Senate Bill sb0656c2

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    Florida Senate - 2006                     CS for CS for SB 656

    By the Committees on Banking and Insurance; Commerce and
    Consumer Services; and Senators Peaden, Haridopolos, Jones,
    Fasano, Baker, Crist, Lynn and Aronberg



    597-2062-06

  1                      A bill to be entitled

  2         An act relating to financial transactions;

  3         creating s. 501.005, F.S.; defining the term

  4         "security freeze"; authorizing a consumer to

  5         place a security freeze on his or her consumer

  6         report; providing procedures and requirements

  7         with respect to the placement, temporary

  8         suspension, and removal of a security freeze on

  9         a consumer report; authorizing a consumer to

10         allow specified temporary access to his or her

11         consumer report during a security freeze;

12         providing procedures with respect to such

13         temporary access; providing for removal of a

14         security freeze when a consumer report is

15         frozen due to a material misrepresentation of

16         fact by the consumer; providing applicability;

17         prohibiting a consumer reporting agency from

18         charging a fee to a victim of identity theft

19         who requests a security freeze on a consumer

20         report; authorizing consumer reporting agencies

21         to charge a fee to place, remove, or

22         temporarily lift a security freeze and to

23         reissue a personal identification number;

24         restricting the change of specified information

25         in a consumer report when a security freeze is

26         in effect; specifying applicability with

27         respect to certain consumer reporting agencies;

28         specifying entities that are exempt from

29         placing a security freeze on a consumer report;

30         providing for a civil remedy; providing

31         requirements with respect to written disclosure

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    Florida Senate - 2006                     CS for CS for SB 656
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 1         by a consumer reporting agency of procedures

 2         and consumer rights associated with a security

 3         freeze; creating s. 655.851, F.S.; providing

 4         that credit balances that result from the

 5         performance of or participation in

 6         check-clearing functions are not subject to

 7         certain reporting requirements; providing an

 8         effective date.

 9  

10  Be It Enacted by the Legislature of the State of Florida:

11  

12         Section 1.  Section 501.005, Florida Statutes, is

13  created to read:

14         501.005  Consumer report security freeze.--

15         (1)  For purposes of this section, a "security freeze"

16  means a notice placed in a consumer report which prohibits a

17  consumer reporting agency, as defined in 15 U.S.C. s.

18  1681a(f), from releasing the consumer report, credit score, or

19  any information contained within the consumer report to a

20  third party without the express authorization of the consumer.

21  This section does not prevent a consumer reporting agency from

22  advising a third party that a security freeze is in effect

23  with respect to the consumer report. For purposes of this

24  part, the term "consumer report" has the same meaning set

25  forth in 15 U.S.C. s. 1681a(d).

26         (2)  A consumer may place a security freeze on his or

27  her consumer report by:

28         1.  Making a request in writing by certified mail to a

29  consumer reporting agency;

30         2.  Including information that properly identifies the

31  consumer; and

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    Florida Senate - 2006                     CS for CS for SB 656
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 1         3.  Paying a fee authorized under this section.

 2         (3)  A consumer reporting agency shall place a security

 3  freeze on a consumer report no later than 5 business days

 4  after receiving a request from the consumer.

 5         (4)  The consumer reporting agency shall send a written

 6  confirmation of the security freeze to the consumer within 10

 7  business days after instituting the security freeze and shall

 8  provide the consumer with a unique personal identification

 9  number or password to be used by the consumer when providing

10  authorization for the removal of a security freeze on his or

11  her consumer report pursuant to subsection (5) or subsection

12  (11).

13         (5)  A consumer may allow his or her consumer report to

14  be accessed for a designated period of time while a security

15  freeze is in effect by contacting the consumer reporting

16  agency and requesting that the freeze be temporarily lifted.

17  The consumer must provide the following information to the

18  consumer reporting agency as part of the request:

19         (a)  Proper identification as determined by the

20  consumer reporting agency.

21         (b)  The unique personal identification number or

22  password provided by the consumer reporting agency pursuant to

23  subsection (4).

24         (c)  Information specifying the period of time for

25  which the report shall be made available.

26         (d)  Payment of a fee authorized by this section.

27         (6)  A consumer reporting agency that receives a

28  request from a consumer to temporarily lift a freeze on a

29  consumer report pursuant to subsection (5) shall comply with

30  the request no later than 3 business days after receiving the

31  request.

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 1         (7)  No later than July 1, 2007, a consumer reporting

 2  agency doing business in this state shall select and develop a

 3  secure electronic contact method, which may include the use of

 4  telephone, facsimile, the Internet, or other secure electronic

 5  means, by which to receive and process requests from consumers

 6  to temporarily lift a freeze on a consumer report pursuant to

 7  subsection (5).

 8         (8)  A consumer reporting agency shall temporarily lift

 9  or remove a security freeze placed on a consumer report only

10  in the following instances:

11         (a)  Upon consumer request, pursuant to subsection (5)

12  or subsection (11).

13         (b)  If the consumer report was frozen due to a

14  material misrepresentation of fact by the consumer. If a

15  consumer reporting agency intends to remove a security freeze

16  on a consumer report pursuant to this paragraph, the consumer

17  reporting agency shall notify the consumer in writing prior to

18  removing the security freeze.

19         (9)  A third party requesting access to a consumer

20  report on which a security freeze is in effect in connection

21  with an application for credit or other permissible use may

22  treat the application as incomplete if the consumer has not

23  authorized a temporary lifting of the security freeze for the

24  period of time during which the request is made.

25         (10)  If a consumer requests a security freeze, the

26  consumer reporting agency shall disclose to the consumer all

27  information relevant to the process of instituting,

28  temporarily lifting, and removing a security freeze and shall

29  include the disclosure required by subsection (17).

30         (11)  A security freeze shall remain in place until the

31  consumer requests that it be removed. A consumer reporting

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    Florida Senate - 2006                     CS for CS for SB 656
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 1  agency shall remove a security freeze within 3 business days

 2  after receiving a request for removal from the consumer, who,

 3  upon making the request for removal, must provide the

 4  following:

 5         (a)  Proper identification as determined by the

 6  consumer reporting agency.

 7         (b)  The unique personal identification number or

 8  password provided by the consumer reporting agency pursuant to

 9  subsection (4).

10         (c)  Payment of a fee authorized under this section.

11         (12)  The provisions of this section do not apply to

12  the use of a consumer report by the following persons or for

13  the following reasons:

14         (a)  A person to whom the consumer owes a financial

15  obligation or a subsidiary, affiliate, or agent of the person,

16  or an assignee of a financial obligation owed by the consumer

17  to the person, or a prospective assignee of a financial

18  obligation owed by the consumer to the person in conjunction

19  with the proposed purchase of the financial obligation, with

20  which the consumer has or had prior to assignment an account

21  or contract, including a deposit account, or to whom the

22  consumer issued a negotiable instrument, for the purposes of

23  reviewing the account or collecting the financial obligation

24  owed for the account, contract, or negotiable instrument. For

25  purposes of this paragraph, the term "reviewing the account"

26  includes activities related to account maintenance,

27  monitoring, credit line increases, and account upgrades and

28  enhancements.

29         (b)  A subsidiary, affiliate, agent, assignee, or

30  prospective assignee of a person to whom access has been

31  

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    Florida Senate - 2006                     CS for CS for SB 656
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 1  granted under this section for purposes of facilitating the

 2  extension of credit or other permissible use.

 3         (c)  A state agency acting within its lawful

 4  investigative or regulatory authority.

 5         (d)  A state or local law enforcement agency acting to

 6  investigate a crime or conducting a criminal background check.

 7         (e)  Any person administering a credit file monitoring

 8  subscription service to which the consumer has subscribed.

 9         (f)  Any person for the purpose of providing a consumer

10  with a copy of the consumer report upon the consumer's

11  request.

12         (g)  Pursuant to a court order lawfully entered.

13         (h)  The use of credit information for the purposes of

14  prescreening as provided for by the federal Fair Credit

15  Reporting Act.

16         (i)  Any insurance company for use in setting or

17  adjusting a rate, adjusting a claim, or underwriting for

18  insurance purposes.

19         (13)  A consumer reporting agency shall not charge any

20  fee to a victim of identity theft who has submitted, at the

21  time the security freeze is requested, a copy of a valid

22  investigative or incident report or complaint with a law

23  enforcement agency about the unlawful use of the victim's

24  identifying information by another person. A consumer

25  reporting agency may charge a reasonable fee, not to exceed

26  $10, to a consumer who elects to place, remove, or temporarily

27  lift a security freeze on his or her consumer report. A

28  consumer may be charged a reasonable fee, not to exceed $10,

29  if the consumer fails to retain the original personal

30  identification number or password provided by the consumer

31  reporting agency, and the agency must reissue the personal

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    Florida Senate - 2006                     CS for CS for SB 656
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 1  identification number or password or provide a new personal

 2  identification number or password to the consumer.

 3         (14)  If a security freeze is in effect, a consumer

 4  reporting agency shall not change any of the following

 5  official information in a consumer report without sending a

 6  written confirmation of the change to the consumer within 30

 7  days after the change is posted to the consumer's file:

 8         (a)  Name.

 9         (b)  Address.

10         (c)  Date of birth.

11         (d)  Social security number.

12  

13  Written confirmation is not required for technical corrections

14  of a consumer's official information, including name and

15  street abbreviations, complete spellings, or transposition of

16  numbers or letters. In the case of an address change, the

17  written confirmation shall be sent to both the new address and

18  the former address.

19         (15)  The provisions of this section do not apply to

20  the following entities:

21         (a)  A check services company, which issues

22  authorizations for the purpose of approving or processing

23  negotiable instruments, electronic funds transfers, or similar

24  methods of payment.

25         (b)  A deposit account information service company,

26  which issues reports regarding account closures due to fraud,

27  substantial overdrafts, automatic teller machine abuse, or

28  similar negative information regarding a consumer to inquiring

29  banks or other financial institutions for use only in

30  reviewing a consumer request for a deposit account at the

31  

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    Florida Senate - 2006                     CS for CS for SB 656
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 1  inquiring bank or financial institution, as defined in s.

 2  655.005(1)(g) or (h), or in federal law.

 3         (c)  A consumer reporting agency that acts only as a

 4  reseller of credit information by assembling and merging

 5  information contained in the database of another consumer

 6  reporting agency or multiple consumer reporting agencies and

 7  does not maintain a permanent database of credit information

 8  from which new consumer reports are produced. However, a

 9  consumer reporting agency shall honor any security freeze

10  placed on a consumer report by another consumer reporting

11  agency.

12         (d)  A fraud prevention services company issuing

13  reports to prevent or investigate fraud.

14         (16)  In addition to any other penalties or remedies

15  provided under law, a person who is aggrieved by a violation

16  of the provisions of this section may bring a civil action as

17  authorized by this subsection.

18         (a)  Any person who willfully fails to comply with any

19  requirement imposed under this section with respect to any

20  consumer is liable to that consumer for actual damages

21  sustained by the consumer as a result of the failure of not

22  less than $100 and not more than $1,000, plus the cost of the

23  action together with reasonable attorney's fees.

24         (b)  Any individual who obtains a consumer report under

25  false pretenses or knowingly without a permissible purpose is

26  liable to the consumer for actual damages sustained by the

27  consumer as a result of the failure or damages of not less

28  than $100 and not more than $1,000, whichever is greater. Any

29  person who obtains a consumer report from a consumer reporting

30  agency under false pretenses or knowingly without a

31  permissible purpose is liable to the consumer reporting agency

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    Florida Senate - 2006                     CS for CS for SB 656
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 1  for actual damages sustained by the consumer reporting agency

 2  or $1,000, whichever is greater.

 3         (c)  Punitive damages may be assessed for willful

 4  violations of this section.

 5         (d)  Any person who is negligent in failing to comply

 6  with any requirement imposed under this section with respect

 7  to any consumer is liable to that consumer for any actual

 8  damages sustained by the consumer as a result of the failure

 9  of not less than $100 and not more than $1,000.

10         (e)  Upon a finding by the court that an unsuccessful

11  pleading, motion, or other paper filed in connection with an

12  action under this subsection was filed in bad faith or for

13  purposes of harassment, the court shall award to the

14  prevailing party attorney's fees that are reasonable in

15  relation to the work performed in responding to the pleading,

16  motion, or other paper.

17         (17)  Any written disclosure by a consumer reporting

18  agency, pursuant to 15 U.S.C. s. 1681g, to any consumer

19  residing in this state shall include a written summary of all

20  rights the consumer has under this section, and, in the case

21  of a consumer reporting agency which compiles and maintains

22  consumer reports on a nationwide basis, a toll-free telephone

23  number that the consumer can use to communicate with the

24  consumer reporting agency. The information set forth in

25  paragraph (b) of the written summary of rights must be in at

26  least 12-point boldface type. The written summary of rights

27  required under this section is sufficient if it is

28  substantially in the following form:

29         (a)  You have a right to place a "security freeze" on

30  your consumer report, which will prohibit a consumer reporting

31  agency from releasing any information in your consumer report

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    Florida Senate - 2006                     CS for CS for SB 656
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 1  without your express authorization. A security freeze must be

 2  requested in writing by certified mail to a consumer reporting

 3  agency. The security freeze is designed to prevent credit,

 4  loans, and services from being approved in your name without

 5  your consent.

 6         (b)  YOU SHOULD BE AWARE THAT USING A SECURITY FREEZE

 7  TO CONTROL ACCESS TO THE PERSONAL AND FINANCIAL INFORMATION IN

 8  YOUR CONSUMER REPORT MAY DELAY, INTERFERE WITH, OR PROHIBIT

 9  THE TIMELY APPROVAL OF ANY SUBSEQUENT REQUEST OR APPLICATION

10  YOU MAKE REGARDING A NEW LOAN, CREDIT, MORTGAGE, INSURANCE,

11  GOVERNMENT SERVICES OR PAYMENTS, RENTAL HOUSING, EMPLOYMENT,

12  INVESTMENT, LICENSE, CELLULAR PHONE, UTILITIES, DIGITAL

13  SIGNATURE, INTERNET CREDIT CARD TRANSACTION, OR OTHER

14  SERVICES, INCLUDING AN EXTENSION OF CREDIT AT POINT OF SALE.

15         (c)  When you place a security freeze on your consumer

16  report, you will be provided a personal identification number

17  or password to use if you choose to remove the freeze on your

18  consumer report or authorize the release of your consumer

19  report for a designated period of time after the security

20  freeze is in place. To provide that authorization, you must

21  contact the consumer reporting agency and provide all of the

22  following:

23         1.  The personal identification number or password.

24         2.  Proper identification to verify your identity.

25         3.  Information specifying the period of time for which

26  the report shall be made available.

27         4.  Payment of a fee authorized under this section.

28         (d)  A consumer reporting agency must authorize the

29  release of your consumer report no later than 3 business days

30  after receiving the above information.

31  

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    Florida Senate - 2006                     CS for CS for SB 656
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 1         (e)  A security freeze does not apply to a person or

 2  entity, or its affiliates, or collection agencies acting on

 3  behalf of the person or entity, with which you have an

 4  existing account, which requests information in your consumer

 5  report for the purposes of reviewing or collecting the

 6  account. Reviewing the account includes activities related to

 7  account maintenance, monitoring, credit line increases, and

 8  account upgrades and enhancements.

 9         (f)  You have the right to bring a civil action against

10  anyone, including a consumer reporting agency, who fails to

11  comply with the provisions of s. 501.005, Florida Statutes,

12  which governs the placing of a consumer report security freeze

13  on your consumer report.

14         Section 2.  Section 655.851, Florida Statutes, is

15  created to read:

16         655.851  Unclaimed credit balances.--Credit balances of

17  suspense accounts and credit balances only and exactly held by

18  a financial institution, credit union, or participant as

19  defined by 12 U.S.C. s. 4001(19), which result from the

20  performance of or participation in check-clearing functions,

21  whether pursuant to a contractual relationship between

22  financial institutions, credit unions, or participants,

23  through a clearinghouse as defined by s. 674.104, or through a

24  clearinghouse association as defined by 12 U.S.C. s. 4001(8),

25  are not subject to s. 717.117. This section is intended to be

26  remedial in nature, is intended to clarify existing law, and

27  shall apply to credit balances held before, on, or after July

28  1, 2006.

29         Section 3.  This act shall take effect July 1, 2006.

30  

31  

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    Florida Senate - 2006                     CS for CS for SB 656
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 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                            CS/SB 656

 3                                 

 4  The committee substitute makes the following changes:

 5  1.   No later than July 1, 2007, a consumer reporting agency
         doing business in Florida to select and develop a secure
 6       electronic contact, which may include the use of
         telephone, fax, the Internet, or other secure methods, to
 7       receive and process requests from consumers to
         temporarily lift a freeze on a consumer report.
 8  
    2.   The bill expands the circumstance in which an insurance
 9       company may obtain information that would otherwise be
         unavailable due to a credit freeze on a consumer's credit
10       report to include setting or adjusting rates and
         adjusting claims.  The original bill limited an insurance
11       company's access to such information for underwriting
         purposes only.
12  
    3.   The font of the required written disclosure that consumer
13       reporting agencies must provide to consumers regarding
         credit freezes is reduced from at least 14-point to
14       12-point boldface.

15  4.   The bill also provides that credit balances held by
         financial institutions that are the result of check
16       clearing functions are not subject to the unclaimed
         property reporting requirements under s. 717.117, F.S.
17       This provision would apply retroactively to credit
         balances held on or after July 1, 2006.
18  
    5.   The bill provides technical, clarifying changes.
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