S T A T E O F N E W Y O R K
________________________________________________________________________
121
2015-2016 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 7, 2015
___________
Introduced by M. of A. DINOWITZ -- read once and referred to the Commit-
tee on Consumer Affairs and Protection
AN ACT to amend the general business law, in relation to the identity
theft protection services
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 393-b of the general business law, as added by
chapter 433 of the laws of 2005, is amended to read as follows:
S 393-b. [Written solicitation] CREDIT CARD PROTECTION SERVICES. 1.
[Any written] FOR THE PURPOSES OF THIS SECTION:
(A) "CLEARLY AND PROMINENTLY" MEANS: (I) IN WRITTEN COMMUNICATIONS,
INCLUDING PRINT AND THOSE MADE THROUGH AN ELECTRONIC MEDIUM (SUCH AS
VIDEO AND INTERACTIVE MEDIA INCLUDING, BUT NOT LIMITED TO, THE INTERNET,
ONLINE SERVICES, AND ELECTRONIC MAIL) THE MESSAGE SHALL BE IN A TYPE
SIZE SUFFICIENTLY NOTICEABLE FOR AN ORDINARY CONSUMER TO READ AND
COMPREHEND IT, IN TYPE THAT CONTRASTS WITH THE BACKGROUND AGAINST WHICH
IT APPEARS; AND (II) IN ORAL COMMUNICATIONS, THE MESSAGE SHALL BE DELIV-
ERED IN A VOLUME AND CADENCE SUFFICIENT FOR AN ORDINARY CONSUMER TO HEAR
IT AND COMPREHEND IT. IF ANY COMMUNICATION IS PRESENTED SOLELY THROUGH
ORAL, WRITTEN, OR VISUAL MEANS, THE MESSAGE SHALL BE MADE THROUGH THE
SAME MEANS. REGARDLESS OF THE MEDIUM USED TO DISSEMINATE IT, THE MESSAGE
SHALL BE IN UNDERSTANDABLE LANGUAGE AND SYNTAX. NOTHING CONTRARY TO,
INCONSISTENT WITH, OR IN MITIGATION OF THE MESSAGE SHALL BE USED IN ANY
COMMUNICATION.
(B) "CREDIT CARD PROTECTION SERVICE" MEANS A SERVICE TO PROTECT,
INDEMNIFY, OR REIMBURSE THE CREDIT CARD HOLDER AGAINST THE LOSS OR
MISUSE OF THE CREDIT CARD. SUCH TERM SHALL INCLUDE, BUT NOT BE LIMITED
TO, SERVICES THAT OFFER TO OBTAIN ACCESS TO CREDIT REPORTS, PROVIDE AN
EXPLANATION OF CREDIT ENTRIES ON THE REPORT, IDENTIFY THOSE ENTITIES
THAT HAVE ACCESSED THE REPORT, AND PROVIDE CREDIT CARD PROTECTION SECU-
RITY SERVICES.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01537-01-5
A. 121 2
2. IN ANY solicitation to enter into an agreement for various credit
card protection services THE ENTITY OFFERING SUCH SERVICES shall CLEARLY
AND PROMINENTLY:
(A) disclose that the purchase of credit card protection services or
the renewal thereof is not required for a consumer to secure or retain
his or her credit card; and
(B) BY MEANS OF a concise statement [regarding] INFORM THE CONSUMER OF
his or her rights that already exist free of charge under the "Fair
Credit Billing Act" and the regulations thereunder, as such acts and
regulations may from time to time be amended. [A credit card protection
service means a service to protect, indemnify, or reimburse the credit
card holder against the loss or misuse of the credit card. Such term
shall include services provided along with credit card protection
services for the same price, including, but not be limited to, access to
credit reports, an explanation of credit entries on the report, the
identification of those who have accessed the report, and insurance and
security services.] No agreement for CREDIT CARD PROTECTION services
shall provide that services will be automatically renewed on an annual
basis and the consumer billed, unless the consumer in the expiring
agreement is notified not more than sixty days and not less than fifteen
days prior to the termination of the existing agreement by mail of the
credit protection service provider's intention to automatically renew
the agreement.
[2.] 3. Whenever there shall be a violation of this section, applica-
tion 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 by a
special proceeding to issue an injunction, and upon notice to the
defendant of not less than five days, to enjoin and restrain the contin-
uance of such violations; and if it shall appear to the satisfaction of
the court or justice 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. In any such
proceeding, 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 practice law and rules, and direct restitu-
tion. Whenever the court shall determine that a violation of this
section has occurred, the court may impose a civil penalty of not more
than one thousand dollars for each violation. 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.
S 2. The general business law is amended by adding a new section 393-
bb to read as follows:
S 393-BB. IDENTITY THEFT PROTECTION SERVICES. 1. FOR THE PURPOSES OF
THIS SECTION:
(A) "CLEARLY AND PROMINENTLY" MEANS: (I) IN WRITTEN COMMUNICATIONS,
INCLUDING PRINT AND THOSE MADE THROUGH AN ELECTRONIC MEDIUM (SUCH AS
VIDEO AND INTERACTIVE MEDIA INCLUDING, BUT NOT LIMITED TO, THE INTERNET,
ONLINE SERVICES, AND ELECTRONIC MAIL) THE MESSAGE SHALL BE IN A TYPE
SIZE SUFFICIENTLY NOTICEABLE FOR AN ORDINARY CONSUMER TO READ AND
COMPREHEND IT, IN TYPE THAT CONTRASTS WITH THE BACKGROUND AGAINST WHICH
IT APPEARS; AND (II) IN ORAL COMMUNICATIONS, THE MESSAGE SHALL BE DELIV-
ERED IN A VOLUME AND CADENCE SUFFICIENT FOR AN ORDINARY CONSUMER TO HEAR
IT AND COMPREHEND IT. IF ANY COMMUNICATION IS PRESENTED SOLELY THROUGH
ORAL, WRITTEN, OR VISUAL MEANS, THE MESSAGE SHALL BE MADE THROUGH THE
A. 121 3
SAME MEANS. REGARDLESS OF THE MEDIUM USED TO DISSEMINATE IT, THE MESSAGE
SHALL BE IN UNDERSTANDABLE LANGUAGE AND SYNTAX. NOTHING CONTRARY TO,
INCONSISTENT WITH, OR IN MITIGATION OF THE MESSAGE SHALL BE USED IN ANY
COMMUNICATION.
(B) "IDENTITY THEFT PROTECTION SERVICE" MEANS A SERVICE MARKETED,
DESCRIBED AND SOLD AS A SERVICE TO PROTECT A CONSUMER FROM IDENTITY
THEFT. SUCH TERM SHALL INCLUDE, BUT NOT BE LIMITED TO, SERVICES THAT:
(I) NOTIFY CONSUMERS WHEN NEW CREDIT IS OPENED IN HIS OR HER NAME;
(II) MONITOR THE CONSUMER'S CREDIT REPORT FOR ANY CHANGES THAT MAY
INDICATE FRAUDULENT ACTIVITY AND NOTIFY THE CONSUMER OF SUCH ACTIVITY;
(III) PROVIDE THE IDENTIFICATION OF THOSE WHO HAVE OBTAINED ACCESS TO
THE CONSUMER'S CREDIT REPORT;
(IV) PLACE, RENEW, OR UPDATE FRAUD ALERTS OR SECURITY FREEZES; OR
(V) ASSIST CONSUMERS BY OBTAINING A LIMITED POWER OF ATTORNEY FROM THE
CONSUMER. SUCH TERM SHALL NOT INCLUDE IDENTITY THEFT GROUP INSURANCE
POLICIES ISSUED PURSUANT TO SECTION THREE THOUSAND FOUR HUNDRED
FIFTY-ONE OF THE INSURANCE LAW.
2. (A) IN ANY SOLICITATION TO ENTER INTO AN AGREEMENT FOR IDENTITY
THEFT PROTECTION SERVICES THE ENTITY OFFERING SUCH SERVICES SHALL CLEAR-
LY AND PROMINENTLY, BY MEANS OF A CONCISE STATEMENT, INFORM THE CONSUMER
OF HIS OR HER RIGHTS THAT ALREADY EXIST FREE OF CHARGE UNDER THE FEDERAL
FAIR CREDIT REPORTING ACT AND THE REGULATIONS THEREUNDER AND ARTICLE
TWENTY-FIVE OF THIS CHAPTER, AS SUCH ACTS AND REGULATIONS MAY FROM TIME
TO TIME BE AMENDED.
(B) NO AGREEMENT FOR IDENTITY THEFT PROTECTION SERVICES SHALL PROVIDE
THAT SERVICES WILL BE AUTOMATICALLY RENEWED ON AN ANNUAL BASIS AND THE
CONSUMER BILLED, UNLESS THE CONSUMER IN THE EXPIRING AGREEMENT IS NOTI-
FIED NOT MORE THAN SIXTY DAYS AND NOT LESS THAN FIFTEEN DAYS PRIOR TO
THE TERMINATION OF THE EXISTING AGREEMENT BY MAIL OF THE IDENTITY THEFT
PROTECTION SERVICE PROVIDER'S INTENTION TO AUTOMATICALLY RENEW THE
AGREEMENT.
3. WHENEVER THERE SHALL BE A VIOLATION OF THIS SECTION, 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 BY A SPECIAL
PROCEEDING TO ISSUE AN INJUNCTION, AND UPON NOTICE TO THE DEFENDANT OF
NOT LESS THAN FIVE DAYS, TO ENJOIN AND RESTRAIN THE CONTINUANCE OF SUCH
VIOLATIONS; AND IF IT SHALL APPEAR TO THE SATISFACTION OF THE COURT OR
JUSTICE 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. IN ANY SUCH
PROCEEDING, 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 PRACTICE LAW AND RULES, AND DIRECT RESTITU-
TION. WHENEVER THE COURT SHALL DETERMINE THAT A VIOLATION OF THIS
SECTION HAS OCCURRED, THE COURT MAY IMPOSE A CIVIL PENALTY OF NOT MORE
THAN ONE THOUSAND DOLLARS FOR EACH VIOLATION. 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.
S 3. This act shall take effect on the ninetieth day after it shall
have become a law; provided, however that effective immediately, the
addition, amendment and/or repeal of any rule or regulation necessary
for the implementation of this act on its effective date are authorized
and directed to be made and completed on or before such effective date.