Senate Bill No. 488
(By Senators Chafin and Kessler)
[Introduced February 3, 2006; referred to the Committee
on the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §46A-2A-101,
§46A-2A-102, §46A-2A-103, §46A-2A-104, §46A-2A-105 and
all relating to consumer protection generally;
defining certain terms; providing a procedure for consumers to
implement a security freeze to prohibit a consumer reporting
agency from releasing all or any part of the consumer's credit
report or any information derived from it without the express
authorization of the consumer in certain circumstances;
providing for notice of consumer rights; providing civil
penalties for violations; making a violation an unfair or
deceptive act or practice; and providing for severability of
the provisions of the article under certain circumstances.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §46A-2A-101,
§46A-2A-102, §46A-2A-103, §46A-2A-104, §46A-2A-105 and §46A-2A-106,
all to read as follows:
ARTICLE 2A.THEFT OF CONSUMER IDENTITY PROTECTIONS.
For the purposes of this article, the following terms have the
(1) "Person" means any individual, partnership, corporation,
trust, estate, cooperative, association, government or governmental
subdivision or agency, or other entity.
(2) "Consumer" means an individual.
(3) "Consumer reporting agency" means any entity which, for
monetary fees, dues, or on a cooperative nonprofit basis, regularly
engages, in whole or in part, in the practice of assembling or
evaluating consumer credit information or other information on
consumers for the purpose of furnishing consumer reports to third
(4) "Consumer report" or "credit report" means any written,
oral, or other communication of any information by a consumer
reporting agency bearing on a consumer's credit worthiness, credit
standing, credit capacity, character, general reputation, personal
characteristics, or mode of living which is used or expected to be
used or collected, in whole or in part, for the purpose of serving
as a factor in establishing the consumer's eligibility for:
(a) Credit or insurance to be used primarily for personal,
family, or household purposes, except that nothing in this article
authorizes the use of credit evaluations, credit scoring or
insurance scoring in the underwriting of personal lines of property
or casualty insurance;
(b) Employment purposes; or
(c) Any other purpose authorized under section 15 U.S.C. §
(5) "Security freeze" means a notice, at the request of the
consumer and subject to certain exceptions, that prohibits the
consumer reporting agency from releasing all or any part of the
consumer's credit report or any information derived from it without
the express authorization of the consumer. If a security freeze is
in place, a report or information may not be released to a third
party without prior express authorization from the consumer. This
subdivision does not prevent a consumer reporting agency from
advising a third party that a security freeze is in effect with
respect to the consumer's credit report.
(6) "Reviewing the account" or "account review" includes
activities related to account maintenance, monitoring, credit line
increases, and account upgrades and enhancements.
§46A-2A-102. Security Freeze: Timing, covered entities, cost.
(a) A consumer may elect to place a security freeze on his or
her consumer report by:
(1) Making a request in writing by certified mail or overnight
mail to a consumer reporting agency; or
(2) Making a request directly to the consumer reporting agency
through a secure electronic mail connection, if an electronic mail
connection is provided by the consumer reporting agency.
(b) A consumer reporting agency shall place a security freeze
on a consumer report no later than five business days after
receiving a written request from the consumer.
(c) The consumer reporting agency shall send a written
confirmation of the security freeze to the consumer within five
business days of placing the freeze and at the same time shall
provide the consumer with a unique personal identification number
or password to be used by the consumer when providing authorization
for the release of his or her credit for a specific party or period
(d) If the consumer wishes to allow his or her consumer report
to be accessed for a specific party or period of time while a
freeze is in place, he or she shall contact the consumer reporting
agency via certified or overnight mail or secure electronic mail
and request that the freeze be temporarily lifted, and provide all
of the following:
(1) Information generally deemed sufficient to identify a
(2) The unique personal identification number or password provided by the consumer reporting agency pursuant to subsection
(c) of this section; and
(3) The proper information regarding the third party who is to
receive the consumer report or the time period for which the
consumer report shall be available to users of the consumer report.
(e) A consumer reporting agency that receives a request from
a consumer to temporarily lift a freeze on a consumer report
pursuant to subsection (d) of this section shall comply with the
request no later than three business days after receiving the
(f) A consumer reporting agency shall develop procedures
involving the use of telephone, fax, the Internet, or other
electronic media to receive and process a request from a consumer
to temporarily lift a freeze on a consumer report pursuant to
subsection (d) of this section in an expedited manner.
(g) A consumer reporting agency shall remove or temporarily
lift a freeze placed on a consumer report only upon consumer
request, pursuant to subsection (d) of this section.
(h) If a third party requests access to a consumer report on
which a security freeze is in effect, and this request is in
connection with an application for credit or any other use, and the
consumer does not allow his or her
consumer report to be accessed
for that specific party or period of time, the third party may
treat the application as incomplete.
(i) A security freeze shall remain in place until the consumer
requests that the security freeze be removed. A consumer reporting
agency shall remove a security freeze within three business days of
receiving a request for removal from the consumer, who provides the
(1) Proper identification; and
(2) The unique personal identification number or password
provided by the consumer reporting agency pursuant to subsection
(c) of this section.
(j) A consumer reporting agency shall require proper
identification of the person making a request to place or remove a
(k) The provisions of this section do not apply to the use of
a consumer credit report by any of the following:
(1) A person, or the person's subsidiary, affiliate, agent, or
assignee with which the consumer has or, prior to assignment, had
an account, contract, or debtor-creditor relationship for the
purposes of reviewing the account or collecting the financial
obligation owing for the account, contract, or debt.
(2) A subsidiary, affiliate, agent, assignee, or prospective
assignee of a person to whom access has been granted under section
one hundred two-d of this article for purposes of facilitating the
extension of credit or other permissible use.
(3) Any person acting pursuant to a court order, warrant, or subpoena.
(4) A state or local agency that administers a program for
establishing and enforcing child support obligations.
(5) The West Virginia Department of Health and Human
Resources, its agents or assigns acting to investigate fraud.
(6) The West Virginia Department of Tax and Revenue or its
agents or assigns acting to investigate or collect delinquent taxes
or unpaid court orders or to fulfill any of its other statutory
(7) A person for the purposes of prescreening as defined by
the Federal Fair Credit Reporting Act.
(8) Any person or entity administering a credit file
monitoring subscription service to which the consumer has
(9) Any person or entity for the purpose of providing a
consumer with a copy of his or her credit report upon the
(l) A consumer reporting agency shall not charge a consumer
any fee to place a security freeze on that consumer's consumer
(m) A consumer reporting agency may charge a reasonable fee,
not to exceed five dollars, to a consumer who elects to remove or
temporarily lift a security freeze on that consumer's consumer
(n) A consumer may be charged a reasonable fee, not to exceed
five dollars, if the consumer fails to retain the original personal
identification number provided by the consumer reporting agency and
must be reissued the same or a new personal identification number.
§46A-2A-103. Notice of Rights.
(a) At any time that a consumer is required to receive a
summary of rights required under section 609 of the Federal "Fair
Credit Reporting Act," 15 U.S.C. §1681g, the following notice shall
"West Virginia Consumers Have the Right to Obtain a Security Freeze"
You may obtain a security freeze on your credit report to
protect your privacy and ensure that credit is not granted in your
name without your knowledge. You have a right to place a security
freeze on your credit report pursuant to West Virginia law.
The security freeze will prohibit a consumer reporting agency
from releasing any information in your credit report without your
express authorization or approval.
The security freeze is designed to prevent credit, loans, and
services from being approved in your name without your consent.
When you place a security freeze on your credit report, within five
business days you will be provided a personal identification number
or password to use if you choose to remove the freeze on your
credit report or to temporarily authorize the release of your
credit report for a specific party, parties or period of time after the freeze is in place. To provide that authorization, you must
contact the consumer reporting agency and provide all of the
(1) The unique personal identification number or password
provided by the consumer reporting agency;
(2) Proper identification to verify your identity; and
(3) The proper information regarding the third party
or parties who are to receive the credit report or the period of
time for which the report shall be available to users of the credit
A consumer reporting agency that receives a request from a
consumer to lift temporarily a freeze on a credit report shall
comply with the request no later than three business days or less,
as provided by regulation, after receiving the request. A security
freeze does not apply to circumstances in which you have an
existing account relationship and a copy of your report is
requested by your existing creditor or its agents or affiliates for
certain types of account review, collection, fraud control or
If you are actively seeking credit, you should understand that
the procedures involved in lifting a security freeze may slow your
own applications for credit. You should plan ahead and lift a
freeze, either completely if you are shopping around, or
specifically for a certain creditor, a few days before actually applying for new credit.
You have a right to bring a civil action against someone who
violates your rights under the credit reporting laws. The action
can be brought against a consumer reporting agency or a user of
your credit report.
(b) If a consumer requests information about a security
freeze, he or she shall be provided with the notice provided in
this section, about how to place, temporarily lift and permanently
lift a security freeze.
§46A-2A-104. Violations; Penalties.
If a consumer reporting agency erroneously, whether by
accident or design, violates the security freeze by releasing
credit information that has been placed under a security freeze,
the affected consumer is entitled to:
(1) Notification within five business days of the release of
the information, including specificity as to the information
released and the third party recipient of the information.
(2) File a complaint with the Federal Trade Commission and the
state Attorney General.
(3) File a civil action against the consumer reporting agency
(a) Injunctive relief to prevent or restrain further violation
of the security freeze; and
(b) A civil penalty in an amount not to exceed ten thousand
dollars for each violation plus any damages available under other
civil laws; and
(c) Reasonable expenses, court costs, investigative costs, and
(4) Each violation of the security freeze is a separate
incident for purposes of imposing penalties under this section.
§46A-2A-105. Unfair or deceptive acts or practices.
Any violation of the provisions of this article is an unfair
or deceptive act or practice.
The provisions of this article are severable. If any phrase,
clause, sentence, provision or section is declared to be invalid or
preempted, in whole or in part, by federal law or regulation, the
validity of the remainder of this article shall not be affected
NOTE: The purpose of this bill is to establish a procedure
whereby a consumer may implement a security freeze to prohibit a
consumer reporting agency from releasing all or any part of the
consumer's credit report or any information derived from it without
the express authorization of the consumer. Civil penalties are
provided for violations.
This article is new; therefore, strike-throughs and
underscoring have been omitted.