S. 2579 2
CORRELATED, RETRIEVED AND DISSEMINATED ARE SUBSTANTIALLY INCREASING. THE
INCREASING USE OF THESE TECHNOLOGIES AND THEIR RELATED SYSTEMS, CHANNELS
AND SERVICES HAS A SERIOUS POTENTIAL FOR INJURY TO INDIVIDUAL PRIVACY
THAT CAN OCCUR FROM ANY COLLECTION, MAINTENANCE, USE OR DISSEMINATION OF
PERSONAL INFORMATION.
2. THE RIGHT TO PRIVACY IS A PERSONAL AND FUNDAMENTAL RIGHT WORTHY OF
PROTECTION THROUGH APPROPRIATE LEGISLATION.
3. EXISTING FEDERAL AND STATE LAWS DO NOT PROVIDE COMPREHENSIVE PRIVA-
CY PROTECTION FOR THE WIDE RANGE OF TECHNOLOGIES BEING USED IN TELECOM-
MUNICATIONS. AMONG THESE ARE TELEPHONY, OPEN VIDEO SYSTEMS, CABLE TELE-
VISION, SATELLITE VIDEO SERVICES, WIRELESS VIDEO SERVICES AND WIRELESS
VOICE SERVICES. THE LEGISLATURE INTENDS TO PROTECT THE WELFARE OF THE
PEOPLE OF NEW YORK BY ENABLING THEM TO PARTICIPATE IN THE USE OF SUCH
TECHNOLOGIES WITHOUT UNDULY SACRIFICING THEIR PERSONAL PRIVACY.
4. THE LEGISLATURE ALSO INTENDS THAT BUSINESSES ENGAGING IN TELECOMMU-
NICATIONS SERVICES IN NEW YORK SHOULD ALSO BENEFIT FROM COMPREHENSIVE
PRIVACY PROTECTION FOR INDIVIDUALS. COMPREHENSIVE RULES FOR ALL TELECOM-
MUNICATIONS FIRMS SHOULD CREATE A LEVEL PLAYING FIELD BY ELIMINATING
EXISTING DISPARITIES BETWEEN PRIVACY REQUIREMENTS FOR DIFFERENT TYPES OF
TECHNOLOGIES. MOREOVER, IF NEW YORK CONSUMERS CAN USE THE NEW TECHNOLO-
GIES WITH ASSURANCE THAT THEIR PRIVACY IS PROTECTED, MORE CONSUMERS WILL
BE LIKELY TO PARTICIPATE IN THEIR USE.
5. IN ORDER TO MEET THESE GOALS, THIS ARTICLE IS BASED ON THE PRINCI-
PLES THAT TELECOMMUNICATIONS FIRMS SHOULD COLLECT, USE AND DISCLOSE ONLY
SUCH INFORMATION AS THEY GENUINELY NEED AND THAT INDIVIDUALS SHOULD KNOW
WHAT INFORMATION IS COLLECTED ON THEM AND SHOULD CONTROL ITS DISCLOSURE.
S 104-B. DEFINITIONS. AS USED IN THIS ARTICLE:
1. "TELECOMMUNICATIONS" MEANS THE TRANSMISSION BETWEEN OR AMONG POINTS
SPECIFIED BY THE USER, OF INFORMATION OF THE USER'S CHOOSING, WITHOUT
CHANGE IN THE FORM OR CONTENT OF THE INFORMATION AS SENT AND RECEIVED,
BY MEANS OF ELECTROMAGNETIC TRANSMISSION, WITH OR WITHOUT BENEFIT OF ANY
CLOSED TRANSMISSION MEDIUM, INCLUDING ALL INSTRUMENTALITIES, FACILITIES,
APPARATUS, AND SERVICES (INCLUDING THE COLLECTION, STORAGE, FORWARDING,
SWITCHING, AND DELIVERY OF SUCH INFORMATION) ESSENTIAL TO SUCH TRANS-
MISSION.
2. "TELECOMMUNICATIONS CARRIER" MEANS ANY PROVIDER OF TELECOMMUNI-
CATIONS SERVICES.
3. "SUBSCRIBER" MEANS ANY PERSON WHO RECEIVES ANY FORM OF TELECOMMUNI-
CATIONS SERVICE AND ANY OTHER AUTHORIZED USER OF A PERSON'S SUBSCRIBER
TERMINAL.
4. "PERSONALLY IDENTIFIABLE INFORMATION" MEANS ANY INFORMATION THAT
IDENTIFIES ANY PERSON AS A SUBSCRIBER TO, OR USER OF, A TELECOMMUNI-
CATIONS CARRIER, OR THAT OTHERWISE PROVIDES INFORMATION ABOUT THAT INDI-
VIDUAL OR HIS USE OF ANY SERVICE PROVIDED BY A TELECOMMUNICATIONS CARRI-
ER, EXCEPT LISTING INFORMATION PUBLISHED IN "WHITE PAGES" DIRECTORIES.
5. "ORDINARY COURSE OF BUSINESS" MEANS THE PROVISION OF (A) THE TELE-
COMMUNICATIONS SERVICE FROM WHICH PERSONALLY IDENTIFIABLE INFORMATION IS
DERIVED, OR (B) SERVICES NECESSARY TO, OR USED IN, THE PROVISION OF SUCH
TELECOMMUNICATIONS SERVICE, INCLUDING THE PUBLISHING OF DIRECTORIES.
6. "UPSTREAM COMMUNICATIONS CHANNEL" MEANS A SIGNALING PATH PROVIDED
BY A TELECOMMUNICATIONS CARRIER FOR THE TRANSMISSION OF SIGNALS OVER A
TELECOMMUNICATIONS SYSTEM FROM SUBSCRIBER TERMINALS.
7. "INTERCEPT" MEANS TO ACQUIRE, AT ANY TIME FROM INITIATION TO
COMPLETION OF A SIGNAL TRANSMISSION OVER A TELECOMMUNICATIONS SYSTEM,
THE CONTENT OF THE INFORMATION CONTAINED IN THAT SIGNAL.
S. 2579 3
8. "THIRD PARTY" MEANS A PERSON OTHER THAN THE SUBSCRIBER OR A TELE-
COMMUNICATIONS CARRIER OR ANY AFFILIATE OR AGENT THEREOF; BUT, SUCH TERM
SHALL NOT INCLUDE AN INTERCONNECTING CARRIER OR AN ORGANIZATION WHOSE
OBJECTIVE IS THE DETECTION, ELIMINATION OR REDUCTION OF TOLL FRAUD,
WHICH HAS A DEMONSTRABLE AND REASONABLE REQUIREMENT FOR PERSONALLY IDEN-
TIFIABLE INFORMATION.
9. "GENERALLY AVAILABLE DATA BASE" MEANS A SINGLE COLLECTION OF
PERSONALLY IDENTIFIABLE INFORMATION GENERALLY USED BY A TELECOMMUNI-
CATIONS CARRIER IN THE ORDINARY COURSE OF BUSINESS. THE PERSONALLY
IDENTIFIABLE INFORMATION CONTAINED IN SUCH DATA BASE MAY INCLUDE SUCH
INFORMATION AS SUBSCRIBER NAME AND ADDRESS, AMOUNT DUE, EQUIPMENT, BILL-
ING RECORDS, CONTRACTS WITH THE SUBSCRIBER, DEPOSIT INFORMATION, PAYMENT
INFORMATION AND BILLING ADJUSTMENTS.
S 104-C. COLLECTION, USE OR DISCLOSURE OF INFORMATION. A TELECOMMUNI-
CATIONS CARRIER MAY COLLECT, RECEIVE, STORE, AGGREGATE, USE, RENT, SELL,
RELEASE OR DISCLOSE PERSONALLY IDENTIFIABLE INFORMATION RELATING TO ANY
SUBSCRIBER, SUBSCRIBER HOUSEHOLD, OR USER OF A SUBSCRIBER TERMINAL ONLY:
1. TO THE EXTENT NECESSARY TO PROVIDE THE CARRIER'S TELECOMMUNICATIONS
SERVICES IN THE ORDINARY COURSE OF BUSINESS;
2. WITH THE SUBSCRIBER CONSENT DESCRIBED IN SECTION ONE HUNDRED FOUR-D
OF THIS ARTICLE;
3. TO DETECT THE UNAUTHORIZED RECEIPT OF TELECOMMUNICATIONS SERVICES,
INCLUDING COOPERATIVE EFFORTS AMONG CARRIERS TO DETECT, ELIMINATE OR
REDUCE TOLL FRAUD;
4. PURSUANT TO A COURT ORDER OR SUBPOENA;
5. AS SPECIFICALLY PERMITTED BY THE FEDERAL COMMUNICATIONS COMMISSION
OR THE PUBLIC SERVICE COMMISSION; OR
6. OTHERWISE PURSUANT TO LAW.
S 104-D. SUBSCRIBER NOTICE OF CARRIER INFORMATION PRACTICES. 1. A
TELECOMMUNICATIONS CARRIER MUST NOTIFY A SUBSCRIBER OF THE GENERAL
CIRCUMSTANCES UNDER WHICH PERSONALLY IDENTIFIABLE INFORMATION, MAY BE
COLLECTED, USED OR DISCLOSED.
2. IN THE CASE OF A SUBSCRIBER CONTRACT ENTERED INTO ON OR BEFORE THE
EFFECTIVE DATE OF THIS ARTICLE, THE NOTICE MUST BE PROVIDED WITHIN ONE
HUNDRED TWENTY DAYS IMMEDIATELY AFTER SUCH DATE. IN THE CASE OF A
SUBSCRIBER CONTRACT ENTERED INTO AFTER THE EFFECTIVE DATE OF THIS ARTI-
CLE, THE NOTICE SHALL BE PROVIDED AT THE TIME THAT THE CONTRACT IS
ENTERED INTO. AFTER THE INITIAL NOTICE, NOTICE MUST BE PROVIDED AT LEAST
ANNUALLY.
3. NOTICE MUST BE IN WRITING, CLEAR AND CONSPICUOUS, AND IN PLAIN
ENGLISH.
4. THE TELECOMMUNICATIONS CARRIER SHALL NOT USE PERSONALLY IDENTIFI-
ABLE INFORMATION IN A MANNER OTHER THAN THAT DESCRIBED IN THE NOTICE
WITHOUT FURTHER WRITTEN NOTICE TO THE SUBSCRIBER AND, WHERE REQUIRED BY
THIS ARTICLE, THE CONSENT OF THE SUBSCRIBER.
5. A SUBSCRIBER MAY WITHDRAW HIS PERMISSION AT ANY TIME. THIS WITH-
DRAWAL SHALL TAKE EFFECT THIRTY DAYS AFTER THE SUBSCRIBER NOTIFIES THE
TELECOMMUNICATIONS CARRIER THAT CONSENT IS BEING WITHDRAWN.
6. A TELECOMMUNICATIONS CARRIER SHALL NOT REFUSE TO PROVIDE ANY TELE-
COMMUNICATIONS SERVICE TO ANY PERSON ON ACCOUNT OF THAT PERSON'S REFUS-
ING TO GRANT CONSENT TO COLLECT, USE OR DISCLOSE PERSONALLY IDENTIFIABLE
INFORMATION.
7. A TELECOMMUNICATIONS CARRIER MUST OBTAIN A SUBSCRIBER'S AFFIRMATIVE
CONSENT BEFORE THE CARRIER MAY RENT, SELL, RELEASE OR DISCLOSE THE
SUBSCRIBER'S PERSONALLY IDENTIFIABLE INFORMATION TO A THIRD PARTY,
EXCEPT AS AUTHORIZED IN SECTION ONE HUNDRED FOUR-C OF THIS ARTICLE. SUCH
S. 2579 4
AFFIRMATIVE CONSENT MAY BE OBTAINED ONLY IF THE TELECOMMUNICATIONS
CARRIER HAS NOTIFIED THE SUBSCRIBER OF: (A) THE KIND OF PERSONALLY IDEN-
TIFIABLE INFORMATION THAT THE CARRIER WILL COLLECT AND THE INTENDED USE
OF THAT INFORMATION; (B) THE NATURE, FREQUENCY, AND PURPOSE OF ANY
DISCLOSURE OF THAT INFORMATION; AND (C) THE PERSONS TO WHOM DISCLOSURE
MAY BE MADE.
S 104-E. THIRD PARTIES. 1. USE OF PERSONALLY IDENTIFIABLE INFORMATION
BY THOSE RECEIVING THE INFORMATION FROM A TELECOMMUNICATIONS CARRIER
PURSUANT TO THE PROVISIONS OF THIS ARTICLE IS LIMITED TO THE PURPOSES
FOR WHICH THE DISCLOSURE IS MADE.
2. CONCURRENT WITH, OR PRIOR TO, THE PROVISION OF PERSONALLY IDENTIFI-
ABLE INFORMATION TO OTHERS PURSUANT TO THE PROVISIONS OF THIS ARTICLE, A
TELECOMMUNICATIONS CARRIER SHALL GIVE NOTICE TO THE PERSON RECEIVING THE
INFORMATION OF THE PROVISIONS OF THIS ARTICLE. IF PERSONALLY IDENTIFI-
ABLE INFORMATION IS PROVIDED ON A CONTINUING BASIS, NOTICE SHALL BE
PROVIDED AT THE TIME OF OR PRIOR TO THE PROVISION OF THE FIRST OF SUCH
INFORMATION AND ANNUALLY THEREAFTER.
3. A THIRD PARTY WHICH HAS RECEIVED PERSONALLY IDENTIFIABLE INFORMA-
TION PURSUANT TO THIS ARTICLE SHALL NOT RETAIN THAT INFORMATION IF NO
LONGER NEEDED FOR THE PURPOSES FOR WHICH IT WAS ACQUIRED, NOR SHALL THE
PARTY RENT, SELL, RELEASE, OR OTHERWISE DISCLOSE THAT INFORMATION TO ANY
PERSON, UNLESS THE THIRD PARTY DOES SO IN ACCORDANCE WITH THE PROVISIONS
OF THIS ARTICLE.
4. EVERY THIRD PARTY RECEIVING PERSONALLY IDENTIFIABLE INFORMATION
PURSUANT TO THIS SECTION SHALL CERTIFY ANNUALLY TO THE INFORMATION
PROVIDER IN WRITING THAT IT IS COMPLYING WITH THE PROVISIONS OF THIS
ARTICLE.
S 104-F. SUBSCRIBER'S RIGHT TO INSPECT AND CORRECT INFORMATION. 1. A
TELECOMMUNICATIONS CARRIER SHALL DISCLOSE TO A SUBSCRIBER ALL PERSONALLY
IDENTIFIABLE INFORMATION WHICH THE CARRIER POSSESSES PERTAINING TO THAT
SUBSCRIBER STORED ON ITS GENERALLY APPLICABLE DATA BASE, UPON WRITTEN
REQUEST OF THE SUBSCRIBER. SUCH DISCLOSURE SHALL BE MADE WITHIN A
REASONABLE TIME FROM THE RECEIPT OF THE SUBSCRIBER'S REQUEST.
2. A SUBSCRIBER MAY REQUEST TO EXAMINE A COPY OF THE INFORMATION
DESCRIBED IN THIS SECTION UPON REASONABLE NOTICE. THE INFORMATION
SUPPLIED TO THE SUBSCRIBER SHALL BE IN A LEGIBLE FORMAT, WHICH IS CAPA-
BLE OF BEING UNDERSTOOD BY A REASONABLE PERSON. THE SUBSCRIBER SHALL
BEAR REASONABLE COPYING AND MAILING COSTS OCCASIONED BY THE EXAMINATION.
3. A TELECOMMUNICATIONS CARRIER SHALL CORRECT THE INFORMATION UPON A
REASONABLE SHOWING BY THE SUBSCRIBER THAT PERSONALLY IDENTIFIABLE INFOR-
MATION CONTAINED THEREIN IS INACCURATE. IF THE TELECOMMUNICATIONS CARRI-
ER AND SUBSCRIBER CANNOT RESOLVE A DISPUTE ABOUT THE ACCURACY OF ANY
INFORMATION CONCERNING THE SUBSCRIBER, THE SUBSCRIBER MAY APPEND TO THE
CARRIER'S RECORD OF INFORMATION A STATEMENT SETTING FORTH THE NATURE OF
THE DISPUTE. SUCH STATEMENT SHALL BE RETAINED IN THE CARRIER'S RECORDS
SO LONG AS THE DISPUTED INFORMATION IS RETAINED. WITHIN FORTY-FIVE DAYS
OF RECEIVING THIS NOTIFICATION FROM THE SUBSCRIBER, THE TELECOMMUNI-
CATIONS CARRIER SHALL TRANSMIT A CORRECTED COPY OF THE INFORMATION, OR
THE SUBSCRIBER'S APPENDED STATEMENT, TO ANY PARTY WHICH WAS GIVEN THE
ERRONEOUS INFORMATION. COPIES OF ALL SUCH CORRESPONDENCE SHALL BE SENT
TO THE SUBSCRIBER.
S 104-G. MONITORING OR INTERCEPTING UPSTREAM COMMUNICATIONS CHANNELS.
1. EXCEPT AS OTHERWISE PROVIDED IN THIS ARTICLE, INFORMATION DERIVED
FROM ANY SIGNAL OF AN UPSTREAM COMMUNICATIONS CHANNEL TRANSMITTED FROM A
SUBSCRIBER TERMINAL FOR THE PURPOSE OF MONITORING INDIVIDUAL HOUSEHOLD
OR COMMUNICATING PATTERNS MAY NOT BE DISCLOSED EXCEPT WITH THE WRITTEN
S. 2579 5
AUTHORIZATION OF THE SUBSCRIBER. SUCH AUTHORIZING DOCUMENT MUST EXPLAIN
IN CLEAR AND PLAIN ENGLISH THAT INFORMATION CONCERNING THE SUBSCRIBER'S
VIEWING PATTERNS OR PRACTICES MAY BE DISCLOSED. THE PROVISION OF TELE-
PHONY SERVICES SHALL BE EXEMPT FROM THE REQUIREMENTS OF THIS SUBDIVI-
SION.
2. EXCEPT AS OTHERWISE PROVIDED BY LAW, NO PERSON SHALL INTERCEPT A
SIGNAL OF AN UPSTREAM COMMUNICATIONS CHANNEL TRANSMITTED FROM A
SUBSCRIBER TERMINAL EXCEPT THE SUBSCRIBER AND THE INTENDED RECEIVER OF
THE SIGNAL.
S 104-H. SECURITY MEASURES. A TELECOMMUNICATIONS CARRIER SHALL MAIN-
TAIN SUCH SAFEGUARDS AS ARE NECESSARY TO ENSURE THE PHYSICAL AND ELEC-
TRONIC SECURITY AND CONFIDENTIALITY OF ANY PERSONALLY IDENTIFIABLE
INFORMATION CONCERNING SUBSCRIBERS.
S 104-I. EXCEPTION TO WRITTEN AUTHORIZATION REQUIREMENT. WRITTEN
AUTHORIZATION SHALL NOT BE REQUIRED FOR A TELECOMMUNICATIONS CARRIER TO
CONDUCT SYSTEM-WIDE OR INDIVIDUALLY ADDRESSED MONITORING FOR THE
PURPOSES OF VERIFYING SYSTEM INTEGRITY, CONTROLLING RETURN TRANSMISSION
PATHS, OR FOR ANY PURPOSES FOR WHICH PERSONALLY IDENTIFIABLE INFORMATION
MAY BE LAWFULLY ACQUIRED PURSUANT TO THIS ARTICLE.
S 104-J. EXAMINATION OR DISCLOSURE OF AGGREGATE DATA. THIS ARTICLE
SHALL NOT PROHIBIT THE EXAMINATION OF AGGREGATE DATA BY, OR THE DISCLO-
SURE OF SUCH DATA TO, ANY THIRD PARTY, PROVIDED THAT THE DATA CONTAINS
NO PERSONALLY IDENTIFIABLE INFORMATION CONCERNING ANY SUBSCRIBER, HIS OR
HER HOUSEHOLD, OR A USER OF HIS OR HER TERMINAL.
S 104-K. ENFORCEMENT. 1. ANY PERSON FOUND TO HAVE VIOLATED THIS ARTI-
CLE, WITH GROSS NEGLIGENCE, SHALL BE LIABLE TO THE AGGRIEVED SUBSCRIBER
FOR ALL ACTUAL DAMAGES SUSTAINED BY SUCH SUBSCRIBER AS A DIRECT RESULT
OF THE VIOLATION, PROVIDED THAT ANY SUBSCRIBER WHO PREVAILS OR SUBSTAN-
TIALLY PREVAILS IN ANY ACTION BROUGHT UNDER THIS SECTION SHALL RECEIVE
NOT LESS THAN FIVE HUNDRED DOLLARS IN DAMAGES, REGARDLESS OF THE AMOUNT
OF ACTUAL DAMAGE PROVED, PLUS COSTS, DISBURSEMENTS AND REASONABLE ATTOR-
NEYS' FEES.
2. WHENEVER THERE SHALL BE A VIOLATION OF THIS ARTICLE, 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 CONTINUATION OF SUCH
VIOLATION; AND IF IT SHALL APPEAR TO THE SATISFACTION OF THE COURT OR
JUSTICE THAT THE DEFENDANT HAS, IN FACT, VIOLATED THIS ARTICLE, 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 PRACTICE LAW AND RULES AND DIRECT RESTITU-
TION. WHENEVER THE COURT SHALL DETERMINE THAT A GROSSLY NEGLIGENT
VIOLATION OF THIS ARTICLE HAS OCCURRED, THE COURT MAY IMPOSE A CIVIL
PENALTY OF NOT MORE THAN ONE THOUSAND DOLLARS FOR SUCH VIOLATION. 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 PRACTICE LAW AND
RULES.
3. THE REMEDIES PROVIDED BY THIS ARTICLE SHALL BE IN ADDITION TO ANY
OTHER LAWFUL REMEDY AVAILABLE TO A SUBSCRIBER.
S. 2579 6
4. NO ACTION MAY BE BROUGHT UNDER THE PROVISIONS OF THIS SECTION
UNLESS SUCH ACTION IS COMMENCED WITHIN TWO YEARS IMMEDIATELY FROM THE
DATE OF THE ACT COMPLAINED OF OR OF THE DATE OF DISCOVERY OF SUCH ACT.
S 104-L. SEPARABILITY CLAUSE. IF ANY CLAUSE, SENTENCE, PARAGRAPH,
SECTION OR PART OF THIS ARTICLE SHALL BE ADJUDGED BY ANY COURT OF COMPE-
TENT JURISDICTION TO BE INVALID OR UNCONSTITUTIONAL, SUCH JUDGMENT SHALL
NOT AFFECT, IMPAIR OR INVALIDATE THE REMAINDER THEREOF, BUT SHALL BE
CONFINED IN ITS OPERATION TO THE CLAUSE, SENTENCE, PARAGRAPH, SECTION OR
PART THEREOF DIRECTLY INVOLVED IN THE CONTROVERSY IN WHICH SUCH JUDGMENT
SHALL HAVE BEEN RENDERED.
S 2. This act shall take effect on the first of July next succeeding
the date on which it shall have become a law.