Bill Text: NY A08149 | 2023-2024 | General Assembly | Amended
Bill Title: Establishes the New York child data protection act to protect minors from having their personal data accessed; provides exceptions in certain circumstances.
Spectrum: Moderate Partisan Bill (Democrat 89-20)
Status: (Introduced) 2024-06-07 - substituted by s7695b [A08149 Detail]
Download: New_York-2023-A08149-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 8149--A 2023-2024 Regular Sessions IN ASSEMBLY October 13, 2023 ___________ Introduced by M. of A. ROZIC, REYES, SHIMSKY, MAGNARELLI, HEVESI, BUTTENSCHON, FAHY, DICKENS, McMAHON, GLICK, DE LOS SANTOS, DURSO, McDONOUGH, GANDOLFO, SIMON, ZACCARO, DeSTEFANO, WALLACE, BERGER, BURDICK, SEAWRIGHT, McDONALD, BEEPHAN, SMULLEN, MANKTELOW, J. A. GIGLIO, SLATER, ARDILA, SILLITTI, DARLING, K. BROWN, EPSTEIN, LEVENBERG, WEPRIN, BICHOTTE HERMELYN, LUPARDO, MIKULIN, PAULIN, SOLAG- ES, SANTABARBARA, L. ROSENTHAL, DAVILA, BURGOS, CHANDLER-WATERMAN, TAYLOR, ZEBROWSKI, JENSEN, KIM, RIVERA, ZINERMAN, MAHER, WALKER, CUNNINGHAM, CONRAD, CLARK, JACKSON, DAIS, RAJKUMAR, FALL, LUNSFORD, FORREST, LEE, GIBBS, ANDERSON, LAVINE, STERN, BRAUNSTEIN, DINOWITZ, JEAN-PIERRE, SEPTIMO, KELLES, CARROLL, MAMDANI, HUNTER, BARRETT, BRON- SON, PHEFFER AMATO, O'DONNELL, COOK, GUNTHER, BURKE, AUBRY, JONES, STIRPE, SAYEGH, RAGA, GALLAHAN, TAPIA, THIELE, GALLAGHER, ALVAREZ, SIMONE, EICHENSTEIN, PRETLOW, MORINELLO, SHRESTHA, EACHUS, MEEKS, JACOBSON, BRABENEC -- Multi-Sponsored by -- M. of A. GONZALEZ-ROJAS, WOERNER -- read once and referred to the Committee on Science and Technology -- recommitted to the Committee on Science and Technology in accordance with Assembly Rule 3, sec. 2 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the general business law, in relation to establishing the New York child data protection act The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The general business law is amended by adding a new article 2 39-FF to read as follows: 3 ARTICLE 39-FF 4 NEW YORK CHILD DATA PROTECTION ACT 5 Section 899-ee. Definitions. 6 899-ff. Privacy protection by default. 7 899-gg. Processors. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD13150-12-4A. 8149--A 2 1 899-hh. Ongoing coverage. 2 899-ii. Respecting user-provided age flags. 3 899-jj. Protections for third-party operators. 4 899-kk. Rulemaking authority. 5 899-ll. Scope. 6 899-mm. Remedies. 7 § 899-ee. Definitions. For purposes of this article, the following 8 terms shall have the following meanings: 9 1. "Covered user" shall mean a user of a website, online service, 10 online application, mobile application, or connected device, or portion 11 thereof, in the state of New York who is: 12 (a) actually known by the operator of such website, online service, 13 online application, mobile application, or connected device to be a 14 minor; or 15 (b) using a website, online service, online application, mobile appli- 16 cation, or connected device primarily directed to minors. 17 2. "Minor" shall mean a natural person under the age of eighteen. 18 3. "Operator" shall mean any person who operates or provides a website 19 on the internet, online service, online application, mobile application, 20 or connected device, and who, alone or jointly with others, controls the 21 purposes and means of processing personal data. A person that acts as 22 both an operator and processor shall comply with the applicable obli- 23 gations of an operator and the obligations of a processor, depending on 24 its role with respect to each specific processing of personal data. 25 4. "Personal data" shall mean any data that identifies or could 26 reasonably be linked, directly or indirectly, with a specific natural 27 person or device. 28 5. "Process" or "processing" shall mean an operation or set of oper- 29 ations performed on personal data, including but not limited to the 30 collection, use, access, sharing, sale, monetization, analysis, 31 retention, creation, generation, derivation, recording, organization, 32 structuring, storage, disclosure, transmission, disposal, licensing, 33 destruction, deletion, modification, or deidentification of personal 34 data. 35 6. "Primarily directed to minors" shall mean a website, online 36 service, online application, mobile application, or connected device, or 37 a portion thereof, that is targeted to minors. A website, online 38 service, online application, mobile application, or connected device, or 39 portion thereof, shall not be deemed directed primarily to minors solely 40 because such website, online service, online application, mobile appli- 41 cation, or connected device, or portion thereof refers or links to any 42 other website, online service, online application, mobile application, 43 or connected device directed to minors by using information location 44 tools, including a directory, index, reference, pointer, or hypertext 45 link. A website, online service, online application, mobile application, 46 or connected device, or portion thereof, shall be deemed directed to 47 minors when it has actual knowledge that it is collecting personal data 48 of users directly from users of another website, online service, online 49 application, mobile application, or connected device primarily directed 50 to minors. 51 7. "Sell" shall mean to share personal data for monetary or other 52 valuable consideration. "Selling" shall not include the sharing of 53 personal data for monetary or other valuable consideration to another 54 person as an asset that is part of a merger, acquisition, bankruptcy, or 55 other transaction in which that person assumes control of all or part of 56 the operator's assets or the sharing of personal data with a processor.A. 8149--A 3 1 8. "Processor" shall mean any person who processes data on behalf of 2 the operator. A person that acts as both an operator and processor shall 3 comply with the applicable obligations of an operator and the obli- 4 gations of a processor, depending on its role with respect to each 5 specific processing of personal data. 6 9. "Third-party operator" shall mean an operator who is not the oper- 7 ator: 8 (a) with whom the user intentionally and directly interacts; or 9 (b) that collects personal data from the direct and current inter- 10 actions with the user. 11 § 899-ff. Privacy protection by default. 1. Except as provided for in 12 subdivision six of this section and section eight hundred ninety-nine-jj 13 of this article, an operator shall not process, or allow a processor to 14 process, the personal data of a covered user collected through the use 15 of a website, online service, online application, mobile application, or 16 connected device, or allow a third-party operator to collect the 17 personal data of a covered user collected through the operator's 18 website, online service, online application, mobile application, or 19 connected device unless and to the extent: 20 (a) the covered user is twelve years of age or younger and processing 21 is permitted under 15 U.S.C. § 6502 and its implementing regulations; or 22 (b) the covered user is thirteen years of age or older and processing 23 is strictly necessary for an activity set forth in subdivision two of 24 this section, or informed consent has been obtained as set forth in 25 subdivision three of this section. 26 2. For the purposes of paragraph (b) of subdivision one of this 27 section, the processing of personal data of a covered user is permissi- 28 ble where it is strictly necessary for the following permissible 29 purposes: 30 (a) providing or maintaining a specific product or service requested 31 by the covered user; 32 (b) conducting the operator's internal business operations. For 33 purposes of this paragraph, such internal business operations shall not 34 include any activities related to marketing, advertising, research and 35 development, providing products or services to third parties, or prompt- 36 ing covered users to use the website, online service, online applica- 37 tion, mobile application, or connected device when it is not in use; 38 (c) identifying and repairing technical errors that impair existing or 39 intended functionality; 40 (d) protecting against malicious, fraudulent, or illegal activity; 41 (e) investigating, establishing, exercising, preparing for, or defend- 42 ing legal claims; 43 (f) complying with federal, state, or local laws, rules, or regu- 44 lations; 45 (g) complying with a civil, criminal, or regulatory inquiry, investi- 46 gation, subpoena, or summons by federal, state, local, or other govern- 47 mental authorities; 48 (h) detecting, responding to, or preventing security incidents or 49 threats; or 50 (i) protecting the vital interests of a natural person. 51 3. (a) For the purposes of paragraph (b) of subdivision one of this 52 section, to process personal data of a covered user where such process- 53 ing is not strictly necessary under subdivision two of this section, 54 informed consent must be obtained from the covered user either through a 55 device communication or signal pursuant to the provisions of subdivisionA. 8149--A 4 1 two of section eight hundred ninety-nine-ii of this article or through a 2 request. Requests for such informed consent shall: 3 (i) be made separately from any other transaction or part of a trans- 4 action; 5 (ii) be made in the absence of any mechanism that has the purpose or 6 substantial effect of obscuring, subverting, or impairing a covered 7 user's decision-making regarding authorization for the processing; 8 (iii) clearly and conspicuously state that the processing for which 9 the consent is requested is not strictly necessary, and that the covered 10 user may decline without preventing continued use of the website, online 11 service, online application, mobile application, or connected device; 12 and 13 (iv) clearly present an option to refuse to provide consent as the 14 most prominent option. 15 (b) Such informed consent, once given, shall be freely revocable at 16 any time, and shall be at least as easy to revoke as it was to provide. 17 (c) If a covered user declines to provide or revokes informed consent 18 for processing, another request may not be made for such processing for 19 the following calendar year, however an operator may make available a 20 mechanism that a covered user can use unprompted and at the user's 21 discretion to provide informed consent. 22 (d) If a covered user's device communicates or signals that the 23 covered user declines to provide informed consent for processing pursu- 24 ant to the provisions of subdivision two of section eight hundred nine- 25 ty-nine-ii of this article, an operator shall not request informed 26 consent for such processing, however an operator may make available a 27 mechanism that a covered user can use unprompted and at the user's 28 discretion to provide informed consent. 29 4. Except where processing is strictly necessary to provide a product, 30 service, or feature, an operator may not withhold, degrade, lower the 31 quality, or increase the price of any product, service, or feature to a 32 covered user due to the operator not obtaining verifiable parental 33 consent under 15 U.S.C. § 6502 and its implementing regulations or 34 informed consent under subdivision three of this section. 35 5. Except as provided for in section eight hundred ninety-nine-jj of 36 this article, an operator shall not purchase or sell, or allow a proces- 37 sor or third-party operator to purchase or sell, the personal data of a 38 covered user. 39 6. Within thirty days of determining or being informed that a user is 40 a covered user, an operator shall: 41 (a) dispose of, destroy, or delete and direct all of its processors to 42 dispose of, destroy, or delete all personal data of such covered user 43 that it maintains, unless processing such personal data is permitted 44 under 15 U.S.C. § 6502 and its implementing regulations, is strictly 45 necessary for an activity listed in subdivision two of this section, or 46 informed consent is obtained as set forth in subdivision three of this 47 section; and 48 (b) notify any third-party operators to whom it knows it disclosed 49 personal data of that covered user, and any third-party operators it 50 knows it allowed to process the personal data that may include the 51 personal data of that user, that the user is a covered user. 52 7. Except as provided for in section eight hundred ninety-nine-jj of 53 this article, prior to disclosing personal data to a third-party opera- 54 tor, or permitting a third-party operator to collect personal data from 55 the operator's website, online service, online application, mobileA. 8149--A 5 1 application, connected device, or portion thereof, the operator shall 2 disclose to the third-party operator: 3 (a) when their website, online service, online application, mobile 4 application, connected device, or portion thereof, is primarily directed 5 to minors; or 6 (b) when the personal data concerns a covered user. 7 § 899-gg. Processors. 1. Except as provided for in section eight 8 hundred ninety-nine-jj of this article, no operator or processor shall 9 disclose the personal data of a covered user to a third party, or allow 10 the processing of the personal data of a covered user by a third party, 11 without a written, binding agreement governing such disclosure or proc- 12 essing. Such agreement shall clearly set forth instructions for the 13 nature and purpose of the processor's processing of the personal data, 14 instructions for using or further disclosing the personal data, and the 15 rights and obligations of both parties. 16 2. Processors shall process the personal data of covered users only 17 when permitted by the terms of the agreement pursuant to subdivision one 18 of this section, unless otherwise required by federal, state, or local 19 laws, rules, or regulations. 20 3. A processor shall, at the direction of the operator, dispose of, 21 destroy, or delete personal data, and notify any other processor to 22 which it disclosed the personal data of the operator's direction, unless 23 retention of the personal data is required by federal, state, or local 24 laws, rules, or regulations. The processor shall provide evidence of 25 such deletion to the operator within thirty days of the deletion 26 request. 27 4. A processor shall delete or return to the operator all personal 28 data of covered users at the end of its provision of services, unless 29 retention of the personal data is required by federal, state, or local 30 laws, rules, or regulations. The processor shall provide evidence of 31 such deletion to the operator within thirty days of the deletion 32 request. 33 5. An agreement pursuant to subdivision one of this section shall 34 require that the processor: 35 (a) process the personal data of covered users only pursuant to the 36 instructions of the operator, unless otherwise required by federal, 37 state, or local laws, rules, or regulations; 38 (b) assist the operator in meeting the operator's obligations under 39 this article. The processor shall, taking into account the nature of 40 processing and the information available to them, assist the operator by 41 taking appropriate technical and organizational measures, to the extent 42 practicable, for the fulfillment of the operator's obligation to delete 43 personal data pursuant to section eight hundred ninety-nine-ff of this 44 article; 45 (c) upon reasonable request of the operator, make available to the 46 operator all information in its possession necessary to demonstrate the 47 processor's compliance with the obligations in this section; 48 (d) allow, and cooperate with, reasonable assessments by the operator 49 or the operator's designated assessor for purposes of evaluating compli- 50 ance with the obligations of this article. Alternatively, the processor 51 may arrange for a qualified and independent assessor to conduct an 52 assessment of the processor's policies and technical and organizational 53 measures in support of the obligations under this article using an 54 appropriate and accepted control standard or framework and assessment 55 procedure for such assessments. The processor shall provide a report of 56 such assessment to the operator upon request; andA. 8149--A 6 1 (e) notify the operator a reasonable time in advance before disclosing 2 or transferring the personal data of covered users to any further 3 processors, which may be in the form of a regularly updated list of 4 further processors that may access personal data of covered users. 5 § 899-hh. Ongoing coverage. 1. Upon learning that a user is no longer 6 a covered user, an operator: 7 (a) shall not process the personal data of the covered user that would 8 otherwise be subject to the provisions of this article until it receives 9 informed consent pursuant to subdivision three of section eight hundred 10 ninety-nine-ff of this article, and 11 (b) shall provide notice to such user that they may no longer be enti- 12 tled to all of the protections and rights provided under this article. 13 2. Upon learning that a user is no longer a covered user, an operator 14 shall provide notice to such user that such user is no longer covered by 15 the protections and rights provided under this article. 16 § 899-ii. Respecting user-provided age flags. 1. For the purposes of 17 this article, an operator shall treat a user as a covered user if the 18 user's device communicates or signals that the user is or shall be 19 treated as a minor, including through a browser plug-in or privacy 20 setting, device setting, or other mechanism that complies with regu- 21 lations promulgated by the attorney general. 22 2. For the purposes of subdivision three of section eight hundred 23 ninety-nine-ff of this article, an operator shall adhere to any clear 24 and unambiguous communications or signals from a covered user's device, 25 including through a browser plug-in or privacy setting, device setting, 26 or other mechanism, concerning processing that the covered user consents 27 to or declines to consent to. An operator shall not adhere to unclear or 28 ambiguous communications or signals from a covered user's device, and 29 shall instead request informed consent pursuant to the provisions of 30 paragraph a of subdivision three of section eight hundred ninety-nine-ff 31 of this article. 32 § 899-jj. Protections for third-party operators. Sections eight 33 hundred ninety-nine-ff and eight hundred ninety-nine-gg of this article 34 shall not apply where a third-party operator is processing the personal 35 data of a covered user of another website, online service, online appli- 36 cation, mobile application, or connected device, or portion thereof, 37 provided that the third-party operator received reasonable written 38 representations that the covered user provided informed consent for such 39 processing, or: 40 1. the operator does not have actual knowledge that the covered user 41 is a minor; and 42 2. the operator does not have actual knowledge that the other website, 43 online service, online application, mobile application, or connected 44 device, or portion thereof, is primarily directed to minors. 45 § 899-kk. Rulemaking authority. The attorney general may promulgate 46 such rules and regulations as are necessary to effectuate and enforce 47 the provisions of this article. 48 § 899-ll. Scope. 1. This article shall apply to conduct that occurs in 49 whole or in part in the state of New York. For purposes of this article, 50 commercial conduct takes place wholly outside of the state of New York 51 if the business collected such information while the covered user was 52 outside of the state of New York, no part of the use of the covered 53 user's personal data occurred in the state of New York, and no personal 54 data collected while the covered user was in the state of New York is 55 used.A. 8149--A 7 1 2. Nothing in this article shall be construed to prohibit an operator 2 from storing a covered user's personal data that was collected pursuant 3 to section eight hundred ninety-nine-ff of this article when such 4 covered user is in the state. 5 3. Nothing in this article shall be construed to impose liability for 6 commercial activities or actions by operators subject to 15 U.S.C. 6501 7 that is inconsistent with the treatment of such activities or actions 8 under 15 U.S.C. 6502. 9 § 899-mm. Remedies. Whenever it appears to the attorney general, 10 either upon complaint or otherwise, that any person, within or outside 11 the state, has engaged in or is about to engage in any of the acts or 12 practices stated to be unlawful in this article, the attorney general 13 may bring an action or special proceeding in the name and on behalf of 14 the people of the state of New York to enjoin any violation of this 15 article, to obtain restitution of any moneys or property obtained 16 directly or indirectly by any such violation, to obtain disgorgement of 17 any profits or gains obtained directly or indirectly by any such 18 violation, including but not limited to the destruction of unlawfully 19 obtained data, to obtain damages caused directly or indirectly by any 20 such violation, to obtain civil penalties of up to five thousand dollars 21 per violation, and to obtain any such other and further relief as the 22 court may deem proper, including preliminary relief. 23 § 2. Severability. If any clause, sentence, paragraph, subdivision, 24 section or part of this act shall be adjudged by any court of competent 25 jurisdiction to be invalid, such judgment shall not affect, impair, or 26 invalidate the remainder thereof, but shall be confined in its operation 27 to the clause, sentence, paragraph, subdivision, section or part thereof 28 directly involved in the controversy in which such judgment shall have 29 been rendered. It is hereby declared to be the intent of the legislature 30 that this act would have been enacted even if such invalid provisions 31 had not been included herein. 32 § 3. This act shall take effect one year after it shall have become a 33 law. Effective immediately, the addition, amendment and/or repeal of any 34 rule or regulation necessary for the implementation of this act on its 35 effective date are authorized to be made and completed on or before such 36 effective date.
