Bill Text: NY A01117 | 2013-2014 | General Assembly | Introduced


Bill Title: Relates to establishing the online consumer protection act; defines terms; provides that an advertising network shall post clear and conspicuous notice on the home page of its own website about its privacy policy and its data collection and use practices related to its advertising delivery activities; makes related provisions.

Spectrum: Partisan Bill (Democrat 42-0)

Status: (Introduced - Dead) 2014-01-08 - referred to consumer affairs and protection [A01117 Detail]

Download: New_York-2013-A01117-Introduced.html
                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         1117
                              2013-2014 Regular Sessions
                                 I N  A S S E M B L Y
                                      (PREFILED)
                                    January 9, 2013
                                      ___________
       Introduced  by  M. of A. KAVANAGH, ORTIZ, WRIGHT, CLARK, PERRY, MILLMAN,
         COLTON, MAISEL,  TITUS,  CAMARA,  GUNTHER,  JACOBS,  LUPARDO,  JAFFEE,
         O'DONNELL,  GABRYSZAK,  ROBINSON, CUSICK, ZEBROWSKI, BENEDETTO, GALEF,
         CAHILL, BROOK-KRASNY, HOOPER, PRETLOW, TITONE, ROSENTHAL, SCARBOROUGH,
         WEPRIN, QUART -- Multi-Sponsored by -- M.  of  A.    ARROYO,  BOYLAND,
         BRENNAN,   DINOWITZ,  GOTTFRIED,  HEASTIE,  HEVESI,  HIKIND,  KELLNER,
         MARKEY, PEOPLES-STOKES, SCHIMEL, SIMOTAS, SWEENEY, WEISENBERG --  read
         once and referred to the Committee on Consumer Affairs and Protection
       AN  ACT  to  amend the general business law, in relation to establishing
         the online consumer protection act
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section  1.  Short  title. This act shall be known and may be cited as
    2  the "online consumer protection act".
    3    S 2. Legislative findings.  The  state  has  the  authority  to  enact
    4  consumer  regulations  to protect the people of the state. Recently, the
    5  state has enacted a series of laws to address problems arising from  the
    6  ubiquity  of  the  internet.  From  protecting consumers from electronic
    7  breaches of security  to  enacting  laws  prohibiting  the  practice  of
    8  "phishing"  --  an electronic form of identify theft -- the state has an
    9  obligation to enact sensible protections for the people.
   10    The internet age has changed, often for the  better,  the  way  people
   11  work,  enjoy  entertainment and interact with one another. However, with
   12  the internet age new problems have arisen that must be addressed,  chief
   13  among them, the loss of personal privacy. Recent examples, including one
   14  where  search  engine results were tracked to an individual, have illus-
   15  trated that a person's privacy can be breached  easily  and  with  grave
   16  consequences.  There  is  a fundamental rift between tracking technology
   17  and consumers' right to control what data  is  collected  and  where  it
   18  goes. Action must be taken in order to prevent more egregious violations
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD02190-01-3
       A. 1117                             2
    1  of   privacy  occurring  including  price  discrimination,  exposure  of
    2  personal information to subpoenas and warrantless government access.
    3    This  act  establishes  provisions  to  allow consumers the ability to
    4  simply opt-out of being monitored on  the  internet.  Such  protections,
    5  akin  to the do not call registry, are a fair, sensible and common sense
    6  way to give consumers a clear choice with respect to being monitored.
    7    S 3. The general business law is amended by adding a new section  390-
    8  bb to read as follows:
    9    S  390-BB.  ONLINE  CONSUMER  PROTECTION.  1. FOR THE PURPOSES OF THIS
   10  SECTION THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   11    (A) THE TERM "ONLINE PREFERENCE MARKETING" SHALL MEAN A TYPE OF ADVER-
   12  TISEMENT DELIVERY AND REPORTING WHEREBY DATA IS COLLECTED  TO  DETERMINE
   13  OR  PREDICT CONSUMER CHARACTERISTICS OR PREFERENCE FOR USE IN ADVERTISE-
   14  MENT DELIVERY ON THE INTERNET.
   15    (B) THE TERM "PERSONALLY IDENTIFIABLE  INFORMATION"  SHALL  MEAN  DATA
   16  THAT,  BY  ITSELF,  CAN BE USED TO IDENTIFY, CONTACT OR LOCATE A PERSON,
   17  INCLUDING NAME, ADDRESS, TELEPHONE NUMBER, SENSITIVE MEDICAL  OR  FINAN-
   18  CIAL DATA, SEXUAL BEHAVIOR, SEXUAL ORIENTATION, OR EMAIL ADDRESS.
   19    (C)  THE  TERM "PUBLISHER" SHALL MEAN ANY COMPANY, INDIVIDUAL OR OTHER
   20  GROUP THAT HAS A WEBSITE, WEBPAGE OR OTHER INTERNET PAGE.
   21    (D) THE TERM "CONSUMER" SHALL MEAN ANY NATURAL PERSON USING OR ACCESS-
   22  ING A WEBSITE, WEBPAGE OR ONLINE SERVICE THAT INCLUDES  THE  DISPLAY  OF
   23  ADVERTISEMENTS.
   24    (E)  THE TERM "ADVERTISING NETWORK" SHALL MEAN ANY COMPANY, INDIVIDUAL
   25  OR OTHER GROUP THAT IS  COLLECTING  ONLINE  CONSUMER  ACTIVITY  FOR  THE
   26  PURPOSES OF AD DELIVERY.
   27    2.  NO PUBLISHER OF A WEBPAGE OR ADVERTISING NETWORK CONTRACTED WITH A
   28  PUBLISHER SHALL COLLECT  PERSONALLY  IDENTIFIABLE  INFORMATION  FOR  THE
   29  PURPOSES  OF  ONLINE  PREFERENCE MARKETING.   THIS SUBDIVISION SHALL NOT
   30  APPLY TO THE COLLECTION OF PERSONALLY IDENTIFIABLE INFORMATION  PROVIDED
   31  TO  A  PUBLISHER  OF  A WEBPAGE OR ADVERTISING NETWORK CONTRACTED WITH A
   32  PUBLISHER BY THE CONSUMER WITH HIS OR HER CONSENT.
   33    3. NO PUBLISHER OF A WEBPAGE OR ADVERTISING NETWORK CONTRACTED WITH  A
   34  PUBLISHER  SHALL  COLLECT  ANY OTHER INFORMATION FROM A CONSUMER THAT IS
   35  NOT DEFINED AS PERSONALLY IDENTIFIABLE INFORMATION PURSUANT TO  SUBDIVI-
   36  SION ONE OF THIS SECTION FOR THE PURPOSES OF ONLINE PREFERENCE MARKETING
   37  UNLESS  THE  CONSUMER  IS  GIVEN AN OPPORTUNITY TO OPT-OUT OF THE USE OF
   38  SUCH INFORMATION FOR ONLINE MARKETING PURPOSES.
   39    4. AN ADVERTISING NETWORK SHALL POST CLEAR AND CONSPICUOUS  NOTICE  ON
   40  THE  HOME  PAGE OF ITS OWN WEBSITE ABOUT ITS PRIVACY POLICY AND ITS DATA
   41  COLLECTION AND USE PRACTICES RELATED TO ITS ADVERTISING DELIVERY  ACTIV-
   42  ITIES.  IF  A  PUBLISHER HAS CONTRACTED WITH AN ADVERTISING NETWORK, THE
   43  PUBLISHER SHALL POST CLEAR AND CONSPICUOUS NOTICE ON  ITS  WEBSITE  THAT
   44  DESCRIBES  THE  COLLECTION  AND  USE  OF  INFORMATION BY THE ADVERTISING
   45  NETWORK. IF THE ADVERTISING NETWORK ENGAGES IN ONLINE PREFERENCE MARKET-
   46  ING, THE PRIVACY POLICIES  OF  BOTH  THE  ADVERTISING  NETWORK  AND  THE
   47  PUBLISHER  SHALL  DESCRIBE  THE  ABILITY TO OPT-OUT OF ONLINE PREFERENCE
   48  MARKETING BY SUCH NETWORK.
   49    5. AN ADVERTISING NETWORK SHALL MAKE REASONABLE EFFORTS TO PROTECT THE
   50  DATA IT COLLECTS OR LOGS AS A RESULT OF AD DELIVERY AND  REPORTING  FROM
   51  LOSS, MISUSE, ALTERATION, DESTRUCTION OR IMPROPER ACCESS.
   52    6.  THE  ATTORNEY  GENERAL  MAY  BRING  AN ACTION AGAINST A PERSON WHO
   53  VIOLATES THE PROVISIONS OF THIS SECTION:
   54    (A) TO ENJOIN FURTHER VIOLATION OF THE PROVISIONS OF THIS SECTION; AND
       A. 1117                             3
    1    (B) TO RECOVER UP TO TWO HUNDRED FIFTY DOLLARS FOR  EACH  INSTANCE  IN
    2  WHICH IDENTIFYING INFORMATION IS COLLECTED FROM A PERSON IN VIOLATION OF
    3  THE PROVISIONS OF SUBDIVISION TWO OR THREE OF THIS SECTION.
    4    IN  AN  ACTION  UNDER  PARAGRAPH  (B) OF THIS SUBDIVISION, A COURT MAY
    5  INCREASE THE DAMAGES UP TO THREE TIMES THE DAMAGES ALLOWED BY SUCH PARA-
    6  GRAPH WHERE THE DEFENDANT HAS BEEN FOUND TO HAVE ENGAGED  IN  A  PATTERN
    7  AND  PRACTICE OF VIOLATING THE PROVISIONS OF SUBDIVISION TWO OR THREE OF
    8  THIS SECTION.
    9    7. NOTHING IN THIS SECTION SHALL IN ANY WAY LIMIT RIGHTS  OR  REMEDIES
   10  WHICH  ARE  OTHERWISE AVAILABLE UNDER LAW TO THE ATTORNEY GENERAL OR ANY
   11  OTHER PERSON AUTHORIZED TO BRING AN ACTION  UNDER  SUBDIVISION  FIVE  OF
   12  THIS SECTION.
   13    S 4. This act shall take effect on the one hundred eightieth day after
   14  it shall have become a law.
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