Bill Text: NY S04367 | 2023-2024 | General Assembly | Introduced
Bill Title: Prohibits the disclosure of personally identifiable information by an internet service provider without the express written approval of the consumer.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced) 2024-01-03 - REFERRED TO CONSUMER PROTECTION [S04367 Detail]
Download: New_York-2023-S04367-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 4367 2023-2024 Regular Sessions IN SENATE February 7, 2023 ___________ Introduced by Sen. FERNANDEZ -- 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 prohibiting the disclosure of personally identifiable information by an internet service provider without the express written approval of the consumer The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The general business law is amended by adding a new section 2 399-k to read as follows: 3 § 399-k. Disclosure of personally identifiable information by an 4 internet service provider; prohibited. 1. For the purposes of this 5 section the following terms shall have the following meanings: 6 (a) "Consumer" means a person who agrees to pay a fee to an internet 7 service provider for access to the internet for personal, family, or 8 household purposes, and who does not resell access. 9 (b) "Internet service provider" (ISP) means a business entity or indi- 10 vidual who provides consumers authenticated access to, or presence on, 11 the internet by means of a switched or dedicated telecommunications 12 channel upon which the provider provides transit routing of internet 13 protocol packets for and on behalf of the consumer. Internet service 14 provider does not include the offering, on a common carrier basis, of 15 telecommunications facilities or of telecommunications by means of these 16 facilities. 17 (c) "Personally identifiable information" means information that iden- 18 tifies: 19 (i) a consumer by physical or electronic address or telephone number; 20 (ii) a consumer's internet search history or internet usage history; 21 or 22 (iii) any of the contents of a consumer's data-storage devices. 23 2. Except as provided in subdivisions three and four of this section, 24 an ISP shall not knowingly disclose personally identifiable information EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD00871-01-3S. 4367 2 1 resulting from the consumer's use of the telecommunications or ISP with- 2 out express written approval from the consumer. 3 (a) A telecommunications or ISP that has entered into a franchise 4 agreement, right-of-way agreement, or other contract with the state of 5 New York or any political subdivision thereof, or that uses facilities 6 that are subject to such agreements, even if it is not a party to the 7 agreement, shall not collect nor disclose personal information from a 8 consumer resulting from the consumer's use of the telecommunications or 9 ISP without express written approval from the consumer; and 10 (b) No such telecommunication or ISP shall refuse to provide its 11 services to a consumer on the grounds that the consumer has not approved 12 the collection or disclosure of the consumer's personal information. 13 3. An ISP may disclose personally identifiable information concerning 14 a consumer: 15 (a) pursuant to a grand jury subpoena, in accordance with subdivision 16 eight of section 190.30 of the criminal procedure law; 17 (b) pursuant to a warrant issued in accordance with article six 18 hundred ninety or article seven hundred of the criminal procedure law; 19 (c) pursuant to a court order in a pending criminal proceeding upon a 20 showing that such personally identifiable information is relevant and 21 material to such criminal action or proceeding; 22 (d) pursuant to a court order in a pending civil proceeding upon a 23 showing of compelling need for such information that cannot be accommo- 24 dated by other means; 25 (e) to a court in a civil action for conversion commenced by the ISP 26 or in a civil action to enforce collection of unpaid subscription fees 27 or purchase amounts, and then only to the extent necessary to establish 28 the fact of the subscription delinquency or purchase agreement, and with 29 appropriate safeguards against unauthorized disclosure; 30 (f) to the consumer who is the subject of the information, upon writ- 31 ten or electronic request and upon payment of any fee not to exceed the 32 actual cost of retrieving the information; 33 (g) to another ISP for purposes of reporting or preventing violations 34 of the published acceptable use policy or consumer service agreement of 35 the ISP; except that the recipient may further disclose the personally 36 identifiable information only as provided by this chapter; or 37 (h) to any person with the authorization of the consumer. 38 4. (a) The ISP shall obtain the consumer's authorization for the 39 disclosure of personally identifiable information in writing or by elec- 40 tronic means. 41 (b) The request for authorization must reasonably describe the types 42 of persons to whom personally identifiable information may be disclosed 43 and the anticipated uses of the information. 44 (c) In order for an authorization to be effective, a contract between 45 an ISP and the consumer must state that the authorization will be 46 obtained by an affirmative act of the consumer. 47 (d) The provision in the contract must be conspicuous. 48 (e) Authorization shall be obtained in a manner consistent with guide- 49 lines issued by representatives of the ISP or online industries, or in 50 any other manner reasonably designed to comply with this section. 51 5. The ISP shall take all reasonable and necessary steps to maintain 52 the security and privacy of a consumer's personally identifiable infor- 53 mation. 54 6. A consumer who prevails or substantially prevails in an action 55 brought under this section is entitled to the greater of five hundred 56 dollars or actual damages. Costs, disbursements, and reasonable attorneyS. 4367 3 1 fees may be awarded to a party awarded damages for a violation of this 2 section. The action available under this section is exempted from any 3 mandatory arbitration clauses that may exist in the contract between the 4 ISP and the consumer. In a civil action under this section, it is an 5 affirmative defense that such information was released or otherwise 6 available in violation of this section notwithstanding reasonable prac- 7 tices established and implemented by the defendant to prevent violations 8 of this section. 9 7. This section does not limit any greater protection of the privacy 10 of information under other law, except that: 11 (a) nothing in this section shall be deemed to limit the authority 12 under other state or federal law of law enforcement to obtain informa- 13 tion; and 14 (b) if federal law is enacted that regulates the release of personally 15 identifiable information by ISPs but does not preempt state law on the 16 subject, state law prevails. 17 § 2. This act shall take effect on the ninetieth day after it shall 18 have become a law.
