AB807: Bill Text

The bill also requires a provider to notify the Department of Agriculture, Trade and Consumer Protection and the Department of Justice within seven business days of learning about a breach of security affecting 5,000 or more customers unless the provider reasonably determines that no harm to customers is reasonably likely to occur as a result of the breach. If a breach of security affects fewer than 5,000 customers, the bill requires a provider to notify DATCP within 30 days after learning about the breach. Under the bill, a provider is required to maintain records for two years that contain information about the notifications made to customers about a breach of security.

A broadband Internet access service provider that intentionally violates the bill is subject to a criminal fine of up to $1,000, or up to three months in jail, or both. Alternatively, a provider that violates the bill is subject to a civil forfeiture of up to $50,000 for the first violation, and up to $100,000 for each subsequent violation. Additionally, under the bill, any person or class of persons that is adversely affected by a violation by a broadband Internet access service provider can sue the provider for appropriate relief. The bill also authorizes 1) DATCP; 2) DOJ, after consulting with DATCP; or 3) any district attorney, upon informing DATCP, to bring an action to restrain by temporary or permanent injunction any violation of the bill.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB807,1 Section 1. 100.75 of the statutes is created to read:

AB807,3,3 100.75 Privacy and security of information obtained by an Internet service provider. (1) Definitions. In this section:

AB807,3,6 (a) “Breach of security” means any instance in which a person, without authorization or exceeding authorization, has gained access to, used, or disclosed customer proprietary information.

AB807,4,2 (b) 1. “Broadband Internet access service” means a mass-market retail service by wire or radio that provides the capability to transmit data and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to and enable the operation of the service, but excluding dial-up Internet access service.

AB807,4,5 2. “Broadband Internet access service” includes any service that the department finds is a functional equivalent of the service specified in subd. 1. or is used to evade the requirements under this section.

AB807,4,6 (c) “Customer” means any of the following:

AB807,4,8 1. A current or former subscriber to broadband Internet access service who resides in this state.

AB807,4,12 2. A person who resides in this state and uses or has used broadband Internet access service that is provided under an agreement between a current or former subscriber who resides in this state and a broadband Internet access service provider.

AB807,4,14 (d) “Customer proprietary information” means any of the following information:

AB807,4,18 1. Individually identifiable information that relates to the quantity, technical configuration, type, destination, location, or amount of use of a broadband Internet access service subscribed to by a customer of a provider of that service, and that is made available to the provider by the customer.

AB807,4,20 2. Any information that is linked or reasonably able to be linked to an individual or a device.

AB807,4,21 3. Content of a customer's communications.

AB807,4,25 (e) “Material change” means any change that a customer, acting reasonably under the circumstances, would consider important to his or her decisions concerning his or her privacy, including any change to information required to be presented in the notice required under sub. (2) (b).

AB807,5,2 (f) “Nonsensitive customer proprietary information” means customer proprietary information that is not sensitive customer proprietary information.

AB807,5,5 (g) “Opt-in approval” means the method for obtaining customer consent in which a provider obtains from the customer affirmative, express consent after the customer is provided appropriate notification of the provider's request for consent.

AB807,5,9 (h) “Opt-out approval” means the method for obtaining customer consent in which a customer is deemed to have consented if the customer has failed to object to a provider's request after the customer is provided with appropriate notification of the provider's request for consent.

AB807,5,11 (i) “Prospective customer” means an applicant for broadband Internet access service who resides in this state.

AB807,5,13 (j) “Sensitive customer proprietary information” means customer proprietary information that is any of the following:

AB807,5,14 1. Financial information.

AB807,5,15 2. Health information.

AB807,5,16 3. Information pertaining to a child.

AB807,5,17 4. A social security number.

AB807,5,18 5. Precise geolocation information.

AB807,5,19 6. Content of communications.

AB807,5,21 7. Web browsing history, smart phone or tablet computer application usage history, and the functional equivalents of either.

AB807,5,24 (k) “Subscriber” means a person who enters into an agreement for the provision of broadband Internet access services with a provider of broadband Internet access services. “Subscriber” does not include a person who resells services.

AB807,6,4 (2) Notice requirements. (a) When notice required. 1. A broadband Internet access service provider shall make a notice available at all times to customers about its policies concerning the privacy of the information that the provider obtains about customers.

AB807,6,7 2. A broadband Internet access service provider shall notify a prospective customer, at the point of sale, prior to a purchase of service, about its policies concerning the privacy of information that the provider obtains about customers.

AB807,6,9 (b) Contents. A broadband Internet access service provider shall include all of the following in the notice provided to customers under par. (a):

AB807,6,12 1. A specific description of the types of customer proprietary information that the broadband Internet access service provider collects from providing broadband Internet access service and how it uses that information.

AB807,6,15 2. A specific description of the circumstances under which the broadband Internet access service provider discloses or permits access to each type of customer proprietary information that it collects.

AB807,6,19 3. A specific description of the categories of entities to which the broadband Internet access service provider discloses or permits to access customer proprietary information and the purposes for which that information will be used by each category of entities.

AB807,6,22 4. A specific description of the customer's rights to grant, deny, or withdraw approval concerning the customer's proprietary information, including each of the following:

AB807,6,25 a. A statement that the customer's denial or withdrawal of approval to use, disclose, or permit access to customer proprietary information will not affect the provision of any broadband Internet access services to the customer.

AB807,7,3 b. A statement that any grant, denial, or withdrawal of approval for the use, disclosure, or permission of access to customer proprietary information is valid until the customer affirmatively revokes the grant, denial, or withdrawal.

AB807,7,5 c. A statement that the customer has the right to deny or withdraw approval to use, disclose, or permit access to customer proprietary information at any time.

AB807,7,6 5. Access to a mechanism required under sub. (3) (d) 3.

AB807,7,11 (c) Material changes to a privacy policy. A broadband Internet access service provider shall provide a notice, through electronic mail or another means of prompt communication agreed upon by the customer, to a customer of a material change to its policies concerning the privacy of information that the provider obtains about the customer. The notice shall include all of the following:

AB807,7,16 1. A specific description of the changes made to the provider's privacy policies, including any changes to what customer proprietary information the provider collects; how the provider uses, discloses, or permits access to that information; the categories of entities to which it discloses or permits access to customer proprietary information; and which, if any, changes are retroactive.

AB807,7,17 2. The description required under par. (b) 4.

AB807,7,18 3. Access to a mechanism required under sub. (3) (d) 3.

AB807,7,22 (d) When translation required. If a broadband Internet access service provider transacts business with a customer in a language other than English, the provider shall translate the contents of the notices required under pars. (b) and (c) into the language through which the provider transacts business with the customer.

AB807,7,25 (3) Customer approval. (a) Opt-in approval required. Except as provided under par. (c), a broadband Internet access service provider may not do any of the following unless the provider obtains opt-in approval from the customer:

AB807,8,2 1. Use, disclose, or permit access to any of the customer's sensitive customer proprietary information.

AB807,8,5 2. Use, disclose, or permit access to any of the customer's proprietary information previously collected by the provider for which the customer has not previously granted approval under this paragraph or par. (b).

AB807,8,9 (b) Opt-out approval required. 1. Except as provided under subd. 2. or par. (c), a broadband Internet access service provider may not use, disclose, or permit access to any of a customer's nonsensitive customer proprietary information unless the provider obtains opt-out approval from the customer.

AB807,8,12 2. A broadband Internet access service provider may obtain opt-in approval from a customer to use, disclose, or permit access to any of the customer's nonsensitive customer proprietary information.

AB807,8,16 (c) Permissible use without customer approval. A broadband Internet access service provider may use, disclose, or permit access to customer proprietary information without approval from the customer under par. (a) or (b) only for the following purposes:

AB807,8,19 1. To provide the broadband Internet access service from which the information is derived, or in its provision of services necessary to, or used in, the provision of that service.

AB807,8,20 2. To initiate, render, bill, or collect for broadband Internet access service.

AB807,8,23 3. To protect the rights or property of the broadband Internet access service provider, or to protect users of the broadband Internet access service and other providers from fraudulent, abusive, or unlawful use of the service.

AB807,9,3 4. To provide any marketing, referral, or administrative services to a customer for the duration of a real-time interaction if the interaction was initiated by the customer.

AB807,9,5 5. To provide location information or nonsensitive customer proprietary information to any of the following:

AB807,9,9 a. A public safety answering point, as defined in s. 256.35 (1) (gm), emergency medical service provider, emergency dispatch provider, public safety official, fire service official, law enforcement official, or hospital emergency or trauma care facility, in order to respond to the user's request for emergency services.

AB807,9,12 b. The user's legal guardian or a member of the user's immediate family, to inform about the user's location in an emergency situation that involves the risk of death or serious physical harm.

AB807,9,15 c. A provider of information or database management services only for the purpose of assisting in the delivery of emergency services in response to an emergency.

AB807,9,16 6. As otherwise required or authorized by law.

AB807,9,21 (d) Solicitation and exercise of customer approval. 1. A broadband Internet access service provider shall request the approval required under par. (a) or (b) at the point of sale to a customer and at the time the provider makes a material change to its policies concerning the privacy of information that the provider obtains about a customer.

AB807,9,24 2. A broadband Internet access service provider shall request customer approval clearly and conspicuously, in language that is readily understandable and not misleading, and each request shall include all of the following:

AB807,10,2 a. A disclosure of the types of customer proprietary information for which the provider is seeking customer approval to use, disclose, or permit access to.

AB807,10,4 b. A disclosure of the purposes for which the customer's proprietary information will be used.

AB807,10,6 c. A disclosure of the categories of entities to which the provider intends to disclose or permit access to the customer proprietary information.

AB807,10,7 d. A means to easily access the notice required under sub. (2) (a) or (c).

AB807,10,8 e. A means to easily access the mechanism required under subd. 3.

AB807,10,11 3. A broadband Internet access service provider shall make available, at no additional cost to the customer, a mechanism for a customer to grant, deny, or withdraw opt-in approval or opt-out approval, or both, at any time.

AB807,10,15 4. A broadband Internet access service provider shall give effect to a customer's grant, denial, or withdrawal of approval promptly, and the grant, denial, or withdrawal of approval shall remain in effect until the customer revokes or limits the grant, denial, or withdrawal of approval.

AB807,10,20 5. If a broadband Internet access service provider transacts business with a customer in a language other than English, the provider shall translate the contents required under subd. 2. and the instructions for using the mechanism required under subd. 3. into the language through which the provider transacts business with the customer.

AB807,10,23 (4) Data security. (a) A broadband Internet access service provider shall take reasonable security measures to protect customer proprietary information from unauthorized use, disclosure, or access.

AB807,11,3 (b) In implementing reasonable security measures under par. (a), a broadband Internet access service provider shall appropriately take into account each of the following factors:

AB807,11,4 1. The nature and scope of the provider's activities.

AB807,11,5 2. The sensitivity of the data it collects.

AB807,11,6 3. The size of the provider.

AB807,11,7 4. The technical feasibility of implementing the security measures.

AB807,11,14 (5) Data breach notification. (a) Customer notification. 1. Except as provided in subd. 4., a broadband Internet access service provider shall, without unreasonable delay, notify a customer about any breach of security involving customer proprietary information pertaining to that customer within 30 days after the provider reasonably determines that a breach of security has occurred unless the provider reasonably determines that no harm to the customer is reasonably likely to occur as a result of the breach of security.

AB807,11,16 2. A broadband Internet access service provider shall notify a customer about a breach of security under subd. 1. by at least one of the following methods:

AB807,11,20 a. A written notification sent to either the customer's electronic mail address or the postal address of record of the customer, or, for former customers, to the last postal address ascertainable after reasonable investigation using commonly available sources.

AB807,11,22 b. Other electronic means of prompt communication agreed upon by the customer for contacting that customer for breach of security notification purposes.

AB807,11,24 3. A broadband Internet access service provider shall provide all of the following information in a notice required under subd. 1.:

AB807,11,25 a. The date, estimated date, or estimated date range of the breach of security.

AB807,12,3 b. A description of the customer proprietary information that was involved in the breach of security or reasonably believed to have been involved in the breach of security.

AB807,12,6 c. Information that the customer may use to contact the provider to inquire about the breach of security and the customer proprietary information that the provider maintains about that customer.

AB807,12,8 d. Information about how to contact the department and any federal agencies relevant to the service provided to the customer.

AB807,12,13 e. If the breach of security creates a risk of financial harm, information about the national credit-reporting agencies and the steps customers can take to guard against identity theft, including any credit monitoring, credit reporting, credit freezes, or other consumer protections that the provider is offering customers affected by the breach of security, including security freezes under s. 100.54.

AB807,12,15 4. Upon the request of a law enforcement agency, a broadband Internet access service provider shall not disclose a breach of security to a customer.