ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 428
(Senators Kessler, White, Stollings, Yoder, Love, Unger, Hunter and Jenkins,
original sponsors)
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[Passed March 10, 2007; in effect ninety days from passage.]
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AN ACT to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §46A-6L-101,
§46A-6L-102, §46A-6L-103, §46A-6L-104 and §46A-6L-105, 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 to entities with whom the
consumer has no existing credit relationship without the
express authorization of the consumer in certain
circumstances; exemptions; personal identification number or
password; procedures for removal or temporary lifting of
security freeze; exceptions; fees; providing for a written
notice of a consumer's rights; providing civil penalties for
violations; and making a violation an unfair or deceptive act
or practice.
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-6L-101,
§46A-6L-102, §46A-6L-103, §46A-6L-104 and §46A-6L-105, all to read
as follows:
ARTICLE 6L. THEFT OF CONSUMER IDENTITY PROTECTIONS.
§46A-6L-101. Definitions.
For the purposes of this article, the following terms have the
following meanings:
(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 credit reports to third
parties.
(4) "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 a personal,
family, household or agricultural purpose, except that nothing in
this article authorizes or prohibits 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.
§1681b as in effect on the effective date of this article.
(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.
(6) "Reviewing the account" or "account review" includes
activities related to account maintenance, monitoring, credit line
increases and account upgrades and enhancements.
§46A-6L-102. Security freeze; timing; effect; covered entities;
cost.
(a) A consumer-reporting agency shall permit a consumer to
place a security freeze on his or her credit report by the consumer
selecting either of the following:
(1) A request in writing by certified or overnight mail to a
consumer-reporting agency; or
(2) Making a request directly to the consumer-reporting agency
through a secure electronic method, if available: Provided, That by
the thirty-first day of January, two thousand nine, a secure electronic method shall be made available to the consumer by the
consumer-reporting agency.
(b) A consumer-reporting agency shall place a security freeze
on a credit report no later than five business days after receiving
a written request from the consumer. If a security freeze is in
place, a report or information may not be distributed 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. A consumer-reporting
agency may, regardless of the existence of a security freeze,
distribute information contained in a consumer file to the extent
otherwise permitted by law if the information was lawfully obtained
by or for a consumer-reporting agency from an open public record,
without respect to the existence of a security freeze. Nothing
herein prevents a consumer-reporting agency from choosing to apply
the security freeze to the entire contents of the credit reporting
file that is subject to the security freeze.
(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 distribution of his or her credit information.
(d) If the consumer wishes to allow his or her credit report
to be accessed for a period of time while a freeze is in place, he or she shall contact the consumer-reporting agency by regular mail
or a procedure developed under subsection (f) of this section and
request that the freeze be temporarily lifted, providing all of the
following:
(1) Proper identification;
(2) The unique personal identification number or password
provided by the consumer-reporting agency pursuant to subsection
(c) of this section; and
(3) The time period for which the credit report shall be
available to users of the credit report.
(e) A consumer-reporting agency that receives a request from
a consumer to temporarily lift a freeze on a credit report pursuant
to subsection (d) of this section shall comply with the request no
later than three business days after receiving the request.
(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
pursuant to subsection (d) of this section to temporarily lift a
freeze on a credit report in an expedited manner .
(g) (1) Beginning on the first day of September, two thousand
eight, a consumer-reporting agency shall temporarily lift a
security freeze from a consumer's credit report within fifteen
minutes after the consumer's request is received pursuant to
subsection (f) of this section by the consumer-reporting agency.
(2) A consumer-reporting agency does not have to remove a
security freeze within the time provided in this subsection if:
(A) The consumer fails to meet the requirements of subsection
(d) of this section; or
(B) The consumer-reporting agency's ability to remove the
security freeze within fifteen minutes is prevented by:
(i) An act of God, including fire, earthquakes, hurricanes,
storms or similar natural disasters or phenomena;
(ii) Unauthorized or illegal acts by a third party, including
terrorism, sabotage, riot, vandalism, labor strikes or disputes
disrupting operations or similar occurrence;
(iii) Operational interruption, including electrical failure,
unanticipated delay in equipment or replacement part delivery,
computer hardware or software failures inhibiting response time or
similar disruption;
(iv) Governmental action, including emergency orders or
regulations, judicial or law-enforcement action or similar directives;
(v) Regularly scheduled maintenance, during other than normal
business hours, of, or updates to, the consumer-reporting agency's
systems; or
(vi) Commercially reasonable maintenance of, or repair to, the
consumer-reporting agency's systems that is unexpected or
unscheduled.
(h) A consumer-reporting agency shall remove or temporarily
lift a freeze placed on a credit report only upon the request of
the consumer, pursuant to subsection (d) or (j) of this section.
(i) If a third party requests access to a credit 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 has not allowed his or her credit report to be accessed
for a period of time, the third party may treat the application as
incomplete.
(j) 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
following:
(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.
(k) A consumer-reporting agency shall require proper
identification of the person making a request to place or remove a
security freeze.
(l) The provisions of this section do not apply to the
distribution of a consumer credit report to any of the following:
(1) A person or the person's subsidiary, affiliate, agent or
assignee with whom 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 this
section for purposes of facilitating the extension of credit or other permissible use;
(3) A 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
or its agents or assigns acting to investigate fraud;
(6) The West Virginia Department of 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
responsibilities;
(7) A person for the purposes of prescreening as defined by
the federal Fair Credit Reporting Act;
(8) A person or entity administering a credit file monitoring
subscription service to which the consumer has subscribed; and
(9) A person or entity for the purpose of providing a consumer
with a copy of his or her credit report upon the consumer's
request.
(10) Any person or entity for use in setting or adjusting a
rate, adjusting a claim or underwriting for insurance purposes to
the extent not otherwise prohibited by law.
(m) The provisions of this section do not apply to any of the
following:
(1) A consumer-reporting agency that acts only as a reseller
of credit information by assembling and merging information
contained in the database of another consumer-reporting agency or multiple consumer credit-reporting agencies and does not maintain
a permanent database of credit information from which new consumer
credit reports are produced. A consumer-reporting agency acting as
a reseller shall honor any security freeze placed on a consumer
credit report by another consumer-reporting agency.
(2) A check services or fraud prevention services company
which issues reports on incidents of fraud or authorizations for
the purpose of approving or processing negotiable instruments,
electronic funds transfers or similar methods of payments.
(3) A deposit account information service company which issues
reports regarding account closures due to fraud, a substantial
number of overdrafts, ATM abuse or similar negative information
regarding a consumer to inquiring banks or other financial
institutions for use only in reviewing a consumer request for a
deposit account at the inquiring bank or financial institution.
(4) A consumer-reporting agency's database or file which
consists of information concerning, and used for, criminal record
information, fraud prevention or detection, personal loss history
information and employment, tenant or background screening.
(n) Except as prohibited by subsection (o) of this section, a
consumer-reporting agency may charge a reasonable fee, not to
exceed five dollars, to a consumer who elects to place, remove or
temporarily lift a security freeze on the consumer's credit report.
No fees except those authorized by this subsection and subsection
(p) of this section may be charged in connection with a security
freeze.
(o) A consumer-reporting agency may not charge a fee for
security freeze services to a consumer who is a victim of identity
theft and who provides a copy of a police report, an investigative
report or a written complaint made to the Federal Trade Commission,
to the office of the Attorney General of West Virginia or to a law-
enforcement agency concerning the identity theft.
(p) A consumer may be charged a reasonable fee, not to exceed
five dollars, if the consumer fails to retain the original unique
personal identification number or password provided by the
consumer-reporting agency and must be reissued the same or a new
unique personal identification number or password.
§46A-6L-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, as in effect on the
effective date of this article, the following notice shall be
included:
"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 unique personal identification
number or password to use if you choose to remove the freeze on
your credit report or to temporarily authorize the distribution of
your credit report for a 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 following:
(1) The unique personal identification number or password
provided by the consumer-reporting agency;
(2) Proper identification to verify your identity; and
(3) The period of time for which the report shall be available
to users of the credit report.
A consumer-reporting agency that receives a request from a
consumer to temporarily lift a freeze on a credit report shall
comply with the request no later than three business days 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
similar activities.
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 the 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."
(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 remove a
security freeze.
§46A-6L-104. Violations; penalties.
(a) If a consumer-reporting agency negligently 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 following discovery
or actual knowledge of the distribution of the information,
including specificity as to the information distributed and the
third-party recipient of the information.(2) File a complaint
with the Federal Trade Commission or the office of the Attorney
General of West Virginia.
(3) File a civil action against the consumer-reporting agency
seeking:
(A) Injunctive relief to prevent or restrain further violation
of the security freeze;
(B) Actual damages sustained or not more than one thousand dollars, whichever is greater; and
(C) Reasonable expenses, court costs, investigative costs and
attorney's fees.
(4) Each violation of the security freeze is a separate
incident for purposes of imposing penalties under this section.
(b) If a consumer-reporting agency willfully 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 following discovery
or actual knowledge of the distribution of the information,
including specificity as to the information distributed and the
third-party recipient of the information.(2) File a complaint
with the Federal Trade Commission or the office of the Attorney
General of West Virginia.
(3) File a civil action against the consumer-reporting agency
seeking:
(A) Injunctive relief to prevent or restrain further violation
of the security freeze;
(B) Actual damages sustained or not more than five thousand
dollars, whichever is greater; and
(C) Reasonable expenses, court costs, investigative costs and
attorney's fees.
(4) Each violation of the security freeze is a separate
incident for purposes of imposing penalties under this section.
§46A-6L-105. Unfair or deceptive acts or practices.
Any violation of this article constitutes an unlawful act or
practice under the provisions of article six of this chapter
regarding fraudulent acts or practices committed by a person in
connection with a consumer transaction and shall be subject to the
enforcement provisions of article seven of this chapter.