STATE OF NEW YORK 10000 IN ASSEMBLY March 6, 1990 Introduced by M. of A. NADLER, FELDMAN, PHEFFER, CLARK, GRIFFITH, BOYLAND - Multi-Spronsored by M. of A. ABBATE, BRENNAN, COLMAN, CROWLEY, Del TORO, DUGAN, GRANNIS, HARENBERG, HEVESI, JENKINS, KOPPELL, LUSTER, MARTINEZ, NORMAN, PASSANNANTE, SEABROOK, WEINSTEIN, ZALESKI -- read once and referred to the Committee on Consumer Affairs and Protection. AN ACT to ammend the general business law, in relation to the sale of customer mailing lists and the regulation of customer privacy The People of the State of New York, represented in Senate and Assembly do enact as follows: Section a. The general business law is amended by adding a new section 336-B to read as follows: 336-B. Restriction on availability of information; written consent; types of information. 1. Definitions. For purposes of this section: (a) "Access number" shall mean a telex, teletex, facsimile, computer modem, or any other code which is used by a residential customer or subscriber of a telephone or telegraph corporation to direct a communication to another customer or subscriber of the same or another telephone or telegraph corporation. (b) "Commission" shall mean the public service commission as defined by section two of the public service law. (c) "Corporation" shall mean a telephone or telegraph corporation as defined by section two of the public service law. 2. Whenever the commission has reviewed a proposal by a telephone or telegraph corporation to sell marketing lists comprised of residential customer or subscriber information, and approval is granted, the corporation shall be prohibited from selling such mailing lists as provided herein. 3. No telephone or telegraph corporation shall make available to any other person, firm, partnership, corporation or association or any agent or employee thereof any information or marketing list which divulges more information about customers or subscribers than can be obtained from the listings as, or to be published in the corporation's white pages telephone directories. Prohibited information shall include, but not be limited to the following. (a) The residential customer's or subscriber's personal calling patterns, including any listing of the telephone or other access numbers called by the residential customer or subscriber, and excluding the identification number from which the call was placed. (b) The residential customer's or subscriber's credit or other personal financial information. (c) Services obtained from the corporation or from independent suppliers of information services which use the corporations telephone or telegraph line to provide service to the residential customer or subscriber. The provisions of this paragraph shall not apply to information transmitted between telephone or telegraph corporations pursuant to the furnishing of telephone service between service areas; and (d) Demographic information about the residential customer or subscriber, either as an individual or in the aggregate. 4. No telephone or telegraph corporation shall sell or offer for sale any names and/or addresses of any of its customers or subscribers whose listings have been ommitted from the telephone company's published directory or directory assistance at the request of the customer or subscriber. 5. Every telephone and telegraph corporation, prior to the commencement of selling residential customer or subscriber mailing lists, shall provide written notification of such practice to residential customers and subscribers and include such written notification within the customer and subscriber service bill. Such written notification shall disclose clearly and conspicuously the corporation's practice of selling residential customer and subscriber names and addresses, and shall provide a service bill chec k-off mechanism whereby residential customers and subscribers may indicate their preference for an exclusion to the sale of their names and addresses. Such notification and service bill check-off mechanism shall also be provided in each service bill subsequent to the commencement of sale of such mailing lists. In addition, every corporation shall also notify customers and subscribers of such practice by publishing a conspicuous notification in the corporation's white pages direct ory. 6. The commission is hereby directed to review all materials to be used for residential customer or subscriber notification to ensure compliance with the provisions of this section. Nothing contained herein shall be deemed to preempt the commission from requiring additional notification or other conditions on the sale of residential customer or subscriber names and addresses which provide equal or greater protection to residential customers or subscribers. 7. Any person who has been injured by reason of a violation of this section may bring an action in his or her own name to enjoin such violation; an action to recover his or her actual damages, or five hundred dollars. whichever is greater; or both such actions. The court may, in its discretion, increase the award of damages to an amount not to exceed three times the actual damages, if the court finds the defendant will fully or knowingly violated any provision of this section. The court may award reasonable attorney's fees to a prevailing plaintiff. 8. The commission shall enforce the provisions of this section. Section 2. The general business law is amended by adding a new section 336-C to read as follows: 336-C Telephone call identification service privacy. 1. Declaration of legislative findings and intent. The legislature hereby finds and declares that subscribers to residential telephone service in this state deserve a reasonable assurance of the maintenance of their personal privacy, regardless of the introduction of new technologies that may, in certain circumstances, reduce such privacy. The legislature further finds and declares that the development of a technology that allows a person receiving a telephone call to identify the telephone number from whic h the caller is telephoning does enhance the privacy of the person receiving the telephone call, but raises serious concerns regarding the caller's loss of privacy. The legislature further finds and declares that substantial concern should be given to the privacy of persons placing as well as to the privacy of persons receiving telephone calls, since this technology has the possibility of placing callers in vulnerable positions by pinpointing the exact location from where a call is made. Therefore, as the legislature does not wish to discourage the introduction of promising new technology into the marketplace, it is declared that the simultaneous offering of a service to block the transmission of a caller's telephone number with the offering of a telephone number indentification service will serve to address the expressed concerns of the legislature. 2. No telephone or telegraph corporation, or any person, firm, partnership[, corporation or association or any agent or employee thereof which makes use of the facilities of a telephone or telegraph corporation, shall offer a telephone caller identification service in this state unless such telephone or telegraph corporation or person, firm, partnership, corporation of association or any agent or employee thereof making use of such services shall also allow any residential caller to withhold the display of the caller's telephone number form the telephone or other receiving instrument of the individual receiving the telephone call placed by the residential caller, whether on an individual, per call basis, or a blanket witholding. 3. There shall be no charge to the residential caller who requests that his or her telephone number be withheld from the recipient of any call placed by the residential caller. 4. Every telephone or telegraph corporation shall provide, within thirty or more day prior to commencement by the telephone or telegraph corporation of participation in the offering of a telephone caller identification service, a clear and conspicuous written notification to its residential customers and subscribers that their calls may be identified to a called party. Such notification shall also be provided upon commencement of service to any new residential customer or subscriber. Such written notificati on shall also inform residential customers and subscribers of the availability of a free service allowing the caller to withhold the display of the caller's telephone number from the telephone or other receiving instrument of the individual receiving the call placed by the caller, whether on an individual, per call basis, or a blanket withholding. 5. The provisions of this section shall not apply to the following: (a) An identification service which is used within the same limited system, including, but not limited to, a Centrex or private exchange (PBX) system, as the recipient telephone; (b) An identification service which is used on a public agency's emergency telephone line or on the line which which receives the primary emergency number (911); or (c) Any identification service provided in connection with legally sanctioned call tracing or tapping procedures. 6. Any telephone or telegraph corporation which violates any provision of this section shall be liable for a civil penalty not to exceed five hundred dollars for each violation. In the case of a violation through continuing failure to comply with any provision of this section, each day of the continuance of such failure shall be treated as a separate violation. 7. Any person who has been injured by reason of a violation of this section may bring action in his or her own name to recover his or her own actual damages or five hundred dollars, whichever is greater. The court may, in its discretion, increase the award of damages to an amount not to exceed three times the actual damages, if the court finds the defendant willfully or knowingly violated any provision of this section. The court may award reasonable attorney';s fees to a prevailing plaintiff. 8. For purposes of this section the phrase "telephone caller identification service" or identification service" shall mean a service offered to telephone subscribers which allows a subscriber to see a display of the caller's telephone number. 9. The commissioner shall enforce the provisions of this section. Section 3. The provisions of this act shall not be construed as to limit or preempt the existing authority of any court, department or agency of the state to regulate the practices of telephone or telegraph corporations doing business in this state. Section 4. This act shall take effect immediately except that sections two and three of this act shall take effect on the first day of January next succeeding the date on which it shall become law.