AB807: Bill Text

LRB-5265/1

KP:cdc

2021 - 2022 LEGISLATURE

2021 Assembly BILL 807

January 6, 2022 - Introduced by Representatives Brostoff, Hebl, Milroy, Cabrera, Andraca, Anderson, Subeck and Sinicki, cosponsored by Senators Larson, Carpenter, Roys and Smith. Referred to Committee on Energy and Utilities.

AB807,1,3 An Act to create 100.75 of the statutes; relating to: privacy and security of customer information obtained by a broadband Internet access service provider and providing a penalty.

Analysis by the Legislative Reference Bureau

This bill generally prohibits a broadband Internet access service provider (“provider”) from using, disclosing, or permitting access to a customer's proprietary information unless the customer grants approval to the provider to use, disclose, or permit access to that information. The bill defines “customer” as 1) a current or former subscriber to broadband Internet access service who resides in this state; or 2) a person who resides in this state and uses broadband Internet access service that is provided under an agreement between a current or former subscriber who resides in this state and a provider. With certain exceptions described below, the bill requires different types of approval for sensitive and nonsensitive customer proprietary information. For sensitive information, the customer must grant express, affirmative consent after receiving a notification that is required to accompany a provider's request to use, disclose, or permit access to that information. Sensitive information includes the following: 1) financial information; 2) health information; 3) information pertaining to a child; 4) a social security number; 5) precise geolocation information; 6) content of communications; and 7) web browsing history and smart phone or tablet computer application usage history.

For nonsensitive information, the customer must object to the provider's request to use, disclose, or permit access to that information after the customer receives a notification that is required to accompany the provider's request. Under the bill, nonsensitive information is the following information that is not sensitive information: 1) information that is linked or reasonably able to be linked to an individual or a device; or 2) information that identifies an individual and that relates to the quantity, technical configuration, type, destination, location, or amount of use of broadband Internet access service.

Also, under the bill, a provider is prohibited from refusing to provide broadband Internet access service because a customer or prospective customer does not grant approval to the provider to use, disclose, or permit access to proprietary information.

The bill allows a provider to use, disclose, or permit access to both sensitive and nonsensitive customer proprietary information without receiving the customer's approval only for the following purposes: 1) to provide the broadband Internet access service from which the information is derived; 2) to initiate, render, bill, or collect for broadband Internet access service; 3) to protect the rights or property of a provider or to protect users against fraudulent, abusive, or unlawful use of the service; 4) to provide certain services to a customer during a real-time interaction with the provider initiated by the customer; 5) to provide location information or nonsensitive information in emergencies; or 6) as otherwise required or authorized by law.

Under the bill, when a provider requests approval to use, disclose, or permit access to a customer's proprietary information, the provider's request must accompany a notice that includes a specific description of the following: 1) the types of customer proprietary information that the provider will collect from providing broadband Internet access service, and how it will use the information; 2) the circumstances under which the provider discloses or permits access to each type of customer proprietary information that it collects; 3) the categories of entities to which the provider discloses or permits to access the customer's proprietary information and the purposes for which that information will be used by each category of entity; and 4) the customer's rights to grant, deny, or withdraw approval concerning the customer's proprietary information. The notice must also include access to a mechanism that the customer can use to grant, deny, or withdraw approval at any time.

The bill requires that when a provider makes a material change to its policies concerning the privacy of customer proprietary information, the provider must give to each customer a similar notice that also includes a specific description of the changes made to the privacy policies. The bill also requires that all notices and mechanisms used for granting, denying, or withdrawing approval be translated into the language that the provider uses to transact business with a customer.

The bill requires providers to take reasonable security measures to protect customer proprietary information from unauthorized use, disclosure, or access. Further, when a breach of the provider's security occurs, the provider is required to notify each affected customer within 30 days after learning of the breach unless the provider reasonably determines that no harm to the customer is reasonably likely to occur as a result. The notification must describe the information that is reasonably believed to have been involved in the security breach and include information about how to contact the provider to inquire about the security breach and how to contact relevant government agencies. If the security breach creates a risk of financial harm, the notification must also include information about steps that the customer can take to guard against identity theft.

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.