ENROLLED
 
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 428
(Senators Kessler, White, Stollings, Yoder, Love, Unger, Hunter and Jenkins,
 original sponsors)
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[Passed March 10, 2007; in effect ninety days from passage.]
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AN ACT to amend the Code of West Virginia, 1931, as amended, by
 adding thereto a new article, designated §46A-6L-101,
 §46A-6L-102, §46A-6L-103, §46A-6L-104 and §46A-6L-105, all
 relating to consumer protection generally; defining certain
 terms; providing a procedure for consumers to implement a
 security freeze to prohibit a consumer-reporting agency from
 releasing all or any part of the consumer's credit report or
 any information derived from it to entities with whom the
 consumer has no existing credit relationship without the
 express authorization of the consumer in certain
 circumstances; exemptions; personal identification number or
 password; procedures for removal or temporary lifting of
 security freeze; exceptions; fees; providing for a written
 notice of a consumer's rights; providing civil penalties for
 violations; and making a violation an unfair or deceptive act
 or practice.
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 §46A-6L-101,
 §46A-6L-102, §46A-6L-103, §46A-6L-104 and §46A-6L-105, all to read
 as follows:
ARTICLE 6L.  THEFT OF CONSUMER IDENTITY PROTECTIONS.
§46A-6L-101.  Definitions.
 For the purposes of this article, the following terms have the
 following meanings:
(1) "Person" means any individual, partnership, corporation,
 trust, estate, cooperative, association, government or governmental
 subdivision or agency or other entity.
(2) "Consumer" means an individual. 
 (3) "Consumer-reporting agency" means any entity which, for
 monetary fees, dues or on a cooperative nonprofit basis, regularly
 engages, in whole or in part, in the practice of assembling or
 evaluating consumer credit information or other information on
 consumers for the purpose of furnishing credit reports to third
 parties.
(4) "Credit report" means any written, oral or other
 communication of any information by a consumer-reporting agency
 bearing on a consumer's credit worthiness, credit standing, credit
 capacity, character, general reputation, personal characteristics
 or mode of living which is used or expected to be used or
 collected, in whole or in part, for the purpose of serving as a
 factor in establishing the consumer's eligibility for:
(A) Credit or insurance to be used primarily for a personal,
 family, household or agricultural purpose, except that nothing in
 this article authorizes or prohibits the use of credit evaluations,
 credit scoring or insurance scoring in the underwriting of personal
 lines of property or casualty insurance;
(B) Employment purposes; or
(C) Any other purpose authorized under Section 15 U. S. C.
 §1681b as in effect on the effective date of this article.
(5) "Security freeze" means a notice, at the request of the
 consumer and subject to certain exceptions, that prohibits the
 consumer-reporting agency from releasing all or any part of the
 consumer's credit report or any information derived from it without
 the express authorization of the consumer.
(6) "Reviewing the account" or "account review" includes
 activities related to account maintenance, monitoring, credit line
 increases and account upgrades and enhancements.
§46A-6L-102. Security freeze; timing; effect; covered entities;
 cost.
(a) A consumer-reporting agency shall permit a consumer to
 place a security freeze on his or her credit report by the consumer
 selecting either of the following:
(1) A request in writing by certified or overnight mail to a
 consumer-reporting agency; or
(2) Making a request directly to the consumer-reporting agency
 through a secure electronic method, if available: Provided, That by
 the thirty-first day of January, two thousand nine, a secure electronic method shall be made available to the consumer by the
 consumer-reporting agency.
(b) A consumer-reporting agency shall place a security freeze
 on a credit report no later than five business days after receiving
 a written request from the consumer.  If a security freeze is in
 place, a report or information may not be distributed to a third
 party without prior express authorization from the consumer. This
 subdivision does not prevent a consumer-reporting agency from
 advising a third party that a security freeze is in effect with
 respect to the consumer's credit report.  A consumer-reporting
 agency may, regardless of the existence of a security freeze,
 distribute information contained in a consumer file to the extent
 otherwise permitted by law if the information was lawfully obtained
 by or for a consumer-reporting agency from an open public record,
 without respect to the existence of a security freeze.  Nothing
 herein prevents a consumer-reporting agency from choosing to apply
 the security freeze to the entire contents of the credit reporting
 file that is subject to the security freeze.
(c) The consumer-reporting agency shall send a written
 confirmation of the security freeze to the consumer within five
 business days of placing the freeze and at the same time shall
 provide the consumer with a unique personal identification number
 or password to be used by the consumer when providing authorization
 for the distribution of his or her credit information.
(d) If the consumer wishes to allow his or her credit report
 to be accessed for a period of time while a freeze is in place, he or she shall contact the consumer-reporting agency by regular mail
 or a procedure developed under subsection (f) of this section and
 request that the freeze be temporarily lifted, providing all of the
 following:
(1) Proper identification;
(2) The unique personal identification number or password
 provided by the consumer-reporting agency pursuant to subsection
 (c) of this section; and
(3) The time period for which the credit report shall be
 available to users of the credit report.
(e) A consumer-reporting agency that receives a request from
 a consumer to temporarily lift a freeze on a credit report pursuant
 to subsection (d) of this section shall comply with the request no
 later than three business days after receiving the request.
(f) A consumer-reporting agency shall develop procedures
 involving the use of telephone, fax, the internet or other
 electronic media to receive and process a request from a consumer
 pursuant to subsection (d) of this section to temporarily lift a
 freeze on a credit report in an expedited manner .
(g) (1) Beginning on the first day of September, two thousand
 eight, a consumer-reporting agency shall temporarily lift a
 security freeze from a consumer's credit report within fifteen
 minutes after the consumer's request is received pursuant to
 subsection (f) of this section by the consumer-reporting agency.
(2) A consumer-reporting agency does not have to remove a
 security freeze within the time provided in this subsection if:
(A) The consumer fails to meet the requirements of subsection
 (d) of this section; or
(B) The consumer-reporting agency's ability to remove the
 security freeze within fifteen minutes is prevented by:
(i) An act of God, including fire, earthquakes, hurricanes,
 storms or similar natural disasters or phenomena;
(ii) Unauthorized or illegal acts by a third party, including
 terrorism, sabotage, riot, vandalism, labor strikes or disputes
 disrupting operations or similar occurrence;
(iii) Operational interruption, including electrical failure,
 unanticipated delay in equipment or replacement part delivery,
 computer hardware or software failures inhibiting response time or
 similar disruption;
(iv) Governmental action, including emergency orders or
 regulations, judicial or law-enforcement action or similar directives;
 (v) Regularly scheduled maintenance, during other than normal
 business hours, of, or updates to, the consumer-reporting agency's
 systems; or
(vi) Commercially reasonable maintenance of, or repair to, the
 consumer-reporting agency's systems that is unexpected or
 unscheduled.
(h) A consumer-reporting agency shall remove or temporarily
 lift a freeze placed on a credit report only upon the request of
 the consumer, pursuant to subsection (d) or (j) of this section.
(i) If a third party requests access to a credit report on
 which a security freeze is in effect, and this request is in connection with an application for credit or any other use, and the
 consumer has not allowed his or her credit report to be accessed
 for a period of time, the third party may treat the application as
 incomplete.
(j) A security freeze shall remain in place until the consumer
 requests that the security freeze be removed.  A consumer-reporting
 agency shall remove a security freeze within three business days of
 receiving a request for removal from the consumer who provides the
 following:
(1) Proper identification; and
(2) The unique personal identification number or password
 provided by the consumer-reporting agency pursuant to subsection
 (c) of this section.
(k) A consumer-reporting agency shall require proper
 identification of the person making a request to place or remove a
 security freeze.
(l) The provisions of this section do not apply to the
 distribution of a consumer credit report to any of the following:
(1) A person or the person's subsidiary, affiliate, agent or
 assignee with whom the consumer has or, prior to assignment, had an
 account, contract or debtor-creditor relationship for the purposes
 of reviewing the account or collecting the financial obligation
 owing for the account, contract or debt;
(2) A subsidiary, affiliate, agent, assignee or prospective
 assignee of a person to whom access has been granted under this
 section for purposes of facilitating the extension of credit or other permissible use;
(3) A person acting pursuant to a court order, warrant or
 subpoena;
(4) A state or local agency that administers a program for
 establishing and enforcing child support obligations;
(5) The West Virginia Department of Health and Human Resources
 or its agents or assigns acting to investigate fraud;
(6) The West Virginia Department of Revenue or its agents or
 assigns acting to investigate or collect delinquent taxes or unpaid
 court orders or to fulfill any of its other statutory
 responsibilities;
(7) A person for the purposes of prescreening as defined by
 the federal Fair Credit Reporting Act;
(8) A person or entity administering a credit file monitoring
 subscription service to which the consumer has subscribed; and
(9) A person or entity for the purpose of providing a consumer
 with a copy of his or her credit report upon the consumer's
 request.
(10) Any person or entity for use in setting or adjusting a
 rate, adjusting a claim or underwriting for insurance purposes to
 the extent not otherwise prohibited by law.
(m) The provisions of this section do not apply to any of the
 following:
(1) A consumer-reporting agency that acts only as a reseller
 of credit information by assembling and merging information
 contained in the database of another consumer-reporting agency or multiple consumer credit-reporting agencies and does not maintain
 a permanent database of credit information from which new consumer
 credit reports are produced.  A consumer-reporting agency acting as
 a reseller shall honor any security freeze placed on a consumer
 credit report by another consumer-reporting agency.
(2) A check services or fraud prevention services company
 which issues reports on incidents of fraud or authorizations for
 the purpose of approving or processing negotiable instruments,
 electronic funds transfers or similar methods of payments.
(3) A deposit account information service company which issues
 reports regarding account closures due to fraud, a substantial
 number of overdrafts, ATM abuse or similar negative information
 regarding a consumer to inquiring banks or other financial
 institutions for use only in reviewing a consumer request for a
 deposit account at the inquiring bank or financial institution.
(4) A consumer-reporting agency's database or file which
 consists of information concerning, and used for, criminal record
 information, fraud prevention or detection, personal loss history
 information and employment, tenant or background screening.
(n) Except as prohibited by subsection (o) of this section, a
 consumer-reporting agency may charge a reasonable fee, not to
 exceed five dollars, to a consumer who elects to place, remove or
 temporarily lift a security freeze on the consumer's credit report.
 No fees except those authorized by this subsection and subsection
 (p) of this section may be charged in connection with a security
 freeze.
(o) A consumer-reporting agency may not charge a fee for
 security freeze services to a consumer who is a victim of identity
 theft and who provides a copy of a police report, an investigative
 report or a written complaint made to the Federal Trade Commission,
 to the office of the Attorney General of West Virginia or to a law-
 enforcement agency concerning the identity theft.
(p) A consumer may be charged a reasonable fee, not to exceed
 five dollars, if the consumer fails to retain the original unique
 personal identification number or password provided by the
 consumer-reporting agency and must be reissued the same or a new
 unique personal identification number or password.
§46A-6L-103.  Notice of rights.
(a) At any time that a consumer is required to receive a
 summary of rights required under Section 609 of the federal Fair
 Credit Reporting Act, 15 U. S. C. §1681g, as in effect on the
 effective date of this article, the following notice shall be
 included:
"West Virginia consumers have the right to obtain a security
 freeze.
You may obtain a security freeze on your credit report to
 protect your privacy and ensure that credit is not granted in your
 name without your knowledge. You have a right to place a security
 freeze on your credit report pursuant to West Virginia law.
The security freeze will prohibit a consumer reporting agency
 from releasing any information in your credit report without your
 express authorization or approval.
The security freeze is designed to prevent credit, loans and
 services from being approved in your name without your consent.
 When you place a security freeze on your credit report, within five
 business days you will be provided a unique personal identification
 number or password to use if you choose to remove the freeze on
 your credit report or to temporarily authorize the distribution of
 your credit report for a period of time after the freeze is in
 place.  To provide that authorization, you must contact the
 consumer-reporting agency and provide all of the following:
(1) The unique personal identification number or password
 provided by the consumer-reporting agency;
(2) Proper identification to verify your identity; and
(3) The period of time for which the report shall be available
 to users of the credit report.
A consumer-reporting agency that receives a request from a
 consumer to temporarily lift a freeze on a credit report shall
 comply with the request no later than three business days after
 receiving the request.
A security freeze does not apply to circumstances in which you
 have an existing account relationship and a copy of your report is
 requested by your existing creditor or its agents or affiliates for
 certain types of account review, collection, fraud control or
 similar activities.
If you are actively seeking credit, you should understand that
 the procedures involved in lifting a security freeze may slow your
 own applications for credit. You should plan ahead and lift a freeze, either completely if you are shopping around or
 specifically for a certain creditor, a few days before actually
 applying for new credit.
You have the right to bring a civil action against someone who
 violates your rights under the credit reporting laws. The action
 can be brought against a consumer-reporting agency."
(b) If a consumer requests information about a security
 freeze, he or she shall be provided with the notice provided in
 this section about how to place, temporarily lift and remove a
 security freeze.
§46A-6L-104.  Violations; penalties.
(a) If a consumer-reporting agency negligently violates the
 security freeze by releasing credit information that has been
 placed under a security freeze, the affected consumer is entitled
 to:
(1) Notification within five business days following discovery
 or actual knowledge of the distribution of the information,
 including specificity as to the information distributed and the
 third-party recipient of the information.(2) File a complaint
 with the Federal Trade Commission or the office of the Attorney
 General of West Virginia.
(3) File a civil action against the consumer-reporting agency
 seeking:
(A) Injunctive relief to prevent or restrain further violation
 of the security freeze;
(B) Actual damages sustained or not more than one thousand dollars, whichever is greater; and
(C) Reasonable expenses, court costs, investigative costs and
 attorney's fees.
(4) Each violation of the security freeze is a separate
 incident for purposes of imposing penalties under this section.
(b) If a consumer-reporting agency willfully violates the
 security freeze by releasing credit information that has been
 placed under a security freeze, the affected consumer is entitled
 to:
(1) Notification within five business days following discovery
 or actual knowledge of the distribution of the information,
 including specificity as to the information distributed and the
 third-party recipient of the information.(2) File a complaint
 with the Federal Trade Commission or the office of the Attorney
 General of West Virginia.
(3) File a civil action against the consumer-reporting agency
 seeking:
(A) Injunctive relief to prevent or restrain further violation
 of the security freeze;
(B) Actual damages sustained or not more than five thousand
 dollars, whichever is greater; and
(C) Reasonable expenses, court costs, investigative costs and
 attorney's fees.
(4) Each violation of the security freeze is a separate
 incident for purposes of imposing penalties under this section.
§46A-6L-105.  Unfair or deceptive acts or practices.
Any violation of this article constitutes an unlawful act or
 practice under the provisions of article six of this chapter
 regarding fraudulent acts or practices committed by a person in
 connection with a consumer transaction and shall be subject to the
 enforcement provisions of article seven of this chapter.