S‑0539.2   _____________________________________________

 

SENATE BILL 5503

 

           _____________________________________________

 

State of Washington      57th Legislature     2001 Regular Session

 

By Senators Prentice, Kastama, Costa, Fairley, Thibaudeau, Franklin, Shin, Kline, Gardner, Hargrove and Kohl‑Welles

 

Read first time 01/24/2001.  Referred to Committee on Labor, Commerce & Financial Institutions.

_1      AN ACT Relating to privacy of personal financial information;

_2  and adding a new chapter to Title 19 RCW.

     

_3  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

     

_4      NEW SECTION.  Sec. 1.  It is the policy of the state of

_5  Washington that each financial institution operating in this state

_6  has an affirmative and continuing obligation to respect the

_7  privacy of its customers, to provide its customers with control

_8  over the dissemination of their nonpublic personal information,

_9  and to protect the security and confidentiality of those

10  customers' nonpublic personal information.

     

11      NEW SECTION.  Sec. 2.  The definitions set forth in this section

12  apply throughout this chapter.

13      (1) "Financial institution" means an institution, the business

14  of which is engaging in financial activities as described in

15  section 4(k) of the Bank Holding Company Act, 12 U.S.C. 1843(k).

16      (2) "Nonpublic personal information" means:

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_1      (a) Personally identifiable financial information, including a

_2  social security number:

_3      (i) Provided by a consumer to a financial institution in an

_4  application or otherwise, to obtain a financial product or service

_5  from the financial institution;

_6      (ii) Resulting from any transaction between a financial

_7  institution and a consumer involving a financial product or

_8  service; or

_9      (iii) Obtained by the financial institution about a consumer in

10  connection with providing a financial product or service to that

11  consumer, other than publicly available information; and

12      (b) A list, description, or other grouping of one or more

13  consumers of the financial institution and publicly available

14  information pertaining to them.

15      (3) "Nonaffiliated third party" means an entity that is not an

16  affiliate of, or related by common ownership or affiliated by

17  corporate control with, the financial institution, but does not

18  include a joint employee of the institution.

19      (4) "Affiliate" means a company that controls, is controlled

20  by, or is under common control with another company.

21      (5) "Consumer" means an individual who applies for or obtains

22  products or services from a financial institution that are to be

23  used primarily for personal, family, or household purposes, and

24  also means the legal representative of that individual.

25      (6) "Customer relationship" means, in the case of a financial

26  institution engaged in extending credit directly to consumers to

27  finance the purchase of goods or services, the time of

28  establishing the credit relationship with the consumer.  In other

29  cases it will be defined by rules adopted under section 11 of this

30  act.

     

31      NEW SECTION.  Sec. 3.  Except as otherwise provided in this

32  chapter, a financial institution may not disclose nonpublic

33  personal information to an affiliate or a nonaffiliated third

34  party unless the financial institution:

35      (1) Has provided to the consumer who is the subject of the

36  personal information a clear and conspicuous notice, in writing,

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_1  electronic form, or other form permitted by the rules adopted to

_2  implement this chapter, of the categories of information that may

_3  be disclosed to the affiliate or nonaffiliated third party;

_4      (2) Has given the consumer an opportunity, before the time that

_5  the information is initially disclosed, to direct that the

_6  information not be disclosed to the affiliate or nonaffiliated

_7  third party; and

_8      (3) Has given the consumer the ability to exercise that

_9  nondisclosure option through the same method of communication by

10  which the consumer received the notice described in subsection (1)

11  of this section, or another method at least as convenient to the

12  consumer, and an explanation of how the consumer can exercise that

13  option.

14      This section does not prevent a financial institution from

15  providing nonpublic personal information to an affiliate or

16  nonaffiliated third party to perform services for or functions on

17  behalf of the financial institution, including marketing of the

18  financial institution's own products or services, or financial

19  products or services offered under joint agreements between two or

20  more financial institutions that comply with requirements imposed

21  by rules adopted under section 11 of this act, if the financial

22  institution fully discloses the providing of the information and

23  enters into a contractual agreement with the third party that

24  requires the third party to maintain the confidentiality of the

25  information.

     

26      NEW SECTION.  Sec. 4.  (1) If a financial institution provides a

27  service to a consumer through which the consumer makes or receives

28  payments or transfers by check, debit card, credit card, or other

29  similar instrument, the financial institution shall not transfer

30  to an affiliate or a nonaffiliated third party:

31      (a) An individualized list of that consumer's transactions or

32  an individualized description of that consumer's interests,

33  preferences, or other characteristics; or

34      (b) A list or description constructed in response to an inquiry

35  about a specific named individual

36  if the list or description is derived from information collected

37  in the course of providing that service.

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_1      (2) Notwithstanding subsection (1) of this section, a financial

_2  institution may transfer the described information if the

_3  financial institution has clearly and conspicuously requested in

_4  writing or electronic form or other form permitted by the rules

_5  adopted to implement this chapter, that the consumer affirmatively

_6  consents to the transfer and use of that type of information, and

_7  the consent has not been withdrawn.

     

_8      NEW SECTION.  Sec. 5.  A financial institution shall not

_9  disclose, other than to a consumer reporting agency, an account

10  number or access code for a credit card account, deposit account,

11  or transaction account of a consumer to an affiliate or

12  nonaffiliated third party for use in telemarketing, direct mail

13  marketing, or other marketing through electronic mail to the

14  consumer.

     

15     NEW SECTION.  Sec. 6.  (1) An affiliate or nonaffiliated third

16  party that receives nonpublic personal information from a

17  financial institution shall not disclose the information to

18  another person unless the disclosure would be lawful if made

19  directly to the other person by the financial institution.

20      (2) Notwithstanding subsection (1) of this section, a person

21  who receives nonpublic personal information from a financial

22  institution in accordance with one of the general exceptions in

23  section 10 of this act may use or transfer the information only

24  (a) as permitted under that general exception, or (b) under

25  another general exception in section 10 of this act, if necessary

26  to carry out the purpose for which the information was disclosed

27  by the financial institution.

     

28      NEW SECTION.  Sec. 7.  Upon the request of a consumer, a

29  financial institution shall make available to the consumer

30  information about the consumer that is under the control of and

31  reasonably available to the financial institution.  However, a

32  financial institution may not be required to:

33      (1) Disclose to a consumer confidential commercial information,

34  such as an algorithm used to derive credit scores or other risk

35  scores or predictors;

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_1      (2) Create new records in order to comply with the consumer's

_2  request;

_3      (3) Disclose to a consumer information assembled by the

_4  financial institution, in a particular matter, as part of the

_5  financial institution's efforts to comply with laws preventing

_6  fraud, money laundering, or other unlawful conduct; and

_7      (4) Disclose information required to be kept confidential by

_8  federal law.

     

_9      NEW SECTION.  Sec. 8.  A financial institution shall provide a

10  consumer the opportunity to dispute the accuracy of information

11  disclosed to the consumer under section 7 of this act, and to

12  present evidence on the accuracy of the information.  A financial

13  institution shall correct or delete material information

14  identified by a consumer that is materially incomplete or

15  inaccurate.

     

16      NEW SECTION.  Sec. 9.  (1) A financial institution shall

17  provide a disclosure that complies with subsection (2) of this

18  section to an individual upon request, as part of an application

19  for a financial product or service from the financial institution,

20  and to a consumer, before establishing a customer relationship

21  with the consumer and not less than annually during the

22  continuation of the relationship.

23      (2) The disclosure required by subsection (1) of this section

24  must be a clear and conspicuous notice, in writing or in

25  electronic form or other form permitted by the rules implementing

26  this chapter, and must include the financial institution's

27  policies and practices with respect to:

28      (a) Disclosing nonpublic personal information to affiliates and

29  nonaffiliated third parties in compliance with section 2 of this

30  act, including the categories of information that may be

31  disclosed;

32      (b) Disclosing nonpublic personal information of persons who

33  have ceased to be customers of the financial institution; and

34      (c) Protecting the nonpublic personal information of consumers.

35 

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_1      NEW SECTION.  Sec. 10.  Sections 3, 4, 5, and 6 of this act do not

_2  prohibit the disclosure of nonpublic personal information:

_3      (1) As necessary to effect, administer, or enforce a

_4  transaction requested or authorized by the consumer, or in

_5  connection with:

_6      (a) Servicing or processing a financial product or service

_7  requested or authorized by the consumer;

_8      (b) Maintaining or servicing the customer's account with the

_9  financial institution, or with another entity as part of a private

10  label credit card program or other extension of credit on behalf

11  of the entity;

12      (c) A proposed or actual securitization, secondary market sale,

13  secondary market sale including the servicing rights, or similar

14  transaction related to a transaction of the consumer; or

15      (d) Performing services for or functions solely on behalf of

16  the financial institution with respect to the financial

17  institution's own customers, including marketing of the financial

18  institution's own products or services to the financial

19  institution's customers;

20      (2) With the consent or at the direction of the consumer;

21      (3)(a) To protect the confidentiality or security of the

22  financial institution's records pertaining to the consumer, the

23  service or product, or the transaction therein; (b) to protect

24  against or prevent actual or potential fraud, unauthorized

25  transactions, claims, or other liability; (c) for required

26  institutional risk control, or for resolving customer disputes or

27  inquiries; (d) to persons holding a legal or beneficial interest

28  relating to the consumer; or (e) to persons acting in a fiduciary

29  or representative capacity on behalf of the consumer;

30      (4) To provide information to insurance rate advisory

31  organizations, guaranty funds or agencies, applicable rating

32  agencies of the financial institution, and persons assessing the

33  institution's compliance with industry standards;

34      (5) To the extent specifically permitted or required under

35  other provisions of law and in accordance with the Right to

36  Financial Privacy Act of 1978, to law enforcement agencies

37  (including a federal or state regulator, the secretary of the

38  treasury with respect to subchapter II of chapter 53 of Title 31,

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_1  United States Code, section 21 of the Federal Deposit Insurance

_2  Act, and chapter 2 of Title I of Public Law 91-508 (12 U.S.C. 1951-

_3    1959), or the Federal Trade Commission), self-regulatory

_4  organizations, or for an investigation on a matter related to

_5  public safety;

_6      (6)(a) To a consumer reporting agency in accordance with the

_7  Fair Credit Reporting Act, or (b) from a consumer report reported

_8  by a consumer reporting agency;

_9      (7) In connection with a proposed or actual sale, merger,

10  transfer, or exchange of all or a portion of a business or

11  operating unit if the disclosure of nonpublic personal information

12  concerns solely consumers of the business or unit;

13      (8)(a) To comply with federal, state, or local laws, rules, or

14  other applicable legal requirements; (b) to comply with a properly

15  authorized civil, criminal, or regulatory investigation or

16  subpoena or summons by federal, state, or local authorities; or

17  (c) to respond to judicial process or government regulatory

18  authorities having jurisdiction over the financial institution for

19  examination, compliance, or other purposes as authorized by law;

20      (9) In order to facilitate customer service, such as

21  maintenance and operation of consolidated customer call centers or

22  the use of consolidated customer account statements; or

23      (10) To the institution's attorneys, accountants, and auditors.

     

24      NEW SECTION.  Sec. 11.  The department of financial institutions

25  shall adopt rules required by this chapter to effectuate and avoid

26  circumvention of its purpose.

     

27      NEW SECTION.  Sec. 12.  (1) The legislature finds that the

28  practices covered by this chapter are matters vitally affecting

29  the public interest for the purpose of applying the Consumer

30  Protection Act, chapter 19.86 RCW.  A violation of this chapter is

31  an unfair and deceptive act in trade or commerce for the purpose

32  of applying the Consumer Protection Act, chapter 19.86

33  RCW.  Invasion of privacy rights protected by this chapter are not

34  reasonable in relation to the development and preservation of

35  business.

36      (2) In an action for a violation of this chapter, with the

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_1  exception of section 5 of this act, a financial institution may

_2  raise the defense that the violation was not intentional and was

_3  the result of bona fide error.  This is an affirmative defense and

_4  must be proved by a preponderance of the evidence.

_5      (3) Damages to a person who is a victim of a violation of this

_6  chapter are five hundred dollars, or actual damages, whichever is

_7  greater.  A court may increase the award of damages in an amount not

_8  to exceed three times the actual damages sustained, or one

_9  thousand five hundred dollars, whichever is greater, upon a

10  showing by a preponderance of the evidence that a violation was

11  willful.

12      (4) In a class action for a violation of this chapter, the

13  total recovery of statutory damages arising from the same

14  violation may not be more than the lesser of one million dollars

15  or one percent of the net worth of the defendant.  There is no limit

16  on the amount awarded for actual damages.

     

17      NEW SECTION.  Sec. 13.  Sections 1 through 12 of this act

18  constitute a new chapter in Title 19 RCW.

 

‑‑‑ END ‑‑‑

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