Further, data breach notification laws change frequently. Data breach notification laws typically cover personally identifiable information or individually identifiable information. ©1996-2020 Davis Wright Tremaine LLP. Some states such as California allow for affected individuals to have a private right of action to sue a business directly. the security breach and restore the reasonable integrity, security, and confidentiality of the data system. Instead, a loose patchwork of state and federal legislation forms the current body of U.S. data protection law. Individual states differ on whether additional forms of notice, such as by telephone or by electronic means are acceptable. Illinois provides for both enforcement by the Illinois State Attorney General, as well as a private right of action for Illinois residents. We acknowledge the traditional custodians of Australia and their continuing connection to land, sea and community. Data breach notification laws concern “personal information” or “personally identifiable information” (“PII”) of individuals, which is generally defined as an individual’s first name/initial and last name in combination with unencrypted sensitive data such as a social security number, driver’s license number, bank account number or credit/debit card number, medical or health insurance information, or a computer user name … Although Congress has attempted to agree on federal data breach notification legislation, there is no national data breach notification law that applies to most companies. Person who owns or licenses the computerized data must notify individuals within 45 days after determining that a breach has occurred. David Thaw, a law professor focused on cybersecurity at the University of Connecticut, agreed, saying comprehensive data security regulation, combined with data breach notification … Assemble a team of expertsto conduct a comprehensive breach response. Examples of federal data privacy and protection laws are: HIPAA (Health Insurance Portability and Accountability Act), which protects individuals’ medical and other health information; GLBA (Gramm-Leach-Bliley Act), which requires financial institutions to protect their individual customers’ personal and financial information; and COPPA (Children’s Online Privacy Protection Act), which protects the personal information of children under 13 years of age. This means there are reasons to pass a federal data protection law not just from an ethical standpoint but also from a purely practical perspective . Security breaches involving your personal information – also referred to as data breaches – can create a significant risk of fraud or identity theft if the information is acquired by the wrong person. [2] For the purposes of this article, the 50 U.S. states, the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands will be referred to collectively as “states” unless otherwise noted. A comprehensive assessment of all laws applicable to breaches of information other than PII. Uniform, predictable law on data security and notification is urgently needed. We acknowledge the traditional custodians of Australia and their continuing connection to land, sea and community. (A) O THER FEDERAL LAW.—An agreement under paragraph (1) shall not effect a covered entity's obligation to provide notice of a breach of security or similar event under any other Federal law. At the top of the Biden administration’s cybersecurity agenda should be passing a piece of legislation that lays out clear definitions as well as security and privacy standards for personal information. There are some exceptions—certain specific types of data are regulated (health information, for instance, or data about children under 13), and the California Consumer Privacy Act, which went into effect this year, imposes some security and privacy requirements on companies collecting information about California residents. The chart is a summary of basic state notification requirements that apply to entities who “own” data. There is no federal data breach notification law in the United States—it’s possible a federal data protection law might include notification requirements, but it … [1] Examples of federal data privacy and protection laws are: HIPAA (Health Insurance Portability and Accountability Act), which protects individuals’ medical and other health information; GLBA (Gramm-Leach-Bliley Act), which requires financial institutions to protect their individual customers’ personal and financial information; and COPPA (Children’s Online Privacy Protection Act), which protects the personal information of children under 13 years of age. This article is part of the Future Agenda, a series from Future Tense in which experts suggest specific, forward-looking actions the new Biden administration should implement. Certainly it led to more reporting back in the early 2000s when California passed its law long before Congress seemed to have any appetite for such legislation. In addition, California requires businesses to offer affected individuals at least 12 months of free credit monitoring services, and Connecticut recently amended its law to require businesses to offer at least 2 years of free credit monitoring services to affected individuals. Risk of Harm Trigger for Notification Exists Join Slate Plus to continue reading, and you’ll get unlimited access to all our work—and support Slate’s independent journalism. Federal Data Breach Notification Law History As of 2020, there is no federal data breach notification law. Congress has tried and repeatedly failed to pass a national notification law. Slate is published by The Slate Group, a Graham Holdings Company. One draft worth highlighting, particularly since it comes from a bipartisan congressional commission, is the Personal Data Security and Privacy Protection Act of 2020 draft proposed earlier this year by the Cyberspace Solarium Commission. DWT’s State Data Breach Notification Summaries will be updated as those amendments go into effect. Data breach notification laws typically cover “personally identifiable information” or “individually identifiable information.” No single federal law or regulation governs the security of all types of sensitive personal information. How a federal data protection or privacy law … That’s not to say that the United States should pass the exact same regulations as Europe or any other country—indeed, one of the advantages that Congress has from waiting so long to act on this issue is the ability to avoid some of the pitfalls of those laws, including the excessively high maximum fines permitted and the overly broad right to be forgotten measures, which have been construed as requiring search engines to remove news articles about harassment allegations under the European GDPR. “Our constituents are continually asking for greater protection. They are the reason consumers were made aware of the significant data breaches that caught Congress’s attention in 2005. The amendments require businesses to offer complimentary credit monitoring for 18 months if a breach involves a resident’s Social Security number. that examines emerging technologies, public policy, and society. › Chapter 38 - Data Breach Notification Act of 2018. All contents © 2020 The Slate Group LLC. South Dakota introduced its … discovery or notification, consistent with the legitimate needs of the law enforcement agency or with any measures necessary to determine the scope of. It’s an embarrassment that in 2020 that the country that played such an integral role in building and then commercializing the Internet has fallen so woefully behind other nations in developing suitable policy and regulatory measures to address the resulting risks. In today’s digital world in which a data breach can occur at any time to any business, every business needs to have a plan for how it will respond to a data breach and then train its employees to identify and report a breach when it occurs. Unlike other jurisdictions with uniform data protection laws such as the European Union’s General Data Protection Regulation (GDPR), the United States lacks an overarching federal data protection statute. Arizona State University The contents are intended solely for informational purposes and you should not act or rely upon information contained herein without consulting a lawyer for advice. Justia › US Law › US Codes and Statutes › Code of Alabama › 2019 Code of Alabama › Title 8 - Commercial Law and Consumer Protection. Summary: Alabama became the final state in the U.S. to enact a data breach notification law on March 28, 2018. A breach is, generally, an impermissible use or disclosure under the Privacy … The most common provision is that notification must be given “in the most expedient time possible and without unreasonable delay” following discovery or notification that a breach occurred. You’ve run out of free articles. A common, but narrow, exception to the definition of PII in some states is publicly-available information that is lawfully made available to the general public from federal, state or local government records. Introduction. States Approach Federal Data Breach Law with Caution With 47 different state laws on what companies are supposed to do when they become victims of cyberattack, is it time for federal legislation? Move quickly to secure your systems and fix vulnerabilities that may have caused the breach. While federal data breach notification law is limited in scope, state data breach laws apply whenever a data breach involves records of that state’s residents. (2) EXTENDED DELAY OF NOTIFICATION.—If the notification required under subsection (a) is delayed pursuant to paragraph (1), a business entity shall give notice 30 days after the day Take steps so it doesn’t happen again. The Data Security and Breach Notification Act of 2015, “aims to tackle the nation’s growing data security threats and challenges.” So far, that sounds pretty good to me. All rights reserved. Now that the South Dakota data breach notification law has been enacted, Alabama is the only state that has not yet introduced state-level data breach notification regulations. The exact steps to take depend on the nature of the breach and the structure of your business. If you value our work, please disable your ad blocker. On July 25, New York Governor Andrew Cuomo signed two data security and breach notification bills into law. Following a breach of unsecured protected health information, covered entities must provide notification of the breach to affected individuals, the Secretary, and, in certain circumstances, to the media. Under each state’s data breach notification laws, a resident of a state must receive notice of the breach according to the law of that particular state. A data breach notification law would supplant the patchwork, state-based approach that appears unworkable from both compliance and litigation standpoints. Read a New Short Story by Paul Theroux About a Future Pandemic, The Best Video Games We Played This Year (We Had Time for Lots of Them). In Illinois, substitute notice requires an email notice to be sent to affected persons, a conspicuous posting on the business’s Internet web site for a minimum of 30 days, and notification to major statewide media. Personal information in the United States is currently protected by a patchwork of industry-specific federal laws and state legislation whose scope and jurisdiction vary. Acknowledgement of Country. The laws in all 50 states, the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands allow for notice to be given by written letter. This article is intended to promote awareness of these data breach notification laws, and to highlight certain aspects of these laws. If you do not own the data at issue, consult the applicable laws and contact legal counsel. The Act expands the kinds of personal information covered by the District’s data breach notification law. Generally, a “breach” is defined as an unauthorized acquisition of computerized data that compromises the security, confidentiality, or integrity of PII maintained by the person or business. In addition, some states also require that notice be given to the state attorney general or other state authorities in the event that the breach affects a certain number of that state’s residents, usually 500 residents or more. This publication should not be construed as legal advice or legal opinion on any specific facts or circumstances. FOR INFORMATIONAL PURPOSES ONLY. Slate relies on advertising to support our journalism. 318), it … State laws on data breach notification. Most of the federal bills related to data security and data breach notification pending in Congress preempts the states. If your organization handles or works with a certain type of data, you have a legal obligation to protect that data. A breach may occur either through digital means such as unauthorized access to a business’s computer system through hacking, or physical means such as the theft of company property containing PII. The state laws on breach notification have been critical for consumers. Depending on the size and nature of your company, they may include f… In addition, many states’ laws allow for delay of notice subject to investigations by law enforcement and to restore the reasonable integrity of the data system. social security numbers), health data, or financial data. Moreover, Congress has waited so long to act that it already has a lot of examples it can draw on and learn from when it comes to data protection legislation—besides the CCPA, there’s the European General Data Protection Regulation, the Japanese Act on the Protection of Personal Information, the Brazilian General Data Protection Law, and the Indian Personal Data Protection Bill that appears to be nearing passage in India, to name just a few. The result is that while the EU has one basic law covering data protection, privacy controls and breach notification , the U.S. has a patchwork of state and federal laws, common law and public and private enforcement that has evolved over the last 100 years and more. This chart also does not cover: Security breach notification laws or data breach notification laws are laws that require individuals or entities affected by a data breach, unauthorized access to data, to notify their customers and other parties about the breach, as well as take specific steps to remedy the situation based on state legislature. We pay our respects to the people, the cultures and the elders past, present and emerging. In fact, the law requires these businesses to: 1. Federal mandatory data breach notification laws come into force November 1, 2018 What you need to know Does this legislation apply to small organizations? It’s such a significant point that we wrote an illuminating white paper on this very subject to help you decide when to report a ransomware attack under various state, federal, and international laws. New laws in Alabama and South Dakota in March 2018 brought the number of states with security breach notification bills to 50. Tennessee Enacted in 2005, Tennessee’s data breach notification law requires entities that conduct business in Tennessee and that... Notice must be made immediately, but no later than 45 days from the discovery or notification of the breach. The only thing worse than a data breach is multiple data breaches. Others disagreed, saying a new federal law that doesn’t preempt state laws would create a 49th data breach regulation for businesses to comply with. Cyber Investigation Expert: Federal Data Breach Law Expert | Computer Breach Investigation Expert | Computer Investigation Expert | Cyber Forensics Expert To Top Call Now 866.795.7166 It ups the game for businesses that manage the personal data of Massachusetts residents. Now 48 US states, the District of Columbia, Guam, Puerto Rico and the US Virgin Islands have enacted their own data breach notification laws that require affected individuals to be notified in the event of an information security breach. ©2020 Masuda, Funai, Eifert & Mitchell, Ltd. All rights reserved. The rule offers four criteria that … Attorney Advertising. Data breach notification laws concern “personal information” or “personally identifiable information” (“PII”) of individuals, which is generally defined as an individual’s first name/initial and last name in combination with unencrypted sensitive data such as a social security number, driver’s license number, bank account number or credit/debit card number, medical or health insurance information, or a computer user name and password. It isn’t a surprise that breach notification has become the token data protection regulation in the United States. A uniform federal law governing notification of data breaches would be welcome, but it should pre-empt related state laws if it is going to be helpful to employers, observers say. Federal Information Security and Data Breach Notification Laws Congressional Research Service Summary A data security breach occurs when there is a loss or theft of, or other unauthorized access to, sensitive personally identifiable information that could result in the potential compromise of the confidentiality or integrity of data. Notify Massachusetts Residents About a Data Breach (or a Potential Data Breach) For more information about state data breach notification laws or other data security matters, please contact one of the following individuals listed below or another member of Foley’s Cybersecurity practice. Most of the federal bills related to data security and data breach notification pending in Congress preempts the states. And you'll never see this message again. [ Privacy commissioner backs mandatory data breach notification]. For the purposes of this article, the 50 U.S. states, the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands will be referred to collectively as “states” unless otherwise noted. Federal laws Edit Other states such as California contain more detailed requirements for the format and contents of the notice. Organizations that conduct business across all 50 states therefore have a considerable compliance challenge. Fortunately, there are a number of promising versions of such legislation already drafted, and growing support from the private sector for the federal government to act on this issue. By joining Slate Plus you support our work and get exclusive content. But it’s no longer 2002 and we shouldn’t need California to drag us, state by state, over the course of more than a decade, into a similarly confusing system of dozens of inconsistent data protection and privacy laws that companies have to scramble to comply with. Summary: Alabama became the final state in the U.S. to enact a data breach notification law on March 28, 2018. Illinois requires for the notice to include, at a minimum, contact information for the three major consumer reporting agencies (Equifax, Experian and TransUnion) and the Federal Trade Commission, and guidance that an individual can obtain information from these agencies about obtaining fraud alerts and security freezes. Breach Notification Requirements. Cybersecurity is a moving target and it may well be that data protection regulation needs to be revisited periodically and updated. However, some states requiring notification to state authorities do not have a minimum threshold amount of affected residents, meaning that a breach affecting a single resident in that state will also require giving notice to the relevant state authorities. Half of all Americans believe their personal information is less secure now than it was five years ago, and a sobering study from the Pew Research Center reveals how little faith the public has in organizations, whether governmental or private-sector, to protect their data—and with good reason. For example, the California Consumer Privacy Act allows California residents whose PII is disclosed in a data breach to claim statutory damages of up to $750 per resident per incident or actual damages, whichever is greater, and individual residents may combine their claims into a class action. And not to put too fine a point on it, the Data Security and Breach Notification Act of 2015, in its current form, has a long way to go before it should become the law of the land. This publication may constitute Advertising Material. The FTC can investigate companies that do not adhere to their stated privacy policies and do not have safeguards to protect customer data, but no broad federal law exists regarding breach notifications. Data Security Breach Notification Laws Gina Stevens Legislative Attorney April 10, 2012 Congressional Research Service 7-5700 www.crs.gov R42475 . (2) EXTENDED DELAY OF NOTIFICATION.—If the notification required under subsection (a) is delayed pursuant to paragraph (1), a business entity shall give notice 30 days after the day Mobilize your breach response team right away to prevent additional data loss. The notice timing requirement varies widely among the states and demands a close review of the applicable individual state laws. Go to previous versions of this Chapter Photo illustration by Slate. Discuss: At hearing on federal data-privacy law, debate flares over state rules Sign in to comment. As the number of highly publicized data breaches continues to skyrocket and proposals for a federal data breach notification law stagnate, state legislatures around the country have been busy amending their own breach notification statutes. It only took 15 years. The first proposed federal data breach notification law was introduced to Congress in 2003, but it never exited the Judiciary Committee. Person who maintains data must notify, as soon as practicable, the owner or licensee of data. Security Breach Notification Laws 7/17/2020 All 50 states, the District of … Delaying breach notifications could attract a fine up to $10,000 per day plus state attorneys’ fees, with a fine of $10,000 possible for each violation. Notification or discovery of security breach, but notification not required if, after an appropriate investigation by the person or after consultation with the relevant federal, state, or local law enforcement agencies, person determines that a risk of identity theft or other fraud to any consumer is not reasonably likely to occur as a result of the breach. This proliferation of laws around the world isn’t just a sign that the U.S. has fallen behind on this issue, it’s also an indicator of how much work U.S.-based companies are already doing around data security in order to operate in other countries. Summarizing Federal & State Data Breach Notification Laws. Cyber Investigation Expert: Federal Data Breach Law Expert | Computer Breach Investigation Expert | Computer Investigation Expert | Cyber Forensics Expert Businesses and organizations (including non-profits), of all sizes hold personally identifying information of individuals, such as employees, customers, members and vendors. Named the Alabama Data Breach Notification Act of 2018 (S.B. Generally speaking, this could refer to personal information like names, identifiers (i.e. Amendments to the Massachusetts’ data breach notification law went into effect on April 11, 2019. The Massachusetts Data Breach Notification Law took effect last year. Photo by Roberto Schmidt/AFP via Getty Images. But those piecemeal solutions do not come close to adequately addressing the huge gap at the heart of U.S. civilian cybersecurity policy: the absence of a federal data protection law. Due to the increased complexity and challenge in responding to a data breach arising from the differences between the various state data breach notification laws, the most important consideration is swift action in compliance with the applicable law(s) once the breach is discovered. As of the writing of this article, there appears to be some indications that Congress may again consider implementing new federal data privacy legislation. The Biden administration can’t make this happen on its own—but if it wants to find opportunities for bipartisan action in Congress, a data protection law is a great place to start. is a partnership of New America, and Future Tense In addition, some states allow for “substitute notice” to be given in certain circumstances if the business can demonstrate that the cost of providing notice would exceed a certain amount (such as $250,000 in the case of Illinois), that the class of affected persons to be notified exceeds a certain number (such as 500,000 in the case of Illinois), or if a data collector (business) does not have sufficient contact information for the persons affected. Home » Mandatory Data Breach Notification in Canada: Understanding Your New Obligations Mandatory Data Breach Notification in Canada: Understanding Your New Obligations . In the meantime, businesses and practitioners will need to contend with the current patchwork of federal and state laws in the event of a data breach. We’ve already seen that happen with data breach notification laws in this country. However, some states impose a strict requirement to provide notice within a certain time period after discovery of the breach, which may be as short as 30 days (Colorado, Florida, Washington), or as long as 90 days (Connecticut), with a 45-day notification period being most common among the remaining states. Therefore, a data breach affecting residents located in all 50 states, the District of Columbia and the U.S. territories could potentially require 50 or more different versions of notices that comply with each jurisdiction’s particular requirements. The burden on companies is minimal, requiring only that a … Several members of Congress and advocacy groups have already drafted versions of a federal data protection law, suggesting that if Biden’s administration is willing to make this a priority, it should be able to find the necessary support. And it’s not just embarrassing, it’s actively harmful—to consumers whose personal data is being stolen or exposed on a regular basis and to companies that lack clear guidance on how they should be protecting their customers’ data. In several states, a violation of the applicable data breach notification law is considered an unfair or deceptive trade practice that may be enforced by a state attorney general or other government authority and subject a business to civil penalties. In recent years, news of large-scale breaches of customer data held by retailers such as Target and The Home Depot, followed by class action litigation brought by the affected customers, has become commonplace and has led to intensifying demand for robust data protection laws in the United States. Named the Alabama Data Breach Notification Act of 2018 (S.B. By Philip N. Yannella & Kristen Poetzel Ricci on September 13, 2018. It’s possible this system of individual state laws has led to somewhat more reporting of data breaches than a federal law would have, since many companies choose to adhere to the most stringent state laws for all of the customers rather than trying to tailor their breach responses to 50 slightly different laws. We pay our respects to the people, the cultures and the elders past, present and emerging. A federal data protection law might even introduce a new enforcement agency, as CPRA introduces in California. If Congress cannot agree on the minutia, delegation may be a viable solution. The Office can seek up to $150,000 for data breaches that have not been properly disclosed to Indiana customers. Arguably, the absence of a clear federal standard for data security and privacy in the United States also created a regulatory vacuum that has been filled by a patchwork of different laws passed by individual states, leading to multiple compliance headaches for private firms. ALL RIGHTS RESERVED. Each state’s data breach notification law functions to protect the residents of their respective states. Organizations that conduct business across all 50 states therefore have a considerable compliance challenge. Members of Congress have been discussing federal data breach notification standards for years, but they have failed to pass legislation, even after the 2017 Equifax data breach that compromised the personal information of roughly 148 million Americans. At present, there are a few national standards in place regarding data breach notification of potential victims, but federal laws are limited at this time to financial institutions (the Gramm-Leach-Bliley Act, 15 U.S.C. In addition, service providers that maintain computerized data on behalf of the data’s owner or licensee are also generally covered under data breach notification laws, and would be required to notify the data’s owner in the event that the service provider sustains a breach. Several of the proposed bills – including the Data Security and Breach Notification Act and the SAFE Data Act – direct the Federal Trade Commission to promulgate regulations on data security and notification. State laws on data breach notification. In 2017, there was a disastrous breach at Equifax, Yahoo’s admission that billions of its email accounts were compromised, Deep Root Analytics’ a… In the absence of federal legislation, back in 2002, California passed the first law requiring companies to report breaches of personal information and other states gradually followed suit until, eventually, every single one had passed its own breach notification law, with its own definition of what constituted personal information and its own requirements for how companies had to respond, who they had to report to, what the timeline for reporting would be, and whether the requirement applied to encrypted information. New York Governor Andrew Cuomo signed two data security and breach notification law mean U.S. firms face obstacles. Consider a federal data breach notification law on March 28, 2018 regulation in the United states currently... Act of 2018 ( S.B Graham Holdings Company of Privacy and data security breach and elders! 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