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					Minnesota Passes the Nation’s
  First Internet Privacy Law

    Jody Blanke, Professor
 Computer Information Systems
           and Law
   Mercer University, Atlanta
            ALSB - July 30, 2002
Minnesota’s
Internet Privacy Act
   Enacted on May 22, 2002
   To be effective on March 1, 2003
   Applies (only) to Internet service
    providers [ISPs]
   ISPs may not disclose personally
    identifiable information [PII] except as
    provided in this act

                 ALSB - July 30, 2002
"Personally identifiable
information“ defined as
   Information that identifies:
       a consumer by physical or electronic address or
        telephone number;
       a consumer as having requested or obtained
        specific materials or services from an Internet
        service provider;
       Internet or online sites visited by a consumer; or
       any of the contents of a consumer's data-storage
        devices.


                      ALSB - July 30, 2002
Required Disclosures of PII
   Pursuant to subpoena
   Pursuant to warrant or court order
   For certain law enforcement purposes
   In a civil action for conversion
   To the consumer, upon request



                ALSB - July 30, 2002
Permitted Disclosures of PII
   In the “ordinary course of business”
       “debt-collections activities, order fulfillment,
        request processing, or the transfer of ownership”
   As provided by wiretap law
   To other ISPs for purposes of enforcing
    acceptable use policies
   To any person with the consumer’s
    authorization


                      ALSB - July 30, 2002
Authorization
   May be written or electronic
   Must describe persons to whom PII will
    be disclosed and anticipated uses
   Must state conspicuously whether
    authorization will be obtained on an
    opt-in or opt-out basis


                ALSB - July 30, 2002
Civil Action
   May claim actual damages or $500, plus
    costs and attorney fees
   No class actions permitted
   It is a defense that the defendant has
    established and implemented
    reasonable practices and procedures to
    prevent violations of this chapter

                ALSB - July 30, 2002
Preemption
   Expires on the effective date of federal
    legislation that preempts state
    regulation of the release of PII by ISPs
   If federal legislation were enacted that
    did not preempt state law, any such
    federal law would supercede conflicting
    provisions of the Minnesota law

                 ALSB - July 30, 2002
Online Personal Privacy Act
   Senate bill co-sponsored by Senator
    Hollings and ten other Senators
   Would preempt Minnesota law
   Applies to [ISPs], online service
    providers [OSPs], and operators of
    commercial websites [OCWs]
   Restricts collection, use and
    disclosure of PII

                ALSB - July 30, 2002
“Collect” broadly defined as
   The gathering of PII by any means, direct or
    indirect, active or passive, including
       an online request for PII
       PII gathered in chat room or from message board
       “tracking or use of any identifying code linked to a
        user of such a service or website, including the
        use of cookies or other tracking technology”




                       ALSB - July 30, 2002
“Fair information practices”
   Consistent with the “five core principles
    of privacy protection”
       Notice/awareness
       Choice/consent
       Access/participation
       Integrity/security
       Enforcement/redress


                    ALSB - July 30, 2002
Notice
   Must be “clear and conspicuous”
   Must disclose
       the types of information collected
       the methods of collecting and using the
        information
       all the disclosure practices, including
        whether it will be disclosed to third parties


                     ALSB - July 30, 2002
Opt-in Consent
   Required for sensitive PII
   Sensitive PII includes
       individually identifiable health information
       race or ethnicity
       political party affiliation
       religious beliefs
       sexual orientation
       social Security number
       sensitive financial information

                       ALSB - July 30, 2002
Opt-out Consent
   Requires “clear and conspicuous notice” and
    “robust notice” for PII
   PII includes
       first and last name, home or other physical
        address, e-mail address, telephone number, birth
        certificate number
       any other identifier that would permit the physical
        or online contacting of a specific individual
       information that is collected and combined with an
        identifier described above


                      ALSB - July 30, 2002
Exceptions
   Does not apply to the collection, disclosure or
    use of information that is necessary
       to protect security and integrity of the service or
        website, or the safety of people or property
       to conduct a transaction for the user
   Good faith disclosures may be made under
    the Children’s Online Privacy Protection Act
   Disclosures may be made pursuant to a
    warrant or court order

                       ALSB - July 30, 2002
Changes in Privacy Policy
   Whenever an ISP, OSP or OCW makes a
    material change in its policy for the
    collection, use or disclosure of sensitive
    or nonsensitive PII, it must notify all
    users of that service or website of the
    change, and may not act in accordance
    with the changed policy until the user is
    afforded an opportunity to consent or
    withhold consent to the new policy
                 ALSB - July 30, 2002
Access
   Must provide access to PII collected from the user
    online, provide an opportunity for the user to suggest
    a correction or deletion of any such information, and
    make the correction or deletion
   May decline to make the correction or deletion if it
    reasonably believes that it is inaccurate or
    inappropriate, and it so notifies the user, and
    provides an opportunity for the user to refute the
    reasons given for declining to make the suggested
    correction or deletion
   May charge an access fee of no more than $3


                     ALSB - July 30, 2002
Security
   Must establish and maintain reasonable
    procedures necessary to protect the
    security, confidentiality and integrity of
    the PII it maintains




                  ALSB - July 30, 2002
Enforcement
   By FTC
       as unfair or deceptive acts or practices
   By individuals
       for violations regarding sensitive PII
   By state attorneys general
       on behalf of state residents



                     ALSB - July 30, 2002

				
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