July 5, 2020

Volume X, Number 187

July 03, 2020

Subscribe to Latest Legal News and Analysis

Vermont Updates its Data Breach Notification Law

As the COVID-19 pandemic presses on, privacy and security matters continue to be at the forefront for federal and state legislature. We recently reported that Washington D.C. updated its data breach notification law. Now, the Vermont legislature also amended its data breach notification law, with significant overhauls including expansion of its definition of personal information, and the narrowing of permissible circumstances under which substitute notice may be applied. Bill S.110 amending Vermont’s Security Breach Notice Act, V.S.A §§ 2330 & 2335, b23-0215, was signed into law by Governor Phil Scott, and will take effect July 1, 2020.  In addition Bill S.110, creates a new duties and prohibitions with respect to student privacy directed towards educational technology services (similar to a law first enacted in California, and later adopted by over 20 states).

Key updates to Vermont’s Security Breach Notice Act include:

  • Expansion of Personally Identifiable Information (PII)

Following many other states, the new law will add to the data elements that if breached could trigger a notification obligation.  Prior to this amendment, the definition of PII in Vermont was limited to four basic data elements that when unencrypted, a consumer’s first name or first initial and last name in combination with:

    • Social Security number;
    • Driver license or nondriver identification card number; • Financial account number or credit or debit card number, if circumstances exist in which the number could be used without additional identifying information, access codes, or passwords; or
    • Account Passwords, personal identification numbers, or other access codes for a financial account.

The amended law includes these elements, and adds the following when combined with a consumer’s first name or first initial and last name:

    • Individual taxpayer identification number, passport number, military identification card number, or other identification number that originates from a government identification document that is commonly used to verify identity for a commercial transaction;
    • Unique biometric data generated from measurements or technical analysis of human body characteristics used by the owner or licensee of the data to identify or authenticate the consumer, such as a fingerprint, retina or iris image, or other unique physical representation or digital representation of biometric data;
    • Genetic information; and
    • Health records or records of a wellness program or similar program of health promotion or disease prevention; a health care professional’s medical diagnosis or treatment of the consumer; or a health insurance policy number.

The amended law will also include notification requirements for breaches of “login credentials”. The amendment defines “login credentials” as “a consumer’s user name or e-mail address, in combination with a password or an answer to a security question, that together permit access to an online account.” If a breach is limited to “login credentials” (and no other PII), the data collector is only required to notify the Attorney General or Department of Finance, as applicable, if the login credentials were acquired directly from the data collector or its agent.

  • Substitute Notice

Previously, substitute notice was permitted where the cost of Direct Notice via writing or telephone would exceed $5,000, more than 5,000 consumers would be receiving notice, or the data collector does not have sufficient contact information.

Under the amended law, substitute notice is only permitted where the lowest cost of providing Direct Notice via writing, email, or telephone would exceed $10,000, or the data collector does not have sufficient contact information. It is no longer permitted to provide substitute notice where the number of consumers exceed a certain threshold.

Student Privacy Law 

Finally, Bill S.110 also includes the Student Online Personal Information Protection Act, which prohibits an “operator” from sharing student data and using that data for targeted advertising on students for a non-educational purpose. Under the new law, “operator” means the operator of an Internet website, online service, online application, or mobile application used primarily for K-12 purposes, and designed and marketed as such. The passage of this law is particularly relevant during the COVID-19 pandemic, as student use of education technology services has dramatically increased.

Conclusion

This amendment keeps Vermont in line with other states across the nation currently enhancing their data breach notification laws in light of recent large-scale data breaches and heightened public awareness.  Organizations across the United States should be evaluating and enhancing their data breach prevention and response capabilities.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 149

TRENDING LEGAL ANALYSIS


About this Author

Principal

Joseph J. Lazzarotti is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He founded and currently helps to co-lead the firm's Privacy, e-Communication and Data Security Practice, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals.

In short, his practice focuses on the matrix of laws governing the privacy, security and management of data, as well as the impact and regulation of social media. He also...

973- 538-6890
Jason C. Gavejian, Employment Attorney, Jackson Lewis, Principal, Restrictive Covenants Lawyer
Principal

Jason C. Gavejian is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. and a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

Mr. Gavejian represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination and wage and hour claims in both federal and state courts. Additionally, Mr. Gavejian regularly appears before administrative agencies, including the Equal Employment Opportunity Commission, the Office for Civil Rights (OCR), the New Jersey Division of Civil Rights, and the New Jersey Department of Labor. His practice also focuses on advice/counseling employers regarding daily workplace issues.

Mr. Gavejian represents companies with respect to inquiries from the HHS/OCR, state attorneys general, and other agencies alleging wrongful disclosure of personal/protected information. Mr. Gavejian negotiates vendor agreements and other data privacy and security agreements, including business associate agreements. His work in the area of privacy and data security includes counseling and coaching clients through the process of investigating and responding to breaches of the personally identifiable information (PII) or protected health information (PHI) they maintain about consumers, customers, employees, patients, and others, while also assisting clients in implementing policies, practices, and procedures to prevent future data incidents.

Mr. Gavejian’s litigation experience, coupled with his privacy practice, provides him with a unique view of many workplace issues and the impact privacy, data security, and social media may play in actual or threatened lawsuits.

Mr. Gavejian regularly provides training to both executives and employees and regularly speaks on current privacy, data security, monitoring, recording, BYOD/COPE, biometrics (BIPA), social media, TCPA, and information management issues. His views on these topics have been discussed in multiple publications, including the Washington Post, Chicago Tribune, San Francisco Chronicle (SFGATE), National Law Review, Bloomberg BNA, Inc.com, @Law Magazine, Risk and Insurance Magazine, LXBN TV, Business Insurance Magazine, and HR.BLR.com.

Mr. Gavejian is the Co-Chair of Jackson Lewis’ Hispanic Attorney Resource Group, a group committed to increasing the firm’s visibility among Hispanic-American and other minority attorneys, as well as mentoring the firm's attorneys to assist in their training and development. Mr. Gavejian also previously served on the National Leadership Committee of the Hispanic National Bar Association (HNBA) and regularly volunteers his time for pro bono matters.

Prior to joining Jackson Lewis, Mr. Gavejian served as a judicial law clerk for the Honorable Richard J. Donohue on the Superior Court of New Jersey, Bergen County.

(973) 538-6890
Mary Costigan, Jackson Lewis Law Firm, Privacy Attorney, Cybersecurity, New Jersey
Associate

Mary T. Costigan is an Associate in the Morristown, New Jersey, office of Jackson Lewis P.C. She holds a Certified Information Privacy Professional/US designation from the International Association of Privacy Professionals (iapp). Ms. Costigan advises multinational, national, and regional companies on emerging privacy and cybersecurity issues, including the broad and growing array of mandates, best practices, and preventive safeguards. In particular, she focuses on advising and assisting clients in matters relating to compliance with the General Data Protection Regulation (GDPR) and U.S....

973-451-6367
Attorney

Maya Atrakchi is the Knowledge Management (“KM”) Attorney for Jackson Lewis P.C.’s Privacy, e-Communication and Data Security and International Employment Issues Practice Groups, and is based in the New York City, New York, office of Jackson Lewis P.C.

212-545-4000