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"Toysmart amendment" to S 220, the bankruptcy reform bill.
Offered by Sen. Pat Leahy (D-VT) and Sen. Orrin Hatch (R-UT).
Re: restricting the sale or lease of personally identifiable information collected by a debtor in bankruptcy.
Date: February 28, 2001.

Editor's Notes:
 • The Senate Judiciary Committee adopted this amendment (and others), and then reported the bill as amended, on February 28, 2001.
 • The Senate Judiciary Committee and the Office of Sen. Leahy kindly provided Tech Law Journal with copies of this amendment.
 • Tech Law Journal added HTML formatting.

AMENDMENT NO._____ Calendar No. _____

Purpose: To provide privacy protection for personally identifiable information when a company goes bankrupt and the trustee seeks to resell that information, as in the case.

Offered by Mr. Leahy (for himself and Mr. Hatch)


On page 120, between lines 16 and 17, insert the following –

"Section 231. Protection of Nonpublic personal information.

"(1) Section 363(b)(1) of title 11, United States Code, is amended by replacing the period at the end with a semicolon and inserting the following --

    'except that if the debtor has disclosed a policy to an individual prohibiting the transfer of personally identifiable information about the individual to unaffiliated third persons, and the policy remains in effect at the time of the bankruptcy filing, the trustee may not sell or lease such personally identifiable information to any person, unless

      '(A) the sale is consistent with such prohibition; or

      '(B) the court, after notice and hearing and due consideration of the facts, circumstances and conditions of the sale or lease approves the sale or lease. '.

"(2) Definition. Section 101 of title 11, United States Code, is amended by inserting after paragraph 41 the following --

'(41A) 'personally identifiable information' means the following information if provided by the individual to the debtor in connection with obtaining a product or service from the debtor primarily for personal, family, or household purposes --

    '(A)(i) the individual's first name (or initial(s)) and last name, whether given at birth or adoption or legally changed;

      '(ii) the physical address for the individual's home;

      ' (iii) the individual's e-mail address;

      '(iv) the individual's home telephone number;

      '(v) the individual's social security number; or

      '(vi) the individual's credit card account number; or

    (B) is any of the following when identified in connection with one or more of the items of information listed in paragraph (A) --

      '(i) an individual's birth date, birth certificate number, or place of birth; or

      '(ii) any other information concerning an identified individual that, if disclosed, will result in the physical or electronic contacting or identification of that person;'.".

On page 178, line 4, after “and.”, insert:

Section 332. Consumer Privacy Ombudsman

'(a) In General.—

    '(1) If the trustee intends to sell or lease personally identifiable information in a manner which requires a hearing described in section 363(b)(1)(B), the trustee shall request, and the court shall appoint, a individual to serve as ombudsman during the case no later than:

      '(A) on or before 30 days after the order for relief; or

      '(B) five days prior to any hearing described in 363(b)(1)(B).

    '(2) It shall be the duty of the ombudsman to provide the court information to assist the court in its consideration of the facts, circumstances and conditions of the sale or lease under section 363(b)(1)(B). Such information may include a presentation of the debtor's privacy policy in effect, potential losses or gains of privacy to consumers if the sale or lease is approved, potential costs or benefits to consumers if the sale or lease is approved, and potential alternatives which mitigate potential privacy losses or potential costs to consumers.

    '(3) The ombudsman shall receive notice of, and shall have a right to appear and be heard, at any hearing described in section 363(b)(1)(B).

    '(4) The ombudsman shall maintain any personally identifiable information obtained by the ombudsman under this title as confidential information.

'(b) Appointment —If the court orders the appointment of an ombudsman under this section, the United States Trustee shall appoint 1 disinterested person, other than the United States trustee, to serve as the ombudsman."

'(b) Compensation of Consumer Privacy Ombudsman—Section 330(a)(1) of title 11, United States Code, is amended in the matter preceding subparagraph (A), by inserting "an ombudsman appointed under section 332," before "an examiner ".'


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