(5) A person bringing an action under this section may recover
1 of the following:
(a) Actual damages, including reasonable attorney fees.
(b) In lieu of actual damages, reasonable attorney fees plus
the lesser of the following:
(i) $5,000.00 per violation.
(ii) $250,000.00 for each day that a violation occurs.
(6) If the attorney general has reason to believe that a
person has violated section 7(a), (b), or (c) or this section, the
attorney general may investigate the business transactions of that
person. The attorney general may require that person to appear, at
a reasonable time and place, to give information under oath and to
produce any documents and evidence necessary to determine whether
the person is in compliance with the requirements of that section.
(7) Any damages collected by the attorney general under this
section shall be credited to the attorney general for the costs of
investigating, enforcing, and defending this act.
Sec. 9. (1) Subject to subsection (6) (7), a
person who
violates section 5 or 7 is guilty of a felony
punishable by
imprisonment for not more than 5 years or a fine of not more than
$25,000.00, or both.
(2) Subject to subsection (7), a person who violates section 7
is guilty of a felony punishable by imprisonment for not less than
1 year or more than 10 years or a fine of not less than $5,000.00
or more than $500,000.00, or both.
(3)
(2) Sections 5 and 7 apply whether an individual who is
a
victim or intended victim of a violation of 1 of those sections is
alive or deceased at the time of the violation.
(4)
(3) This section does not prohibit a person from being
charged with, convicted of, or sentenced for any other violation of
law committed by that person using information obtained in
violation of this section or any other violation of law committed
by that person while violating or attempting to violate this
section.
(5)
(4) The court may order that a term of imprisonment
imposed under this section be served consecutively to any term of
imprisonment imposed for a conviction of any other violation of law
committed by that person using the information obtained in
violation of this section or any other violation of law committed
by that person while violating or attempting to violate this
section.
(6)
(5) A person may assert as a defense in a civil action
or
as an affirmative defense in a criminal prosecution for a violation
of section 5 or 7, and has the burden of proof on that defense by a
preponderance of the evidence, that the person lawfully
transferred, obtained, or attempted to obtain personal identifying
information of another person for the purpose of detecting,
preventing, or deterring identity theft or another crime or the
funding of a criminal activity.
(7)
(6) Subsection (1) or (2) does not apply to a
violation of
a statute or rule administered by a regulatory board, commission,
or officer acting under authority of this state or the United
States that confers primary jurisdiction on that regulatory board,
commission, or officer to authorize, prohibit, or regulate the
transactions and conduct of that person, including, but not limited
to, a state or federal statute or rule governing a financial
institution and the insurance code of 1956, 1956 PA 218, MCL
500.100 to 500.8302, if the act is committed by a person subject to
and regulated by that statute or rule, or by another person who has
contracted with that person to use personal identifying
information.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.
