§431:3A-102 Definitions.  As used in this article:

"Affiliate"means any company that controls, iscontrolled by, or is under common control with another company.

"Clearand conspicuous" means reasonably understandable and designed to call attention to the nature andsignificance of the information inthe notice.

"Collect"means to obtain information that thelicensee organizes or can retrieve by the name of an individual or byidentifying number, symbol, or other identifying particular assigned to theindividual, without regard to the source of the underlying information.

"Commissioner"means the insurance commissioner of the State.

"Company"means a corporation, limitedliability company, business trust, general or limited partnership, association,sole proprietorship, mutual benefitsociety, health maintenance organization, nonprofit corporation, or similarorganization.

"Consumer"means an individual, or thatindividual’s legal representative, who seeks to obtain, obtains, or hasobtained an insurance product or service from a licensee that is to be usedprimarily for personal, family, or household purposes, and about whom the licensee has nonpublic personalinformation.

"Consumerreporting agency" has the samemeaning as in section 603(f) of the federal Fair Credit Reporting Act, Title 15United States Code section 168la(f), as amended.

"Control"means:

(1)  Ownership, control, or power to vote twenty‑fiveper cent or more of the outstanding shares of any class of voting security ofthe company, directly or indirectly, or acting through one or more otherpersons;

(2)  Control in any manner over the election of amajority of the directors, trustees, or general partners or individualsexercising similar functions of the company; or

(3)  The power to exercise, directly or indirectly, acontrolling influence over the management or policies of the company, as thecommissioner determines.

"Customer"means a consumer who has a customer relationship with a licensee.

"Customerrelationship" means a continuing relationship between a consumer and alicensee under which the licensee provides one or more insurance products orservices to the consumer that are to be used primarily for personal, family, orhousehold purposes.

"Financialinstitution" means any institution in the business of engaging inactivities that are financial in nature or incidental to financial activitiesas described in the Bank Holding Company Act of 1956, Title 12 United StatesCode section 1843(k), as amended.  "Financial institution" shall notinclude:

(1)  Any person or entity with respect to anyfinancial activity that is subject to the jurisdiction of the Commodity FuturesTrading Commission under the Commodity Exchange Act, Title 7 United States Codesection 1, et seq., as amended;

(2)  The Federal Agricultural Mortgage Corporation orany entity charged and operating under the Farm Credit Act of 1971, Title 12United States Code section 2001, et seq., as amended; or

(3)  Institutions chartered by Congress specificallyto engage in securitizations, secondary market sales (including sales ofservicing rights), or similar transactions relating to a transaction of aconsumer, if the institutions do not sell or transfer nonpublic personalinformation to a nonaffiliated third party.

"Financialproduct or service" means any product or service that a financial holdingcompany could offer by engaging in an activity that is financial in nature orincidental to a financial activity under the Bank Holding Company Act of 1956,Title 12 United States Code section 1843(k).  "Financial product orservice" includes a financial institution’s evaluation or brokerage ofinformation that the financial institution collects in connection with arequest or an application from a consumer for a financial product or service.

"Healthinformation" means any information or data except age or gender, whetheroral or recorded in any form or medium, created by or derived from a healthcare provider or the consumer that relates to:

(1)  The past, present, or future physical, mental, orbehavioral health or condition of an individual;

(2)  The provision of health care to an individual; or

(3)  Payment for the provision of health care to anindividual.

"Insuranceproduct or service" means any product or service that is offered by alicensee pursuant to the insurance laws of this State.  "Insurance productor service" includes a licensee’s evaluation, brokerage, or distributionof information that the licensee collects in connection with a request or anapplication from a consumer for an insurance product or service.

"Licensee"means every licensed insurer, producer, and any other person licensed orrequired to be licensed, or authorized or required to be authorized, orregistered or required to be registered, under chapter 431 or 432, or holding acertificate of authority under chapter 432D.  A licensee shall not be subjectto part II of this article if the licensee is an employee, agent, or otherrepresentative of another licensee acting as the principal if:

(1)  The principal otherwise complies with, andprovides the notices required by this article; and

(2)  The licensee does not disclose any nonpublicpersonal financial information to any person other than to the principal or itsaffiliates in a manner permitted by this article.

"Licensee"includes an unauthorized insurer that accepts business placed through alicensed surplus lines broker in this State, but only in regard to the surpluslines placements under article 8, chapter 431.  A surplus lines broker orsurplus lines insurer shall be deemed to be in compliance with part II of thisarticle if:

(1)  The broker or insurer does not disclose nonpublicpersonal financial information of a consumer or a customer to nonaffiliatedthird parties for any purpose, including joint servicing or marketing undersection 431:3A-401, except as permitted by sections 431:3A-402 and 431:3A-403;and

(2)  The broker or insurer delivers a notice to theconsumer at the time a customer relationship is established on which thefollowing is printed in sixteen point type:

 

"PRIVACY NOTICE:  NEITHER THE U.S.BROKERS THAT HANDLED THIS INSURANCE NOR THE INSURERS THAT HAVE UNDERWRITTENTHIS INSURANCE WILL DISCLOSE NONPUBLIC PERSONAL FINANCIAL INFORMATIONCONCERNING THE BUYER TO NONAFFILIATES OF THE BROKERS OR INSURERS EXCEPT ASPERMITTED BY LAW."

 

"Nonaffiliatedthird party" means any person except:

(1)  A licensee’saffiliate; or

(2)  A person employed jointly by a licensee and anycompany that is not the licensee’s affiliate; provided that for purposes ofthis paragraph, a nonaffiliated third party includes the other company thatjointly employs the person.

"Nonaffiliatedthird party" includes any company that is an affiliate solely by virtue ofthe direct or indirect ownership or control of the company by the licensee orits affiliate in conducting merchant banking or investment banking activitiesof the type described in section 4(k)(4)(H) of the federal Bank Holding CompanyAct, Title 12 United States Code section 1843(k)(4)(H), as amended, or insurancecompany investment activities of the type described in the federal Bank HoldingCompany Act, Title 12 United States Code section 1843(k)(4)(H) and (I).

"Nonpublicpersonal financial information" means:

(1)  Personally identifiable financial information;and

(2)  Any list, description, or other grouping ofconsumers and publicly available information pertaining to them, that isderived using any personally identifiable financial information that is notpublicly available.

"Nonpublicpersonal financial information" shall not include healthinformation, publicly available information except as included on a listdescribed under paragraph (2) of this definition, or any list, description, orother grouping of consumers and publicly available information pertaining tothem that is derived without using any personally identifiable financialinformation that is not publicly available.

"Optout" means a direction by a consumer that a licensee not disclosenonpublic financial information about that consumer to a nonaffiliated thirdparty, other than as permitted by part IV of this article.

"Personallyidentifiable financial information" means any information:

(1)  Provided by a consumer to a licensee to obtain aninsurance product or service from the licensee;

(2)  About a consumer resulting from a transactioninvolving an insurance product or service between a licensee and a consumer; or

(3)  The licensee otherwise obtains about a consumerin connection with providing a service to that consumer.

"Personallyidentifiable financial information" shall not include:

(1)  Health information;

(2)  A list of names and addresses of customers of anentity that is not a financial institution; or

(3)  Information that does not identify a consumer,such as aggregate information or blind data that does not contain personalidentifiers such as account numbers, names, or addresses.

"Producer" means a person required tobe licensed under the laws of this State to sell, solicit, or negotiateinsurance.

"Publicly available information"means any information that a licensee has a reasonable basis to believe islawfully made available to the general public from:

(1)  Federal, state, or local government records;

(2)  Widely distributed media; or

(3)  Disclosures to the general public that arerequired to be made by federal, state, or local law.

For purpose of this definition, a licensee has areasonable basis to believe that information is lawfully made available to thegeneral public if the licensee has taken steps to determine that:

(1)  The information is of the type that is availableto the general public; and

(2)  The licensee's consumer has made the informationavailable to the general public, for information that is of a nature that anindividual can direct not be made available to the general public. [L 2001, c 220, pt of §1; am L 2003, c 212, §30]