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FMG Law Blog Line

Posts Tagged ‘civil penalty’

Bipartisan TRACED Act Enhances Penalties for Illegal Robocalls

Posted on: December 7th, 2018

By: Matt Foree

U.S. Senator John Thune (R-S.D.), the chairman of the Senate Committee on Commerce, Science and Transportation, and Senator Ed Markey (D-Mass.), a member of the committee and author of the Telephone Consumer Protection Act (“TCPA”), recently announced the introduction of the Telephone Robocall Abuse Criminal Enforcement and Deterrence (“TRACED”) Act.  Senator Roger Wicker (R-Miss.), the chairman of the committee’s Subcommittee on Communications, Technology, Innovation and the Internet is a cosponsor of the bill.

The TRACED Act is introduced in a climate of increased frustration from consumers about robocalls that are not being sufficiently addressed by the TCPA.  Senator Thune explained that “the TRACED Act targets robocall scams and other intentional violations of telemarketing laws so that when authorities do catch violators, they can be held accountable. Existing civil penalty rules were designed to impose penalties on lawful telemarketers who make mistakes. This enforcement regime is totally inadequate for scam artists, and we need do more to separate enforcement of carelessness and other mistakes from more sinister actors.”

Significantly, the bill broadens the authority of the Federal Communications Commission (“FCC”) to levy civil penalties of up to $10,000 per call against those violating telemarketing restrictions. The bill also provides new criminal fines of up to $10,000 per violation, with the opportunity to treble such amount if the activity is intentional.  The bill also extends the window for the FCC to catch and take civil enforcement action against intentional violations to three years after a robocall is placed, instead of only one year. Furthermore, the bill brings together several federal agencies as well as state attorneys general and other non-federal entities to identify and report to Congress on improving deterrence and criminal prosecution of robocall scams. The bill also requires providers of voice services to adopt call authentication technologies to enable telephone carriers to verify that calls are legitimate before they reach consumers phones. Finally, the bill directs the FCC to initiate a rulemaking to help protect subscribers from receiving unwanted calls or texts from callers using unauthenticated numbers.  A copy of the TRACED Act is located HERE.

Senator Thune’s statement regarding the TRACED Act is located HERE  and Senator Markey’s statement is HERE .  We will continue to monitor the status of the TRACED Act and report back with updates.

If you have any questions or would like more information, please contact Matt Foree at [email protected].

South Dakota Introduces Data Breach Notification Legislation

Posted on: February 14th, 2018

By: Kacie L. Manisco

On January 23, 2018, South Dakota’s Senate Attorney Judicial Committee unanimously voted in favor of introducing data breach notification legislation. Senate Bill 62 would require an “Information Holder,” i.e., a person or business conducting business in South Dakota that owns or retains computerized personal or protected information, to notify South Dakota residents whose personal information was, or is reasonably believed to have been, acquired by an unauthorized person.

The law would require notification within 45 days from the discovery of the breach, unless notification would impede a criminal investigation. Moreover, when there is a breach affecting more than 250 South Dakota residents, the Information Holder would be required to notify the state’s Attorney General and all consumer reporting agencies of the timing, distribution and content of the breach notification.

The Bill defines a “breach” as “the acquisition of unencrypted computerized data or encrypted computerized data and the encryption key by an unauthorized person that materially compromises security, confidentiality, or integrity of personal or protected information maintained by the information holder.”

The Bill further empowers the South Dakota Attorney General’s office to investigate and enforce violations. The Attorney General would be authorized to impose criminal penalties for the failure to disclose a breach as an unfair or deceptive practice under South Dakota’s Deceptive Trade Practices and Consumer Protection law. In addition, the Attorney General could impose a civil penalty of $10,000 per day per violation and recover attorneys’ fees and costs associated with any action brought against the Information Holder.

Currently, Alabama and South Dakota are the only two states in the United States without data breach notification statutes. If the South Dakota legislation passes, Alabama may soon be the only state lacking a data breach notification law.

If you have any questions or would like more information, please contact Kacie Manisco at [email protected].