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Financial Services Law Insights and Observations

States enact data breach notification laws; Oregon prohibits fees for security freezes

Privacy/Cyber Risk & Data Security Courts Damages Data Breach Credit Reporting Agency Security Freeze State Legislation

Privacy, Cyber Risk & Data Security

On March 21, the South Dakota governor signed SB 62, which requires companies that hold consumers’ personal information to (i) notify consumers within 60 days of a data breach; and (ii) notify the state Attorney General if more than 250 consumers are affected. Notice must be provided to consumers either by mail; electronic notice; or, in certain circumstances, substitute notice (e.g., a posting on the company’s website or notification to statewide media). The law gives the state Attorney General the authority to prosecute a failure to disclose a data breach as a deceptive act or practice under South Dakota’s consumer protection laws, which can result in penalties of up to $10,000 a day per violation. A disclosure is not required if notice is given to the state Attorney General and following an “appropriate investigation,” the company determines that the breach “will not likely result in harm to the affected person.” The law is effective July 1.

A similar measure was signed by the Oregon governor on March 16. Effective on or about June 10, Oregon’s SB 1551 mandates that a person or entity that “owns, licenses, or otherwise possesses personal information” that suffered a security breach must notify the affected consumers within 45 days and, if more than 250 consumers were affected, must also notify the state Attorney General. The person or entity must also undertake reasonable measures to “determine scope of breach of security and to restore reasonable integrity, security and confidentiality of personal information.” Additionally, the law sets out guidelines regarding credit monitoring services and security freezes:

  • Credit Monitoring Services. Among other things, SB 1551 provides that if a person or entity offers free credit monitoring services to affected consumers, the entity may not require a credit or debit card number as a condition for the service. If additional identity theft services are offered for a fee, the person or entity must “separately, distinctly, clearly and conspicuously” disclose the charging of the fee.
  • Security Freezes. SB 1551 prohibits a consumer reporting agency from charging a fee for placing, temporarily lifting, or removing a security freeze. Moreover, it prevents credit reporting agencies from charging fees for replacing a lost personal identification number or password. Recently, Michigan, Utah, Washington, and Virginia enacted similar prohibitions (previously covered by InfoBytes, here, here, and here).
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