S T A T E O F N E W Y O R K
________________________________________________________________________
8213
2013-2014 Regular Sessions
I N A S S E M B L Y
October 24, 2013
___________
Introduced by M. of A. TITONE -- read once and referred to the Committee
on Governmental Operations
AN ACT to amend the state technology law, in relation to privacy rights
for minors in the digital world
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The state technology law is amended by adding a new article
4 to read as follows:
ARTICLE IV
PRIVACY RIGHTS FOR MINORS
SECTION 401. DEFINITIONS.
402. RESTRICTIONS.
403. REMOVAL OF CONTENT.
404. PENALTIES.
S 401. DEFINITIONS. AS USED IN THIS ARTICLE:
1. "MINOR" SHALL MEAN AN INDIVIDUAL UNDER EIGHTEEN YEARS OF AGE.
2. "INTERNET WEBSITE, ONLINE SERVICES, ONLINE APPLICATION OR MOBILE
APPLICATION DIRECTED AT MINORS" SHALL MEAN AN INTERNET WEBSITE, ONLINE
SERVICES, ONLINE APPLICATION, MOBILE APPLICATION, OR ANY PORTION THEREOF
THAT IS CREATED FOR THE PURPOSES OF COMMUNICATING WITH AN AUDIENCE THAT
IS PREDOMINANTLY COMPRISED OF MINORS, AND IS NOT INTENDED FOR A MORE
GENERAL AUDIENCE COMPRISED OF ADULTS. PROVIDED THAT SUCH TERM INCLUDE AN
INTERNET WEBSITE, ONLINE SERVICE, ONLINE APPLICATION, MOBILE APPLICA-
TION, OR ANY PORTION THEREOF WHICH MERELY REFERS OR LINKS TO ANOTHER
INTERNET WEBSITE, ONLINE SERVICE, ONLINE APPLICATION OR MOBILE APPLICA-
TION DIRECTED AT MINORS BY USING INFORMATION LOCATION TOOLS, INCLUDING A
DIRECTORY, INDEX, REFERENCE, POINTER OR HYPERTEXT LINK.
3. "MARKETING OR ADVERTISING" SHALL MEAN, IN EXCHANGE FOR MONETARY
COMPENSATION, THE MAKING OF A COMMUNICATION TO ONE OR MORE INDIVIDUALS,
OR THE ARRANGING FOR DISSEMINATION TO THE PUBLIC OF A COMMUNICATION
ABOUT A PRODUCT OR SERVICE THE PRIMARY PURPOSE OF WHICH IS TO ENCOURAGE
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11842-01-3
A. 8213 2
RECIPIENTS OF SUCH COMMUNICATION TO PURCHASE OR USE THE PRODUCT OR
SERVICE.
4. "OPERATOR" SHALL MEAN ANY PERSON THAT OWNS AN INTERNET WEBSITE,
ONLINE SERVICE, ONLINE APPLICATION OR MOBILE APPLICATION. SUCH TERM
SHALL NOT INCLUDE A THIRD PARTY THAT OPERATES, HOSTS OR MANAGES, BUT
DOES NOT OWN, AN INTERNET WEBSITE, ONLINE SERVICE, ONLINE APPLICATION OR
MOBILE APPLICATION ON THE OWNER'S BEHALF OR PROCESSES INFORMATION ON THE
OWNER'S BEHALF.
5. "POSTED" SHALL MEAN CONTENT OR INFORMATION THAT CAN BE ACCESSED BY
A USER IN ADDITION TO THE MINOR WHO POSTED THE CONTENT OR INFORMATION,
WHETHER THE USER IS A REGISTERED USER OR NOT OF THE INTERNET WEBSITE,
ONLINE SERVICE, ONLINE APPLICATION OR MOBILE APPLICATION WHERE THE
CONTENT OR INFORMATION IS POSTED.
6. "PROHIBITED PRODUCT OR SERVICE" SHALL MEAN:
(A) AN ALCOHOLIC BEVERAGE AS DEFINED IN SUBDIVISION ONE OF SECTION
THREE OF THE ALCOHOLIC BEVERAGE CONTROL LAW;
(B) ANY MACHINE GUN, FIREARM SILENCER, FIREARM, SWITCHBLADE KNIFE,
GRAVITY KNIFE, PILUM BALLISTIC KNIFE, METAL KNUCKLE KNIFE, AUTOMATIC
KNIFE, RIFLE, SHOTGUN, CANE SWORD, ANTIQUE FIREARM, CHUKA STICK, ELEC-
TRONIC DART GUN, KUNG FU STARS, ELECTRONIC STUN GUN, ARMOR PIERCING
AMMUNITION, DISGUISED GUN OR LARGE CAPACITY AMMUNITION FEEDING DEVICE AS
SUCH TERMS ARE DEFINED IN SECTION 265.00 OF THE PENAL LAW;
(C) ANY AMMUNITION;
(D) ANY AEROSOL CONTAINER OF PAINT;
(E) ANY TOBACCO PRODUCT, HERBAL CIGARETTE, SHISHA, ELECTRONIC CIGA-
RETTE, BIDIS OR GUTKA;
(F) ANY DRUG OR CONTROLLED SUBSTANCE AS SUCH TERMS ARE DEFINED IN
SECTION SIXTY-EIGHT HUNDRED TWO OF THE EDUCATION LAW;
(G) ANY AIR-GUN, SPRING-GUN, OR OTHER INSTRUMENT OR WEAPON IN WHICH
THE PROPELLING FORCE IS A SPRING OR AIR;
(H) ANY BILLY, BLACKJACK, BLUDGEON, PLASTIC KNUCKLES, METAL KNUCKLES,
SAND BAG, SAND CLUB, WRIST-BRACE TYPE SLINGSHOT OR SLUGSHOT, SHURIKEN,
DAGGER, DANGEROUS KNIFE, DIRK, RAZOR, STILETTO OR OTHER DANGEROUS OR
DEADLY INSTRUMENT;
(I) ANY FIREWORKS OR DANGEROUS FIREWORKS AS DEFINED IN SUBDIVISION ONE
OF SECTION 270.00 OF THE PENAL LAW;
(J) ANY TANNING SERVICE IN AN ULTRAVIOLET RADIATION DEVICE AS DEFINED
IN SUBDIVISION TWO OF SECTION THIRTY-FIVE HUNDRED FIFTY OF THE PUBLIC
HEALTH LAW;
(K) ANY DIETARY SUPPLEMENT AS DEFINED IN PARAGRAPH (A) OF SUBDIVISION
TWO OF SECTION THREE HUNDRED NINETY-ONE-O OF THE GENERAL BUSINESS LAW;
(L) ANY TICKET OR SHARE IN A LOTTERY GAME OR PARI-MUTUEL WAGER;
(M) ANY TATTOO, BODY PIERCING OR TONGUE SPLITTING SERVICE;
(N) ANY DRUG-RELATED PARAPHERNALIA AS DEFINED IN SUBDIVISION TWO OF
SECTION EIGHT HUNDRED FIFTY OF THE GENERAL BUSINESS LAW; OR
(O) ANY INDECENT MATERIAL AS REFERRED TO IN SECTION 235.22 OF THE
PENAL LAW.
S 402. RESTRICTIONS. 1. NO OPERATOR OF AN INTERNET WEBSITE, ONLINE
SERVICE, ONLINE APPLICATION OR MOBILE APPLICATION DIRECTED AT MINORS
SHALL MARKET OR ADVERTISE A PROHIBITED PRODUCT OR SERVICE ON SUCH
WEBSITE, SERVICE OR APPLICATION.
2. NO OPERATOR SHALL MARKET OR ADVERTISE A PROHIBITED PRODUCT TO A
MINOR, WHO SUCH OPERATOR HAS ACTUAL KNOWLEDGE IS USING THE OPERATOR'S
INTERNET WEBSITE, ONLINE SERVICE, ONLINE APPLICATION OR MOBILE APPLICA-
TION, WHEN THE MARKETING OR ADVERTISING IS SPECIFICALLY DIRECTED AT THE
MINORS BASED UPON INFORMATION SPECIFIC TO SUCH MINOR INCLUDING, BUT NOT
A. 8213 3
LIMITED TO, THE MINOR'S PROFILE, ACTIVITY, ADDRESS OR LOCATION, AND
EXCLUDING INTERNET PROTOCOL ADDRESS AND PRODUCT IDENTIFICATION NUMBERS.
PROVIDED, HOWEVER, THAT ANY OPERATOR WHO TAKES REASONABLE ACTIONS, IN
GOOD FAITH, DESIGNED TO AVOID MARKETING OR ADVERTISING PROHIBITED
PRODUCTS OR SERVICES TO MINORS SHALL NOT BE DEEMED TO HAVE VIOLATED THE
PROVISIONS OF THIS SUBDIVISION.
3. NO OPERATOR OF AN INTERNET WEBSITE, ONLINE SERVICE, ONLINE APPLICA-
TION OR MOBILE APPLICATION DIRECTED AT MINORS, OR WHO HAS ACTUAL KNOW-
LEDGE THAT A MINOR IS USING ITS INTERNET WEBSITE, ONLINE SERVICE, ONLINE
APPLICATION OR MOBILE APPLICATION SHALL KNOWINGLY USE, DISCLOSE,
COMPILE, OR ALLOW A THIRD PARTY TO USE, DISCLOSE OR COMPILE THE PERSONAL
INFORMATION OF A MINOR WITH ACTUAL KNOWLEDGE THAT THE USE, DISCLOSURE OR
COMPILATION OF SUCH INFORMATION IS FOR THE PURPOSE OF MARKETING OR
ADVERTISING OF PROHIBITED PRODUCTS OR SERVICES TO THE MINOR.
4. NO PROVISION OF THIS SECTION SHALL BE DEEMED TO REQUIRE ANY OPERA-
TOR TO COLLECT OR RETAIN AGE INFORMATION ABOUT ITS USERS.
5. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO THE INCIDENTAL
PLACEMENT OF PRODUCTS EMBEDDED IN CONTENT WHEN SUCH CONTENT IS NOT
DISTRIBUTED BY OR AT THE DIRECTION OF THE OPERATOR PRIMARILY FOR THE
PURPOSE OF MARKETING OR ADVERTISING PROHIBITED PRODUCTS OR SERVICES.
S 403. REMOVAL OF CONTENT. 1. EVERY OPERATOR THAT HAS ACTUAL KNOWLEDGE
THAT A MINOR IS USING ITS INTERNET WEBSITE, ONLINE SERVICE, ONLINE
APPLICATION OR MOBILE APPLICATION SHALL:
(A) PERMIT A MINOR WHO IS A REGISTERED USER OF THE INTERNET WEBSITE,
ONLINE SERVICE, ONLINE APPLICATION OR MOBILE APPLICATION TO REMOVE OR,
IF THE OPERATOR PREFERS, TO REQUEST AND OBTAIN REMOVAL OF CONTENT OR
INFORMATION POSTED BY THE USER;
(B) PROVIDE NOTICE TO A MINOR WHO IS A REGISTERED USER OF THE INTERNET
WEBSITE, ONLINE SERVICE, ONLINE APPLICATION OR MOBILE APPLICATION THAT
THE USER MAY REMOVE OR, IF THE OPERATOR PREFERS, REQUEST AND OBTAIN
REMOVAL OF CONTENT OR INFORMATION POSTED BY THE USER;
(C) PROVIDE CLEAR INSTRUCTIONS TO A MINOR WHO IS A REGISTERED USER OF
THE INTERNET WEBSITE, ONLINE SERVICE, ONLINE APPLICATION OR MOBILE
APPLICATION ON HOW A USER MAY REMOVE OR, IF THE OPERATOR PREFERS,
REQUEST AND OBTAIN REMOVAL OF CONTENT OR INFORMATION POSTED BY SUCH
USER; AND
(D) PROVIDE NOTICE TO A MINOR WHO IS A REGISTERED USER OF THE INTERNET
WEBSITE, ONLINE SERVICE, ONLINE APPLICATION OR MOBILE APPLICATION THAT
REMOVAL OF CONTENT OR INFORMATION DOES NOT ENSURE COMPLETE OR COMPREHEN-
SIVE REMOVAL.
2. OPERATORS AND THIRD PARTIES SHALL NOT BE REQUIRED TO ERASE OR
OTHERWISE ELIMINATE, OR ENABLE ERASURE OR ELIMINATION OF CONTENT OR
INFORMATION WHEN:
(A) ANY OTHER PROVISION OF FEDERAL OR STATE LAW REQUIRES THE OPERATOR
OR THIRD PARTY TO MAINTAIN THE CONTENT OR INFORMATION;
(B) THE CONTENT OR INFORMATION WAS STORED OR POSTED ON THE OPERATOR'S
INTERNET, ONLINE SERVICE, ONLINE APPLICATION OR MOBILE APPLICATION BY A
THIRD PARTY OTHER THAN THE MINOR, WHO IS A REGISTERED USER, INCLUDING
ANY CONTENT OR INFORMATION POSTED BY A REGISTERED USER THAT WAS STORED,
REPUBLISHED OR REPOSTED BY THE THIRD PARTY;
(C) THE OPERATOR ANONYMIZES THE CONTENT OR INFORMATION POSTED BY THE
MINOR WHO IS A REGISTERED USER, SO THAT THE MINOR CANNOT BE INDIVIDUALLY
IDENTIFIED;
(D) THE MINOR DOES NOT FOLLOW THE INSTRUCTIONS ESTABLISHED PURSUANT TO
PARAGRAPH (C) OF SUBDIVISION ONE OF THIS SECTION; OR
A. 8213 4
(E) THE MINOR HAS RECEIVED COMPENSATION OR OTHER CONSIDERATION FOR
PROVIDING THE CONTENT.
3. NO PROVISION OF THIS SECTION SHALL BE DEEMED TO LIMIT THE AUTHORITY
OF ANY LAW ENFORCEMENT AGENCY OR COURT TO OBTAIN ANY CONTENT OR INFORMA-
TION FROM AN OPERATOR AS AUTHORIZED BY LAW OR LAWFUL ORDER.
4. NO OPERATOR SHALL BE DEEMED TO HAVE VIOLATED THE PROVISIONS OF THIS
SECTION WHEN:
(A) IT RENDERS CONTENT OR INFORMATION POSTED BY A MINOR TO BE NO LONG-
ER VISIBLE TO OTHER USERS AND THE PUBLIC, EVEN WHEN SUCH CONTENT OR
INFORMATION REMAINS ON THE OPERATOR'S SERVERS IN SOME FORM; OR
(B) DESPITE MAKING AN ORIGINAL POSTING BY A MINOR USER INVISIBLE, SUCH
POSTING REMAINS VISIBLE BECAUSE A THIRD PARTY HAS COPIED THE POSTING OR
REPOSTED SUCH CONTENT OR INFORMATION.
5. NO PROVISION OF THIS SECTION SHALL BE DEEMED TO REQUIRE ANY OPERA-
TOR TO COLLECT OR RETAIN AGE INFORMATION ABOUT ITS USERS.
S 404. PENALTIES. ANY PERSON FOUND TO HAVE VIOLATED THE PROVISIONS OF
THIS ARTICLE SHALL BE GUILTY OF A MISDEMEANOR.
S 2. Severability. If any clause, sentence, paragraph, section or part
of this act shall be adjudged by any court of competent jurisdiction to
be invalid and after exhaustion of all further judicial review, the
judgment shall not affect, impair or invalidate the remainder thereof,
but shall be confined in its operation to the clause, sentence, para-
graph, section or part of this act directly involved in the controversy
in which the judgment shall have been rendered.
S 3. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law.