N.Y. General Business Law § 349-a: Pricing

§ 349-a. Pricing. 1. As used in this section, the following terms

shall have the following meanings:

(a) "Algorithm" means a computational automated process that uses a

set of rules to define a sequence of operations.

(b) "Clear and conspicuous disclosure" means disclosure in the same

medium as, and provided on, at, or near and contemporaneous with every

advertisement, display, image, offer or announcement of a price for

which notice is required, using lettering and wording that is easily

visible and understandable to the average consumer.

(c) "Consumer" means a natural person who is seeking or solicited to

purchase, lease or receive a good or service for personal, family or

household use.

(d) "Personal data" means any data that identifies or could reasonably

be linked, directly or indirectly, with a specific consumer or device.

"Personal data" shall not include location data that is used by a

for-hire vehicle as defined in section 19-502 of the administrative code

of the city of New York or as otherwise defined in local law or rule, or

a transportation network company vehicle as defined in section sixteen

hundred ninety-one of the vehicle and traffic law, solely to calculate

the fare based on mileage and trip duration between the passenger's

pickup and drop-off locations.

(e) "Dynamic pricing" means pricing that fluctuates dependent on

conditions.

(f) "Personalized algorithmic pricing" means dynamic pricing set by an

algorithm that uses personal data as defined in this section.

(g) "Entity" means any natural person, firm, organization,

partnership, association, corporation, or any other entity domiciled or

doing business in New York state.

2. Any entity that sets the price of a specific good or service using

personalized algorithmic pricing, and that directly or indirectly,

advertises, promotes, labels or publishes a statement, display, image,

offer or announcement of personalized algorithmic pricing to a consumer

in New York, using personal data specific to such consumer, shall

include with such statement, display, image, offer or announcement, a

clear and conspicuous disclosure that states:

"THIS PRICE WAS SET BY AN ALGORITHM USING YOUR PERSONAL DATA".

3. Exceptions. Nothing in this section shall apply to:

(a) A person, firm, partnership, association, or corporation, or agent

or employee thereof, who or that is subject to the insurance law or

regulations promulgated thereunder.

(b) Any financial institution or affiliate of a financial institution,

all as defined in 15 U.S.C. 6809, to the extent that the financial

institution or affiliate is subject to Title V of the Gramm Leach Bliley

Act (15 U.S.C. § 6801, et seq., as amended) and the rules and

implementing regulations promulgated thereunder.

(c) A financial institution as defined in subsection (f) of section

eight hundred one of the financial services law.

(d) A price that is offered to a consumer who has an existing

subscription-based contract or subscription-based agreement for goods or

services with an entity and where such price is less than the price for

the same good or service set forth in the subscription-based agreement

or subscription-based contract.

4. Where the attorney general shall have reason to believe that there

is an alleged violation of this section based upon, among other things,

a consumer report of an alleged violation, the attorney general, in the

name of the people of the state of New York, shall dispatch a cease and

desist letter to the entity at issue, specifying the alleged violation

or violations and the remedies to cure the violations within a

designated timeline. Where, after receipt of the cease and desist letter

and the expiration of such designated timeline, the entity continues to

violate this section, an application may be made by the attorney general

in the name of the people of the state of New York to a court or justice

having jurisdiction by a special proceeding to issue an injunction, and

upon notice to the respondent of not less than five days, to enjoin and

restrain the continuance of such violations; and if it shall appear to

the satisfaction of the court or justice that the respondent has, in

fact, violated this section, an injunction may be issued by such court

or justice, enjoining and restraining any further violation, without

requiring proof that any person has, in fact, been injured or damaged

thereby. Whenever the court shall determine that a violation of this

section has occurred, the court may impose a civil penalty of not more

than one thousand dollars for each violation.

This section shall not be construed to limit any other criminal or

civil liability such entity may be subject to under law.