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Senate Bill 164
By: Senators Merritt of the 9th, Jones II of the 22nd, Jackson of the 41st, Mallow of the 2nd,
Kemp of the 38th and others
A BILL TO BE ENTITLED
AN ACT
To amend Chapter 1 of Title 10 of the Official Code of Georgia Annotated, relating to selling
1
and other trade practices, so as to prohibit surveillance based price discrimination and2
surveillance based wage discrimination; to provide for definitions; to provide for civil3
penalties and enforcement; to provide for exceptions; to provide for certain rule making; to4
provide for the promulgation of rules and regulations; to provide for penalties; to provide for5
related matters; to repeal conflicting laws; and for other purposes.6
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:7
SECTION 1.8
Chapter 1 of Title 10 of the Official Code of Georgia Annotated, relating to selling and other9
trade practices, is amended by adding a new article to read as follows:10
"ARTICLE 37
11
10-1-960.12
As used in this article, the term:13
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(1) 'Automated decision system' means any system, software, or process, including one14
derived from machine learning, statistics, or other data processing or artificial intelligence15
techniques and excluding passive computing infrastructure, that uses computation, which16
is used to assist or replace human decision making.17
(2) 'Behaviors' means an individual's observable, measurable, or inferred actions, habits,18
preferences, interests, or vulnerabilities, including an individual's political, personal, or19
professional affiliations, web browsing history, IP addresses, locations frequented,20
purchase history, financial circumstances, consumer behaviors, or inferences associated21
with a group, band, class, or tier of individuals of which the individual is associated.22
(3) 'Biometrics' means data or information generated by the technological, processing,23
measurement, or analysis of a consumer or worker's biological, physical, or behavioral24
characteristics which can be processed for the purpose of uniquely identifying an25
individual. Such term includes a fingerprint; a voice print; a scan or record of an eye26
retina or iris image; a facial map, geometry, or template; genetic information; or other27
unique biological, physical, or behavioral patterns or characteristics.28
(4) 'Consumer' means an individual who obtains, maintains, uses, purchases, leases, or29
receives goods, services, real property, or personal property or the representative of such30
individual.31
(5) 'Genetic information' means information about an individual's genetic test, the genetic32
tests of family members of such individual, and the manifestation of a disease or disorder33
in such individual's family members. Such term includes any request for, or receipt of,34
genetic services with respect to an individual, or participation by such individual or such35
individual's family members in clinical research that includes such genetic services. Such36
term includes genetic information of a fetus carried by a pregnant individual. Such term37
includes genetic information of any embryo legally held by an individual or such38
individual's family member utilizing reproductive technology. Such term does not39
include information about the sex or age of an individual.40
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(6) 'Individualized' means specific to or inferences about an individual or group, band,41
class, or tier of individuals with particular personal characteristics, behaviors, or42
biometrics.43
(7) 'Insurer' means every person engaged as a principal, indemnitor, surety, or contractor44
in the business of making contracts of insurance.45
(8) 'Personal characteristics' means individual qualities, features, attributes, or traits,46
including immutable characteristics such as race and eye color; mutable characteristics47
such as a mailing address, weight, citizenship, or parental status; and any other personally48
identifiable information that could be used to uncover an individual's identity, including49
social security number, full name, or telephone number.50
(9) 'Price' means the amount charged to a consumer in relation to a transaction, including51
all related costs and fees, and any other material terms of such transaction that has a52
direct bearing on the amount paid by the consumer or the value of the good or service to53
the consumer.54
(10) 'Surveillance based price discrimination' means using an automated decision system55
to inform individualized prices based on surveillance data regarding a consumer.56
(11) 'Surveillance based wage discrimination' means using an automated decision system57
to inform individualized wages based on surveillance data regarding a worker.58
(12) 'Surveillance data' means data obtained through observation, inference, or59
surveillance of an individual that is related to personal characteristics, behaviors, or60
biometrics of such individual or a group, class, tier, or band of which the individual is61
associated. Such term includes information gathered, purchased, or otherwise acquired.62
(13) 'Wage' means the material terms offered to a worker in exchange for labor,63
including the amount to be paid for such labor, whether as an hourly rate, piece rate,64
salary, bonuses, commissions and incentives, scheduling, task assignment, and any other65
similar material terms that have a direct impact on earnings of such worker.66
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(14) 'Worker' means a natural person performing work as an employee, and includes any67
individual, including a migratory laborer, performing labor or services for the benefit of68
an employer and any other individuals performing labor or services on behalf of or for69
the benefit of an employer or other person. For the purposes of this article, such term70
includes relevant factors in determining whether an individual is an employee including71
the degree of control such employer may exercise or does exercise over such individual72
and the degree to which such individual performs labor or services that is the primary73
work of the employer; provided, however, that an individual primarily free from control74
and direction in the performance of such labor or services, both under his or her contract75
for the performance of such labor or services, and who is customarily engaged in an76
independent trade, occupation, profession, or business related to such labor or services77
performed is not an employee.78
10-1-961.79
(a)(1) No person shall engage in surveillance based price discrimination.80
(2) A person shall not be considered to have engaged in surveillance based price81
discrimination if such person can demonstrate that:82
(A) Differential prices are justified based on differences in the cost of providing a good83
or service to different consumers; or84
(B) Such person operates as an insurer and only inputs risk relevant data into any85
automated decision system that informs decisions related to any amount a consumer86
must pay for an insurance policy.87
(3) Surveillance based price discrimination shall not include the refusal to extend credit88
at specific terms or the refusal to enter into a transaction with a specific consumer based89
on data provided in a consumer report covered by the federal Fair Credit Reporting Act,90
15 U.S.C. Section 1681, et. seq.91
(b)(1) No person shall engage in surveillance based wage discrimination.92
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(2) A person has not engaged in surveillance based wage discrimination if such person93
can demonstrate that:94
(A) Such person offers individualized wages based solely on:95
(i) Data specific to a worker that is directly related to the labor or services such96
worker was hired to perform; or97
(ii) Differences in the cost to the worker of providing labor and services to such98
person;99
(B) Such person discloses in plain language before hiring a worker to perform labor100
or services and to all workers whose wages are set in whole or in part by an automated101
decision system and what data is considered and how such automated decision system102
considers such data; and103
(C) Such person develops and proactively provides to all workers reasonable104
procedures to ensure the accuracy of all data considered by an automated decision105
system in setting wage rates as determined through rule making.106
(3) Surveillance based wage discrimination shall not include a decision not to hire an107
individual who such person has not previously employed.108
10-1-962.109
The Attorney General is authorized to promulgate such rules and regulations as necessary110
for the purpose of implementing and enforcing this article.111
10-1-963.112
Nothing in this article, including the enforcement authority granted to the Attorney General113
and the district attorneys of this state, shall preempt or otherwise affect any other right,114
claim, remedy, presumption, or defense available at law or in equity.115
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10-1-964.116
(a) A person that violates any provision of this article engages in a deceptive, unfair, or117
unconscionable act or practice.118
(b) The Attorney General or any district attorney may bring a civil action on behalf of the119
state to seek the imposition of civil penalties as follows:120
(1) Any person that violates any provision of this article shall forfeit and pay to the121
general fund of this state a civil penalty of not more than $10,000.00 for each such122
violation. Each violation of this article shall constitute a separate violation with respect123
to each consumer, worker, or transaction involved; and124
(2) Costs and attorneys' fees shall be awarded to the Attorney General or a district125
attorney in all actions where the Attorney General or the district attorney successfully126
enforces the provisions of this article.127
(c) In addition to any remedies otherwise provided by law or in equity, a person aggrieved128
by a violation of this article may bring a civil action on behalf of themselves or a group of129
similarly situated persons to restrain further violations and to recover damages, costs, and130
reasonable attorneys' fees, including the greater of:131
(1) The amount of actual damages sustained, including prejudgment interest of either132
8 percent per year or at the rate provided for in Code Section 7-4-2, whichever is greater,133
from the date the claim under this article accrued;134
(2) The amount of $3,000.00 for each violation and each such violation of this article135
shall constitute a separate violation with respect to each consumer, worker, or transaction136
involved; or137
(3) Three times the amount of actual damages sustained, if it is established by clear and138
convincing evidence that such person violating the provisions of this article engaged in139
bad faith conduct or intentionally violated the provisions of this article."140
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SECTION 2.
141
All laws and parts of laws in conflict with this Act are repealed.142
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