STATE OF NEW YORK ________________________________________________________________________ 5242 2017-2018 Regular Sessions IN ASSEMBLY February 7, 2017 ___________ 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: 1 Section 1. Section 393-b of the general business law, as added by 2 chapter 433 of the laws of 2005, is amended to read as follows: 3 § 393-b. [~~Written solicitation~~] Credit card protection services. 1. 4 [~~Any written~~] For the purposes of this section: 5 (a) "Clearly and prominently" means: (i) in written communications, 6 including print and those made through an electronic medium (such as 7 video and interactive media including, but not limited to, the Internet, 8 online services, and electronic mail) the message shall be in a type 9 size sufficiently noticeable for an ordinary consumer to read and 10 comprehend it, in type that contrasts with the background against which 11 it appears; and (ii) in oral communications, the message shall be deliv- 12 ered in a volume and cadence sufficient for an ordinary consumer to hear 13 it and comprehend it. If any communication is presented solely through 14 oral, written, or visual means, the message shall be made through the 15 same means. Regardless of the medium used to disseminate it, the message 16 shall be in understandable language and syntax. Nothing contrary to, 17 inconsistent with, or in mitigation of the message shall be used in any 18 communication. 19 (b) "Credit card protection service" means a service to protect, 20 indemnify, or reimburse the credit card holder against the loss or 21 misuse of the credit card. Such term shall include, but not be limited 22 to, services that offer to obtain access to credit reports, provide an 23 explanation of credit entries on the report, identify those entities 24 that have accessed the report, and provide credit card protection secu- 25 rity services. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD03183-01-7

A. 5242 2 1 2. In any solicitation to enter into an agreement for various credit 2 card protection services the entity offering such services shall clearly 3 and prominently: 4 (a) disclose that the purchase of credit card protection services or 5 the renewal thereof is not required for a consumer to secure or retain 6 his or her credit card; and 7 (b) by means of a concise statement [~~regarding~~] inform the consumer of 8 his or her rights that already exist free of charge under the "Fair 9 Credit Billing Act" and the regulations thereunder, as such acts and 10 regulations may from time to time be amended. [~~A credit card protection~~ 11 ~~service means a service to protect, indemnify, or reimburse the credit~~ 12 ~~card holder against the loss or misuse of the credit card. Such term~~ 13 ~~shall include services provided along with credit card protection~~ 14 ~~services for the same price, including, but not be limited to, access to~~ 15 ~~credit reports, an explanation of credit entries on the report, the~~ 16 ~~identification of those who have accessed the report, and insurance and~~ 17 ~~security services.~~] No agreement for credit card protection services 18 shall provide that services will be automatically renewed on an annual 19 basis and the consumer billed, unless the consumer in the expiring 20 agreement is notified not more than sixty days and not less than fifteen 21 days prior to the termination of the existing agreement by mail of the 22 credit protection service provider's intention to automatically renew 23 the agreement. 24 [2.] 3. Whenever there shall be a violation of this section, applica- 25 tion may be made by the attorney general in the name of the people of 26 the state of New York to a court or justice having jurisdiction by a 27 special proceeding to issue an injunction, and upon notice to the 28 defendant of not less than five days, to enjoin and restrain the contin- 29 uance of such violations; and if it shall appear to the satisfaction of 30 the court or justice that the defendant has, in fact, violated this 31 section, an injunction may be issued by such court or justice, enjoining 32 and restraining any further violation, without requiring proof that any 33 person has, in fact, been injured or damaged thereby. In any such 34 proceeding, the court may make allowances to the attorney general as 35 provided in paragraph six of subdivision (a) of section eighty-three 36 hundred three of the civil practice law and rules, and direct restitu- 37 tion. Whenever the court shall determine that a violation of this 38 section has occurred, the court may impose a civil penalty of not more 39 than one thousand dollars for each violation. In connection with any 40 such proposed application, the attorney general is authorized to take 41 proof and make a determination of the relevant facts and to issue 42 subpoenas in accordance with the civil practice law and rules. 43 § 2. The general business law is amended by adding a new section 393- 44 bb to read as follows: 45 § 393-bb. Identity theft protection services. 1. For the purposes of 46 this section: 47 (a) "Clearly and prominently" means: (i) in written communications, 48 including print and those made through an electronic medium (such as 49 video and interactive media including, but not limited to, the Internet, 50 online services, and electronic mail) the message shall be in a type 51 size sufficiently noticeable for an ordinary consumer to read and 52 comprehend it, in type that contrasts with the background against which 53 it appears; and (ii) in oral communications, the message shall be deliv- 54 ered in a volume and cadence sufficient for an ordinary consumer to hear 55 it and comprehend it. If any communication is presented solely through 56 oral, written, or visual means, the message shall be made through the

A. 5242 3 1 same means. Regardless of the medium used to disseminate it, the message 2 shall be in understandable language and syntax. Nothing contrary to, 3 inconsistent with, or in mitigation of the message shall be used in any 4 communication. 5 (b) "Identity theft protection service" means a service marketed, 6 described and sold as a service to protect a consumer from identity 7 theft. Such term shall include, but not be limited to, services that: 8 (i) notify consumers when new credit is opened in his or her name; 9 (ii) monitor the consumer's credit report for any changes that may 10 indicate fraudulent activity and notify the consumer of such activity; 11 (iii) provide the identification of those who have obtained access to 12 the consumer's credit report; 13 (iv) place, renew, or update fraud alerts or security freezes; or 14 (v) assist consumers by obtaining a limited power of attorney from the 15 consumer. Such term shall not include identity theft group insurance 16 policies issued pursuant to section three thousand four hundred fifty- 17 one of the insurance law. 18 2. (a) In any solicitation to enter into an agreement for identity 19 theft protection services the entity offering such services shall clear- 20 ly and prominently, by means of a concise statement, inform the consumer 21 of his or her rights that already exist free of charge under the federal 22 fair credit reporting act and the regulations thereunder and article 23 twenty-five of this chapter, as such acts and regulations may from time 24 to time be amended. 25 (b) No agreement for identity theft protection services shall provide 26 that services will be automatically renewed on an annual basis and the 27 consumer billed, unless the consumer in the expiring agreement is noti- 28 fied not more than sixty days and not less than fifteen days prior to 29 the termination of the existing agreement by mail of the identity theft 30 protection service provider's intention to automatically renew the 31 agreement. 32 3. Whenever there shall be a violation of this section, application 33 may be made by the attorney general in the name of the people of the 34 state of New York to a court or justice having jurisdiction by a special 35 proceeding to issue an injunction, and upon notice to the defendant of 36 not less than five days, to enjoin and restrain the continuance of such 37 violations; and if it shall appear to the satisfaction of the court or 38 justice that the defendant has, in fact, violated this section, an 39 injunction may be issued by such court or justice, enjoining and 40 restraining any further violation, without requiring proof that any 41 person has, in fact, been injured or damaged thereby. In any such 42 proceeding, the court may make allowances to the attorney general as 43 provided in paragraph six of subdivision (a) of section eighty-three 44 hundred three of the civil practice law and rules, and direct restitu- 45 tion. Whenever the court shall determine that a violation of this 46 section has occurred, the court may impose a civil penalty of not more 47 than one thousand dollars for each violation. In connection with any 48 such proposed application, the attorney general is authorized to take 49 proof and make a determination of the relevant facts and to issue 50 subpoenas in accordance with the civil practice law and rules. 51 § 3. This act shall take effect on the ninetieth day after it shall 52 have become a law; provided, however that effective immediately, the 53 addition, amendment and/or repeal of any rule or regulation necessary 54 for the implementation of this act on its effective date are authorized 55 and directed to be made and completed on or before such effective date.

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