In the state of New York, Assemblyman Richard L. Brodsky introduced on January 7, 2009, the “Online Consumer Protection Act” (the “bill” or the “Act”), which would permit consumers to elect not to have their data collected online for use to deliver relevant ads to them. As stated in the findings of the bill, the Act would like to make available protections akin to those provided by the National Do Not Call Registry.

The Act would require publishers and advertising networks to acquire a consumer’s consent before using a consumer’s personally identifiable information (“PII”) for purposes of online preference marketing. Under the Act, the term “online preference marketing” would mean “a type of advertisement delivery and reporting whereby data is collected to determine or predict consumer characteristics or preference for use in advertisement delivery on the Internet.” Additionally, the Act calls on publishers and advertising networks to provide consumers with the opportunity to opt-out of the use of their non-PII for online marketing purposes. Providing further instruction, the Act also would require publishers and advertising networks to provide notice on their home pages of their advertising delivery activities. The Act would also require advertising networks to make reasonable efforts to protect the data collected for online preference marketing from loss, misuse, alteration, destruction, or improper access.

The Act would empower the Attorney General to enjoin violations of the Act and to impose civil penalties of up to $250 per instance where identifying information is collected in violation of the Act. Additionally, the Act would grant a court authority to triple such damages if the court finds a pattern of violating the Act.