S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         8213
                              2013-2014 Regular Sessions
                                 I N  A S S E M B L Y
                                   October 24, 2013
                                      ___________
       Introduced by M. of A. TITONE -- read once and referred to the Committee
         on Governmental Operations
       AN  ACT to amend the state technology law, in relation to privacy rights
         for minors in the digital world
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. The state technology law is amended by adding a new article
    2  4 to read as follows:
    3                                 ARTICLE IV
    4                          PRIVACY RIGHTS FOR MINORS
    5  SECTION 401. DEFINITIONS.
    6          402. RESTRICTIONS.
    7          403. REMOVAL OF CONTENT.
    8          404. PENALTIES.
    9    S 401. DEFINITIONS. AS USED IN THIS ARTICLE:
   10    1. "MINOR" SHALL MEAN AN INDIVIDUAL UNDER EIGHTEEN YEARS OF AGE.
   11    2.  "INTERNET  WEBSITE,  ONLINE SERVICES, ONLINE APPLICATION OR MOBILE
   12  APPLICATION DIRECTED AT MINORS" SHALL MEAN AN INTERNET  WEBSITE,  ONLINE
   13  SERVICES, ONLINE APPLICATION, MOBILE APPLICATION, OR ANY PORTION THEREOF
   14  THAT  IS CREATED FOR THE PURPOSES OF COMMUNICATING WITH AN AUDIENCE THAT
   15  IS PREDOMINANTLY COMPRISED OF MINORS, AND IS NOT  INTENDED  FOR  A  MORE
   16  GENERAL AUDIENCE COMPRISED OF ADULTS. PROVIDED THAT SUCH TERM INCLUDE AN
   17  INTERNET  WEBSITE,  ONLINE  SERVICE, ONLINE APPLICATION, MOBILE APPLICA-
   18  TION, OR ANY PORTION THEREOF WHICH MERELY REFERS  OR  LINKS  TO  ANOTHER
   19  INTERNET  WEBSITE, ONLINE SERVICE, ONLINE APPLICATION OR MOBILE APPLICA-
   20  TION DIRECTED AT MINORS BY USING INFORMATION LOCATION TOOLS, INCLUDING A
   21  DIRECTORY, INDEX, REFERENCE, POINTER OR HYPERTEXT LINK.
   22    3. "MARKETING OR ADVERTISING" SHALL MEAN,  IN  EXCHANGE  FOR  MONETARY
   23  COMPENSATION,  THE MAKING OF A COMMUNICATION TO ONE OR MORE INDIVIDUALS,
   24  OR THE ARRANGING FOR DISSEMINATION TO  THE  PUBLIC  OF  A  COMMUNICATION
   25  ABOUT  A PRODUCT OR SERVICE THE PRIMARY PURPOSE OF WHICH IS TO ENCOURAGE
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD11842-01-3
       A. 8213                             2
    1  RECIPIENTS OF SUCH COMMUNICATION TO  PURCHASE  OR  USE  THE  PRODUCT  OR
    2  SERVICE.
    3    4.  "OPERATOR"  SHALL  MEAN  ANY PERSON THAT OWNS AN INTERNET WEBSITE,
    4  ONLINE SERVICE, ONLINE APPLICATION  OR  MOBILE  APPLICATION.  SUCH  TERM
    5  SHALL  NOT  INCLUDE  A  THIRD PARTY THAT OPERATES, HOSTS OR MANAGES, BUT
    6  DOES NOT OWN, AN INTERNET WEBSITE, ONLINE SERVICE, ONLINE APPLICATION OR
    7  MOBILE APPLICATION ON THE OWNER'S BEHALF OR PROCESSES INFORMATION ON THE
    8  OWNER'S BEHALF.
    9    5. "POSTED" SHALL MEAN CONTENT OR INFORMATION THAT CAN BE ACCESSED  BY
   10  A  USER  IN ADDITION TO THE MINOR WHO POSTED THE CONTENT OR INFORMATION,
   11  WHETHER THE USER IS A REGISTERED USER OR NOT OF  THE  INTERNET  WEBSITE,
   12  ONLINE  SERVICE,  ONLINE  APPLICATION  OR  MOBILE  APPLICATION WHERE THE
   13  CONTENT OR INFORMATION IS POSTED.
   14    6. "PROHIBITED PRODUCT OR SERVICE" SHALL MEAN:
   15    (A) AN ALCOHOLIC BEVERAGE AS DEFINED IN  SUBDIVISION  ONE  OF  SECTION
   16  THREE OF THE ALCOHOLIC BEVERAGE CONTROL LAW;
   17    (B)  ANY  MACHINE  GUN,  FIREARM SILENCER, FIREARM, SWITCHBLADE KNIFE,
   18  GRAVITY KNIFE, PILUM BALLISTIC KNIFE,  METAL  KNUCKLE  KNIFE,  AUTOMATIC
   19  KNIFE,  RIFLE,  SHOTGUN, CANE SWORD, ANTIQUE FIREARM, CHUKA STICK, ELEC-
   20  TRONIC DART GUN, KUNG FU STARS,  ELECTRONIC  STUN  GUN,  ARMOR  PIERCING
   21  AMMUNITION, DISGUISED GUN OR LARGE CAPACITY AMMUNITION FEEDING DEVICE AS
   22  SUCH TERMS ARE DEFINED IN SECTION 265.00 OF THE PENAL LAW;
   23    (C) ANY AMMUNITION;
   24    (D) ANY AEROSOL CONTAINER OF PAINT;
   25    (E)  ANY  TOBACCO  PRODUCT, HERBAL CIGARETTE, SHISHA, ELECTRONIC CIGA-
   26  RETTE, BIDIS OR GUTKA;
   27    (F) ANY DRUG OR CONTROLLED SUBSTANCE AS  SUCH  TERMS  ARE  DEFINED  IN
   28  SECTION SIXTY-EIGHT HUNDRED TWO OF THE EDUCATION LAW;
   29    (G)  ANY  AIR-GUN,  SPRING-GUN, OR OTHER INSTRUMENT OR WEAPON IN WHICH
   30  THE PROPELLING FORCE IS A SPRING OR AIR;
   31    (H) ANY BILLY, BLACKJACK, BLUDGEON, PLASTIC KNUCKLES, METAL  KNUCKLES,
   32  SAND  BAG,  SAND CLUB, WRIST-BRACE TYPE SLINGSHOT OR SLUGSHOT, SHURIKEN,
   33  DAGGER, DANGEROUS KNIFE, DIRK, RAZOR, STILETTO  OR  OTHER  DANGEROUS  OR
   34  DEADLY INSTRUMENT;
   35    (I) ANY FIREWORKS OR DANGEROUS FIREWORKS AS DEFINED IN SUBDIVISION ONE
   36  OF SECTION 270.00 OF THE PENAL LAW;
   37    (J)  ANY TANNING SERVICE IN AN ULTRAVIOLET RADIATION DEVICE AS DEFINED
   38  IN SUBDIVISION TWO OF SECTION THIRTY-FIVE HUNDRED FIFTY  OF  THE  PUBLIC
   39  HEALTH LAW;
   40    (K)  ANY DIETARY SUPPLEMENT AS DEFINED IN PARAGRAPH (A) OF SUBDIVISION
   41  TWO OF SECTION THREE HUNDRED NINETY-ONE-O OF THE GENERAL BUSINESS LAW;
   42    (L) ANY TICKET OR SHARE IN A LOTTERY GAME OR PARI-MUTUEL WAGER;
   43    (M) ANY TATTOO, BODY PIERCING OR TONGUE SPLITTING SERVICE;
   44    (N) ANY DRUG-RELATED PARAPHERNALIA AS DEFINED IN  SUBDIVISION  TWO  OF
   45  SECTION EIGHT HUNDRED FIFTY OF THE GENERAL BUSINESS LAW; OR
   46    (O)  ANY  INDECENT  MATERIAL  AS  REFERRED TO IN SECTION 235.22 OF THE
   47  PENAL LAW.
   48    S 402. RESTRICTIONS. 1. NO OPERATOR OF  AN  INTERNET  WEBSITE,  ONLINE
   49  SERVICE,  ONLINE  APPLICATION  OR  MOBILE APPLICATION DIRECTED AT MINORS
   50  SHALL MARKET OR ADVERTISE  A  PROHIBITED  PRODUCT  OR  SERVICE  ON  SUCH
   51  WEBSITE, SERVICE OR APPLICATION.
   52    2.  NO  OPERATOR  SHALL  MARKET OR ADVERTISE A PROHIBITED PRODUCT TO A
   53  MINOR, WHO SUCH OPERATOR HAS ACTUAL KNOWLEDGE IS  USING  THE  OPERATOR'S
   54  INTERNET  WEBSITE, ONLINE SERVICE, ONLINE APPLICATION OR MOBILE APPLICA-
   55  TION, WHEN THE MARKETING OR ADVERTISING IS SPECIFICALLY DIRECTED AT  THE
   56  MINORS  BASED UPON INFORMATION SPECIFIC TO SUCH MINOR INCLUDING, BUT NOT
       A. 8213                             3
    1  LIMITED TO, THE MINOR'S PROFILE,  ACTIVITY,  ADDRESS  OR  LOCATION,  AND
    2  EXCLUDING  INTERNET PROTOCOL ADDRESS AND PRODUCT IDENTIFICATION NUMBERS.
    3  PROVIDED, HOWEVER, THAT ANY OPERATOR WHO TAKES  REASONABLE  ACTIONS,  IN
    4  GOOD  FAITH,  DESIGNED  TO  AVOID  MARKETING  OR  ADVERTISING PROHIBITED
    5  PRODUCTS OR SERVICES TO MINORS SHALL NOT BE DEEMED TO HAVE VIOLATED  THE
    6  PROVISIONS OF THIS SUBDIVISION.
    7    3. NO OPERATOR OF AN INTERNET WEBSITE, ONLINE SERVICE, ONLINE APPLICA-
    8  TION  OR  MOBILE APPLICATION DIRECTED AT MINORS, OR WHO HAS ACTUAL KNOW-
    9  LEDGE THAT A MINOR IS USING ITS INTERNET WEBSITE, ONLINE SERVICE, ONLINE
   10  APPLICATION  OR  MOBILE  APPLICATION  SHALL  KNOWINGLY  USE,   DISCLOSE,
   11  COMPILE, OR ALLOW A THIRD PARTY TO USE, DISCLOSE OR COMPILE THE PERSONAL
   12  INFORMATION OF A MINOR WITH ACTUAL KNOWLEDGE THAT THE USE, DISCLOSURE OR
   13  COMPILATION  OF  SUCH  INFORMATION  IS  FOR  THE PURPOSE OF MARKETING OR
   14  ADVERTISING OF PROHIBITED PRODUCTS OR SERVICES TO THE MINOR.
   15    4. NO PROVISION OF THIS SECTION SHALL BE DEEMED TO REQUIRE ANY  OPERA-
   16  TOR TO COLLECT OR RETAIN AGE INFORMATION ABOUT ITS USERS.
   17    5.  THE  PROVISIONS  OF THIS SECTION SHALL NOT APPLY TO THE INCIDENTAL
   18  PLACEMENT OF PRODUCTS EMBEDDED IN  CONTENT  WHEN  SUCH  CONTENT  IS  NOT
   19  DISTRIBUTED  BY  OR  AT  THE DIRECTION OF THE OPERATOR PRIMARILY FOR THE
   20  PURPOSE OF MARKETING OR ADVERTISING PROHIBITED PRODUCTS OR SERVICES.
   21    S 403. REMOVAL OF CONTENT. 1. EVERY OPERATOR THAT HAS ACTUAL KNOWLEDGE
   22  THAT A MINOR IS USING  ITS  INTERNET  WEBSITE,  ONLINE  SERVICE,  ONLINE
   23  APPLICATION OR MOBILE APPLICATION SHALL:
   24    (A)  PERMIT  A MINOR WHO IS A REGISTERED USER OF THE INTERNET WEBSITE,
   25  ONLINE SERVICE, ONLINE APPLICATION OR MOBILE APPLICATION TO  REMOVE  OR,
   26  IF  THE  OPERATOR  PREFERS,  TO REQUEST AND OBTAIN REMOVAL OF CONTENT OR
   27  INFORMATION POSTED BY THE USER;
   28    (B) PROVIDE NOTICE TO A MINOR WHO IS A REGISTERED USER OF THE INTERNET
   29  WEBSITE, ONLINE SERVICE, ONLINE APPLICATION OR MOBILE  APPLICATION  THAT
   30  THE  USER  MAY  REMOVE  OR,  IF THE OPERATOR PREFERS, REQUEST AND OBTAIN
   31  REMOVAL OF CONTENT OR INFORMATION POSTED BY THE USER;
   32    (C) PROVIDE CLEAR INSTRUCTIONS TO A MINOR WHO IS A REGISTERED USER  OF
   33  THE  INTERNET  WEBSITE,  ONLINE  SERVICE,  ONLINE  APPLICATION OR MOBILE
   34  APPLICATION ON HOW A USER  MAY  REMOVE  OR,  IF  THE  OPERATOR  PREFERS,
   35  REQUEST  AND  OBTAIN  REMOVAL  OF  CONTENT OR INFORMATION POSTED BY SUCH
   36  USER; AND
   37    (D) PROVIDE NOTICE TO A MINOR WHO IS A REGISTERED USER OF THE INTERNET
   38  WEBSITE, ONLINE SERVICE, ONLINE APPLICATION OR MOBILE  APPLICATION  THAT
   39  REMOVAL OF CONTENT OR INFORMATION DOES NOT ENSURE COMPLETE OR COMPREHEN-
   40  SIVE REMOVAL.
   41    2.  OPERATORS  AND  THIRD  PARTIES  SHALL  NOT BE REQUIRED TO ERASE OR
   42  OTHERWISE ELIMINATE, OR ENABLE ERASURE  OR  ELIMINATION  OF  CONTENT  OR
   43  INFORMATION WHEN:
   44    (A)  ANY OTHER PROVISION OF FEDERAL OR STATE LAW REQUIRES THE OPERATOR
   45  OR THIRD PARTY TO MAINTAIN THE CONTENT OR INFORMATION;
   46    (B) THE CONTENT OR INFORMATION WAS STORED OR POSTED ON THE  OPERATOR'S
   47  INTERNET,  ONLINE SERVICE, ONLINE APPLICATION OR MOBILE APPLICATION BY A
   48  THIRD PARTY OTHER THAN THE MINOR, WHO IS A  REGISTERED  USER,  INCLUDING
   49  ANY  CONTENT OR INFORMATION POSTED BY A REGISTERED USER THAT WAS STORED,
   50  REPUBLISHED OR REPOSTED BY THE THIRD PARTY;
   51    (C) THE OPERATOR ANONYMIZES THE CONTENT OR INFORMATION POSTED  BY  THE
   52  MINOR WHO IS A REGISTERED USER, SO THAT THE MINOR CANNOT BE INDIVIDUALLY
   53  IDENTIFIED;
   54    (D) THE MINOR DOES NOT FOLLOW THE INSTRUCTIONS ESTABLISHED PURSUANT TO
   55  PARAGRAPH (C) OF SUBDIVISION ONE OF THIS SECTION; OR
       A. 8213                             4
    1    (E)  THE  MINOR  HAS  RECEIVED COMPENSATION OR OTHER CONSIDERATION FOR
    2  PROVIDING THE CONTENT.
    3    3. NO PROVISION OF THIS SECTION SHALL BE DEEMED TO LIMIT THE AUTHORITY
    4  OF ANY LAW ENFORCEMENT AGENCY OR COURT TO OBTAIN ANY CONTENT OR INFORMA-
    5  TION FROM AN OPERATOR AS AUTHORIZED BY LAW OR LAWFUL ORDER.
    6    4. NO OPERATOR SHALL BE DEEMED TO HAVE VIOLATED THE PROVISIONS OF THIS
    7  SECTION WHEN:
    8    (A) IT RENDERS CONTENT OR INFORMATION POSTED BY A MINOR TO BE NO LONG-
    9  ER  VISIBLE  TO  OTHER  USERS  AND THE PUBLIC, EVEN WHEN SUCH CONTENT OR
   10  INFORMATION REMAINS ON THE OPERATOR'S SERVERS IN SOME FORM; OR
   11    (B) DESPITE MAKING AN ORIGINAL POSTING BY A MINOR USER INVISIBLE, SUCH
   12  POSTING REMAINS VISIBLE BECAUSE A THIRD PARTY HAS COPIED THE POSTING  OR
   13  REPOSTED SUCH CONTENT OR INFORMATION.
   14    5.  NO PROVISION OF THIS SECTION SHALL BE DEEMED TO REQUIRE ANY OPERA-
   15  TOR TO COLLECT OR RETAIN AGE INFORMATION ABOUT ITS USERS.
   16    S 404. PENALTIES. ANY PERSON FOUND TO HAVE VIOLATED THE PROVISIONS  OF
   17  THIS ARTICLE SHALL BE GUILTY OF A MISDEMEANOR.
   18    S 2. Severability. If any clause, sentence, paragraph, section or part
   19  of  this act shall be adjudged by any court of competent jurisdiction to
   20  be invalid and after exhaustion of  all  further  judicial  review,  the
   21  judgment  shall  not affect, impair or invalidate the remainder thereof,
   22  but shall be confined in its operation to the  clause,  sentence,  para-
   23  graph,  section or part of this act directly involved in the controversy
   24  in which the judgment shall have been rendered.
   25    S 3. This act shall take effect on the first of January next  succeed-
   26  ing the date on which it shall have become a law.