Z 0427

Z‑0427.5 _____________________________________________

SENATE BILL 5449

_____________________________________________

State of Washington 57th Legislature 2001 Regular Session

By Senators Prentice, Long, Winsley, Gardner, Franklin, Costa, Rasmussen and Kohl‑Welles; by request of Attorney General

Read first time 01/23/2001. Referred to Committee on Labor, Commerce & Financial Institutions.

_1 AN ACT Relating to identity theft; amending RCW 19.16.250,

_2 9.35.010, 9.35.020, and 9.35.030; adding new sections to chapter

_3 9.35 RCW; creating a new section; and prescribing penalties.

_4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

_5 NEW SECTION. Sec. 1. A new section is added to chapter 9.35 RCW

_6 to read as follows:

_7 DEFINITIONS. The definitions in this section apply throughout

_8 this chapter unless the context clearly requires otherwise.

_9 (1) "Financial information" means any of the following

10 information identifiable to the individual that concerns the

11 amount and conditions of an individual's assets, liabilities, or

12 credit:

13 (a) Account numbers and balances;

14 (b) Transactional information concerning an account; and

15 (c) Codes, passwords, social security numbers, tax

16 identification numbers, driver's license or permit numbers, state

17 identicard numbers issued by the department of licensing, and

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_1 other information held for the purpose of account access or

_2 transaction initiation.

_3 (2) "Financial information repository" means a person engaged

_4 in the business of providing services to customers who have a

_5 credit, deposit, trust, stock, or other financial account or

_6 relationship with the person.

_7 (3) "Means of identification" means information or an item that

_8 is not describing finances or credit but is personal to or

_9 identifiable with an individual or other person, including: A

10 current or former name of the person, telephone number, an

11 electronic address, or identifier of the individual or a member of

12 his or her family, including the ancestor of the person;

13 information relating to a change in name, address, telephone

14 number, or electronic address or identifier of the individual or

15 his or her family; a social security, driver's license, or tax

16 identification number of the individual or a member of his or her

17 family; and other information that could be used to identify the

18 person, including unique biometric data.

19 (4) "Person" means a person as defined in RCW 9A.04.110.

20 (5) "Victim" means a person whose means of identification or

21 financial information has been used or transferred with the intent

22 to commit, or to aid or abet, any unlawful activity.

23 NEW SECTION. Sec. 2. A new section is added to chapter 9.35 RCW

24 to read as follows:

25 INFORMATION AVAILABLE TO VICTIM. (1) A person, financial

26 information repository, merchant, corporation, trust, partnership,

27 or unincorporated association possessing information relating to

28 an actual or potential violation of this chapter, and who may have

29 entered into a transaction, provided credit, products, goods, or

30 services, accepted payment, or otherwise done business with a

31 person who has used the victim's means of identification, must,

32 upon request of the victim, provide copies of all relevant

33 application and transaction information related to the transaction

34 being alleged as a potential or actual violation of this chapter.

35 (2) Before providing the information required under subsection

36 (1) of this section, the provider may require the victim to

37 provide positive identification of their identity and a copy of a

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_1 police report evidencing the victim's claim. The provider may

_2 require reasonable compensation for the reasonable cost of

_3 providing the information requested.

_4 (3) No person, financial information repository, merchant,

_5 corporation, trust, partnership, or unincorporated association may

_6 be held liable for an action voluntarily taken in good faith to

_7 provide information regarding potential or actual violations of

_8 this chapter to other financial information repositories,

_9 merchants, law enforcement authorities, the victim, or any person

10 alleging to be a victim who provides positive identification and a

11 copy of a police report evidencing the alleged victim's claim for

12 the purpose of identification and prosecution of violators of this

13 chapter, or to assist a victim in recovery of fines, restitution,

14 rehabilitation of the victim's credit, or such other relief as may

15 be appropriate.

16 Sec. 3. RCW 19.16.250 and 1983 c 107 s 1 are each amended to read

17 as follows:

18 No licensee or employee of a licensee shall:

19 (1) Directly or indirectly aid or abet any unlicensed person to

20 engage in business as a collection agency in this state or receive

21 compensation from such unlicensed person: PROVIDED, That nothing in

22 this chapter shall prevent a licensee from accepting, as

23 forwardee, claims for collection from a collection agency or

24 attorney whose place of business is outside the state.

25 (2) Collect or attempt to collect a claim by the use of any

26 means contrary to the postal laws and regulations of the United

27 States postal department.

28 (3) Publish or post or cause to be published or posted, any

29 list of debtors commonly known as "bad debt lists" or threaten to

30 do so. For purposes of this chapter, a "bad debt list" means any

31 list of natural persons alleged to fail to honor their lawful

32 debts. However, nothing herein shall be construed to prohibit a

33 licensee from communicating to its customers or clients by means

34 of a coded list, the existence of a check dishonored because of

35 insufficient funds, not sufficient funds or closed account by the

36 financial institution servicing the debtor's checking account:

37 PROVIDED, That the debtor's identity is not readily apparent:

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_1 PROVIDED FURTHER, That the licensee complies with the requirements

_2 of subsection (9)(e) of this section.

_3 (4) Have in his possession or make use of any badge, use a

_4 uniform of any law enforcement agency or any simulation thereof,

_5 or make any statements which might be construed as indicating an

_6 official connection with any federal, state, county, or city law

_7 enforcement agency, or any other governmental agency, while

_8 engaged in collection agency business.

_9 (5) Perform any act or acts, either directly or indirectly,

10 constituting the practice of law.

11 (6) Advertise for sale or threaten to advertise for sale any

12 claim as a means of endeavoring to enforce payment thereof or

13 agreeing to do so for the purpose of soliciting claims, except

14 where the licensee has acquired claims as an assignee for the

15 benefit of creditors or where the licensee is acting under court

16 order.

17 (7) Use any name while engaged in the making of a demand for

18 any claim other than the name set forth on his or its current

19 license issued hereunder.

20 (8) Give or send to any debtor or cause to be given or sent to

21 any debtor, any notice, letter, message, or form which represents

22 or implies that a claim exists unless it shall indicate in clear

23 and legible type:

24 (a) The name of the licensee and the city, street, and number

25 at which he is licensed to do business;

26 (b) The name of the original creditor to whom the debtor owed

27 the claim if such name is known to the licensee or employee:

28 PROVIDED, That upon written request of the debtor, the licensee

29 shall make a reasonable effort to obtain the name of such person

30 and provide this name to the debtor;

31 (c) If the notice, letter, message, or form is the first notice

32 to the debtor or if the licensee is attempting to collect a

33 different amount than indicated in his or its first notice to the

34 debtor, an itemization of the claim asserted must be made

35 including:

36 (i) Amount owing on the original obligation at the time it was

37 received by the licensee for collection or by assignment;

38 (ii) Interest or service charge, collection costs, or late

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_1 payment charges, if any, added to the original obligation by the

_2 original creditor, customer or assignor before it was received by

_3 the licensee for collection, if such information is known by the

_4 licensee or employee: PROVIDED, That upon written request of the

_5 debtor, the licensee shall make a reasonable effort to obtain

_6 information on such items and provide this information to the

_7 debtor;

_8 (iii) Interest or service charge, if any, added by the licensee

_9 or customer or assignor after the obligation was received by the

10 licensee for collection;

11 (iv) Collection costs, if any, that the licensee is attempting

12 to collect;

13 (v) Attorneys' fees, if any, that the licensee is attempting to

14 collect on his or its behalf or on the behalf of a customer or

15 assignor;

16 (vi) Any other charge or fee that the licensee is attempting to

17 collect on his or its own behalf or on the behalf of a customer or

18 assignor.

19 (9) Communicate or threaten to communicate, the existence of a

20 claim to a person other than one who might be reasonably expected

21 to be liable on the claim in any manner other than through proper

22 legal action, process, or proceedings except under the following

23 conditions:

24 (a) A licensee or employee of a licensee may inform a credit

25 reporting bureau of the existence of a claim: PROVIDED, That if the

26 licensee or employee of a licensee reports a claim to a credit

27 reporting bureau, the licensee shall upon receipt of written

28 notice from the debtor that any part of the claim is disputed,

29 forward a copy of such written notice to the credit reporting

30 bureau;

31 (b) A licensee or employee in collecting or attempting to

32 collect a claim may communicate the existence of a claim to a

33 debtor's employer if the claim has been reduced to a judgment;

34 (c) A licensee or employee in collecting or attempting to

35 collect a claim that has not been reduced to judgment, may

36 communicate the existence of a claim to a debtor's employer if:

37 (i) The licensee or employee has notified or attempted to

38 notify the debtor in writing at his last known address or place of

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_1 employment concerning the claim and the debtor after a reasonable

_2 time has failed to pay the claim or has failed to agree to make

_3 payments on the claim in a manner acceptable to the licensee, and

_4 (ii) The debtor has not in writing to the licensee disputed any

_5 part of the claim: PROVIDED, That the licensee or employee may only

_6 communicate the existence of a claim which has not been reduced to

_7 judgment to the debtor's employer once unless the debtor's

_8 employer has agreed to additional communications.

_9 (d) A licensee may for the purpose of locating the debtor or

10 locating assets of the debtor communicate the existence of a claim

11 to any person who might reasonably be expected to have knowledge

12 of the whereabouts of a debtor or the location of assets of the

13 debtor if the claim is reduced to judgment, or if not reduced to

14 judgment, when:

15 (i) The licensee or employee has notified or attempted to

16 notify the debtor in writing at his last known address or last

17 known place of employment concerning the claim and the debtor

18 after a reasonable time has failed to pay the claim or has failed

19 to agree to make payments on the claim in a manner acceptable to

20 the licensee, and

21 (ii) The debtor has not in writing disputed any part of the

22 claim.

23 (e) A licensee may communicate the existence of a claim to its

24 customers or clients if the claim is reduced to judgment, or if

25 not reduced to judgment, when:

26 (i) The licensee has notified or attempted to notify the debtor

27 in writing at his last known address or last known place of

28 employment concerning the claim and the debtor after a reasonable

29 time has failed to pay the claim or has failed to agree to make

30 payments on the claim in a manner acceptable to the licensee, and

31 (ii) The debtor has not in writing disputed any part of the

32 claim.

33 (10) Threaten the debtor with impairment of his credit rating

34 if a claim is not paid.

35 (11) Communicate with the debtor after notification in writing

36 from an attorney representing such debtor that all further

37 communications relative to a claim should be addressed to the

38 attorney: PROVIDED, That if a licensee requests in writing

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_1 information from an attorney regarding such claim and the attorney

_2 does not respond within a reasonable time, the licensee may

_3 communicate directly with the debtor until he or it again receives

_4 notification in writing that an attorney is representing the

_5 debtor.

_6 (12) Communicate with a debtor or anyone else in such a manner

_7 as to harass, intimidate, threaten, or embarrass a debtor,

_8 including but not limited to communication at an unreasonable

_9 hour, with unreasonable frequency, by threats of force or

10 violence, by threats of criminal prosecution, and by use of

11 offensive language. A communication shall be presumed to have been

12 made for the purposes of harassment if:

13 (a) It is made with a debtor or spouse in any form, manner, or

14 place, more than three times in a single week;

15 (b) It is made with a debtor at his or her place of employment

16 more than one time in a single week;

17 (c) It is made with the debtor or spouse at his or her place of

18 residence between the hours of 9:00 p.m. and 7:30 a.m.

19 (13) Communicate with the debtor through use of forms or

20 instruments that simulate the form or appearance of judicial

21 process, the form or appearance of government documents, or the

22 simulation of a form or appearance of a telegraphic or emergency

23 message.

24 (14) Communicate with the debtor and represent or imply that

25 the existing obligation of the debtor may be or has been increased

26 by the addition of attorney fees, investigation fees, service

27 fees, or any other fees or charges when in fact such fees or

28 charges may not legally be added to the existing obligation of

29 such debtor.

30 (15) Threaten to take any action against the debtor which the

31 licensee cannot legally take at the time the threat is made.

32 (16) Send any telegram or make any telephone calls to a debtor

33 or concerning a debt or for the purpose of demanding payment of a

34 claim or seeking information about a debtor, for which the charges

35 are payable by the addressee or by the person to whom the call is

36 made.

37 (17) In any manner convey the impression that the licensee is

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_1 vouched for, bonded to or by, or is an instrumentality of the

_2 state of Washington or any agency or department thereof.

_3 (18) Collect or attempt to collect in addition to the principal

_4 amount of a claim any sum other than allowable interest,

_5 collection costs or handling fees expressly authorized by statute,

_6 and, in the case of suit, attorney's fees and taxable court costs.

_7 (19) Procure from a debtor or collect or attempt to collect on

_8 any written note, contract, stipulation, promise or acknowledgment

_9 under which a debtor may be required to pay any sum other than

10 principal, allowable interest, and, in the case of suit,

11 attorney's fees and taxable court costs.

12 (20) Upon notification by a debtor that the debtor disputes all

13 debts arising from a series of dishonored checks or other

14 preprinted written instruments, initiate oral contact with a

15 debtor more than one time in an attempt to collect from the debtor

16 debts arising from the identified series of dishonored checks or

17 other preprinted written instruments when (a) within the previous

18 one hundred eighty days, in response to the licensee's attempt to

19 collect the initial debt assigned to the licensee and arising from

20 the identified series of dishonored checks or other preprinted

21 written instruments, the debtor in writing notified the licensee

22 that the debtor's checkbook or other series of preprinted written

23 instruments was stolen or fraudulently created; (b) the licensee

24 has received from the debtor a certified copy of a police report

25 referencing the theft or fraudulent creation of the checkbook or

26 series of preprinted written instruments; (c) in the written

27 notification to the licensee or in the police report, the debtor

28 identified the financial institution where the account was

29 maintained, the account number, and the check numbers of the

30 stolen checks or other preprinted written instruments, which check

31 numbers included the number of the check that is the subject of

32 the licensee's collection efforts; (d) the debtor provides, or

33 within the previous one hundred eighty days provided, to the

34 licensee a legible copy of a government-issued photo

35 identification which contains the debtor's signature and which was

36 issued prior to the date of the theft or fraud identified in the

37 police report; and (e) the debtor advised the licensee that the

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_1 subject debt is disputed because the identified check or other

_2 preprinted written instrument underlying the debt is a stolen or

_3 fraudulently created check or instrument.

_4 The licensee is not in violation of this subsection if the

_5 licensee initiates oral contact with the debtor more than one time

_6 in an attempt to collect debts arising from the identified series

_7 of dishonored checks or other preprinted written instruments

_8 when: (i) The licensee acted in good faith and relied on their

_9 established practices and procedures for batching or packeting

10 debtor accounts, and the licensee inadvertently initiates oral

11 contact with the debtor in an attempt to collect debts in the

12 identified series subsequent to the initial debt assigned to the

13 licensee; or (ii) the licensee is following up on collection of a

14 debt assigned to the licensee, and the debtor has previously

15 requested more information from the licensee regarding the subject

16 debt; or (iii) the debtor has notified the licensee that the

17 debtor disputes only some, but not all the debts arising from the

18 identified series of dishonored checks or other preprinted written

19 instruments, in which case the licensee shall be allowed to

20 initiate oral contact with the debtor one time for each debt

21 arising from the series of identified checks or written

22 instruments and may initiate additional oral contact for those

23 debts that the debtor acknowledges do not arise from stolen or

24 fraudulently created checks or written instruments; or (iv) the

25 oral contact is in the context of a judicial, administrative,

26 arbitration, mediation, or similar proceeding.

27 NEW SECTION. Sec. 4. A new section is added to chapter 9.35 RCW

28 to read as follows:

29 BLOCK OF INFORMATION APPEARING AS A RESULT OF IDENTITY

30 THEFT. (1) If a consumer submits to a consumer reporting agency a

31 certified copy of a police report setting forth facts establishing

32 probable cause of a violation of this chapter, the consumer

33 reporting agency shall promptly and permanently block reporting

34 any information that the consumer identifies on his or her credit

35 report is a result of a violation of this chapter, so that the

36 information cannot be reported. The consumer reporting agency shall

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_1 promptly notify the furnisher of the information that the

_2 information has been so blocked.

_3 (2) Furnishers of information and consumer reporting agencies

_4 may rescind any block of credit information if:

_5 (a) The information was blocked due to a material

_6 misrepresentation of fact by the consumer;

_7 (b) The consumer agrees that the blocked information or

_8 portions of the blocked information were blocked in error; or

_9 (c) The consumer knowingly obtained possession of goods,

10 services, or moneys as a result of the blocked transaction or

11 transactions or the consumer should have known that he or she

12 obtained possession of goods, services, or moneys as a result of

13 the blocked transaction or transactions.

14 (3) If the block of information is rescinded under this

15 section, the consumer shall be promptly notified in the same

16 manner as consumers are notified of the reinsertion of information

17 pursuant to section 611 of the fair credit reporting act, 15

18 U.S.C. Sec. 1681I, as amended. The prior presence of the blocked

19 information in the consumer reporting agency's file on the

20 consumer is not evidence of whether the consumer knew or should

21 have known that he or she obtained possession of any goods,

22 services, or moneys.

23 NEW SECTION. Sec. 5. A new section is added to chapter 9.35 RCW

24 to read as follows:

25 The legislature finds that the practices covered by this

26 chapter are matters vitally affecting the public interest for the

27 purpose of applying the consumer protection act, chapter 19.86

28 RCW. Violations of this chapter are not reasonable in relation to

29 the development and preservation of business. A violation of this

30 chapter is an unfair or deceptive act in trade or commerce and an

31 unfair method of competition for the purpose of applying the

32 consumer protection act, chapter 19.86 RCW.

33 Nothing in this chapter limits a victim's ability to receive

34 treble damages under RCW 19.86.090.

35 Sec. 6. RCW 9.35.010 and 1999 c 368 s 2 are each amended to read

36 as follows:

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_1 (1) No person may obtain or attempt to obtain, or disclose,

_2 cause to be disclosed, or attempt to cause to be disclosed to any

_3 person, financial information from a financial information

_4 repository:

_5 (a) By knowingly making a false, fictitious, or fraudulent

_6 statement or representation to an officer, employee, or agent of a

_7 financial information repository with the intent to deceive the

_8 officer, employee, or agent into relying on that statement or

_9 representation for purposes of releasing the financial

10 information;

11 (b) By knowingly making a false, fictitious, or fraudulent

12 statement or representation to a customer of a financial

13 information repository with the intent to deceive the customer

14 into releasing financial information or authorizing the release of

15 such information;

16 (c) By knowingly providing any document to an officer,

17 employee, or agent of a financial information repository, knowing

18 that the document is forged, counterfeit, lost, or stolen; was

19 fraudulently obtained; or contains a false, fictitious, or

20 fraudulent statement or representation, if the document is

21 provided with the intent to deceive the officer, employee, or

22 agent to release the financial information.

23 (2) No person may request another person to obtain financial

24 information from a financial information repository and knows or

25 should have known that the person will obtain or attempt to obtain

26 the information from the financial institution repository in any

27 manner described in subsection (1) of this section.

28 (3) ((~~As used in this section, unless the context clearly~~

29 ~~requires otherwise:~~

30 ~~(a) "Financial information" means, to the extent it is~~

31 ~~nonpublic, any of the following information identifiable to the~~

32 ~~individual that concerns the amount and conditions of an~~

33 ~~individual's assets, liabilities, or credit:~~

34 ~~(i) Account numbers and balances;~~

35 ~~(ii) Transactional information concerning any account; and~~

36 ~~(iii) Codes, passwords, social security numbers, tax~~

37 ~~identification numbers, driver's license or permit numbers, state~~

p. 11 SB 5449

_1 ~~identicard numbers issued by the department of licensing, and~~

_2 ~~other information held for the purpose of account access or~~

_3 ~~transaction initiation.~~

_4 ~~(b) "Financial information repository" means any person engaged~~

_5 ~~in the business of providing services to customers who have a~~

_6 ~~credit, deposit, trust, stock, or other financial account or~~

_7 ~~relationship with the person.~~

_8 ~~(c) "Person" means an individual, partnership, corporation, or~~

_9 ~~association.~~

10 ~~(4)~~)) No provision of this section shall be construed so as to

11 prevent any action by a law enforcement agency, or any officer,

12 employee, or agent of such agency, or any action of an agent of

13 the financial information repository when working in conjunction

14 with a law enforcement agency.

15 ((~~(5)~~)) (4) This section does not apply to:

16 (a) Efforts by the financial information repository to test

17 security procedures or systems of the financial institution

18 repository for maintaining the confidentiality of customer

19 information;

20 (b) Investigation of alleged employee misconduct or negligence;

21 or

22 (c) Efforts to recover financial or personal information of the

23 financial institution obtained or received by another person in

24 any manner described in subsection (1) or (2) of this section.

25 ((~~(6)~~)) (5) Violation of this section is a class C felony.

26 ((~~(7)~~)) (6) A person ((~~that [who]~~)) who violates this section

27 is liable for five hundred dollars or actual damages, whichever is

28 greater, and reasonable attorneys' fees. ((~~If the person violating~~

29 ~~this section is a business that repeatedly violates this section,~~

30 ~~that person also violates the Consumer Protection Act, chapter~~

31 ~~19.86 RCW.~~))

32 Sec. 7. RCW 9.35.020 and 1999 c 368 s 3 are each amended to read

33 as follows:

34 (1) No person may knowingly obtain, possess, use, or

35 ((~~knowingly~~)) transfer a means of identification or financial

36 information of another person, living or dead, with the intent to

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_1 commit, or to aid or abet, any unlawful activity ((~~harming or~~

_2 ~~intending to harm the person whose identity is used, or for~~

_3 ~~committing any felony.~~

_4 ~~(2) For purposes of this section, "means of identification"~~

_5 ~~means any information or item that is not describing finances or~~

_6 ~~credit but is personal to or identifiable with any individual or~~

_7 ~~other person, including any current or former name of the person,~~

_8 ~~telephone number, and electronic address or identifier of the~~

_9 ~~individual or any member of his or her family, including the~~

10 ~~ancestor of such person; any information relating to a change in~~

11 ~~name, address, telephone number, or electronic address or~~

12 ~~identifier of the individual or his or her family; any social~~

13 ~~security, driver's license, or tax identification number of the~~

14 ~~individual or any member of his or her family; and other~~

15 ~~information which could be used to identify the person, including~~

16 ~~unique biometric data~~)).

17 ((~~(3)~~)) (2)(a) Violation of this section when the aggregate

18 total of credit, money, goods, services, or anything else of value

19 is obtained that exceeds one thousand five hundred dollars in

20 value is a class B felony.

21 (b) Violation of this section when the aggregate total of

22 credit, money, goods, services, or anything else of value is not

23 obtained, or that is obtained but does not exceed one thousand

24 five hundred dollars in value is a class C felony.

25 ((~~(4)~~)) (3) A person ((~~that [who]~~)) who violates this section

26 is liable for civil damages or five hundred dollars or actual

27 damages, whichever is greater, including costs to repair the

28 ((~~person's~~)) victim's credit record, ((~~whichever is greater,~~)) and

29 reasonable attorneys' fees((~~. If the person violating this section~~

30 ~~is a business that repeatedly violates this section, that person~~

31 ~~also violates the Consumer Protection Act, chapter 19.86 RCW~~)) as

32 determined by the court.

33 (4) In a proceeding under this section, the crime will be

34 considered to have been committed in any locality where the person

35 whose means of identification or financial information was

36 appropriated resides, or in which any part of the offense took

37 place, regardless of whether the defendant was ever actually in

38 that locality.

p. 13 SB 5449

_1 (5) The provisions of this section do not apply to any person

_2 who obtains another person's driver's license or other form of

_3 identification for the sole purpose of misrepresenting his or her

_4 age.

_5 (6) In a proceeding under this section in which a person's

_6 means of identification or financial information was used without

_7 that person's authorization, and when there has been a conviction,

_8 the sentencing court may issue such orders as are necessary to

_9 correct a public record that contains false information resulting

10 from a violation of this section.

11 Sec. 8. RCW 9.35.030 and 2000 c 77 s 1 are each amended to read as

12 follows:

13 (1) It is unlawful for any person to knowingly use a means of

14 identification or financial information of another person to

15 solicit undesired mail with the intent to annoy, harass,

16 intimidate, torment, or embarrass that person.

17 (2) ((~~For purposes of this section, "means of identification"~~

18 ~~has the meaning provided in RCW 9.35.020.~~

19 ~~(3)~~)) Violation of this section is a misdemeanor.

20 ((~~(4)~~)) (3) Additionally, a person who violates this section is

21 liable for civil damages of five hundred dollars or actual

22 damages, including costs to repair the person's credit record,

23 whichever is greater, and reasonable attorneys' fees as determined

24 by the court.

25 NEW SECTION. Sec. 9. Captions used in this act are not any part

26 of the law.

‑‑‑ END ‑‑‑

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