§ 349-A — Pricing

§ 349-a. Pricing. 1. As used in this section, the following terms\nshall have the following meanings:\n (a) "Algorithm" means a computational automated process that uses a\nset of rules to define a sequence of operations.\n (b) "Clear and conspicuous disclosure" means disclosure in the same\nmedium as, and provided on, at, or near and contemporaneous with every\nadvertisement, display, image, offer or announcement of a price for\nwhich notice is required, using lettering and wording that is easily\nvisible and understandable to the average consumer.\n (c) "Consumer" means a natural person who is seeking or solicited to\npurchase, lease or receive a good or service for personal, family or\nhousehold use.\n (d) "Personal data" means any data that identifies or could reasonably\nbe linked, directly or indirectly, with a specific consumer or device.\n"Personal data" shall not include location data that is used by a\nfor-hire vehicle as defined in section 19-502 of the administrative code\nof the city of New York or as otherwise defined in local law or rule, or\na transportation network company vehicle as defined in section sixteen\nhundred ninety-one of the vehicle and traffic law, solely to calculate\nthe fare based on mileage and trip duration between the passenger's\npickup and drop-off locations.\n (e) "Dynamic pricing" means pricing that fluctuates dependent on\nconditions.\n (f) "Personalized algorithmic pricing" means dynamic pricing set by an\nalgorithm that uses personal data as defined in this section.\n (g) "Entity" means any natural person, firm, organization,\npartnership, association, corporation, or any other entity domiciled or\ndoing business in New York state.\n 2. Any entity that sets the price of a specific good or service using\npersonalized algorithmic pricing, and that directly or indirectly,\nadvertises, promotes, labels or publishes a statement, display, image,\noffer or announcement of personalized algorithmic pricing to a consumer\nin New York, using personal data specific to such consumer, shall\ninclude with such statement, display, image, offer or announcement, a\nclear and conspicuous disclosure that states:\n "THIS PRICE WAS SET BY AN ALGORITHM USING YOUR PERSONAL DATA".\n 3. Exceptions. Nothing in this section shall apply to:\n (a) A person, firm, partnership, association, or corporation, or agent\nor employee thereof, who or that is subject to the insurance law or\nregulations promulgated thereunder.\n (b) Any financial institution or affiliate of a financial institution,\nall as defined in 15 U.S.C. 6809, to the extent that the financial\ninstitution or affiliate is subject to Title V of the Gramm Leach Bliley\nAct (15 U.S.C. § 6801, et seq., as amended) and the rules and\nimplementing regulations promulgated thereunder.\n (c) A financial institution as defined in subsection (f) of section\neight hundred one of the financial services law.\n (d) A price that is offered to a consumer who has an existing\nsubscription-based contract or subscription-based agreement for goods or\nservices with an entity and where such price is less than the price for\nthe same good or service set forth in the subscription-based agreement\nor subscription-based contract.\n 4. Where the attorney general shall have reason to believe that there\nis an alleged violation of this section based upon, among other things,\na consumer report of an alleged violation, the attorney general, in the\nname of the people of the state of New York, shall dispatch a cease and\ndesist letter to the entity at issue, specifying the alleged violation\nor violations and the remedies to cure the violations within a\ndesignated timeline. Where, after receipt of the cease and desist letter\nand the expiration of such designated timeline, the entity continues to\nviolate this section, an application may be made by the attorney general\nin the name of the people of the state of New York to a court or justice\nhaving jurisdiction by a special proceeding to issue an injunction, and\nupon notice to the respondent of not less than five days, to enjoin and\nrestrain the continuance of such violations; and if it shall appear to\nthe satisfaction of the court or justice that the respondent has, in\nfact, violated this section, an injunction may be issued by such court\nor justice, enjoining and restraining any further violation, without\nrequiring proof that any person has, in fact, been injured or damaged\nthereby. Whenever the court shall determine that a violation of this\nsection has occurred, the court may impose a civil penalty of not more\nthan one thousand dollars for each violation.\n This section shall not be construed to limit any other criminal or\ncivil liability such entity may be subject to under law.\n