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First Substitute H.B. 40
This document includes Senate Committee Amendments incorporated into the bill on Mon, Feb 17, 2003 at 11:18 AM by rday. --> This document includes Senate 3rd Reading Floor Amendments incorporated into the bill on Fri, Feb 21, 2003 at 11:44 AM by rday. -->
6 This act modifies the Commerce and Trade title to enact the Notice of Intent to Sell
7 Nonpublic Personal Information Act. This act defines terms, requires a notice be given
8 by a commercial entity under certain circumstances, and establishes the liability of a
9 commercial entity for violating the act. h THIS ACT TAKES EFFECT ON JANUARY 1, 2004. h
10 This act affects sections of Utah Code Annotated 1953 as follows:
12 13-37-101, Utah Code Annotated 1953
13 13-37-102, Utah Code Annotated 1953
14 13-37-201, Utah Code Annotated 1953
15 13-37-202, Utah Code Annotated 1953
16 13-37-203, Utah Code Annotated 1953
17 Be it enacted by the Legislature of the state of Utah:
18 Section 1. Section 13-37-101 is enacted to read:
22 13-37-101. Title.
23 This chapter is known as the "Notice of Intent to Sell Nonpublic Personal Information
25 Section 2. Section 13-37-102 is enacted to read:
26 13-37-102. Definitions.
27 As used in this chapter:
28 (1) "Affiliate" means a person that controls, is controlled by, or is under common
29 control with:
30 (a) a commercial entity; and
31 (b) (i) directly; or
32 (ii) indirectly through one or more intermediaries.
33 (2) (a) Subject to Subsection (2)(b), "commercial entity" means a person that h :
33a (i) HAS AN OFFICE OR OTHER PLACE OF BUSINESS LOCATED IN THE STATE; AND
33b (ii) h in the
34 ordinary course of business transacts a consumer transaction in this state.
35 (b) "Commercial entity" does not include:
36 (i) a governmental entity; or
37 (ii) an entity providing services on behalf of a governmental entity.
38 (3) "Compensation" means anything of economic value that is paid or transferred to a
39 commercial entity for or in direct consideration of the disclosure of nonpublic personal
41 (4) (a) "Consumer transaction" means:
42 (i) a sale, lease, assignment, award by chance, or other written or oral transfer or
44 (A) that is initiated or completed in this state; and
45 (B) of:
46 (I) goods;
47 (II) services; or
48 (III) other tangible or intangible property, except securities and insurance S OR SERVICES
48a RELATED THERETO s ; or
49 (ii) a transaction:
50 (A) that is initiated or completed in this state; and
51 (B) h THAT h constitutes credit offered or extended by a commercial entity to a person
52 for personal, family, or household purposes.
53 (b) "Consumer transaction" includes:
54 (i) the use of nonpublic personal information in relation to a transaction with a person
55 if the transaction is for primarily personal, family, or household purposes; and
56 (ii) with respect to any transaction described in Subsection (4)(a):
57 (A) an offer or solicitation;
58 (B) an agreement;
59 (C) the performance of an agreement; or
60 (D) a charitable solicitation as defined in Section 13-11-3 .
61 (c) "Consumer transaction" does not include a transaction related to real property.
62 (5) (a) "Nonpublic personal information" means information that:
63 (i) is not public information; and
64 (ii) either alone or in conjunction with public information, identifies a person in
65 distinction from other persons.
66 (b) "Nonpublic personal information" includes:
67 (i) a person's Social Security number;
68 (ii) information used to determine a person's credit worthiness including a person's:
69 (A) income; or
70 (B) employment history;
71 (iii) the purchasing patterns of a person; or
72 (iv) the personal preferences of a person.
73 (6) "Public information" means a person's:
74 (a) name;
75 (b) telephone number; or
76 (c) street address.
77 (7) (a) Subject to Subsection (7)(b), "third party" means a person other than the
78 commercial entity that obtains nonpublic personal information.
79 (b) "Third party" does not include an affiliate S OR AGENT s of the commercial entity that
80 nonpublic personal information.
81 Section 3. Section 13-37-201 is enacted to read:
83 13-37-201. Required notice.
84 (1) (a) In accordance with this section, a commercial entity shall provide the notice
85 described in this section to a person if:
86 (i) the commercial entity enters into a consumer transaction with that person;
87 (ii) as a result of the consumer transaction described in this Subsection (1)(a), the
88 commercial entity obtains nonpublic personal information concerning that person; and
89 (iii) the commercial entity intends to or wants the ability to disclose the nonpublic
90 personal information:
91 (A) to a third party; and
92 (B) for compensation; and
93 (iv) the compensation described in Subsection (1)(a)(iii)(B):
94 (A) is the primary consideration for the commercial entity disclosing the nonpublic
95 personal information;
96 (B) is directly related to the commercial entity disclosing the nonpublic personal
97 information; and
98 (C) is not compensation received by the commercial entity in consideration of a
99 transaction described in Subsection (5).
100 (b) For purposes of this chapter, a commercial entity is considered to have obtained
101 information as a result of a consumer transaction if:
102 (i) the person provides the information to the commercial entity:
103 (A) at any time during the consumer transaction; and
104 (B) at the request of the commercial entity; or
105 (ii) (A) the commercial entity otherwise obtains the information; and
106 (B) but for the consumer transaction, the commercial entity would not obtain the
108 (2) The notice required by Subsection (1) shall be given before the earlier of:
109 (a) the point at which the person is requested to provide the nonpublic personal
110 information; or
111 (b) the commercial entity otherwise obtains the nonpublic personal information as a
112 result of the consumer transaction described in Subsection (1)(a).
113 (3) The notice required by Subsection (1):
114 (a) shall read substantially as follows: "We may choose to disclose nonpublic personal
115 information about you, the consumer, to a third party for compensation.";
116 (b) may be made:
117 (i) orally, if the consumer transaction itself is entirely conducted orally; or
118 (ii) in writing, if the notice is written in dark bold; and
119 (c) shall be sufficiently conspicuous so that a reasonable person would perceive the
120 notice before providing the nonpublic personal information.
121 h [
122 (a) a commercial entity discloses nonpublic personal information to a third party;
123 (b) the commercial entity is subject to a federal law or regulation that governs the
124 disclosure of nonpublic information to a third party; and
125 (c) the disclosure of nonpublic information to a third party complies with or is
126 authorized by the federal law or regulation described in Subsection (4)(b).
126a (4) THIS CHAPTER DOES NOT APPLY TO S : (a) s A COMMERCIAL ENTITY THAT IS SUBJECT TO A
126b FEDERAL LAW OR REGULATION THAT GOVERNS THE DISCLOSURE OF NONPUBLIC INFORMATION
126c TO A THIRD PARTY S ; OR (b) A COVERED ENTITY AS DEFINED IN 45 C.F.R. PARTS 160 AND 164 s . h
127 (5) Notwithstanding the other provisions of this section, a commercial entity is not
128 required to provide notice under this section if:
129 (a) the disclosure of the nonpublic personal information is related to the third party
130 providing to the commercial entity:
131 (i) services S , INCLUDING BUSINESS OUTSOURCE SERVICES s ;
132 (ii) personal or real property; or
133 (iii) other thing of value; and
134 (b) compensation received by the commercial entity as part of the transaction is
135 received by the commercial entity for or in consideration of the transaction described in
136 Subsection (5)(a).
137 Section 4. Section 13-37-202 is enacted to read:
138 13-37-202. Disclosure of nonpublic personal information prohibited without
140 h (1) h A commercial entity may not disclose nonpublic personal information that the
141 commercial entity obtained on or after h [
141a consumer transaction if the
142 commercial entity fails to comply with Section 13-37-201 .
142a h (2) THIS CHAPTER MAY NOT BE INTERPRETED AS AUTHORIZING A COMMERCIAL ENTITY
142b TO DISCLOSE NONPUBLIC PERSONAL INFORMATION TO A GREATER EXTENT THAN THE
142c COMMERCIAL ENTITY IS OTHERWISE PERMITTED TO DISCLOSE NONPUBLIC PERSONAL
142d INFORMATION. h
143 Section 5. Section 13-37-203 is enacted to read:
144 13-37-203. Liability.
145 (1) A person may bring an action against a commercial entity in a court of competent
146 jurisdiction in this state if:
147 (a) the commercial entity enters into a consumer transaction with that person;
148 (b) as a result of the consumer transaction described in Subsection (1)(a), the
149 commercial entity obtains nonpublic personal information concerning that person; and
150 (c) the commercial entity violates this chapter.
151 (2) In an action brought under Subsection (1), a commercial entity that violates this
152 chapter is liable to the person who brings the action for:
153 (a) $500 for each h [
153a FAILS TO PROVIDE THE NOTICE REQUIRED BY THIS SECTION IN RELATION h to the nonpublic
154 information of the person who brings the action; and
155 (b) court costs.
156 (3) A person may not bring a class action under this chapter.
156a h Section 5. Effective date.
156b THIS ACT TAKES EFFECT ON JANUARY 1, 2004. h
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