May 122011
 

To cut to the chase: you can read the language of the proposed data breach notification law here.

Sadly, the proposed language allows entities NOT to notify affected individuals if they conduct a risk assessment and determine that there is no risk to those whose data were breached.

Other problems I see on a first reading are:

1. The law would only apply to entities dealing with 10,000 or more individuals in a 12-month period. That would still leave us without a national data breach law for smaller entities. Don’t their breaches put us at risk?

2. There does not seem to be a provision that would permit the FTC to reject an entity’s risk assessment exemption and to tell them that no, they must notify individuals.

3. The proposal does not require the entity to provide important details about the breach to affected individuals such as when the breach occurred and when it was first detected, or even how the breach occurred – was it a hack, or web exposure, or…?

4. The proposal would supersede much stronger state breach notification laws.

5. The proposal does not establish or recognize a private cause of action.

6. The proposal would still leave us without any national data breach notification law that would apply to paper records outside of HIPAA-covered entities.

7. The proposal does not require the breached entity to post a prominent notice linked from the home page of any web site they maintain.

I’m sure I’ll have other concerns when I read this again tomorrow, but right now, there’s just so much wrong with this weak bill that I wish someone would just go smack the WH on its head and tell them to read this blog or other privacy advocacy sites that have been pointing out certain problems and needs forever.

Update: The government has posted a section-by-section analysis of the data breach notification provisions.

  2 Responses to “President’s cybersecurity agenda includes proposed federal data breach notification law”

  1. IN RE #4 above: It was my understanding that state laws were to be adhered to BEFORE considering federal laws addressing the same issues (being that they were always/usually more stringent than federal laws).

    • I wish you were correct, but Section 109 is quite clear that the proposed law will supersede any state law on notification of a breach involving computerized data for entities dealing with over 10k people in a 12-mo. period with one exception – the states can require the entity to include information on victim protection assistance if it is offered by the state.

      What may not be as clear is what happens in cases of breaches that involve entities dealing with fewer than 10k people per year, etc. In that case, state law may still apply, but that’s a guess on my part as I’m not sure how to interpret the proposal.

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