S T A T E   O F   N E W   Y O R K
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                                  4809

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            February 8, 2011
                               ___________

Introduced  by M. of A. KAVANAGH, ORTIZ, WRIGHT, CLARK, LANCMAN, SCHROE-
  DER, PERRY, MILLMAN, COLTON, MAISEL, TITUS, CAMARA,  GUNTHER,  JACOBS,
  LUPARDO,  JAFFEE,  O'DONNELL,  GABRYSZAK, ROBINSON, CUSICK, ZEBROWSKI,
  BENEDETTO,  GALEF,  CAHILL,  BROOK-KRASNY,  HOOPER,  PRETLOW,  REILLY,
  TITONE,  ROSENTHAL,  SPANO -- Multi-Sponsored by -- M.  of A. BOYLAND,
  BRENNAN, DESTITO, DINOWITZ, GOTTFRIED, HEASTIE, HEVESI, HIKIND,  KELL-
  NER,  LATIMER,  MARKEY,  MAYERSOHN,  McENENY, PEOPLES-STOKES, PHEFFER,
  SCHIMEL, SWEENEY, WEISENBERG -- read once and referred to the  Commit-
  tee on Consumer Affairs and Protection

AN  ACT  to  amend the general business law, in relation to establishing
  the online consumer protection act

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

  Section  1.  Short  title. This act shall be known and may be cited as
the "online consumer protection act".
  S 2. Legislative findings.  The  state  has  the  authority  to  enact
consumer  regulations  to protect the people of the state. Recently, the
state has enacted a series of laws to address problems arising from  the
ubiquity  of  the  internet.  From  protecting consumers from electronic
breaches of security  to  enacting  laws  prohibiting  the  practice  of
"phishing"  --  an electronic form of identify theft -- the state has an
obligation to enact sensible protections for the people.
  The internet age has changed, often for the  better,  the  way  people
work,  enjoy  entertainment and interact with one another. However, with
the internet age new problems have arisen that must be addressed,  chief
among them, the loss of personal privacy. Recent examples, including one
where  search  engine results were tracked to an individual, have illus-
trated that a person's privacy can be breached  easily  and  with  grave
consequences.  There  is  a fundamental rift between tracking technology
and consumers' right to control what data  is  collected  and  where  it
goes. Action must be taken in order to prevent more egregious violations

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04148-01-1
              

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of   privacy  occurring  including  price  discrimination,  exposure  of
personal information to subpoenas and warrantless government access.
  This  act  establishes  provisions  to  allow consumers the ability to
simply opt-out of being monitored on  the  internet.  Such  protections,
akin  to the do not call registry, are a fair, sensible and common sense
way to give consumers a clear choice with respect to being monitored.
  S 3. The general business law is amended by adding a new section  390-
bb to read as follows:
  S  390-BB.  ONLINE  CONSUMER  PROTECTION.  1. FOR THE PURPOSES OF THIS
SECTION THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
  (A) THE TERM "ONLINE PREFERENCE MARKETING" SHALL MEAN A TYPE OF ADVER-
TISEMENT DELIVERY AND REPORTING WHEREBY DATA IS COLLECTED  TO  DETERMINE
OR  PREDICT CONSUMER CHARACTERISTICS OR PREFERENCE FOR USE IN ADVERTISE-
MENT DELIVERY ON THE INTERNET.
  (B) THE TERM "PERSONALLY IDENTIFIABLE  INFORMATION"  SHALL  MEAN  DATA
THAT,  BY  ITSELF,  CAN BE USED TO IDENTIFY, CONTACT OR LOCATE A PERSON,
INCLUDING NAME, ADDRESS, TELEPHONE NUMBER, SENSITIVE MEDICAL  OR  FINAN-
CIAL DATA, SEXUAL BEHAVIOR, SEXUAL ORIENTATION, OR EMAIL ADDRESS.
  (C)  THE  TERM "PUBLISHER" SHALL MEAN ANY COMPANY, INDIVIDUAL OR OTHER
GROUP THAT HAS A WEBSITE, WEBPAGE OR OTHER INTERNET PAGE.
  (D) THE TERM "CONSUMER" SHALL MEAN ANY NATURAL PERSON USING OR ACCESS-
ING A WEBSITE, WEBPAGE OR ONLINE SERVICE THAT INCLUDES  THE  DISPLAY  OF
ADVERTISEMENTS.
  (E)  THE TERM "ADVERTISING NETWORK" SHALL MEAN ANY COMPANY, INDIVIDUAL
OR OTHER GROUP THAT IS  COLLECTING  ONLINE  CONSUMER  ACTIVITY  FOR  THE
PURPOSES OF AD DELIVERY.
  2.  NO PUBLISHER OF A WEBPAGE OR ADVERTISING NETWORK CONTRACTED WITH A
PUBLISHER SHALL COLLECT  PERSONALLY  IDENTIFIABLE  INFORMATION  FOR  THE
PURPOSES  OF  ONLINE  PREFERENCE MARKETING.   THIS SUBDIVISION SHALL NOT
APPLY TO THE COLLECTION OF PERSONALLY IDENTIFIABLE INFORMATION  PROVIDED
TO  A  PUBLISHER  OF  A WEBPAGE OR ADVERTISING NETWORK CONTRACTED WITH A
PUBLISHER BY THE CONSUMER WITH HIS OR HER CONSENT.
  3. NO PUBLISHER OF A WEBPAGE OR ADVERTISING NETWORK CONTRACTED WITH  A
PUBLISHER  SHALL  COLLECT  ANY OTHER INFORMATION FROM A CONSUMER THAT IS
NOT DEFINED AS PERSONALLY IDENTIFIABLE INFORMATION PURSUANT TO  SUBDIVI-
SION ONE OF THIS SECTION FOR THE PURPOSES OF ONLINE PREFERENCE MARKETING
UNLESS  THE  CONSUMER  IS  GIVEN AN OPPORTUNITY TO OPT-OUT OF THE USE OF
SUCH INFORMATION FOR ONLINE MARKETING PURPOSES.
  4. AN ADVERTISING NETWORK SHALL POST CLEAR AND CONSPICUOUS  NOTICE  ON
THE  HOME  PAGE OF ITS OWN WEBSITE ABOUT ITS PRIVACY POLICY AND ITS DATA
COLLECTION AND USE PRACTICES RELATED TO ITS ADVERTISING DELIVERY  ACTIV-
ITIES.  IF  A  PUBLISHER HAS CONTRACTED WITH AN ADVERTISING NETWORK, THE
PUBLISHER SHALL POST CLEAR AND CONSPICUOUS NOTICE ON  ITS  WEBSITE  THAT
DESCRIBES  THE  COLLECTION  AND  USE  OF  INFORMATION BY THE ADVERTISING
NETWORK. IF THE ADVERTISING NETWORK ENGAGES IN ONLINE PREFERENCE MARKET-
ING, THE PRIVACY POLICIES  OF  BOTH  THE  ADVERTISING  NETWORK  AND  THE
PUBLISHER  SHALL  DESCRIBE  THE  ABILITY TO OPT-OUT OF ONLINE PREFERENCE
MARKETING BY SUCH NETWORK.
  5. AN ADVERTISING NETWORK SHALL MAKE REASONABLE EFFORTS TO PROTECT THE
DATA IT COLLECTS OR LOGS AS A RESULT OF AD DELIVERY AND  REPORTING  FROM
LOSS, MISUSE, ALTERATION, DESTRUCTION OR IMPROPER ACCESS.
  6.  THE  ATTORNEY  GENERAL  MAY  BRING  AN ACTION AGAINST A PERSON WHO
VIOLATES THE PROVISIONS OF THIS SECTION:
  (A) TO ENJOIN FURTHER VIOLATION OF THE PROVISIONS OF THIS SECTION; AND

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  (B) TO RECOVER UP TO TWO HUNDRED FIFTY DOLLARS FOR  EACH  INSTANCE  IN
WHICH IDENTIFYING INFORMATION IS COLLECTED FROM A PERSON IN VIOLATION OF
THE PROVISIONS OF SUBDIVISION TWO OR THREE OF THIS SECTION.
  IN  AN  ACTION  UNDER  PARAGRAPH  (B) OF THIS SUBDIVISION, A COURT MAY
INCREASE THE DAMAGES UP TO THREE TIMES THE DAMAGES ALLOWED BY SUCH PARA-
GRAPH WHERE THE DEFENDANT HAS BEEN FOUND TO HAVE ENGAGED  IN  A  PATTERN
AND  PRACTICE OF VIOLATING THE PROVISIONS OF SUBDIVISION TWO OR THREE OF
THIS SECTION.
  7. NOTHING IN THIS SECTION SHALL IN ANY WAY LIMIT RIGHTS  OR  REMEDIES
WHICH  ARE  OTHERWISE AVAILABLE UNDER LAW TO THE ATTORNEY GENERAL OR ANY
OTHER PERSON AUTHORIZED TO BRING AN ACTION  UNDER  SUBDIVISION  FIVE  OF
THIS SECTION.
  S 4. This act shall take effect on the one hundred eightieth day after
it shall have become a law.