S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2998
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             January 26, 2023
                                ___________
 
 Introduced  by Sen. KAVANAGH -- 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  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".
   §  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 identity 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.
   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.

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD02251-01-3
 S. 2998                             2
              

 
   § 3. The general business law is amended by adding a new section 390-e
 to read as follows:
   §  390-E.  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.
   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.
 S. 2998                             3
 
   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.
   § 4. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.