S T A T E   O F   N E W   Y O R K
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                                  8413

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                             October 9, 2015
                               ___________

Introduced  by  M. of A. ORTIZ, DINOWITZ, HIKIND, GOTTFRIED -- read once
  and referred to the Committee on Consumer Affairs and Protection

AN ACT to amend the general business law, in relation to the  collection
  and  disclosure  of  certain information collected by on-line computer
  services

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The general business law is amended by adding a new section
397-b to read as follows:
  S  397-B.  ON-LINE COMPUTER SERVICES.  1. AS USED IN THIS SECTION, THE
FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
  (A) "ON-LINE COMPUTER SERVICE" MEANS THE OFFERING OF A CAPABILITY  FOR
GENERATING,  ACQUIRING,  STORING,  TRANSFORMING, PROCESSING, RETRIEVING,
UTILIZING OR MAKING AVAILABLE INFORMATION USING COMPUTER-BASED  TELECOM-
MUNICATIONS.  ON-LINE COMPUTER SERVICE SHALL ALSO INCLUDE A SERVICE THAT
PERMITS A SUBSCRIBER TO RETRIEVE STORED INFORMATION FROM OR FILE  INFOR-
MATION   FOR  STORAGE  IN  INFORMATION  STORAGE  FACILITIES,  ELECTRONIC
PUBLISHING OR AN ELECTRONIC MESSAGING SERVICE.
  (B) "PERSONAL INFORMATION" MEANS INFORMATION WHICH IDENTIFIES EITHER A
SPECIFIC FILE OR SERVICE UTILIZED OR FROM AN  ON-LINE  COMPUTER  SERVICE
AND THE SUBSCRIBER AND/OR SUCH SUBSCRIBER'S ON-LINE COMPUTER ADDRESS WHO
OBTAINED  SUCH  FILE  OR SERVICE. PERSONAL INFORMATION SHALL NOT INCLUDE
ANY RECORD OF AGGREGATE DATA WHICH DOES NOT IDENTIFY A FILE  OR  SERVICE
UTILIZED  AND  A  SUBSCRIBER  AND/OR  SUCH SUBSCRIBER'S ON-LINE COMPUTER
ADDRESS.
  (C) "DISCLOSE" OR "DISCLOSURE" MEANS THE SALE, RENTAL OR OTHER DISSEM-
INATION OF PERSONAL INFORMATION.
  (D) "FILE" MEANS A COLLECTION OF RELATED RECORDS TREATED AS A UNIT.
  (E) "RECORDS" MEANS A GROUP OF  DISTINCT  DATA  ITEMS  IN  A  COMPUTER
SYSTEM, MANIPULATED AS A UNIT.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04780-01-5

              

A. 8413                             2

  2.  ANY  PERSON,  FIRM,  PARTNERSHIP  OR CORPORATION WHICH PROVIDES AN
ON-LINE COMPUTER SERVICE MAY NOT DISCLOSE PERSONAL INFORMATION  CONCERN-
ING  A  SUBSCRIBER TO ANY OTHER PERSON, FIRM, PARTNERSHIP OR CORPORATION
UNLESS SUCH SUBSCRIBER:
  (A)  HAS RECEIVED THE NOTICE PROVIDED FOR IN SUBDIVISION THREE OF THIS
SECTION; AND
  (B) HAS CONSENTED TO THE DISCLOSURE.
  3. AT THE TIME OF ENTERING INTO AN AGREEMENT  TO  PROVIDE  AN  ON-LINE
COMPUTER  SERVICE  TO  A  SUBSCRIBER  AND AT SUCH TIME WHEN A SERVICE IS
OBTAINED EACH AND EVERY ON-LINE COMPUTER SERVICE SHALL PROVIDE NOTICE IN
THE FORM OF A SEPARATE STATEMENT TO  THE  SUBSCRIBER  THAT  CLEARLY  AND
CONSPICUOUSLY DISCLOSE THE FOLLOWING TO SUCH SUBSCRIBER:
  (A)  THE  NATURE  OF PERSONAL INFORMATION COLLECTED OR TO BE COLLECTED
WITH RESPECT TO THE SUBSCRIBER AND THE NATURE AND USE OF THE INFORMATION
IF ANY;
  (B) THE NATURE, FREQUENCY AND PURPOSE OF ANY DISCLOSURE WHICH  MAY  BE
MADE  OF  SUCH  INFORMATION, INCLUDING AN IDENTIFICATION OF THE TYPES OF
PERSONS OR PERSON TO WHOM SUCH DISCLOSURE MAY BE MADE;
  (C) THE PERIOD OF TIME THE INFORMATION WILL BE MAINTAINED; AND
  (D) A DESCRIPTION OF THE PROCEDURES BY WHICH THE SUBSCRIBER  MAY  GAIN
ACCESS TO THE INFORMATION.
  SUCH  NOTICES  MAY  BE PROVIDED ELECTRONICALLY BY USING COMPUTER-BASED
TELECOMMUNICATIONS.
  4. UPON REQUEST A SUBSCRIBER SHALL BE PROVIDED ACCESS TO ALL  PERSONAL
INFORMATION  REGARDING  SUCH SUBSCRIBER THAT IS COLLECTED AND MAINTAINED
BY AN ON-LINE COMPUTER SERVICE. SUCH INFORMATION SHALL BE MADE AVAILABLE
AT REASONABLE TIMES AND AT A  CONVENIENT  LOCATION  TO  THE  SUBSCRIBER.
COMPUTER-BASED  TELECOMMUNICATIONS MAY BE THE MEANS BY WHICH SUCH INFOR-
MATION IS PROVIDED TO THE SUBSCRIBER. THE SUBSCRIBER SHALL  BE  PROVIDED
REASONABLE OPPORTUNITY BY THE ON-LINE COMPUTER SERVICE TO CORRECT ERRORS
IN  PERSONAL INFORMATION AND THE ON-LINE COMPUTER SERVICE SHALL PROMPTLY
CORRECT SUCH INFORMATION. IF THE ON-LINE COMPUTER SERVICE IS  UNABLE  TO
RESOLVE  ANY  REMAINING DIFFERENCES, A SUBSCRIBER SHALL ALSO BE PROVIDED
WITH THE OPPORTUNITY TO FILE A STATEMENT OF EXPLANATION  CONCERNING  THE
NATURE OF ANY DISPUTE.
  5. NOTWITHSTANDING SUBDIVISION TWO OF THIS SECTION, AN ON-LINE COMPUT-
ER SERVICE MAY DISCLOSE PERSONAL INFORMATION IF THE DISCLOSURE IS:
  (A)  NECESSARY TO RENDER OR CONDUCT BUSINESS OR PROVIDE SERVICE TO THE
SUBSCRIBER;
  (B) MADE PURSUANT TO A COURT ORDER;
  (C) FOR THE PURPOSE OF EXTENDING CREDIT TO THE  SUBSCRIBER  OR  FOR  A
CHECK  OR  CREDIT  CARD TRANSACTION WHEN IT IS INCIDENTAL TO THE SALE OR
OTHER TRANSFER OF  THE  ACCOUNTS  RECEIVABLE  OF  THE  ON-LINE  COMPUTER
SERVICE; AND
  (D) FOR THE PURPOSE OF VALIDATING A CHECK WRITTEN BY THE SUBSCRIBER.
  6.  NO  ON-LINE  COMPUTER SERVICE SHALL BE DEEMED TO HAVE VIOLATED THE
PROVISIONS OF THIS SECTION, IF SUCH ON-LINE COMPUTER SERVICE SHOWS BY  A
PREPONDERANCE OF THE EVIDENCE THAT THE VIOLATION WAS NOT INTENTIONAL AND
THAT IT RESULTED FROM A BONA FIDE ERROR MADE NOTWITHSTANDING THE MAINTE-
NANCE OF PROCEDURES REASONABLY ADOPTED TO AVOID ANY SUCH ERROR.
  7.  ANY  SUBSCRIBER WHO HAS BEEN INJURED BY REASON OF ANY VIOLATION OF
THIS SECTION MAY BRING AN ACTION IN HIS OR HER OWN NAME TO  ENJOIN  SUCH
UNLAWFUL ACT OR PRACTICE, AN ACTION TO RECOVER HIS ACTUAL DAMAGES OR ONE
HUNDRED  DOLLARS,  WHICHEVER IS GREATER, OR BOTH SUCH ACTIONS. THE COURT
MAY, IN ITS DISCRETION, INCREASE THE AWARD OF DAMAGES TO AN  AMOUNT  NOT
TO  EXCEED THREE TIMES THE ACTUAL DAMAGES UP TO ONE THOUSAND DOLLARS, IF

A. 8413                             3

THE COURT FINDS THE  DEFENDANT  WILLFULLY  OR  KNOWINGLY  VIOLATED  THIS
SECTION.  THE COURT MAY AWARD REASONABLE ATTORNEY'S FEES TO A PREVAILING
PLAINTIFF.
  8. WHENEVER THERE SHALL BE A VIOLATION OF THIS SECTION, AN APPLICATION
MAY  BE  MADE  BY  THE ATTORNEY GENERAL IN THE NAME OF THE PEOPLE OF THE
STATE OF NEW YORK TO A COURT OR JUSTICE HAVING JURISDICTION TO ISSUE  AN
INJUNCTION, AND UPON NOTICE TO THE DEFENDANT OF NOT LESS THAN FIVE DAYS,
TO  ENJOIN  AND  RESTRAIN  THE CONTINUANCE OF SUCH VIOLATIONS; AND IF IT
SHALL APPEAR TO THE SATISFACTION  OF  THE  COURT  OR  JUSTICE  THAT  THE
DEFENDANT  HAS,  IN  FACT,  VIOLATED  THIS SECTION, AN INJUNCTION MAY BE
ISSUED BY SUCH COURT OR JUSTICE, ENJOINING AND RESTRAINING  ANY  FURTHER
VIOLATION,  WITHOUT  REQUIRING  PROOF THAT ANY PERSON HAS, IN FACT, BEEN
INJURED OR DAMAGED THEREBY. IN ANY SUCH PROCEEDING THE  COURT  MAY  MAKE
ALLOWANCES  TO  THE  ATTORNEY  GENERAL  AS  PROVIDED IN PARAGRAPH SIX OF
SUBDIVISION (A) OF SECTION EIGHTY-THREE HUNDRED THREE OF THE CIVIL PRAC-
TICE LAW AND RULES, AND DIRECT RESTITUTION.  WHENEVER  THE  COURT  SHALL
DETERMINE  THAT  A VIOLATION OF THIS SECTION HAS OCCURRED, THE COURT MAY
IMPOSE A CIVIL PENALTY OF NOT MORE THAN ONE THOUSAND  DOLLARS  FOR  EACH
VIOLATION.  IN CONNECTION WITH ANY SUCH PROPOSED APPLICATION, THE ATTOR-
NEY GENERAL IS AUTHORIZED TO TAKE PROOF AND MAKE A DETERMINATION OF  THE
RELEVANT FACTS AND TO ISSUE SUBPOENAS IN ACCORDANCE WITH THE CIVIL PRAC-
TICE LAW AND RULES.
  S 2. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.