77th OREGON LEGISLATIVE ASSEMBLY--2013 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 3647
House Bill 2936
Sponsored by COMMITTEE ON CONSUMER PROTECTION AND GOVERNMENT
EFFICIENCY
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Prohibits financial institution from selling, sharing,
transferring or otherwise disclosing consumer's personal
financial information to unaffiliated party without first
receiving consumer's explicit consent.
Permits enforcement of violation as unlawful trade practice.
Declares emergency, effective on passage.
A BILL FOR AN ACT
Relating to the privacy of consumer financial information;
creating new provisions; amending ORS 646.608; and declaring an
emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + As used in this section and section 2 of this
2013 Act:
(1) 'Account verification service' means a person that for a
fee or other consideration, including a subscription or
membership dues, or on a cooperative basis with another person
without exchanging consideration, regularly engages in a practice
of:
(a) Assembling information about how frequently and where a
consumer opens or attempts to open a depository account and
instances when a depository institution closes a consumer's
account; or
(b) Authenticating or validating Social Security numbers and
addresses and reporting the results of the person's attempt at
authentication or validation to other persons for the purpose of
preventing fraud.
(2) 'Consumer' means an individual who is a resident of this
state and who deposits or invests the individual's funds with or
borrows from a financial institution or who serves as a surety or
guarantor on a loan.
(3) 'Credit reporting agency' means a person that for a fee or
other consideration, including a subscription or membership dues,
or on a cooperative basis with another person without exchanging
consideration, regularly engages in a practice of:
(a) Assembling or evaluating consumer credit information or
other information concerning a consumer; and
(b) Reporting the results of the person's assembly or
evaluation to other persons for the purpose of rating or
assessing the consumer's creditworthiness.
(4) 'Financial institution' has the meaning given that term in
ORS 706.008.
(5) 'Mercantile agency' means a person that for a fee or other
consideration, including a subscription or membership dues, or on
a cooperative basis with another person without exchanging
consideration, regularly engages in a practice of:
(a) Assembling or evaluating business credit information or
other information concerning a business; and
(b) Reporting the results of the person's assembly or
evaluation to another person for the purpose of assessing the
business's creditworthiness.
(6) 'Person' means an individual, trust, corporation,
partnership, joint venture, association, limited liability
company or other business entity.
(7) 'Personal financial information' means information that
concerns a consumer's finances, that is not widely available to
the public and that is, is a copy of or is derived from:
(a) A document that by means of the consumer's signature grants
access to or authority over a demand, time, savings, passbook,
share or share draft account or similar account that the consumer
maintains with a financial institution;
(b) A statement, ledger card or other record that shows
transactions in or with reference to a demand, time, savings,
passbook, share or share draft account or similar account that
the consumer maintains with a financial institution;
(c) A check, draft or money order drawn on or issued or payable
by or through a financial institution;
(d) A withdrawal from, deposit to or transfer or exchange
between a consumer's account and another person's account, other
than a periodic charge that a financial institution imposes on
the consumer's account, that occurs as the result of an agreement
between a financial institution and the other person;
(e) Information related to a consumer's loan account or
application for a loan; or
(f) Evidence of a transaction conducted by electronic or
telephonic means.
(8) 'Unaffiliated party' means a person that, directly or
indirectly, is not under the control of, is not under common
control with or does not control a person that receives,
possesses, uses or processes, distributes or transfers a
consumer's personal financial information. + }
SECTION 2. { + (1) Except as provided in subsection (3) of
this section, a financial institution may not sell, share,
transfer or otherwise disclose personal financial information
with or to an unaffiliated party unless the financial institution
first receives explicit consent from the consumer to whom the
financial information relates. The Director of the Department of
Consumer and Business Services by rule shall specify the form,
means and contents of the consent that a financial institution
must receive under the provisions of this section.
(2) A person that receives personal financial information from
a financial institution may not sell, share, transfer or
otherwise disclose the personal financial information with or to
another person unless the financial institution may lawfully
sell, share, transfer or otherwise disclose the financial
information with or to the other person directly.
(3) Subsections (1) and (2) of this section do not apply to a
disclosure:
(a) To the consumer to whom personal financial information
relates, after the financial institution or the person verifies
the consumer's identity;
(b) That a consumer explicitly authorizes and that is limited
to the scope and purpose of the consumer's authorization;
(c) To a state agency or agency of a political subdivision of
the state that by law is authorized to receive the disclosure;
(d) In response to a subpoena, court order or other lawful
demand;
(e) That occurs in the course of a financial institution's
preparing, examining, handling or maintaining records related to
a consumer's account;
(f) To a certified public accountant who is examining the
financial institution's records in the course of an independent
audit;
(g) To a collection agency or employee or agent of the
collection agency or to another person the financial institution
engages to assist in recovering an amount owed to the financial
institution, if the financial institution or the person makes the
disclosure to further the recovery;
(h) To an officer, employee or agent of a regulatory agency who
examines the financial institution's records in the course of
performing the officer's, employee's or agent's official duties;
(i) In publications that contain information that is derived
from financial records and that does not identify a particular
consumer, deposit, account or transaction;
(j) In reports, returns or other documents required under state
or federal law;
(k) That is required or permitted under laws that govern a
person's dishonoring a negotiable instrument;
(L) That occurs between a financial institution and a credit
reporting agency during an exchange of credit information in the
regular course of business, if the exchange otherwise complies
with the Fair Credit Reporting Act, 15 U.S.C. 1681 et seq.;
(m) That occurs between a financial institution and a
mercantile agency or account verification service during an
exchange of information in the regular course of business, if the
exchange otherwise complies with the Fair Credit Reporting Act,
15 U.S.C. 1681 et seq.;
(n) In an exchange of loan information that specifically
affects a sale, foreclosure or loan closing if the purpose of the
exchange is to accomplish the sale, foreclosure or loan closing;
and
(o) To civil or criminal law enforcement agencies or within an
industry network if the disclosure concerns suspected criminal
activities and the agencies use the information in the course of
performing the agencies' official duties.
(4) A financial institution's or other person's violation of
the provisions of this section is an unlawful trade practice that
is subject to enforcement under ORS 646.632 or 646.638 and an
action under ORS 646.638. + }
SECTION 3. ORS 646.608, as amended by section 6, chapter 52,
Oregon Laws 2012, is amended to read:
646.608. (1) A person engages in an unlawful practice when in
the course of the person's business, vocation or occupation the
person does any of the following:
(a) Passes off real estate, goods or services as
{ - those - } { + the real estate, goods or services + } of
another.
(b) Causes likelihood of confusion or of misunderstanding as to
the source, sponsorship, approval, or certification of real
estate, goods or services.
(c) Causes likelihood of confusion or of misunderstanding as to
affiliation, connection, or association with, or certification
by, another.
(d) Uses deceptive representations or designations of
geographic origin in connection with real estate, goods or
services.
(e) Represents that real estate, goods or services have
sponsorship, approval, characteristics, ingredients, uses,
benefits, quantities or qualities that { - they - } { + the
real estate, goods or services + } do not have or that a person
has a sponsorship, approval, status, qualification, affiliation,
or connection that the person does not have.
(f) Represents that real estate or goods are original or new if
{ - they - } { + the real estate or goods + } are
deteriorated, altered, reconditioned, reclaimed, used or
secondhand.
(g) Represents that real estate, goods or services are of a
particular standard, quality, or grade, or that real estate or
goods are of a particular style or model, if { - they - } { +
the real estate, goods or services + } are of another.
(h) Disparages the real estate, goods, services, property or
business of a customer or another by false or misleading
representations of fact.
(i) Advertises real estate, goods or services with intent not
to provide { - them - } { + the real estate, goods or
services + } as advertised, or with intent not to supply
reasonably expectable public demand, unless the advertisement
discloses a limitation of quantity.
(j) Makes false or misleading representations of fact
concerning the reasons for, existence of, or amounts of price
reductions.
(k) Makes false or misleading representations concerning credit
availability or the nature of the transaction or obligation
incurred.
(L) Makes false or misleading representations relating to
commissions or other compensation to be paid in exchange for
permitting real estate, goods or services to be used for model or
demonstration purposes or in exchange for submitting names of
potential customers.
(m) Performs service on or dismantles any goods or real estate
{ - when not authorized by - } { + if + } the owner or
apparent owner
{ - thereof - } { + of the goods or real estate does not
authorize the service or dismantling + }.
(n) Solicits potential customers by telephone or door to door
as a seller unless the person provides the information required
under ORS 646.611.
(o) In a sale, rental or other disposition of real estate,
goods or services, gives or offers to give a rebate or discount
or otherwise pays or offers to pay value to the customer in
consideration of the customer giving to the person the names of
prospective purchasers, lessees, or borrowers, or otherwise
aiding the person in making a sale, lease, or loan to another
person, if earning the rebate, discount or other value is
contingent upon
{ - occurrence of - } an event { - subsequent to - } { +
occurring after + } the time the customer enters into the
transaction.
(p) Makes any false or misleading statement about a prize,
contest or promotion used to publicize a product, business or
service.
(q) Promises to deliver real estate, goods or services within a
certain period of time with intent not to deliver { - them - }
{ + the real estate, goods or services + } as promised.
(r) Organizes or induces or attempts to induce membership in a
pyramid club.
(s) Makes false or misleading representations of fact
concerning the offering price of, or the person's cost for real
estate, goods or services.
(t) Concurrent with tender or delivery of any real estate,
goods or services fails to disclose any known material defect or
material nonconformity.
(u) Engages in any other unfair or deceptive conduct in trade
or commerce.
(v) Violates any of the provisions relating to auction sales,
auctioneers or auction marts under ORS 698.640, whether in a
commercial or noncommercial situation.
(w) Manufactures mercury fever thermometers.
(x) Sells or supplies mercury fever thermometers unless the
thermometer is required by federal law, or is:
(A) Prescribed by a person licensed under ORS chapter 677; and
(B) Supplied with instructions on the careful handling of the
thermometer to avoid breakage and on the proper cleanup of
mercury should breakage occur.
(y) Sells a thermostat that contains mercury unless the
thermostat is labeled in a manner to inform the purchaser that
mercury is present in the thermostat and that the thermostat may
not be disposed of until the mercury is removed, reused, recycled
or otherwise managed to ensure that the mercury does not become
part of the solid waste stream or wastewater. For purposes of
this paragraph, 'thermostat' means a device commonly used to
sense and, through electrical communication with heating, cooling
or ventilation equipment, control room temperature.
(z) Sells or offers for sale a motor vehicle manufactured after
January 1, 2006, that contains mercury light switches.
(aa) Violates the provisions of ORS 803.375, 803.385 or 815.410
to 815.430.
(bb) Violates ORS 646A.070 (1).
(cc) Violates any requirement of ORS 646A.030 to 646A.040.
(dd) Violates the provisions of ORS 128.801 to 128.898.
(ee) Violates ORS 646.883 or 646.885.
(ff) Violates ORS 646.569.
(gg) Violates the provisions of ORS 646A.142.
(hh) Violates ORS 646A.360.
(ii) Violates ORS 646.553 or 646.557 or any rule adopted
pursuant thereto.
(jj) Violates ORS 646.563.
(kk) Violates ORS 759.690 or any rule adopted pursuant thereto.
(LL) Violates the provisions of ORS 759.705, 759.710 and
759.720 or any rule adopted pursuant thereto.
(mm) Violates ORS 646A.210 or 646A.214.
(nn) Violates any provision of ORS 646A.124 to 646A.134.
(oo) Violates ORS 646A.095.
(pp) Violates ORS 822.046.
(qq) Violates ORS 128.001.
(rr) Violates ORS 646.649 (2) to (4).
(ss) Violates ORS 646A.090 (2) to (4).
(tt) Violates ORS 87.686.
(uu) Violates ORS 646.651.
(vv) Violates ORS 646A.362.
(ww) Violates ORS 646A.052 or any rule adopted under ORS
646A.052 or 646A.054.
(xx) Violates ORS 180.440 (1) or 180.486 (1).
(yy) Commits the offense of acting as a vehicle dealer without
a certificate under ORS 822.005.
(zz) Violates ORS 87.007 (2) or (3).
(aaa) Violates ORS 92.405 (1), (2) or (3).
(bbb) Engages in an unlawful practice under ORS 646.648.
(ccc) Violates ORS 646A.365.
(ddd) Violates ORS 98.854 or 98.858 or a rule adopted under ORS
98.864.
(eee) Sells a gift card in violation of ORS 646A.276.
(fff) Violates ORS 646A.102, 646A.106 or 646A.108.
(ggg) Violates ORS 646A.430 to 646A.450.
(hhh) Violates a provision of ORS 744.318 to 744.384, 744.991
and 744.992.
(iii) Violates a provision of ORS 646A.702 to 646A.720.
(jjj) Violates ORS 646A.530 30 or more days after a recall
notice, warning or declaration described in ORS 646A.530 is
issued for the children's product, as defined in ORS 646A.525,
that is the subject of the violation.
(kkk) Violates a provision of ORS 697.612, 697.642, 697.652,
697.662, 697.682, 697.692 or 697.707.
(LLL) Violates the consumer protection provisions of the
Servicemembers Civil Relief Act, 50 U.S.C. App. 501 et seq., as
in effect on January 1, 2010.
(mmm) Violates a provision of ORS 646A.480 to 646A.495.
(nnn) Violates ORS 646A.082.
(ooo) Violates ORS 646.647.
(ppp) Violates ORS 646A.115.
(qqq) Violates a provision of ORS 646A.405.
(rrr) Violates ORS 646A.092.
(sss) Violates a provision of ORS 646.644.
(ttt) Violates a provision of ORS 646A.295.
(uuu) Violates section 3, chapter 52, Oregon Laws 2012.
{ + (vvv) Violates a provision of section 2 of this 2013
Act. + }
(2) A representation under subsection (1) of this section or
ORS 646.607 may be any manifestation of any assertion by words or
conduct, including, but not limited to, a failure to disclose a
fact.
(3) In order to prevail in an action or suit under ORS 646.605
to 646.652, a prosecuting attorney need not prove competition
between the parties or actual confusion or misunderstanding.
(4) An action or suit may not be brought under subsection
(1)(u) of this section unless the Attorney General has first
established a rule in accordance with the provisions of ORS
chapter 183 declaring the conduct to be unfair or deceptive in
trade or commerce.
(5) Notwithstanding any other provision of ORS 646.605 to
646.652, if an action or suit is brought under subsection (1)(xx)
of this section by a person other than a prosecuting attorney,
relief is limited to an injunction and the prevailing party may
be awarded reasonable attorney fees.
SECTION 4. { + Sections 1 and 2 of this 2013 Act and the
amendments to ORS 646.608 by section 3 of this 2013 Act apply to
disclosures of personal financial information that occur on or
after the operative date specified in section 5 of this 2013
Act. + }
SECTION 5. { + (1) Sections 1 and 2 of this 2013 Act and the
amendments to ORS 646.608 by section 3 of this 2013 Act become
operative January 1, 2014.
(2) The Director of the Department of Consumer and Business
Services may take any action before the operative date specified
in subsection (1) of this section that is necessary to enable the
director to exercise, on and after the operative date specified
in subsection (1) of this section, all of the duties, functions
and powers conferred on the director by sections 1 and 2 of this
2013 Act and the amendments to ORS 646.608 by section 3 of this
2013 Act. + }
SECTION 6. { + This 2013 Act being necessary for the immediate
preservation of the public peace, health and safety, an emergency
is declared to exist, and this 2013 Act takes effect on its
passage. + }
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