SURVEILLANCE-BASED PRICE DISCRIMINATION ACT

SB0223

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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