H. B. 2549
(By Delegates Sobonya, Sumner, Moore and C. Miller)
[Introduced February 17, 2009; referred to the
Committee on Energy, Industry and Labor, Economic
Development and Small Business then the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §24-6A-1, §24-6A-2,
§24-6A-3 and §24-6A-4, all relating to the "Telephone Record
Confidentiality Act"; providing definitions; prohibiting
telephone records from being obtained, sold or received
without consent; and providing penalties.
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 §24-6A-1, §24-6A-2,
§24-6A-3 and §24-6A-4, all to read as follows:
ARTICLE 6A. TELEPHONE RECORD CONFIDENTIALITY.
§24-6A-1. Title.
This article is known as the "Telephone Record Confidentiality
Act".
§24-6A-2. Definitions.
As used in this article:
(a) "Caller identification record" means a record that is
delivered electronically to the recipient of a telephone call
simultaneously with the reception of the telephone call and that
indicates the telephone number from which the telephone call was
initiated or similar information regarding the telephone call.
(b) "Customer" means a person who purchases telephone service.
(c) "Telephone record" means a record in written, electronic,
or oral form, except a caller identification record, that is
created by a telephone service provider and that contains any of
the following information with respect to a customer:
(1) Telephone numbers that have been dialed by the customer;
(2) Telephone numbers pertaining to calls made to the
customer;
(3) The time when calls were made by the customer or to the
customer;
(4) The duration of calls made by the customer or to the
customer.
(d) "Telephone service" means the conveyance of two-way voice
communication in analog, digital, or other form by any medium,
including wire, cable, fiber optics, cellular, broadband personal
communications services, or other wireless technologies, satellite,
microwave, or at any frequency over any part of the electromagnetic
spectrum. "Telephone service" includes the conveyance of voice communication over the Internet and telephone relay service.
(e) "Telephone service provider" means a person who provides
telephone service to a customer.
§24-6A-3. Obtaining, selling or receiving telephone records
prohibited without consent; penalties.
A person may not do any of the following:
(a) Obtain, or attempt to obtain, a telephone record that
pertains to a customer who is a resident of this state, without the
customer's consent, by doing any of the following:
(1) Making a false statement to an agent of a telephone
service provider;
(2) Making a false statement to a customer of a telephone
service provider;
(3) Knowingly providing to a telephone service provider a
document that is fraudulent, that has been lost or stolen, or that
has been obtained by fraud.
(b) Ask another person to obtain a telephone record knowing
that the person will obtain the telephone record in a manner
prohibited under this section; and
(c)
Sell or offer to sell a telephone record obtained in a
manner prohibited under this section.
§24-6A-4. Penalties.
(a) A person who violates this article is guilty of a
misdemeanor if the violation involves one telephone record and, upon conviction thereof, shall be fined not more than $500 or
confined in jail not more than one year, or both fined and
confined.
(b) A person who violates this section is guilty of a felony
if the violation involves more than ten telephone records and, upon
conviction thereof, shall be fined not more than $1,000 or
imprisoned in a state correctional facility not less than one year,
or both fined and imprisoned.
(c) In addition to the penalties authorized under subsections
(a) and (b) of this section, a person who violates this section may
be required to forfeit personal property used or intended to be
used in the violation.
(d) In an action to enforce this section, the court shall
award to a person who is the subject of a telephone record involved
in a violation of this section all of the following:
(1) The amount of the person?s pecuniary loss suffered because
of a violation of this section, if proof of the loss is submitted
to the satisfaction of the court, or $1,000, whichever is greater.
(2) The amount of any gain to the violator as a result of the
violation.
(e) This section does not apply to any of the following:
(1) Action by a law-enforcement agency in connection with the official duties of the law-enforcement agency.
(2) A disclosure by a telephone service provider, if any of
the following applies
:
(A) The telephone service provider reasonably believes the
disclosure is necessary to provide telephone service to a customer
,
or to protect an individual from fraudulent, abusive, or unlawful
use of telephone service or a telephone record;
(B) The disclosure is made pursuant to the National Center for
Missing and Exploited Children; and
(C) The disclosure is authorized by state or federal law or
regulation.
NOTE: The purpose of this bill is to establish the "Telephone
Record Confidentiality Act"; to define terms; to prohibit any
person from obtaining, selling or receiving a person's telephone
record without their consent; and to provide penalties.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.