Provides that a business entity may not provide false caller identification with the intent to defraud or harass any party; provides definition of business entity.

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S2497A-2013 Actions

• Feb 21, 2013: PRINT NUMBER 2497A
• Feb 21, 2013: AMEND AND RECOMMIT TO CONSUMER PROTECTION
• Jan 18, 2013: REFERRED TO CONSUMER PROTECTION

S2497A-2013 Memo

BILL NUMBER:S2497A

TITLE OF BILL:  An act to amend the general business law and the civil
practice law and rules, in relation to prohibiting business entities
from transmitting false caller identification information with the
intent to defraud or harass any person

PURPOSE:

This legislation would ban business entities from "spoofing." Spoofing
is the transmission of false caller identification information with
the intent to defraud or harass any person.

SUMMARY OF PROVISIONS:

Section one amends the general business law by adding a new section
399-ppp. Subdivision 1 of section 399-ppp provides that it shall be
unlawful for any business entity, in connection with any
telecommunications service or VoIP service, to cause any caller
identification service to transmit false caller identification
information when making a call to any person within the state with the
intent to defraud or harass. Subdivision 2 of section 399-ppp provides
definitions of "business identity," "caller identification
information," "caller identification service," and "VoIP service."
Subdivision 3 of section 399-ppp provides that whenever there is a
violation of this section, the attorney general may make an
application to a court or justice having jurisdiction to issue an
injunction, and upon notice to the defendant, to immediately enjoin
and restrain the continuance of such violations. No proof is required
that any person has, in fact, been injured or damaged by such
violation. The court may also make allowances to the attorney general
as provided in paragraph six of subdivision (a) of section 8303 of the
civil practice law and rules. In addition to any such allowances, the
court may direct restitution to any victim upon a showing of damages
by a preponderance of the evidence. A court may also impose a civil
penalty of up to $2,000 per call, with an aggregate amount of up to
$100,000 for all calls placed in violation of this section within any
continuous seventy-two hour period. Subdivision 4 of section 399-ppp
provides that in addition to the right of action granted to the
attorney general under this section, any person whose caller
identification information was used in connection with a violation of
this section or who has received a telephone call in violation of this
section may bring an action in his or her own name to enjoin such
unlawful act. In addition, any such person may bring an action to
recover the greater of: (a) his or her actual damages; or (b) an
amount of up to $500 per call, up to an aggregate amount of no more
than $25,000, for all calls placed in violation of this section within
any continuous severity-two hour period; or both such actions. The
court may award reasonable attorney's fees to a prevailing plaintiff.
Subdivision 5 of Section 399-ppp provides that the provisions of this
section shall not apply to any member of a law enforcement unit acting
within the scope of his or her assigned duties or to a court order
that specifically authorizes the use of caller identification
manipulation.

Section two amends paragraph 6 of subdivision (a) of section 8303 of
the civil practice law and rules, as amended by chapter 530 of the


laws of 2002, by adding an action brought by the attorney general
under section 399-ppp to the list of proceedings subject to allowances
that may be paid to the attorney general. The sum of such allowance
shall not exceed $2,000 against each defendant.

Section three provides the effective date.

JUSTIFICATION:

Spoofing occurs when a person intentionally alters caller
identification information to mask the true identity of the caller.
The minimum effect is that the end user is deceived - the person
making the call is not the person identified on the screen - and the
person identified on the screen is "spoofed." This means that the
person being spoofed has had caller identification information -his
identity, in essence - intentionally misappropriated by the caller to
achieve an end. In the case of a telemarketing film doing the
spoofing, the intent may be to get the end user to pick up the phone,
because the call seems to be a personal call rather than a call from a
telemarketer.

No matter what the facts are, the essence of the conduct is that a
person's caller identification information is stolen and then used so
that end users are deceived or harassed. The person who was spoofed
may suffer the following damages: a significant invasion of his or her
privacy; damage to his or her reputation, depending on the content of
the message attached to his caller identification information; the
publishing of a previously unpublished phone number; being associated
with a telephone effort that is viewed as one that harasses people;
and becoming the recipient of angry phone calls at any hour of the day
from people who have received calls that seemingly were placed by the
person being spoofed, but were actually placed by someone else.

This legislation seeks to end this indefensible practice by making
spoofing a violation of the general business law, and authorizing the
attorney general and private parties to seek both injunctive and
monetary relief.

LEGISLATIVE HISTORY:

2012, A.52-A (Paulin) passed assembly, 2012, S.2909-B (Zeldin)
referred to the committee on finance. 2011, A.52-A (Paulin) passed
assembly. 2011 S.2909-B (Zeldin) referred to committee on consumer
protection. 2010, A.9390-B passed assembly. 2010, 8.7713 (Johnson C.
referred to committee on consumer protection, 2009, A.4360 (Bradley)
referred to the committee on rules. 2009, 8.2753 (Johnson, C.) passed
senate.

FISCAL IMPLICATIONS: None to the State.

EFFECTIVE DATE:

This act will take effect on the sixtieth day after it shall have
become a law.

S2497A-2013 Text

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

                                   2497--A

                         2013-2014 Regular Sessions

                              I N  SENATE

                              January 18, 2013
                                 ___________

  Introduced  by Sen. GALLIVAN -- read twice and ordered printed, and when
    printed to be committed to the Committee  on  Consumer  Protection  --
    committee  discharged,  bill amended, ordered reprinted as amended and
    recommitted to said committee

  AN ACT to amend the general business law and the civil practice law  and
    rules,  in relation to prohibiting business entities from transmitting
    false caller identification information with the intent to defraud  or
    harass any person

    THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
  BLY, DO ENACT AS FOLLOWS:


    Section 1. The general business law is amended by adding a new section
  399-ppp to read as follows:

    S 399-PPP. PROHIBITION ON PROVISION OF DECEPTIVE CALLER IDENTIFICATION
  INFORMATION. 1. IT  SHALL  BE  UNLAWFUL  FOR  ANY  BUSINESS  ENTITY,  IN
  CONNECTION WITH ANY TELECOMMUNICATIONS SERVICE OR VOIP SERVICE, TO CAUSE
  ANY  CALLER  IDENTIFICATION SERVICE TO TRANSMIT FALSE CALLER IDENTIFICA-
  TION INFORMATION, WITH THE INTENT TO DEFRAUD OR HARASS,  WHEN  MAKING  A
  CALL TO ANY PERSON WITHIN THE STATE.
    2. FOR PURPOSES OF THIS SECTION:

    (A)  "BUSINESS  ENTITY" MEANS A CORPORATION, ASSOCIATION, PARTNERSHIP,
  LIMITED LIABILITY COMPANY, LIMITED LIABILITY PARTNERSHIP OR OTHER  LEGAL
  ENTITY.
    (B)  "CALLER IDENTIFICATION INFORMATION" MEANS INFORMATION PROVIDED TO
  AN END USER BY A CALLER IDENTIFICATION SERVICE REGARDING  THE  TELEPHONE
  NUMBER  OF,  OR  OTHER  INFORMATION REGARDING THE ORIGINATION OF, A CALL
  MADE USING A TELECOMMUNICATIONS SERVICE OR VOIP SERVICE.
    (C) "CALLER  IDENTIFICATION  SERVICE"  MEANS  ANY  SERVICE  OR  DEVICE
  DESIGNED TO PROVIDE THE USER OF THE SERVICE OR DEVICE WITH THE TELEPHONE
  NUMBER  OF,  OR  OTHER  INFORMATION REGARDING THE ORIGINATION OF, A CALL
  MADE USING A TELECOMMUNICATIONS  SERVICE  OR  VOIP  SERVICE.  SUCH  TERM
  INCLUDES AUTOMATIC NUMBER IDENTIFICATION SERVICES.

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD04476-02-3

 S. 2497--A                          2

    (D)  "VOIP SERVICE" MEANS ANY SERVICE THAT: ENABLES REAL TIME, TWO-WAY
  VOICE COMMUNICATION  ORIGINATING  FROM  OR  TERMINATING  AT  THE  USER'S
  LOCATION IN INTERNET PROTOCOL OR A SUCCESSOR PROTOCOL; UTILIZES A BROAD-
  BAND  CONNECTION AT THE USER'S LOCATION; AND PERMITS A USER TO RECEIVE A
  CALL  THAT  ORIGINATES  ON  THE PUBLIC SWITCHED TELEPHONE NETWORK AND TO
  TERMINATE A CALL TO THE PUBLIC SWITCHED TELEPHONE NETWORK.
    3. WHENEVER THERE SHALL BE A VIOLATION OF THIS SECTION, AN APPLICATION
  MAY BE MADE BY THE ATTORNEY GENERAL IN THE NAME OF  THE  PEOPLE  OF  THE
  STATE  OF NEW YORK TO A COURT OR JUSTICE HAVING JURISDICTION TO ISSUE AN
  INJUNCTION, AND UPON NOTICE TO THE DEFENDANT, TO IMMEDIATELY ENJOIN  AND
  RESTRAIN  THE  CONTINUANCE OF SUCH VIOLATIONS; AND IF IT SHALL APPEAR TO
  THE SATISFACTION OF THE COURT OR JUSTICE,  BY  A  PREPONDERANCE  OF  THE
  EVIDENCE,  THAT  THE  DEFENDANT  HAS,  IN FACT, VIOLATED THIS SECTION AN
  INJUNCTION MAY  BE  ISSUED  BY  SUCH  COURT  OR  JUSTICE  ENJOINING  AND
  RESTRAINING  ANY  FURTHER  VIOLATION,  WITHOUT  REQUIRING PROOF THAT ANY
  PERSON HAS, IN FACT, BEEN INJURED OR DAMAGED THEREBY. THE COURT MAY MAKE
  ALLOWANCES TO THE ATTORNEY GENERAL  AS  PROVIDED  IN  PARAGRAPH  SIX  OF
  SUBDIVISION (A) OF SECTION EIGHTY-THREE HUNDRED THREE OF THE CIVIL PRAC-
  TICE  LAW  AND  RULES. IN ADDITION TO ANY SUCH ALLOWANCES, THE COURT MAY
  DIRECT RESTITUTION TO ANY VICTIM UPON A SHOWING OF DAMAGES BY A  PREPON-
  DERANCE  OF THE EVIDENCE.  IN ADDITION TO ANY SUCH RESTITUTION, WHENEVER
  THE COURT SHALL DETERMINE THAT A VIOLATION OF THIS SECTION HAS OCCURRED,
  THE COURT MAY IMPOSE A CIVIL PENALTY  OF  NOT  MORE  THAN  TWO  THOUSAND
  DOLLARS  PER  CALL,  UP TO A TOTAL AGGREGATE AMOUNT OF NOT MORE THAN ONE
  HUNDRED THOUSAND DOLLARS, FOR ALL CALLS  PLACED  IN  VIOLATION  OF  THIS
  SECTION  WITHIN A CONTINUOUS SEVENTY-TWO HOUR PERIOD. IN CONNECTION WITH
  ANY SUCH PROPOSED APPLICATION, THE ATTORNEY  GENERAL  IS  AUTHORIZED  TO
  TAKE  PROOF  AND MAKE A DETERMINATION OF THE RELEVANT FACTS AND TO ISSUE
  SUBPOENAS IN ACCORDANCE WITH THE CIVIL PRACTICE LAW AND RULES.
    4. IN ADDITION TO THE RIGHT OF ACTION GRANTED TO THE ATTORNEY  GENERAL
  PURSUANT  TO THIS SECTION, ANY PERSON WHOSE CALLER IDENTIFICATION INFOR-
  MATION WAS USED IN CONNECTION WITH A VIOLATION OF THIS  SECTION  OR  WHO
  HAS  RECEIVED A TELEPHONE CALL IN VIOLATION OF THIS SECTION MAY BRING AN
  ACTION IN HIS OR HER OWN NAME TO ENJOIN SUCH UNLAWFUL ACT  OR  PRACTICE,
  AN  ACTION  TO  RECOVER THE GREATER OF (A) HIS OR HER ACTUAL DAMAGES, OR
  (B) AN AMOUNT EQUAL TO NOT MORE THAN FIVE HUNDRED DOLLARS PER  CALL,  UP
  TO  A  TOTAL  AGGREGATE  AMOUNT  OF  NOT  MORE THAN TWENTY-FIVE THOUSAND
  DOLLARS FOR ALL CALLS PLACED IN  VIOLATION  OF  THIS  SECTION  WITHIN  A
  CONTINUOUS SEVENTY-TWO HOUR PERIOD; OR BOTH SUCH ACTIONS.  THE COURT MAY
  AWARD REASONABLE ATTORNEY'S FEES TO A PREVAILING PLAINTIFF.
    5.  SUBDIVISIONS THREE AND FOUR OF THIS SECTION DO NOT CREATE, AND ARE
  NOT INTENDED TO CREATE, ANY RIGHT OF ACTION AGAINST A TELECOMMUNICATIONS
  SERVICE PROVIDER OR VOIP SERVICE PROVIDER WHOSE SERVICE, INCLUDING CALL-
  ER IDENTIFICATION SERVICE, IS USED BY A BUSINESS ENTITY TO  TRANSMIT  OR
  DISPLAY  FALSE  CALLER  IDENTIFICATION  INFORMATION IN VIOLATION OF THIS
  SECTION.
    6. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO ANY MEMBER  OF  A
  LAW  ENFORCEMENT  UNIT  ACTING  WITHIN  THE SCOPE OF HIS OR HER ASSIGNED
  DUTIES OR TO A COURT ORDER THAT SPECIFICALLY AUTHORIZES THE USE OF CALL-
  ER IDENTIFICATION MANIPULATION.
    S 2. Paragraph 6 of subdivision (a) of section 8303 of the civil prac-
  tice law and rules, as amended by chapter 530 of the laws  of  2002,  is
  amended to read as follows:

    6. to the plaintiffs in an action or proceeding brought by the [attor-
  ney-general] ATTORNEY GENERAL under [articles] ARTICLE twenty-two, twen-
  ty-two-A,  twenty-three-A or thirty-three or section three hundred nine-

 S. 2497--A                          3

  ty-one-b, THREE HUNDRED NINETY-NINE-PPP, or five hundred twenty-a of the
  general business law, or under subdivision twelve of section sixty-three
  of the executive law, or under article  twenty-three  of  the  arts  and
  cultural  affairs  law,  or  in  an  action or proceeding brought by the
  [attorney-general]  ATTORNEY  GENERAL  under  applicable   statutes   to
  dissolve  a  corporation or for usurpation of public office, or unlawful
  exercise of franchise or of corporate right, a  sum  not  exceeding  two
  thousand dollars against each defendant.
    S  3.  This  act  shall take effect on the sixtieth day after it shall
  have become a law.