Provides that a person may not alter his or her caller identification with the intent to defraud, harass or harm the recipient of the call.
Ayes (56): Adams, Addabbo, Alesi, Aubertine, Bonacic, Breslin, Diaz, Dilan, Duane, Espada, Farley, Flanagan, Foley, Golden, Griffo, Hannon, Hassell-Thomps, Huntley, Johnson C, Johnson O, Klein, Krueger, Kruger, Lanza, Larkin, LaValle, Leibell, Libous, Little, Marcellino, Maziarz, McDonald, Montgomery, Nozzolio, Onorato, Oppenheimer, Padavan, Perkins, Ranzenhofer, Robach, Saland, Sampson, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stachowski, Stavisky, Stewart-Cousin, Thompson, Valesky, Volker, Winner, Young
Excused (5): DeFrancisco, Fuschillo, Morahan, Parker, Schneiderman
BILL NUMBER: S2753A
TITLE OF BILL : An act to amend the general business law and the civil practice law and rules, in relation to prohibiting individuals from transmitting misleading or inaccurate caller identification information with the intent to defraud, harass, or cause harm to any person
PURPOSE OR GENERAL IDEA OF THE BILL : This legislation would ban "spoofing" within the state. Spoofing is the transmission of misleading or inaccurate caller identification information with the intent to defraud, harass, mislead or cause harm to any person.
SUMMARY OF SPECIFIC PROVISIONS : Section one amends the general business law by adding a new section 399-ppp. Subdivision 1 of section one provides that it shall be unlawful for any person within the state, in connection with any telecommunications service or VoIP service, to cause any caller identification service to transmit misleading or inaccurate caller identification information with the intent to defraud, harass or cause harm to any person, when making a call to another person within the state.
Subdivision two of section one provides that nothing in this section shall be construed to prevent or restrict any person from blocking the capability of any caller identification service to transmit caller identification information.
Subdivision three of section one provides definitions of "caller identification information," "caller identification service" and "VoIP service."
Subdivision four of section one 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, subject to 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 five of section one provides that in addition to the right of action granted to the attorney general under this section, any person whose caller identification 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 (1) his or her actual damages or (2) 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 seventy-two hour period, or both such actions. Section two amends paragraph 6 of subdivision (a) of section 8303 of the civil practice law and rules 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.
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 firm 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. In a recent political campaign, voters were flooded with phone calls (so-called "robo-calls") that instructed the end user to call the number and person listed on the screen. The goal was to harass a political opponent and/or his family and to mislead the end user as to who was making the call. The damages are even greater if the caller identification information being published was previously unpublished.
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 (if not harassed by receiving multiple calls). The person who was spoofed may suffer the following damages: (1) a significant invasion of his privacy; (2) damage to his reputation, depending on the content of the message attached to his caller identification information; (3) the publishing of a previously unpublished phone number; (4) being associated with a telephone effort that is viewed as harassing people; and (5) receiving 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 within New York State a violation of the general business law and authorizing the attorney general and private parties to seek both injunctive and monetary relief.
LEGISLATIVE HISTORY : None to the state.
EFFECTIVE DATE : This act will take effect on the sixtieth day after it shall have become a law.
STATE OF NEW YORK ________________________________________________________________________ 2753--A Cal. No. 64 2009-2010 Regular Sessions IN SENATE March 2, 2009 ___________Introduced by Sen. C. JOHNSON -- read twice and ordered printed, and when printed to be committed to the Committee on Consumer Protection -- recommitted to the Committee on Consumer Protection in accordance with Senate Rule 6, sec. 8 -- reported favorably from said committee and committed to the Committee on Codes -- reported favorably from said committee, ordered to first and second report, ordered to a third reading, amended and ordered reprinted, retaining its place in the order of third reading AN ACT to amend the general business law and the civil practice law and rules, in relation to prohibiting individuals from transmitting misleading or inaccurate caller identification information with the intent to defraud, harass, or cause harm to 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 PERSON WITHIN THE STATE, IN CONNECTION WITH ANY TELECOMMUNICATIONS SERVICE OR VOIP SERVICE, TO CAUSE ANY CALLER IDENTIFICATION SERVICE TO TRANSMIT MISLEADING OR INACCURATE CALLER IDENTIFICATION INFORMATION, WITH THE INTENT TO DEFRAUD, HARASS, OR CAUSE HARM TO ANY PERSON WHEN MAKING A CALL TO ANOTHER PERSON WITHIN THE STATE. 2. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO PREVENT OR RESTRICT ANY PERSON FROM BLOCKING THE CAPABILITY OF ANY CALLER IDENTIFICATION SERVICE TO TRANSMIT CALLER IDENTIFICATION INFORMATION. 3. FOR PURPOSES OF THIS SECTION: (A) "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.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD00314-04-0 S. 2753--A 2
(B) "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. (C) "VOIP SERVICE" MEANS A SERVICE THAT: (I) PROVIDES REAL-TIME VOICE COMMUNICATIONS TRANSMITTED THROUGH END USER EQUIPMENT USING TCP/IP PROTOCOL, OR A SUCCESSOR PROTOCOL, FOR A FEE OR WITHOUT A FEE; AND (II) IS OFFERED TO THE PUBLIC, OR SUCH CLASSES OF USERS AS TO BE EFFECTIVELY AVAILABLE TO THE PUBLIC (WHETHER PART OF A BUNDLE OF SERVICES OR SEPARATELY); AND (III) HAS THE CAPABILITY TO ORIGINATE TRAFFIC TO, OR TERMINATE TRAFFIC FROM, THE PUBLIC SWITCHED TELEPHONE NETWORK. 4. 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. 5. 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 SHALL AWARD REASONABLE ATTORNEY'S FEES TO A PREVAILING PLAINTIFF. 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- 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-threeS. 2753--A 3
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.