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April 11, 2002
S. Printed 4/11/02--S.
Read the first time April 3, 2001.
TO AMEND TITLE 37, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE CONSUMER PROTECTION CODE, BY ADDING CHAPTER 20 SO AS TO ENACT THE "CONSUMER IDENTITY THEFT PROTECTION ACT", TO PROVIDE FOR THE ESTABLISHMENT OF AN IDENTITY THEFT DATABASE BY THE ATTORNEY GENERAL, TO PROVIDE AN EXPEDITED COURT PROCEDURE FOR CLEARING THE NAME OF AN IDENTITY THEFT VICTIM, TO PROVIDE STRICT REQUIREMENTS FOR IDENTITY VERIFICATION BY A CREDIT CARD ISSUER, TO PROVIDE FOR THE BLOCKING OF INACCURATE CREDIT REPORT INFORMATION RESULTING FROM IDENTITY THEFT, AND TO PROVIDE THAT THE CREDIT AGENCY'S NOTICE AND REPORTING REQUIREMENTS CONFORM TO THOSE OF THE FEDERAL FAIR CREDIT REPORTING ACT.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Title 37 of the 1976 Code is amended by adding:
Section 37-20-110. A consumer reporting agency, as defined by the federal Fair Credit Reporting Act may not impose a charge for:
(1) a request for a copy of the consumer's file made by the consumer within sixty days after adverse action is taken;
(2) giving notice to a person designated by the consumer, pursuant to the applicable provisions of the federal Fair Credit Reporting Act, of the deletion of inaccurate or nonverifiable information;
(3) instructions for understanding the information presented on the consumer report and publication of a toll free telephone number that consumers may use to obtain additional assistance concerning the consumer report;
(4) the first copy of a consumer report provided to the consumer each calendar year; and
(5) up to six copies of a consumer report provided to the consumer within a twelve-month period for a period of three years from the date of issuance of a valid police report if the consumer has been a victim of identity fraud and has provided the consumer credit agency with a copy of a valid police report confirming that fact.
Section 37-20-120. A consumer credit reporting agency must give notice to each creditor who uses a consumer report, as 'creditor' is defined in Section 103 of the federal Truth in Lending Act, if the agency becomes aware that an application to a card issuer to open a new seller or lender credit card account bears an address for the consumer that is different from the address in its file of the consumer.
Section 37-20-130. (A) A seller or lender credit card issuer that mails an offer or solicitation to receive a credit card and, in response, receives a completed application for a seller or lender credit card listing an address that is different from the address on the offer or solicitation shall verify the change of address by contacting the person to whom the solicitation or offer was mailed, or by using other reasonable means of verifying the account holder's identity.
(B) Notwithstanding another provision of law, a person to whom an offer or solicitation to receive a seller or lender credit card is made is not liable for the unauthorized use of a credit card issued in response to that offer or solicitation if the credit card issuer does not verify the change of address pursuant to subsection (A) before the issuance of the seller or lender credit card, unless the credit card issuer proves that the offeree actually incurred the charge on the credit card.
(C) When a seller or lender credit card issuer receives a written or oral request for a change of the cardholder's billing address and within ten days after the requested address change receives a written or oral request for an additional credit card, the credit card issuer may not mail the requested additional credit card to the new address or activate the requested additional credit card unless the issuer has verified the change of address.
Section 37-20-140. A person who learns or reasonably suspects that he is the victim of identity theft may initiate a law enforcement investigation by reporting to a local law enforcement agency that has jurisdiction over his actual legal residence. The law enforcement agency shall take the report, provide the complainant with a copy of the report, and begin an investigation or refer the matter to the law enforcement agency where the crime was committed for an investigation.
Section 37-20-150 (A)(1) If a person is convicted of unlawfully obtaining the personal identifying information of another person without the other person's authorization and using that information to commit a crime, the court records must reflect that the person whose identity was falsely used to commit the crime did not commit the crime.
(2) For purposes of this chapter, 'personal identifying information' means information maintained by an agency that identifies or describes an individual including, but not limited to, an individual's photograph or digitized image, social security number, driver's identification number, name, home address, home telephone number, medical or disability information, education level, financial status, employment history, weight, race, other physical details, signature, or biometric identifiers.
'Personal identifying information' does not mean information about vehicular accidents, driving violations, and driver's status.
(B) A person who reasonably believes that he is the victim of identity theft may petition the circuit court or have the County Office of Victims' Assistance petition the circuit court on his behalf, for an expedited judicial determination of his factual innocence, if the identity thief was arrested for and convicted of a crime under the victim's identity, or if the victim's identity has been mistakenly associated with a record of criminal conviction. A judicial determination of factual innocence made pursuant to this section may be heard and determined upon declarations, affidavits, police reports, or other material, relevant, and reliable information submitted by the parties. If the court determines that the petition is meritorious and that there is no reasonable cause to believe that the petitioner committed the offense for which the identity thief was arrested and convicted, the court shall find the petitioner factually innocent of that offense and issue an order certifying the determination.
(C) A court may at any time vacate the determination of factual innocence if information submitted in support of the petition is found to contain material misrepresentation or fraud.
Section 37-20-160. (A) The Attorney General shall establish and maintain a database of individuals who have been the victims of identity theft. Access to the database is limited to criminal justice agencies, except that a victim of identity theft, or his authorized representative, shall have access to the database in order to establish that he is a victim of identity theft.
(B) The Attorney General shall establish and maintain a toll free number to provide access to the database for identity theft victims.
(C) A victim of identity theft must submit to the Attorney General a copy of the police report, a full set of fingerprints, and other relevant information required by the Attorney General for inclusion in the database of identity theft victims. The Attorney General shall verify the identity of the victim against a driver's license or other identification records maintained by the Department of Motor Vehicles.
Section 37-20-170. (A) If a consumer submits to a credit reporting agency a copy of a valid police report verifying that he is the victim of identity theft, the reporting agency shall block, promptly and permanently, reports of information the consumer alleges appears on his credit report as a result of the identity theft. The consumer credit reporting agency also shall notify promptly the furnisher of the information that the information is blocked.
(B) Furnishers of information and consumer credit reporting agencies may unblock the information only upon a preponderance of the evidence establishing the following facts:
(1) the information was blocked due to fraud;
(2) the consumer agrees that the blocked information, or portions of the blocked information, were blocked in error; or
(3) the consumer knowingly obtained or should have known he obtained possession of goods, services, or monies as a result of the blocked transaction.
(C) If blocked information is unblocked pursuant to subsection (B), the consumer must be notified promptly in the same manner as consumers are notified of the reinsertion of information pursuant to the federal Fair Credit Reporting Act. The previous presence of the blocked information in the consumer credit reporting agency's file on the consumer is not evidence that the consumer knew or should have known that he obtained possession of goods, services, or monies as a result of the blocked transaction.
(D) For purposes of this section, fraud may be demonstrated by circumstantial evidence.
(E) In unblocking information pursuant to this section, furnishers and consumer and credit reporting agencies are subject to their respective requirements pursuant to the federal Fair Credit Reporting Act regarding the completeness and accuracy of information.
Section 37-20-180. A creditor is not liable in an action for a violation of this article if the creditor shows by a preponderance of evidence that the violation was unintentional and resulted from a bona fide error, notwithstanding the maintenance of procedures reasonably adapted to avoid the error."
SECTION 2. This act takes effect upon approval by the Governor.
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