S2909-2011 Actions

• Jan 18, 2012: REPORTED AND COMMITTED TO FINANCE
• Jan 4, 2012: REFERRED TO CONSUMER PROTECTION
• May 6, 2011: PRINT NUMBER 2909B
• May 6, 2011: AMEND AND RECOMMIT TO CONSUMER PROTECTION
• Apr 20, 2011: PRINT NUMBER 2909A
• Apr 20, 2011: AMEND AND RECOMMIT TO CONSUMER PROTECTION
• Feb 3, 2011: REFERRED TO CONSUMER PROTECTION

S2909-2011 Meetings

S2909-2011 Memo

BILL NUMBER:S2909

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 OR GENERAL IDEA OF THE BILL:

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

SUMMARY OF SPECIFIC PROVISIONS:

Section one of this bill would amend 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 person within the state, 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 seventy-two hour
period; or both such actions. The court may award reasonable
attorney's fees to a prevailing plaintiff.

Section two would amend 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 of this bill would provide 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 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.

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 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:
This is a new bill.

FISCAL IMPLICATIONS:
None Noted.

EFFECTIVE DATE:


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

S2909-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                         2909
 2011-2012 Regular Sessions
 I N  SENATE
 February 3, 2011
 
 Introduced  by  Sen.  ZELDIN -- read twice and ordered printed, and when
 printed to be committed to the Committee on Consumer Protection
 

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 WITHIN  THE
 STATE,  IN  CONNECTION  WITH  ANY  TELECOMMUNICATIONS  SERVICE  OR  VOIP
 SERVICE, TO CAUSE ANY CALLER IDENTIFICATION SERVICE  TO  TRANSMIT  FALSE
 CALLER IDENTIFICATION 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.
 (D) "VOIP SERVICE" MEANS A SERVICE THAT:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD00755-02-1
 
       S. 2909                             2
 (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.
 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.
 

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-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. 2909                             3
 

S  3.  This  act  shall take effect on the sixtieth day after it shall
 have become a law.

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