Citing to estimates in 2017 “more than 5.3 million North Carolinians were … affected by a data breach,” Attorney General Josh Stein and Rep. Jason Saine announced on January 8 proposed legislation aimed at protecting state residents from becoming victims of identity theft. To do so, the “Act to Strengthen Identity Theft Protections” (see fact sheet on proposed law) would, among other things, build on the state’s existing data breach notification law and require business to adopt reasonable safeguards to protect the personal information of North Carolinians.

Specifically, the Act would:

• Expand definition of “breach.” The revised definition of “breach” would include situations involving the unauthorized access to or acquisition of an individual’s personal information. This change is intended in significant part to include “ransomware” attacks and, notably, to remove from the breached organization the discretion to determine the risk of harm. A similar approach is taken in guidance by the federal Office of Civil Rights which concerns ransomware and data breach response.

• Shorten the notification period. Under the state’s current breach notification law, notice generally must be made without unreasonable delay, taking into account the legitimate needs of law enforcement, and consistent with any measures necessary to determine sufficient contact information, the scope of the breach and restore reasonable integrity, security and confidentiality of the data system. The Act would require that the breached entity notify the affected consumer(s) and the Attorney General’s office within 15 days, which would make North Carolina’s law mandate one of the shortest notification deadlines. The purpose of this change is to provide consumers more time to freeze their credit across and take other preventative measures before identity theft occurs.

• Impose “reasonable safeguard” requirements for a broader set of personal information. Businesses that own or license personal information would be required to implement and maintain reasonable security procedures and practices to protect the personal information from a security breach. This requirement follows other states such as California, Connecticut, Florida, and Massachusetts. Additionally, the Act would expand the definition of “protected information” to include medical information and insurance account numbers.

• Require free credit monitoring. The Act would require five years of free credit monitoring to be provided to affected consumers for security breaches that occur at a consumer reporting agency. Thus, this requirement would not apply to all businesses subject to the law, just consumer reporting agencies that have a breach.

• Strengthen penalty provisions. The Act would make clear that businesses that suffer a breach and are found to have failed to maintain reasonable security procedures will have committed a violation of the Unfair and Deceptive Trade Practices Act. In that case, when calculating penalties, each person affected by the breach would represent a separate and distinct violation of the law. If adopted, this provision should spur more organizations to take steps to maintain reasonable safeguards.

Individuals and commercial entities that conduct business in North Carolina and that own or license data in any form that includes personal information about North Carolinians should follow the progress of the Act, as well as developments in other relevant states concerning data protection requirements (See, e.g., update to Maryland’s breach notification law, effective January 1, 2018). However, even if the Act fails to become law, adopting and maintaining reasonable safeguards can help protect against a data breach which might be reportable in virtually all states, including North Carolina.