Florida Senate - 2016 COMMITTEE AMENDMENT Bill No. SB 960 Ì465836GÎ465836 LEGISLATIVE ACTION Senate . House Comm: RCS . 01/21/2016 . . . . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— The Committee on Transportation (Grimsley) recommended the following: 1 Senate Amendment (with title amendment) 2 3 Delete everything after the enacting clause 4 and insert: 5 Section 1. Section 320.646, Florida Statutes, is created to 6 read: 7 320.646 Consumer data protection.— 8 (1) As used in this section, the term: 9 (a) “Consumer data” means “nonpublic personal information” 10 as such term is defined in 15 U.S.C. s. 6809(4) collected by a 11 motor vehicle dealer and which is provided by the motor vehicle 12 dealer directly to a licensee or third party acting on behalf of 13 a licensee. Consumer data does not include the same or similar 14 data which is obtained by a licensee from any other source. 15 (b) “Data management system” means a computer hardware or 16 software system that is owned, leased, or licensed by a motor 17 vehicle dealer, including a system of web-based applications, 18 computer software, or computer hardware, whether located at the 19 motor vehicle dealership or hosted remotely, and that stores and 20 provides access to consumer data collected or stored by a motor 21 vehicle dealer. The term includes, but is not limited to, 22 dealership management systems and customer relations management 23 systems. 24 (2) Notwithstanding the provisions of any franchise 25 agreement, with respect to consumer data a licensee or a third 26 party acting on behalf of a licensee: 27 (a) Shall comply with all, and not knowingly cause a motor 28 vehicle dealer to violate any, applicable restrictions on reuse 29 or disclosure of the consumer data established by federal or 30 state law and must provide a written statement to the motor 31 vehicle dealer upon request describing the established 32 procedures adopted by the licensee or third party acting on 33 behalf of the licensee which meet or exceed any federal or state 34 requirements to safeguard the consumer data, including, but not 35 limited to, those established in the Gramm-Leach-Bliley Act, 15 36 U.S.C. ss. 6801 et seq. 37 (b) Shall, upon the written request of the motor vehicle 38 dealer, provide a written list of the consumer data obtained 39 from the motor vehicle dealer and all persons to whom any 40 consumer data has been provided by the licensee or a third party 41 acting on behalf of a licensee during the preceding 6 months. 42 The dealer may make such a request no more than once every 6 43 months. The list must indicate the specific fields of consumer 44 data which were provided to each person. Notwithstanding the 45 foregoing, such a list need not include: 46 1. A person to whom consumer data was provided, or the 47 specific consumer data provided to such person, if the person 48 was, at the time the consumer data was provided, one of the 49 licensee’s service providers, subcontractors or consultants 50 acting in the course of such person’s performance of services on 51 behalf of or for the benefit of the licensee or motor vehicle 52 dealer, provided that the licensee has entered into an agreement 53 with such person requiring that the person comply with the 54 safeguard requirements of applicable state and federal law, 55 including, but not limited to, those established in the Gramm 56 Leach-Bliley Act, 15 U.S.C. ss. 6801 et seq; or 57 2. A person to whom consumer data was provided, or the 58 specific consumer data provided to such person, if the motor 59 vehicle dealer has previously consented in writing to such 60 person receiving the consumer data provided and the motor 61 vehicle dealer has not withdrawn such consent in writing. 62 (c) May not require that a motor vehicle dealer grant the 63 licensee or a third party direct or indirect access to the 64 dealer’s data management system to obtain consumer data. A 65 licensee must permit a motor vehicle dealer to furnish consumer 66 data in a widely accepted file format, such as comma delimited, 67 and through a third-party vendor selected by the motor vehicle 68 dealer. However, a licensee may access or obtain consumer data 69 directly from a motor vehicle dealer’s data management system 70 with the express consent of the dealer. The consent must be in 71 the form of a written document that is separate from the 72 parties’ franchise agreement, is executed by the motor vehicle 73 dealer, and may be withdrawn by the dealer upon 30 days’ written 74 notice to the licensee. 75 (d) Must indemnify the motor vehicle dealer for any third 76 party claims asserted against or damages incurred by the motor 77 vehicle dealer to the extent caused by access to, use of, or 78 disclosure of consumer data in violation of this section by the 79 licensee, a third party acting on behalf of the licensee, or a 80 third party to whom the licensee has provided consumer data. 81 (3) In any cause of action against a licensee pursuant to 82 s. 320.697 for a violation of paragraphs (2)(a), (2)(b), or 83 (2)(c), the person bringing the action has the burden of proving 84 that the violation was willful or with sufficient frequency to 85 establish a pattern of wrongdoing with respect to such person’s 86 consumer data. 87 Section 2. For the purpose of incorporating section 88 320.646, Florida Statutes, as created by this act, in a 89 reference thereto, section 320.6992, Florida Statutes, is 90 reenacted to read: 91 320.6992 Application.—Sections 320.60-320.70, including 92 amendments to ss. 320.60-320.70, apply to all presently existing 93 or hereafter established systems of distribution of motor 94 vehicles in this state, except to the extent that such 95 application would impair valid contractual agreements in 96 violation of the State Constitution or Federal Constitution. 97 Sections 320.60-320.70 do not apply to any judicial or 98 administrative proceeding pending as of October 1, 1988. All 99 agreements renewed, amended, or entered into subsequent to 100 October 1, 1988, shall be governed by ss. 320.60-320.70, 101 including any amendments to ss. 320.60-320.70 which have been or 102 may be from time to time adopted, unless the amendment 103 specifically provides otherwise, and except to the extent that 104 such application would impair valid contractual agreements in 105 violation of the State Constitution or Federal Constitution. 106 Section 3. This act shall take effect upon becoming a law. 107 ================= T I T L E A M E N D M E N T ================ 108 And the title is amended as follows: 109 Delete everything before the enacting clause 110 and insert: 111 A bill to be entitled 112 An act relating to protection of motor vehicle 113 dealers’ consumer data; creating s. 320.646, F.S.; 114 defining the terms “consumer data” and “data 115 management system”; requiring that a licensee or a 116 third party comply with certain restrictions on reuse 117 or disclosure of consumer data received from a motor 118 vehicle dealer; requiring that such person provide a 119 written statement to the motor vehicle dealer 120 delineating the established procedures adopted by the 121 person which meet or exceed certain requirements to 122 safeguard consumer data; requiring that upon request 123 of a motor vehicle dealer a licensee provide a list of 124 the consumer data obtained and all persons to whom any 125 of the data has been disclosed, subject to certain 126 requirements; prohibiting a licensee from requiring a 127 motor vehicle dealer to grant the licensee or third 128 party access to the dealer’s data management system; 129 requiring a licensee to permit a motor vehicle dealer 130 to furnish consumer data in a widely accepted file 131 format and through a third-party vendor selected by 132 the motor vehicle dealer; authorizing a licensee to 133 access or obtain consumer data from a motor vehicle 134 dealer’s data management system with the dealer’s 135 express written consent, subject to certain 136 requirements; requiring the licensee to indemnify the 137 motor vehicle dealer for certain claims or damages; 138 providing that a person bringing a specified cause of 139 action for certain violations must meet certain 140 requirements; reenacting s. 320.6992, F.S., relating 141 to the provisions that apply to established systems of 142 distribution of motor vehicles in this state, to 143 incorporate s. 320.646, F.S., as created by the act, 144 in a reference thereto; providing an effective date.