STATE OF NEW YORK DENNIS C. VACCO SHIRLEY F. SARNA Consumer Frauds and Protection Bureau April 15, 1997 VIA FAX AND AIRBORNE EXPRESS Donald S. Clark, Secretary Re: Consumer Privacy 1997 -- Comment, P954807 Dear Secretary Clark: Following is a copy of our comment with respect to the above referenced matter, as well as a copy of our previous request to participate in Sessions One and Two of the upcoming workshop. We are simultaneously sending the requested six (6) hard copies of our comment via airborne express for overnight delivery. Sincerely, Jane M. Kimmel Comments of State of New York Department of Law Concerning Consumer Privacy - P954807
On behalf of the Office of the Attorney General of the State of New York, I wish to thank you for the opportunity to comment on the important issue of consumer information privacy. Our office previously submitted a written comment concerning on-line databases that provide access to sensitive consumer identifying information. We now wish to address the issue of unsolicited commercial e-mail, which is one of the topics that will be discussed during Session Two of your upcoming public workshop. Our office is particularly concerned with the fact that current law does not address the transmission of unsolicited E-mail. This type of advertising is not only bothersome to many consumers, but is also costly. Millions of consumers pay for online time by the minute and end up being charged for the time spent downloading and reading unwanted, unsolicited ads. Furthermore, there is a significant privacy concern here. Many consumers are unaware of the fact that while they are on-line, these advertisers and other marketers are secretly obtaining or "harvesting" e-mail addresses and other personal identifying information about consumers. This private information is subsequently sold, leased or exchanged without the consumer's knowledge or consent. According to the 1996 Equifax/Harris Consumer Privacy Survey for the Internet, Internet users overwhelmingly objected to having their browsing activities on the World Wide Web tracked for marketing purposes. Our office responded to the need for legislation in this area by proposing an amendment to New York State's General Business Law that specifically addresses unsolicited e-mail advertisements and the privacy concerns of consumers who do not want their e-mail addresses and other personal information sold or exchanged. This bill (Senate #3524, a copy of which is attached) would accomplish the following:
Such legislation would not only protect consumers' privacy rights, but would also help prevent consumers from being rippedoff by e-mail advertisers who do not deliver the good or services promised. Our office recently commenced a lawsuit against one such advertiser who, via unsolicited e-mail, lured consumers into purchasing magazine subscriptions that were never delivered. The advertiser, Kevin Jay Lipsitz, who was doing business under various names such as "Collegetown Magazine Subscription Services" and "Krazy Kevin's Magazine Club." tricked consumers into using his service by disguising his ads as testimonial letters from satisfied customers. In reality, these "testimonials" were not sent by other customers, but by Lipsitz himself. Lipsitz was able to deceive consumers by using a practice known as "spoofing," whereby he falsified portions of his e-mail messages so as to conceal his identity. Although our office was able to build a strong case against Lipsitz because of the deceptive nature of his ads, there is nevertheless a tremendous need for legislation in this area to protect consumers from unsolicited, and in certain cases fraudulent, e-mail advertisements. We hope the above remarks will prove helpful in connection with the Federal Trade Commission's upcoming public workshop, and we thank you for the opportunity to comment on this important issue. Introduced by Sen. ALESI (at request of the Attorney General) 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, in relation to requiring disclosures in connection with unsolicited electronic mail advertisements and requiring the affirmative consent of a consumer to use any electronic identifying information. The People of the State of New York, represented in Senate and Assembly, do enact as follow. Section 1. Tho general business law is amended by adding a new section 396-cc to read as follows: Electronic mail 1. Definition. For purposes of this section, "unsolicited electronic mail advertising" shall mean material which advertises the commercial availability or quality of any property, goods, or services and which is transmitted to a recipient in New York state via electronic mail without that recipient's express invitation or permission, except any such material which is sent based upon a prior contractual or business relationship between the sender and the recipient. 2. It shall be unlawful to transmit any unsolicited electronic mail advertising unless the following information is clearly and conspicuously disclosed as the first item of text in such mail:
It shall be unlawful to continue to transmit any unsolicited electronic mail advertising once the recipient has notified the sender of his electronic not to receive any further unsolicited electronic mail advertising. 3. It shall be unlawful to sell, lease or exchange any consumer's electronic mail address and any other personal identifying information which is obtained online without the knowledge and affirmative consent of such consumer as to the intended sale, lease or exchange of such database. For the purposes of the subdivision, "personal identifying information" shall include, but not be limited to, a person's social security number, date of birth, current and prior addresses, mother's maiden name. 4. Any person who has received an unsolicited mail advertisement and/or whose electronic mail address and any other personal identifying information has been sold, leased or exchanged as a part of a database in violation of this section may bring an action in his own name to recover his actual damages or one hundred dollars, whichever is greater. 5. 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 of not less 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 and justice, enjoining and restraining any further violation, without requiring proof, that any person has, in fact, been injured or damaged thereby. In any such proceedings the court may make allowances to the attorney general as provided in subdivision six of section eighty-three hundred three of the civil practice law and rules, and direct restitution. 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. This act shall take effect immediately. TITLE: An act to amend the general business law, in relation to requiring disclosures in connection with unsolicited electronic mail advertisements and requiring a the affirmative consent of a consumer to use any electronic identifying information. PURPOSE: The purpose of this bill is to allow consumers the right to elect to prevent the further receipt of Unsolicited electronic mail advertisements by providing them with a means to notify the sender thereof of such election, and to require the affirmative consent of consumers as to the use of their electronic mail addresses and other identifying information which is sold, leased or exchanged. SUMMARY: This bill would add a new ยง396-ss to the General Business Law which would: deem it unlawful to transmit any unsolicited electronic mail advertisements unless the sender clearly and conspicuously indicates that the mail is an advertisement, and provides the sender's identity, postal address and telephone number and the means to prevent any further unsolicited electronic mail advertisements from such sender, deem it unlawful to sell, lease or exchange any consumer's electronic mail address or any other personal identifying information which is obtained online without such consumer's knowledge or without that consumers affirmative comment; and provide for a private right of action for damages for a violation of such section. JUSTIFICATION: Current law does not address the transmission of unsolicited electronic mail advertising, whereas, the transmission of unsolicited facsimile transmissions is addressed under current law. Likewise, current law does not address the use of electronic mail addresses or other personal identifying information which is "harvested" or otherwise secretly obtained from consumers while online and which is then sold, leased or exchanged. This type of advertising may not only be bothersome and costly to the recipient, but it is often cleverly disguised as being something other than an advertisement, hence the bill's disclosure requirements. In order to protect consumers from unwanted and unsolicited electronic mail Advertisements while at the same time, respecting those consumers who wish to receive such advertisements, this bill would provide consumers with a means to either prevent further transmissions or continue receiving them. This bill would also protect the privacy interests of consumers who, unknowingly and unwittingly, have their electronic mail address and other personal identifying information "harvested" while online and which information may be then sold, leased or exchanged, by requiring consumers to affirmatively consent to such use prior to the sale, lease or exchange. The 1996 Equifax/Harris Consumer privacy Survey for the Internet confirmed the need for this bill in that it revealed that having their web browsing activities tracked for marketing purposes. FISCAL IMPLICATIONS FOR STATE & LOCAL GOVERNMENTS: None EFFECTIVE DATE: Immediately PRIOR LEGISLATIVE HISTORY: This is a new bill STATE OF NEW YORK On behalf of the Office of the Attorney General of the State of New York, we are writing to notify you of our great interest in participating Sessions One and Two of the above referenced public workshops devoted to consumer information privacy. We enclose herein six (6) copies of our comments pertaining to Session One, and will be forwarding under separate cover our comments Pertaining to Session Two. These workshops address issues of paramount concern to our office and our consumers. With respect to on-line access to sensitive consumer identifying information, which is the subject of Session one, we recently submitted comments on this issue to the Board of Governors of the Federal Reserve System, and several legislative initiatives regarding this matter are currently before the New York State Assembly. With respect to Session Two, our office not only proposed a bill regulating unsolicited commercial e-mail (UCE)f but also recently brought suit against a "spammer" who was disguising his UCE as customer testimonials. In light of our interest and experience concerning these consumer privacy issues, we believe that our office can make a valuable contribution to both Session One and Session Two. Thank you for your consideration of our request to participate in the upcoming workshops, and we look forward to hearing from you shortly. Sincerely,
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