Delaware CPS - Google Drive


1	State	2018 Statute Number	2018 Statute Language
2	Delaware	29 Del. C. § 8104 Division of Consumer Protection.	The Division of Consumer Protection is established having such powers, duties and functions as may be assigned to it by the Secretary consistent with this chapter.
3		29 Del. C. § 2517 Division of Consumer Protection.	(a) There is established within the Department of Justice a Division of Consumer Protection. (b) The Division of Consumer Protection shall protect the public against consumer fraud and deceptive trade practices through enforcement of statutes, consumer education, consumer advocacy, and coordinated governmental action. (c) The Attorney General may appoint a Deputy Attorney General to be designated as the Director of Consumer Protection, who will be charged with the furtherance of the programs and functions thereof. (d) The term “Director” as used in this chapter refers to the Director of the Division of Consumer Protection and includes any designee.
4		29 Del. C. § 2519 Consumer Protection Advisory Councils.	Repealed June 26, 2015
5		29 Del. C. § 2520 Enforcement Authority.	(a) Among other powers, the Director shall have the authority to: (1) Investigate matters that may reveal violations of Chapter 25 of Title 6 or other unlawful conduct; (2) Issue cease and desist orders, either summarily or after a hearing; (3) Seek administrative remedies for violations of the statutes the Division of Consumer Protection is charged to enforce; (4) Initiate and prosecute civil or criminal actions related to the purposes of this chapter in any court of competent jurisdiction; (5) Seek restitution, rescission, reformation of contract, recoupment, disgorgement of profits or any moneys improperly obtained, or otherwise prevent unjust enrichment against violators of this chapter and on behalf of consumers; (6) Promulgate rules and regulations; (7) Under the direction of the Attorney General, maintain and supervise the deposits and expenditures into and out of the Consumer Protection Fund; (8) Hold fact-finding, rulemaking or adjudicative hearings and issue opinions, orders or reports based thereon; and (9) Take any other lawful action to enforce the consumer protection statutes and to carry out their purposes. (b) The scope of the authority of the Director to initiate administrative proceedings or take civil enforcement action does not extend to matters within the jurisdiction of the Public Service Commission or of the Insurance Commissioner of this State.
6		29 Del. C. § 2521 Rules and regulations.	(a) The Director shall have the authority to promulgate rules and regulations as deemed necessary or appropriate to implement or clarify the statutes that the Division of Consumer Protection is charged to enforce or otherwise to carry out the purposes of those statutes. (b) The rules and regulations of the Division of Consumer Protection shall be entitled to substantial deference in connection with any judicial review or case determination.
7		29 Del. C. § 2522 Notice to the Attorney General.	(a) The Attorney General and the Director shall have standing to seek, on behalf of the State, any remedy in this chapter whenever it appears that a person has violated or is about to violate any provision of Chapter 25 of Title 6, any provision of Chapter 35 of Title 6, Chapters 51 through 67 of Title 25, Chapter 70 of Title 25, §§ 841, 914, 915, and 915A of Title 11, or any other law or regulation that the Division of Consumer Protection is authorized to enforce. The Attorney General or the Director may initiate an investigation, administrative proceeding, or court proceeding to enjoin or sanction the unlawful conduct. (b) If, in any court proceeding brought under subsection (a) of this section above, any person is found to have committed a wilful violation, the court shall order the violator to pay to the State a civil penalty of not more than $10,000 for each violation. (c) Where a wilful violation is found, any court entertaining the action may additionally order the violator to cease and desist the unlawful conduct prospectively, return any moneys obtained unlawfully, and when appropriate freeze designated assets of the violator, order restitution, rescission, recoupment, or to seek other relief appropriate to prevent violators from being unjustly enriched. (d) In any action brought by the Director under the provisions of this chapter in which any person is found to have violated any provision of Chapter 25 of Title 6, any provision of Chapter 35 of Title 6, Chapters 51 through 67 of Title 25, Chapter 70 of Title 25, §§ 841, 914, 915, and 915A of Title 11, or any other law or regulation that the Division of Consumer Protection is authorized to enforce, the Court may award attorneys’ fees and investigative costs to the State.
8		29 Del. C. § 2523 Administrative process and appeals.	(a) The Director of Consumer Protection may initiate administrative charges against any person who appears to have violated or about to violate any provision of Chapter 25 of Title 6, any provision of Chapter 35 of Title 6, Chapters 51 through 67 of Title 25, Chapter 70 of Title 25, or any other law or regulation that the Division of Consumer Protection is authorized to enforce. Such charges shall provide notice as to the nature of the violation and state the remedies that are sought. (b) The Attorney General shall appoint a Deputy Attorney General to act as the administrative hearing officer to adjudicate charges brought by the Director of Consumer Protection against any person. Such hearing officer shall be a Deputy Attorney General who is not assigned to the Fraud and Consumer Protection Division. (c) Upon finding a violation, the hearing officer may order any of the administrative remedies authorized in § 2524 of this title below. Upon finding a violation or a threat of a violation, the hearing officer may issue or affirm the issuance of a cease and desist order authorized by § 2524(a) of this title below. (d) Any party, including the Director, who is aggrieved by the hearing officer's final administrative order may appeal the order to Superior Court within 30 days after the date the final order is issued. The administrative record shall be filed with the Court in accordance with Superior Court Civil Rule 72. The final administrative order shall be affirmed by the Court if the findings in the order are supported by substantial evidence. (e) Any moneys that are received by the State after an administrative hearing and order, other than for consumer victims, shall be credited to the General Fund. Any moneys received pursuant to a written agreement in settlement of administrative charges, at any stage of the proceeding, shall be credited to the Consumer Protection Fund. (f) Personal jurisdiction by acts of nonresident respondents. — As to any administrative proceeding authorized by this section, personal jurisdiction may be exercised over any nonresident respondent who, in person or through an agent, commits any of the acts identified in § 3104(c) of Title 10 that would constitute legal presence in the State. (g) Service of process to obtain personal jurisdiction. — Any of the following methods of service of process shall be sufficient to obtain personal jurisdiction over a respondent in an administrative proceeding authorized by this section: (1) Personal hand delivery. (2) Any method of service of process effective under Rule 4(f) of the Superior Court Rules of Civil Procedure. (3) Any method of service of process that would be effective to obtain personal jurisdiction in the Superior Court under § 3104 of Title 10. (h) Administrative hearing evidence. — Upon the request of any party to an administrative proceeding authorized by this section, the administrative hearing officer is empowered to issue subpoenas to nonparties to allow for witnesses or other evidence to be presented at an administrative hearing. If the nonparty fails to comply with the subpoena, the party which requested the subpoena may seek an order from the Superior Court compelling the nonparty to comply with the subpoena. An order issued by the Superior Court pursuant to this subsection may be punished by the Superior Court as a contempt of Court. With respect to nonparties who are not subject to subpoena, the administrative hearing officer is empowered to issue commissions to allow for testimony or other evidence to be obtained for presentation at an administrative hearing. The administrative hearing officer shall, prior to issuing a subpoena or commission, ensure that the subpoena or commission does not impose undue burden or expense on the person subject to the subpoena or commission.
9		29 Del. C. § 2524 Administrative Remedies.	(a) After notice and an administrative hearing, any violation or apparent threat of violation of any provision of Chapter 25 of Title 6, or of any law or regulation the Division of Consumer Protection is charged to enforce, may be sanctioned by the issuance of a cease and desist order. (b) After notice and an administrative hearing, any wilful violation of § 2513 or § 2532 of Title 6, or of a lawful cease and desist order of the Director or the hearing officer, may be sanctioned by an administrative penalty up to $5000 per violation, a cease and desist order, and an order of restitution, rescission, recoupment, or other relief appropriate to prevent violators from being unjustly enriched. (c) After the expiration of the 30-day appeal period in which no appeal has been filed, if the violator fails to pay all penalties and restitution or other amounts administratively determined, the Director may file a complaint in any court of competent jurisdiction and obtain a judgment for the amounts that have not been paid. The amounts shall be treated by the court as an unpaid debt, and the merits of the administrative findings may not be contested.
10		29 Del. C. § 2525 Cease and desist orders.	(a) By agreement. --At any time after it appears to the Director that a person has engaged in, is engaging in, or is about to engage in any practice declared to be unlawful by Chapter 25 of Title 6, Chapter 35 of Title 6, Chapters 51 through 67 of Title 25, Chapter 70 of Title 25, or any other laws and regulations which the Division of Consumer Protection is authorized to enforce, the Director may issue a cease and desist order pursuant to an agreement with such person. Each such agreement may provide for: (1) The immediate discontinuance of each practice set forth in the agreement; (2) Any such relief, remedies, penalties, fines or recoveries authorized by this chapter; and (3) Any other action deemed by the Director to be necessary to remedy such practice or practices. (b) By administrative order. --Upon the finding of a violation of any provision of Chapter 25 of Title 6, or of any law or regulation the Division of Consumer Protection is charged to enforce, after notice and a hearing, the designated hearing officer may issue a cease and desist order against the violator. Such cease and desist order may provide for any relief as indicated in subsection (a) of this section above. (c) By summary administrative order.-- (1) Where the Director in the Director’s discretion perceives an immediate threat to the public interest as a result of a violation of any provision of Chapter 25 of Title 6, or of any law or regulation the Division of Consumer Protection is charged to enforce, the Director may issue a summary cease and desist order ordering an immediate discontinuance of the unlawful practice identified in the order. A complaint detailing the specific allegations against the alleged violator shall accompany any summary cease and desist order served upon the alleged violator. Before issuing the summary order, the Director or the Director’s designee shall attempt to obtain voluntary compliance from the alleged violator by letter or telephone call. (2) The complaint and summary cease and desist order shall be served upon the alleged violator by first class and certified mail to the alleged violator’s last known address. Service shall be deemed effective upon mailing. Within 10 days after the mailing of the complaint and order, the alleged violator may request, in writing, a hearing on the charges. An order that was not the subject of a hearing may not be appealed to the Superior Court. (3) The Division of Consumer Protection shall provide a hearing on the charges in the complaint within 10 days after the issuance of the complaint and the cease and desist order. A written opinion and order, containing findings of fact and conclusions of law, shall issue within 10 days after the close of the hearing. (4) If the alleged violator makes a written request for a hearing but none is provided within 10 days after the issuance of the order, the order shall expire at the end of the tenth day after it was issued unless the alleged violator waives that alleged violator’s right to a prompt hearing. If the alleged violator makes a written request for a hearing and one is provided within 10 days, but no decision is issued within 10 days after the close of the hearing, the order shall expire at the end of the tenth day after the close of the hearing. An order that has expired in accordance with the restrictions of this subparagraph may not be reissued as a summary order. (5) The order issued after the hearing may provide for any administrative remedy contained in § 2524 of this title. Any person aggrieved by the order issued after the hearing shall have 30 days to appeal the order to the Superior Court, as provided in § 2523(d) of this title. (6) Any person who wilfully violates a cease and desist order may be sanctioned as provided in § 2524(b) or § 2526 of this title.
11		29 Del. C. § 2526 Violation of order or injunction; penalty.	(a) The Attorney General or the Director may petition any court of competent jurisdiction to obtain recovery of a civil penalty as provided pursuant to this section. Such petition may be made whenever it appears to the Attorney General or the Director that a person subject to any order or injunction, issued pursuant to any provision of this chapter or any other law or regulation which the Division of Consumer Protection is charged to enforce, has wilfully violated such order or injunction, or breached a material term of an agreement forming the basis for a cease and desist order. (b) A person who wilfully violates any such order or any such agreement shall forfeit and pay to the State an enhanced civil penalty of not more than $25,000 per violation. (c) Any court in which the petition is brought may order the offender, if a violation is found, to cease and desist the unlawful practice. Any subsequent violation of the court’s order may be sanctioned for contempt in addition to an enhanced civil penalty. (d) Nothing in this section shall prevent the Attorney General or the Director from initiating any additional or alternative enforcement action under their lawful powers.
12		6 Del. C. § 5001B Definitions.	For purposes of this chapter, the following words, terms and phrases shall have the meanings herein ascribed to them, except when the context clearly indicates a different meaning: (1) “Assistive technology device” means any item, piece of equipment, or product system that is designed and used to increase, maintain, or improve functional capabilities of individuals with disabilities; whether acquired commercially or “off-the-shelf,” modified, customized, or currently or previously used as a demonstrator. An assistive technology device system that, as a whole, is within the definition of this term is itself an assistive technology device, and in this case this term also applies to each component product of the assistive technology device system that is itself ordinarily an assistive technology device. This term includes, but is not limited to: a. Motorized and manually operated wheelchairs, personal mobility equipment, and other devices or aids of any kind that enhance the mobility or positioning of an individual with a disability, such as motorization, motorized positioning features, and the switches and controls for any motorized features; b. Hearing aids, telephone communication devices for persons who are deaf or hard of hearing, assistive listening devices, and other hearing and communication assistive technology; c. Computer equipment and reading devices with voice output, optical scanners, talking software, Braille printers, and other aids and devices that provide access to text; d. Computer equipment and communication devices with voice output, artificial larynges, voice amplification devices, and other alternative and augmentative communication devices; e. Voice recognition computer equipment, software and hardware accommodations, switches, and other alternative access to computers; f. Environmental control units designed for or used by individuals with disabilities; and g. Mechanical aids that increase, maintain or improve the functional capabilities or health and safety of an individual with disabilities. (2) “Assistive technology device dealer” means a person or entity in the business of selling new assistive technology devices. (3) “Assistive technology device lessor” means a person or entity who leases new assistive technology devices to consumers, or who holds the lessor's rights, under a written lease. (4) “Assistive technology device system” means the final product resulting from a manufacturer customizing, adapting, reconfiguring, refitting, refurbishing or composing into a system 1 or more component products, whether or not new, that may be assistive technology devices or standard products of the same or other manufacturer. (5) “Collateral costs” means expenses incurred by a consumer in connection with the repair of a nonconformity, including the cost of sales tax and of obtaining an alternative assistive technology device. (6) “Consumer” includes any of the following: a. The purchaser of an assistive technology device, including any insurer or governmental agency or instrumentality, if the assistive technology device was purchased from an assistive technology device dealer or manufacturer for purposes other than resale; b. A person to whom the assistive technology device is transferred for purposes other than resale, if the transfer occurs before the expiration of an express warranty applicable to the assistive technology device; c. A person who may enforce the warranty; or d. A person who leases an assistive technology device from an assistive technology device lessor under a written lease. (7) “Demonstrator” means an assistive technology device used primarily for the purpose of demonstration to the public. (8) “Early termination cost” means an expense or obligation that an assistive technology device lessor incurs as a result of both the termination of a written lease before the termination date set forth in that lease and the return of an assistive technology device to the manufacturer. The term includes a penalty for prepayment under a finance arrangement. (9) “Early termination savings” means an expense or obligation that an assistive technology device lessor avoids as a result of both the termination of a written lease before the termination date set forth in that lease and the return of an assistive technology device to a manufacturer. The term includes an interest charge that the assistive technology device lessor would have paid to finance the assistive technology device or, if the assistive technology device lessor does not finance the assistive technology device, the difference between the total period of the lease term remaining after the early termination and the present value of that amount at the date of the early termination. (10) “An individual with disabilities” means a person who has 1 or more physical or mental impairments that restrict or limit that person's ability to perform activities of daily living or limit that person's capacity to live independently. (11) “Manufacturer” means a person who manufactures or assembles assistive technology devices and agents of that person, including any importer, distributor, factory branch, distributor branch, or a warrantor of the manufacturer's assistive technology device. The term does not include an assistive technology device dealer or lessor, unless the manufacturer acts directly as an assistive technology dealer or lessor. (12) “Nonconformity” means a specific or generic condition, defect, or malfunction that substantially impairs the use, value, or safety of an assistive technology device. (13) “Reasonable attempt to repair” means any of the following occurring within the term of an express warranty applicable to a new assistive technology device: a. The consumer tenders the assistive technology device to the manufacturer, assistive technology device lessor, or any of the manufacturer's authorized assistive technology device dealers for repair at least 2 times; or b. The assistive technology device is out of service for an aggregate of at least 30 cumulative days because of a warranty nonconformity.
13		6 Del. C. § 5002B Express warranties.	(a) A manufacturer who sells or leases a new assistive technology device to a consumer, either directly or through an assistive technology device dealer or lessor, shall furnish the consumer with an express warranty that the assistive technology device will be free from any defect or condition that substantially impairs the use, value or safety of the assistive technology device. The duration of the express warranty must not be less than 1 year after first possession of the assistive technology device by the consumer. The duration of the express warranty shall be reasonably extended by any period of time during which repair services or replacement parts are not available to the consumer because of a war, invasion, or strike, fire, flood, or other natural disaster. (b) If a new assistive technology device does not conform to an applicable express warranty and the consumer reports the nonconformity to the manufacturer, the assistive technology device lessor, or any of the manufacturer's authorized assistive technology device dealers and makes the assistive technology device available for repair before 1 year after first possession of the device by the consumer, the nonconformity must be repaired or replaced at no cost to the consumer. (c) If a manufacturer fails to furnish an express warranty as required by this section, the assistive technology device shall be covered by an express warranty as if the manufacturer had furnished an express warranty to the consumer as required by this section. (d) A manufacturer may provide any express warranty in addition to the express warranty required by this section; provided, however, that no term of any additional express warranty is inconsistent with, or in any way limits the applicability of, the warranty required by this section.
14		6 Del. C. § 5003B Notice to consumer.	At the time of purchase the manufacturer must provide directly to the consumer a statement, written in 10-point all capital type on a separate piece of paper or in such other form as the consumer can understand, in substantially the following form: "IMPORTANT: IF THIS DEVICE IS DEFECTIVE, YOU MAY BE ENTITLED UNDER STATE LAW TO REPLACEMENT OF IT OR A REFUND OF ITS PURCHASE PRICE. HOWEVER, TO BE ENTITLED TO REFUND OR REPLACEMENT, YOU MUST FIRST NOTIFY THE MANUFACTURER, ITS AGENT OR ITS AUTHORIZED DEALER OF THE PROBLEM AND GIVE THEM AN OPPORTUNITY TO REPAIR THE DEVICE IN ACCORDANCE WITH TITLE 6, CHAPTER 50B."
15		6 Del. C. § 5004B Replacement or refund.	(a) If, after a reasonable attempt to repair, a nonconformity is not repaired, the manufacturer shall, at the direction of the consumer, do 1 of the following: (1) Accept return of the assistive technology device and within 30 days refund to the consumer and to a holder of a perfected security interest in the consumer's assistive technology device, as their interest may appear, the full purchase price plus any finance charge, amount paid by the consumer at the point of sale and collateral costs; or (2) Accept return of the assistive technology device, refund to the assistive technology device lessor and to a holder of a perfected security interest in the assistive technology device, as their interest may appear, the current value of the written lease and refund to the consumer the amount that the consumer paid under the written lease plus collateral costs; or (3) Accept return of the assistive technology device upon delivery to the consumer of a comparable new assistive technology device. (b) To receive a comparable new assistive technology device, a consumer shall offer to transfer possession of the nonconforming assistive technology device to the manufacturer. No later than 30 days after that offer, the manufacturer shall provide the consumer with the comparable new assistive technology device. When the manufacturer provides the new assistive technology device, the consumer shall return the assistive technology device having the nonconformity to the manufacturer, at the manufacturer's expense, along with any endorsements necessary to transfer real possession to the manufacturer. (c) For the purposes of this section, the current value of the written lease equals the total amount for which that lease obligates the consumer during the period of the lease remaining after its early termination, plus the assistive technology device dealer's early termination costs and the value of the assistive technology device at the lease expiration date if the lease sets forth that value, less the assistive technology device lessor's early termination savings. (d) No person may enforce the lease against the consumer after the consumer receives a refund.
16		6 Del. C. § 5005B Nonconformity disclosure requirement.	No assistive technology device returned by a consumer or assistive technology device lessor in this State or another state may be sold or leased in this State unless full disclosure of the reason for return is made to a prospective buyer or lessee.
17		6 Del. C. § 5006B Availability of other remedies; waivers void; additional relief.	(a) This chapter does not limit rights or remedies which are otherwise available under any uniform commercial code, consumer protection statute, or any other applicable law or regulation. (b) A waiver of rights by a consumer under this chapter is void. (c) In addition to pursuing other remedies, a consumer may bring an action to recover damages for any damages caused by a violation of this chapter. The court shall award a consumer who prevails in the action twice the amount of any pecuniary loss, together with costs, disbursements, reasonable attorneys fees, and any equitable relief that the court may determine is appropriate.
18		6 Del. C. § 5007B Replacement during repair; reimbursement of rental costs incurred by consumer; penalties.	(a) Whenever an assistive technology device covered by a manufacturer's express warranty is tendered by a consumer to the manufacturer, assistive technology lessor, or authorized assistive technology dealer from whom it was purchased or exchanged for the repair of a defect, malfunction, or nonconformity to which the warranty is applicable and at least 1 of the following conditions exists, the manufacturer shall provide directly to the consumer for the duration of the repair period, a replacement assistive technology device or reimbursement for the cost incurred by the consumer for renting a replacement assistive technology device. The applicable conditions are as follows: (1) The repair period exceeds 10 working days, including the day on which the device is tendered to the dealer for repair; or (2) The defect, malfunction, or nonconformity is the same for which the assistive technology device has been tendered to the dealer for repair on at least 2 previous occasions. (b) This section applies for the duration of the manufacturer's express warranty and any extension thereof.
19		6 Del. 12C. § 1201C Short Title	This chapter shall be known and may be cited as the "Delaware Online Privacy and Protection Act.''
20		6 Del. 12C. § 1202C Definitions	For purposes of this chapter, the following definitions shall apply: (1) "Advertising service'' means a person who provides, creates, plans, or handles marketing or advertising for another person. (2) "Book'' means paginated or similarly organized content in digital, electronic, printed, audio, or other format, including fiction, nonfiction, academic, or other works of the type normally published in a volume or finite number of volumes, excluding serial publications such as a magazine or newspaper. (3) "Book service'' means a service by which an entity, as its primary purpose, provides individuals with the ability to rent, purchase, borrow, browse, or view books electronically or via the Internet. (4) "Book service information'' means all of the following: a. Any information that identifies, relates to, describes, or is associated with a particular user. b. A unique identifier or internet protocol address, when that identifier or address is used to identify, relate to, describe, or be associated with a particular user or book, in whole or in partial form. c. Any information that relates to, or is capable of being associated with, a particular user's access to or use of a book service or a book, in whole or in partial form. (5) "Book service provider'' means any commercial entity offering a book service to the public, except that a commercial entity that sells a variety of consumer products is not a book service provider if its book service sales do not exceed 2 percent of the entity's total annual gross sales of consumer products sold in the United States. (6) "Child'' or "children'' means 1 or more individuals who are under the age of 18 and residents of the State. (7) "Conspicuously available'' means, with respect to a privacy policy required by § 1205C of this title, to make the privacy policy available to an individual via the Internet by any of the following means: a. A webpage on which the actual privacy policy is posted if the webpage is the homepage or first significant page after entering the website. b. An icon that hyperlinks to a webpage on which the actual privacy policy is posted, if the icon is located on the homepage or the first significant page after entering the website, and if the icon contains the word "privacy.'' The icon shall also use a color that contrasts with the background color of the webpage or is otherwise distinguishable. c. A text link that hyperlinks to a webpage on which the actual privacy policy is posted, if the text link is located on the homepage or first significant page after entering the website, and if the text link includes the word "privacy,'' is written in capital letters equal to or greater in size than the surrounding text, or is written in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from the surrounding text of the same size by symbols or other marks that call attention to the language. d. Any other functional hyperlink that is so displayed that a reasonable individual would notice it. e. With respect to an internet website, online or cloud computing service, online application, or mobile application that is not a website, any other reasonably accessible and visible means of making the privacy policy available for users of the internet website, online or cloud computing service, online application, or mobile application. (8) "Content'' means information of any kind, including but not limited to text, images, audio, and video. (9) "Governmental entity'' means any entity or instrumentality of the State, or any political subdivision of the State, including but not limited to a law-enforcement entity or any agency, authority, board, bureau, commission, department, or division, or any individual acting or purporting to act on behalf of any such agency, authority, board, bureau, commission, department, or division. (10) "Internet'' means, collectively, the myriad of computer and telecommunications facilities, including equipment and operating software, which comprise the interconnected world-wide network of networks that employ the transmission control protocol/internet protocol, or any predecessor or successor protocols to such protocol, to communicate information of all kinds by wire, radio, or other methods of transmission. (11) "Internet website, online or cloud computing service, online application, or mobile application directed to children'' means any internet website, online or cloud computing service, online application, or mobile application that is targeted or intended to reach an audience that is composed predominantly of children. An internet website, online or cloud computing service, online application, or mobile application shall not be deemed directed to children solely because it refers or links to another internet website, online or cloud computing service, online application, or mobile application directed to children by using information location tools, including a directory, index, reference, pointer, or hypertext link. (12) "Law-enforcement entity'' means any government agency or any subunit thereof which performs the administration of criminal justice pursuant to statute or executive order, and which allocates a substantial part of its annual budget to the administration of criminal justice, including but not limited to the Delaware State Police, all law-enforcement agencies and police departments of any political subdivision of this State, the Department of Correction, and the Department of Justice. (13) "Market or advertise'' or "marketing or advertising'' means making a communication or arranging for a communication to be made, in exchange for compensation, about a product or service the primary purpose of which is to encourage recipients of the communication to purchase or use the product or service. (14) "Operator'' means a person who owns an internet website, online or cloud computing service, online application, or mobile application. It does not include any third party that operates, hosts, or manages, but does not own, an internet website, online or cloud computing service, online application, or mobile application on the owner's behalf or processes information on the owner's behalf. (15) "Personally identifiable information'' means any personally identifiable information about a user of a commercial internet website, online or cloud computing service, online application, or mobile application that is collected online by the operator of that commercial internet website, online service, online application, or mobile application from that user and maintained by the operator in an accessible form, including a first and last name, a physical address, an e-mail address, a telephone number, a Social Security number, or any other identifier that permits the physical or online contacting of the user, and any other information concerning the user collected by the operator of the commercial internet website, online service, online application, or mobile application from the user and maintained in personally identifiable form in combination with any identifier described in this paragraph. (16) "Post'' means to communicate, transmit, or otherwise make available to any other person via the Internet. (17) "User'' means, for purposes of §§ 1204C and 1205C of this title, an individual that uses an internet website, online or cloud computing service, online application, or mobile application or, for purposes of § 1206C of this title, an individual that uses a book service.
21		12C Del. § 1203C Enforcement	The Consumer Protection Unit of the Department of Justice has enforcement authority over this chapter and may investigate and prosecute violations of this chapter in accordance with the provisions of subchapter II of Chapter 25 of Title 29.
22		12C Del. § 1204C Prohibitions on online marketing or advertising to a child	(a) An operator of an internet website, online or cloud computing service, online application, or mobile application directed to children may not market or advertise a product or service described in subsection (f) of this section on that internet website, online or cloud computing service, online application, or mobile application. (b) An operator of an internet website, online or cloud computing service, online application, or mobile application who has actual knowledge that a child is using its internet website, online or cloud computing service, online application, or mobile application, and which user is that child, may not market or advertise a product or service described in subsection (f) of this section to that child, if the marketing or advertising is directed to the child based upon information specific to that child, including the child's profile, activity, address, or location sufficient to establish contact with the child, and excluding internet protocol (IP) address and product identification numbers for the operation of a service. The operator shall be deemed to be in compliance with this subsection if the operator takes reasonable actions in good faith designed to avoid marketing or advertising a product or service described in subsection (f) of this section. (c) An operator of an internet website, online or cloud computing service, online application, or mobile application directed to children or an operator of an internet website, online or cloud computing service, online application, or mobile application who has actual knowledge that a child is using its internet website, online or cloud computing service, online application, or mobile application shall not knowingly use, disclose, or compile, or allow another person to use, disclose, or compile, the personal information of the child if that operator has actual knowledge that the child's personally identifiable information will be used for the purpose of marketing or advertising to the child a product or service described in subsection (f) of this section. (d) An operator of an internet website, online or cloud computing service, online application, or mobile application directed to children, in which marketing or advertising is provided by an advertising service, need not comply with subsection (a) of this section with respect to such marketing or advertising and instead shall notify the advertising service, in a manner directed by the advertising service, that the internet website, online or cloud computing service, online application, or mobile application is directed to children. (e) An advertising service which provides marketing or advertising for an internet website, online or cloud computing service, online application, or mobile application directed to children, and which has received the notice required by subsection (d) of this section, may not market or advertise on the internet website, online or cloud computing service, online application, or mobile application a product or service described in subsection (f) of this section. (f) The marketing or advertising prohibitions described in this section shall apply to the following products or services: (1) Alcoholic liquor as defined in § 101 of Title 4. (2) Tobacco products, smokeless tobacco products, or moist snuff as defined in § 5301 of Title 30. (3) Tobacco substitutes as defined in § 1115 of Title 11. (4) Firearm as defined in § 222 of Title 11, or ammunition for a firearm. (5) Electronic control devices as defined in § 222 of Title 11. (6) Fireworks as defined in § 6901 of Title 16. (7) Tanning equipment or device or tanning facility as defined in § 3002D of Title 16. (8) Dietary supplement products containing ephedrine group alkaloids. (9) Lottery, internet lottery, internet table games, internet ticket games, internet video lottery, sports lottery, table game, video lottery, or video lottery facility as defined in § 4803 of Title 29. (10) Salvia divinorum or Salvinorin A, or any substance or material containing Salvia divinorum or Salvinorin A as referenced in § 4714 of Title 16. (11) Body-piercing as defined in § 1114 of Title 11. (12) Branding as defined in § 1114 of Title 11. (13) Tattoos as defined in § 1114 of Title 11. (14) Drug paraphernalia as defined in § 4701 of Title 16. (15) Tongue-splitting as defined in § 1114A of Title 11. (16) Any material, including any book, article, magazine, publication, or written matter of any kind, drawing, etching, painting, photograph, video, film, motion picture, or sound recording, which predominately appeals to the prurient, shameful, or morbid interest of minors, is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and taken as a whole lacks serious literary, artistic, political, social, or scientific value for minors. (g) This section shall not be construed to require an operator of an internet website, online or cloud computing service, online application, or mobile application to collect age information about users. (h) The marketing and advertising restrictions described in subsections (a) through (c) of this section shall not apply to the incidental placement of products or services embedded in content if the content is not distributed by or at the direction of the operator primarily for the purposes of marketing and advertising a product or service described in subsection (f) of this section.
23		12C Del. § 1205C Posting of privacy policy by operators of commercial online sites and services	(a) An operator of a commercial internet website, online or cloud computing service, online application, or mobile application that collects personally identifiable information through the Internet about individual users residing in Delaware who use or visit the operator's commercial internet website, online or cloud computing service, online application, or mobile application shall make its privacy policy conspicuously available on its internet website, online or cloud computing service, online application, or mobile application. An operator shall be in violation of this subsection only if the operator fails to make its privacy policy conspicuously available within 30 days after being notified of noncompliance. (b) The privacy policy required by subsection (a) of this section shall do all of the following: (1) Identify the categories of personally identifiable information that the operator collects through the internet website, online or cloud computing service, online application, or mobile application about users of its commercial internet website, online or cloud computing service, online application, or mobile application and the categories of third-party persons with whom the operator may share that personally identifiable information. (2) If the operator maintains a process for a user of the internet website, online or cloud computing service, online application, or mobile application to review and request changes to any of that user's personally identifiable information that is collected through the internet website, online or cloud computing service, online application, or mobile application, provide a description of that process. (3) Describe the process by which the operator notifies users of its commercial internet website, online or cloud computing service, online application, or mobile application of material changes to the operator's privacy policy for that internet website, online or cloud computing service, online application, or mobile application. (4) Identify the effective date of the privacy policy. (5) Disclose how the operator responds to web browser "do not track'' signals or other mechanisms that provide users the ability to exercise choice regarding the collection of personally identifiable information about a user's online activities over time and across third-party internet websites, online or cloud computing services, online applications, or mobile applications, if the operator engages in that collection. (6) Disclose whether other parties may collect personally identifiable information about a user's online activities over time and across different internet websites, online or cloud computing services, online applications, or mobile applications when a user uses the operator's internet website, online or cloud computing service, online application, or mobile application. (7) An operator may satisfy the requirement of paragraph (b)(5) of this section by providing a clear and conspicuous hyperlink in the operator's privacy policy to an online location containing a description, including the effects, of any program or protocol the operator follows that offers the user that choice. (c) An operator of a commercial internet website, online or cloud computing service, online application, or mobile application that collects personally identifiable information through the internet website, online or cloud computing service, online application, or mobile application from users of its internet website, online or cloud computing service, online application, or mobile application who reside in Delaware shall be in violation of this section if the operator fails to comply with the provisions of this section, rules and regulations promulgated pursuant to subsection (b) of this section, or with the provisions of the operator's posted privacy policy either (i) knowingly and wilfully or (ii) negligently and materially.
24		12C Del. § 1206C Privacy of information regarding book service users	(a) A book service provider shall not knowingly disclose to any government entity, or be compelled to disclose to any person, private entity, or government entity, any book service information about a user to any person, except under any of the following circumstances: (1) A book service provider may disclose a user's book service information to a law-enforcement entity pursuant to any lawful method or process by which a law-enforcement entity is permitted to obtain such information. (2) A book service provider may disclose a user's book service information to a governmental entity other than a law-enforcement entity only pursuant to either (i) a court order issued by a duly authorized court with jurisdiction over a matter that is under investigation by the governmental entity or (ii) a court order in a pending action brought by or against the government entity, and in either situation only if all of the following conditions are met: a. Prior to issuance of the court order, the governmental entity seeking disclosure gives timely, reasonable, written notice of the proceeding to the book service provider to allow the book service provider the opportunity to appear and contest the issuance of the court order. b. The book service provider refrains from disclosing a user's book service information pursuant to the court order until it gives timely, reasonable, written notice of the proceeding to the user about the issuance of the order and the ability to appear and quash the order, and the user has been given a minimum of 35 days prior to disclosure of the information within which to appear and quash the order. (3) A book service provider may disclose a user's book service information to any person who is not a governmental entity only pursuant to a court order in a pending action brought by or against the person, and only if all of the following conditions are met: a. The court issuing the order finds that the person seeking disclosure has a compelling interest in obtaining the book service information sought. b. The court issuing the order finds that the book service information sought cannot be obtained by the person seeking disclosure through less intrusive means. c. Prior to issuance of the court order, the person seeking disclosure provides, in a timely manner, the book service provider with reasonable notice of the proceeding to allow the book service provider the opportunity to appear and contest the issuance of the court order. d. The book service provider refrains from disclosing a user's book service information pursuant to the court order until it provides, in a timely manner, notice to the user about the issuance of the order and the ability to appear and quash the order, and the user has been given a minimum of 35 days prior to disclosure of the information within which to appear and quash the order. (4) A book service provider may disclose a user's book service information to a person if the user has given informed, affirmative consent in writing to the specific disclosure to the specific person for a particular purpose. (5) A book service provider may disclose a user's book service information to a law-enforcement entity if the law-enforcement entity asserts, orally or in writing, that there is an imminent danger of death or serious physical injury requiring the immediate disclosure of the requested user's book service information and there is insufficient time to obtain a court order. Where the user's book service information was sought pursuant to this subsection by a law-enforcement entity in a criminal matter, the relevant law-enforcement entity shall apply for a search warrant within 48 hours. In the event such application for approval is denied or such an application is not made, the contents search shall be treated as having been obtained in violation of this subchapter. Where the law-enforcement entity provided the book service provider only with an oral assertion, the law-enforcement entity seeking the disclosure shall provide the book service provider with a written statement setting forth the facts giving rise to the imminent danger of death or serious physical injury no later than 48 hours after seeking disclosure. (6) A book service provider may disclose a user's book service information to a law-enforcement entity if the book service provider in good faith believes that the book service information is evidence directly related and relevant to a crime against the book service provider or that user. (b) A court issuing an order requiring the disclosure of a user's book service information may, in its discretion: (1) Impose appropriate safeguards against the unauthorized disclosure of book service information by the book service provider and by the person seeking disclosure pursuant to the order. (2) Modify or rescind a court order in a civil proceeding requiring the disclosure of a user's book service information upon a motion made by the user, the book service provider, or the person seeking disclosure. (c) A book service provider, upon the written request of a law-enforcement entity, shall take all necessary steps to preserve records and other evidence in the book service provider's possession of a user's book service information related to the use of a book or part of a book, pending receipt of a request or demand for such information pursuant to subsection (a) of this section. The book service provider shall retain the records and evidence for a period of 90 days from the date of the request by the law-enforcement entity, which shall be extended for an additional 90-day period upon a renewed written request by the law-enforcement entity. (d) Violations. — (1) Reasonable reliance by a book service provider on a warrant or court order for the disclosure of a user's book service information, or on any of the enumerated exceptions to the confidentiality of a user's book service information set forth in this section, is a complete defense to any action for a violation of this section. (2) Except in an action for a violation of this section, no evidence obtained in violation of this section shall be admissible in any civil or administrative proceeding. (e) Reporting requirements. — (1) Unless disclosure of information pertaining to a particular request or set of requests is specifically prohibited by law, a book service provider shall prepare a report including all of the following information, to the extent it can be reasonably determined: a. The number of federal and state warrants, federal and state grand jury subpoenas, federal and state civil and administrative subpoenas, and federal and state civil and criminal court orders, seeking disclosure of any book service information of a user related to the access or use of a book service or book, received by the book service provider from January 1 to December 31, inclusive, of the previous year. b. The number of requests for information made with the informed consent of the user as described in paragraph (a)(4) of this section, seeking disclosure of any book service information of a user related to the access or use of a book service or book, received by the book service provider from January 1 to December 31, inclusive, of the previous year. c. The number of disclosures made by the book service provider pursuant to paragraphs (a)(5) and (6) of this section from January 1 to December 31, inclusive, of the previous year. d. For each category of demand or disclosure, the book service provider shall include all of the following information: 1. The number of times notice of a court order in a criminal, civil, or administrative action has been provided by the book service provider and the date the notice was provided. 2. The number of times book service information has been disclosed by the book service provider. 3. The number of times no book service information has been disclosed by the book service provider. 4. The number of times the book service provider contested the demand. 5. The number of times the user contested the demand. 6. The number of users whose book service information was disclosed by the book service provider. 7. The type of book service information that was disclosed and the number of times that type of book service information was disclosed. (2) Notwithstanding paragraph (e)(1) of this section, a book service provider is not required to prepare a report pursuant to this section unless it has disclosed book service information related to the access or use of a book service or book of more than 30 total users consisting of users located in this State or users whose location is unknown and cannot be determined or of both types of users. (3) The reporting requirements of this subsection shall not apply to information disclosed to a governmental entity that is made by a book service provider serving a postsecondary educational institution when the book service provider is required to disclose the information in order to be reimbursed for the sale or rental of a book that was purchased or rented by a student using book vouchers or other financial aid subsidies for books. (4) A report prepared pursuant to this subsection shall be made publicly available in an online, searchable format on the book service provider's website or before March 31 of each year. If the book service provider does not have a website, the book service provider shall post the report prominently on its premises or send the report in both paper and electronic format to the Consumer Protection Unit of the Department of Justice on or before March 31 of each year. (5) On or before March 1 of each year, a book service provider subject to § 1205C of this title shall complete 1 of the following actions: a. Create a prominent hyperlink to its latest report prepared pursuant to paragraph (e)(1) of this section in the disclosure section of its privacy policy applicable to its book service. b. Post the report prepared pursuant to paragraph (e)(1) of this section of its website explaining the way in which a user's book service information and privacy issues related to its book service are addressed. c. State on its website in 1 of the areas described in paragraphs (e)(5)a. and b. of this section that no report prepared pursuant to this subsection is available because the book service provider is exempt from the reporting requirement pursuant to paragraph (e)(2) of this section. (f) Nothing in this section shall otherwise affect the rights of any person under the Delaware Constitution of 1897 or be construed as conflicting with the federal Privacy Protection Act of 1980 (42 U.S.C. § 2000aa et seq.).
25		6 Del. § 5001C Definitions	For purposes of this chapter: (1) "Commercial entity'' means a corporation, business trust, estate, trust, partnership, limited partnership, limited liability partnership, limited liability company, association, organization, joint venture, or other legal entity, whether or not for profit, that transacts business in this State. For the purposes of this paragraph, "transacts business in this State'' means the course or practice of carrying on any business activity in this State and includes the solicitation of business or orders in this State. (2) "Consumer'' means an individual who enters into a transaction primarily for personal, family, or household purposes except employees. (3) "Personal identifying information'' means a consumer's first name or first initial and last name in combination with any 1 of the following data elements that relate to the consumer, when either the name or the data elements are not encrypted: Social Security number; passport number; driver's license or state identification card number; insurance policy number; financial services account number; bank account number; credit card number; debit card number; tax or payroll information or confidential health-care information including all information relating to a patient's health-care history; diagnosis condition, treatment; or evaluation obtained from a health-care provider who has treated the patient which explicitly or by implication identifies a particular patient. (4) "Record'' means information that is inscribed on a tangible medium, or that is stored in an electronic or other medium and is retrievable in perceivable form on which personal identifying information is recorded or preserved. "Record'' does not include publicly available directories or sources containing information a consumer has voluntarily consented to have publicly disseminated or listed or which is disseminated as provided for by applicable law or regulation, such as name, address, or telephone number, or other directories or sources as are derived solely from such directories or sources.
26		6 Del. § 5002C Safe Destruction of Records	In the event that a commercial entity seeks permanently to dispose of records containing consumers' personal identifying information within its custody or control, such commercial entity shall take reasonable steps to destroy or arrange for the destruction of each such record by shredding, erasing, or otherwise destroying or modifying the personal identifying information in those records to make it unreadable or indecipherable.
27		6 Del. § 5003C Violations	A consumer who incurs actual damages due to a reckless or intentional violation of this chapter may bring a civil action against the commercial entity.
28		6 Del. § 5004C Exemptions	This chapter does not apply to any of the following: (1) Any bank, credit union, or financial institution, as defined under the federal Gramm Leach Bliley Act, 15 U.S.C. § 6801 et seq., as amended, that is subject to the regulation of the Office of the Comptroller of Currency, the Federal Reserve, the National Credit Union Administration, the Securities and Exchange Commission, the Federal Deposit Insurance Corporation, the Office of Thrift Supervision and the U.S. Department of the Treasury, the Department of Business Regulation, or the Delaware Department of Insurance and is subject to the privacy and security provisions of the Gramm Leach Bliley Act; (2) Any health insurer or health-care facility that is subject to and in compliance with the standards for privacy of individually identifiable health information and the security standards for the protection of electronic health information of the Health Insurance Portability and Accountability Act of 1996 [P.L. 104-191]; or (3) Any consumer report agency that is subject to and in compliance with the Federal Credit Reporting Act, 15 U.S.C. § 1681 et seq., as amended; or (4) Any government, governmental subdivision, agency, or instrumentality.