New Mexico Passes Data Breach Notification and Protection Bill

by BakerHostetler
Contact

Then there were two.

On March 16, 2017, the New Mexico state legislature passed a bill requiring that New Mexico residents be notified if their “personal identifying information” was affected by a breach of electronic data. Upon signature of the bill, New Mexico will join 47 other states requiring such notification, and the only states remaining without notification laws will be Alabama and South Dakota.

The New Mexico law is similar to many other state data breach notification laws. Here are some of the bill’s particulars.

  • Prescribed time to notify: With limited exceptions, one must notify affected individuals “in the most expedient time possible, but not later than forty-five calendar days following discovery of the security breach.”
  • “Risk of harm” considered: An exception to notification arises if, after investigation, it is determined that the security breach does not give rise to a significant risk of identity theft or fraud.
  • Data elements that trigger notification: The elements include first name or first initial and last name in combination with Social Security number; driver’s license number; government-issued identification number; account number, credit card number or debit card number in combination with a security code or password; and biometric data.
  • Does the proposed law apply to paper or electronic data? It depends. The notification portion applies only to unencrypted computerized data, but other portions may apply to paper records.
  • Content of the individual notification: The notification to those affected must include the name and contact information of the notifying person; a list of the types of personal identifying information subject to a security breach, if known; the date or estimated date of the breach, 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 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 Fair Credit Reporting and Identity Security Act.
  • Notification to the AG: The New Mexico attorney general must be notified if more than 1,000 New Mexico residents are affected.
  • HIPAA/GLBA exception: The proposed law does not apply to those subject to the Gramm-Leach-Bliley Act or HIPAA.

As in some other states (including California and Texas), the bill also contains a data protection provision requiring reasonable security procedures to protect personal identifying information. While not as detailed or onerous as the law in Massachusetts (which requires, among other things, specific elements of a security program, including encryption where possible), the passed bill states

[a] person that owns or licenses personal identifying information of a New Mexico resident shall implement and maintain reasonable security procedures and practices appropriate to the nature of the information to protect the personal identifying information from unauthorized access, destruction, use, modification or disclosure.

In addition, when personal identifying information of a New Mexico resident is disclosed to a service provider by contract, the contract must require that the “service provider implement and maintain reasonable security procedures and practices appropriate to the nature of the personal identifying information and to protect it from unauthorized access, destruction, use, modification or disclosure.”

Now we play the waiting game for either state No. 49 to throw its hat into the notification ring or the federal government to pass a law that would unify notification obligations across all states.

I’m not holding my breath for the latter.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© BakerHostetler | Attorney Advertising

Written by:

BakerHostetler
Contact
more
less

BakerHostetler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.