Proposed data breach bill in Washington State: comments

So I’ve just read the proposed legislation for revising Washington State’s data breach notification law (see the WA AG’s press release on the proposal here).

A few comments/observations on the bill:

1. The bill eliminates the word “computerized” before “data,” thereby seemingly expanding the data breach notification requirements to paper records or other formats.  That is a good thing.

2. The bill eliminates the blanket safe harbor for “encrypted” data. I understand that logic that what some entities might call “encrypted” might be easy to break, but why damp down the motivation to encrypt? Why not continue to offer safe harbor, but specify that the encryption must be NIST-grade or meet some high standard?

3. The bill, which is oriented to financial data, continues to use an acquisition standard/trigger as opposed to an access standard. It also adds a new exemption:

Notice is not required if the breach of the security of the system is not reasonably likely to subject consumers to a risk of criminal activity.

That language is problematic, as who determines the risk or likelihood? And what about breaches of sensitive personal information that may not result in criminal activity but could have other serious consequences for consumers?

4. Personal information is defined as an “individual’s first name or first initial and last name in combination with any one or more of the following data elements:

(a) Social security number;

(b) Driver’s license number or Washington identification card number; or

(c) Full account number, credit or debit card number,  or any required security code, access code, or password that would permit access to an individual’s financial account.

Again: why is the state only concerned about financial accounts? What about the risk of medical identity theft?

The focus on financial accounts and financial crimes does not serve consumers as well as a broader bill covering more data types might.  And given that consumers continue to re-use login credentials across sites and account types, the lack of requirement to notify of a breach involving login credentials could leave consumers in the dark when they could use a warning.

5. The bill will require entities to report the breach to consumers within 30 days, barring an exemption for law enforcement purposes, with a  number of options for how notification is provided.

6. Breaches affecting more than 500 consumers would have to be reported to the state, as California requires.

Overall, although there are a few good features, this bill could be so much better for consumers than what has been proposed.

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