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Colorado, Louisiana, and Vermont Add to Recent Trend of Changes to State Data Breach Notification Laws

This spring has seen significant legislative activity with regards to state data breach notification laws, ranging from new laws in Alabama and South Dakota to amendments to existing laws in Oregon, Arizona, and elsewhere.  Continuing this trend, three states recently passed legislation to amend their existing data breach notification laws.  Legislation recently passed in Colorado will require notification of affected individuals and the state Attorney General within 30 days, while recent amendments to Louisiana’s data breach notification law will expand the scope of personally identifiable information (“PII”) covered by the law.  In addition, Vermont recently passed legislation that will create specific data breach notification requirements for “data brokers.”  This post examines each state’s amendments in greater detail below.

Colorado

Through the passage of H.B. 1128, which takes effect on September 1, 2018, Colorado has broadened the definition of PII under its existing data breach notification law, in addition to requiring notification of the state Attorney General and imposing strict notification timelines.  Once the new provisions enter into force, covered entities will be required to notify affected individuals within 30 days of the determination that a breach has occurred.  Colorado joins Florida as the only states that have imposed a 30-day notification deadline for notice to individuals, although Colorado’s law, unlike Florida’s, will not include a provision that allows for an extension of this deadline under certain limited conditions.  In addition, Colorado’s amendments will require notification of the state Attorney General if a covered entity believes that more than 500 state residents have been affected by a breach.  As with individual notifications, the notification to the state Attorney General must be provided within 30 days  after the date of determination of a breach.

Colorado’s amendments also broaden the law’s definition of PII to include an individual’s name in combination with a student, military, or passport number, medical information, a health insurance identification number, or biometric data.  In addition, the definition of PII will also now include credentials for an online account, as well as payment card or financial account information, even if not in combination with an individual’s name.

Finally, the amendments will also impose new requirements for the content of notifications to affected individuals.  Once the amendments enter into force, these notices must include the date of the breach, a description of the PII that was acquired, contact information for the covered entity, and numbers, addresses, and websites for CRAs and the FTC, along with a statement that the recipient can obtain information from the FTC and CRAs about fraud alerts and security freezes.  If online account credentials are affected, the notice must direct the affected individual to promptly change his or her password and security question or answer or take other steps to protect any accounts using similar credentials.

Louisiana

Louisiana has also updated its data breach notification law with the recent passage of S.B. 361, which takes effect on August 1, 2018.  Once the bill’s new provisions enter into force, covered entities will be required to notify affected individuals of a data breach no later than 60 days from the discovery of the breach.  If the notice is delayed for purposes of a law enforcement investigation or to determine the scope of the breach, prevent further disclosure, or restore data system integrity, the bill states that a covered entity must notify the state Attorney General in writing within the 60-day notification period of the reasons for the delay, and the state Attorney General “shall allow a reasonable extension of time” following the receipt of the written reasons for the delay.  The amendments also broaden the law’s definition of PII to include an individual’s name along with a passport number or biometric data.

Vermont

Vermont has also enacted H.B. 764, which takes effect on January 1, 2019, to impose new data breach notification requirements on “data brokers,” defined as a business or business unit that “knowingly collects and sells or licenses to third parties the brokered personal information of a consumer with whom the business does not have a direct relationship.”  The bill does not significantly modify Vermont’s generally applicable data breach notification statute, but will impose the additional measure of requiring data brokers to report any “data broker security breaches” to the Vermont Secretary of State as part of an annual registration process.  Notably, a “data broker security breach” is defined the unauthorized acquisition of “brokered personal information,” a broad category that includes an individual’s name, address, date or place of birth, mother’s maiden name, biometric data, household members’ names or addresses, Social Security number or other government-issued identification number, or other information that “would allow a reasonable person to identify the consumer with reasonable certainty.”

© 2018 Covington & Burling LLP

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About this Author

Caleb Skeath, data and cybersecurity lawyer, Covington
Associate

Caleb Skeath advises clients on a broad range of cybersecurity and privacy issues, including cybersecurity incident response, cybersecurity and privacy compliance obligations, internal investigations, regulatory inquiries, and defending against class-action litigation.

Mr. Skeath specializes in assisting clients in responding to a wide variety of cybersecurity incidents, ranging from advanced persistent threats to theft or misuse of personal information or attacks utilizing destructive malware. Such assistance may include protecting the response to, and...

202.662.5119
Calvin Cohen, Covington Burling, Data privacy lawyer
Associate

Calvin Cohen is an associate in the Government Contracts and Data Privacy and Cyber Security practice groups.

While in law school, Mr. Cohen successfully represented an indigent plaintiff before the Sixth Circuit on a matter of first impression concerning computer monitoring software and the federal Wiretap Act.

202-662-5788