Tag Archives: California

California

Who Is Covered?

A person or business doing business in California that: (a) owns or licenses computerized data that includes personal information; or (b) maintains computerized data that includes personal information that the person or business does not own. Cal Civ Code § 1798.82(a), (b).

What Information Is Protected?

For the purposes of providing disclosure of a breach, “personal information” is defined as:

A. An individual’s first name or first initial and last name in combination with any one or more of the following data elements, when either the name or the data elements are not encrypted:

  1. Social security number.
  2. Driver’s license number, California identification card number, tax identification number, passport number, military identification number, or other unique identification number issued on a government document commonly used to verify the identity of a specific individual.
  3. Account number or credit or debit card number, in combination with any required security code, access code, or password that would permit access to an individual’s financial account.
  4. Medical information.
  5. Health insurance information.
  6. Unique biometric data generated from measurements or technical analysis of human body characteristics, such as a fingerprint, retina, or iris image, used to authenticate a specific individual. Unique biometric data does not include a physical or digital photograph, unless used or stored for facial recognition purposes.
  7. Information or data collected through the use or operation of an automated license plate recognition system, or

B. A username or email address, in combination with a password or security question and answer that would permit access to an online account. Cal Civ Code § 1798.82(h).

What Is A “Breach”?

“Breach of the security of the system” means unauthorized acquisition of computerized data that compromises the security, confidentiality, or integrity of personal information maintained by the person or business. Good faith acquisition of personal information by an employee or agent of the person or business for the purposes of the person or business is not a breach of the security of the system, provided that the personal information is not used or subject to further unauthorized disclosure. Cal Civ Code § 1798.82(g).

What Triggers Notification?

Discovery or notification of the breach in the security of the data to a resident of California (1) whose unencrypted personal information was, or is reasonably believed to have been, acquired by an unauthorized person, or, (2) whose encrypted personal information was, or is reasonably believed to have been, acquired by an unauthorized person and the encryption key or security credential was, or is reasonably believed to have been, acquired by an unauthorized person and the person or business that owns or licenses the encrypted information has a reasonable belief that the encryption key or security credential could render that personal information readable or usable. Cal Civ Code § 1798.82(a).

How Is Notice Provided To Individuals?

Timing: The disclosure shall be made in the most expedient time possible and without unreasonable delay, consistent with the legitimate needs of law enforcement, or any measures necessary to determine the scope of the breach and restore the reasonable integrity of the data system. Cal Civ Code § 1798.82(a).

Delivery: Notice may be provided by one of the following:

  1. Written notice.
  2. Electronic notice, if the notice provided is consistent with the provisions of the E-Sign Act.
  3. Substitute notice, if the person or business demonstrates that the cost of providing notice would exceed $250,000, or that the affected class of subject persons to be notified exceeds 500,000, or the person or business does not have sufficient contact information. Substitute notice must consist of all of the following: a) Email notice when the person or business has an email address for the subject persons. b) Conspicuous posting, for a minimum of 30 days, of the notice on the internet website page of the person or business, if the person or business maintains one. For purposes of this subparagraph, conspicuous posting on the person’s or business’s internet website means providing a link to the notice on the home page or first significant page after entering the internet website that is in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from the surrounding text of the same size by symbols or other marks that call attention to the link. c) Notification to major statewide media. Cal Civ Code § 1798.82(j).

Content: The statute provides a sample notification form that must include the following information, and the Attorney General provides online forms.

  1. The name and contact information of the reporting person or business subject to this section.
  2. A list of the types of personal information that were or are reasonably believed to have been the subject of a breach.
  3. If the information is possible to determine at the time the notice is provided, then any of the following: (i) the date of the breach, (ii) the estimated date of the breach, or (iii) the date range within which the breach occurred. The notification shall also include the date of the notice.
  4. Whether notification was delayed as a result of a law enforcement investigation, if that information is possible to determine at the time the notice is provided.
  5. A general description of the breach incident, if that information is possible to determine at the time the notice is provided.
  6. The toll-free telephone numbers and addresses of the major credit reporting agencies if the breach exposed a social security number or a driver’s license or California identification card number.
  7. If the person or business providing the notification was the source of the breach, an offer to provide appropriate identity theft prevention and mitigation services, if any, shall be provided at no cost to the affected person for not less than 12 months along with all information necessary to take advantage of the offer to any person whose information was or may have been breached if the breach exposed or may have exposed personal information. Cal Civ Code § 1798.82(d).

Is Notice To The Government Required?

Yes. A person or business that is required to issue a security breach notification pursuant to this section to more than 500 California residents as a result of a single breach of the security system shall electronically submit a single sample copy of that security breach notification, excluding any personally identifiable information, to the Attorney General. Cal Civ Code § 1798.82(f).

Is Notice To Consumer Reporting Agencies Required?

No.

Are There Security Measure Standards?

Yes. A business that owns, licenses, or maintains personal information about a California resident must implement and maintain reasonable security procedures and practices appropriate to the nature of the information, to protect the personal information from unauthorized access, destruction, use, modification, or disclosure. Cal Civ Code § 1798.81.5(b).

Additionally, a business that discloses personal information about a California resident pursuant to a contract with a nonaffiliated third party that is not subject to subdivision (b) shall require by contract that the third party implement and maintain reasonable security procedures and practices appropriate to the nature of the information, to protect the personal information from unauthorized access, destruction, use, modification, or disclosure. Cal Civ Code § 1798.81.5(c).

Further, a business shall take all reasonable steps to dispose, or arrange for the disposal, of customer records within its custody or control containing personal information when the records are no longer to be retained by the business by (a) shredding, (b) erasing, or (c) otherwise modifying the personal information in those records to make it unreadable or undecipherable through any means. Cal Civ Code § 1798.81.

These security measure and data disposal requirements do not apply to:

  1. A provider of health care, health care service plan, or contractor regulated by the Confidentiality of Medical Information Act (Part 2.6 (commencing with Section 56) of Division 1).
  2. A financial institution as defined in Section 4052 of the Financial Code and subject to the California Financial Information Privacy Act (Division 1.2 (commencing with Section 4050) of the Financial Code).
  3. A covered entity governed by the medical privacy and security rules issued by the federal Department of Health and Human Services, Parts 160 and 164 of Title 45 of the Code of Federal Regulations, established pursuant to the Health Insurance Portability and Availability Act of 1996 (HIPAA).
  4. An entity that obtains information under an agreement pursuant to Article 3 (commencing with Section 1800) of Chapter 1 of Division 2 of the Vehicle Code and is subject to the confidentiality requirements of the Vehicle Code.
  5. A business that is regulated by state or federal law providing greater protection to personal information than that provided by this section in regard to the subjects addressed by this section. Compliance with that state or federal law shall be deemed compliance with this section with regard to those subjects. This paragraph does not relieve a business from a duty to comply with any other requirements of other state and federal law regarding the protection and privacy of personal information. Cal Civ Code § 1798.81.5(e).

What Are The Possible Consequences Of A Violation?

Under the breach notification laws, any customer injured by a violation may institute a civil action to recover damages. Additionally, if the business is subject to the California Consumer Privacy Act, a consumer can recover an amount not less than $100 and not greater than $750 per incident or actual damages, whichever is greater, for a violation of the duty to implement and maintain reasonable security procedures and practices. Cal Civ Code § 1798.84(b); Cal Civ Code § 1798.150(a).

The general breach notification law provides for injunctive relief but not civil penalties. Cal Civ Code § 1798.84(e).

Are There Any Exemptions/Exceptions?

The data breach notification law does not contain any exemptions or exceptions, but the California Consumer Privacy Act does not apply to, among other things, personal information collected, processed, sold, or disclosed pursuant to the federal Gramm-Leach-Bliley Act, protected health information that is collected by a covered entity or business associate pursuant to HIPAA and certain activity governed by the FCRA. Cal Civ Code § 1798.145.