Who Is Covered?
An individual or entity that owns or licenses computerized data that includes personal information. W. Va. Code § 46A-2A-102(a).
What Information Is Protected?
“Personal information” means the first name or first initial and last name linked to any one or more of the following data elements that relate to a resident of this state, when the data elements are neither encrypted nor redacted:
- Social security number;
- Driver’s license number or state identification card number issued in lieu of a driver’s license; or
- Financial account number, or credit card, or debit card number in combination with any required security code, access code or password that would permit access to a resident’s financial accounts. W. Va. Code § 46A-2A-101(6).
What Is A “Breach”?
“Breach of the security of a system” means the unauthorized access and acquisition of unencrypted and unredacted computerized data that compromises the security or confidentiality of personal information maintained by an individual or entity as part of a database of personal information regarding multiple individuals and that causes the individual or entity to reasonably believe that the breach of security has caused or will cause identity theft or other fraud to any resident of this state. Good faith acquisition of personal information by an employee or agent of an individual or entity for the purposes of the individual or the entity is not a breach of the security of the system, provided that the personal information is not used for a purpose other than a lawful purpose of the individual or entity or subject to further unauthorized disclosure. W. Va. Code § 46A-2A-101(1).
What Triggers Notification?
The discovery or notification of the breach of the security of the system involving any resident of this state whose unencrypted and unredacted personal information was or is reasonably believed to have been accessed and acquired by an unauthorized person and that causes, or the individual or entity reasonably believes has caused or will cause, identity theft or other fraud to any resident of this state. W. Va. Code § 46A-2A-102(a).
An individual or entity must give notice of the breach of the security of the system if encrypted information is accessed and acquired in an unencrypted form or if the security breach involves a person with access to the encryption key and the individual or entity reasonably believes that such breach has caused or will cause identity theft or other fraud to any resident of this state. W. Va. Code § 46A-2A-102(b).
How Is Notice Provided To Individuals?
Timing: The notice must be made without reasonable delay, subject to the needs of law enforcement. W. Va. Code § 46A-2A-102(a).
Delivery: Notice may be by:
- Written notice to the postal address in the records of the individual or entity;
- Telephonic notice;
- Electronic notice, if the notice provided is consistent with the provisions regarding electronic records and signatures, set forth in Section 7001, United States Code Title 15, Electronic Signatures in Global and National Commerce Act;
- Substitute notice, if the individual or the entity required to provide notice demonstrates that the cost of providing notice will exceed $50,000 or that the affected class of residents to be notified exceeds 100,000 persons or that the individual or the entity does not have sufficient contact information or to provide notice as described [above]. Substitute notice consists of any two of the following: (i) E-mail notice if the individual or the entity has e-mail addresses for the members of the affected class of residents; (ii) Conspicuous posting of the notice on the website of the individual or the entity if the individual or the entity maintains a website; or (iii) Notice to major statewide media. W. Va. Code § 46A-2A-101(7).
Content: The notice must include:
- To the extent possible, a description of the categories of information that were reasonably believed to have been accessed or acquired by an unauthorized person, including social security numbers, driver’s licenses or state identification numbers and financial data;
- A telephone number or website address that the individual may use to contact the entity or the agent of the entity and from whom the individual may learn: a) What types of information the entity maintained about that individual or about individuals in general; and b) Whether or not the entity maintained information about that individual.
- The toll-free contact telephone numbers and addresses for the major credit reporting agencies and information on how to place a fraud alert or security freeze. W. Va. Code § 46A-2A-102(d).
Is Notice To The Government Required?
No.
Is Notice To Credit Reporting Agencies Required?
Yes. If an entity is required to notify more than one thousand persons of a breach of security pursuant to this article, the entity shall also notify, without unreasonable delay, all consumer reporting agencies that compile and maintain files on a nationwide basis of the timing, distribution and content of the notices. Nothing in this subsection shall be construed to require the entity to provide to the consumer reporting agency the names or other personal identifying information of breach notice recipients. This subsection shall not apply to an entity who is subject to Title V of the Gramm Leach Bliley Act. W. Va. Code § 46A-2A-102(f).
Are There Security Measure Standards?
No.
What Are The Possible Consequences Of A Violation?
Failure to comply with the notice provisions constitutes an unfair or deceptive act or practice and may be enforced by the Attorney General pursuant to the enforcement provisions of this chapter. W. Va. Code § 46A-2A-104(a).
No civil penalty may be assessed in an action unless the court finds that the defendant has engaged in a course of repeated and willful violations of this article. No civil penalty shall exceed $150,000 per breach of security of the system or series of breaches of a similar nature that are discovered in a single investigation. W. Va. Code § 46A-2A-104(b).
A violation by a licensed financial institution is enforceable exclusively by the financial institution’s primary functional regulator. W. Va. Code § 46A-2A-104(c).
Are There Any Exemptions/Exceptions?
An entity that maintains its own notification procedures as part of an information privacy or security policy for the treatment of personal information and that are consistent with the timing requirements of this article shall be deemed to be in compliance with the notification requirements of this article if it notifies residents of this state in accordance with its procedures in the event of a breach of security of the system. W. Va. Code § 46A-2A-103(a).
Additionally, a financial institution that responds in accordance with the notification guidelines prescribed by the Federal Interagency Guidance on Response Programs for Unauthorized Access to Customer Information and Customer Notice is deemed to be in compliance with this article. W. Va. Code § 46A-2A-103(b).
Also, an entity that complies with the notification requirements or procedures pursuant to the rules, regulations, procedures or guidelines established by the entity’s primary or functional regulator shall be in compliance with this article. W. Va. Code § 46A-2A-103(c).