A08884 Summary:

BILL NOA08884B
 
SAME ASSAME AS S06933-B
 
SPONSORTitone
 
COSPNSRThiele, Seawright
 
MLTSPNSR
 
Amd Art 39-F Art Head, §899-aa, add §899-bb, Gen Bus L; amd §208, St Tech L
 
Relates to notification of a security breach; includes credit and debit cards; increases civil penalties.
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A08884 Actions:

BILL NOA08884B
 
01/04/2018referred to consumer affairs and protection
02/13/2018amend and recommit to consumer affairs and protection
02/13/2018print number 8884a
06/01/2018amend and recommit to consumer affairs and protection
06/01/2018print number 8884b
06/04/2018reported referred to codes
06/11/2018reported referred to ways and means
06/13/2018reported referred to rules
06/18/2018reported
06/18/2018rules report cal.244
06/18/2018ordered to third reading rules cal.244
06/19/2018passed assembly
06/19/2018delivered to senate
06/19/2018REFERRED TO RULES
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A08884 Committee Votes:

CONSUMER AFFAIRS AND PROTECTION Chair:Titone DATE:06/04/2018AYE/NAY:14/0 Action: Favorable refer to committee Codes
TitoneAyeMikulinAye
AbbateAyeMcDonoughAye
QuartAyeStecAye
BuchwaldAyeTagueAye
SimonExcused
DilanAye
SeawrightExcused
RozicAye
NiouAye
Pheffer AmatoAye
WilliamsAye
WallaceAye

CODES Chair:Lentol DATE:06/11/2018AYE/NAY:20/0 Action: Favorable refer to committee Ways and Means
LentolAyeCurranAye
SchimmingerAyeGiglioAye
PretlowAyeMontesanoAye
CookAyeMorinelloAye
CymbrowitzAyePalumboAye
TitusAyeGarbarinoAye
O'DonnellExcused
LavineAye
PerryAye
ZebrowskiExcused
AbinantiAye
WeprinAye
MosleyAye
HevesiAye
FahyAye
SeawrightAye

WAYS AND MEANS Chair:Weinstein DATE:06/13/2018AYE/NAY:31/0 Action: Favorable refer to committee Rules
WeinsteinAyeOaksAye
LentolAyeCrouchAye
SchimmingerAyeBarclayAye
GanttExcusedFitzpatrickAye
GlickAyeHawleyAye
NolanAyeMalliotakisAye
PretlowAyeWalterAye
PerryAyeMontesanoAye
ColtonAyeCurranAye
CookAyeRaAye
CahillAye
AubryAye
HooperExcused
ThieleAye
CusickAye
OrtizAye
BenedettoAye
WeprinAye
RodriguezExcused
RamosAye
BraunsteinAye
McDonaldAye
RozicAye
Peoples-StokesAye
SimotasExcused

RULES Chair:Heastie DATE:06/18/2018AYE/NAY:30/0 Action: Favorable
HeastieAyeKolbAye
GottfriedAyeOaksAye
LentolAyeButlerAye
GanttExcusedCrouchAye
NolanAyeFinchAye
WeinsteinAyeBarclayAye
HooperAyeRaiaAye
OrtizAyeHawleyAye
PretlowAye
CookAye
GlickAye
MorelleAye
AubryAye
EnglebrightAye
DinowitzAye
ColtonAye
MagnarelliAye
PerryAye
GalefAye
PaulinAye
TitusAye
Peoples-StokesAye
BenedettoAye

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A08884 Floor Votes:

DATE:06/19/2018Assembly Vote  YEA/NAY: 140/0
AbbateYCookYGarbarinoYLupardoYPellegrinoYStecY
AbinantiYCrespoYGiglioYMageeYPeoples-StokesYSteckY
ArroyoYCrouchYGlickYMagnarelliYPerryYSternY
AshbyYCurranYGoodellYMalliotakisYPheffer AmatoYStirpeY
AubryYCusickYGottfriedYMcDonaldYPichardoYTagueY
BarclayYCymbrowitzYGuntherYMcDonoughYPretlowYTaylorY
BarnwellYDavilaYHawleyYMikulinYQuartYThieleY
BarrettYDe La RosaYHevesiYMiller B YRaYTitoneY
BarronYDenDekkerYHikindYMiller MGYRaiaYTitusY
BenedettoYDickensYHooperYMiller MLYRamosYVanelY
BichotteYDilanYHunterYMontesanoERRichardsonERWalkerY
BlakeYDinowitzYHyndmanYMorelleYRiveraYWallaceY
BlankenbushYDiPietroYJaffeeYMorinelloYRodriguezYWalshY
BohenYD'UrsoYJean-PierreYMosleyYRosenthal D YWalterY
BrabenecYEnglebrightYJenneYMurrayYRosenthal L YWeinsteinY
BraunsteinYEpsteinYJohnsYNiouYRozicYWeprinY
BrindisiYErrigoYJonesYNolanYRyanYWilliamsY
BronsonYEspinalYJoynerYNorrisYSantabarbaraYWoernerY
BuchwaldYFahyYKimYOaksYSchimmingerERWrightY
ButlerERFernandezYKolbYO'DonnellYSeawrightYZebrowskiY
ByrneYFinchYLalorEROrtizYSimonYMr. SpeakerY
CahillYFitzpatrickYLavineYOtisYSimotasY
CarrollYFriendYLawrenceYPalmesanoYSkoufisY
CastorinaYGalefYLentolYPalumboYSmithY
ColtonYGanttERLiftonYPaulinYSolagesY

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A08884 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         8884--B
 
                   IN ASSEMBLY
 
                                     January 4, 2018
                                       ___________
 
        Introduced  by  M. of A. TITONE -- (at request of the Department of Law)
          -- read once and referred to the Committee  on  Consumer  Affairs  and
          Protection -- committee discharged, bill amended, ordered reprinted as
          amended  and recommitted to said committee -- again reported from said
          committee with amendments, ordered reprinted as amended and  recommit-
          ted to said committee

        AN  ACT  to amend the general business law and the state technology law,
          in relation to notification of a security breach
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section 1. This act shall be known and may be cited as the "Stop Hacks
     2  and Improve Electronic Data Security Act (SHIELD Act)".
     3    §  2. The article heading of article 39-F of the general business law,
     4  as added by chapter 442 of the laws of  2005,  is  amended  to  read  as
     5  follows:
     6             NOTIFICATION OF UNAUTHORIZED ACQUISITION OF PRIVATE
     7                   INFORMATION; DATA SECURITY PROTECTIONS
     8    §  3.  Subdivisions  1,  2,  3, 5, 6, 7 and 8 of section 899-aa of the
     9  general business law, as added by chapter 442 of the laws of 2005, para-
    10  graph (c) of subdivision 1, paragraph (a) of subdivision 6 and  subdivi-
    11  sion  8  as amended by chapter 491 of the laws of 2005 and paragraph (a)
    12  of subdivision 8 as amended by section 6 of part N of chapter 55 of  the
    13  laws of 2013, are amended to read as follows:
    14    1. As used in this section, the following terms shall have the follow-
    15  ing meanings:
    16    (a)  "Personal  information"  shall  mean any information concerning a
    17  natural person which, because of name, number, personal mark,  or  other
    18  identifier, can be used to identify such natural person;
    19    (b)  "Private information" shall mean either: (i) personal information
    20  consisting of any information in combination with any one or more of the
    21  following data elements, when either the data element or the combination
    22  of personal information [or] plus the data element is not encrypted,  or
    23  is  encrypted  with  an  encryption  key  that has also been accessed or
    24  acquired:
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13619-09-8

        A. 8884--B                          2
 
     1    (1) social security number;
     2    (2)  driver's license number or non-driver identification card number;
     3  [or]
     4    (3) account number, credit or debit card number, in  combination  with
     5  any required security code, access code, [or] password or other informa-
     6  tion that would permit access to an individual's financial account;
     7    (4)  account  number,  credit  or  debit card number, if circumstances
     8  exist wherein such number could be used to access an individual's finan-
     9  cial account without additional identifying information, security  code,
    10  access code, or password; or
    11    (5)  biometric information, meaning data generated by electronic meas-
    12  urements of an individual's unique physical characteristics, such  as  a
    13  fingerprint, voice print, retina or iris image, or other unique physical
    14  representation  or  digital  representation  of biometric data which are
    15  used to authenticate or ascertain the individual's identity;
    16    (ii) a user name or e-mail address in combination with a  password  or
    17  security  question  and  answer  that  would  permit access to an online
    18  account; or
    19    (iii) any unsecured protected health information held  by  a  "covered
    20  entity"  as defined in the health insurance portability and accountabil-
    21  ity act of 1996 (45 C.F.R.  pts. 160, 162, 164), as amended from time to
    22  time.
    23    "Private information" does not include publicly available  information
    24  which  is  lawfully  made  available to the general public from federal,
    25  state, or local government records.
    26    (c) "Breach of the security of the  system"  shall  mean  unauthorized
    27  access  to  or acquisition of, or access to or acquisition without valid
    28  authorization, of  computerized  data  that  compromises  the  security,
    29  confidentiality,  or  integrity  of [personal] private information main-
    30  tained  by  a  business.  Good  faith  access  to,  or  acquisition   of
    31  [personal],  private information by an employee or agent of the business
    32  for the purposes of the business is not a breach of the security of  the
    33  system,  provided that the private information is not used or subject to
    34  unauthorized disclosure.
    35    In determining whether information has been accessed, or is reasonably
    36  believed to have been accessed, by an unauthorized person  or  a  person
    37  without  valid  authorization,  such  business may consider, among other
    38  factors, indications that the information was viewed, communicated with,
    39  used, or altered by a person without valid authorization or by an  unau-
    40  thorized person.
    41    In determining whether information has been acquired, or is reasonably
    42  believed  to  have  been acquired, by an unauthorized person or a person
    43  without valid authorization, such business may  consider  the  following
    44  factors, among others:
    45    (1) indications that the information is in the physical possession and
    46  control  of an unauthorized person, such as a lost or stolen computer or
    47  other device containing information; or
    48    (2) indications that the information has been downloaded or copied; or
    49    (3) indications that the  information  was  used  by  an  unauthorized
    50  person,  such  as  fraudulent  accounts  opened or instances of identity
    51  theft reported.
    52    (d) "Consumer reporting agency" shall mean any person which, for mone-
    53  tary fees, dues, or on a cooperative nonprofit basis, regularly  engages
    54  in whole or in part in the practice of assembling or evaluating consumer
    55  credit  information or other information on consumers for the purpose of
    56  furnishing consumer reports to third parties, and which uses  any  means

        A. 8884--B                          3
 
     1  or  facility  of  interstate  commerce  for  the purpose of preparing or
     2  furnishing consumer reports. A list of consumer reporting agencies shall
     3  be compiled by the state attorney general and furnished upon request  to
     4  any person or business required to make a notification under subdivision
     5  two of this section.
     6    2.  Any person or business which [conducts business in New York state,
     7  and which] owns or licenses computerized  data  which  includes  private
     8  information  shall  disclose  any  breach  of the security of the system
     9  following discovery or notification of the breach in the security of the
    10  system to any resident of New York state whose private information  was,
    11  or is reasonably believed to have been, accessed or acquired by a person
    12  without  valid authorization.   The disclosure shall be made in the most
    13  expedient time possible and without unreasonable delay, consistent  with
    14  the legitimate needs of law enforcement, as provided in subdivision four
    15  of this section, or any measures necessary to determine the scope of the
    16  breach and restore the [reasonable] integrity of the system.
    17    (a)  Notice  to affected persons under this section is not required if
    18  the exposure of private information was  an  inadvertent  disclosure  by
    19  persons  authorized  to  access  private  information, and the person or
    20  business reasonably determines such exposure will not likely  result  in
    21  misuse  of  such  information,  or  financial  or  emotional harm to the
    22  affected persons. Such a determination must be documented in writing and
    23  maintained for at least five years. The person or business shall provide
    24  the written determination to the state attorney general within ten  days
    25  after the determination.
    26    (b)  If  notice of the breach of the security of the system is made to
    27  affected persons pursuant to the breach notification requirements  under
    28  any  of  the  following  laws, nothing in this section shall require any
    29  additional notice to those affected persons, but notice still  shall  be
    30  provided  to the state attorney general, the department of state and the
    31  office of information technology services pursuant to paragraph  (a)  of
    32  subdivision  eight  of  this  section and to consumer reporting agencies
    33  pursuant to paragraph (b) of subdivision eight of this section:
    34    (i) regulations promulgated pursuant to Title V of the federal  Gramm-
    35  Leach-Bliley Act (15 U.S.C. 6801 to 6809), as amended from time to time;
    36    (ii)  regulations  implementing  the  Health Insurance Portability and
    37  Accountability Act of 1996 (45 C.F.R. parts 160  and  164),  as  amended
    38  from  time  to  time, and the Health Information Technology for Economic
    39  and Clinical Health Act, as amended from time to time;
    40    (iii) part five hundred of title twenty-three of the official compila-
    41  tion of codes, rules and regulations  of  the  state  of  New  York,  as
    42  amended from time to time; or
    43    (iv)  any  other data security rules and regulations of, and the stat-
    44  utes administered by, any official department, division,  commission  or
    45  agency  of the federal or New York state government as such rules, regu-
    46  lations or  statutes  are  interpreted  by  such  department,  division,
    47  commission or agency or by the federal or New York state courts.
    48    3.  Any  person  or  business  which maintains computerized data which
    49  includes private information which such person or business does not  own
    50  shall  notify  the owner or licensee of the information of any breach of
    51  the security of the  system  immediately  following  discovery,  if  the
    52  private  information  was,  or  is  reasonably  believed  to  have been,
    53  acquired by a person without valid authorization.
    54    5. The notice required by this section shall be directly  provided  to
    55  the affected persons by one of the following methods:
    56    (a) written notice;

        A. 8884--B                          4
 
     1    (b)  electronic  notice,  provided  that  the person to whom notice is
     2  required has expressly consented to receiving said notice in  electronic
     3  form  and a log of each such notification is kept by the person or busi-
     4  ness who notifies affected  persons  in  such  form;  provided  further,
     5  however,  that  in no case shall any person or business require a person
     6  to consent to accepting said notice in  said  form  as  a  condition  of
     7  establishing any business relationship or engaging in any transaction.
     8    (c)  telephone notification provided that a log of each such notifica-
     9  tion is kept by the person or business who notifies affected persons; or
    10    (d) substitute notice, if a business demonstrates to the state  attor-
    11  ney  general  that the cost of providing notice would exceed two hundred
    12  fifty thousand dollars, or that the affected class of subject persons to
    13  be notified exceeds five hundred thousand, or  such  business  does  not
    14  have  sufficient contact information. Substitute notice shall consist of
    15  all of the following:
    16    (1) e-mail notice when such business has an  e-mail  address  for  the
    17  subject  persons,  except if the breached information includes an e-mail
    18  address in combination with a password or security question  and  answer
    19  that would permit access to the online account, in which case the person
    20  or business shall instead provide clear and conspicuous notice delivered
    21  to  the  consumer  online  when  the consumer is connected to the online
    22  account from an internet protocol address or  from  an  online  location
    23  which  the  person  or  business  knows the consumer customarily uses to
    24  access the online account;
    25    (2) conspicuous posting of the notice  on  such  business's  web  site
    26  page, if such business maintains one; and
    27    (3) notification to major statewide media.
    28    6.  (a)  whenever  the  attorney  general  shall believe from evidence
    29  satisfactory to him or her that there is a violation of this article  he
    30  or  she  may  bring an action in the name and on behalf of the people of
    31  the state of New York, in a court  of  justice  having  jurisdiction  to
    32  issue  an  injunction,  to  enjoin and restrain the continuation of such
    33  violation.   In such action, preliminary relief  may  be  granted  under
    34  article  sixty-three of the civil practice law and rules. In such action
    35  the court may award damages for actual costs or  losses  incurred  by  a
    36  person  entitled to notice pursuant to this article, if notification was
    37  not provided to such person pursuant to this article,  including  conse-
    38  quential  financial  losses.  Whenever the court shall determine in such
    39  action that a person or business  violated  this  article  knowingly  or
    40  recklessly,  the court may impose a civil penalty of the greater of five
    41  thousand dollars or up to [ten] twenty dollars per  instance  of  failed
    42  notification, provided that the latter amount shall not exceed [one] two
    43  hundred fifty thousand dollars.
    44    (b)  the remedies provided by this section shall be in addition to any
    45  other lawful remedy available.
    46    (c) no action may be brought under  the  provisions  of  this  section
    47  unless  such  action is commenced within [two] three years [immediately]
    48  after either the date [of the act complained of or the date of discovery
    49  of such  act]  on  which  the  attorney  general  became  aware  of  the
    50  violation,  or  the  date  of  notice  sent pursuant to paragraph (a) of
    51  subdivision eight of this section, whichever occurs first.
    52    7. Regardless of the method by which notice is provided,  such  notice
    53  shall  include contact information for the person or business making the
    54  notification, the telephone numbers and websites of the  relevant  state
    55  and  federal agencies that provide information regarding security breach
    56  response and identity theft prevention and protection information, and a

        A. 8884--B                          5
 
     1  description of the categories of information that were, or  are  reason-
     2  ably  believed  to  have  been, accessed or acquired by a person without
     3  valid authorization, including specification of which of the elements of
     4  personal  information  and  private  information were, or are reasonably
     5  believed to have been, so accessed or acquired.
     6    8. (a) In the event that any New York residents are  to  be  notified,
     7  the  person  or  business  shall  notify the state attorney general, the
     8  department of state and the [division of state police] office of  infor-
     9  mation technology services as to the timing, content and distribution of
    10  the notices and approximate number of affected persons and shall provide
    11  a  copy  of  the  template of the notice sent to affected persons.  Such
    12  notice shall be made without delaying notice to affected New York  resi-
    13  dents.
    14    (b)  In  the event that more than five thousand New York residents are
    15  to be notified at one time, the person or  business  shall  also  notify
    16  consumer  reporting  agencies as to the timing, content and distribution
    17  of the notices and approximate number of affected persons.  Such  notice
    18  shall be made without delaying notice to affected New York residents.
    19    §  4. The general business law is amended by adding a new section 899-
    20  bb to read as follows:
    21    § 899-bb. Data security protections. 1.  Definitions.  (a)  "Compliant
    22  regulated  entity" shall mean any person or business that is subject to,
    23  and in compliance with, any of the following data security requirements:
    24    (i) regulations promulgated pursuant to Title V of the federal  Gramm-
    25  Leach-Bliley Act (15 U.S.C. 6801 to 6809), as amended from time to time;
    26    (ii)  regulations  implementing  the  Health Insurance Portability and
    27  Accountability Act of 1996 (45 C.F.R. parts 160  and  164),  as  amended
    28  from  time  to  time, and the Health Information Technology for Economic
    29  and Clinical Health Act, as amended from time to time;
    30    (iii) part five hundred of title twenty-three of the official compila-
    31  tion of codes, rules and regulations  of  the  state  of  New  York,  as
    32  amended from time to time; or
    33    (iv)  any  other data security rules and regulations of, and the stat-
    34  utes administered by, any official department, division,  commission  or
    35  agency  of the federal or New York state government as such rules, regu-
    36  lations or  statutes  are  interpreted  by  such  department,  division,
    37  commission or agency or by the federal or New York state courts.
    38    (b)  "Private  information"  shall have the same meaning as defined in
    39  section eight hundred ninety-nine-aa of this article.
    40    (c) "Small business" shall mean any person or business with (i)  fewer
    41  than  fifty  employees;  (ii)  less  than three million dollars in gross
    42  annual revenue in each of the last three fiscal  years;  or  (iii)  less
    43  than  five  million  dollars  in  year-end  total  assets, calculated in
    44  accordance with generally accepted accounting principles.
    45    2. Reasonable security requirement. (a) Any person  or  business  that
    46  owns or licenses computerized data which includes private information of
    47  a  resident of New York shall develop, implement and maintain reasonable
    48  safeguards to protect the security, confidentiality and integrity of the
    49  private information including, but not limited to, disposal of data.
    50    (b) A person or business shall be deemed  to  be  in  compliance  with
    51  paragraph (a) of this subdivision if it either:
    52    (i)  is  a compliant regulated entity as defined in subdivision one of
    53  this section; or
    54    (ii) implements a data security program that includes the following:
    55    (A) reasonable administrative safeguards such  as  the  following,  in
    56  which the person or business:

        A. 8884--B                          6
 
     1    (1)  designates  one  or  more  employees  to  coordinate the security
     2  program;
     3    (2) identifies reasonably foreseeable internal and external risks;
     4    (3)  assesses  the  sufficiency  of safeguards in place to control the
     5  identified risks;
     6    (4) trains and manages employees in the security program practices and
     7  procedures;
     8    (5) selects service providers capable of maintaining appropriate safe-
     9  guards, and requires those safeguards by contract; and
    10    (6) adjusts the security program in light of business changes  or  new
    11  circumstances; and
    12    (B)  reasonable  technical  safeguards such as the following, in which
    13  the person or business:
    14    (1) assesses risks in network and software design;
    15    (2) assesses risks in information processing, transmission  and  stor-
    16  age;
    17    (3) detects, prevents and responds to attacks or system failures; and
    18    (4)  regularly  tests  and monitors the effectiveness of key controls,
    19  systems and procedures; and
    20    (C) reasonable physical safeguards such as the following, in which the
    21  person or business:
    22    (1) assesses risks of information storage and disposal;
    23    (2) detects, prevents and responds to intrusions;
    24    (3) protects against unauthorized access to or use of private informa-
    25  tion during or after the collection, transportation and  destruction  or
    26  disposal of the information; and
    27    (4) disposes of private information within a reasonable amount of time
    28  after it is no longer needed for business purposes by erasing electronic
    29  media so that the information cannot be read or reconstructed.
    30    (c) A small business as defined in paragraph (c) of subdivision one of
    31  this  section complies with subparagraph (ii) of paragraph (b) of subdi-
    32  vision two of this section if  the  small  business's  security  program
    33  contains  reasonable  administrative,  technical and physical safeguards
    34  that are appropriate for the size and complexity of the small  business,
    35  the  nature and scope of the small business's activities, and the sensi-
    36  tivity of the personal information the small business collects  from  or
    37  about consumers.
    38    (d)  Any person or business that fails to comply with this subdivision
    39  shall be deemed to have violated section  three  hundred  forty-nine  of
    40  this  chapter,  and the attorney general may bring an action in the name
    41  and on behalf of the people of the state of  New  York  to  enjoin  such
    42  violations  and  to  obtain  civil penalties under section three hundred
    43  fifty-d of this chapter.
    44    (e) Nothing in this section shall create a private right of action.
    45    § 5. Paragraph (a) of subdivision 1 and subdivisions 2, 3, 6, 7 and  8
    46  of section 208 of the state technology law, paragraph (a) of subdivision
    47  1  and subdivisions 3 and 8 as added by chapter 442 of the laws of 2005,
    48  subdivision 2 and paragraph (a) of subdivision 7 as amended by section 5
    49  of part N of chapter 55 of the laws of 2013 and subdivisions 6 and 7  as
    50  amended  by  chapter  491  of  the  laws of 2005, are amended to read as
    51  follows:
    52    (a) "Private information" shall mean either: (i) personal  information
    53  consisting of any information in combination with any one or more of the
    54  following data elements, when either the data element or the combination
    55  of  personal  information [or] plus the data element is not encrypted or

        A. 8884--B                          7
 
     1  encrypted with  an  encryption  key  that  has  also  been  accessed  or
     2  acquired:
     3    (1) social security number;
     4    (2)  driver's license number or non-driver identification card number;
     5  [or]
     6    (3) account number, or credit or debit  card  number,  in  combination
     7  with  any  required identifying information, security code, access code,
     8  or password which would  permit  access  to  an  individual's  financial
     9  account;
    10    (4)  account  number, or credit or debit card number, if circumstances
    11  exist wherein such number could be used to  access  to  an  individual's
    12  financial  account  without additional identifying information, security
    13  code, access code, or password; or
    14    (5) biometric information, meaning data generated by electronic  meas-
    15  urements  of  an  individual's  unique physical characteristics, such as
    16  fingerprint, voice print, or retina or iris image, or other unique phys-
    17  ical representation or digital representation which are used to  authen-
    18  ticate or ascertain the individual's identity;
    19    (ii)  a  user name or e-mail address in combination with a password or
    20  security question and answer that  would  permit  access  to  an  online
    21  account; or
    22    (iii)  any  unsecured  protected health information held by a "covered
    23  entity" as defined in the health insurance portability and  accountabil-
    24  ity act of 1996 (45 C.F.R.  pts. 160, 162, 164), as amended from time to
    25  time.
    26    "Private  information" does not include publicly available information
    27  that is lawfully made available to  the  general  public  from  federal,
    28  state, or local government records.
    29    2.  Any  state  entity  that  owns  or licenses computerized data that
    30  includes private information shall disclose any breach of  the  security
    31  of  the  system following discovery or notification of the breach in the
    32  security of the system to any resident of New York state  whose  private
    33  information  was,  or  is  reasonably believed to have been, accessed or
    34  acquired by a person without valid authorization.  The disclosure  shall
    35  be  made  in  the  most expedient time possible and without unreasonable
    36  delay, consistent with the  legitimate  needs  of  law  enforcement,  as
    37  provided  in subdivision four of this section, or any measures necessary
    38  to determine the scope of the breach and restore the [reasonable] integ-
    39  rity of the data system.  The state entity shall consult with the  state
    40  office  of information technology services to determine the scope of the
    41  breach and restoration measures. Within ninety days of the notice of the
    42  breach, the office of information technology services  shall  deliver  a
    43  report  on  the  scope  of the breach and recommendations to restore and
    44  improve the security of the system to the state entity.
    45    (a) Notice to affected persons under this section is not  required  if
    46  the  exposure  of  private  information was an inadvertent disclosure by
    47  persons authorized to access private information, and the  state  entity
    48  reasonably  determines such exposure will not likely result in misuse of
    49  such information,  or  financial  or  emotional  harm  to  the  affected
    50  persons.  Such  a  determination must be documented in writing and main-
    51  tained for at least five years. The state entity shall provide the writ-
    52  ten determination to the state attorney general within  ten  days  after
    53  the determination.
    54    (b)  If  notice of the breach of the security of the system is made to
    55  affected persons pursuant to the breach notification requirements  under
    56  any  of  the  following  laws, nothing in this section shall require any

        A. 8884--B                          8
 
     1  additional notice to those affected persons, but notice still  shall  be
     2  provided  to the state attorney general, the department of state and the
     3  office of information technology services pursuant to paragraph  (a)  of
     4  subdivision  seven  of  this  section and to consumer reporting agencies
     5  pursuant to paragraph (b) of subdivision seven of this section:
     6    (i) regulations promulgated pursuant to Title V of the federal  Gramm-
     7  Leach-Bliley Act (15 U.S.C. 6801 to 6809), as amended from time to time;
     8    (ii)  regulations  implementing  the  Health Insurance Portability and
     9  Accountability Act of 1996 (45 C.F.R. parts 160  and  164),  as  amended
    10  from  time  to  time, and the Health Information Technology for Economic
    11  and Clinical Health Act, as amended from time to time;
    12    (iii) part five hundred of title twenty-three of the official compila-
    13  tion of codes, rules and regulations  of  the  state  of  New  York,  as
    14  amended from time to time; or
    15    (iv)  any  other data security rules and regulations of, and the stat-
    16  utes administered by, any official department, division,  commission  or
    17  agency  of the federal or New York state government as such rules, regu-
    18  lations or  statutes  are  interpreted  by  such  department,  division,
    19  commission or agency or by the federal or New York state courts.
    20    3.  Any  state  entity  that maintains computerized data that includes
    21  private information which such agency does  not  own  shall  notify  the
    22  owner  or  licensee  of the information of any breach of the security of
    23  the system immediately following discovery, if the  private  information
    24  was,  or is reasonably believed to have been, acquired by a person with-
    25  out valid authorization.
    26    6. Regardless of the method by which notice is provided,  such  notice
    27  shall  include  contact  information  for  the  state  entity making the
    28  notification, the telephone numbers and websites of the  relevant  state
    29  and  federal agencies that provide information regarding security breach
    30  response and identity theft prevention and protection information and  a
    31  description  of  the categories of information that were, or are reason-
    32  ably believed to have been, accessed or acquired  by  a  person  without
    33  valid authorization, including specification of which of the elements of
    34  personal  information  and  private  information were, or are reasonably
    35  believed to have been, so accessed or acquired.
    36    7. (a) In the event that any New York residents are  to  be  notified,
    37  the state entity shall notify the state attorney general, the department
    38  of  state  and the state office of information technology services as to
    39  the timing, content and distribution  of  the  notices  and  approximate
    40  number  of  affected  persons  and provide a copy of the template of the
    41  notice sent to affected persons.   Such notice  shall  be  made  without
    42  delaying notice to affected New York residents.
    43    (b)  In  the event that more than five thousand New York residents are
    44  to be notified at one time, the state entity shall also notify  consumer
    45  reporting  agencies  as  to  the timing, content and distribution of the
    46  notices and approximate number of affected persons. Such notice shall be
    47  made without delaying notice to affected New York residents.
    48    8. The state office of information technology services shall  develop,
    49  update  and  provide  regular training to all state entities relating to
    50  best practices for the prevention of a breach of  the  security  of  the
    51  system.
    52     9. Any entity listed in subparagraph two of paragraph (c) of subdivi-
    53  sion  one of this section shall adopt a notification policy no more than
    54  one hundred twenty days after the effective date of this  section.  Such
    55  entity  may  develop a notification policy which is consistent with this

        A. 8884--B                          9
 
     1  section or alternatively shall adopt a local  law  which  is  consistent
     2  with this section.
     3    §  6.  This  act shall take effect on the ninetieth day after it shall
     4  have become a law; provided, however, that  section  four  of  this  act
     5  shall  take  effect  on the two hundred fortieth day after it shall have
     6  become a law.
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