AB459: Bill Text

LRB-0997/3

JTK/RM/DK/PK/RN/ML/PD/RK:cjs:rs

2001 - 2002 LEGISLATURE

2001 Assembly BILL 459

July 10, 2001 - Introduced by Representatives Schneider, Sinicki and Turner, cosponsored by Senator Erpenbach. Referred to Committee on Personal Privacy.

AB459,2,12 An Act to repeal 134.72 (2) (b) (title); to renumber 19.37 (4), 36.11 (35) (title), 134.72 (1) (c) and 134.72 (2) (a); to renumber and amend 36.11 (35), 134.72 (2) (b) and 968.31 (2) (c); to amend 59.20 (3) (d), 71.05 (6) (a) 15., 71.21 (4), 71.26 (2) (a), 71.34 (1) (g), 71.45 (2) (a) 10., 77.92 (4), 100.264 (2) (intro.), 134.72 (title), 134.72 (3) (a), 134.72 (3) (b), 134.72 (4), 632.725 (2) (d) and 968.27 (12); and to create 13.0991, 19.36 (10), 19.37 (4) (b) and (c), 36.32 (1), 36.38, 38.12 (12), 39.49, 71.07 (5s), 71.10 (4) (gv), 71.28 (5s), 71.30 (3) (eon), 71.47 (5s), 71.49 (1) (eon), 100.52, 118.39, 134.92, 138.25, 146.833, 175.22, subchapter V of chapter 224 [precedes 224.991], 421.301 (13m), 422.422, 610.75, 895.50 (2) (d), 895.50 (2m), 968.27 (14m), 968.31 (2) (c) 2. and 971.19 (11) of the statutes; relating to: access to certain public records containing social security account numbers of individuals; creating a nonrefundable income tax and franchise tax credit for information technology training; prohibiting certain telephone solicitations; prohibiting the disclosure of information on credit and debit card receipts for the purchase of motor fuel; use of caller identification blocking services by telephone solicitors; credit card records; disclosure of credit reports; use of social security numbers as medical or health insurance identifiers; preparation of privacy impact statements for bills that would have an impact on personal privacy; place of trial for persons charged with certain crimes; the use of a person's social security number in his or her student identification number at private institutions of higher education; written policies on entering locker rooms being used by athletic teams representing certain schools or by professional athletic teams; interception of oral communications between an employee of a retail business and a customer of the retail business; expanding the right of privacy; tracking of consumer Internet usage by issuers of consumer credit; and providing penalties.

Analysis by the Legislative Reference Bureau

Under current law, a person whose privacy is unreasonably invaded is entitled to equitable relief to prevent and restrain the invasion, compensatory damages, and reasonable attorney fees. Current law defines "invasion of privacy" to mean any of the following:

1. A highly offensive intrusion upon the privacy of another in a place that a reasonable person would consider private or in a manner that is actionable for trespass.

2. The advertising or trade use of the name or picture of a living person without first receiving that person's permission.

3. The publicity given to the private life of another that is highly offensive if the person that publicized the private life had acted unreasonably or recklessly as to whether there was a legitimate public interest in the matter involved or with actual knowledge that there was no legitimate public interest in the matter publicized.

This bill expands the definition of "invasion of privacy" to include publicity given to a matter concerning the person that places that person in a false light if that false light would be highly offensive to another person. If the person placed in the false light is a public person, the person who publicized the matter is liable for an invasion of the person's privacy if the publisher had knowledge of the falsity of the matter or acted with reckless disregard as to the falsity of the matter. If the person placed in the false light is a private person, the person who publicized the matter is liable for an invasion of the person's privacy if the publisher did not use reasonable care. The truth of the publicized matter is a defense to an action for invasion of the person's privacy if the publisher acted with good motives and for justifiable ends.

Currently, unless otherwise provided by law, a state or local agency must provide public access to information contained in its records unless the agency demonstrates that the public interest in withholding access to that information outweighs the strong public interest in providing that access. Federal law prohibits state and local governmental units from disclosing social security account numbers under certain conditions.

This bill provides that, if a new record containing the social security account number of an individual, together with information revealing the identity of that individual, is kept by a state or local governmental unit on or after January 1, 2003, or if a record in the custody of a state or local governmental unit is modified to insert the social security account number of an individual on or after January 1, 2003, and the record contains information revealing the identity of that individual, the custodian of the record must delete the social security account number before permitting access to the record, unless the person who requests access to the record is specifically authorized by federal or state law to have access to the social security account number.

The bill, however, permits the requester of a record to have access to the social security account number of an individual if:

1. The requester is an individual and the record pertains to that requester alone, to the marital or parental rights or responsibilities of that requester and his or her spouse or former spouse, to the property of that requester held jointly or in common with one or more other individuals, or to a civil lawsuit in which the requester is a specifically named party, and the requester provides appropriate identification; or

2. The requester is an authorized representative of an insurer or an organization that performs investigations for insurers and the social security account number is relevant to an investigation of suspected, anticipated, or actual insurance fraud.

Moreover, if any person misrepresents his or her identity for the purpose of obtaining access to the social security account number of another individual, the person is subject to a forfeiture (civil penalty) of not more than $1,000 for each social security account number obtained by means of misrepresentation. In addition, under the bill, if any insurer or other person obtains a social security account number and uses that number for purposes other than an investigation of suspected, anticipated, or actual insurance fraud, the person is subject to a forfeiture of not more than $1,000 for each social security account number used by the person for unauthorized purposes.

The bill also prohibits a health care provider or a health insurer from using for any patient or insured or enrollee an identification number that is identical to or that incorporates the patient's or the insured's or enrollee's social security number. However, under the bill, a health care provider or health insurer is not prohibited from requiring that the patient or insured or enrollee disclose his or her social security number or from using that number if a federal or state agency requires its use in order for the patient or insured or enrollee to participate in a particular program.

This bill makes the following changes regarding telephone solicitations:

1. The bill prohibits a person from using an automatic telephone dialing system in making a telephone solicitation if the system is used in such a way that two or more telephone lines are engaged simultaneously.

2. The bill prohibits a person who makes a telephone solicitation from using a blocking service that withholds the person's name or telephone number from the person who receives the solicitation.

3. The bill requires the department of agriculture, trade and consumer protection (DATCP) to enforce a prohibition under current law against using an electronically prerecorded message in a telephone solicitation without the consent of the person called. Under current law, local district attorneys enforce the prohibition. The bill also requires DATCP to enforce the prohibitions regarding telephone solicitations.

4. The bill allows a residential telephone customer to request his or her local telecommunications utility to include a listing or symbol in its telephone directory that indicates that the customer does not want to receive telephone solicitations. A telecommunications utility may impose a onetime charge for including a listing or symbol in its telephone directory.

5. The bill prohibits a telephone solicitor from making a telephone solicitation to an individual for which there is a listing or symbol described above.

6. Except for the last prohibition described above, the bill provides that a person who violates the foregoing prohibitions is subject to a forfeiture of up to $500. A telephone solicitor who violates the last prohibition is subject to a forfeiture of up to $10,000. Under certain circumstances, a person who violates any of the prohibitions may be subject to a supplemental forfeiture of up to $10,000 if the telephone solicitation was directed against an elderly or disabled person.

Current law is silent regarding a person's authority to sell information about holders of credit cards. Under this bill, a person (which includes a corporation) may not sell information about Wisconsin residents that is obtained from credit card transaction records. The bill provides for certain exceptions from this prohibition. First, the bill excepts disclosures to credit reporting agencies for the purpose of preparing a credit report and disclosures by credit reporting agencies. The bill also contains certain exceptions for disclosing information to affiliates of the person making the disclosure and to contractors or agents of the issuer for the purpose of performing functions for or on behalf of the issuer. Those disclosures are permitted notwithstanding the provisions of the bill that require a person to obtain the consent of the subject of any personally identifiable information before using or disclosing that information for a commercial purpose. Persons violating the disclosure provisions created in the bill are subject to a forfeiture of not more than $10,000 for each violation. The bill authorizes the department of justice to bring actions in circuit court to enjoin violations of the disclosure provisions.

Wisconsin law currently does not specifically regulate the disclosure of credit reports to consumers by a credit reporting agency (agency). However, under current federal law, an agency must provide a consumer with five pieces of information upon request: all nonmedical information contained in the agency's files on the consumer, the sources of that information, the recipients of any credit report concerning the consumer, information regarding any checks that form the basis of an adverse characterization of the consumer, and a record of certain inquiries received by the agency that identified the consumer. Generally, unless the consumer's request is pursuant to a denial of credit or to a notice that the consumer's credit may be adversely affected, the agency may charge up to $8 for this disclosure. In certain circumstances, federal law prohibits an agency from disclosing the sources of information in a consumer's file.

This bill requires an agency, upon request, to provide one free written disclosure report to a consumer per year. In addition to the disclosure required by the federal law, this bill requires the agency to provide the consumer with a current credit report and a clear and concise explanation of the contents of the written disclosure report. This bill prohibits an agency from making certain disclosures prohibited under federal law. A person who violates this bill may be fined up to $500 for a first offense and may be fined up to $1,000 or imprisoned for up to six months or both for a subsequent offense within six months.

Under current law, a transaction in which a consumer is granted credit in an amount of $25,000 or less and which is entered into for personal, family, or household purposes (consumer credit transaction) is generally subject to the Wisconsin Consumer Act. Examples of consumer credit transactions include, among other things, purchases of consumer goods on credit, consumer loans, and open-end consumer credit plans (typically, credit cards). The Wisconsin Consumer Act provides obligations, remedies, and penalties with regard to these transactions that current law generally does not require for other transactions.

Under this bill, a creditor under a consumer credit transaction may not store a "cookie" on a computer that the creditor knows or has reason to know is used by a consumer, or access information obtained from a "cookie" that another person has stored on such a computer. A "cookie" is a file that is created and stored on a computer as a result of that computer accessing and interacting with an Internet Web site and that contains information regarding the Internet Web sites accessed through use of that computer, or information used when that computer accesses an Internet Web site previously accessed through use of that computer, or both.

Under current law, with certain exceptions, no person may intentionally intercept an oral communication made by another person. A person who violates this prohibition may be imprisoned for not more than seven years and six months or fined not more than $10,000 or both. Under the so-called "one-party consent" exception to this prohibition, a person may intercept an oral communication if he or she is a party to the communication or if one of the parties to the communication has given prior consent to the interception. However, the one-party consent exception does not apply if the communication is intercepted for the purpose of committing any illegal or injurious act.

This bill provides that the one-party consent exception does not apply to an interception of an oral communication between an employee of a retail business and a customer of the retail business if the communication is uttered while both the employee and the customer are present in or on the store or premises of the retail business and if the communication is intercepted using an electronic, mechanical, or other device that is attached to or in the possession of the employee. Because interception of an oral communication between a retail business employee and a customer of the retail business under these circumstances would not be covered by the one-party consent exception, the person engaged in the interception would be violating the prohibition against interception of an oral communications and, if convicted, would be subject to the current penalties for the violation.

Under current law, a defendant charged with a crime must generally be tried in the county in which the crime is committed. Current law also provides a number of exceptions to this general rule. For example, if a crime entails the commission of two or more acts, the defendant may be tried in any county in which any of the acts occurred.

Under this bill, a defendant charged with any of the following crimes may be tried in the defendant's county of residence, the victim's county of residence, or in any other county where the trial may be held under current law: 1) defamation; 2) giving false information for publication; 3) misappropriation of personal identifying information or personal identification documents; 4) theft of trade secrets; 5) threats to injure or accuse of crime; 6) threats to communicate derogatory information; 7) financial transaction card crimes; 8) computer crimes; 9) tampering with public records and notices; 10) unlawful use of telephone; and 11) unlawful use of computerized communication systems.

Under current law, the University of Wisconsin System, a technical college district board, a school board, and the governing body of a private school are prohibited from assigning to any student an identification number that is identical to or incorporates the student's social security number.

Beginning January 1, 2003, this bill extends this prohibition to private institutions of higher education located in this state.

This bill also requires each school board, private school, technical college district board, institution and two-year collegiate campus of the University of Wisconsin System, private institution of higher education, and professional athletic team that has its home field or arena in this state to adopt a written policy on who may enter and remain in a locker room used by the school or team to interview or seek information from any person. The policy must reflect the privacy interests of the members of the teams representing the school or the professional athletic team.

The bill also provides that whenever a bill is introduced in either house of the legislature that would have an impact upon personal privacy, any standing committee to which the bill is referred must not hold a public hearing on the bill or report the bill until a privacy impact statement is prepared and received. The statement is prepared by one or more state agencies or authorities, as determined by the department of administration. The statement describes the impact upon personal privacy that would result from enactment of the bill and analyzes the desirability of that impact from the standpoint of public policy. The bill also permits either house of the legislature, under rules of that house or joint rules, to request the department of administration to order the preparation of a privacy impact statement with respect to any bill before that house, either in its original form or as affected by one or more amendments.

Under the bill, a bill has an impact on personal privacy if the bill would:

1. Provide for the creation of additional personally identifiable information that is not readily available to the public at the time the bill is introduced;

2. Create an activity that would constitute an intrusion upon the privacy of an individual, or alter an activity in such a way as to create such an intrusion;

3. Use the name, picture, or likeness of an individual without the consent of the individual, or the consent of the individual's parent or guardian if the individual is a minor; or

4. Permit or cause publicity to be given to the private life of an individual.

This bill prohibits a person who sells motor fuel from doing so by the use of a pump that allows a purchaser to insert a credit card or debit if the pump issues a receipt that contains more than the last four digits of the credit card or debit number.

Finally, this bill creates an individual income tax and corporate income tax and franchise tax credit for training related to information technology. The bill requires that the information technology training include training in privacy rights and information policy. The credit is an amount equal to 50% of the amount that a claimant pays for the claimant or the claimant's spouse, dependent, or employee to receive training related to information technology. The credit is nonrefundable. If the amount of the credit exceeds the claimant's tax liability, the state will not issue a refund check, but the claimant may carry forward any remaining credit to subsequent taxable years. A claimant who receives the credit, however, must pay back the amount of the credit if the individual who receives the training is not employed in this state in an occupation related to information technology within one year after the individual completes the training or if the individual is employed in that occupation for less than one year.

For further information see the state and local 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:

AB459, s. 1 Section 1. 13.0991 of the statutes is created to read: