NY State Senate Bill 2017-S6933B

Archive: Last Bill Status - In Senate Committee Finance Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 01, 2018	print number 6933b
Jun 01, 2018	amend and recommit to finance
Feb 12, 2018	reported and committed to finance
Feb 02, 2018	print number 6933a
Feb 02, 2018	amend and recommit to consumer protection
Jan 03, 2018	referred to consumer protection
Nov 01, 2017	referred to rules

Votes

- Feb 12, 2018 - Consumer Protection Committee Vote
  S6933B
  
  6
  
  Aye
  
  3
  
  Nay
  
  1
  
  Aye with Reservations
  
  0
  
  Absent
  
  1
  
  Excused
  
  0
  
  Abstained
  - - Consumer Protection Committee Vote: Feb 12, 2018
      
      aye (6)
      
      Brooks
      
      Carlucci
      
      Comrie
      
      Hamilton
      
      Kavanagh
      
      Serrano
      
      nay (3)
      
      Amedore
      
      Funke
      
      Helming
      
      aye wr (1)
      
      Robach
      
      excused (1)
      
      Boyle

Bill Amendments

Original

B (Active)

2017-S6933 - Details

See Assembly Version of this Bill:: A8884
Current Committee:: Senate Finance
Law Section:: General Business Law
Laws Affected:: Amd Art 39-F Art Head, §899-aa, add §899-bb, Gen Bus L; amd §208, St Tech L
Versions Introduced in 2019-2020 Legislative Session:: S133, S5575

2017-S6933 - Summary

Relates to notification of a security breach; includes credit and debit cards; increases civil penalties.

2017-S6933 - Sponsor Memo

                                
 
BILL NUMBER: S6933

SPONSOR: CARLUCCI
 
TITLE OF BILL:  An act to amend the general business law and the state
technology law, in relation to notification of a security breach

 
PURPOSE:

New York's data breach notification law needs to be updated keep pace
with current technology. This bill broadens the scope of information
covered under the notification law and updates the notification require-
ments when there has been a breach of data. It also broadens the defi-
nition of a data breach to include an unauthorized person gaining access
to information. It also requires reasonable data security, provides
standards tailored to the size of a business, and provides protections
from liability for certain entities.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 of the bill names the act.

Section 2 of the bill amends the title of article 39-F of the General
Business Law.

Section 3 of the bill amends section 899-aa of the General Business Law.
The amendments would:

*update the notifications section of the General Business Law by adding
biometric data, email addresses or user names in combination with a
password or security question answer, and protected health information
held by a "covered entity" to the private information definition;

*update the notifications section of the General Business Law by adding
unauthorized access to the private information to the definitions of
"private information" and "breach of the security of the system";

*update the notification requirement by applying it to any person or
entity with private information of a New York resident, not just to
those that "conduct business" in New York State;

*add definitions for the terms credit card and debit card;

*correct typos and inconsistencies in language to clarify that breaches
of private information only (and not personal information) trigger
notice obligations and to make consistent all references to compromise
by an unauthorized person or a person without valid authorization;

*authorize businesses in certain circumstances to notify the consumer
via email of the breach and if the consumer's email is believed to have
been compromised authorize the business to use other electronic methods
to notify the consumer;

*require that, if a business is sending out a new credit or debit card
to a consumer, the consumer be notified that the card is on its way;

*outline penalties for businesses that fail to provide notice to consum-
ers of a breach and the limitations period for the attorney general to
act on any failure;

*require certain information to be included in the notice that would
direct consumers to federal and state data security prevention entities
and require businesses to send a template of their notice to consumers
to the attorney general and the Office of Information Technology
Services; and,

*task the Department of State with receiving and responding to data
breach complaints and with informing the public of data security and
breach prevention techniques.

Section 4 of the bill creates a new section 899-bb of the General Busi-
ness Law that would:.

*require reasonable data security for private information, with a more
flexible standard for small businesses, without creating new require-
ments for entities subject to existing or future regulations by any
federal or other New York State government entity, and while providing
safe harbor from enforcement for entities that take steps to verify
their compliance with other existing data security regulations or stand-
ards; and

*deem failure to provide required reasonable data security to be a
violation of section 349 of the General Business Law, permitting the
attorney general to bring suit but not any private plaintiff.

Section 5 of the bill amends the State Technology Law. The amendments
would:

*include the same terms as above in the definition of private informa-
tion;

*state that should a data breach occur in a State entity the Office of
Information Technology Services shall deliver a report on the scope of
the breach to the entity affected;

*require that an entity shall notify individuals affected by the data
breach as quickly as possible; and,

*task the office of information technology services to develop and
provide regular trainings to all entities on preventing data breaches.

Section 6 of the bill sets forth the effective date.

 
JUSTIFICATION:

New York's current data breach notification law needs to be updated to
keep pace with individuals' use and dissemination of private informa-
tion. New York also needs to join the increasing number of states that
require reasonable data security protections, without imposing duplicate
obligations on those already subject to other federal or New York State
data security regulations and without imposing excessive costs on small
business, while providing safe harbor from enforcement for entities that
take steps to verify their compliance with other existing data security
regulations or standards. This bill expands the scope of information
subject to the current data breach notification law to include biometric
information, email addresses and their corresponding passwords or secu-
rity questions and answers, and protected health information as defined
under HIPAA. It broadens the definition of a data breach to include
unauthorized access to private information. It applies the notification
requirement to any person or entity with private information of a New
York resident, not just to those that conduct business in New York
State. It also updates the notification procedures companies and state
entities must follow when there has been a breach of private informa-
tion. It also creates reasonable data security requirements tailored to
the size of a business and provides protections from liability for
certain entities that take steps to verify their safeguarding of private
information.

 
PRIOR LEGISLATIVE HISTORY:

 
FISCAL IMPACT ON THE STATE:

None.

 
FISCAL IMPACT ON LOCALITIES:

None.

 
IMPACT ON THE REGULATION OF BUSINESSES AND INDIVIDUALS:

The bill would impose stronger obligations on businesses handling
private data of customers, regarding security and proper notification of
breaches.

 
IMPACT ON FINES, IMPRISONMENT, FORFEITURE OF RIGHTS, OR OTHER PENAL
SANCTIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect January 1, 2018.

2017-S6933 - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6933
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             November 1, 2017
                                ___________
 
 Introduced  by Sen. CARLUCCI -- read twice and ordered printed, and when
   printed to be committed to the Committee on Rules
 
 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:
 
   Section 1. This act shall be known and may be cited as the  "New  York
 Data Security Act".
   §  2. The article heading of article 39-F of the general business law,
 as added by chapter 442 of the laws of  2005,  is  amended  to  read  as
 follows:
            NOTIFICATION OF UNAUTHORIZED ACQUISITION OF PRIVATE
                  INFORMATION; DATA SECURITY PROTECTIONS
   §  3.  Subdivisions  1,  2,  3, 5, 6, 7 and 8 of section 899-aa of the
 general business law, as added by chapter 442 of the laws of 2005, para-
 graph (c) of subdivision 1, paragraph (a) of subdivision 6 and  subdivi-
 sion  8  as amended by chapter 491 of the laws of 2005 and paragraph (a)
 of subdivision 8 as amended by section 6 of part N of chapter 55 of  the
 laws  of 2013, are amended and a new subdivision 5-a is added to read as
 follows:
   1. As used in this section, the following terms shall have the follow-
 ing meanings:
   (a) "Personal information" shall mean  any  information  concerning  a
 natural  person  which, because of name, number, personal mark, or other
 identifier, can be used to identify such natural person;
   (b) "Private information" shall mean EITHER: (I) personal  information
 consisting of any information in combination with any one or more of the
 following  data  elements,  when  either the personal information or the
 data element is not encrypted, or encrypted with an encryption key  that
 has also been ACCESSED OR acquired:
   (1) social security number;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD13619-04-7

 S. 6933                             2
 
   (2)  driver's license number or non-driver identification card number;
 [or]
   (3)  account  number, credit or debit card number, in combination with
 any required security code, access code, [or] password OR OTHER INFORMA-
 TION that would permit access to an individual's financial account;
   (4) ACCOUNT NUMBER, CREDIT OR  DEBIT  CARD  NUMBER,  IF  CIRCUMSTANCES
 EXIST WHEREIN SUCH NUMBER COULD BE USED TO ACCESS AN INDIVIDUAL'S FINAN-
 CIAL  ACCOUNT WITHOUT ADDITIONAL IDENTIFYING INFORMATION, SECURITY CODE,
 ACCESS CODE, OR PASSWORD; OR
   (5) BIOMETRIC INFORMATION, MEANING DATA GENERATED BY  AUTOMATIC  MEAS-
 UREMENTS  OF AN INDIVIDUAL'S PHYSICAL CHARACTERISTICS, WHICH ARE USED TO
 AUTHENTICATE THE INDIVIDUAL'S IDENTITY;
   (II) A USER NAME OR E-MAIL ADDRESS IN COMBINATION WITH A  PASSWORD  OR
 SECURITY  QUESTION  AND  ANSWER  THAT  WOULD  PERMIT ACCESS TO AN ONLINE
 ACCOUNT; OR
   (III) ANY UNSECURED PROTECTED HEALTH INFORMATION HELD  BY  A  "COVERED
 ENTITY"  AS DEFINED IN THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABIL-
 ITY ACT OF 1996 (45 C.F.R.  PTS. 160, 162, 164), AS AMENDED FROM TIME TO
 TIME.
   "Private information" does not include publicly available  information
 which  is  lawfully  made  available to the general public from federal,
 state, or local government records.
   (c) "Breach of the security of the  system"  shall  mean  unauthorized
 ACCESS  TO  OR acquisition OF, or ACCESS TO OR acquisition without valid
 authorization, of  computerized  data  that  compromises  the  security,
 confidentiality,  or  integrity  of [personal] PRIVATE information main-
 tained  by  a  business.  Good  faith  ACCESS  TO,  OR  acquisition   of
 [personal],  PRIVATE information by an employee or agent of the business
 for the purposes of the business is not a breach of the security of  the
 system,  provided that the private information is not used or subject to
 unauthorized disclosure.
   IN DETERMINING WHETHER INFORMATION HAS BEEN ACCESSED, OR IS REASONABLY
 BELIEVED TO HAVE BEEN ACCESSED, BY AN UNAUTHORIZED PERSON  OR  A  PERSON
 WITHOUT  VALID  AUTHORIZATION,  SUCH  BUSINESS MAY CONSIDER, AMONG OTHER
 FACTORS, INDICATIONS THAT THE INFORMATION WAS VIEWED, COMMUNICATED WITH,
 USED, OR ALTERED BY A PERSON WITHOUT VALID AUTHORIZATION OR BY AN  UNAU-
 THORIZED PERSON.
   In determining whether information has been acquired, or is reasonably
 believed  to  have  been acquired, by an unauthorized person or a person
 without valid authorization, such business may  consider  the  following
 factors, among others:
   (1) indications that the information is in the physical possession and
 control  of  A  PERSON WITHOUT VALID AUTHORIZATION OR BY an unauthorized
 person, such as a lost or stolen computer  or  other  device  containing
 information; or
   (2) indications that the information has been downloaded or copied; or
   (3)  indications  that  the  information  was used by A PERSON WITHOUT
 VALID AUTHORIZATION  OR  an  unauthorized  person,  such  as  fraudulent
 accounts opened or instances of identity theft reported.
   (d) "Consumer reporting agency" shall mean any person which, for mone-
 tary  fees, dues, or on a cooperative nonprofit basis, regularly engages
 in whole or in part in the practice of assembling or evaluating consumer
 credit information or other information on consumers for the purpose  of
 furnishing  consumer  reports to third parties, and which uses any means
 or facility of interstate commerce  for  the  purpose  of  preparing  or
 furnishing consumer reports. A list of consumer reporting agencies shall

 S. 6933                             3
 
 be  compiled by the state attorney general and furnished upon request to
 any person or business required to make a notification under subdivision
 two of this section.
   (E) "CREDIT CARD" SHALL MEAN ANY CARD OR OTHER CREDIT DEVICE ISSUED BY
 A  FINANCIAL  INSTITUTION  TO  A  CONSUMER  FOR THE PURPOSE OF PROVIDING
 MONEY, PROPERTY, LABOR OR SERVICES ON CREDIT.
   (F) "DEBIT CARD" SHALL MEAN ANY CARD  OR  OTHER  DEVICE  ISSUED  BY  A
 FINANCIAL  INSTITUTION TO A CONSUMER FOR USE IN INITIATING AN ELECTRONIC
 FUND TRANSFER FROM THE ACCOUNT OF THE CONSUMER AT SUCH FINANCIAL  INSTI-
 TUTION,  FOR  THE  PURPOSE  OF  TRANSFERRING  MONEY  BETWEEN ACCOUNTS OR
 OBTAINING MONEY, PROPERTY, LABOR OR SERVICES.
   2. Any person or business which [conducts business in New York  state,
 and  which]  owns  or  licenses computerized data which includes private
 information shall disclose any breach of  the  security  of  the  system
 following discovery or notification of the breach in the security of the
 system  to any resident of New York state whose private information was,
 or is reasonably believed to have been, ACCESSED OR acquired by a person
 without valid authorization OR BY AN UNAUTHORIZED PERSON.   The  disclo-
 sure  shall  be  made  in  the  most expedient time possible and without
 unreasonable delay, consistent with the legitimate needs of law enforce-
 ment, as provided in subdivision four of this section, or  any  measures
 necessary  to determine the scope of the breach and restore the [reason-
 able] integrity of the system.
   3. Any person or business  which  maintains  computerized  data  which
 includes  private information which such person or business does not own
 shall notify the owner or licensee of the information of any  breach  of
 the  security  of  the  system  immediately  following discovery, if the
 private information  was,  or  is  reasonably  believed  to  have  been,
 acquired  by  a person without valid authorization OR BY AN UNAUTHORIZED
 PERSON.
   5. The notice required by this section shall be directly  provided  to
 the affected persons by one of the following methods:
   (a) written notice;
   (b)  electronic  notice,  provided  that  the person to whom notice is
 required has expressly consented to receiving said notice in  electronic
 form  and a log of each such notification is kept by the person or busi-
 ness who notifies affected  persons  in  such  form;  provided  further,
 however,  that  in no case shall any person or business require a person
 to consent to accepting said notice in  said  form  as  a  condition  of
 establishing any business relationship or engaging in any transaction.
   (c)  telephone notification provided that a log of each such notifica-
 tion is kept by the person or business who notifies affected persons; or
   (d) substitute notice, if a business demonstrates to the state  attor-
 ney  general  that the cost of providing notice would exceed two hundred
 fifty thousand dollars, or that the affected class of subject persons to
 be notified exceeds five hundred thousand, or  such  business  does  not
 have  sufficient contact information. Substitute notice shall consist of
 all of the following:
   (1) e-mail notice when such business has an  e-mail  address  for  the
 subject  persons,  EXCEPT IF THE BREACHED INFORMATION INCLUDES AN E-MAIL
 ADDRESS IN COMBINATION WITH A PASSWORD OR SECURITY QUESTION  AND  ANSWER
 THAT WOULD PERMIT ACCESS TO THE ONLINE ACCOUNT, IN WHICH CASE THE PERSON
 OR BUSINESS SHALL INSTEAD PROVIDE CLEAR AND CONSPICUOUS NOTICE DELIVERED
 TO  THE  CONSUMER  ONLINE  WHEN  THE CONSUMER IS CONNECTED TO THE ONLINE
 ACCOUNT FROM AN INTERNET PROTOCOL ADDRESS OR  FROM  AN  ONLINE  LOCATION

 S. 6933                             4
 
 WHICH  THE  PERSON  OR  BUSINESS  KNOWS THE CONSUMER CUSTOMARILY USES TO
 ACCESS THE ONLINE ACCOUNT;
   (2)  conspicuous  posting  of  the  notice on such business's web site
 page, if such business maintains one; and
   (3) notification to major statewide media.
   5-A. ANY CREDIT OR DEBIT CARD ISSUER THAT ISSUES A NEW CREDIT OR DEBIT
 CARD AS A RESULT OF A BREACH OF THE SECURITY OF THE SYSTEM  PURSUANT  TO
 PARAGRAPH  (C)  OF  SUBDIVISION  ONE  OF THIS SECTION, SHALL PROVIDE THE
 CONSUMER NOTICE THAT THE ISSUANCE OF THE  REPLACEMENT  CREDIT  OR  DEBIT
 CARD  IS  DUE  TO  A  POTENTIAL  COMPROMISE OF THE PRIOR CARD ABSENT ANY
 EVIDENCE OF ACTUAL OR POTENTIAL UNAUTHORIZED USE OF SUCH CREDIT OR DEBIT
 CARD OR OTHER CIRCUMSTANCES PRECIPITATING THE ISSUANCE OF A  REPLACEMENT
 CARD.
   6.  (a)  whenever  the  attorney  general  shall believe from evidence
 satisfactory to him that there is a violation of  this  article  he  may
 bring  an action in the name and on behalf of the people of the state of
 New York, in a court of justice having jurisdiction to issue an  injunc-
 tion,  to  enjoin  and  restrain the continuation of such violation.  In
 such action, preliminary relief may be granted under article sixty-three
 of the civil practice law and rules. In such action the court may  award
 damages  for  actual  costs  or  losses incurred by a person entitled to
 notice pursuant to this article, if notification  was  not  provided  to
 such  person pursuant to this article, including consequential financial
 losses. Whenever the court shall determine in such action that a  person
 or business violated this article knowingly or recklessly, the court may
 impose  a civil penalty of the greater of five thousand dollars or up to
 [ten] TWENTY dollars per instance of failed notification, provided  that
 the  latter  amount  shall  not  exceed [one] TWO hundred fifty thousand
 dollars.
   (b) the remedies provided by this section shall be in addition to  any
 other lawful remedy available.
   (c)  no  action  may  be  brought under the provisions of this section
 unless such action is commenced within [two] THREE  years  [immediately]
 after EITHER the date [of the act complained of or the date of discovery
 of  such  act]  ON  WHICH  THE  ATTORNEY  GENERAL  BECAME  AWARE  OF THE
 VIOLATION, OR THE DATE OF NOTICE  SENT  PURSUANT  TO  PARAGRAPH  (A)  OF
 SUBDIVISION EIGHT OF THIS SECTION, WHICHEVER OCCURS FIRST.
   7.  Regardless  of the method by which notice is provided, such notice
 shall include contact information for the person or business making  the
 notification,  THE  TELEPHONE NUMBERS AND WEBSITES OF THE RELEVANT STATE
 AND FEDERAL AGENCIES THAT PROVIDE INFORMATION REGARDING SECURITY  BREACH
 RESPONSE AND IDENTITY THEFT PREVENTION AND PROTECTION INFORMATION, and a
 description  of  the categories of information that were, or are reason-
 ably believed to have been, ACCESSED OR acquired  by  a  person  without
 valid  authorization  OR BY AN UNAUTHORIZED PERSON, including specifica-
 tion of which of the elements of personal information and private infor-
 mation were, or are reasonably believed to have  been,  so  ACCESSED  OR
 acquired.
   8.  (a)  In  the event that any New York residents are to be notified,
 the person or business shall notify  the  state  attorney  general,  the
 department  of state and the [division of state police] OFFICE OF INFOR-
 MATION TECHNOLOGY SERVICES as to the timing, content and distribution of
 the notices and approximate number of affected persons AND SHALL PROVIDE
 A COPY OF THE TEMPLATE OF THE NOTICE SENT TO  AFFECTED  PERSONS.    Such
 notice  shall be made without delaying notice to affected New York resi-
 dents.

 S. 6933                             5
 
   (b) In the event that more than five thousand New York  residents  are
 to  be  notified  at  one time, the person or business shall also notify
 consumer reporting agencies as to the timing, content  and  distribution
 of  the  notices and approximate number of affected persons. Such notice
 shall be made without delaying notice to affected New York residents.
   §  4. The general business law is amended by adding a new section 899-
 bb to read as follows:
   § 899-BB. DATA SECURITY PROTECTIONS. 1.  DEFINITIONS.  (A)  "COMPLIANT
 REGULATED  ENTITY" SHALL MEAN ANY PERSON OR BUSINESS THAT IS SUBJECT TO,
 AND IN COMPLIANCE WITH, ANY OF THE FOLLOWING DATA SECURITY REQUIREMENTS:
   (I) REGULATIONS PROMULGATED PURSUANT TO TITLE V OF THE FEDERAL  GRAMM-
 LEACH-BLILEY ACT (15 U.S.C. 6801 TO 6809), AS AMENDED FROM TIME TO TIME;
   (II)  REGULATIONS  IMPLEMENTING  THE  HEALTH INSURANCE PORTABILITY AND
 ACCOUNTABILITY ACT OF 1996 (45 C.F.R. PARTS 160  AND  164),  AS  AMENDED
 FROM  TIME  TO  TIME, AND THE HEALTH INFORMATION TECHNOLOGY FOR ECONOMIC
 AND CLINICAL HEALTH ACT, AS AMENDED FROM TIME TO TIME;
   (III) PART FIVE HUNDRED OF TITLE TWENTY-THREE OF THE OFFICIAL COMPILA-
 TION OF CODES, RULES AND REGULATIONS  OF  THE  STATE  OF  NEW  YORK,  AS
 AMENDED FROM TIME TO TIME; OR
   (IV)  ANY  OTHER DATA SECURITY RULES AND REGULATIONS OF, AND THE STAT-
 UTES ADMINISTERED BY, ANY OFFICIAL DEPARTMENT, DIVISION,  COMMISSION  OR
 AGENCY  OF THE FEDERAL OR NEW YORK STATE GOVERNMENT AS SUCH RULES, REGU-
 LATIONS OR  STATUTES  ARE  INTERPRETED  BY  SUCH  DEPARTMENT,  DIVISION,
 COMMISSION OR AGENCY OR BY THE FEDERAL OR NEW YORK STATE COURTS.
   (B)  "CERTIFIED  COMPLIANT  ENTITY"  SHALL MEAN ANY PERSON OR BUSINESS
 THAT:
   (I) IS COMPLIANT WITH ANY OF THE DATA SECURITY REQUIREMENTS  IN  PARA-
 GRAPH (A) OF THIS SUBDIVISION OR WITH THE MOST UP TO DATE VERSION OF THE
 INTERNATIONAL  STANDARDS ORGANIZATION STANDARD 27002 OR WITH THE MOST UP
 TO DATE VERSION  OF  NATIONAL  INSTITUTE  OF  STANDARDS  AND  TECHNOLOGY
 SPECIAL PUBLICATION 800-53, AS IT RELATES TO THE PROTECTION OF ELECTRON-
 IC PRIVATE INFORMATION; AND
   (II)  HAS SUCH COMPLIANCE CERTIFIED ANNUALLY BY AN INDEPENDENT, THIRD-
 PARTY ASSESSMENT ORGANIZATION THAT IS AUTHORIZED TO PROVIDE SUCH CERTIF-
 ICATIONS BY THE OFFICIAL DEPARTMENT, DIVISION, COMMISSIONER OR AGENCY OR
 STANDARDS BODY THAT PROMULGATES THE DATA SECURITY REGULATIONS OR  STAND-
 ARDS BEING CERTIFIED.
   (C)  "PRIVATE  INFORMATION"  SHALL HAVE THE SAME MEANING AS DEFINED IN
 SECTION EIGHT HUNDRED NINETY-NINE-AA OF THIS ARTICLE.
   (D) "SMALL BUSINESS" SHALL MEAN ANY PERSON OR BUSINESS WITH (I)  FEWER
 THAN  FIFTY  EMPLOYEES,  INCLUDING  ANY  INDEPENDENT CONTRACTORS, OF THE
 BUSINESS; (II) LESS THAN THREE MILLION DOLLARS IN GROSS  ANNUAL  REVENUE
 IN  EACH OF THE LAST THREE FISCAL YEARS; OR (III) LESS THAN FIVE MILLION
 DOLLARS IN YEAR-END TOTAL ASSETS, CALCULATED IN ACCORDANCE WITH GENERAL-
 LY ACCEPTED ACCOUNTING PRINCIPLES.
   2. REASONABLE SECURITY. (A)  ANY  PERSON  OR  BUSINESS  THAT  OWNS  OR
 LICENSES COMPUTERIZED DATA WHICH INCLUDES PRIVATE INFORMATION OF A RESI-
 DENT  OF NEW YORK SHALL DEVELOP, IMPLEMENT AND MAINTAIN REASONABLE SAFE-
 GUARDS TO PROTECT THE SECURITY, CONFIDENTIALITY  AND  INTEGRITY  OF  THE
 PRIVATE INFORMATION INCLUDING, BUT NOT LIMITED TO, DISPOSAL OF DATA.
   (B)  SMALL  BUSINESSES SUBJECT TO THE REQUIREMENTS OF PARAGRAPH (A) OF
 THIS SUBDIVISION SHALL BE DEEMED TO BE IN COMPLIANCE WITH SUCH  REQUIRE-
 MENT  IF  THEY  IMPLEMENT  AND  MAINTAIN  REASONABLE SAFEGUARDS THAT ARE
 APPROPRIATE TO THE SIZE AND COMPLEXITY OF THE SMALL BUSINESS TO  PROTECT
 THE  SECURITY,  CONFIDENTIALITY AND INTEGRITY OF THE PRIVATE INFORMATION
 INCLUDING, BUT NOT LIMITED TO, DISPOSAL OF DATA.

 S. 6933                             6
 
   (C) A PERSON OR BUSINESS SHALL BE DEEMED  TO  BE  IN  COMPLIANCE  WITH
 PARAGRAPHS (A) AND (B) OF THIS SUBDIVISION IF IT EITHER:
   (I)  IS  A COMPLIANT REGULATED ENTITY AS DEFINED IN SUBDIVISION ONE OF
 THIS SECTION;
   (II) IS A CERTIFIED COMPLIANT ENTITY AS DEFINED IN SUBDIVISION ONE  OF
 THIS SECTION; OR
   (III) IMPLEMENTS A DATA SECURITY PROGRAM THAT INCLUDES THE FOLLOWING:
   (A)  ADMINISTRATIVE  SAFEGUARDS  SUCH  AS  THE FOLLOWING, IN WHICH THE
 PERSON OR BUSINESS:
   (1) DESIGNATES ONE  OR  MORE  EMPLOYEES  TO  COORDINATE  THE  SECURITY
 PROGRAM;
   (2) IDENTIFIES REASONABLY FORESEEABLE INTERNAL AND EXTERNAL RISKS;
   (3)  ASSESSES  THE  SUFFICIENCY  OF SAFEGUARDS IN PLACE TO CONTROL THE
 IDENTIFIED RISKS;
   (4) TRAINS AND MANAGES EMPLOYEES IN THE SECURITY PROGRAM PRACTICES AND
 PROCEDURES;
   (5) SELECTS SERVICE PROVIDERS CAPABLE OF MAINTAINING APPROPRIATE SAFE-
 GUARDS, AND REQUIRES THOSE SAFEGUARDS BY CONTRACT; AND
   (6) ADJUSTS THE SECURITY PROGRAM IN LIGHT OF BUSINESS CHANGES  OR  NEW
 CIRCUMSTANCES; AND
   (B) TECHNICAL SAFEGUARDS SUCH AS THE FOLLOWING, IN WHICH THE PERSON OR
 BUSINESS:
   (1) ASSESSES RISKS IN NETWORK AND SOFTWARE DESIGN;
   (2)  ASSESSES  RISKS IN INFORMATION PROCESSING, TRANSMISSION AND STOR-
 AGE;
   (3) DETECTS, PREVENTS AND RESPONDS TO ATTACKS OR SYSTEM FAILURES; AND
   (4) REGULARLY TESTS AND MONITORS THE EFFECTIVENESS  OF  KEY  CONTROLS,
 SYSTEMS AND PROCEDURES; AND
   (C)  PHYSICAL SAFEGUARDS SUCH AS THE FOLLOWING, IN WHICH THE PERSON OR
 BUSINESS:
   (1) ASSESSES RISKS OF INFORMATION STORAGE AND DISPOSAL;
   (2) DETECTS, PREVENTS AND RESPONDS TO INTRUSIONS;
   (3) PROTECTS AGAINST UNAUTHORIZED ACCESS TO OR USE OF PRIVATE INFORMA-
 TION DURING OR AFTER THE COLLECTION, TRANSPORTATION AND  DESTRUCTION  OR
 DISPOSAL OF THE INFORMATION; AND
   (4) DISPOSES OF PRIVATE INFORMATION WITHIN A REASONABLE AMOUNT OF TIME
 AFTER IT IS NO LONGER NEEDED FOR BUSINESS PURPOSES BY ERASING ELECTRONIC
 MEDIA SO THAT THE INFORMATION CANNOT BE READ OR RECONSTRUCTED.
   (D)  ANY  PERSON  OR BUSINESS REQUIRED TO COMPLY WITH PARAGRAPH (A) OR
 (B) OF THIS SUBDIVISION THAT FAILS  TO  COMPLY  WITH  SUCH  SUBDIVISIONS
 SHALL  BE  DEEMED  TO  HAVE VIOLATED SECTION THREE HUNDRED FORTY-NINE OF
 THIS CHAPTER, AND THE ATTORNEY GENERAL MAY BRING AN ACTION IN  THE  NAME
 AND  ON  BEHALF  OF  THE  PEOPLE OF THE STATE OF NEW YORK TO ENJOIN SUCH
 VIOLATIONS AND TO OBTAIN CIVIL PENALTIES  UNDER  SECTION  THREE  HUNDRED
 FIFTY-D OF THIS CHAPTER.
   (E) NOTHING IN THIS SECTION SHALL CREATE A PRIVATE RIGHT OF ACTION.
   3.  SAFE HARBOR FOR CERTIFIED COMPLIANT ENTITIES.  A CERTIFIED COMPLI-
 ANT ENTITY SHALL NOT BE SUBJECT TO AN ENFORCEMENT ACTION BY THE ATTORNEY
 GENERAL PURSUANT TO SUBDIVISION TWO OF THIS SECTION IF:
   (A) IT PROVIDES COPIES OF ITS  CERTIFICATIONS  OF  COMPLIANCE  TO  THE
 ATTORNEY GENERAL; AND
   (B)  THERE  IS  NO  EVIDENCE OF WILLFUL MISCONDUCT, BAD FAITH OR GROSS
 NEGLIGENCE.
   § 5. Paragraph (a) of subdivision 1 and subdivisions 2, 3, 6, 7 and  8
 of section 208 of the state technology law, paragraph (a) of subdivision
 1  and subdivisions 3 and 8 as added by chapter 442 of the laws of 2005,

 S. 6933                             7
 
 subdivision 2 and paragraph (a) of subdivision 7 as amended by section 5
 of part N of chapter 55 of the laws of 2013 and subdivisions 6 and 7  as
 amended  by  chapter  491  of  the  laws of 2005, are amended to read as
 follows:
   (a)  "Private information" shall mean EITHER: (I) personal information
 CONSISTING OF ANY INFORMATION in combination with any one or more of the
 following data elements, when either the  personal  information  or  the
 data  element  is not encrypted or encrypted with an encryption key that
 has also been ACCESSED OR acquired:
   (1) social security number;
   (2) driver's license number or non-driver identification card  number;
 [or]
   (3)  account  number,  OR  credit or debit card number, in combination
 with any required IDENTIFYING INFORMATION, security code,  access  code,
 or  password  which  would  permit  access  to an individual's financial
 account;
   (4) ACCOUNT NUMBER, OR CREDIT OR DEBIT CARD NUMBER,  IF  CIRCUMSTANCES
 EXIST  WHEREIN  SUCH  NUMBER  COULD BE USED TO ACCESS TO AN INDIVIDUAL'S
 FINANCIAL ACCOUNT WITHOUT ADDITIONAL IDENTIFYING  INFORMATION,  SECURITY
 CODE, ACCESS CODE, OR PASSWORD; OR
   (5)  BIOMETRIC  INFORMATION, MEANING DATA GENERATED BY AUTOMATIC MEAS-
 UREMENTS OF AN INDIVIDUAL'S PHYSICAL CHARACTERISTICS, WHICH ARE USED  TO
 AUTHENTICATE THE INDIVIDUAL'S IDENTITY;
   (II)  A  USER NAME OR E-MAIL ADDRESS IN COMBINATION WITH A PASSWORD OR
 SECURITY QUESTION AND ANSWER THAT  WOULD  PERMIT  ACCESS  TO  AN  ONLINE
 ACCOUNT; OR
   (III)  ANY  UNSECURED  PROTECTED HEALTH INFORMATION HELD BY A "COVERED
 ENTITY" AS DEFINED IN THE HEALTH INSURANCE PORTABILITY AND  ACCOUNTABIL-
 ITY ACT OF 1996 (45 C.F.R.  PTS. 160, 162, 164), AS AMENDED FROM TIME TO
 TIME.
   "Private  information" does not include publicly available information
 that is lawfully made available to  the  general  public  from  federal,
 state, or local government records.
   2.  Any  state  entity  that  owns  or licenses computerized data that
 includes private information shall disclose any breach of  the  security
 of  the  system following discovery or notification of the breach in the
 security of the system to any resident of New York state  whose  private
 information  was,  or  is  reasonably believed to have been, ACCESSED OR
 acquired by a person without  valid  authorization  OR  AN  UNAUTHORIZED
 PERSON.   The disclosure shall be made in the most expedient time possi-
 ble and without unreasonable delay, consistent with the legitimate needs
 of law enforcement, as provided in subdivision four of this section,  or
 any  measures necessary to determine the scope of the breach and restore
 the [reasonable] integrity of the data system.  The state  entity  shall
 consult  with  the  state  office  of information technology services to
 determine the scope of the breach and restoration measures. WITHIN NINE-
 TY DAYS OF THE NOTICE OF THE BREACH, THE OFFICE OF INFORMATION TECHNOLO-
 GY SERVICES SHALL DELIVER A REPORT ON THE SCOPE OF THE BREACH AND RECOM-
 MENDATIONS TO RESTORE AND IMPROVE THE SECURITY  OF  THE  SYSTEM  TO  THE
 STATE ENTITY.
   3.  Any  state  entity  that maintains computerized data that includes
 private information which such agency does  not  own  shall  notify  the
 owner  or  licensee  of the information of any breach of the security of
 the system immediately following discovery, if the  private  information
 was,  or is reasonably believed to have been, acquired by a person with-
 out valid authorization OR AN UNAUTHORIZED PERSON.

 S. 6933                             8
 
   6. Regardless of the method by which notice is provided,  such  notice
 shall  include  contact  information  for  the  state  entity making the
 notification, THE TELEPHONE NUMBERS AND WEBSITES OF THE  RELEVANT  STATE
 AND  FEDERAL AGENCIES THAT PROVIDE INFORMATION REGARDING SECURITY BREACH
 RESPONSE  AND IDENTITY THEFT PREVENTION AND PROTECTION INFORMATION and a
 description of the categories of information that were, or  are  reason-
 ably  believed  to  have  been, ACCESSED OR acquired by a person without
 valid authorization OR AN UNAUTHORIZED PERSON,  including  specification
 of which of the elements of personal information and private information
 were, or are reasonably believed to have been, so ACCESSED OR acquired.
   7.  (a)  In  the event that any New York residents are to be notified,
 the state entity shall notify the state attorney general, the department
 of state and the state office of information technology services  as  to
 the  timing,  content  and  distribution  of the notices and approximate
 number of affected persons AND PROVIDE A COPY OF  THE  TEMPLATE  OF  THE
 NOTICE  SENT  TO  AFFECTED  PERSONS.   Such notice shall be made without
 delaying notice to affected New York residents.
   (b) In the event that more than five thousand New York  residents  are
 to  be notified at one time, the state entity shall also notify consumer
 reporting agencies as to the timing, content  and  distribution  of  the
 notices and approximate number of affected persons. Such notice shall be
 made without delaying notice to affected New York residents.
   8.  THE STATE OFFICE OF INFORMATION TECHNOLOGY SERVICES SHALL DEVELOP,
 UPDATE AND PROVIDE REGULAR TRAINING TO ALL STATE  ENTITIES  RELATING  TO
 BEST  PRACTICES  FOR  THE  PREVENTION OF A BREACH OF THE SECURITY OF THE
 SYSTEM.
    9. Any entity listed in subparagraph two of paragraph (c) of subdivi-
 sion one of this section shall adopt a notification policy no more  than
 one  hundred  twenty days after the effective date of this section. Such
 entity may develop a notification policy which is consistent  with  this
 section  or  alternatively  shall  adopt a local law which is consistent
 with this section.
   § 6. This act shall take effect January 1, 2018.

co-Sponsors

2017-S6933A - Details

See Assembly Version of this Bill:: A8884
Current Committee:: Senate Finance
Law Section:: General Business Law
Laws Affected:: Amd Art 39-F Art Head, §899-aa, add §899-bb, Gen Bus L; amd §208, St Tech L
Versions Introduced in 2019-2020 Legislative Session:: S133, S5575

2017-S6933A - Summary

Relates to notification of a security breach; includes credit and debit cards; increases civil penalties.

2017-S6933A - Sponsor Memo

                                
 
BILL NUMBER: S6933A

SPONSOR: CARLUCCI
 
TITLE OF BILL:

An act to amend the general business law and the state technology law,
in relation to notification of a security breach

 
PURPOSE:

New York's data breach notification law needs to be updated keep pace
with current technology. This bill broadens the scope of information
covered under the notification law and updates the notification require-
ments when there has been a breach of data. It also broadens the defi-
nition of a data breach to include an unauthorized person gaining access
to information. It also requires reasonable data security, provides
standards tailored to the size of a business, and provides protections
from liability for certain entities.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 of the bill names the act.

Section 2 of the bill amends the title of article 39-F of the General
Business Law.

Section 3 of the bill amends section 899-aa of the General Business Law.
The amendments would:

*update the notifications section of the General Business Law by adding
biometric data, email addresses or user names in combination with a
password or security question answer, and protected health information
held by a "covered entity" to the private information definition;

*update the notifications section of the General Business Law by adding
unauthorized access to the private information to the definitions of
"private information" and "breach of the security of the system";

*update the notification requirement by applying it to any person or
entity with private information of a New York resident, not just to
those that "conduct business" in New York State;

*add definitions for the terms credit card and debit card;

*correct typos and inconsistencies in language to clarify that breaches
of private information only (and not personal information) trigger
notice obligations and to make consistent all references to compromise
by an unauthorized person or a person without valid authorization;

*authorize businesses in certain circumstances to notify the consumer
via email of the breach and if the consumer's email is believed to have
been compromised authorize the business to use other electronic methods
to notify the consumer;

*require that, if a business is sending out a new credit or debit card
to a consumer, the consumer be notified that the card is on its way;
*outline penalties for businesses that fail to provide notice to consum-
ers of a breach and the limitations period for the attorney general to
act on any failure;
*require certain information to be included in the notice that would
direct consumers to federal and state data security prevention entities
and require businesses to send a template of their notice to consumers
to the attorney general and the Office of Information Technology
Services; and,

*task the Department of State with receiving and responding to data
breach complaints and with informing the public of data security and
breach prevention techniques.

Section 4 of the bill creates a new section 899-bb of the General Busi-
ness Law that would:

*require reasonable data security for private information, with a more
flexible standard for small businesses, without creating new require-
ments for entities subject to existing or future regulations by any
federal or other New York State government entity, and while providing
safe harbor from enforcement for entities that take steps to verify
their compliance with other existing data security regulations or stand-
ards; and

*deem failure to provide required reasonable data security to be a
violation of section 349 of the General Business Law, permitting the
attorney general to bring suit but not any private plaintiff.

Section 5 of the bill amends the State Technology Law. The amendments
would:

*include the same terms as above in the definition of private informa-
tion;

*state that should a data breach occur in a State entity the Office of
Information Technology Services shall deliver a report on the scope of
the breach to the entity affected;

*require that an entity shall notify individuals affected by the data
breach as quickly as possible; and,

*task the office of information technology services to develop and
provide regular trainings to all entities on preventing data breaches.

Section 6 of the bill sets forth the effective date.

 
JUSTIFICATION:

New York's current data breach notification law needs to be updated to
keep pace with individuals' use and dissemination of private informa-
tion. New York also needs to join the increasing number of states that
require reasonable data security protections, without imposing duplicate
obligations on those already subject to other federal or New York State
data security regulations and without imposing excessive costs on small
business, while providing safe harbor from enforcement for entities that
take steps to verify their compliance with other existing data security
regulations or standards. This bill expands the scope of information
subject to the current data breach notification law to include biometric
information, email addresses and their corresponding passwords or secu-
rity questions and answers, and protected health information as defined
under HIPAA. It broadens the definition of a data breach to include
unauthorized access to private information. It applies the notification
requirement to any person or entity with private information of a New
York resident, not just to those that conduct business in New York
State. It also updates the notification procedures companies and state
entities must follow when there has been a breach of private informa-
tion. It also creates reasonable data security requirements tailored to
the size of a business and provides protections from liability for
certain entities that take steps to verify their safeguarding of private
information.

 
PRIOR LEGISLATIVE HISTORY:

 
FISCAL IMPACT ON THE STATE:

None.

 
FISCAL IMPACT ON LOCALITIES:

None.

 
IMPACT ON THE REGULATION OF BUSINESSES AND INDIVIDUALS:

The bill would impose stronger obligations on businesses handling
private data of customers, regarding security and proper notification of
breaches.

 
IMPACT ON FINES, IMPRISONMENT, FORFEITURE OF RIGHTS, OR OTHER PENAL
SANCTIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect January 1, 2018.

2017-S6933A - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  6933--A
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             November 1, 2017
                                ___________
 
 Introduced  by Sen. CARLUCCI -- read twice and ordered printed, and when
   printed to be committed to the Committee on Rules  --  recommitted  to
   the Committee on Consumer Protection in accordance with Senate Rule 6,
   sec.  8  --  committee  discharged, bill amended, ordered reprinted as
   amended and recommitted 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:
 
   Section 1. This act shall be known and may be cited as the  "New  York
 Data Security Act".
   §  2. The article heading of article 39-F of the general business law,
 as added by chapter 442 of the laws of  2005,  is  amended  to  read  as
 follows:
            NOTIFICATION OF UNAUTHORIZED ACQUISITION OF PRIVATE
                  INFORMATION; DATA SECURITY PROTECTIONS
   §  3.  Subdivisions  1,  2,  3, 5, 6, 7 and 8 of section 899-aa of the
 general business law, as added by chapter 442 of the laws of 2005, para-
 graph (c) of subdivision 1, paragraph (a) of subdivision 6 and  subdivi-
 sion  8  as amended by chapter 491 of the laws of 2005 and paragraph (a)
 of subdivision 8 as amended by section 6 of part N of chapter 55 of  the
 laws  of 2013, are amended and a new subdivision 5-a is added to read as
 follows:
   1. As used in this section, the following terms shall have the follow-
 ing meanings:
   (a) "Personal information" shall mean  any  information  concerning  a
 natural  person  which, because of name, number, personal mark, or other
 identifier, can be used to identify such natural person;
   (b) "Private information" shall mean EITHER: (I) personal  information
 consisting of any information in combination with any one or more of the
 following  data  elements,  when  either the personal information or the
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD13619-05-8

 S. 6933--A                          2
 
 data element is not encrypted, or encrypted with an encryption key  that
 has also been ACCESSED OR acquired:
   (1) social security number;
   (2)  driver's license number or non-driver identification card number;
 [or]
   (3) account number, credit or debit card number, in  combination  with
 any required security code, access code, [or] password OR OTHER INFORMA-
 TION that would permit access to an individual's financial account;
   (4)  ACCOUNT  NUMBER,  CREDIT  OR  DEBIT CARD NUMBER, IF CIRCUMSTANCES
 EXIST WHEREIN SUCH NUMBER COULD BE USED TO ACCESS AN INDIVIDUAL'S FINAN-
 CIAL ACCOUNT WITHOUT ADDITIONAL IDENTIFYING INFORMATION, SECURITY  CODE,
 ACCESS CODE, OR PASSWORD; OR
   (5)  BIOMETRIC  INFORMATION, MEANING DATA GENERATED BY AUTOMATIC MEAS-
 UREMENTS OF AN INDIVIDUAL'S PHYSICAL CHARACTERISTICS, WHICH ARE USED  TO
 AUTHENTICATE THE INDIVIDUAL'S IDENTITY;
   (II)  A  USER NAME OR E-MAIL ADDRESS IN COMBINATION WITH A PASSWORD OR
 SECURITY QUESTION AND ANSWER THAT  WOULD  PERMIT  ACCESS  TO  AN  ONLINE
 ACCOUNT; OR
   (III)  ANY  UNSECURED  PROTECTED HEALTH INFORMATION HELD BY A "COVERED
 ENTITY" AS DEFINED IN THE HEALTH INSURANCE PORTABILITY AND  ACCOUNTABIL-
 ITY ACT OF 1996 (45 C.F.R.  PTS. 160, 162, 164), AS AMENDED FROM TIME TO
 TIME.
   "Private  information" does not include publicly available information
 which is lawfully made available to the  general  public  from  federal,
 state, or local government records.
   (c)  "Breach  of  the  security of the system" shall mean unauthorized
 ACCESS TO OR acquisition OF, or ACCESS TO OR acquisition  without  valid
 authorization,  of  computerized  data  that  compromises  the security,
 confidentiality, or integrity of [personal]  PRIVATE  information  main-
 tained   by  a  business.  Good  faith  ACCESS  TO,  OR  acquisition  of
 [personal], PRIVATE information by an employee or agent of the  business
 for  the purposes of the business is not a breach of the security of the
 system, provided that the private information is not used or subject  to
 unauthorized disclosure.
   IN DETERMINING WHETHER INFORMATION HAS BEEN ACCESSED, OR IS REASONABLY
 BELIEVED  TO  HAVE  BEEN ACCESSED, BY AN UNAUTHORIZED PERSON OR A PERSON
 WITHOUT VALID AUTHORIZATION, SUCH BUSINESS  MAY  CONSIDER,  AMONG  OTHER
 FACTORS, INDICATIONS THAT THE INFORMATION WAS VIEWED, COMMUNICATED WITH,
 USED,  OR ALTERED BY A PERSON WITHOUT VALID AUTHORIZATION OR BY AN UNAU-
 THORIZED PERSON.
   In determining whether information has been acquired, or is reasonably
 believed to have been acquired, by an unauthorized person  or  a  person
 without  valid  authorization,  such business may consider the following
 factors, among others:
   (1) indications that the information is in the physical possession and
 control of A PERSON WITHOUT VALID AUTHORIZATION OR  BY  an  unauthorized
 person,  such  as  a  lost or stolen computer or other device containing
 information; or
   (2) indications that the information has been downloaded or copied; or
   (3) indications that the information was  used  by  A  PERSON  WITHOUT
 VALID  AUTHORIZATION  OR  an  unauthorized  person,  such  as fraudulent
 accounts opened or instances of identity theft reported.
   (d) "Consumer reporting agency" shall mean any person which, for mone-
 tary fees, dues, or on a cooperative nonprofit basis, regularly  engages
 in whole or in part in the practice of assembling or evaluating consumer
 credit  information or other information on consumers for the purpose of

 S. 6933--A                          3
 
 furnishing consumer reports to third parties, and which uses  any  means
 or  facility  of  interstate  commerce  for  the purpose of preparing or
 furnishing consumer reports. A list of consumer reporting agencies shall
 be  compiled by the state attorney general and furnished upon request to
 any person or business required to make a notification under subdivision
 two of this section.
   (E) "CREDIT CARD" SHALL MEAN ANY CARD OR OTHER CREDIT DEVICE ISSUED BY
 A FINANCIAL INSTITUTION TO A  CONSUMER  FOR  THE  PURPOSE  OF  PROVIDING
 MONEY, PROPERTY, LABOR OR SERVICES ON CREDIT.
   (F)  "DEBIT  CARD"  SHALL  MEAN  ANY  CARD OR OTHER DEVICE ISSUED BY A
 FINANCIAL INSTITUTION TO A CONSUMER FOR USE IN INITIATING AN  ELECTRONIC
 FUND  TRANSFER FROM THE ACCOUNT OF THE CONSUMER AT SUCH FINANCIAL INSTI-
 TUTION, FOR THE  PURPOSE  OF  TRANSFERRING  MONEY  BETWEEN  ACCOUNTS  OR
 OBTAINING MONEY, PROPERTY, LABOR OR SERVICES.
   2.  Any person or business which [conducts business in New York state,
 and which] owns or licenses computerized  data  which  includes  private
 information  shall  disclose  any  breach  of the security of the system
 following discovery or notification of the breach in the security of the
 system to any resident of New York state whose private information  was,
 or is reasonably believed to have been, ACCESSED OR acquired by a person
 without  valid  authorization OR BY AN UNAUTHORIZED PERSON.  The disclo-
 sure shall be made in the  most  expedient  time  possible  and  without
 unreasonable delay, consistent with the legitimate needs of law enforce-
 ment,  as  provided in subdivision four of this section, or any measures
 necessary to determine the scope of the breach and restore the  [reason-
 able] integrity of the system.
   3.  Any  person  or  business  which maintains computerized data which
 includes private information which such person or business does not  own
 shall  notify  the owner or licensee of the information of any breach of
 the security of the  system  immediately  following  discovery,  if  the
 private  information  was,  or  is  reasonably  believed  to  have been,
 acquired by a person without valid authorization OR BY  AN  UNAUTHORIZED
 PERSON.
   5.  The  notice required by this section shall be directly provided to
 the affected persons by one of the following methods:
   (a) written notice;
   (b) electronic notice, provided that the  person  to  whom  notice  is
 required  has expressly consented to receiving said notice in electronic
 form and a log of each such notification is kept by the person or  busi-
 ness  who  notifies  affected  persons  in  such form; provided further,
 however, that in no case shall any person or business require  a  person
 to  consent  to  accepting  said  notice  in said form as a condition of
 establishing any business relationship or engaging in any transaction.
   (c) telephone notification provided that a log of each such  notifica-
 tion is kept by the person or business who notifies affected persons; or
   (d)  substitute notice, if a business demonstrates to the state attor-
 ney general that the cost of providing notice would exceed  two  hundred
 fifty thousand dollars, or that the affected class of subject persons to
 be  notified  exceeds  five  hundred thousand, or such business does not
 have sufficient contact information. Substitute notice shall consist  of
 all of the following:
   (1)  e-mail  notice  when  such business has an e-mail address for the
 subject persons, EXCEPT IF THE BREACHED INFORMATION INCLUDES  AN  E-MAIL
 ADDRESS  IN  COMBINATION WITH A PASSWORD OR SECURITY QUESTION AND ANSWER
 THAT WOULD PERMIT ACCESS TO THE ONLINE ACCOUNT, IN WHICH CASE THE PERSON
 OR BUSINESS SHALL INSTEAD PROVIDE CLEAR AND CONSPICUOUS NOTICE DELIVERED

 S. 6933--A                          4
 
 TO THE CONSUMER ONLINE WHEN THE CONSUMER  IS  CONNECTED  TO  THE  ONLINE
 ACCOUNT  FROM  AN  INTERNET  PROTOCOL ADDRESS OR FROM AN ONLINE LOCATION
 WHICH THE PERSON OR BUSINESS KNOWS  THE  CONSUMER  CUSTOMARILY  USES  TO
 ACCESS THE ONLINE ACCOUNT;
   (2)  conspicuous  posting  of  the  notice on such business's web site
 page, if such business maintains one; and
   (3) notification to major statewide media.
   5-A. ANY CREDIT OR DEBIT CARD ISSUER THAT ISSUES A NEW CREDIT OR DEBIT
 CARD AS A RESULT OF A BREACH OF THE SECURITY OF THE SYSTEM  PURSUANT  TO
 PARAGRAPH  (C)  OF  SUBDIVISION  ONE  OF THIS SECTION, SHALL PROVIDE THE
 CONSUMER NOTICE THAT THE ISSUANCE OF THE  REPLACEMENT  CREDIT  OR  DEBIT
 CARD  IS  DUE  TO  A  POTENTIAL  COMPROMISE OF THE PRIOR CARD ABSENT ANY
 EVIDENCE OF ACTUAL OR POTENTIAL UNAUTHORIZED USE OF SUCH CREDIT OR DEBIT
 CARD OR OTHER CIRCUMSTANCES PRECIPITATING THE ISSUANCE OF A  REPLACEMENT
 CARD.
   6.  (a)  whenever  the  attorney  general  shall believe from evidence
 satisfactory to him that there is a violation of  this  article  he  may
 bring  an action in the name and on behalf of the people of the state of
 New York, in a court of justice having jurisdiction to issue an  injunc-
 tion,  to  enjoin  and  restrain the continuation of such violation.  In
 such action, preliminary relief may be granted under article sixty-three
 of the civil practice law and rules. In such action the court may  award
 damages  for  actual  costs  or  losses incurred by a person entitled to
 notice pursuant to this article, if notification  was  not  provided  to
 such  person pursuant to this article, including consequential financial
 losses. Whenever the court shall determine in such action that a  person
 or business violated this article knowingly or recklessly, the court may
 impose  a civil penalty of the greater of five thousand dollars or up to
 [ten] TWENTY dollars per instance of failed notification, provided  that
 the  latter  amount  shall  not  exceed [one] TWO hundred fifty thousand
 dollars.
   (b) the remedies provided by this section shall be in addition to  any
 other lawful remedy available.
   (c)  no  action  may  be  brought under the provisions of this section
 unless such action is commenced within [two] THREE  years  [immediately]
 after EITHER the date [of the act complained of or the date of discovery
 of  such  act]  ON  WHICH  THE  ATTORNEY  GENERAL  BECAME  AWARE  OF THE
 VIOLATION, OR THE DATE OF NOTICE  SENT  PURSUANT  TO  PARAGRAPH  (A)  OF
 SUBDIVISION EIGHT OF THIS SECTION, WHICHEVER OCCURS FIRST.
   7.  Regardless  of the method by which notice is provided, such notice
 shall include contact information for the person or business making  the
 notification,  THE  TELEPHONE NUMBERS AND WEBSITES OF THE RELEVANT STATE
 AND FEDERAL AGENCIES THAT PROVIDE INFORMATION REGARDING SECURITY  BREACH
 RESPONSE AND IDENTITY THEFT PREVENTION AND PROTECTION INFORMATION, and a
 description  of  the categories of information that were, or are reason-
 ably believed to have been, ACCESSED OR acquired  by  a  person  without
 valid  authorization  OR BY AN UNAUTHORIZED PERSON, including specifica-
 tion of which of the elements of personal information and private infor-
 mation were, or are reasonably believed to have  been,  so  ACCESSED  OR
 acquired.
   8.  (a)  In  the event that any New York residents are to be notified,
 the person or business shall notify  the  state  attorney  general,  the
 department  of state and the [division of state police] OFFICE OF INFOR-
 MATION TECHNOLOGY SERVICES as to the timing, content and distribution of
 the notices and approximate number of affected persons AND SHALL PROVIDE
 A COPY OF THE TEMPLATE OF THE NOTICE SENT TO  AFFECTED  PERSONS.    Such

 S. 6933--A                          5
 
 notice  shall be made without delaying notice to affected New York resi-
 dents.
   (b)  In  the event that more than five thousand New York residents are
 to be notified at one time, the person or  business  shall  also  notify
 consumer  reporting  agencies as to the timing, content and distribution
 of the notices and approximate number of affected persons.  Such  notice
 shall be made without delaying notice to affected New York residents.
   §  4. The general business law is amended by adding a new section 899-
 bb to read as follows:
   § 899-BB. DATA SECURITY PROTECTIONS. 1.  DEFINITIONS.  (A)  "COMPLIANT
 REGULATED  ENTITY" SHALL MEAN ANY PERSON OR BUSINESS THAT IS SUBJECT TO,
 AND IN COMPLIANCE WITH, ANY OF THE FOLLOWING DATA SECURITY REQUIREMENTS:
   (I) REGULATIONS PROMULGATED PURSUANT TO TITLE V OF THE FEDERAL  GRAMM-
 LEACH-BLILEY ACT (15 U.S.C. 6801 TO 6809), AS AMENDED FROM TIME TO TIME;
   (II)  REGULATIONS  IMPLEMENTING  THE  HEALTH INSURANCE PORTABILITY AND
 ACCOUNTABILITY ACT OF 1996 (45 C.F.R. PARTS 160  AND  164),  AS  AMENDED
 FROM  TIME  TO  TIME, AND THE HEALTH INFORMATION TECHNOLOGY FOR ECONOMIC
 AND CLINICAL HEALTH ACT, AS AMENDED FROM TIME TO TIME;
   (III) PART FIVE HUNDRED OF TITLE TWENTY-THREE OF THE OFFICIAL COMPILA-
 TION OF CODES, RULES AND REGULATIONS  OF  THE  STATE  OF  NEW  YORK,  AS
 AMENDED FROM TIME TO TIME; OR
   (IV)  ANY  OTHER DATA SECURITY RULES AND REGULATIONS OF, AND THE STAT-
 UTES ADMINISTERED BY, ANY OFFICIAL DEPARTMENT, DIVISION,  COMMISSION  OR
 AGENCY  OF THE FEDERAL OR NEW YORK STATE GOVERNMENT AS SUCH RULES, REGU-
 LATIONS OR  STATUTES  ARE  INTERPRETED  BY  SUCH  DEPARTMENT,  DIVISION,
 COMMISSION OR AGENCY OR BY THE FEDERAL OR NEW YORK STATE COURTS.
   (B)  "CERTIFIED  COMPLIANT  ENTITY"  SHALL MEAN ANY PERSON OR BUSINESS
 THAT:
   (I) IS COMPLIANT WITH ANY OF THE DATA SECURITY REQUIREMENTS  IN  PARA-
 GRAPH (A) OF THIS SUBDIVISION OR WITH THE MOST UP TO DATE VERSION OF THE
 INTERNATIONAL  STANDARDS ORGANIZATION STANDARD 27002 OR WITH THE MOST UP
 TO DATE VERSION  OF  NATIONAL  INSTITUTE  OF  STANDARDS  AND  TECHNOLOGY
 SPECIAL PUBLICATION 800-53, AS IT RELATES TO THE PROTECTION OF ELECTRON-
 IC PRIVATE INFORMATION; AND
   (II)  HAS SUCH COMPLIANCE CERTIFIED ANNUALLY BY AN INDEPENDENT, THIRD-
 PARTY ASSESSMENT ORGANIZATION THAT IS AUTHORIZED TO PROVIDE SUCH CERTIF-
 ICATIONS BY THE OFFICIAL DEPARTMENT, DIVISION, COMMISSIONER OR AGENCY OR
 STANDARDS BODY THAT PROMULGATES THE DATA SECURITY REGULATIONS OR  STAND-
 ARDS BEING CERTIFIED.
   (C)  "PRIVATE  INFORMATION"  SHALL HAVE THE SAME MEANING AS DEFINED IN
 SECTION EIGHT HUNDRED NINETY-NINE-AA OF THIS ARTICLE.
   (D) "SMALL BUSINESS" SHALL MEAN ANY PERSON OR BUSINESS WITH (I)  FEWER
 THAN  FIFTY  EMPLOYEES,  INCLUDING  ANY  INDEPENDENT CONTRACTORS, OF THE
 BUSINESS; (II) LESS THAN THREE MILLION DOLLARS IN GROSS  ANNUAL  REVENUE
 IN  EACH OF THE LAST THREE FISCAL YEARS; OR (III) LESS THAN FIVE MILLION
 DOLLARS IN YEAR-END TOTAL ASSETS, CALCULATED IN ACCORDANCE WITH GENERAL-
 LY ACCEPTED ACCOUNTING PRINCIPLES.
   2. REASONABLE SECURITY. (A)  ANY  PERSON  OR  BUSINESS  THAT  OWNS  OR
 LICENSES COMPUTERIZED DATA WHICH INCLUDES PRIVATE INFORMATION OF A RESI-
 DENT  OF NEW YORK SHALL DEVELOP, IMPLEMENT AND MAINTAIN REASONABLE SAFE-
 GUARDS TO PROTECT THE SECURITY, CONFIDENTIALITY  AND  INTEGRITY  OF  THE
 PRIVATE INFORMATION INCLUDING, BUT NOT LIMITED TO, DISPOSAL OF DATA.
   (B)  SMALL  BUSINESSES SUBJECT TO THE REQUIREMENTS OF PARAGRAPH (A) OF
 THIS SUBDIVISION SHALL BE DEEMED TO BE IN COMPLIANCE WITH SUCH  REQUIRE-
 MENT  IF  THEY  IMPLEMENT  AND  MAINTAIN  REASONABLE SAFEGUARDS THAT ARE
 APPROPRIATE TO THE SIZE AND COMPLEXITY OF THE SMALL BUSINESS TO  PROTECT

 S. 6933--A                          6
 
 THE  SECURITY,  CONFIDENTIALITY AND INTEGRITY OF THE PRIVATE INFORMATION
 INCLUDING, BUT NOT LIMITED TO, DISPOSAL OF DATA.
   (C)  A  PERSON  OR  BUSINESS  SHALL BE DEEMED TO BE IN COMPLIANCE WITH
 PARAGRAPHS (A) AND (B) OF THIS SUBDIVISION IF IT EITHER:
   (I) IS A COMPLIANT REGULATED ENTITY AS DEFINED IN SUBDIVISION  ONE  OF
 THIS SECTION;
   (II)  IS A CERTIFIED COMPLIANT ENTITY AS DEFINED IN SUBDIVISION ONE OF
 THIS SECTION; OR
   (III) IMPLEMENTS A DATA SECURITY PROGRAM THAT INCLUDES THE FOLLOWING:
   (A) ADMINISTRATIVE SAFEGUARDS SUCH AS  THE  FOLLOWING,  IN  WHICH  THE
 PERSON OR BUSINESS:
   (1)  DESIGNATES  ONE  OR  MORE  EMPLOYEES  TO  COORDINATE THE SECURITY
 PROGRAM;
   (2) IDENTIFIES REASONABLY FORESEEABLE INTERNAL AND EXTERNAL RISKS;
   (3) ASSESSES THE SUFFICIENCY OF SAFEGUARDS IN  PLACE  TO  CONTROL  THE
 IDENTIFIED RISKS;
   (4) TRAINS AND MANAGES EMPLOYEES IN THE SECURITY PROGRAM PRACTICES AND
 PROCEDURES;
   (5) SELECTS SERVICE PROVIDERS CAPABLE OF MAINTAINING APPROPRIATE SAFE-
 GUARDS, AND REQUIRES THOSE SAFEGUARDS BY CONTRACT; AND
   (6)  ADJUSTS  THE SECURITY PROGRAM IN LIGHT OF BUSINESS CHANGES OR NEW
 CIRCUMSTANCES; AND
   (B) TECHNICAL SAFEGUARDS SUCH AS THE FOLLOWING, IN WHICH THE PERSON OR
 BUSINESS:
   (1) ASSESSES RISKS IN NETWORK AND SOFTWARE DESIGN;
   (2) ASSESSES RISKS IN INFORMATION PROCESSING, TRANSMISSION  AND  STOR-
 AGE;
   (3) DETECTS, PREVENTS AND RESPONDS TO ATTACKS OR SYSTEM FAILURES; AND
   (4)  REGULARLY  TESTS  AND MONITORS THE EFFECTIVENESS OF KEY CONTROLS,
 SYSTEMS AND PROCEDURES; AND
   (C) PHYSICAL SAFEGUARDS SUCH AS THE FOLLOWING, IN WHICH THE PERSON  OR
 BUSINESS:
   (1) ASSESSES RISKS OF INFORMATION STORAGE AND DISPOSAL;
   (2) DETECTS, PREVENTS AND RESPONDS TO INTRUSIONS;
   (3) PROTECTS AGAINST UNAUTHORIZED ACCESS TO OR USE OF PRIVATE INFORMA-
 TION  DURING  OR AFTER THE COLLECTION, TRANSPORTATION AND DESTRUCTION OR
 DISPOSAL OF THE INFORMATION; AND
   (4) DISPOSES OF PRIVATE INFORMATION WITHIN A REASONABLE AMOUNT OF TIME
 AFTER IT IS NO LONGER NEEDED FOR BUSINESS PURPOSES BY ERASING ELECTRONIC
 MEDIA SO THAT THE INFORMATION CANNOT BE READ OR RECONSTRUCTED.
   (D) ANY PERSON OR BUSINESS REQUIRED TO COMPLY WITH  PARAGRAPH  (A)  OR
 (B)  OF  THIS  SUBDIVISION  THAT  FAILS TO COMPLY WITH SUCH SUBDIVISIONS
 SHALL BE DEEMED TO HAVE VIOLATED SECTION  THREE  HUNDRED  FORTY-NINE  OF
 THIS  CHAPTER,  AND THE ATTORNEY GENERAL MAY BRING AN ACTION IN THE NAME
 AND ON BEHALF OF THE PEOPLE OF THE STATE OF  NEW  YORK  TO  ENJOIN  SUCH
 VIOLATIONS  AND  TO  OBTAIN  CIVIL PENALTIES UNDER SECTION THREE HUNDRED
 FIFTY-D OF THIS CHAPTER.
   (E) NOTHING IN THIS SECTION SHALL CREATE A PRIVATE RIGHT OF ACTION.
   3. SAFE HARBOR FOR CERTIFIED COMPLIANT ENTITIES.  A CERTIFIED  COMPLI-
 ANT ENTITY SHALL NOT BE SUBJECT TO AN ENFORCEMENT ACTION BY THE ATTORNEY
 GENERAL PURSUANT TO SUBDIVISION TWO OF THIS SECTION IF:
   (A)  IT  PROVIDES  COPIES  OF  ITS CERTIFICATIONS OF COMPLIANCE TO THE
 ATTORNEY GENERAL; AND
   (B) THERE IS NO EVIDENCE OF WILLFUL MISCONDUCT,  BAD  FAITH  OR  GROSS
 NEGLIGENCE.

 S. 6933--A                          7
 
   §  5. Paragraph (a) of subdivision 1 and subdivisions 2, 3, 6, 7 and 8
 of section 208 of the state technology law, paragraph (a) of subdivision
 1 and subdivisions 3 and 8 as added by chapter 442 of the laws of  2005,
 subdivision 2 and paragraph (a) of subdivision 7 as amended by section 5
 of  part N of chapter 55 of the laws of 2013 and subdivisions 6 and 7 as
 amended by chapter 491 of the laws of  2005,  are  amended  to  read  as
 follows:
   (a)  "Private information" shall mean EITHER: (I) personal information
 CONSISTING OF ANY INFORMATION in combination with any one or more of the
 following data elements, when either the  personal  information  or  the
 data  element  is not encrypted or encrypted with an encryption key that
 has also been ACCESSED OR acquired:
   (1) social security number;
   (2) driver's license number or non-driver identification card  number;
 [or]
   (3)  account  number,  OR  credit or debit card number, in combination
 with any required IDENTIFYING INFORMATION, security code,  access  code,
 or  password  which  would  permit  access  to an individual's financial
 account;
   (4) ACCOUNT NUMBER, OR CREDIT OR DEBIT CARD NUMBER,  IF  CIRCUMSTANCES
 EXIST  WHEREIN  SUCH  NUMBER  COULD BE USED TO ACCESS TO AN INDIVIDUAL'S
 FINANCIAL ACCOUNT WITHOUT ADDITIONAL IDENTIFYING  INFORMATION,  SECURITY
 CODE, ACCESS CODE, OR PASSWORD; OR
   (5)  BIOMETRIC  INFORMATION, MEANING DATA GENERATED BY AUTOMATIC MEAS-
 UREMENTS OF AN INDIVIDUAL'S PHYSICAL CHARACTERISTICS, WHICH ARE USED  TO
 AUTHENTICATE THE INDIVIDUAL'S IDENTITY;
   (II)  A  USER NAME OR E-MAIL ADDRESS IN COMBINATION WITH A PASSWORD OR
 SECURITY QUESTION AND ANSWER THAT  WOULD  PERMIT  ACCESS  TO  AN  ONLINE
 ACCOUNT; OR
   (III)  ANY  UNSECURED  PROTECTED HEALTH INFORMATION HELD BY A "COVERED
 ENTITY" AS DEFINED IN THE HEALTH INSURANCE PORTABILITY AND  ACCOUNTABIL-
 ITY ACT OF 1996 (45 C.F.R.  PTS. 160, 162, 164), AS AMENDED FROM TIME TO
 TIME.
   "Private  information" does not include publicly available information
 that is lawfully made available to  the  general  public  from  federal,
 state, or local government records.
   2.  Any  state  entity  that  owns  or licenses computerized data that
 includes private information shall disclose any breach of  the  security
 of  the  system following discovery or notification of the breach in the
 security of the system to any resident of New York state  whose  private
 information  was,  or  is  reasonably believed to have been, ACCESSED OR
 acquired by a person without  valid  authorization  OR  AN  UNAUTHORIZED
 PERSON.   The disclosure shall be made in the most expedient time possi-
 ble and without unreasonable delay, consistent with the legitimate needs
 of law enforcement, as provided in subdivision four of this section,  or
 any  measures necessary to determine the scope of the breach and restore
 the [reasonable] integrity of the data system.  The state  entity  shall
 consult  with  the  state  office  of information technology services to
 determine the scope of the breach and restoration measures. WITHIN NINE-
 TY DAYS OF THE NOTICE OF THE BREACH, THE OFFICE OF INFORMATION TECHNOLO-
 GY SERVICES SHALL DELIVER A REPORT ON THE SCOPE OF THE BREACH AND RECOM-
 MENDATIONS TO RESTORE AND IMPROVE THE SECURITY  OF  THE  SYSTEM  TO  THE
 STATE ENTITY.
   3.  Any  state  entity  that maintains computerized data that includes
 private information which such agency does  not  own  shall  notify  the
 owner  or  licensee  of the information of any breach of the security of

 S. 6933--A                          8
 
 the system immediately following discovery, if the  private  information
 was,  or is reasonably believed to have been, acquired by a person with-
 out valid authorization OR AN UNAUTHORIZED PERSON.
   6.  Regardless  of the method by which notice is provided, such notice
 shall include contact  information  for  the  state  entity  making  the
 notification,  THE  TELEPHONE NUMBERS AND WEBSITES OF THE RELEVANT STATE
 AND FEDERAL AGENCIES THAT PROVIDE INFORMATION REGARDING SECURITY  BREACH
 RESPONSE  AND IDENTITY THEFT PREVENTION AND PROTECTION INFORMATION and a
 description of the categories of information that were, or  are  reason-
 ably  believed  to  have  been, ACCESSED OR acquired by a person without
 valid authorization OR AN UNAUTHORIZED PERSON,  including  specification
 of which of the elements of personal information and private information
 were, or are reasonably believed to have been, so ACCESSED OR acquired.
   7.  (a)  In  the event that any New York residents are to be notified,
 the state entity shall notify the state attorney general, the department
 of state and the state office of information technology services  as  to
 the  timing,  content  and  distribution  of the notices and approximate
 number of affected persons AND PROVIDE A COPY OF  THE  TEMPLATE  OF  THE
 NOTICE  SENT  TO  AFFECTED  PERSONS.   Such notice shall be made without
 delaying notice to affected New York residents.
   (b) In the event that more than five thousand New York  residents  are
 to  be notified at one time, the state entity shall also notify consumer
 reporting agencies as to the timing, content  and  distribution  of  the
 notices and approximate number of affected persons. Such notice shall be
 made without delaying notice to affected New York residents.
   8.  THE STATE OFFICE OF INFORMATION TECHNOLOGY SERVICES SHALL DEVELOP,
 UPDATE AND PROVIDE REGULAR TRAINING TO ALL STATE  ENTITIES  RELATING  TO
 BEST  PRACTICES  FOR  THE  PREVENTION OF A BREACH OF THE SECURITY OF THE
 SYSTEM.
    9. Any entity listed in subparagraph two of paragraph (c) of subdivi-
 sion one of this section shall adopt a notification policy no more  than
 one  hundred  twenty days after the effective date of this section. Such
 entity may develop a notification policy which is consistent  with  this
 section  or  alternatively  shall  adopt a local law which is consistent
 with this section.
   § 6. This act shall take effect on the first of January next  succeed-
 ing the date on which it shall have become a law.

co-Sponsors

2017-S6933B (ACTIVE) - Details

See Assembly Version of this Bill:: A8884
Current Committee:: Senate Finance
Law Section:: General Business Law
Laws Affected:: Amd Art 39-F Art Head, §899-aa, add §899-bb, Gen Bus L; amd §208, St Tech L
Versions Introduced in 2019-2020 Legislative Session:: S133, S5575

2017-S6933B (ACTIVE) - Summary

Relates to notification of a security breach; includes credit and debit cards; increases civil penalties.

2017-S6933B (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S6933B

SPONSOR: CARLUCCI
 
TITLE OF BILL:  An act to amend the general business law and the state
technology law, in relation to notification of a security breach

 
PURPOSE:

New York's data breach notification law needs to be updated keep pace
with current technology. This bill broadens the scope of information
covered under the notification law and updates the notification require-
ments when there has been a breach of data. It also broadens the defi-
nition of a data breach to include an unauthorized person gaining access
to information. It also requires reasonable data security, provides
standards tailored to the size of a business, and provides protections
from liability for certain entities.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1 of the bill names the act.

Section 2 of the bill amends the title of article 39-F of the General
Business Law.

Section 3 of the bill amends section 899-aa of the General Business Law.
The amendments would:

*update the notifications section of the General Business Law by adding
biometric data, email addresses or user names in combination with a
password or security question answer, and protected health information
held by a "covered entity" to the private information definition;

*update the notifications section of the General Business Law by adding
unauthorized access to the private information to the definitions of
"private information" and "breach of the security of the system";

*update the notification requirement by applying it to any person or
entity with private information of a New York resident, not just to
those that "conduct business" in New York State;

*add definitions for the terms credit card and debit card;

*correct typos and inconsistencies in language to clarify that breaches
of private information only (and not personal information) trigger
notice obligations and to make consistent all references to compromise
by an unauthorized person or a person without valid authorization;

*authorize businesses in certain circumstances to notify the consumer
via email of the breach and if the consumer's email is believed to have
been compromised authorize the business to use other electronic methods
to notify the consumer;

*require that, if a business is sending out a new credit or debit card
to a consumer, the consumer be notified that the card is on its way;

*outline penalties for businesses that fail to provide notice to consum-
ers of a breach and the limitations period for the attorney general to
act on any failure;

*require certain information to be included in the notice that would
direct consumers to federal and state data security prevention entities
and require businesses to send a template of their notice to consumers
to the attorney general and the Office of Information Technology
Services; and,

*task the Department of State with receiving and responding to data
breach complaints and with informing the public of data security and
breach prevention techniques.

Section 4 of the bill creates a new section 899-bb of the General Busi-
ness Law that would:

*require reasonable data security for private information, with a more
flexible standard for small businesses, without creating new require-
ments for entities subject to existing or future regulations by any
federal or other New York State government entity, and while providing
safe harbor from enforcement for entities that take steps to verify
their compliance with other existing data security regulations or stand-
ards; and

*deem failure to provide required reasonable data security to be a
violation of section 349 of the General Business Law, permitting the
attorney general to bring suit but not any private plaintiff.

Section 5 of the bill amends the State Technology Law. The amendments
would:

*include the same terms as above in the definition of private informa-
tion;

*state that should a data breach occur in a State entity the Office of
Information Technology Services shall deliver a report on the scope of
the breach to the entity affected;

*require that an entity shall notify individuals affected by the data
breach as quickly as possible; and,

*task the office of information technology services to develop and
provide regular trainings to all entities on preventing data breaches.

Section 6 of the bill sets forth the effective date.

 
JUSTIFICATION:

New York's current data breach notification law needs to be updated to
keep pace with individuals' use and dissemination of private informa-
tion. New York also needs to join the increasing number of states that
require reasonable data security protections, without imposing duplicate
obligations on those already subject to other federal or New York State
data security regulations and without imposing excessive costs on small
business, while providing safe harbor from enforcement for entities that
take steps to verify their compliance with other existing data security
regulations or standards. This bill expands the scope of information
subject to the current data breach notification law to include biometric
information, email addresses and their corresponding passwords or secu-
rity questions and answers, and protected health information as defined
under HIPAA. It broadens the definition of a data breach to include
unauthorized access to private information. It applies the notification
requirement to any person or entity with private information of a New
York resident, not just to those that conduct business in New York
State. It also updates the notification procedures companies and state
entities must follow when there has been a breach of private informa-
tion. It also creates reasonable data security requirements tailored to
the size of a business and provides protections from liability for
certain entities that take steps to verify their safeguarding of private
information.

 
PRIOR LEGISLATIVE HISTORY:

 
FISCAL IMPACT ON THE STATE:

None.

 
FISCAL IMPACT ON LOCALITIES:

None.

 
IMPACT ON THE REGULATION OF BUSINESSES AND INDIVIDUALS:

The bill would impose stronger obligations on businesses handling
private data of customers, regarding security and proper notification of
breaches.

 
IMPACT ON FINES, IMPRISONMENT, FORFEITURE OF RIGHTS, OR OTHER PENAL
SANCTIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect January 1, 2018.

2017-S6933B (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  6933--B
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                             November 1, 2017
                                ___________
 
 Introduced  by Sens. CARLUCCI, KAMINSKY -- read twice and ordered print-
   ed, and when printed to be committed to  the  Committee  on  Rules  --
   recommitted to the Committee on Consumer Protection in accordance with
   Senate  Rule  6, sec. 8 -- committee discharged, bill amended, ordered
   reprinted as amended and recommitted to  said  committee  --  reported
   favorably  from  said  committee  and  committed  to  the Committee on
   Finance -- committee discharged, bill amended,  ordered  reprinted  as
   amended and recommitted 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:
 
   Section 1. This act shall be known and may be cited as the "Stop Hacks
 and Improve Electronic Data Security Act (SHIELD Act)".
   §  2. The article heading of article 39-F of the general business law,
 as added by chapter 442 of the laws of  2005,  is  amended  to  read  as
 follows:
            NOTIFICATION OF UNAUTHORIZED ACQUISITION OF PRIVATE
                  INFORMATION; DATA SECURITY PROTECTIONS
   §  3.  Subdivisions  1,  2,  3, 5, 6, 7 and 8 of section 899-aa of the
 general business law, as added by chapter 442 of the laws of 2005, para-
 graph (c) of subdivision 1, paragraph (a) of subdivision 6 and  subdivi-
 sion  8  as amended by chapter 491 of the laws of 2005 and paragraph (a)
 of subdivision 8 as amended by section 6 of part N of chapter 55 of  the
 laws of 2013, are amended to read as follows:
   1. As used in this section, the following terms shall have the follow-
 ing meanings:
   (a)  "Personal  information"  shall  mean any information concerning a
 natural person which, because of name, number, personal mark,  or  other
 identifier, can be used to identify such natural person;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD13619-10-8

 S. 6933--B                          2
 
   (b)  "Private information" shall mean EITHER: (I) personal information
 consisting of any information in combination with any one or more of the
 following data elements, when either the DATA ELEMENT OR THE COMBINATION
 OF personal information [or] PLUS the data element is not encrypted,  or
 IS  encrypted  with  an  encryption  key  that has also been ACCESSED OR
 acquired:
   (1) social security number;
   (2) driver's license number or non-driver identification card  number;
 [or]
   (3)  account  number, credit or debit card number, in combination with
 any required security code, access code, [or] password OR OTHER INFORMA-
 TION that would permit access to an individual's financial account;
   (4) ACCOUNT NUMBER, CREDIT OR  DEBIT  CARD  NUMBER,  IF  CIRCUMSTANCES
 EXIST WHEREIN SUCH NUMBER COULD BE USED TO ACCESS AN INDIVIDUAL'S FINAN-
 CIAL  ACCOUNT WITHOUT ADDITIONAL IDENTIFYING INFORMATION, SECURITY CODE,
 ACCESS CODE, OR PASSWORD; OR
   (5) BIOMETRIC INFORMATION, MEANING DATA GENERATED BY ELECTRONIC  MEAS-
 UREMENTS  OF  AN INDIVIDUAL'S UNIQUE PHYSICAL CHARACTERISTICS, SUCH AS A
 FINGERPRINT, VOICE PRINT, RETINA OR IRIS IMAGE, OR OTHER UNIQUE PHYSICAL
 REPRESENTATION OR DIGITAL REPRESENTATION OF  BIOMETRIC  DATA  WHICH  ARE
 USED TO AUTHENTICATE OR ASCERTAIN THE INDIVIDUAL'S IDENTITY;
   (II)  A  USER NAME OR E-MAIL ADDRESS IN COMBINATION WITH A PASSWORD OR
 SECURITY QUESTION AND ANSWER THAT  WOULD  PERMIT  ACCESS  TO  AN  ONLINE
 ACCOUNT; OR
   (III)  ANY  UNSECURED  PROTECTED HEALTH INFORMATION HELD BY A "COVERED
 ENTITY" AS DEFINED IN THE HEALTH INSURANCE PORTABILITY AND  ACCOUNTABIL-
 ITY ACT OF 1996 (45 C.F.R.  PTS. 160, 162, 164), AS AMENDED FROM TIME TO
 TIME.
   "Private  information" does not include publicly available information
 which is lawfully made available to the  general  public  from  federal,
 state, or local government records.
   (c)  "Breach  of  the  security of the system" shall mean unauthorized
 ACCESS TO OR acquisition OF, or ACCESS TO OR acquisition  without  valid
 authorization,  of  computerized  data  that  compromises  the security,
 confidentiality, or integrity of [personal]  PRIVATE  information  main-
 tained   by  a  business.  Good  faith  ACCESS  TO,  OR  acquisition  of
 [personal], PRIVATE information by an employee or agent of the  business
 for  the purposes of the business is not a breach of the security of the
 system, provided that the private information is not used or subject  to
 unauthorized disclosure.
   IN DETERMINING WHETHER INFORMATION HAS BEEN ACCESSED, OR IS REASONABLY
 BELIEVED  TO  HAVE  BEEN ACCESSED, BY AN UNAUTHORIZED PERSON OR A PERSON
 WITHOUT VALID AUTHORIZATION, SUCH BUSINESS  MAY  CONSIDER,  AMONG  OTHER
 FACTORS, INDICATIONS THAT THE INFORMATION WAS VIEWED, COMMUNICATED WITH,
 USED,  OR ALTERED BY A PERSON WITHOUT VALID AUTHORIZATION OR BY AN UNAU-
 THORIZED PERSON.
   In determining whether information has been acquired, or is reasonably
 believed to have been acquired, by an unauthorized person  or  a  person
 without  valid  authorization,  such business may consider the following
 factors, among others:
   (1) indications that the information is in the physical possession and
 control of an unauthorized person, such as a lost or stolen computer  or
 other device containing information; or
   (2) indications that the information has been downloaded or copied; or

 S. 6933--B                          3
 
   (3)  indications  that  the  information  was  used by an unauthorized
 person, such as fraudulent accounts  opened  or  instances  of  identity
 theft reported.
   (d) "Consumer reporting agency" shall mean any person which, for mone-
 tary  fees, dues, or on a cooperative nonprofit basis, regularly engages
 in whole or in part in the practice of assembling or evaluating consumer
 credit information or other information on consumers for the purpose  of
 furnishing  consumer  reports to third parties, and which uses any means
 or facility of interstate commerce  for  the  purpose  of  preparing  or
 furnishing consumer reports. A list of consumer reporting agencies shall
 be  compiled by the state attorney general and furnished upon request to
 any person or business required to make a notification under subdivision
 two of this section.
   2. Any person or business which [conducts business in New York  state,
 and  which]  owns  or  licenses computerized data which includes private
 information shall disclose any breach of  the  security  of  the  system
 following discovery or notification of the breach in the security of the
 system  to any resident of New York state whose private information was,
 or is reasonably believed to have been, ACCESSED OR acquired by a person
 without valid authorization.  The disclosure shall be made in  the  most
 expedient  time possible and without unreasonable delay, consistent with
 the legitimate needs of law enforcement, as provided in subdivision four
 of this section, or any measures necessary to determine the scope of the
 breach and restore the [reasonable] integrity of the system.
   (A) NOTICE TO AFFECTED PERSONS UNDER THIS SECTION IS NOT  REQUIRED  IF
 THE  EXPOSURE  OF  PRIVATE  INFORMATION WAS AN INADVERTENT DISCLOSURE BY
 PERSONS AUTHORIZED TO ACCESS PRIVATE  INFORMATION,  AND  THE  PERSON  OR
 BUSINESS  REASONABLY  DETERMINES SUCH EXPOSURE WILL NOT LIKELY RESULT IN
 MISUSE OF SUCH INFORMATION,  OR  FINANCIAL  OR  EMOTIONAL  HARM  TO  THE
 AFFECTED PERSONS. SUCH A DETERMINATION MUST BE DOCUMENTED IN WRITING AND
 MAINTAINED FOR AT LEAST FIVE YEARS. THE PERSON OR BUSINESS SHALL PROVIDE
 THE  WRITTEN DETERMINATION TO THE STATE ATTORNEY GENERAL WITHIN TEN DAYS
 AFTER THE DETERMINATION.
   (B) IF NOTICE OF THE BREACH OF THE SECURITY OF THE SYSTEM IS  MADE  TO
 AFFECTED  PERSONS PURSUANT TO THE BREACH NOTIFICATION REQUIREMENTS UNDER
 ANY OF THE FOLLOWING LAWS, NOTHING IN THIS  SECTION  SHALL  REQUIRE  ANY
 ADDITIONAL  NOTICE  TO THOSE AFFECTED PERSONS, BUT NOTICE STILL SHALL BE
 PROVIDED TO THE STATE ATTORNEY GENERAL, THE DEPARTMENT OF STATE AND  THE
 OFFICE  OF  INFORMATION TECHNOLOGY SERVICES PURSUANT TO PARAGRAPH (A) OF
 SUBDIVISION EIGHT OF THIS SECTION AND  TO  CONSUMER  REPORTING  AGENCIES
 PURSUANT TO PARAGRAPH (B) OF SUBDIVISION EIGHT OF THIS SECTION:
   (I)  REGULATIONS PROMULGATED PURSUANT TO TITLE V OF THE FEDERAL GRAMM-
 LEACH-BLILEY ACT (15 U.S.C. 6801 TO 6809), AS AMENDED FROM TIME TO TIME;
   (II) REGULATIONS IMPLEMENTING THE  HEALTH  INSURANCE  PORTABILITY  AND
 ACCOUNTABILITY  ACT  OF  1996  (45 C.F.R. PARTS 160 AND 164), AS AMENDED
 FROM TIME TO TIME, AND THE HEALTH INFORMATION  TECHNOLOGY  FOR  ECONOMIC
 AND CLINICAL HEALTH ACT, AS AMENDED FROM TIME TO TIME;
   (III) PART FIVE HUNDRED OF TITLE TWENTY-THREE OF THE OFFICIAL COMPILA-
 TION  OF  CODES,  RULES  AND  REGULATIONS  OF  THE STATE OF NEW YORK, AS
 AMENDED FROM TIME TO TIME; OR
   (IV) ANY OTHER DATA SECURITY RULES AND REGULATIONS OF, AND  THE  STAT-
 UTES  ADMINISTERED  BY, ANY OFFICIAL DEPARTMENT, DIVISION, COMMISSION OR
 AGENCY OF THE FEDERAL OR NEW YORK STATE GOVERNMENT AS SUCH RULES,  REGU-
 LATIONS  OR  STATUTES  ARE  INTERPRETED  BY  SUCH  DEPARTMENT, DIVISION,
 COMMISSION OR AGENCY OR BY THE FEDERAL OR NEW YORK STATE COURTS.

 S. 6933--B                          4
 
   3. Any person or business  which  maintains  computerized  data  which
 includes  private information which such person or business does not own
 shall notify the owner or licensee of the information of any  breach  of
 the  security  of  the  system  immediately  following discovery, if the
 private  information  was,  or  is  reasonably  believed  to  have been,
 acquired by a person without valid authorization.
   5. The notice required by this section shall be directly  provided  to
 the affected persons by one of the following methods:
   (a) written notice;
   (b)  electronic  notice,  provided  that  the person to whom notice is
 required has expressly consented to receiving said notice in  electronic
 form  and a log of each such notification is kept by the person or busi-
 ness who notifies affected  persons  in  such  form;  provided  further,
 however,  that  in no case shall any person or business require a person
 to consent to accepting said notice in  said  form  as  a  condition  of
 establishing any business relationship or engaging in any transaction.
   (c)  telephone notification provided that a log of each such notifica-
 tion is kept by the person or business who notifies affected persons; or
   (d) substitute notice, if a business demonstrates to the state  attor-
 ney  general  that the cost of providing notice would exceed two hundred
 fifty thousand dollars, or that the affected class of subject persons to
 be notified exceeds five hundred thousand, or  such  business  does  not
 have  sufficient contact information. Substitute notice shall consist of
 all of the following:
   (1) e-mail notice when such business has an  e-mail  address  for  the
 subject  persons,  EXCEPT IF THE BREACHED INFORMATION INCLUDES AN E-MAIL
 ADDRESS IN COMBINATION WITH A PASSWORD OR SECURITY QUESTION  AND  ANSWER
 THAT WOULD PERMIT ACCESS TO THE ONLINE ACCOUNT, IN WHICH CASE THE PERSON
 OR BUSINESS SHALL INSTEAD PROVIDE CLEAR AND CONSPICUOUS NOTICE DELIVERED
 TO  THE  CONSUMER  ONLINE  WHEN  THE CONSUMER IS CONNECTED TO THE ONLINE
 ACCOUNT FROM AN INTERNET PROTOCOL ADDRESS OR  FROM  AN  ONLINE  LOCATION
 WHICH  THE  PERSON  OR  BUSINESS  KNOWS THE CONSUMER CUSTOMARILY USES TO
 ACCESS THE ONLINE ACCOUNT;
   (2) conspicuous posting of the notice  on  such  business's  web  site
 page, if such business maintains one; and
   (3) notification to major statewide media.
   6.  (a)  whenever  the  attorney  general  shall believe from evidence
 satisfactory to him OR HER that there is a violation of this article  he
 OR  SHE  may  bring an action in the name and on behalf of the people of
 the state of New York, in a court  of  justice  having  jurisdiction  to
 issue  an  injunction,  to  enjoin and restrain the continuation of such
 violation.   In such action, preliminary relief  may  be  granted  under
 article  sixty-three of the civil practice law and rules. In such action
 the court may award damages for actual costs or  losses  incurred  by  a
 person  entitled to notice pursuant to this article, if notification was
 not provided to such person pursuant to this article,  including  conse-
 quential  financial  losses.  Whenever the court shall determine in such
 action that a person or business  violated  this  article  knowingly  or
 recklessly,  the court may impose a civil penalty of the greater of five
 thousand dollars or up to [ten] TWENTY dollars per  instance  of  failed
 notification, provided that the latter amount shall not exceed [one] TWO
 hundred fifty thousand dollars.
   (b)  the remedies provided by this section shall be in addition to any
 other lawful remedy available.
   (c) no action may be brought under  the  provisions  of  this  section
 unless  such  action is commenced within [two] THREE years [immediately]

 S. 6933--B                          5
 
 after EITHER the date [of the act complained of or the date of discovery
 of such  act]  ON  WHICH  THE  ATTORNEY  GENERAL  BECAME  AWARE  OF  THE
 VIOLATION,  OR  THE  DATE  OF  NOTICE  SENT PURSUANT TO PARAGRAPH (A) OF
 SUBDIVISION EIGHT OF THIS SECTION, WHICHEVER OCCURS FIRST.
   7.  Regardless  of the method by which notice is provided, such notice
 shall include contact information for the person or business making  the
 notification,  THE  TELEPHONE NUMBERS AND WEBSITES OF THE RELEVANT STATE
 AND FEDERAL AGENCIES THAT PROVIDE INFORMATION REGARDING SECURITY  BREACH
 RESPONSE AND IDENTITY THEFT PREVENTION AND PROTECTION INFORMATION, and a
 description  of  the categories of information that were, or are reason-
 ably believed to have been, ACCESSED OR acquired  by  a  person  without
 valid authorization, including specification of which of the elements of
 personal  information  and  private  information were, or are reasonably
 believed to have been, so ACCESSED OR acquired.
   8. (a) In the event that any New York residents are  to  be  notified,
 the  person  or  business  shall  notify the state attorney general, the
 department of state and the [division of state police] OFFICE OF  INFOR-
 MATION TECHNOLOGY SERVICES as to the timing, content and distribution of
 the notices and approximate number of affected persons AND SHALL PROVIDE
 A  COPY  OF  THE  TEMPLATE OF THE NOTICE SENT TO AFFECTED PERSONS.  Such
 notice shall be made without delaying notice to affected New York  resi-
 dents.
   (b)  In  the event that more than five thousand New York residents are
 to be notified at one time, the person or  business  shall  also  notify
 consumer  reporting  agencies as to the timing, content and distribution
 of the notices and approximate number of affected persons.  Such  notice
 shall be made without delaying notice to affected New York residents.
   §  4. The general business law is amended by adding a new section 899-
 bb to read as follows:
   § 899-BB. DATA SECURITY PROTECTIONS. 1.  DEFINITIONS.  (A)  "COMPLIANT
 REGULATED  ENTITY" SHALL MEAN ANY PERSON OR BUSINESS THAT IS SUBJECT TO,
 AND IN COMPLIANCE WITH, ANY OF THE FOLLOWING DATA SECURITY REQUIREMENTS:
   (I) REGULATIONS PROMULGATED PURSUANT TO TITLE V OF THE FEDERAL  GRAMM-
 LEACH-BLILEY ACT (15 U.S.C. 6801 TO 6809), AS AMENDED FROM TIME TO TIME;
   (II)  REGULATIONS  IMPLEMENTING  THE  HEALTH INSURANCE PORTABILITY AND
 ACCOUNTABILITY ACT OF 1996 (45 C.F.R. PARTS 160  AND  164),  AS  AMENDED
 FROM  TIME  TO  TIME, AND THE HEALTH INFORMATION TECHNOLOGY FOR ECONOMIC
 AND CLINICAL HEALTH ACT, AS AMENDED FROM TIME TO TIME;
   (III) PART FIVE HUNDRED OF TITLE TWENTY-THREE OF THE OFFICIAL COMPILA-
 TION OF CODES, RULES AND REGULATIONS  OF  THE  STATE  OF  NEW  YORK,  AS
 AMENDED FROM TIME TO TIME; OR
   (IV)  ANY  OTHER DATA SECURITY RULES AND REGULATIONS OF, AND THE STAT-
 UTES ADMINISTERED BY, ANY OFFICIAL DEPARTMENT, DIVISION,  COMMISSION  OR
 AGENCY  OF THE FEDERAL OR NEW YORK STATE GOVERNMENT AS SUCH RULES, REGU-
 LATIONS OR  STATUTES  ARE  INTERPRETED  BY  SUCH  DEPARTMENT,  DIVISION,
 COMMISSION OR AGENCY OR BY THE FEDERAL OR NEW YORK STATE COURTS.
   (B)  "PRIVATE  INFORMATION"  SHALL HAVE THE SAME MEANING AS DEFINED IN
 SECTION EIGHT HUNDRED NINETY-NINE-AA OF THIS ARTICLE.
   (C) "SMALL BUSINESS" SHALL MEAN ANY PERSON OR BUSINESS WITH (I)  FEWER
 THAN  FIFTY  EMPLOYEES;  (II)  LESS  THAN THREE MILLION DOLLARS IN GROSS
 ANNUAL REVENUE IN EACH OF THE LAST THREE FISCAL  YEARS;  OR  (III)  LESS
 THAN  FIVE  MILLION  DOLLARS  IN  YEAR-END  TOTAL  ASSETS, CALCULATED IN
 ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES.
   2. REASONABLE SECURITY REQUIREMENT. (A) ANY PERSON  OR  BUSINESS  THAT
 OWNS OR LICENSES COMPUTERIZED DATA WHICH INCLUDES PRIVATE INFORMATION OF
 A  RESIDENT OF NEW YORK SHALL DEVELOP, IMPLEMENT AND MAINTAIN REASONABLE

 S. 6933--B                          6
 
 SAFEGUARDS TO PROTECT THE SECURITY, CONFIDENTIALITY AND INTEGRITY OF THE
 PRIVATE INFORMATION INCLUDING, BUT NOT LIMITED TO, DISPOSAL OF DATA.
   (B)  A  PERSON  OR  BUSINESS  SHALL BE DEEMED TO BE IN COMPLIANCE WITH
 PARAGRAPH (A) OF THIS SUBDIVISION IF IT EITHER:
   (I) IS A COMPLIANT REGULATED ENTITY AS DEFINED IN SUBDIVISION  ONE  OF
 THIS SECTION; OR
   (II) IMPLEMENTS A DATA SECURITY PROGRAM THAT INCLUDES THE FOLLOWING:
   (A)  REASONABLE  ADMINISTRATIVE  SAFEGUARDS  SUCH AS THE FOLLOWING, IN
 WHICH THE PERSON OR BUSINESS:
   (1) DESIGNATES ONE  OR  MORE  EMPLOYEES  TO  COORDINATE  THE  SECURITY
 PROGRAM;
   (2) IDENTIFIES REASONABLY FORESEEABLE INTERNAL AND EXTERNAL RISKS;
   (3)  ASSESSES  THE  SUFFICIENCY  OF SAFEGUARDS IN PLACE TO CONTROL THE
 IDENTIFIED RISKS;
   (4) TRAINS AND MANAGES EMPLOYEES IN THE SECURITY PROGRAM PRACTICES AND
 PROCEDURES;
   (5) SELECTS SERVICE PROVIDERS CAPABLE OF MAINTAINING APPROPRIATE SAFE-
 GUARDS, AND REQUIRES THOSE SAFEGUARDS BY CONTRACT; AND
   (6) ADJUSTS THE SECURITY PROGRAM IN LIGHT OF BUSINESS CHANGES  OR  NEW
 CIRCUMSTANCES; AND
   (B)  REASONABLE  TECHNICAL  SAFEGUARDS SUCH AS THE FOLLOWING, IN WHICH
 THE PERSON OR BUSINESS:
   (1) ASSESSES RISKS IN NETWORK AND SOFTWARE DESIGN;
   (2) ASSESSES RISKS IN INFORMATION PROCESSING, TRANSMISSION  AND  STOR-
 AGE;
   (3) DETECTS, PREVENTS AND RESPONDS TO ATTACKS OR SYSTEM FAILURES; AND
   (4)  REGULARLY  TESTS  AND MONITORS THE EFFECTIVENESS OF KEY CONTROLS,
 SYSTEMS AND PROCEDURES; AND
   (C) REASONABLE PHYSICAL SAFEGUARDS SUCH AS THE FOLLOWING, IN WHICH THE
 PERSON OR BUSINESS:
   (1) ASSESSES RISKS OF INFORMATION STORAGE AND DISPOSAL;
   (2) DETECTS, PREVENTS AND RESPONDS TO INTRUSIONS;
   (3) PROTECTS AGAINST UNAUTHORIZED ACCESS TO OR USE OF PRIVATE INFORMA-
 TION DURING OR AFTER THE COLLECTION, TRANSPORTATION AND  DESTRUCTION  OR
 DISPOSAL OF THE INFORMATION; AND
   (4) DISPOSES OF PRIVATE INFORMATION WITHIN A REASONABLE AMOUNT OF TIME
 AFTER IT IS NO LONGER NEEDED FOR BUSINESS PURPOSES BY ERASING ELECTRONIC
 MEDIA SO THAT THE INFORMATION CANNOT BE READ OR RECONSTRUCTED.
   (C) A SMALL BUSINESS AS DEFINED IN PARAGRAPH (C) OF SUBDIVISION ONE OF
 THIS  SECTION COMPLIES WITH SUBPARAGRAPH (II) OF PARAGRAPH (B) OF SUBDI-
 VISION TWO OF THIS SECTION IF  THE  SMALL  BUSINESS'S  SECURITY  PROGRAM
 CONTAINS  REASONABLE  ADMINISTRATIVE,  TECHNICAL AND PHYSICAL SAFEGUARDS
 THAT ARE APPROPRIATE FOR THE SIZE AND COMPLEXITY OF THE SMALL  BUSINESS,
 THE  NATURE AND SCOPE OF THE SMALL BUSINESS'S ACTIVITIES, AND THE SENSI-
 TIVITY OF THE PERSONAL INFORMATION THE SMALL BUSINESS COLLECTS  FROM  OR
 ABOUT CONSUMERS.
   (D)  ANY PERSON OR BUSINESS THAT FAILS TO COMPLY WITH THIS SUBDIVISION
 SHALL BE DEEMED TO HAVE VIOLATED SECTION  THREE  HUNDRED  FORTY-NINE  OF
 THIS  CHAPTER,  AND THE ATTORNEY GENERAL MAY BRING AN ACTION IN THE NAME
 AND ON BEHALF OF THE PEOPLE OF THE STATE OF  NEW  YORK  TO  ENJOIN  SUCH
 VIOLATIONS  AND  TO  OBTAIN  CIVIL PENALTIES UNDER SECTION THREE HUNDRED
 FIFTY-D OF THIS CHAPTER.
   (E) NOTHING IN THIS SECTION SHALL CREATE A PRIVATE RIGHT OF ACTION.
   § 5. Paragraph (a) of subdivision 1 and subdivisions 2, 3, 6, 7 and  8
 of section 208 of the state technology law, paragraph (a) of subdivision
 1  and subdivisions 3 and 8 as added by chapter 442 of the laws of 2005,

 S. 6933--B                          7
 
 subdivision 2 and paragraph (a) of subdivision 7 as amended by section 5
 of part N of chapter 55 of the laws of 2013 and subdivisions 6 and 7  as
 amended  by  chapter  491  of  the  laws of 2005, are amended to read as
 follows:
   (a)  "Private information" shall mean EITHER: (I) personal information
 CONSISTING OF ANY INFORMATION in combination with any one or more of the
 following data elements, when either the DATA ELEMENT OR THE COMBINATION
 OF personal information [or] PLUS the data element is not  encrypted  or
 encrypted  with  an  encryption  key  that  has  also  been  ACCESSED OR
 acquired:
   (1) social security number;
   (2) driver's license number or non-driver identification card  number;
 [or]
   (3)  account  number,  OR  credit or debit card number, in combination
 with any required IDENTIFYING INFORMATION, security code,  access  code,
 or  password  which  would  permit  access  to an individual's financial
 account;
   (4) ACCOUNT NUMBER, OR CREDIT OR DEBIT CARD NUMBER,  IF  CIRCUMSTANCES
 EXIST  WHEREIN  SUCH  NUMBER  COULD BE USED TO ACCESS TO AN INDIVIDUAL'S
 FINANCIAL ACCOUNT WITHOUT ADDITIONAL IDENTIFYING  INFORMATION,  SECURITY
 CODE, ACCESS CODE, OR PASSWORD; OR
   (5)  BIOMETRIC INFORMATION, MEANING DATA GENERATED BY ELECTRONIC MEAS-
 UREMENTS OF AN INDIVIDUAL'S UNIQUE  PHYSICAL  CHARACTERISTICS,  SUCH  AS
 FINGERPRINT, VOICE PRINT, OR RETINA OR IRIS IMAGE, OR OTHER UNIQUE PHYS-
 ICAL  REPRESENTATION OR DIGITAL REPRESENTATION WHICH ARE USED TO AUTHEN-
 TICATE OR ASCERTAIN THE INDIVIDUAL'S IDENTITY;
   (II) A USER NAME OR E-MAIL ADDRESS IN COMBINATION WITH A  PASSWORD  OR
 SECURITY  QUESTION  AND  ANSWER  THAT  WOULD  PERMIT ACCESS TO AN ONLINE
 ACCOUNT; OR
   (III) ANY UNSECURED PROTECTED HEALTH INFORMATION HELD  BY  A  "COVERED
 ENTITY"  AS DEFINED IN THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABIL-
 ITY ACT OF 1996 (45 C.F.R.  PTS. 160, 162, 164), AS AMENDED FROM TIME TO
 TIME.
   "Private information" does not include publicly available  information
 that  is  lawfully  made  available  to the general public from federal,
 state, or local government records.
   2. Any state entity that  owns  or  licenses  computerized  data  that
 includes  private  information shall disclose any breach of the security
 of the system following discovery or notification of the breach  in  the
 security  of  the system to any resident of New York state whose private
 information was, or is reasonably believed to  have  been,  ACCESSED  OR
 acquired  by a person without valid authorization.  The disclosure shall
 be made in the most expedient time  possible  and  without  unreasonable
 delay,  consistent  with  the  legitimate  needs  of law enforcement, as
 provided in subdivision four of this section, or any measures  necessary
 to determine the scope of the breach and restore the [reasonable] integ-
 rity  of the data system.  The state entity shall consult with the state
 office of information technology services to determine the scope of  the
 breach and restoration measures. WITHIN NINETY DAYS OF THE NOTICE OF THE
 BREACH,  THE  OFFICE  OF INFORMATION TECHNOLOGY SERVICES SHALL DELIVER A
 REPORT ON THE SCOPE OF THE BREACH AND  RECOMMENDATIONS  TO  RESTORE  AND
 IMPROVE THE SECURITY OF THE SYSTEM TO THE STATE ENTITY.
   (A)  NOTICE  TO AFFECTED PERSONS UNDER THIS SECTION IS NOT REQUIRED IF
 THE EXPOSURE OF PRIVATE INFORMATION WAS  AN  INADVERTENT  DISCLOSURE  BY
 PERSONS  AUTHORIZED  TO ACCESS PRIVATE INFORMATION, AND THE STATE ENTITY
 REASONABLY DETERMINES SUCH EXPOSURE WILL NOT LIKELY RESULT IN MISUSE  OF

 S. 6933--B                          8
 
 SUCH  INFORMATION,  OR  FINANCIAL  OR  EMOTIONAL  HARM  TO  THE AFFECTED
 PERSONS. SUCH A DETERMINATION MUST BE DOCUMENTED IN  WRITING  AND  MAIN-
 TAINED FOR AT LEAST FIVE YEARS. THE STATE ENTITY SHALL PROVIDE THE WRIT-
 TEN  DETERMINATION  TO  THE STATE ATTORNEY GENERAL WITHIN TEN DAYS AFTER
 THE DETERMINATION.
   (B) IF NOTICE OF THE BREACH OF THE SECURITY OF THE SYSTEM IS  MADE  TO
 AFFECTED  PERSONS PURSUANT TO THE BREACH NOTIFICATION REQUIREMENTS UNDER
 ANY OF THE FOLLOWING LAWS, NOTHING IN THIS  SECTION  SHALL  REQUIRE  ANY
 ADDITIONAL  NOTICE  TO THOSE AFFECTED PERSONS, BUT NOTICE STILL SHALL BE
 PROVIDED TO THE STATE ATTORNEY GENERAL, THE DEPARTMENT OF STATE AND  THE
 OFFICE  OF  INFORMATION TECHNOLOGY SERVICES PURSUANT TO PARAGRAPH (A) OF
 SUBDIVISION SEVEN OF THIS SECTION AND  TO  CONSUMER  REPORTING  AGENCIES
 PURSUANT TO PARAGRAPH (B) OF SUBDIVISION SEVEN OF THIS SECTION:
   (I)  REGULATIONS PROMULGATED PURSUANT TO TITLE V OF THE FEDERAL GRAMM-
 LEACH-BLILEY ACT (15 U.S.C. 6801 TO 6809), AS AMENDED FROM TIME TO TIME;
   (II) REGULATIONS IMPLEMENTING THE  HEALTH  INSURANCE  PORTABILITY  AND
 ACCOUNTABILITY  ACT  OF  1996  (45 C.F.R. PARTS 160 AND 164), AS AMENDED
 FROM TIME TO TIME, AND THE HEALTH INFORMATION  TECHNOLOGY  FOR  ECONOMIC
 AND CLINICAL HEALTH ACT, AS AMENDED FROM TIME TO TIME;
   (III) PART FIVE HUNDRED OF TITLE TWENTY-THREE OF THE OFFICIAL COMPILA-
 TION  OF  CODES,  RULES  AND  REGULATIONS  OF  THE STATE OF NEW YORK, AS
 AMENDED FROM TIME TO TIME; OR
   (IV) ANY OTHER DATA SECURITY RULES AND REGULATIONS OF, AND  THE  STAT-
 UTES  ADMINISTERED  BY, ANY OFFICIAL DEPARTMENT, DIVISION, COMMISSION OR
 AGENCY OF THE FEDERAL OR NEW YORK STATE GOVERNMENT AS SUCH RULES,  REGU-
 LATIONS  OR  STATUTES  ARE  INTERPRETED  BY  SUCH  DEPARTMENT, DIVISION,
 COMMISSION OR AGENCY OR BY THE FEDERAL OR NEW YORK STATE COURTS.
   3. Any state entity that maintains  computerized  data  that  includes
 private  information  which  such  agency  does not own shall notify the
 owner or licensee of the information of any breach of  the  security  of
 the  system  immediately following discovery, if the private information
 was, or is reasonably believed to have been, acquired by a person  with-
 out valid authorization.
   6.  Regardless  of the method by which notice is provided, such notice
 shall include contact  information  for  the  state  entity  making  the
 notification,  THE  TELEPHONE NUMBERS AND WEBSITES OF THE RELEVANT STATE
 AND FEDERAL AGENCIES THAT PROVIDE INFORMATION REGARDING SECURITY  BREACH
 RESPONSE  AND IDENTITY THEFT PREVENTION AND PROTECTION INFORMATION and a
 description of the categories of information that were, or  are  reason-
 ably  believed  to  have  been, ACCESSED OR acquired by a person without
 valid authorization, including specification of which of the elements of
 personal information and private information  were,  or  are  reasonably
 believed to have been, so ACCESSED OR acquired.
   7.  (a)  In  the event that any New York residents are to be notified,
 the state entity shall notify the state attorney general, the department
 of state and the state office of information technology services  as  to
 the  timing,  content  and  distribution  of the notices and approximate
 number of affected persons AND PROVIDE A COPY OF  THE  TEMPLATE  OF  THE
 NOTICE  SENT  TO  AFFECTED  PERSONS.   Such notice shall be made without
 delaying notice to affected New York residents.
   (b) In the event that more than five thousand New York  residents  are
 to  be notified at one time, the state entity shall also notify consumer
 reporting agencies as to the timing, content  and  distribution  of  the
 notices and approximate number of affected persons. Such notice shall be
 made without delaying notice to affected New York residents.

 S. 6933--B                          9
 
   8.  THE STATE OFFICE OF INFORMATION TECHNOLOGY SERVICES SHALL DEVELOP,
 UPDATE AND PROVIDE REGULAR TRAINING TO ALL STATE  ENTITIES  RELATING  TO
 BEST  PRACTICES  FOR  THE  PREVENTION OF A BREACH OF THE SECURITY OF THE
 SYSTEM.
    9. Any entity listed in subparagraph two of paragraph (c) of subdivi-
 sion  one of this section shall adopt a notification policy no more than
 one hundred twenty days after the effective date of this  section.  Such
 entity  may  develop a notification policy which is consistent with this
 section or alternatively shall adopt a local  law  which  is  consistent
 with this section.
   §  6.  This  act shall take effect on the ninetieth day after it shall
 have become a law; provided, however, that  section  four  of  this  act
 shall  take  effect  on the two hundred fortieth day after it shall have
 become a law.

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Senate Bill S6933B

Sponsored By

Archive: Last Bill Status - In Senate Committee Finance Committee

Feb 12, 2018 - Consumer Protection Committee Vote

Consumer Protection Committee Vote: Feb 12, 2018

Bill Amendments

2017-S6933 - Details

2017-S6933 - Summary

2017-S6933 - Sponsor Memo

2017-S6933 - Bill Text download pdf

co-Sponsors

2017-S6933A - Details

2017-S6933A - Summary

2017-S6933A - Sponsor Memo

2017-S6933A - Bill Text download pdf

co-Sponsors

2017-S6933B (ACTIVE) - Details

2017-S6933B (ACTIVE) - Summary

2017-S6933B (ACTIVE) - Sponsor Memo

2017-S6933B (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S6933B

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Sponsored By

David Carlucci

Archive: Last Bill Status - In Senate Committee Finance Committee

Bill Amendments

2017-S6933 - Details

2017-S6933 - Summary

2017-S6933 - Sponsor Memo

2017-S6933 - Bill Text download pdf

co-Sponsors

Todd Kaminsky

2017-S6933A - Details

2017-S6933A - Summary

2017-S6933A - Sponsor Memo

2017-S6933A - Bill Text download pdf

co-Sponsors

Todd Kaminsky

2017-S6933B (ACTIVE) - Details

2017-S6933B (ACTIVE) - Summary

2017-S6933B (ACTIVE) - Sponsor Memo

2017-S6933B (ACTIVE) - Bill Text download pdf

Comments