Phone Records Act Exposed

The Phone Records Act was adopted by ALEC's Telecommunications and Information Technology Task Force at the Spring Task Force Summit on April 22, 2006, approved by the full ALEC Board of Directors May, 2006. ALEC has attempted to distance itself from this piece of legislation after the launch of ALECexposed.org in 2011, but it has done nothing to get it repealed in the states where it previously pushed for it to be made into law.

ALEC Bill Text

Summary

AN ACT to create XXX.XX of the statutes; relating to: obtaining, selling, or soliciting a telephone record that pertains to another person without the person’s consent and providing a penalty.

Model Legislation

Section 1.

XXX.XX of the statutes is created to read: XXX.XX Telephone records; obtaining, selling, or receiving without consent.

(1) In this section:

(a) “Caller identification record” means a record that is delivered electronically to the recipient of a telephone call simultaneously with the reception of the telephone call and that indicates the telephone number from which the telephone call was initiated or similar information regarding the telephone call.

(b) “Customer” means a person who subscribes to telephone service.

(c) “Telephone record” means a record in written, electronic, or oral form, except a caller identification record and subscriber list information, that is created by a telephone service provider and that contains any of the following information with respect to a customer:

1. Telephone numbers that have been dialed by the customer.

2. Telephone numbers pertaining to calls made to the customer.

3. The time when calls were made by the customer or to the customer.

4. The duration of calls made by the customer or to the customer.

5. The location(s) from which calls were initiated by the customer or received from the customer.

(d) “Telephone service” means the conveyance of 2-way voice communication in analog, digital, or other form by any medium, including wire, cable, fiber optics, cellular, broadband personal communications services, or other wireless technologies, satellite, microwave, or at any frequency over any part of the electromagnetic spectrum. “Telephone service” includes the conveyance of voice communication over the Internet and telephone relay service.

(e) “Telephone service provider” means a person who provides telephone service to a customer.

(2) No person may do any of the following:

(a) Obtain, attempt to obtain, or conspire with another to obtain a telephone record that pertains to a customer who is resident of this state, without the customer’s consent, by doing any of the following:

1. Making a false or deceptive statement to an employee, representative, or agent of a telephone service provider.

2. Making a false or deceptive statement to a customer of a telephone service provider.

3. Accessing such customer’s telephone record via the Internet.

4. Knowingly providing to a telephone service provider a document that is fraudulent, that has been lost or stolen, or that has been obtained by fraud or contains a false, fictitious, or fraudulent statement or representation.

(b) Ask another person to obtain a telephone record knowing that the person will obtain the telephone record in a manner prohibited under this section.

(c) Sell or offer to sell a telephone record obtained in a manner prohibited under this section.

(3)

(a) A person who violates this section is guilty of a Class I felony, a fine not to exceed $10,000 or imprisonment not to exceed 3 years and 6 months, or both, if the violation involves one telephone record.

(b) A person who violates this section is guilty of a Class G felony, a fine not to exceed $25,000 or imprisonment not to exceed 10 years, or both, if the violation involves 2 or more telephone records.

(c) A person who violates this section is guilty of a Class E felony, a fine not to exceed $50,000 or imprisonment not to exceed 15 years, or both, if the violation involves more than 10 telephone records.

(4)

(a) In addition to the penalties authorized under sub. (3), a person who violates this section may be required to forfeit personal property used or intended to be used in the violation.

(b) In an action to enforce this section, the court shall award to a person who is the subject of a telephone record involved in a violation of this section all of the following:

1. The amount of the person’s pecuniary loss suffered because of a violation of this section, if proof of the loss is submitted to the satisfaction of the court, or $1,000, whichever is greater.

2. The amount of any gain to the violator as a result of the violation.

(5) This section does not apply to any of the following:

(a) Action by a law enforcement agency in connection with the official duties of the law enforcement agency.

(b) A disclosure by a telephone service provider, if any of the following applies:

1. The telephone service provider reasonably believes the disclosure is necessary to do any of the following:

a. Provide telephone service to a customer.

b. Protect an individual or the telephone service provider from fraudulent, abusive, or unlawful use of telephone service or a telephone record.

2. The disclosure is made to the National Center for Missing and Exploited Children.

3. The disclosure is authorized by state or federal law or regulation.

4. The disclosure is related to testing the security procedures or systems of the telephone service provider for maintaining the confidentiality of customer information.

5. The disclosure is to a government entity, if the telephone company provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information.

6. The disclosure is in connection with the sale or transfer of all or part of its business, or the purchase or acquisition of a portion or all of a business, or the migration of a customer from one carrier to another.

(c) A disclosure pursuant to Section (5)(b), if such disclosure is made reasonably and in

good faith, notwithstanding any later determination that such action was not in fact authorized.

Adopted by the Telecommunications & Information Technology Task Force at the Spring Task Force Summit April 22, 2006. Approved by the full ALEC Board of Directors May, 2006.