SENATE BILL 223

57th legislature - STATE OF NEW MEXICO - second session, 2026

INTRODUCED BY

Heather Berghmans

 

 

 

 

 

AN ACT

RELATING TO SURVEILLANCE-BASED DISCRIMINATION; ENACTING THE SURVEILLANCE-BASED PRICE DISCRIMINATION ACT; PROHIBITING SURVEILLANCE-BASED PRICE DISCRIMINATION; AUTHORIZING THE ATTORNEY GENERAL TO PROMULGATE RULES FOR THE USE OF AUTOMATED SYSTEMS WHEN MAKING PRICE DECISIONS; PROVIDING FOR CIVIL REMEDIES; PRESCRIBING PRIVATE RIGHTS OF ACTION; PRESCRIBING CIVIL PENALTIES.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     SECTION 1. [NEW MATERIAL] SHORT TITLE.--This act may be cited as the "Surveillance-Based Price Discrimination Act".

     SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Surveillance-Based Price Discrimination Act:

          A. "consumer" means a person who obtains, maintains, uses, purchases, leases or has goods, services or real or personal property or the personal representative of that person;

          B. "de-identified data" means data that does not identify and cannot reasonably be used to infer information about, or otherwise be linked to, an identified or identifiable person or a device linked to the person;

          C. "individualized" means specific to or inferred about a person or group, band, class or tier of persons with particular personal information;

          D. "insurer" means a person engaged as principal, indemnitor, surety or contractor in the business of making contracts of insurance;

          E. "personal information" means any information, including unique identifiers, that is linked or reasonably linkable, alone or in combination with other information, to an identified or identifiable person or a device that identifies or is linked or reasonably linkable to a person. "Personal information" does not include de-identified data;

          F. "price" means the amount charged to a consumer in relation to a transaction, including all related costs and fees and other material terms of the transaction that have a direct bearing on the amount paid by the consumer or the value of the good or service offered or provided to the consumer;

          G. "surveillance data" means data obtained through

observation, inference or surveillance of a consumer that is related to personal information of the person or a group, band, class or tier in which the person belongs; and

          H. "surveillance-based price discrimination" means offering or setting an individualized price for a good or service for a specific consumer or group of consumers based in whole or in part on personal information.

     SECTION 3. [NEW MATERIAL] SURVEILLANCE-BASED PRICE DISCRIMINATION--PROHIBITION.--

          A. A person shall not engage in surveillance-based price discrimination.

          B. A person has not engaged in surveillance-based price discrimination if the person can demonstrate that:

                (1) differential prices are justified based on differences in cost in providing a good or service to different consumers;

                (2) differential prices reflect discounts offered to all consumers on equal terms in a manner consistent with applicable antidiscrimination laws in which:

                     (a) the terms of the discount are available and accessible to consumers and the public;

                     (b) discounts reward membership in a particular group, including active members of the military, veterans, teachers, students or seniors; and

                     (c) eligibility for the discount is based on information affirmatively and voluntarily provided by the consumer to the person offering the discount; or

                (3) the person operates as an insurer engaged as principal and as indemnitor, surety or contractor in the business of entering into contracts of insurance.

          C. A person has not engaged in surveillance-based price discrimination if the person can demonstrate that a refusal to extend credit at specific terms or the refusal to enter into a transaction with a specific consumer is based on data provided in a consumer report covered by the federal Fair Credit Reporting Act.

          D. A person has not engaged in surveillance-based price discrimination by using de-identified data if the person that possesses the data:

                (1) takes reasonable physical, administrative and technical measures to ensure that the data cannot be associated with an individual person or be used to re-identify a person or device that identifies or is linked or reasonably linkable to an individual;

                (2) publicly commits to process the data only in a de-identified fashion and not attempt to re-identify the data; and

                (3) contractually obligates any recipients of the data to satisfy the criteria set forth in Paragraphs (1) and (2) of this subsection.

          E. The attorney general shall adopt rules as necessary for the purpose of implementing and enforcing the Surveillance-Based Price Discrimination Act.

     SECTION 4. [NEW MATERIAL] VIOLATION OF SURVEILLANCE-BASED PRICE DISCRIMINATION ACT--ENFORCEMENT--COSTS--PRIVATE RIGHT OF ACTION.--

          A. A person that violates the Surveillance-Based Price Discrimination Act engages in an unfair or deceptive trade practice pursuant to the Unfair Practices Act.

          B. The attorney general or a district attorney may bring a civil action on behalf of the state against a person that violates the Surveillance-Based Price Discrimination Act to seek the imposition of civil penalties.

          C. A violation of the Surveillance-Based Price Discrimination Act constitutes a separate violation with respect to each transaction involved.

          D. In an action brought under the Surveillance-Based Price Discrimination Act, if the court finds that a person is willfully using or has willfully used a method, an act or a practice declared unlawful by the Unfair Practices Act, the attorney general or a district attorney, upon petition to the court, may recover, on behalf of the state of New Mexico, a civil penalty of not more than ten thousand dollars ($10,000) per violation.

          E. The attorney general or a district attorney shall be awarded costs and attorney fees in all actions in which the attorney general or the district attorney successfully enforces the Surveillance-Based Price Discrimination Act.

          F. In addition to other remedies provided at law or in equity, a person aggrieved by a violation of the Surveillance-Based Price Discrimination Act may bring a civil action on behalf of the person or a group of similarly situated persons to restrain further violations and to recover damages, costs and reasonable attorney fees, including the greater of:

                (1) the amount of actual damages sustained, including prejudgment interest of eight percent per year from the date on which the claim pursuant to the Surveillance-Based Price Discrimination Act accrued;

                (2) three thousand dollars ($3,000) for each violation of the Surveillance-Based Price Discrimination Act, with each violation constituting a separate violation with respect to each consumer or transaction involved; or

                (3) three times the amount of actual damages sustained if it is established by clear and convincing evidence that the person violating the Surveillance-Based Price Discrimination Act engaged in bad-faith conduct or intentionally violated that act.

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