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Delaware Amends Personal Information Protection Law

On August 17, 2017, Delaware amended its personal information protection law, Delaware Code Title 6, Chapter 12B.  The amendment becomes effective 240 days after enactment or March 14, 2018. The amended law significantly enhances the protections afforded Delaware residents whose personal information has been – or is reasonably believed to have been – breached, by adding obligations on the part of a person or entity who conducts business in Delaware or owns, licenses and maintains “personal information” as the Delaware law defines the term. The major changes to the law are as follows:

Definition of “Personal Information.”  The amended law greatly expands the definition of “personal information” under Delaware law to include passport numbers, usernames and email addresses, including passwords and answers to security questions, driver’s license numbers, and mental health, physical condition, medical information, health insurance numbers, DNA information, unique biometric data, and tax payer identification numbers.

Disclosure of Breach.  The current Delaware statute requires notice to a Delaware resident of a breach of security of computerized personal information if the owner or licensee of the data determines that the data was misused or is reasonably likely to be misused. Notice is required without unreasonable delay, but no specific time period is set.  Under the amended law, following a determination of a breach, any person or entity who conducts business in Delaware or who owns or licenses computerized data containing personal information must provide notice of any breach of security to any Delaware resident whose personal information was breached or is reasonably believed to have been breached, except if the owner or licensee determines that the breach is unlikely to result in harm to the individual whose personal information was breached.  In addition, the new statute imposes a deadline for notice:  those affected by the breach must be notified no later than sixty days after discovery of the breach.  In addition, if more than 500 Delaware residents must be notified, the owner or licensee must also provide notice of the breach to the Attorney General by the time notice is provided to the resident.

Credit Monitoring.  Where the breach includes a Social Security Number, the amended law also requires that the person or entity offer one year of free credit monitoring to each Delaware resident whose personal information (including Social Security Number) was or is reasonably believed to have been breached.

Reasonable Procedures and Practices. The amended law also adds a new section that specifically requires any person or entity who conducts business in Delaware or who owns, licenses, or maintains personal information to implement and maintain reasonable procedures and practices to prevent the unauthorized acquisition, use, modification and disclosure or destruction of personal information collected or maintained in the regular course of business. Neither the new section nor existing law addresses specific requirements for these “reasonable procedures and practices.”

Delaware follows a growing trend among states to require companies to have data security procedures.  Even if your company is not located in a state with such a requirement, consider implementing written procedures as a best practice.  Your states may be next.  For further questions regarding the amended Delaware law, please contact Carol Bowen at carolbowen@mvalaw.com or Ragini Acharya at raginiacharya@mvalaw.com and for further information concerning this or other privacy and data security matters, please contact any member of our MVA Privacy and Data Security Team.

Carol Ewald Bowen

About Carol Ewald Bowen

For over 20 years – including eight years as in-house counsel for a large national health care company – Carol Bowen has focused exclusively on representation of health care providers and other stakeholders in the health care industry. Her legal knowledge, coupled with a practical and responsive approach, helps clients achieve their business goals within the complex health law framework. Ms. Bowen’s clients include major health care companies, hospitals, physician groups, entrepreneurial health care businesses and national lenders within the industry. Ms. Bowen leads the Firm’s Health Law practice in the Charlotte office. She is a frequent speaker for client and industry groups on health care issues and has served as an editorial consultant to several health care publications.

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