SB-0490, As Passed House, March 24, 2016

HOUSE SUBSTITUTE FOR

SENATE BILL NO. 490

     A bill to amend 1988 PA 378, entitled

"An act to preserve personal privacy with respect to the purchase,

rental, or borrowing of certain materials; and to provide penalties

and remedies for violation of this act,"

by amending sections 1, 2, 3, 4, and 5 (MCL 445.1711, 445.1712,

445.1713, 445.1714, and 445.1715), section 5 as added by 1989 PA

206.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 1. As used in this act:

     (a) "Customer" means a person an individual who purchases,

rents, or borrows a book, or other written material, or a sound

recording, or a video recording.

     (b) "Employee" means a person an individual who works for an

employer in exchange for wages or other remuneration.

     (c) "Employer" means a person who that has 1 or more

employees.

     (d) "Ordinary course of business" means activities related to

the sale, rental, or lending of, or advertising in, materials

described in section 2.

     (e) "Written" includes any electronic means using the Internet

or otherwise authorized under the uniform electronic transactions

act, 2000 PA 305, MCL 450.831 to 450.849.

     Sec. 2. (1) Except Subject to subsection (2) and except as

provided in section 3 or as otherwise provided by law, a person, or

an employee or agent of the person, engaged in the business of

selling at retail, renting, or lending books or other written

materials, sound recordings, or video recordings shall not

knowingly disclose to any person, other than the customer, a record

or information concerning the purchase, lease, rental, or borrowing

of that personally identifies the customer as having purchased,

leased, rented, or borrowed those materials by a customer that

indicates the identity of the customer.from the person engaged in

the business.

     (2) This section does not apply to the disclosure of a record

or information that has been aggregated or has been processed in a

manner designed to prevent its association with an identifiable

customer.

     Sec. 3. A record or information described in section 2 may be

disclosed only in 1 or more of the following circumstances:

     (a) With the written permission of the customer.

     (b) Pursuant to a warrant or court order.

     (c) To the extent reasonably necessary to collect payment for

the materials or the rental of the materials, if the customer has

received written notice that the payment is due and has failed to

pay or arrange for payment within a reasonable time after notice.

     (d) To any person if the disclosure is incident to the

ordinary course of business of the person that is disclosing the

record or information. This subdivision only applies to a record or

information that is created or obtained after the effective date of

the amendatory act that added this subdivision.

(e) (d) If the disclosure is for the exclusive purpose of

marketing goods and services directly to the consumer. to

customers. All of the following apply for purposes of this

subdivision:

     (i) The person that is disclosing the information shall inform

the customer by written notice that the customer may remove his or

her name at any time by written and shall specify the manner or

manners by which the customer may remove his or her name. Unless

the person's method of communication with customers is by

electronic means, the written notice shall include a nonelectronic

method that the customer may use to opt out of disclosure. Any of

the following methods of notice satisfy the written notice

requirements of this subparagraph:

     (A) Written notice included in or with any materials sold,

rented, or lent to the customer under section 2.

     (B) Written notice provided to the customer at the time he or

she orders any of the materials described in section 2 or otherwise

provided to the customer in connection with the transaction between

the person and customer for the sale, rental, or loan of the

materials to the customer.

     (C) Notice that is included and clearly and conspicuously

disclosed in an online privacy policy or similar communication that

is posted on the Internet, is maintained by the person that is

disclosing the information, and is available to customers or the

general public.

     (ii) A customer may provide notice to the person that is

disclosing the information under this subdivision that the customer

does not want his or her name disclosed.

     (iii) Beginning 30 days after the person receives the

customer's notice, the person shall not knowingly disclose the

customer's name to any other person for marketing goods and

services.

(f) (e) Pursuant to a search warrant issued by a state or

federal court or a grand jury subpoena.

     Sec. 4. A person who that violates this act is guilty of a

misdemeanor.

     Sec. 5. (1) Regardless of any criminal prosecution for a the

violation, of this act, a person who that violates this act shall

may be liable in a civil action for damages to the customer

identified in a record or other information that is disclosed in

violation of this act. The a customer under subsection (2).

     (2) A customer described in subsection (1) who suffers actual

damages as a result of a violation of this act may bring a civil

action against the person that violated this act and may recover

both of the following:

     (a) Actual The customer's actual damages, including damages

for emotional distress. , or $5,000.00, whichever is greater.

     (b) Costs Reasonable costs and reasonable attorney fees.

     (3) No liability may result from the lawful disclosure of a

record or information that is permitted under section 3.

     Enacting section 1. This amendatory act takes effect 90 days

after the date it is enacted into law.

     Enacting section 2. This amendatory act is curative and

intended to clarify that the prohibitions on disclosing information

contained in 1988 PA 378, MCL 445.1711 to 445.1715, do not prohibit

disclosing information if it is incident to the ordinary course of

business of the person disclosing the information, including

marketing goods and services to customers or potential customers

when written notice is provided, and that a civil action for a

violation of those prohibitions may only be brought by a customer

who has suffered actual damages as a result of the violation.