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.
Sponsor: GALLIVAN Committee: CONSUMER PROTECTION
Law Section: General Business Law
Law: Add S399-ppp, Gen Bus L; amd S8303, CPLR
Law Section: General Business Law
Law: Add S399-ppp, Gen Bus L; amd S8303, CPLR
- Feb 21, 2013: PRINT NUMBER 2497A
- Feb 21, 2013: AMEND AND RECOMMIT TO CONSUMER PROTECTION
- Jan 18, 2013: REFERRED TO CONSUMER PROTECTION
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.
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.