United States: State Of The (State) Data Breach Laws: 2017 Legislative Update, Part III

With 2017 nearing its end, the legislative activity in most state capitals has wound down and the majority of legislatures have ended their 2017 sessions. In Part I and Part II of our series, we looked at how a number of states amended or enacted data breach notification-related legislation (Arkansas, Delaware, Maryland, New Mexico, and Tennessee). Digital Insights brings you Part III in our series, State of the (State) Data Breach Laws, examining the major amendments passed in Utah, Virginia, and Washington, and how the bills in these states reshaped the data collection, data breach notification, and breach enforcement landscape. 

Utah: On March 23, 2017, Utah Governor Gary Herbert signed S.B. 99, expanding the ability of the attorney general to enforce the state's data breach notification statute. Though Utah's breach notification law previously empowered the attorney general to enforce and seek penalties for violations of the statute, effective May 9, 2017, the amended statute permits the attorney general to enter into a confidentiality agreement with an individual to obtain information if there is reasonable cause to believe he or she has information relevant to enforcing its breach notification law. Likewise, a court may issue a similar confidentiality order in a civil suit brought under the statute. 

Under S.B. 99, the attorney general, subject to some restrictions, may use any testimony, documents, or materials obtained by a confidentiality agreement or order in an enforcement action taken pursuant to the statute. The revised statute also compels the attorney general to keep all procedures, testimony, or documents or materials produced via a confidentiality notice or order confidential unless the individual at issue waives confidentiality, or its use or dissemination is otherwise permitted by S.B. 99. For instance, the attorney general may disclose materials obtained via a confidentiality agreement or order with a grand jury, or with a federal or state law enforcement officer, if the individual whom the information is obtained from is notified at least 20 days before disclosure and the law enforcement officer certifies that he or she will keep the material confidential and use it only for law enforcement purposes. 

Finally, S.B. 99 permits the attorney general to seek attorneys' fees and costs associated with enforcing the statute.

While this amendment does not change an entity's own breach notification obligations under the Utah statute, the revisions seem to envision more robust enforcement of Utah's breach notification law by the state's top law enforcement official. Thus, entities with customers in the Beehive State have another reason to ensure compliance with Utah's breach notification statute.

Virginia: In the 2017 legislative session, the Virginia General Assembly passed H.B. 2113, imposing special regulatory notification requirements on employers and payroll service providers when tax information is affected. As of July 1, 2017, an employer or payroll service provider must notify the Virginia attorney general without unreasonable delay after discovering a breach of computerized data containing a resident's taxpayer identification number (TIN), combined with income tax withheld. An affected employer or payroll service provider must include the name and TIN of the affected residents as well as the employer's name and federal employer identification number (EIN) in its notification to the attorney general. For an employer, the statute applies to information concerning employees only. However, notification to the attorney general is not required when the employer or payroll service provider reasonably believes that the breach has not and will not cause identity theft or other fraud. 

Washington: The Evergreen State's breach notification statutes ­– R.C.W. § 19.255.010 for businesses and R.C.W. § 42.56.590 for state agencies – define "personal information" the way that most states do: as an individual's name combined with his or her Social Security number, driver's license or state identification card number, or account, credit, or debit card number and the means to access that account. While the Washington Legislature did not pass legislation in 2017 amending this definition or refining a business' or agency's notification obligations, it did pass Substitute H.B. 1717, a bill that imposes restrictions on state agencies' ability to collect and otherwise use an individual's "biometric identifiers."

Substitute H.B. 1717 defines "biometric identifiers" as "any information ... based on an individual's retina or iris scan, fingerprint, voiceprint, or scan of the hand or face geometry," subject to certain exceptions. Under the bill, which went into effect on July 23, 2017, an agency may not "collect, capture, purchase, or otherwise obtain a biometric identifier" without first notifying and obtaining an individual's consent. Such notice must clearly specify the purpose and use of the individual's biometric identifier, and the consent must be specific to the notice's terms and maintained by the agency for as long as it retains the individual's biometric identifier. Further, Substitute H.B. 1717 prohibits an agency from selling an individual's biometric identifier, and limits its use to the terms of the notice and consent.

Substitute H.B. 1717 imposes further duties on an agency: for instance, an agency must establish security policies to protect the integrity and confidentiality of biometric identifiers it obtains, address biometric identifiers in its privacy policy, adhere to records retention requirements and minimize the amount of biometric identifiers to that necessary to fulfill the notice and consent obtained from the individual, among other requirements.

While Substitute H.B. 1717's focus is on the practices of state agencies and their collection and use of residents' biometric information, the bill's significance to individuals, businesses, and other non-state entities lies more in what the Washington Legislature acknowledged in the bill's purpose:

The legislature finds that the collection and use of personal information has been a practice of virtually all state agencies and programs. Advances in technology have given rise to new forms of data, such as email and internet protocol (IP) addresses, which can be easily collected and stored along with traditional types of data such as names and dates of birth. One new form of personally identifiable information is biometric identifiers. The unique nature of this new type of personal data calls for additional guidance regarding its use by state agencies.

The Legislature recognized that new technology and new data may create new privacy implications that are not captured or covered by current statutes, including many state data breach notification statutes. Some states like Nebraska and Oregon already define "personal information" under their state breach notification statutes to include some versions of biometric data. However, this may be one area where more states – including Washington– seek to expand the meaning of "personal information" under their own breach notification statutes in the years to come.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Lewis Brisbois Bisgaard & Smith LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Lewis Brisbois Bisgaard & Smith LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions