NY State Senate Bill 2009-S4346

Senate Bill S4346

2009-2010 Legislative Session

Relates to regulation of unsolicited advertisements and sale, rental or exchange of personal information

download bill text pdf

Archive: Last Bill Status - In Senate Committee Consumer Protection Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to consumer protection
Apr 22, 2009	referred to consumer protection

2009-S4346 (ACTIVE) - Details

Current Committee:: Senate Consumer Protection
Law Section:: General Business Law
Laws Affected:: Add §§394-f & 394-g, Gen Bus L
Versions Introduced in 2011-2012 Legislative Session:: S1958

2009-S4346 (ACTIVE) - Summary

Regulates persons who advertise using unsolicited written communications or telephone conservations to protect personal privacy; requires disclosure of the source of the listing and notice of right not to receive unsolicited telephone calls; requires advertising entities to maintain an exclusion list and authorizes a cause of action to enjoin unwanted solicitation.

2009-S4346 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S4346

 TITLE OF BILL :
An act to amend the general business law, in relation to the
regulation of unsolicited advertisements and the sale, rental or
exchange of personal information


 PURPOSE OR GENERAL IDEA OF BILL :
To protect personal privacy in the wake of the increased demand for
the collection and dissemination of personal information. To reduce
the proliferation of unsolicited advertisements attributable to the
marketing of personal information without the knowledge and consent of
the data subject. The legislation provides a means by which the
privacy of a consumer can be safeguarded if the consumer chooses that
option.

 SUMMARY OF SPECIFIC PROVISIONS :
The bill provides that whenever a person, firm, partnership,
corporation or association purchases or acquires through trade a
listing of persons utilizes in any unsolicited advertisement or
unsolicited telephone advertisement, such entity shall establish an
opt-out system and disclose to the consumer that he/she has the right
to restrict unsolicited advertisements. The entity shall maintain an
exclusion list of advertisement. Disclosure is not required in
instances where such entity has an established business relationship

with the consumer.

Additionally, whenever any person, firm, partnership, corporation, or
association sells, rents, exchanges or releases or is preparing to
sell, rent, release or exchange customer personal information, the
entity must establish a system whereby a client or customer can
opt-out of the practice of having his/her personal information
commercially released. In addition to disclosing to consumers the
practice of commercially trading customer information and the opt-out
option prior to selling, renting or releasing personal identification
information, a clear and conspicuous written notice disclosing this
practice must be given to the consumer or data subject upon initial
contact and on at least an annual basis. Such conspicuous notice may
be inserted in a mailing or billing statement.  Those consumers who
want to restrict the sale or release of their listing or personal
identification information shall be listed on an exclusion list. The
list shall be used only for compliance with the requirements of this
act and not for trade or commercial purposes.

Whenever the court determines that a violation involving disclosure
occurred, the Court shall impose a civil penalty not to exceed two
hundred fifty dollars. When the court determines that a violation
involving the exclusion list has occurred, the court shall impose a
civil penalty of not more than five hundred dollars. A second or
subsequent offense shall be punishable by a civil penalty not to
exceed one

No person, firm, partnership, corporation or association shall be
deemed to have violated the provisions, if such entity shows by a
preponderance of the evidence that the violation was not intentional
and resulted from a bona fide error made notwithstanding the
maintenance of procedures adopted to avoid such error. Any person
injured by reason of any violation may bring an action to recover
actual damages or fifty dollars, whichever is greater.

The court may increase the award to an amount not to exceed three
times the actual damages up to one thousand dollars if the court finds
that the defendant willfully or knowingly violated the provisions.

 EFFECTS OF PRESENT LAW WHICH THIS BILL WOULD ALTER :
The general business law is amended by adding two new sections 394-f
and 394-g.

 JUSTIFICATION :
Advancements in computer science, telecommunication, and data
collection are having revolutionary impacts on our lives. Individuals
are losing control over personal and sensitive information and
lifestyle data.  Privacy is being slowly eroded. Data about almost
every aspect of our lives are being collected, stored, and sold faster
than you can say computer. The new technologies, which came of age in
the 1980's, not only, facilitate increased demands for personal
information but also more intrusive data collection and information
sharing. Now, sophisticated computer-matching projects allow companies
to cross reference and correlate extensive and highly detailed
databanks.

Computer matching or databanking compares information on a database
with that on another often resulting in more detailed databases. By
overlaying the data available through many systems, it's now possible
to create a remarkably detailed picture of anyone. Rarely do they ask
our permission to use that information or sell it to others. We are
not compensated in any way and we are not given any opportunity to
ensure that the data are accurate. Data about almost every aspect of
our lives are being collected, stored and sold. Today, credit bureaus,
credit card companies, banks, publishers, telemarketers, utilities,
non-profits and other businesses compile customer or clientele
information and peddle lists to direct marketers usually without the
knowledge or consent of their constituents. Moreover, list brokers and
other companies purchase information and glean data from various
sources to develop detailed profiles and dossiers for further
commercial exploitation.

Unfortunately, this data gets into the hands of con artists who
perpetrate fraud against the unsuspecting consumer. The customer list
of

 NEW YORKER  magazine, for example, rents for over $26,000 whereas the
list of the  WALL STREET JOURNAL  costs $168,000.  As many as 75% of
nonprofit organizations rent or exchange donor lists without the
consent of the contributors. In other examples, it has been reported
that a national weight loss group sold its membership list to a
company that sells chocolate candy. A nonprofit group fighting Sudden
Death syndrome sold a donor list to a broker who then tried to sell
the list to others marketing the list as a good pool of potential
customers for children's products, even though some lost their babies.
A dating service, which had promised confidentiality to its clients,
sold their names to a company that marketed the list as a group of
singles and as potential buyers of specialized foods. Some businesses
and organizations are concerned about the privacy concerns of
consumers. While Red Cross, Reader's Digest and AT&T refuse to rent
their lists to others, many businesses who trade or offer names for
rent or sale give their customers the option to restrict the sale of
their information (e.g. American Express, Lands End). Since 1980, the
disabled American Veterans has been one of the major non-profits to
include a statement on its solicitations advising donors that it
occasionally rents its mailing list and advising donors to notify them
if they want their names deleted. As a result of database marketing
and computer matching, marketers identify customers for targeting
marketing and other solicitations. Because of waste and inefficiencies
in direct marketing, it would be better for marketers and others to
institute the opt-out process because the marketing lists would
consist of better prospects -- those consumers who chose not to
opt-out. One can argue that bills or other solicitations providing for
an opt-out for consumers enables marketers and businesses to target
hotter prospects, those that really want to receive the solicitations.

The public is making it increasingly clear that they are worried about
the wide distribution of personal information and what, ultimately,
others may do with this information or construe it to mean. Several
studies and surveys have revealed that consumers are very concerned
about this breach of privacy and want to make their own choices in the
marketplace.

In the American Express Study 1988 -- 90% of those surveyed did not
think that companies disclose enough about their list usage practices
and 80% were of the opinion that companies should not give out
personal information to others. In Cambridge Reports--Trend and
Forecasts Technology and Consumers: Jobs, ed, and privacy 1989 survey,
2 out of 3 consumers indicated that personal privacy is important with
many saying that they feared that their privacy is in jeopardy.
One-half of those surveyed believed new laws are needed for the
protection of privacy. In addition, in a recent Harris Poll,
commissioned by Equifax, 79% of those surveyed were concerned about
threats to their privacy. Only 64% had expressed the same fears in a
1978 poll. Most business executives shared this concern -- 70% of bank
and thrift execs, 67% insurance execs, and 66% of the direct
marketers. Of those questioned, 71% stated that consumers have lost
control over how personal info is circulated and used by companies.
More than 69% were opposed to direct marketers being able to buy from
list making companies information about their consumer
characteristics. Moreover, 76% opposed companies being able to
purchase from credit bureaus names and addresses of consumers who meet
certain criteria.

Furthermore, in a recent Time Magazine Poll on Privacy, 76% of the
people were concerned about the amount of computerized information
that business and government collect and store.  In addition, 90% of
the people said companies that collect and sell information should be
prohibited from selling data on household income; 86% on bill-paying
history; 83% medical history; and 68% on product purchases.  Finally,
93% of the people agreed that companies that sell data should be
required by law to ask permission from individuals before making the
information available. This bill also addresses the complaint that
there is too much paper invading the homes of consumers. By estimates,
the average American is on more than 50 mailing lists. Six to 10,000
catalog retailers use mailing lists to send out nearly 11.8 billion
catalogs a year.  Over the course of a lifetime, the average American
will devote 8 entire months to shifting through mail solicitations.
Last year about 41 lbs.  of junk mail have been generated for each
adult American consuming millions of trees each year. Of the pile that
reached mailboxes, an estimated 44% landed in trash cans, unopened and
unread, thereby contributing to our solid waste crisis. Discards
amount to more than 2% of the total clutter in our landfills. Another
related complaint is that checks, credit cards, and other valuables
get lost in the mounds of paper that consumers toss out daily. Because
the volume of unsolicited mail is so great, people are paying less
attention to each commercial piece they receive. Even businesses who
have a relationship with the customer often have to convey a message
several times in order to secure the consumer's attention. Thus
unsolicited requests cause the price of other direct mail services to
increase.  From a data protection viewpoint, these marketing actions
violate the Code of Fair Information Practices, a set of privacy
principles drafted by government representatives and computer and
privacy experts in 1973 to minimize the privacy risks of automated
systems containing personal information. The core principle that any
information obtained for one purpose should not be used for another
purpose without the consent of the person is central to the issue. It
is based on the premise that when someone gives personal information
for a particular purpose -- to obtain a warranty, to reserve expects
that information will not be used for another purpose without consent.
This bill balances the privacy interests of consumers with business
interests.
While the bill does not outlaw the practice or prohibit companies from
collecting and selling records of customer information and
transactions without written consent, the proposal establishes an
opt-out policy which has been adopted by many responsible businesses.
The proposal is consistent with the federal Telephone Consumer
Protection Act of 1991, which was enacted into law to safeguard the
privacy rights of consumers.  Under that law, an opt-out system is
mandated to prevent the marketing of listings of those who object to
receiving unsolicited telephone calls.

 FISCAL IMPLICATIONS :
None.

 EFFECTIVE DATE :
The act shall take effect on the ninetieth day after it shall have
become a law.

2009-S4346 (ACTIVE) - Bill Text download pdf

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

                                  4346

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             April 22, 2009
                               ___________

Introduced  by  Sen.  KRUGER -- read twice and ordered printed, and when
  printed to be committed to the Committee on Consumer Protection

AN ACT to amend the general business law, in relation to the  regulation
  of  unsolicited  advertisements  and  the  sale, rental or exchange of
  personal information

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

  Section  1.  Legislative  findings  and declaration.   The legislature
hereby finds and declares that the use  of  computers,  data  bases  and
information sharing threaten the privacy of our citizens. Personal iden-
tification information is compiled and transferred without the knowledge
and consent of the data subject.  In many situations, personal identifi-
cation  information  is  being  used  for  secondary  purposes, purposes
different from the one for which the information was originally given or
obtained.  Improper collection and dissemination of personal identifica-
tion information not only infringes upon individual privacy but also has
increased the ability of unethical persons to engage in fraud and theft.
In addition, collection and  dissemination  of  personal  identification
information  can  threaten  the security of those who wish to keep their
addresses and other information secret. For these reasons, the  legisla-
ture  proposes  this  statute  to  provide a means by which citizens can
protect their personal identification information.
  S 2. The general business law is amended by adding  two  new  sections
394-f and 394-g to read as follows:
  S  394-F.  UNSOLICITED ADVERTISEMENTS. 1. FOR PURPOSES OF THIS SECTION
THE TERMS:
  (A) "UNSOLICITED ADVERTISEMENT" SHALL MEAN  ANY  WRITTEN  SOLICITATION
FOR  THE  PURCHASE,  LEASE, CONTRACT OR INVESTMENT IN PROPERTY, GOODS OR
SERVICES, INCLUDING THE OFFERING OF A PRIZE IN EXCHANGE FOR  A  PURCHASE
OR  FOR  ATTENDANCE  AT  ANY LOCATION FOR PURPOSES OF A SOLICITATION, OR
CONTRIBUTION TO ANY NATURAL PERSON WITHOUT THAT NATURAL PERSON'S EXPRESS

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06443-01-9

S. 4346                             2

INVITATION OR PERMISSION.  HOWEVER, UNSOLICITED ADVERTISEMENT SHALL  NOT
INCLUDE  COMMUNITY  PUBLICATIONS  WHICH  ARE  DISTRIBUTED TO THE PUBLIC,
WITHOUT CONSIDERATION, FOR PURPOSES OF COMMUNITY INFORMATION AND  COMMU-
NITY  ADVERTISING  WHICH  ARE  EXEMPT FROM SALES AND USE TAX PURSUANT TO
SUBDIVISION (I) OF SECTION ELEVEN HUNDRED FIFTEEN OF THE TAX LAW;
  (B) "UNSOLICITED TELEPHONE ADVERTISEMENT" SHALL MEAN THE INITIATION OF
ANY TELEPHONE CALL OR MESSAGE SOLICITING THE PURCHASE,  LEASE,  CONTRACT
OR  INVESTMENT IN PROPERTY, GOODS OR SERVICES, INCLUDING THE OFFERING OF
A PRIZE IN EXCHANGE FOR A PURCHASE OR FOR ATTENDANCE AT ANY LOCATION FOR
PURPOSES OF A SOLICITATION, OR CONTRIBUTION TO ANY NATURAL PERSON  WITH-
OUT THAT NATURAL PERSON'S EXPRESS INVITATION OR PERMISSION;
  (C)  "CONSUMER"  SHALL  MEAN  A  NATURAL  PERSON  WHO  IS SOLICITED TO
PURCHASE, RENT OR  INVEST  IN  PROPERTY,  GOODS  OR  SERVICES  INCLUDING
RECEIVING A PRIZE IN EXCHANGE FOR A PURCHASE OR ATTENDANCE; AND
  (D) "ESTABLISHED BUSINESS RELATIONSHIP" SHALL MEAN A PRIOR OR EXISTING
RELATIONSHIP  FORMED BY A VOLUNTARY COMMUNICATION BETWEEN A DATA SUBJECT
AND A PERSON, FIRM, PARTNERSHIP, CORPORATION OR ASSOCIATION ON THE BASIS
OF AN APPLICATION, PURCHASE OR TRANSACTION  BY  THE  CONSUMER  REGARDING
PROPERTY,  GOODS  OR SERVICES OFFERED BY SUCH PERSON, FIRM, PARTNERSHIP,
CORPORATION OR ASSOCIATION WITHIN THE PAST YEAR WHICH  RELATIONSHIP  HAS
NOT  BEEN  TERMINATED  BY THE CONSUMER OR THE PERSON, FIRM, PARTNERSHIP,
CORPORATION OR ASSOCIATION.
  2.  WHENEVER A PERSON, FIRM, PARTNERSHIP, CORPORATION  OR  ASSOCIATION
PURCHASES  OR  ACQUIRES THROUGH TRADE A LISTING OF CONSUMERS UTILIZED IN
ANY DIRECT UNSOLICITED ADVERTISEMENT, SUCH  PERSON,  FIRM,  PARTNERSHIP,
CORPORATION  OR ASSOCIATION SHALL PROVIDE WRITTEN NOTICE TO THE CONSUMER
WITHIN THE ADVERTISEMENT OR AFFIXED THERETO  OF  THE  CONSUMER'S  RIGHT,
HEREBY  GRANTED, OF DELETING HIS OR HER NAME AND ADDRESS FROM SUCH MAIL-
ING LIST AND OF HIS OR HER RIGHT NOT TO RECEIVE ANY FURTHER  UNSOLICITED
ADVERTISEMENT.    SUCH  WRITTEN DISCLOSURE SHALL ALSO INDICATE THAT SUCH
CONSUMER MAY AT ANY TIME DELETE HIS OR HER NAME AND  ADDRESS  FROM  SUCH
MAILING  LIST.    SUCH  WRITTEN  DISCLOSURE SHALL BE MADE IN A CLEAR AND
CONSPICUOUS MANNER AND SHALL PROVIDE A REASONABLE METHOD  BY  WHICH  THE
CONSUMER CAN EXERCISE SUCH PREFERENCE.
  3.    WHENEVER A PERSON, FIRM, PARTNERSHIP, CORPORATION OR ASSOCIATION
PURCHASES OR ACQUIRES THROUGH TRADE A LISTING OF CONSUMERS  UTILIZED  IN
ANY UNSOLICITED TELEPHONE ADVERTISEMENT, SUCH PERSON, FIRM, PARTNERSHIP,
CORPORATION  OR  ASSOCIATION  SHALL DISCLOSE TO SUCH CONSUMER THAT HE OR
SHE HAS THE RIGHT, HEREBY GRANTED, OF DELETING HIS OR HER NAME,  ADDRESS
AND  TELEPHONE  NUMBER  FROM SUCH TELEPHONE LIST AND OF HIS OR HER RIGHT
NOT TO RECEIVE ANY FURTHER UNSOLICITED TELEPHONE ADVERTISEMENT.
  SUCH DISCLOSURE SHALL BE MADE AT THE BEGINNING OF THE  TELEPHONE  CALL
AND SHALL BE MADE IN A CLEAR AND CONSPICUOUS MANNER AND SHALL INFORM THE
CONSUMER THAT HE OR SHE CAN REMOVE HIS OR HER NAME, TELEPHONE NUMBER AND
ADDRESS  FROM  THE LIST AT ANY TIME AND SHALL INFORM THE CONSUMER OF THE
REASONABLE MEANS BY WHICH THE CONSUMER CAN EXERCISE SUCH PREFERENCE.
  4. SUCH PERSON, FIRM, PARTNERSHIP, CORPORATION OR ASSOCIATION REFERRED
TO IN SUBDIVISIONS TWO AND THREE OF  THIS  SECTION,  SHALL  MAINTAIN  AN
EXCLUSION  LIST AND SHALL NOT SEND ANY UNSOLICITED ADVERTISEMENT OR MAKE
ANY UNSOLICITED TELEPHONE ADVERTISEMENT TO ANY CONSUMER  ON  SUCH  LIST.
SUCH  PERSON,  FIRM,  PARTNERSHIP,  CORPORATION  OR ASSOCIATION SHALL BE
PROHIBITED FROM USING SUCH LIST FOR ANY PURPOSE  OTHER  THAN  COMPLIANCE
WITH  THE  REQUIREMENTS  OF THIS SECTION AND SUCH PERSON, FIRM, PARTNER-
SHIP, CORPORATION OR ASSOCIATION  SHALL  NOT  SELL,  RENT,  EXCHANGE  OR
OTHERWISE MAKE AVAILABLE SUCH EXCLUSION LIST TO ANY THIRD PARTY.

S. 4346                             3

  5.  NO  PERSON, FIRM, PARTNERSHIP, CORPORATION OR ASSOCIATION SHALL BE
DEEMED TO HAVE VIOLATED THE PROVISIONS OF THIS SECTION, IF SUCH  PERSON,
FIRM,  PARTNERSHIP, CORPORATION OR ASSOCIATION SHOWS, BY A PREPONDERANCE
OF THE EVIDENCE, THAT THE VIOLATION WAS  NOT  INTENTIONAL  AND  RESULTED
FROM  A  BONA  FIDE ERROR MADE NOTWITHSTANDING THE MAINTENANCE OF PROCE-
DURES REASONABLY ADOPTED TO AVOID ANY SUCH ERROR.
  6. DISCLOSURE SHALL NOT BE REQUIRED IN INSTANCES  WHERE  SUCH  PERSON,
FIRM,  PARTNERSHIP,  CORPORATION OR ASSOCIATION HAS AN ESTABLISHED BUSI-
NESS RELATIONSHIP WITH SUCH CONSUMER.
  7. WHENEVER THE COURT SHALL DETERMINE THAT A VIOLATION OF  SUBDIVISION
TWO  OR  THREE  OF  THIS  SECTION HAS OCCURRED, THE COURT SHALL IMPOSE A
CIVIL PENALTY NOT TO EXCEED TWO HUNDRED FIFTY  DOLLARS.    WHENEVER  THE
COURT  SHALL  DETERMINE  THAT  A  VIOLATION  OF SUBDIVISION FOUR OF THIS
SECTION HAS OCCURRED, IF  SUCH  VIOLATION  CONSTITUTES  THE  FIRST  SUCH
OFFENSE  BY  SUCH PERSON, FIRM, PARTNERSHIP, CORPORATION OR ASSOCIATION,
THE COURT SHALL IMPOSE A  CIVIL  PENALTY  NOT  TO  EXCEED  FIVE  HUNDRED
DOLLARS.  A SECOND OFFENSE AND ANY OFFENSE COMMITTED THEREAFTER SHALL BE
PUNISHABLE BY A CIVIL PENALTY NOT TO EXCEED ONE THOUSAND DOLLARS.
  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 BY A SPECIAL
PROCEEDING  TO  ISSUE AN INJUNCTION, AND UPON NOTICE TO THE DEFENDANT OF
NOT LESS THAN FIVE DAYS, TO ENJOIN AND RESTRAIN THE CONTINUANCE OF  SUCH
VIOLATION;  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  THE  COURT  OR  JUSTICE,  ENJOINING AND
RESTRAINING ANY FURTHER VIOLATIONS, 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 PRACTICE LAW AND RULES, AND  DIRECT  RESTITU-
TION.  IN  CONNECTION  WITH  ANY  SUCH PROPOSED APPLICATION THE ATTORNEY
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.
  9.  ANY PERSON 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 UNLAW-
FUL ACT OR PRACTICE, AN ACTION TO RECOVER HIS OR HER ACTUAL  DAMAGES  OR
FIFTY  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
THE COURT FINDS THE  DEFENDANT  WILLFULLY  OR  KNOWINGLY  VIOLATED  THIS
SECTION.  THE COURT MAY AWARD REASONABLE ATTORNEY'S FEES TO A PREVAILING
PLAINTIFF.
  S 394-G. SALE, RENTAL OR EXCHANGE OF PERSONAL IDENTIFICATION  INFORMA-
TION.  1.    FOR  PURPOSES  OF  THIS  SECTION  THE TERM: (A) "COMMERCIAL
PURPOSES" SHALL MEAN THE SOLICITATION FOR THE PURCHASE, LEASE,  CONTRACT
OR  INVESTMENT IN PROPERTY, GOODS OR SERVICES, INCLUDING THE OFFERING OF
A PRIZE IN EXCHANGE FOR A PURCHASE OR FOR ATTENDANCE AT ANY LOCATION FOR
PURPOSES OF A SOLICITATION, THE SOLICITATION FOR A CONTRIBUTION  OR  THE
BUSINESS  OF  COMPILING  PERSONAL  IDENTIFICATION  INFORMATION FOR SALE,
LEASE OR RENT;
  (B) "PERSONAL IDENTIFICATION INFORMATION" SHALL MEAN  ANY  INFORMATION
WHICH  MAY  INCLUDE, BUT MAY NOT BE LIMITED TO, A NATURAL PERSON'S NAME,
ADDRESS, TELEPHONE NUMBER, PURCHASING HISTORY AND  SERVICES  CONTRACTED,
OCCUPATION, AGE AND SEX; AND

S. 4346                             4

  (C)  "DATA  SUBJECT"  SHALL  MEAN A NATURAL PERSON ABOUT WHOM PERSONAL
IDENTIFICATION INFORMATION HAS BEEN COLLECTED.
  2.  EVERY  PERSON,  FIRM,  PARTNERSHIP, CORPORATION OR ASSOCIATION WHO
SELLS, RENTS, EXCHANGES OR RELEASES PERSONAL IDENTIFICATION  INFORMATION
TO  OTHER  PERSONS AND/OR AFFILIATES FOR THEIR COMMERCIAL PURPOSES SHALL
UPON THE INITIAL CONTACT WITH A DATA SUBJECT, IN WRITING DISCLOSE AND AT
LEAST ANNUALLY THEREAFTER IN WRITING DISCLOSE SUCH PRACTICE TO THE  DATA
SUBJECT.  SUCH WRITTEN NOTIFICATION SHALL DISCLOSE CLEARLY AND CONSPICU-
OUSLY THE PRACTICE OF SELLING, RENTING, EXCHANGING OR RELEASING PERSONAL
IDENTIFICATION INFORMATION AND SHALL INFORM  THE  DATA  SUBJECT  OF  THE
OPTION,  HEREBY  GRANTED,  OF  PROHIBITING THE SALE, RENTAL, EXCHANGE OR
RELEASE OF THE PERSONAL IDENTIFICATION INFORMATION OF SUCH DATA  SUBJECT
TO  OTHER  PERSONS AND/OR AFFILIATES FOR THEIR COMMERCIAL PURPOSES. SUCH
NOTICE SHALL ALSO DISCLOSE THE REASONABLE METHOD BY WHICH A DATA SUBJECT
CAN INDICATE SUCH PREFERENCE AND  SHALL  ALSO  INDICATE  THAT  THE  DATA
SUBJECT  CAN  AT  ANY  TIME PROHIBIT THE SELLING, RENTING, EXCHANGING OR
RELEASING OF PERSONAL IDENTIFICATION INFORMATION TO OTHER PERSONS AND/OR
AFFILIATES FOR THEIR COMMERCIAL PURPOSES. SUCH NOTICE MAY BE INSERTED IN
A BILLING STATEMENT OR OTHER MAILING.
  3. EVERY PERSON, FIRM, PARTNERSHIP, CORPORATION OR ASSOCIATION PREPAR-
ING TO SELL, RENT, EXCHANGE OR RELEASE PERSONAL IDENTIFICATION  INFORMA-
TION,  AT LEAST FIFTEEN DAYS PRIOR TO THE COMMENCEMENT OF SELLING, RENT-
ING, EXCHANGING OR  RELEASING  PERSONAL  IDENTIFICATION  INFORMATION  TO
OTHER  PERSONS  AND/OR  AFFILIATES  FOR  THEIR COMMERCIAL PURPOSES SHALL
DISCLOSE IN WRITING SUCH PRACTICE TO THE DATA  SUBJECT.    SUCH  WRITTEN
NOTIFICATION  SHALL  DISCLOSE  CLEARLY AND CONSPICUOUSLY THE PRACTICE OF
SELLING, RENTING, EXCHANGING OR RELEASING PERSONAL IDENTIFICATION INFOR-
MATION AND SHALL INFORM THE DATA SUBJECT OF THE OPTION, HEREBY  GRANTED,
OF  PROHIBITING  THE  SALE,  RENTAL, EXCHANGE OR RELEASE OF THE PERSONAL
IDENTIFICATION INFORMATION OF SUCH DATA SUBJECT TO OTHER PERSONS  AND/OR
AFFILIATES  FOR  THEIR  COMMERCIAL  PURPOSES.  SUCH  NOTICE  SHALL  ALSO
DISCLOSE THE REASONABLE METHOD BY WHICH A DATA SUBJECT CAN INDICATE SUCH
PREFERENCE AND SHALL ALSO INDICATE THAT THE DATA SUBJECT CAN AT ANY TIME
PROHIBIT THE SELLING, RENTING, EXCHANGING OR RELEASING OF PERSONAL IDEN-
TIFICATION INFORMATION TO OTHER  PERSONS  AND/OR  AFFILIATES  FOR  THEIR
COMMERCIAL PURPOSES.  SUCH NOTICE MAY BE INSERTED IN A BILLING STATEMENT
OR  OTHER MAILING.   SUBSEQUENT TO THE COMMENCEMENT OF THE SALE, RENTAL,
EXCHANGE OR RELEASE OF  PERSONAL  IDENTIFICATION  INFORMATION  TO  OTHER
PERSONS  AND/OR  AFFILIATES  FOR THEIR COMMERCIAL PURPOSES, SUCH PERSON,
FIRM, PARTNERSHIP, CORPORATION OR ASSOCIATION SHALL PROVIDE  THE  ANNUAL
NOTIFICATION AS PROVIDED IN SUBDIVISION TWO OF THIS SECTION.
  4.  SUCH  PERSON,  FIRM, PARTNERSHIP, CORPORATION OR ASSOCIATION SHALL
MAINTAIN AN EXCLUSION  LIST  TO  INCLUDE  THE  LISTINGS  OF  THOSE  DATA
SUBJECTS WHO HAVE EXERCISED THE OPTION AS PROVIDED IN THIS SECTION. SUCH
PERSON, FIRM, PARTNERSHIP, CORPORATION OR ASSOCIATION SHALL BE PROHIBIT-
ED  FROM  USING SUCH LIST FOR ANY PURPOSE OTHER THAN COMPLIANCE WITH THE
REQUIREMENTS OF THIS SECTION AND  SHALL  NOT  SELL,  RENT,  EXCHANGE  OR
RELEASE SUCH EXCLUSION LIST TO OTHER PERSONS AND/OR AFFILIATES FOR THEIR
COMMERCIAL PURPOSES.
  5.  NO  PERSON, FIRM, PARTNERSHIP, CORPORATION OR ASSOCIATION SHALL BE
DEEMED TO HAVE VIOLATED THE PROVISIONS OF THIS SECTION, IF SUCH  PERSON,
FIRM,  PARTNERSHIP,  CORPORATION OR ASSOCIATION SHOWS BY A PREPONDERANCE
OF THE EVIDENCE THAT THE VIOLATION WAS NOT INTENTIONAL AND RESULTED FROM
A BONA FIDE ERROR MADE NOTWITHSTANDING  THE  MAINTENANCE  OF  PROCEDURES
REASONABLY ADOPTED TO AVOID ANY SUCH ERROR.

S. 4346                             5

  6.  THE PROVISIONS OF THIS SECTION PROHIBITING THE RELEASE OF INFORMA-
TION SHALL NOT APPLY  TO  THE  REPORTING  OF  NECESSARY  INFORMATION  TO
CONSUMER  REPORTING  AGENCIES,  IN COMPLIANCE WITH THE PROVISIONS OF THE
FEDERAL FAIR CREDIT REPORTING ACT (15 U.S.C. SECTION 1681 ET  SEQ.)  AND
ARTICLE  TWENTY-FIVE  OF THIS CHAPTER KNOWN AS THE FAIR CREDIT REPORTING
ACT AND ANY REGULATIONS PROMULGATED THEREUNDER.
  7. WHENEVER THE COURT SHALL DETERMINE THAT A VIOLATION OF  SUBDIVISION
TWO  OR  THREE  OF  THIS  SECTION HAS OCCURRED, THE COURT SHALL IMPOSE A
CIVIL PENALTY NOT TO EXCEED TWO  HUNDRED  FIFTY  DOLLARS.  WHENEVER  THE
COURT  SHALL  DETERMINE  THAT  A  VIOLATION  OF SUBDIVISION FOUR OF THIS
SECTION HAS OCCURRED, IF  SUCH  VIOLATION  CONSTITUTES  THE  FIRST  SUCH
OFFENSE  BY  SUCH PERSON, FIRM, PARTNERSHIP, CORPORATION OR ASSOCIATION,
THE COURT SHALL IMPOSE A  CIVIL  PENALTY  NOT  TO  EXCEED  FIVE  HUNDRED
DOLLARS.  A SECOND OFFENSE AND ANY OFFENSE COMMITTED THEREAFTER SHALL BE
PUNISHABLE BY A CIVIL PENALTY NOT TO EXCEED ONE THOUSAND DOLLARS.
  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 BY A SPECIAL
PROCEEDING  TO  ISSUE AN INJUNCTION, AND UPON NOTICE TO THE DEFENDANT OF
NOT LESS THAN FIVE DAYS, TO ENJOIN AND RESTRAIN THE CONTINUANCE OF  SUCH
VIOLATION;  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  THE  COURT  OR  JUSTICE,  ENJOINING AND
RESTRAINING ANY FURTHER VIOLATIONS, 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 PRACTICE LAW AND RULES, AND  DIRECT  RESTITU-
TION.  IN  CONNECTION  WITH  ANY  SUCH PROPOSED APPLICATION THE ATTORNEY
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.
  9.  ANY PERSON 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 UNLAW-
FUL ACT OR PRACTICE, AN ACTION TO RECOVER HIS OR HER ACTUAL  DAMAGES  OR
FIFTY  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
THE COURT FINDS THE  DEFENDANT  WILLFULLY  OR  KNOWINGLY  VIOLATED  THIS
SECTION.  THE COURT MAY AWARD REASONABLE ATTORNEY'S FEES TO A PREVAILING
PLAINTIFF.
  S 3. If any provision of this act or the application of such provision
in certain circumstances shall be held  invalid,  the  validity  of  the
remainder of this act and its applicability to other circumstances shall
not be affected.
  S  4.   This act shall take effect on the ninetieth day after it shall
have become a law.

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