Bill Text: NY S09073 | 2019-2020 | General Assembly | Introduced
Bill Title: 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.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2020-10-28 - REFERRED TO RULES [S09073 Detail]
Download: New_York-2019-S09073-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 9073 IN SENATE October 28, 2020 ___________ Introduced by Sen. COMRIE -- read twice and ordered printed, and when printed to be committed to the Committee on Rules 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 26 obtained, subsequently fails to exercise reasonable care consistent with 27 its obligations as bailee of that individual's name, portrait, picture, 28 video, voice, likeness, and all other personal data, biometric data, and EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD11575-01-9S. 9073 2 1 location data first obtained as above provided may maintain an equitable 2 action in the supreme court of this state against the person, firm or 3 corporation so using his or her name, portrait, picture [or], video, 4 voice, likeness, and all other personal data, biometric data, and 5 location data to prevent and restrain the use thereof; and may also sue 6 and recover damages for any injuries sustained by reason of such use and 7 if the defendant shall have knowingly used such person's name, portrait, 8 picture [or], video, voice, likeness, and all other personal data, biom- 9 etric data, and location data in such manner as is forbidden or declared 10 to be unlawful by section fifty of this article, the jury, in its 11 discretion, may award exemplary damages. But nothing contained in this 12 article shall be so construed as to prevent any person, firm or corpo- 13 ration from selling or otherwise transferring any material containing 14 such name, portrait, picture [or], video, voice, likeness, and all other 15 personal data, biometric data, and location data in whatever medium to 16 any user of such name, portrait, picture [or], video, voice, likeness, 17 and all other personal data, biometric data, and location data or to any 18 third party [for sale] or transfer directly or indirectly to such a 19 user, for use, provided that the transferring party undertakes reason- 20 able steps to ensure that any such use is consistent with the selling or 21 transferring party's obligations as bailee of that individual's name, 22 portrait, picture, video, voice, likeness, and all other personal data, 23 biometric data, and location data and use in a manner lawful under this 24 article; nothing contained in this article shall be so construed as to 25 prevent any person, firm or corporation, practicing the profession of 26 photography, from exhibiting in or about his or its establishment speci- 27 mens of the work of such establishment, unless the same is continued by 28 such person, firm or corporation after written notice objecting thereto 29 has been given by the person portrayed; and nothing contained in this 30 article shall be so construed as to prevent any person, firm or corpo- 31 ration from using the name, portrait, picture [or], video, voice, like- 32 ness, and all other personal data, biometric data, and location data of 33 any manufacturer or dealer in connection with the goods, wares and 34 merchandise manufactured, produced or dealt in by him or her which he or 35 she has sold or disposed of with such name, portrait, picture [or], 36 video, voice, likeness, and all other personal data, biometric data, and 37 location data used in connection therewith; or from using the name, 38 portrait, picture [or], video, voice, likeness, and all other personal 39 data, biometric data, and location data of any author, composer or 40 artist in connection with his or her literary, musical or artistic 41 productions which he or she has sold or disposed of with such name, 42 portrait, picture [or], video, voice, likeness, and all other personal 43 data, biometric data, and location data used in connection therewith. 44 Nothing contained in this section shall be construed to prohibit the 45 copyright owner of a sound recording from disposing of, dealing in, 46 licensing or selling that sound recording to any party, if the right to 47 dispose of, deal in, license or sell such sound recording has been 48 conferred by contract or other written document by such living person or 49 the holder of such right. Nothing contained in the foregoing sentence 50 shall be deemed to abrogate or otherwise limit any rights or remedies 51 otherwise conferred by federal law or state law. 52 § 4. The general business law is amended by adding a new article 32-A 53 to read as follows: 54 ARTICLE 32-A 55 IT'S YOUR DATA ACT 56 Section 676. Definitions.S. 9073 3 1 676-a. Transparency of the collection, use, retention, and shar- 2 ing of personal information. 3 676-b. Fair collection and use of personal information. 4 676-c. Deletion of personal information. 5 676-d. Access to retained personal information. 6 676-e. Access to disclosure of personal information. 7 676-f. Consent to additional collection or sharing of personal 8 information. 9 676-g. No discrimination by a business against a consumer for 10 exercise of rights. 11 676-h. Reasonable security. 12 676-i. Business implementation of duties. 13 676-j. Exceptions. 14 676-k. Consumer's private right of action. 15 676-l. Agency enforcement action. 16 676-m. Construction. 17 676-n. Attorney general regulations. 18 676-o. Intermediate transactions. 19 676-p. Non-waiver. 20 676-q. Severability. 21 § 676. Definitions. 1. For the purposes of this article: 22 (a) "Aggregate consumer information" means information that relates to 23 a group of consumers, from which individual consumer identities have 24 been removed, that is not linked or reasonably linkable to any consumer 25 or household, including via a device. Aggregate consumer information 26 does not mean one or more individual consumer records that have been 27 de-identified. 28 (b) "Biometric information" means an individual's physiological, 29 biological or behavioral characteristics or an electronic representation 30 of such, including an individual's deoxyribonucleic acid (DNA), that can 31 be used, singly or in combination with each other or with other identi- 32 fying data, to establish individual identity. Biometric information 33 includes, but is not limited to, imagery of the iris, retina, finger- 34 print, face, hand, palm, vein patterns, and voice recordings, from which 35 an identifier template, such as a faceprint, a minutiae template, or a 36 voiceprint, can be extracted, and keystroke patterns or rhythms, gait 37 patterns or rhythms, and sleep, health, or exercise data that contain 38 identifying information. 39 (c) "Business" means: 40 (i) A sole proprietorship, partnership, limited liability company, 41 corporation, association, or other legal entity that is organized or 42 operated for the profit or financial benefit of its shareholders or 43 other owners, that collects consumers' personal information, or on the 44 behalf of which such information is collected and that alone, or jointly 45 with others, determines the purposes and means of the processing of 46 consumers' personal information, that does business in the state of New 47 York, and that satisfies one or more of the following thresholds: 48 (1) has annual gross revenues in excess of fifty million dollars, as 49 adjusted pursuant to paragraph (f) of subdivision one of section six 50 hundred seventy-six-n of this article; 51 (2) alone or in combination, annually buys, receives for the business' 52 commercial purposes, sells, or discloses for commercial purposes, alone 53 or in combination, the personal information of fifty thousand or more 54 consumers, households, or devices; or 55 (3) derives fifty percent or more of its annual revenues from selling 56 consumers' personal information; andS. 9073 4 1 (ii) Any entity that controls or is controlled by a business, as 2 defined in subparagraph (i) of this paragraph, and that shares common 3 branding with such business. 4 (d) "Control" or "controlled" means ownership of, or the power to 5 vote, more than fifty percent of the outstanding shares of any class of 6 voting security of a business; control in any manner over the election 7 of a majority of the directors, or of individuals exercising similar 8 functions; or the power to exercise a controlling influence over the 9 management of a business. 10 (e) "Common branding" means a shared name, servicemark, or trademark. 11 (f) "Operational purpose" means the use of personal information when 12 reasonably necessary and proportionate to achieve one of the following 13 operational purposes: 14 (i) auditing related to a current interaction with the consumer and 15 concurrent transactions, including, but not limited to, counting ad 16 impressions to unique visitors, verifying positioning and quality of ad 17 impressions, and auditing compliance with this paragraph and other stan- 18 dards; 19 (ii) detecting and responding to security incidents, protecting 20 against malicious, deceptive, fraudulent, or illegal activity, and pros- 21 ecuting those responsible for that activity; 22 (iii) debugging to identify and repair errors that impair existing 23 intended functionality; 24 (iv) short-term, transient use, provided the personal information is 25 not disclosed to another third party and is not used to build a profile 26 about a consumer or otherwise alter an individual consumer's experience 27 outside the current interaction, including, but not limited to, the 28 contextual customization of ads shown as part of the same interaction; 29 (v) performing or providing services on behalf of the business or 30 service provider, including maintaining or servicing accounts, billing 31 or collecting for requested products or services, providing customer 32 service, processing or fulfilling orders and transactions, verifying 33 customer information, processing payments, providing financing, provid- 34 ing advertising or marketing services, providing analytic services, or 35 providing similar services on behalf of the business or service provid- 36 er; 37 (vi) undertaking internal research for technological development and 38 demonstration; 39 (vii) undertaking activities to verify or maintain the quality or 40 safety of a service or device that is owned, manufactured, manufactured 41 for, or controlled by the business, or to improve, upgrade, or enhance 42 the service or device that is owned, manufactured, manufactured for, or 43 controlled by the business; 44 (viii) customization of content; or 45 (ix) customization of advertising or marketing. 46 (g) "Collects," "collected," or "collection" means buying, renting, 47 gathering, obtaining, receiving, or accessing any personal information 48 pertaining to a consumer by any means. This shall include, but shall not 49 be limited to, receiving information from the consumer, either actively 50 or passively, or by observing the consumer's behavior. 51 (h) "Commercial purposes" means to advance a person's commercial or 52 economic interests, such as by inducing another person to buy, rent, 53 lease, join, subscribe to, provide, or exchange products, goods, proper- 54 ty, information, or services, or enabling or effecting, directly or 55 indirectly, a commercial transaction. Commercial purposes shall not 56 include engaging in speech that state or federal courts have recognizedS. 9073 5 1 as noncommercial speech, including, but not limited to, political speech 2 and journalism. 3 (i) "Consumer" means a natural person who is a resident of the state 4 of New York. 5 (j) "De-identified" means information that cannot reasonably identify, 6 relate to, describe, be capable of being associated with, or be linked, 7 directly or indirectly, to a particular consumer, provided that a busi- 8 ness that uses de-identified information: 9 (i) takes reasonable measures to ensure that the data is de-identi- 10 fied; 11 (ii) publicly commits to maintain and use the data in a de-identified 12 fashion and not to attempt to re-identify the data; and 13 (iii) contractually prohibits downstream recipients from attempting to 14 re-identify the data. 15 (k) "Designated methods for submitting requests" means a mailing 16 address, email address, internet web page, internet web portal, toll- 17 free telephone number, or other applicable contact information, whereby 18 consumers may submit a request under this article, and any new, consum- 19 er-friendly means of contacting a business, as approved by the attorney 20 general pursuant to section six hundred seventy-six-n of this article. 21 (l) "Device" means any physical object that is capable of connecting 22 to the internet, directly or indirectly, or to another device. 23 (m) "Health insurance information" means a consumer's insurance policy 24 number or subscriber identification number, any unique identifier used 25 by a health insurer to identify the consumer, or any information in the 26 consumer's application and claims history, including any appeals 27 records, if the information is linked or reasonably linkable to a 28 consumer or household, including via a device, by a business or service 29 provider. 30 (n) "Infer" or "inference" means the derivation of information, data, 31 assumptions, or conclusions from facts, evidence, or another source of 32 information or data. 33 (o) "Person" means an individual, proprietorship, firm, partnership, 34 joint venture, syndicate, business trust, company, corporation, limited 35 liability company, association, committee, and any other organization or 36 group of persons acting in concert. 37 (p) "Personal information" means information that identifies or could 38 reasonably be linked, directly or indirectly, with a particular consum- 39 er, household, or consumer device. Personal information shall not 40 include publicly available information, information that is de-identi- 41 fied, or aggregate consumer information. 42 (q) "Publicly available" means information that is lawfully made 43 available from federal, state, or local government records. Publicly 44 available does not mean information collected by a business about a 45 consumer without the consumer's knowledge. 46 (r) "Service" or "services" means work, labor, and services, including 47 services furnished in connection with the production, sale or repair of 48 goods. 49 (s) "Service provider" means an individual sole proprietorship, part- 50 nership, limited liability company, corporation, association, or other 51 legal entity that is organized or operated for the profit or financial 52 benefit of its shareholders or other owners, that processes information 53 on behalf of a business and to which such business discloses a consum- 54 er's personal information for an operational purpose pursuant to a writ- 55 ten or electronic contract, provided that the contract prohibits the 56 entity receiving the information from retaining, using, or disclosingS. 9073 6 1 the personal information for any purpose other than for the specific 2 purpose of performing the services specified in the contract for such 3 business, or as otherwise permitted by this article, including a prohi- 4 bition on retaining, using, or disclosing the personal information for a 5 commercial purpose other than providing the services specified in the 6 contract with such business. 7 (t) "Verifiable consumer request" means a request that is made by a 8 consumer, by a consumer on behalf of the consumer's minor child, or by a 9 natural person or a person registered with the secretary of state, 10 authorized by the consumer to act on the consumer's behalf, and that the 11 business can reasonably verify. A business shall not be obligated to 12 provide any personal information to a consumer if such business cannot 13 verify that the consumer making the request is the consumer about whom 14 such business has collected personal information or is a person author- 15 ized by the consumer to act on such consumer's behalf. 16 (u) "Third party" means a person or business that is not any of the 17 following: 18 (i) the business that collects personal information from consumers 19 under this article; or 20 (ii) a person to whom the business discloses a consumer's personal 21 information for an operational purpose pursuant to a written contract, 22 provided that the contract: 23 (1) prohibits the person receiving the personal information from: 24 (A) selling the personal information; 25 (B) retaining, using, or disclosing the personal information for any 26 purpose other than for the specific purpose of performing the services 27 specified in the contract, including retaining, using, or disclosing the 28 personal information for a commercial purpose other than providing the 29 services specified in the contract; and 30 (C) retaining, using, or disclosing the information outside of the 31 direct business relationship between the person and the business; and 32 (2) includes a certification made by the person receiving the personal 33 information that the person understands the restrictions in clause one 34 of this paragraph and will comply with such restrictions. 35 2. For references to a category or categories of personal information 36 required to be disclosed pursuant to this article: 37 (a) "Processing" means any operation or set of operations that are 38 performed on personal data or on sets of personal data, whether or not 39 by automated means. 40 (b) "Research" means scientific and systematic study and observation, 41 including basic research or applied research that is in the public 42 interest and that adheres to all other applicable ethics and privacy 43 laws or studies conducted in the public interest in the area of public 44 health. Research with personal information that may have been collected 45 from a consumer in the course of the consumer's interactions with a 46 business' service or device for other purposes shall be: 47 (i) compatible with an operational purpose for which the personal 48 information was collected; 49 (ii) subsequently de-identified, or in the aggregate, such that the 50 information cannot reasonably identify, relate to, describe, be capable 51 of being associated with, or be linked, directly or indirectly, to a 52 particular consumer; 53 (iii) made subject to technical safeguards to prevent re-identifica- 54 tion of the consumer to whom the information may pertain; 55 (iv) subject to business processes that specifically prohibit re-iden- 56 tification of the information;S. 9073 7 1 (v) made subject to business processes to prevent inadvertent release 2 of de-identified information; 3 (vi) protected from any re-identification attempts; 4 (vii) used solely for research purposes that are compatible with the 5 context in which the personal information was collected; 6 (viii) not be used for any commercial purpose; and 7 (ix) subjected by the business conducting the research to additional 8 security controls that limit access to the research data to only those 9 individuals in a business as are necessary to carry out the research 10 purpose. 11 (c) (i) "Sell," "selling," "sale," or "sold," means selling, renting, 12 releasing, disclosing, disseminating, making available, transferring, or 13 otherwise communicating orally, in writing, or by electronic or other 14 means, a consumer's personal information by the business to another 15 business or a third party for monetary or other valuable consideration. 16 (ii) For purposes of this article, a business does not sell personal 17 information when: 18 (1) a consumer uses or directs the business to intentionally disclose 19 personal information or uses the business to intentionally interact with 20 a third party, provided such third party does not also sell the personal 21 information, unless such disclosure would be consistent with the 22 provisions of this article. An intentional interaction occurs when the 23 consumer intends to interact with the third party, via one or more 24 deliberate interactions. Hovering over, muting, pausing, or closing a 25 given piece of content shall not constitute a consumer's intent to 26 interact with a third party; 27 (2) the business uses or discloses an identifier for a consumer who 28 has opted out of the sale of the consumer's personal information for the 29 purposes of alerting third parties that the consumer has opted out of 30 the sale of the consumer's personal information; 31 (3) the business uses or discloses personal information of a consumer 32 with a service provider that is necessary to perform an operational 33 purpose and the business has provided notice that information being used 34 or disclosed in its terms and conditions consistent with section six 35 hundred seventy-six-i of this article; or 36 (4) the business transfers to a third party the personal information 37 of a consumer as an asset that is part of a merger, acquisition, bank- 38 ruptcy, or other transaction in which the third party assumes control of 39 all or part of the business, provided that information is used or 40 disclosed consistently with this article. A third party may not mate- 41 rially alter how it uses or discloses the personal information of a 42 consumer in a manner that is materially inconsistent with the promises 43 made at the time of collection, unless it first obtains opt-in consent, 44 as set forth in this article. 45 § 676-a. Transparency of the collection, use, retention, and sharing 46 of personal information. Any business that collects a consumer's 47 personal information shall disclose the following information in its 48 online privacy policy or policies, if the business has an online privacy 49 policy, and update such information at least once every twelve months: 50 1. a description of a consumer's rights pursuant to sections six 51 hundred seventy-six-b, six hundred seventy-six-d, six hundred seventy- 52 six-e, six hundred seventy-six-f and six hundred seventy-six-g of this 53 article and one or more designated methods for submitting requests 54 pursuant to sections six hundred seventy-six-c, six hundred 55 seventy-six-d, and six hundred seventy-six-e of this article;S. 9073 8 1 2. a description of the personal information such business collects 2 about consumers; 3 3. the categories of sources from which the personal information is 4 collected; 5 4. a description of the methods such business uses to collect personal 6 information; 7 5. the specific purposes for collecting, disclosing, or retaining 8 personal information; 9 6. a description of the personal information it discloses about 10 consumers, or if the business does not disclose consumers' personal 11 information, the business shall disclose such fact; 12 7. the categories of third parties with whom such business shares 13 personal information with, or if the business does not disclose consum- 14 ers' personal information to third parties, the business shall disclose 15 such fact; 16 8. the categories of service providers with whom such business shares 17 personal information with, or if the business does not disclose consum- 18 ers' personal information to service providers, the business shall 19 disclose such fact; 20 9. a description of the length of time for which personal information 21 is retained; and 22 10. if personal data is de-identified such that it is no longer 23 considered personal information but subsequently retained, used, or 24 shared by the business, a description of the method or methods of de-i- 25 dentification. 26 § 676-b. Fair collection and use of personal information. 1. Subject 27 to section six hundred seventy-six-f of this article a business that 28 collects a consumer's personal information shall limit its collection 29 and sharing of personal information with third parties to what is 30 reasonably necessary to provide a service or conduct an activity that a 31 consumer has requested or is reasonably necessary for security or fraud 32 prevention, and shall require any such third party to exercise care over 33 the consumer's personal information consistent with the original busi- 34 ness's obligations as bailee of such information. 35 2. Subject to section six hundred seventy-six-f of this article, a 36 business that collects a consumer's personal information shall be obli- 37 gated to exercise reasonable care with respect to the collection, stor- 38 age, and use of that information, consistent with its obligations as a 39 bailee, and shall limit its use and retention of personal information to 40 what is reasonably necessary to provide a service or conduct an activity 41 that a consumer has requested or a related operational purpose, provided 42 however that data collected or retained solely for security or fraud 43 prevention may not be used for related operational purposes. 44 § 676-c. Deletion of personal information. 1. A consumer shall have 45 the right to request that a business delete any personal information 46 about such consumer which the business has collected from the consumer. 47 2. A business that collects personal information about consumers shall 48 disclose, pursuant to the notice requirements of section six hundred 49 seventy-six-i of this article, the consumer's rights to request the 50 deletion of the consumer's personal information. 51 3. A business that receives a verifiable consumer request from a 52 consumer to delete the consumer's personal information pursuant to 53 subdivision one of this section shall delete the consumer's personal 54 information from its records and direct any service providers to delete 55 the consumer's personal information from their records.S. 9073 9 1 4. A business or a service provider shall not be required to comply 2 with a consumer's request to delete the consumer's personal information 3 if: 4 (a) such retention of personal information is reasonably anticipated 5 within the context of a business's ongoing business relationship with 6 the consumer; or 7 (b) it is necessary for the business or service provider to maintain 8 the consumer's personal information in order to: 9 (i) complete the transaction for which the personal information was 10 collected, provide a good or service requested by the consumer, or 11 otherwise perform a contract between the business and the consumer; 12 (ii) detect or respond to security incidents, protect against mali- 13 cious, deceptive, fraudulent, or illegal activity, or prosecute those 14 responsible for that activity; 15 (iii) debug to identify and repair errors that impair existing 16 intended functionality; 17 (iv) exercise free speech, ensure the right of another consumer to 18 exercise his or her right of free speech; 19 (v) engage in public or peer-reviewed scientific, historical, or 20 statistical research in the public interest that adheres to all other 21 applicable ethics and privacy laws, when the businesses' deletion of the 22 information is likely to render impossible or seriously impair the 23 achievement of such research, if the consumer has provided informed 24 consent; or 25 (vi) comply with a legal obligation. 26 § 676-d. Access to retained personal information. 1. If a business 27 collects personal information about a consumer, the consumer shall have 28 the right to ask the business for the following information, and the 29 business shall have the duty to provide it, promptly and free of charge, 30 upon receipt of a verifiable request: 31 (a) the specific pieces of personal information that the business 32 retains about that consumer; 33 (b) the specific sources from which the business collected the 34 personal information; and 35 (c) its purpose for collecting the personal information. 36 2. When a business receives a verifiable consumer request from a 37 consumer for the specific pieces of their personal information, such 38 business shall disclose such information in an electronic, portable, 39 machine-readable, and readily-useable format or formats that allow the 40 consumer to understand such information and to transmit such information 41 to another entity without hindrance. 42 § 676-e. Access to disclosure of personal information. If a business 43 discloses personal information about a consumer to a third party, the 44 consumer shall have the right to request the following information from 45 the business, and such business shall have the duty to provide it, 46 promptly and free of charge, upon receipt of a verifiable request: 47 1. the categories of personal information that the business disclosed 48 about the consumer, and the categories of third parties to whom the 49 personal information was disclosed, by category of personal information 50 for each category of third party; and 51 2. the specific third parties to whom the personal information was 52 disclosed. 53 § 676-f. Consent to additional collection or sharing of personal 54 information. 1. Other than as described in section six hundred seventy- 55 six-b of this article, a business shall not collect or share a consum- 56 er's personal information unless the consumer has affirmatively author-S. 9073 10 1 ized the collection or disclosure. This right to collect or share a 2 consumer's personal information may be referred to as the right to 3 "opt-in consent". 4 2. Any personal information of a consumer collected or shared by a 5 business upon the affirmative authorization of the consumer shall remain 6 the property of such consumer, and the business shall be required to 7 exercise reasonable care in the collection and sharing of such data, 8 consistent with its obligations towards the consumer as bailee of his or 9 her personal information. 10 3. A business shall request a user's opt-in consent separately from 11 any other permission or consent, with the option to decline consent at 12 least as prominent as the option to provide consent. 13 4. If a consumer declines to provide their opt-in consent to the 14 disclosure of their personal information, a business shall refrain for 15 at least twelve months before again requesting that the consumer provide 16 their opt-in consent to the disclosure of their personal information. 17 5. A business may make available a setting or other user control that 18 the consumer may affirmatively access in order to consent to additional 19 data collection or sharing. 20 6. A business that obtains a consumer's opt-in consent to collect or 21 disclose their personal information pursuant to this section shall 22 provide consumers the ability to withdraw such consent through a readily 23 usable and automated means at any time. 24 § 676-g. No discrimination by a business against a consumer for exer- 25 cise of rights. A business shall not discriminate against a consumer 26 because the consumer exercised any of the consumer's rights under this 27 article or does not provide consent to additional data collection or 28 sharing under section six hundred seventy-six-f of this article includ- 29 ing, but not limited to, by: 30 1. denying goods or services to the consumer; 31 2. charging different prices or rates for goods or services, including 32 through the use of discounts or other benefits or imposing penalties; 33 3. providing a different level or quality of goods or services to the 34 consumer; or 35 4. suggesting that the consumer will receive a different price or rate 36 for goods or services or a different level or quality of goods or 37 services. 38 § 676-h. Reasonable security. 1. A business or service provider shall 39 implement and maintain reasonable security procedures and practices, 40 including administrative, physical, and technical safeguards, appropri- 41 ate to the nature of the information and the purposes for which the 42 personal information will be used, to protect consumers' personal infor- 43 mation from unauthorized use, disclosure, access, destruction, or 44 modification. 45 2. A business or service provider may employ any lawful security meas- 46 ures that allow it to comply with the requirements set forth in this 47 section. 48 § 676-i. Business implementation of duties. 1. A business shall: 49 (a) make available to consumers two or more designated methods for 50 submitting requests pursuant to sections six hundred seventy-six-c, six 51 hundred seventy-six-d, and six hundred seventy-six-e of this article, 52 including, at a minimum, a telephone number, and, if the business main- 53 tains an internet web site, a web site address; 54 (b) disclose and deliver the required information to a consumer free 55 of charge within forty-five days of receiving a verifiable consumer 56 request. A business shall take steps to determine whether the request isS. 9073 11 1 a verifiable consumer request from the identified consumer. The time 2 period may be extended once by forty-five days when reasonably neces- 3 sary, provided the consumer is provided notice of the extension within 4 the first forty-five day period. The disclosure shall cover the twelve 5 month period preceding the request. It shall be delivered through the 6 consumer's account with the business, if the consumer maintains an 7 account with the business, or by mail or electronically at the consum- 8 er's option, if the consumer does not maintain an account with the busi- 9 ness. The business shall not require the consumer to create an account 10 with the business in order to make a verifiable request; 11 (c) ensure that all individuals responsible for handling consumer 12 inquiries about the business's privacy practices or the business's 13 compliance with this article are informed of all requirements in this 14 article, and how to direct consumers to exercise their rights in this 15 article; and 16 (d) limit the use of any personal information collected from the 17 consumer in connection with a business's verification of the consumer's 18 request solely for the purposes of verification. 19 2. A business shall not be obligated to provide the information 20 required by sections six hundred seventy-six-d and six hundred seventy- 21 six-e of this article to the same consumer more than twice in a twelve 22 month period. 23 § 676-j. Exceptions. 1. The obligations imposed on businesses by this 24 article shall not restrict a business's or service provider's ability 25 to: 26 (a) comply with federal, state, or local laws; 27 (b) comply with a civil, criminal, or regulatory inquiry, investi- 28 gation, subpoena, or summons by federal, state, or local authorities; 29 (c) cooperate with law enforcement agencies concerning conduct or 30 activity that the business, service provider, or third party reasonably 31 and in good faith believes may violate federal, state, or local law; 32 (d) exercise or defend legal claims; 33 (e) collect, use, retain, sell, or disclose consumer information that 34 is de-identified or in the aggregate; or 35 (f) collect or sell a consumer's personal information if every aspect 36 of that commercial conduct takes place wholly outside of the state. For 37 purposes of this section, commercial conduct takes place wholly outside 38 of the state if the business collected information while the consumer 39 was outside of the state, no part of the sale of the consumer's personal 40 information occurred in the state, and no personal information collected 41 while the consumer was in the state is sold. This paragraph shall not 42 permit a business from storing, including on a device, personal informa- 43 tion about a consumer when such consumer is in the state and then 44 collecting such personal information when such consumer and stored 45 personal information is outside of the state. 46 2. Nothing in this article shall require a business to violate an 47 evidentiary privilege under state or federal law or prevent a business 48 from providing the personal information of a consumer who is covered by 49 an evidentiary privilege under state or federal law as part of a privi- 50 leged communication. 51 3. This article shall not apply to any of the following: 52 (a) medical information governed by part 2.6 of the Confidentiality of 53 Medical Information Act or protected health information that is 54 collected by a covered entity or business associate governed by the 55 privacy, security, and breach notification rules issued or established 56 by the United States department of health and human services, 45 C.F.R.S. 9073 12 1 parts 160 and 164, the Health Insurance Portability and Accountability 2 Act of 1996, or the Health Information Technology for Economic and Clin- 3 ical Health Act; 4 (b) a provider of health care governed by part 2.6 of the Confiden- 5 tiality of Medical Information Act or a covered entity governed by the 6 privacy, security, and breach notification rules issued or established 7 by the United States department of health and human services, 45 C.F.R. 8 parts 160 and 164, or the Health Insurance Portability and Accountabil- 9 ity Act of 1996, to the extent the provider or covered entity maintains 10 patient information in the same manner as medical information or 11 protected health information as described in paragraph (a) of this 12 subdivision; 13 (c) information collected as part of a clinical trial subject to the 14 Federal Policy for the Protection of Human Subjects, also known as the 15 "Common Rule", pursuant to good clinical practice guidelines issued by 16 the International Council for Harmonization or pursuant to human subject 17 protection requirements of the United States Food and Drug Adminis- 18 tration; 19 (d) the sale of personal information to or from a consumer reporting 20 agency if such information is to be reported in, or used to generate, a 21 consumer report as defined in section three hundred eighty-a of this 22 chapter and use of that information is limited by the federal Fair Cred- 23 it Reporting Act, 15 USC 1681; 24 (e) personal information collected, processed, sold, or disclosed 25 pursuant to the federal Gramm-Leach-Bliley Act or any financial privacy 26 laws or regulations of the state of New York, and implementing regu- 27 lations, if it is in conflict with such law; or 28 (f) personal information collected, processed, sold, or disclosed 29 pursuant to the Driver's Privacy Protection Act of 1994, if it is in 30 conflict with such act. 31 4. Notwithstanding a business' obligations to respond to and honor 32 consumer rights requests pursuant to sections six hundred seventy-six-c, 33 six hundred seventy-six-d, and six hundred seventy-six-e of this arti- 34 cle: 35 (a) the time period for a business to respond to any verified consumer 36 request may be extended by up to ninety additional days where necessary, 37 taking into account the complexity and number of the requests. A busi- 38 ness shall inform the consumer of any such extension within forty-five 39 days of receipt of the request, together with the reasons for the delay; 40 (b) if a business does not take action on the request of the consumer, 41 such business shall inform the consumer, without delay and at the latest 42 within the time period permitted of response by this section, of the 43 reasons for not taking action and any rights the consumer may have to 44 appeal the decision to the business; and 45 (c) if requests from a consumer are manifestly unfounded or excessive, 46 in particular because of their repetitive character, a business may 47 either charge a reasonable fee, taking into account the administrative 48 costs of providing the information or communication or taking the action 49 requested, or refuse to act on the request and notify the consumer of 50 the reason for refusing the request. Such business shall bear the burden 51 of demonstrating that any verified consumer request is manifestly 52 unfounded or excessive. 53 5. A business that discloses personal information to a service provid- 54 er shall not be liable under this article if the service provider 55 receiving the personal information uses it in violation of the 56 restrictions set forth in this article, provided that, at the time ofS. 9073 13 1 disclosing the personal information, such business does not have actual 2 knowledge, or reason to believe, that the service provider intends to 3 commit such a violation. A service provider shall not be liable under 4 this article for the obligations of a business for which it provides 5 services as set forth in this article. 6 6. This article shall not be construed to: (a) require a business to 7 collect or retain personal information about a consumer longer than it 8 would be retained such information in the ordinary course of business; 9 or 10 (b) require a business to re-identify or otherwise link information 11 that is not maintained in a manner that would be considered personal 12 information. 13 7. The rights afforded to consumers and the obligations imposed on a 14 business pursuant to this article shall not adversely affect the rights 15 and freedoms of other consumers. 16 8. The rights afforded to consumers and the obligations imposed on any 17 business pursuant to this article shall not apply to the extent that 18 they infringe on the noncommercial activities of a publisher, editor, 19 reporter, or other person connected with or employed upon a newspaper, 20 magazine, or other periodical publication, or by a press association or 21 wire service. 22 § 676-k. Consumer's private right of action. 1. A consumer who has 23 suffered a violation of this article may bring a lawsuit against the 24 business that committed such violation. A violation of this article 25 shall be deemed to constitute an injury in fact to the consumer who has 26 suffered such violation, and the consumer need not suffer monetary or 27 property loss as a result of such violation in order to bring an action 28 for a violation of this article. 29 2. A consumer who prevails in such an action shall obtain the follow- 30 ing remedies: 31 (a) damages in an amount not to exceed seven hundred fifty dollars per 32 consumer per violation or actual damages, whichever is greater; 33 (b) injunctive or declaratory relief, as the court deems proper; 34 (c) reasonable attorney fees and costs; and 35 (d) any other relief the court deems proper. 36 3. In assessing the amount of statutory damages, the court shall 37 consider any one or more of the relevant circumstances presented by any 38 of the parties to the case, including, but not limited to, the nature 39 and seriousness of the misconduct, the number of violations, the 40 persistence of the misconduct, the length of time over which the miscon- 41 duct occurred, the willfulness of the defendant's misconduct, and the 42 defendant's assets, liabilities, and net worth. 43 4. A consumer bringing an action pursuant to this section shall notify 44 the attorney general within thirty days of the filing of such action. 45 § 676-l. Agency enforcement action. 1. The attorney general, county 46 district attorney, or city corporation counsel having proper jurisdic- 47 tion may bring a civil action in the name of the people of the state of 48 New York against any person, business, or service provider who violates 49 any provision of this article. 50 2. Any person, business, or service provider who violates the 51 provisions of this article may be liable for a civil penalty of up to 52 seven thousand five hundred dollars for each intentional violation and 53 of up to two thousand five hundred dollars for each unintentional 54 violation. 55 § 676-m. Construction. This article is intended to further the consti- 56 tutional right of privacy and to supplement existing laws relating toS. 9073 14 1 consumers' personal information. The provisions of this article are not 2 limited to information collected electronically or over the internet, 3 but shall apply to the collection and sale of all personal information 4 collected by a business from consumers. Wherever possible, law relating 5 to consumers' personal information should be construed to harmonize with 6 the provisions of this article, but in the event of a conflict between 7 other laws and the provisions of this article, the provisions of the law 8 that afford the greatest protection for the right of privacy for consum- 9 ers shall control. 10 § 676-n. Attorney general regulations. 1. Within one year of the 11 effective date of this article, the attorney general shall adopt regu- 12 lations to further the purposes of this article, including, but not 13 limited to: 14 (a) detailing as needed the types of information that are personal 15 information in technology, data collection practices, obstacles to 16 implementation, and privacy concerns; 17 (b) establishing any exceptions necessary to comply with state or 18 federal law, including, but not limited to, those relating to trade 19 secrets and intellectual property rights; 20 (c) facilitating and governing the submission of a request by a 21 consumer to opt out of the sale of personal information pursuant to 22 section six hundred seventy-six-f of this article; 23 (d) governing business compliance with a consumer's opt-out request; 24 (e) developing a recognizable and uniform opt-out logo or button by 25 all businesses to promote consumer awareness of the opportunity to opt- 26 out of the sale of personal information; 27 (f) adjusting the monetary threshold in clause one of subparagraph (i) 28 of paragraph (c) of subdivision one of section six hundred seventy-six 29 of this article in January of every odd-numbered year to reflect any 30 increase in the consumer price index; 31 (g) establishing rules, procedures, and any exceptions necessary to 32 ensure that the notices and information that businesses are required to 33 provide pursuant to this article are provided in a manner that may be 34 easily understood by the average consumer, are accessible to consumers 35 with disabilities, and are available in the language primarily used to 36 interact with the consumer, including establishing rules and guidelines 37 regarding financial incentive offerings; and 38 (h) establishing rules and procedures to further the purposes of 39 sections six hundred seventy-six-d and six hundred seventy-six-e of this 40 article and to facilitate a consumer's or the consumer's authorized 41 agent's ability to obtain information pursuant to section six hundred 42 seventy-six-i of this article, with the goal of minimizing the adminis- 43 trative burden on consumers, taking into account available technology, 44 security concerns, and the burden on the business, to govern a business' 45 determination that a request for information received by a consumer is a 46 verifiable consumer request, including treating a request submitted 47 through a password-protected account maintained by the consumer with the 48 business while the consumer is logged into the account as a verifiable 49 consumer request and providing a mechanism for a consumer who does not 50 maintain an account with the business to request information through the 51 business' authentication of the consumer's identity. 52 2. The attorney general may update the foregoing regulations, and 53 adopt additional regulations, as necessary to further the purposes of 54 this article. 55 3. Before adopting any regulations, the attorney general shall solicit 56 broad public participation concerning those regulations.S. 9073 15 1 § 676-o. Intermediate transactions. If a series of steps or trans- 2 actions were component parts of a single transaction intended from the 3 beginning to be taken with the intention of avoiding the reach of this 4 article, a court shall disregard the intermediate steps or transactions 5 for purposes of effectuating the purposes of this article. 6 § 676-p. Non-waiver. Any provision of a contract or agreement of any 7 kind that purports to waive or limit in any way a consumer's rights 8 under this article, including, but not limited to, any right to a remedy 9 or means of enforcement, shall be deemed contrary to public policy and 10 shall be void and unenforceable. This section shall not prevent a 11 consumer from declining to request information from a business, declin- 12 ing to opt out of a business' sale of the consumer's personal informa- 13 tion, or authorizing a business to sell the consumer's personal informa- 14 tion after previously opting out. 15 § 676-q. Severability. If any provision of this article or the appli- 16 cation thereof to any person, business, service provider, or circum- 17 stances is held invalid, such invalidity shall not affect other 18 provisions or applications of this article which can be given effect 19 without the invalid provision or application, and to this end the 20 provisions of this article are declared to be severable. 21 § 5. This act shall take effect one year after it shall have become a 22 law.