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This entry was published on 2019-11-01
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SECTION 208
Notification; person without valid authorization has acquired private information
State Technology (STT) CHAPTER 57-A, ARTICLE 2
§ 208. Notification; person without valid authorization has acquired
private information. 1. As used in this section, the following terms
shall have the following meanings:

(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 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;

(3) account number, credit or debit card number, in combination with
any required security code, access code, password or other information
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
measurements of an individual's unique physical characteristics, such as
fingerprint, voice print, or retina or iris image, or other unique
physical representation or digital representation which are used to
authenticate or ascertain the individual's identity; or

(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.

"Private information" does not include publicly available information
that is lawfully made available to the general public from federal,
state, or local government records.

(b) "Breach of the security of the system" shall mean unauthorized
acquisition or acquisition without valid authorization of computerized
data which compromises the security, confidentiality, or integrity of
personal information maintained by a state entity. Good faith
acquisition of personal information by an employee or agent of a state
entity for the purposes of the agency 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 acquired, or is reasonably
believed to have been acquired, by an unauthorized person or a person
without valid authorization, such state entity 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

(3) indications that the information was used by an unauthorized
person, such as fraudulent accounts opened or instances of identity
theft reported.

(c) "State entity" shall mean any state board, bureau, division,
committee, commission, council, department, public authority, public
benefit corporation, office or other governmental entity performing a
governmental or proprietary function for the state of New York, except:

(1) the judiciary; and

(2) all cities, counties, municipalities, villages, towns, and other
local agencies.

(d) "Consumer reporting agency" shall mean any person which, for
monetary 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 state entities required to make a notification under
subdivision two of this section.

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 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 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
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. If the incident affected over five
hundred residents of New York, the state entity 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 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
compilation 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
statutes administered by, any official department, division, commission
or agency of the federal or New York state government as such rules,
regulations 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, accessed or acquired by a
person without valid authorization.

4. The notification required by this section may be delayed if a law
enforcement agency determines that such notification impedes a criminal
investigation. The notification required by this section shall be made
after such law enforcement agency determines that such notification does
not compromise such investigation.

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 state entity 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
notification is kept by the state entity who notifies affected persons;
or

(d) Substitute notice, if a state entity demonstrates to the state
attorney 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 agency
does not have sufficient contact information. Substitute notice shall
consist of all of the following:

(1) e-mail notice when such state entity has an e-mail address for the
subject persons;

(2) conspicuous posting of the notice on such state entity's web site
page, if such agency maintains one; and

(3) notification to major statewide media.

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
reasonably 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.

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 covered entity required to provide notification of a breach,
including breach of information that is not "private information" as
defined in paragraph (a) of subdivision one of this section, to the
secretary of health and human services pursuant to the Health Insurance
Portability and Accountability Act of 1996 or the Health Information
Technology for Economic and Clinical Health Act, as amended from time to
time, shall provide such notification to the state attorney general
within five business days of notifying the secretary.

10. Any entity listed in subparagraph two of paragraph (c) of
subdivision 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.