Recently the state of New Mexico enacted the Data Breach Notification Act, making it the 48th state in the United States to enact a statute requiring notice to individuals impacted by a data breach. In doing so, New Mexico follows some trends we’ve been predicting at the state level. These trends include covering encrypted data in the definition of personal information if the encryption key is accessed as well, and – importantly – requiring that companies engage in reasonable security measures to protect personal information in their possession. New Mexico also joins a handful of states that protect biometric information as personal information.
Here are some other highlights:
- Companies subject to the data breach notice requirements of GLBA and HIPAA are exempt;
- Notice of a data breach must be given no later than 45 days after discovery of the breach;
- Notice to impacted individuals must include the following:
- The name and contact information of the notifying person;
- A list of the types of personal identifying information that are reasonably believed to have been the subject of a security breach, if known;
- The date of the security breach, the estimated date of the breach or the range of dates within which the security breach occurred, if known;
- A general description of the security breach incident;
- The toll-free telephone numbers and addresses of the major consumer reporting agencies;
- Advice that directs the recipient to review personal account statements and credit reports, as applicable, to detect errors resulting from the security breach; and
- Advice that informs the recipient of the notification of the recipient’s rights pursuant to the federal Fair Credit Reporting Act.
- Notice is not required if the company determines, after a reasonable investigation, that the data breach will not give rise to a “significant risk” of identity theft or fraud;
- Notice can be delayed by law enforcement; and
- Notice to the New Mexico Attorney General’s office and to consumer reporting agencies is required if more than 1,000 New Mexico residents are given notice for a single breach.
With respect to those “reasonable security measures,” the Act only requires measures “appropriate to the nature of the information.” In other words, the Act recognizes that not all personal information requires the same level of security. The scope of the protection, however, is broad. The security measures must protect the personal information (as defined by the Act) from “unauthorized access, destruction, use, modification or disclosure.”
Notably, the New Mexico Attorney General can bring an action on behalf of impacted individuals for injunctive relief, damages and costs. For knowing or reckless violations, the court can also impose a civil money penalty of the greater of $25,000 or if the violation is failure to give notice of a data breach, $10 per each failure to give notice up to a maximum of $150,000. This means that not only should companies dealing with data breaches involving New Mexico residents ensure that they are accurately and quickly capturing all New Mexico residents impacted by the breach, entities that own or license personal identifying information of a resident of New Mexico should implement a data security program that includes reasonable measures to protect personal information as well as proper disposal of that information when it is no longer needed. Fortunately, entities have time – although not a lot – to get this done. The Act, which can be found here , goes into effect on June 16, 2017.
Alabama and South Dakota are the only remaining U.S. states without a data breach notice statute.
With two decades of experience as a practicing attorney, Karin McGinnis, CIPP US, has handled a wide variety of privacy and data security matters for her clients, with a special emphasis on privacy and data security issues in the workplace. Ms. McGinnis’ privacy and data security experience includes counseling and litigation regarding misappropriation of trade secrets, violation of the Computer Fraud and Abuse Act and state computer trespass laws, common law privacy torts, discovery challenges posed by the Stored Communications Act, privacy of consumer financial information under Gramm-Leach-Bliley, and confidentiality rights concerning mental health consumers. Ms. McGinnis also handles a wide variety of data breach matters for her clients, including those involving PCI-DSS compliance, and has worked with the USSS and the FBI in investigating potential cyber-crime. She has assisted clients with drafting and creating data breach procedures, mobile device policies and agreements, FACTA Red Flag policies and procedures, online privacy policies, international ethics hotlines, international data transfer agreements, vendor agreements, and employee data security training. Ms. McGinnis is co-chair of the firm’s Privacy and Data Security Group.