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

                                  5830

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                              March 5, 2015
                               ___________

Introduced  by  M.  of A. KAVANAGH, ORTIZ, WRIGHT, CLARK, PERRY, COLTON,
  TITUS, GUNTHER, LUPARDO, JAFFEE, O'DONNELL, ROBINSON, CUSICK,  ZEBROW-
  SKI,  BENEDETTO, GALEF, CAHILL, BROOK-KRASNY, HOOPER, PRETLOW, TITONE,
  ROSENTHAL, SCARBOROUGH, WEPRIN, QUART -- Multi-Sponsored by --  M.  of
  A.  ARROYO,  BRENNAN,  DINOWITZ,  GOTTFRIED,  HEVESI,  HIKIND, MARKEY,
  PEOPLES-STOKES, SCHIMEL, SIMOTAS -- read  once  and  referred  to  the
  Committee 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
of   privacy  occurring  including  price  discrimination,  exposure  of
personal information to subpoenas and warrantless government access.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04495-01-5
              

A. 5830                             2

  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
  (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.

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  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.