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.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.