Delaware joins the growing number of states that recently amended their data breach notification law. On August 17th, Delaware amended its data breach notification law with House Bill 180, the first significant change since 2005, effective 240 days after enactment (on or about April 14, 2018).
Delaware maintains the state law trend of requiring businesses to implement reasonable security measures, expanding the definition of personal information, increasing notification requirements, requiring a risk of harm trigger, and requiring mitigation.
Key aspects of Delaware’s amended data breach notification law include:
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Maintain Reasonable Procedures and Practices to Protect Personal Information – Any “person” subject to the amended law, is now required to implement and maintain reasonable security procedures and practices. The definition of “person” has now been expanded to include any business form, governmental entity, “or any other legal entity”.
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Expanding the Definition of “Personal Information” – The definition of “Personal Information” was expanded to include: passport number; a username or email address, in combination with a password or security question and answer that would permit access to an online account; medical history, mental or physical condition, medical treatment or diagnosis by a health care professional, or deoxyribonucleic acid profile; health insurance policy number, subscriber identification number, or any other unique identifier used by a health insurer to identify the person; unique biometric data generated from measurements or analysis of human body characteristics for authentication purposes; and an individual taxpayer identification number.
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Data Breach Notification/Risk of Harm Trigger – Businesses affected by a data breach are now required to give notice to affected state residents “as soon as possible” following the conclusion of an investigation that “misuse of information about a Delaware resident has occurred or is likely to occur”. In addition, the new amendment requires notification within 60 days unless the investigation “reasonably determines that breach of security is unlikely to result in harm to the individuals whose personal information has been breached” or law enforcement has requested a delay in notification.
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Attorney General Notice – If the affected number of Delaware residents to be notified exceeds 500 residents notice must also be provided to the Attorney General.
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Credit Monitoring – If the breach of security includes a social security number, the business is now required to offer to each resident, whose personal information was breached or is reasonably believed to have been breached, reasonable identity theft prevention services and identity theft mitigation services at no cost to such resident for a period of 1 year. Both California and Connecticut have similar provisions.
While all states do not currently require reasonable safeguards or credit monitoring, there appears to be a growing trend (which we expect will continue) to include these requirements when breach notification laws are amended. As such, it is imperative for organizations facing a breach to ensure they are applying the most current law.
