06 LC 29
2355S
The
House Committee on Judiciary Non-Civil offers the following substitute
to
HB 1389:
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Article 8 of Chapter 9 of Title 16 of the Official Code of Georgia
Annotated, relating to identity fraud, so as to provide for definitions; to
provide that a consumer who has been the victim of identity theft may place a
security freeze on his or her credit report by making a written request to a
consumer credit reporting agency; to provide that such request must be
accompanied by a copy of a report that the consumer has filed with a law
enforcement agency or the
Governoŕs
Office of Consumer Affairs about the unlawful use of his or her personal
information by another person; to provide that a consumer credit reporting
agency must place a security freeze on the
consumeŕs
credit report no later than five days after receiving a proper written request;
to provide that if a security freeze is in effect, the consumer credit reporting
agency shall not change any official information in a credit report without
sending a written notification to the consumer; to limit the issuance of credit
cards under certain circumstances; to provide for related matters; to provide an
effective date; to repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Article
8 of Chapter 9 of Title 16 of the Official Code of Georgia Annotated, relating
to identity fraud, is amended by designating the existing provisions as Part 1
and adding a new Part 2 to read as follows:
"Part
2
16-9-135.
(a)
As used in this part, the term:
(1)
'Consumer' means a natural person.
(2)
'Consumer credit reporting agency' means any person, who 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.
(3)
'Credit report' means any written or other communication of any information by a
consumer reporting agency bearing on a
consumeŕs
credit worthiness, credit standing, or credit capacity which is used or intended
to be used or collected in whole or in part for the purpose of serving as a
factor in establishing the
consumeŕs
eligibility for credit or insurance to be used primarily for personal, family,
or household purposes or employment consideration.
(4)
'Extension of credit' does not include an increase in an existing open-end
credit plan, as defined in Regulation Z of the Federal Reserve System (12 C.F.R.
226.2), or any change to or review of an existing credit account.
(5)
'Person' means a natural person, corporation, trust, partnership, incorporated
or unincorporated association, or any other legal entity.
(6)
'Proper identification' means information generally deemed sufficient to
identify a person. Only when the consumer is unable to reasonably identify
himself or herself with proper identification may a consumer credit reporting
agency require additional information concerning the
consumeŕs
employment and personal or family history in order to verify his or her
identity.
(7)
'Security freeze' means a notice placed on a consumer file that prohibits a
consumer reporting agency from releasing a credit report relating to the
extension of credit involving that consumer file without the express
authorization of the consumer.
(b)
A credit card issuer who mails an offer or solicitation to apply for a credit
card and who receives a completed application in response to the offer or
solicitation which lists an address that is not substantially the same as the
address on the offer or solicitation may not issue a credit card based on that
application until reasonable steps have been taken to verify the
applicant́s
change of address.
(c)
Any person who uses a consumer credit report in connection with the approval of
credit based on the application for an extension of credit, and who has received
notification of a report filed with a law enforcement agency, the
Governoŕs
Office of Consumer Affairs, or another consumer credit reporting agency that the
applicant has been a victim of identity fraud, as defined in Code Section
16-9-121, may not lend money or extend credit without taking reasonable steps to
verify the
consumeŕs
identity and confirm that the application for an extension of credit is not the
result of identity fraud.
(d)
A consumer who has been the victim of identity fraud may place a security freeze
on his or her credit report by making a request in writing by certified mail or
overnight statutory delivery to a consumer credit reporting agency with a valid
copy of a police report, investigative report, or complaint that the consumer
has filed with a law enforcement agency or the
Governoŕs
Office of Consumer Affairs about unlawful use of his or her personal information
by another person. A consumer credit reporting agency shall not charge a fee for
placing, removing, or removing for a specific party or period of time a security
freeze on a credit report. A security freeze shall prohibit, subject to the
exceptions under this Code section, the consumer credit reporting agency from
releasing the
consumeŕs
credit report or any information from it without the express authorization of
the consumer. When a security freeze is in place, a
consumeŕs
credit report shall not be released to a third party without prior express
authorization from the consumer. This subsection does not prevent a consumer
credit reporting agency from:
(1)
Advising a third party that a security freeze is in effect with respect to the
consumeŕs
credit report; or
(2)
Disclosing the
consumeŕs
credit report or information from it for other than credit related
purposes.
(e)
A consumer credit reporting agency shall place a security freeze on a
consumeŕs
credit report no later than five days after receiving a written request from the
consumer.
(f)
If a third party requests a credit report in connection with an application for
credit and the request is denied due to a security freeze, the third party may
treat the application as incomplete.
(g)
If the consumer wishes to allow his or her credit report to be accessed for a
specific party or period of time while a freeze is in place, he or she shall
contact the consumer credit reporting agency, request that the freeze be
temporarily lifted, and provide the following:
(1)
Proper identification;
(2)
The unique personal identification number or password provided by the consumer
credit reporting agency; and
(3)
The proper information regarding the third party or time period for which the
report shall be available to users of the credit report.
(h)
A consumer credit reporting agency may develop procedures involving the use of
telephone, facsimile, the Internet, or other electronic media to receive and
process a request from a consumer to temporarily lift a freeze on a credit
report pursuant to subsection (g) of this Code section in an expedited
manner.
(i)
A consumer credit reporting agency that receives a request from a consumer to
temporarily lift a freeze on a credit report pursuant to subsection (g) of this
Code section shall comply with the request no later than three business days
after receiving the request.
(j)
A consumer credit reporting agency shall remove or temporarily lift a freeze
placed on a
consumeŕs
credit report only in the following cases:
(1)
Upon the
consumeŕs
request, pursuant to subsection (f) or (l) of this Code section; or
(2)
If the
consumeŕs
credit report was frozen due to a material misrepresentation of fact by the
consumer.
If
a consumer credit reporting agency intends to remove a freeze upon a
consumeŕs
credit report pursuant to paragraph (2) of this subsection, the consumer credit
reporting agency shall notify the consumer in writing prior to removing the
freeze on the
consumeŕs
credit report.
(k)
The consumer credit reporting agency shall send a written confirmation of the
security freeze to the consumer within ten business days of receipt of the
request. The written confirmation shall also provide the consumer with the
following:
(1)
A unique personal identification number or password, other than the
consumeŕs
social security number, to be used by the consumer when providing authorization
for the release of his or her credit for a specific party or period of
time;
(2)
Notification to the consumer of his or her right to be excluded from credit
pre-screening lists provided by a consumer reporting agency in connection with a
credit or insurance transaction that is not initiated by the
consumer;
(3)
Information regarding the procedure for placing a fraud alert with consumer
reporting agencies; and
(4)
Information regarding the process for placing and temporarily lifting a security
freeze to allow access to the
consumeŕs
credit report for a specific party or period of time while the freeze is in
place.
(l)
A security freeze shall remain in place until the consumer requests that the
security freeze be removed. A consumer credit 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
credit reporting agency.
(m)
A consumer credit reporting agency shall require proper identification of the
person making a request to place or remove a security freeze.
(n)
The provisions of subsections (d) through (m) of this Code section shall not
apply to the use of a consumer credit report by any of the
following:
(1)
A person for the use of a credit report for purposes permitted under 15 U.S.C.
Section 1681b(c);
(2)
A person or entity, or a subsidiary, affiliate, or agent of that person or
entity, or an assignee of a financial obligation owing by the consumer to that
person or entity, or a prospective assignee of a financial obligation owing by
the consumer to that person or entity in conjunction with the proposed purchase
of the financial obligation, with which the consumer has or had prior to
assignment an account or contract, including a demand deposit account, or to
whom the consumer issued a negotiable instrument, for the purposes of reviewing
the account or collecting the financial obligation owing for the account,
contract, or negotiable instrument. For purposes of this subsection, 'reviewing
the account' includes activities related to account maintenance, monitoring,
credit line increases, and account upgrades and enhancements;
(3)
A subsidiary, affiliate, agent, assignee, or prospective assignee of a person to
whom access has been granted under subsection (g) of this Code section for
purposes of facilitating the extension of credit or other permissible
use;
(4)
For other than credit related purposes consistent with the definition of credit
report found in paragraph (3) of subsection (a) of this Code
section;
(5)
Any state or local agency, law enforcement agency, trial court, or private
collection agency acting pursuant to a court order, warrant, or
subpoena;
(6)
A child support agency acting pursuant to Title IV-D of the Social Security
Act;
(7)
The relevant state agency or its agents or assigns acting to investigate
Medicaid fraud;
(8) The 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;
(8) The 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;
(9)
Any person or entity administering a credit file monitoring subscription service
to which the consumer has subscribed; or
(10)
Any person or entity for the purpose of providing a consumer with a copy of his
or her credit report or credit score upon the
consumeŕs
request.
(o)
If a security freeze is in place, a consumer credit reporting agency shall not
change any of the following official information in a credit report without
sending a written confirmation of the change to the consumer within 30 days of
the change being posted to the
consumeŕs
file:
(1)
Name;
(2)
Date of birth;
(3)
Social security number; or
(4)
Address.
Written
confirmation is not required for technical modifications of a
consumeŕs
official information, including name and street abbreviations, complete
spellings, or transposition of numbers or letters. In the case of an address
change, the written confirmation shall be sent to both the new address and to
the former address.
(p)
The following entities are not required to place a security freeze on a credit
report, provided that any person that is not required to place a security freeze
on a credit report under paragraph (3) of this subsection shall be subject to
any security freeze placed on a credit report by another credit reporting agency
from which it obtains information:
(1)
A check services or fraud prevention services company, including issuers of
reports on incidents of fraud or potential fraud or authorizations for the
purpose of approving or processing negotiable instruments, electronic funds
transfers, or similar methods of payment;
(2)
A deposit account information service company, which issues reports regarding
account closures due to fraud, substantial 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; or
(3)
A consumer credit reporting agency that:
(A)
Acts only to resell credit information by assembling and merging information
contained in a data base of one or more consumer credit reporting agencies;
and
(B)
Does not maintain a permanent data base of credit information from which new
credit reports are produced.
16-9-136.
(a)
A violation of this part shall be punishable by imprisonment for not less than
one nor more than three years or a fine not to exceed $10,000.00, or both. Any
person who commits a second or any subsequent offense shall be punished by
imprisonment for not less than two nor more than five years or a fine not to
exceed $25,000.00, or both.
(b)
Any person found guilty of a violation of this part may be ordered by the court
to make restitution to any victim of such identity fraud.
(c)
Each violation of this part shall constitute a separate offense.
(d)
Upon a conviction of a violation of this part, the court may issue any order
necessary to correct a public record that contains false information resulting
from the actions which resulted in the conviction.
16-9-137.
(a)
Any consumer victim who suffers injury or damages as a result of a violation of
this part may bring an action individually or as a representative of a class
against the person or persons engaged in such violations under the rules of
civil procedure to seek equitable injunctive relief and to recover general and
punitive damages sustained as a consequence thereof in any court having
jurisdiction over the defendant; provided, however, that punitive damages shall
be awarded only in cases of intentional violation. A claim under this part may
also be asserted as a defense, setoff, cross-claim, counterclaim, or third-party
claim against such person.
(b)
A court shall award three times actual damages for an intentional
violation.
(c)
If the court finds in any action that there has been a violation of this part,
the consumer victim injured by such violation shall, in addition to other relief
provided for in this Code section and irrespective of the amount in controversy,
be awarded reasonable
attorneýs
fees and expenses of litigation incurred in connection with said
action.
(d)
It shall not be a defense in any action under this part that others were, are,
or will be engaged in like practices.
16-9-138.
This
part is cumulative with other laws and is not exclusive. The rights or remedies
provided for in this part shall be in addition to any other procedures, rights,
remedies, or duties provided for in any other law or in decisions of the courts
of this state dealing with the same subject
matter."
SECTION
2.
This
Act shall become effective on January 1, 2007, and shall apply to transactions
arising on or after that date.
SECTION
3.
All
laws and parts of laws in conflict with this Act are repealed.