Person who maintains data must notify, as soon as practicable, the owner or licensee of data. 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. Join Slate Plus to continue reading, and you’ll get unlimited access to all our work—and support Slate’s independent journalism. 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 . And you'll never see this message again. 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. Summary: Alabama became the final state in the U.S. to enact a data breach notification law on March 28, 2018. 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. Most of the federal bills related to data security and data breach notification pending in Congress preempts the states. It strikes a good balance between providing individual consumers with transparency and access to their data and requiring reasonable security measures for that data without placing an unduly onerous burden on businesses, while also considering the importance of international harmonization and interoperability. A federal data protection law should, at minimum, include a clear definition of what constitutes personal data, standards for what precisely companies have to do to protect that data, what they have to tell their customers about their data collection, sharing, and analysis practices, what penalties may result from failing to meet these requirements, and, finally, a threshold for how large a company has to be before it is required to comply with these requirements, in order to avoid squashing new, smaller entrants in the market. Organizations that conduct business across all 50 states therefore have a considerable compliance challenge. 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. 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 notice timing requirement varies widely among the states and demands a close review of the applicable individual state laws. ©2020 Masuda, Funai, Eifert & Mitchell, Ltd. All rights reserved. Generally, data breach notification laws apply to persons or businesses that own or license computerized data that includes PII. 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? State laws on data breach notification. We acknowledge the traditional custodians of Australia and their continuing connection to land, sea and community. Depending on the size and nature of your company, they may include f… 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. 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. Photo by Roberto Schmidt/AFP via Getty Images. 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. If you value our work, please disable your ad blocker. Individual states differ on whether additional forms of notice, such as by telephone or by electronic means are acceptable. If Congress cannot agree on the minutia, delegation may be a viable solution. 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 might also focus more narrowly on the requirements for collecting and protecting personal data. 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. 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. 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. You can cancel anytime. If you do not own the data at issue, consult the applicable laws and contact legal counsel. The only thing worse than a data breach is multiple data breaches. [ Privacy commissioner backs mandatory data breach notification]. 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. Other states such as California contain more detailed requirements for the format and contents of the notice. Federal mandatory data breach notification laws come into force November 1, 2018 What you need to know Does this legislation apply to small organizations? A comprehensive assessment of all laws applicable to breaches of information other than PII. [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. In fact, the law requires these businesses to: 1. Amendments to the Massachusetts’ data breach notification law went into effect on April 11, 2019. So far, data protection laws in the U.S. have taken several different forms, including state website privacy policy laws (such as the California Online Privacy Protection Act (CalOPPA)), state general privacy laws (such as the California Consumer Privacy Act (CCPA)), Washington’s new privacy law and the Illinois Biometric Information Privacy Act), state data breach notification laws, and federal statutes providing for protection of specific types of information.1 Of these different approaches to data protection, data breach notification laws have reached a particularly high level of adoption in the U.S., with all 50 states, the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands having passed data breach notification laws as of 2020.2 The purpose of data breach notification laws is to place affirmative obligations on entities holding certain personal data of individuals to provide timely notification of breaches to the individuals affected, and in some cases require entities to notify relevant state authorities as well. The chart is a summary of basic state notification requirements that apply to entities who “own” data. David Thaw, a law professor focused on cybersecurity at the University of Connecticut, agreed, saying comprehensive data security regulation, combined with data breach notification … 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. By joining Slate Plus you support our work and get exclusive content. You’ve run out of free articles. Data breach notification requirements at the federal level arise from a variety of laws and other legal authority. 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