With the ever-changing complexity of state data breach notification laws, companies facing a data breach need resources that will help them understand the issues. This summary provides an overview of the similarities and differences in data breach laws adopted in the 50 United States and District of Columbia. All states require that affected residents be notified of a security breach (as that term is defined in each law), and many also require that state agencies and the three major national credit reporting agencies be notified in certain circumstances. Many state agencies require or permit companies to submit notices online, and some agencies publicly post copies of the notices they receive. As a practical matter, most companies that experience a breach that affects their customers, employees, or other individuals with whom they have a relationship will be required to comply with all or several state laws depending on where the individuals reside, and international and sector-specific data breach notification laws may also apply. In addition, many state laws impose data security requirements, which should also be consulted.
Since our last update, several states amended their laws to impose additional requirements, such as free credit monitoring for individuals whose Social Security number is acquired. Notably, the Massachusetts law was recently amended (effective April 11, 2019) to require that, in addition to offering complimentary credit monitoring, companies that experience a breach that triggers notices to the Office of Consumer Affairs and Business Regulation and the Attorney General’s Office must indicate in such notices whether they maintain a written information security program (WISP), as required by the law. The requirement to maintain a WISP is not new, but businesses that experience a breach affecting Massachusetts residents will now be subject to more scrutiny.
The laws continue to evolve and change, so it is important to consult experienced counsel and check relevant laws for any updates whenever you experience a data breach.