SF 565

2nd Engrossment - 82nd Legislature (2001 - 2002) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to telecommunications; regulating privacy of 
  1.3             telecommunications users; providing penalties; 
  1.4             amending Minnesota Statutes 2000, section 13.681, by 
  1.5             adding a subdivision; proposing coding for new law in 
  1.6             Minnesota Statutes, chapters 237; 325F; proposing 
  1.7             coding for new law as Minnesota Statutes, chapter 325M.
  1.8   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.9                              ARTICLE 1
  1.10                     TELECOMMUNICATIONS PRIVACY
  1.11     Section 1.  Minnesota Statutes 2000, section 13.681, is 
  1.12  amended by adding a subdivision to read: 
  1.13     Subd. 5.  [TELECOMMUNICATIONS SERVICE PROVIDER DATA.] Data 
  1.14  on customers of telecommunications service providers are 
  1.15  classified under section 237.83. 
  1.16     Sec. 2.  [237.82] [TELECOMMUNICATIONS CONSUMER PRIVACY ACT; 
  1.17  DEFINITIONS.] 
  1.18     Subdivision 1.  [GENERALLY.] For purposes of sections 
  1.19  237.82 to 237.87, the following terms have the meanings given 
  1.20  them.  
  1.21     Subd. 2.  [AFFILIATE.] "Affiliate" means any person that 
  1.22  controls, is controlled by, or is under the common control with 
  1.23  a telecommunications service provider.  
  1.24     Subd. 3.  [AGGREGATE INFORMATION.] "Aggregate information" 
  1.25  means collective data that relate to a group or category of 
  1.26  services or customers from which individual customer identities 
  2.1   have been removed or cannot be ascertained.  
  2.2      Subd. 4.  [CUSTOMER.] "Customer" means an individual or 
  2.3   entity or authorized representative of an individual or entity 
  2.4   to whom a telecommunications service provider is providing or 
  2.5   has provided a telecommunications service.  
  2.6      Subd. 5.  [CUSTOMER INFORMATION.] "Customer information" 
  2.7   means individually identifiable information about a customer 
  2.8   that is available to a telecommunications service provider by 
  2.9   virtue of the relationship between the customer and the 
  2.10  provider, including information regarding the identity of 
  2.11  persons called or from whom calls were received, length and 
  2.12  dates of calls, account balances, bank account information for 
  2.13  automatic withdrawal and other purposes, payment records, 
  2.14  transaction histories, or credit information.  Aggregate 
  2.15  information is not customer information.  Subscriber list 
  2.16  information under section 237.86 is not customer information, 
  2.17  except for information about a subscriber that has requested not 
  2.18  to be listed. 
  2.19     Subd. 6.  [TELECOMMUNICATIONS.] "Telecommunications" means 
  2.20  the transmission, between or among points specified by the user, 
  2.21  of information of the user's choosing, without change in the 
  2.22  form or content of the information as sent and received.  
  2.23     Subd. 7.  [TELECOMMUNICATIONS SERVICE.] (a) 
  2.24  "Telecommunications service" means:  
  2.25     (1) the offering of telecommunications for a fee directly 
  2.26  to the public, or to classes of users as to be effectively 
  2.27  available directly to the public, regardless of the facilities 
  2.28  used; and 
  2.29     (2) any service subject to this chapter, provided to a 
  2.30  customer at retail for ultimate consumption.  
  2.31     (b) Telecommunications service does not include a service 
  2.32  furnished by one provider to another for resale. 
  2.33     Subd. 8.  [TELECOMMUNICATIONS SERVICE 
  2.34  PROVIDER.] "Telecommunications service provider" means a 
  2.35  provider of a telecommunications service, including an 
  2.36  independent telephone company, telephone company, or 
  3.1   telecommunications carrier; a municipality that provides a 
  3.2   telecommunications service; or a cellular or other wireless 
  3.3   telecommunications service provider.  
  3.4      Sec. 3.  [237.83] [PRIVACY OF CUSTOMER INFORMATION.] 
  3.5      Subdivision 1.  [DUTY OF CONFIDENTIALITY.] Except as 
  3.6   required by law or with the specific, express, prior consent of 
  3.7   the customer under section 237.84, a telecommunications service 
  3.8   provider that receives or obtains customer information about a 
  3.9   customer by virtue of its provision of a telecommunications 
  3.10  service to the customer shall only disclose or permit access to 
  3.11  that customer information in its provision of:  
  3.12     (1) the telecommunications service from which the private 
  3.13  information is derived; or 
  3.14     (2) services necessary to, or used in, the provision of the 
  3.15  telecommunications service, if the entity receiving the 
  3.16  information complies with the provisions of sections 237.82 to 
  3.17  237.87. 
  3.18     Subd. 2.  [EXCEPTIONS.] Sections 237.82 to 237.87 do not 
  3.19  prohibit a telecommunications service provider from disclosing 
  3.20  or permitting access to customer information: 
  3.21     (1) if necessary to initiate, render, bill, or collect for 
  3.22  telecommunications services; 
  3.23     (2) if necessary to protect the rights or property of the 
  3.24  telecommunications service provider or to protect other users of 
  3.25  the telecommunications service provider's services and other 
  3.26  providers from fraudulent, abusive, or unlawful use of or 
  3.27  subscription to telecommunications services; 
  3.28     (3) if requested by a government entity pursuant to a 
  3.29  subpoena or court order; or 
  3.30     (4) to an affiliate of the telecommunications service 
  3.31  provider for the purpose of providing telecommunications 
  3.32  services to the customer, if the affiliate receiving the 
  3.33  information complies with the provisions of sections 237.82 to 
  3.34  237.87.  
  3.35     Subd. 3.  [GOVERNMENT DATA.] Customer information obtained 
  3.36  by a government entity from a telecommunications service 
  4.1   provider is private data on individuals, as defined in section 
  4.2   13.02, subdivision 12, unless specifically classified by other 
  4.3   law.  Long-distance telephone bills paid for by the state or a 
  4.4   political subdivision are public data under section 10.46. 
  4.5      Subd. 4.  [AGGREGATE CUSTOMER INFORMATION.] Disclosure of 
  4.6   aggregate customer information by a telecommunications service 
  4.7   provider must be made on reasonable and nondiscriminatory terms 
  4.8   and conditions.  
  4.9      Sec. 4.  [237.84] [CUSTOMER NOTICE AND CONSENT FOR 
  4.10  DISCLOSURE.] 
  4.11     Subdivision 1.  [NOTICE.] (a) Before an initial request for 
  4.12  customer consent to the release of customer information and, if 
  4.13  there is an initial request, annually after that initial 
  4.14  request, a telecommunications service provider shall notify the 
  4.15  customer of the customer's right to control disclosure of and 
  4.16  access to information on the customer.  A telecommunications 
  4.17  service provider shall provide this notice in writing directly 
  4.18  to the customer.  The notice must be labeled "IMPORTANT PRIVACY 
  4.19  INFORMATION."  The notice must provide sufficient information to 
  4.20  enable the customer to make an informed decision as to whether 
  4.21  to consent to disclosure of or access to information on the 
  4.22  customer.  
  4.23     (b) A telecommunications service provider shall notify each 
  4.24  customer annually of any currently valid consents the customer 
  4.25  has executed.  
  4.26     Subd. 2.  [CONSENT.] A consent to the release of customer 
  4.27  information must be in writing and signed by the customer or by 
  4.28  electronic means.  The public utilities commission shall, within 
  4.29  120 days of enactment, develop and issue by order a method by 
  4.30  which a customer may consent electronically to disclosure of and 
  4.31  access to information on the customer under this section.  The 
  4.32  consent must be contained on a separate page that clearly and 
  4.33  conspicuously discloses and allows the customer to specify:  
  4.34     (1) the time during which the consent is effective, which 
  4.35  may not be longer than five years; 
  4.36     (2) each category of customer information that may be 
  5.1   disclosed, including identities of persons called or from whom 
  5.2   calls were received, length and dates of calls, account 
  5.3   balances, bank account information, payment records, transaction 
  5.4   histories, or credit information; and 
  5.5      (3) the persons to whom disclosures may be made. 
  5.6      Sec. 5.  [237.85] [PENALTIES.] 
  5.7      In addition to other penalties provided in this chapter, 
  5.8   the attorney general may use its existing authority and remedies 
  5.9   against any telecommunications service provider who violates 
  5.10  section 237.82 or 237.84. 
  5.11     Sec. 6.  [237.86] [SUBSCRIBER LIST INFORMATION.] 
  5.12     (a) The commission shall require a telecommunications 
  5.13  service provider that provides local telecommunications services 
  5.14  to provide subscriber list information gathered in its capacity 
  5.15  as a provider of those services in a timely and unbundled basis 
  5.16  under nondiscriminatory and reasonable rates, terms, and 
  5.17  conditions to any person upon request for the purpose of 
  5.18  publishing telephone directories, to the extent required by 
  5.19  federal law and consistent with the purposes of sections 237.82 
  5.20  to 237.87.  
  5.21     (b) "Subscriber list information" means the list of names 
  5.22  of subscribers of a telecommunications service provider and the 
  5.23  subscribers' telephone numbers and addresses that the 
  5.24  telecommunications service provider, or an affiliate, has 
  5.25  published, caused to be published, or accepted for publication 
  5.26  in any directory format.  Information about a subscriber that 
  5.27  has requested not to be listed is not subscriber list 
  5.28  information.  
  5.29     Sec. 7.  [237.87] [AUTHORITY OF COMMISSION UNAFFECTED.] 
  5.30     Nothing in sections 237.82 to 237.86 is intended to limit 
  5.31  the existing authority of the public utilities commission under 
  5.32  state or federal law with respect to the disclosure of 
  5.33  information.  A telecommunications service provider that obtains 
  5.34  information pursuant to the commission's existing authority may 
  5.35  only disclose or permit access to that information as provided 
  5.36  in sections 237.83 and 237.84. 
  6.1      Sec. 8.  [EFFECTIVE DATE.] 
  6.2      Sections 1 to 7 are effective the day following final 
  6.3   enactment. 
  6.4                              ARTICLE 2
  6.5                     INTERNET CONSUMER PROTECTION
  6.6      Section 1.  [325F.694] [FALSE OR MISLEADING COMMERCIAL 
  6.7   ELECTRONIC MAIL MESSAGES.] 
  6.8      Subdivision 1.  [DEFINITIONS.] (a) The definitions in this 
  6.9   subdivision apply to this section. 
  6.10     (b) "Commercial electronic mail message" means an 
  6.11  electronic mail message sent for the purpose of promoting real 
  6.12  property, goods, or services for sale or lease. 
  6.13     (c) "Electronic mail address" means a destination, commonly 
  6.14  expressed as a string of characters, to which electronic mail 
  6.15  may be sent or delivered. 
  6.16     (d) "Initiate the transmission" refers to the action by the 
  6.17  original sender of an electronic mail message, not to the action 
  6.18  by an intervening interactive computer service that may handle 
  6.19  or retransmit the message. 
  6.20     (e) "Interactive computer service" means any information 
  6.21  service, system, or access software provider that provides or 
  6.22  enables computer access by multiple users to a computer server, 
  6.23  including a service or system that provides access to the 
  6.24  Internet and these systems operated or services offered by 
  6.25  libraries or educational institutions. 
  6.26     (f) "Internet domain name" refers to a globally unique, 
  6.27  hierarchical reference to an Internet host or service, assigned 
  6.28  through centralized Internet naming authorities, comprising a 
  6.29  series of character strings separated by periods, with the 
  6.30  rightmost string specifying the top of the hierarchy. 
  6.31     Subd. 2.  [FALSE OR MISLEADING MESSAGES PROHIBITED.] (a) No 
  6.32  person may initiate the transmission of a commercial electronic 
  6.33  mail message from a computer located in this state or to an 
  6.34  electronic mail address that the sender knows, or has reason to 
  6.35  know, is held by a resident of this state that: 
  6.36     (1) uses a third party's Internet domain name without 
  7.1   permission of the third party, or otherwise misrepresents any 
  7.2   information in identifying the point of origin or the 
  7.3   transmission path of a commercial electronic mail message; or 
  7.4      (2) contains false or misleading information in the subject 
  7.5   line. 
  7.6      (b) For purposes of this subdivision, a person knows that 
  7.7   the intended recipient of a commercial electronic mail message 
  7.8   is a resident of this state if that information is available, 
  7.9   upon request, from the registrant of the Internet domain name 
  7.10  contained in the recipient's electronic mail address. 
  7.11     Subd. 3.  [DAMAGES.] In addition to remedies available 
  7.12  under section 8.31, 325F.70, or other law: 
  7.13     (1) a recipient of a commercial electronic mail message 
  7.14  sent in violation of this section is entitled to damages of 
  7.15  $500, or actual damages, whichever is greater; and 
  7.16     (2) an interactive computer service that is injured by a 
  7.17  violation of this section is entitled to damages of $1,000, or 
  7.18  actual damages, whichever is greater. 
  7.19     Subd. 4.  [BLOCKING RECEIPT OR TRANSMISSION.] (a) An 
  7.20  interactive computer service may, upon its own initiative, block 
  7.21  the receipt or transmission through its service of any 
  7.22  commercial electronic mail that it reasonably believes is, or 
  7.23  will be, sent in violation of this section. 
  7.24     (b) No interactive computer service may be held liable for 
  7.25  any action voluntarily taken in good faith to block the receipt 
  7.26  or transmission through its service of any commercial electronic 
  7.27  mail that it reasonably believes is, or will be, sent in 
  7.28  violation of this section. 
  7.29     Sec. 2.  [325M.01] [DEFINITIONS.] 
  7.30     Subdivision 1.  [SCOPE.] The definitions in this section 
  7.31  apply to this chapter. 
  7.32     Subd. 2.  [CONSUMER.] "Consumer" means a person who agrees 
  7.33  to pay a fee for access to an interactive services provider for 
  7.34  personal, family, or household purposes. 
  7.35     Subd. 3.  [INTERACTIVE SERVICES PROVIDER.] "Interactive 
  7.36  services provider" means a person in the primary business of 
  8.1   offering access to online or Internet information directly to or 
  8.2   for a consumer via telecommunications.  Interactive services 
  8.3   provider includes electronic publishing but does not include: 
  8.4      (1) a service that is provided to business, professional, 
  8.5   or commercial users; 
  8.6      (2) a use of the capability for the management, control, or 
  8.7   operation of a telecommunications system or the management of a 
  8.8   telecommunications service; or 
  8.9      (3) a governmental entity. 
  8.10     Subd. 4.  [ORDINARY COURSE OF BUSINESS.] "Ordinary course 
  8.11  of business" means debt collection activities, order 
  8.12  fulfillment, request processing, or the transfer of ownership. 
  8.13     Subd. 5.  [PERSONALLY IDENTIFIABLE INFORMATION.] 
  8.14  "Personally identifiable information" means information that 
  8.15  identifies: 
  8.16     (1) a person by physical or electronic address or telephone 
  8.17  number; 
  8.18     (2) a person as having requested or obtained specific 
  8.19  materials or services from an interactive services provider; 
  8.20     (3) Internet or online sites visited by a person; or 
  8.21     (4) any of the contents of a person's data storage devices. 
  8.22     Subd. 6.  [TELECOMMUNICATIONS SERVICE.] "Telecommunications 
  8.23  service" means the offering, on a common carrier basis, of 
  8.24  telecommunications facilities or of telecommunications by means 
  8.25  of these facilities.  It does not include an interactive 
  8.26  services provider. 
  8.27     Sec. 3.  [325M.02] [DISCLOSURE OF CONSUMER'S PERSONALLY 
  8.28  IDENTIFIABLE INFORMATION.] 
  8.29     Subdivision 1.  [DISCLOSURE PROHIBITED.] Except as provided 
  8.30  in subdivisions 2 and 3, an interactive services provider who 
  8.31  knowingly discloses personally identifiable information 
  8.32  concerning a consumer of the interactive services provider is 
  8.33  liable to the consumer for the relief provided in section 
  8.34  325M.03. 
  8.35     Subd. 2.  [DISCLOSURE REQUIRED.] An interactive services 
  8.36  provider shall disclose personally identifiable information 
  9.1   concerning a consumer: 
  9.2      (1) to a grand jury pursuant to a grand jury subpoena; 
  9.3      (2) to an investigative or law enforcement officer as 
  9.4   defined in section 626A.01, subdivision 7, carrying out conduct 
  9.5   authorized by chapter 626A or United States Code, title 18, 
  9.6   sections 2510 to 2521; 
  9.7      (3) pursuant to a court order in a civil proceeding upon a 
  9.8   showing of compelling need for the information that cannot be 
  9.9   accommodated by other means; 
  9.10     (4) to a court in a civil action for conversion commenced 
  9.11  by the interactive services provider or in a civil action to 
  9.12  enforce collection of unpaid subscription fees or purchase 
  9.13  amounts, and then only to the extent necessary to establish the 
  9.14  fact of the subscription delinquency or purchase agreement, and 
  9.15  with appropriate safeguards against unauthorized disclosure; or 
  9.16     (5) to the consumer who is the subject of the information, 
  9.17  upon written request. 
  9.18     Subd. 3.  [DISCLOSURE PERMITTED; CONSENT.] (a) An 
  9.19  interactive services provider may disclose personally 
  9.20  identifiable information concerning a consumer to: 
  9.21     (1) any person if the disclosure is incident to the 
  9.22  ordinary course of business of the interactive services 
  9.23  provider; or 
  9.24     (2) any person with the informed consent of the consumer. 
  9.25     (b) The interactive services provider may obtain the 
  9.26  consumer's informed consent to the disclosure of personally 
  9.27  identifiable information in writing or by electronic means.  The 
  9.28  request for consent must reasonably describe the types of 
  9.29  persons to whom personally identifiable information may be 
  9.30  disclosed and anticipated uses of the information.  A consent 
  9.31  may be obtained in a manner consistent with self-regulatory 
  9.32  guidelines issued by representatives of the interactive services 
  9.33  provider industry or other representatives of the marketing or 
  9.34  online industries, or in any other manner reasonably designed to 
  9.35  comply with this paragraph. 
  9.36     Subd. 4.  [SECURED ACCOUNT.] The interactive services 
 10.1   provider shall provide the consumer with a secured, verifiable 
 10.2   account.  The interactive services provider shall maintain the 
 10.3   security and privacy of a consumer's personally identifiable 
 10.4   information concerning this account. 
 10.5      Subd. 5.  [EXCLUSION FROM EVIDENCE.] Personally 
 10.6   identifiable information obtained in any manner other than as 
 10.7   provided in this section may not be received in evidence in any 
 10.8   trial, hearing, arbitration, or other proceeding before any 
 10.9   court, grand jury, officer, agency, regulatory body, legislative 
 10.10  committee, or other authority of the state or any political 
 10.11  subdivision. 
 10.12     Sec. 4.  [325M.03] [ENFORCEMENT; CIVIL LIABILITY.] 
 10.13     A consumer who prevails or substantially prevails in an 
 10.14  action brought under sections 325M.01 to 325M.04 is entitled to 
 10.15  the greater of $500 or actual damages, plus costs, 
 10.16  disbursements, and reasonable attorney fees. 
 10.17     Sec. 5.  [325M.04] [OTHER LAW.] 
 10.18     This chapter does not limit any greater protection of the 
 10.19  privacy of information under other law. 
 10.20     Sec. 6.  [325M.05] [APPLICATION.] 
 10.21     This chapter applies to interactive services providers in 
 10.22  the provision of services to consumers in this state.