ASSEMBLY, No. 124

STATE OF NEW JERSEY

214th LEGISLATURE

 

PRE-FILED FOR INTRODUCTION IN THE 2010 SESSION

 


 

Sponsored by:

Assemblyman  PETER J. BIONDI

District 16 (Morris and Somerset)

Assemblyman  JON M. BRAMNICK

District 21 (Essex, Morris, Somerset and Union)

 

 

 

 

SYNOPSIS

     Creates offenses pertaining to unauthorized use of confidential information.

 

CURRENT VERSION OF TEXT

     Introduced Pending Technical Review by Legislative Counsel

  


An Act creating offenses pertaining to the unauthorized use of confidential information and supplementing Title 2C of the New Jersey Statutes.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.    As used in this act:

     “Authorization” means permission, authority, or consent given by a person who possesses lawful authority to grant such permission, authority, or consent to another person to access, obtain, take, copy or use confidential information.

     “Authorized person” means a person with authorization.

     “Computer,” “computer network,” and “computer system” have the meaning as defined in section 2 of P.L.1984, c.184 (C.2C:20-23).

     “Confidential Information” means proprietary information belonging to a person who resides in New Jersey which is not intended to be accessed by a third party without that person’s authorization.  “Confidential information” includes, but is not limited to, records of a person’s landline and cellular telephone calls and information from a system in a vehicle which provides information as to the vehicle’s travel and location.  “Confidential information” does not include personal information which is regulated by the federal government.

     “Distribute” means, but is not limited to, any sale, purchase, transfer, gift, delivery, or provision to another, regardless of whether the distribution was for compensation.

 

     2.    A person is guilty of the crime of  the unauthorized use of confidential information if the person:

     a.     Negligently provides confidential information to a third party without first taking reasonable and adequate steps to ensure that  the requestor is either the person to whom the confidential information belongs or is authorized to request and receive the confidential information.

     A person who violates this subsection is guilty of a crime of the fourth degree.

     b.    Purposely or knowingly obtains confidential information of another without authorization by:

     (1)   falsely representing himself to be the person to whom the confidential information belongs or to be authorized by that person to obtain the information,

     (2)   accessing and distributing confidential information from his place of employment in an unauthorized manner,

     (3)   accessing and distributing without authorization confidential information in a computer, computer network, or computer system of another, or

     (4)   using any other means to access without authorization confidential information and distributing it to another.

     A person who violates this subsection is guilty of a crime of the second degree.

     c.     Obtains confidential information knowing that such information is confidential and was obtained without authorization or in an otherwise fraudulent manner.

     A person who violates this subsection is guilty of a crime of the fourth degree.

     When a violation of any subsection of this section involves an offense committed against a person because he is a law enforcement officer, or a witness or an informant in a criminal matter, the violation shall constitute an aggravating circumstance to be considered by the court when determining the appropriate sentence to be imposed.

 

     3.    Any person who is the custodian of confidential information shall exercise due diligence on an ongoing basis to protect the security of the confidential information including, but not limited to, maintaining current technology to prevent unauthorized access to computers, computer systems, and computer networks; maintaining adequate safeguards to ensure that confidential information is only distributed to authorized individuals; and conducting employee training in information security measures.

     Any person who recklessly or negligently violates this section is guilty of a crime of the fourth degree.

     Any person who purposely or knowingly violates this section is guilty of a crime of the third degree.

     When a violation of this section involves the confidential information of five or more separate persons, the violation shall constitute an aggravating circumstance to be considered by the court when determining the appropriate sentence to be imposed. Each offense shall constitute a separate offense and shall not be aggregated for purposes of sentencing.

 

     4.    A person having custody of confidential information shall notify a person if the person’s confidential information has been accessed by an unauthorized person or if there has been a breach of the custodian’s security measures which may have compromised the security of the person’s confidential information.  Failure to give such notice shall be a disorderly persons offense.

 

     5.    a. Any person whose confidential information is distributed in violation of this act may bring an action in any court of competent jurisdiction.  In any action under this section the court shall, in addition to any other appropriate legal or equitable relief including punitive damages, award damages in an amount three times the value of all costs incurred by the victim as a result of the violation. The victim may also recover those costs incurred for attorneys' fees, court costs and any out-of -pocket losses.

     b.    The standard of proof in actions brought under this section is a preponderance of the evidence, and the fact that a prosecution for a violation of this section is not instituted or, where instituted, terminates without a conviction shall not preclude an action pursuant to this section.  A final judgment rendered in favor of the State in any criminal proceeding shall stop the defendant from denying the same conduct in any civil action brought pursuant to this section.

     c.     The cause of action authorized by this section shall be in addition to and not in lieu of any forfeiture or any other action, injunctive relief or any other remedy available at law, except that where the defendant is convicted of a violation of this act, the court in the criminal action, upon the application of the Attorney General or the prosecutor, shall in addition to any other disposition authorized by this Title sentence the defendant to pay restitution in an amount equal to the costs incurred by the victim as a result of the defendant's criminal activity, regardless of whether a civil action has been instituted.  These costs may include, but are not limited to, those incurred by the victim in clearing his credit history or credit rating; those incurred in connection with any civil or administrative proceeding to satisfy any debt, lien, or other obligation of the victim arising as a result of the actions of the defendant; or those incurred for attorneys' fees, court costs and any out-of-pocket losses.

 

     6.    Nothing in this act shall apply to the lawful activities of a law enforcement officer or a law enforcement agency.

 

     7.    This act shall take effect immediately.

 

 

STATEMENT

 

     This bill addresses the growing problem of unauthorized use of the confidential information of New Jersey residents.  There are websites on the Internet which specialize in fraudulently obtaining and then selling private information including records of telephone calls made from wireless phones and landline phones and information from navigation systems in vehicles.  These are invasions of privacy which create serious public safety issues.

     This bill makes it a crime of the fourth degree for a person to negligently provide confidential information to a third party without first taking reasonable and adequate steps to ensure that the requestor is either the person to whom the confidential information belongs or is authorized to request the information.

     The bill makes it a crime of the second degree for a person to purposely or knowingly obtain confidential information of another without authorization by:

     (1)   falsely representing himself to be the person to whom the confidential information belongs or to be authorized by that person to obtain  the information,

     (2)   accessing and distributing confidential information from his place of employment in an unauthorized manner,

     (3)   accessing and distributing without authorization confidential information in a computer, computer network, or computer system of another, or

     (4)   using any other means to access without authorization confidential information and distributing it to another.

     This bill makes it a crime of the fourth degree to obtain confidential information knowing that such information is confidential and was obtained without authorization or in an otherwise fraudulent manner.  When a violation is committed against a person because he is a law enforcement officer, or a witness or an informant in a criminal matter, the violation will constitute an aggravating circumstance to be considered by the court when determining the appropriate sentence to be imposed.

     This bill requires that any person who is the custodian of confidential information must exercise due diligence on an ongoing basis to protect the security of the confidential information including maintaining current technology to prevent unauthorized access to computers, computer systems, and computer networks; maintaining adequate safeguards to ensure that confidential information is only distributed to authorized individuals, and conducting employee training in information security measures.  A person who recklessly or negligently violates this requirement is guilty of a crime of the fourth degree.  A person who purposely or knowingly violates this requirement is guilty of a crime of the third degree.  When a violation involves the confidential information of five or more people, the violation will constitute an aggravating circumstance to be considered by the court when determining the appropriate sentence to be imposed.

     This bill requires that a person having custody of confidential information notify a person if the person’s confidential information has been accessed by an unauthorized person or if there has been a breach of the custodian’s security measures which may have compromised the security of the person’s confidential information. Under the bill, failure to give such notice is be a disorderly persons offense.

     The bill also provides that any person whose confidential information is distributed in violation of this bill may bring a private civil action in addition to any criminal prosecution.

     Nothing in this bill applies to the lawful activities of a law enforcement officer or a law enforcement agency.