H. B. 4551
(By Delegates Marshall, Eldridge, Miley, Caputo,
Manchin, DeLong, Webster, Brown and Carmichael)
[Introduced February 14, 2006; referred to the
Committee on the Judiciary.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §46A-2B-101,
§46A-2B-102, §46A-2B-103, §46A-2B-104, §46A-2B-105 and
§46A-2B-106, all relating to the unauthorized acquisition of
data that compromises the security, confidentiality, or
integrity of personal information maintained by the data
collector; requiring notification to the consumer that there
has been a breach of the security of information maintained on
a consumer following discovery or notification of the breach;
requiring certain actions by data collectors with respect to
breach of security; prohibiting waiver of provisions; making
violations an unconscionable act; providing civil penalties
for violations; providing other remedies; and providing that
the provisions of the article are severable under certain
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §46A-2B-101,
§46A-2B-102, §46A-2B-103, §46A-2B-104, §46A-2B-105 and §46A-2B-106,
all to read as follows:
ARTICLE 2B. BREACH OF SECURITY OF CONSUMER INFORMATION.
For the purposes of this article, the following terms shall
have the following meanings:
(1)"Breach of the security of the data" means unauthorized
acquisition of computerized or noncomputerized data that
compromises the security, confidentiality, or integrity of personal
information maintained by the data collector. Good faith
acquisition of personal information by an employee or agent of the
data collector for a legitimate purpose of the data collector is
not a breach of the security of the data, provided that the
personal information is not used for a purpose unrelated to the
data collector or subject to further unauthorized disclosure.
Breach of the security of noncomputerized data may include but is
not limited to unauthorized photocopying, facsimiles, or other
paper-based transmittal of documents.
(2)"Consumer" means an individual.
(3)"Consumer reporting agency" means any person which, for
monetary fees, dues, or on a cooperative nonprofit basis, regularly
engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on
consumers for the purpose of furnishing consumer reports to third
(4)"Consumer report" or "credit report" means any written,
oral, or other communication of any information by a consumer
reporting agency bearing on a consumer's credit worthiness, credit
standing, credit capacity, character, general reputation, personal
characteristics, or mode of living which is used or expected to be
used or collected, in whole or in part, for the purpose of serving
as a factor in establishing the consumer's eligibility for:
(a)Credit or insurance to be used primarily for personal,
family, or household purposes, except that nothing in this act
authorizes the use of credit evaluations, credit scoring or
insurance scoring in the underwriting of personal lines of property
or casualty insurance;
(b)Employment purposes; or
(c)Any other purpose authorized under section 15 U.S.C.
(5)"Credit card" has the same meaning as in section 103 of
the Truth in Lending Act.
(6)"Data Collector" includes, but is not limited to,
government agencies, public and private universities, privately and
publicly held corporations, financial institutions, retail
operators, and any other entity which, for any purpose, whether by automated collection or otherwise, handles, collects, disseminates,
or otherwise deals with personal information.
(7)"Debit card" means any card or device issued by a
financial institution to a consumer for use in initiating an
electronic fund transfer from the account holding assets of the
consumer at such financial institution, for the purpose of
transferring money between accounts or obtaining money, property,
labor, or services.
(8) "Person" means any individual, partnership, corporation,
trust, estate, cooperative, association, government or governmental
subdivision or agency, or other entity.
(9) "Personal information" means a consumer's last name,
address, or phone number in combination with any one or more of the
following data elements, when either the name or the data elements
are not encrypted or redacted, or encrypted with an encryption key
that was also acquired:
(a) Social Security number.
(b) Driver's license number or state identification card
(c) Account number, credit or debit card number, if
circumstances exist wherein such a number could be used without
additional identifying information, access codes, or passwords.
(d) Account passwords or personal identification numbers
(PINs) or other access codes.
(e) Biometric data.
(f) Any of items listed in (a)through (e) above, when not in
connection with the consumer's last name, address or phone number,
if the information compromised would be sufficient to perform or
attempt to perform identity theft against the person whose
information was compromised.
"Personal information" does not include publicly available
information that is lawfully made available to the general public
from federal, state, or local government records: Provided, That
such publicly available information has not been aggregated or
consolidated into an electronic database or similar system by the
governmental agency or by another person.
§46A-2B-102. Notice of breach.
(1) Except as provided in subsection five of this section, any
data collector that owns or uses personal information in any form
(whether computerized, paper, or otherwise) that includes personal
information concerning a West Virginia consumer shall notify the
consumer that there has been a breach of the security of the data
following discovery or notification of the breach. The disclosure
notification shall be made in the most expedient time possible and
without unreasonable delay, consistent with the legitimate needs of
law enforcement, as provided in subsection (5) of this section, or
with any measures necessary to determine the scope of the breach
and restore the reasonable integrity, security and confidentiality of the data system.
(2) For purposes of this section, "notice" to consumers may be
provided by one of the following methods:
(a) Written notice; or
(b) Electronic notice, if the notice provided is consistent
with the provisions regarding electronic records and signatures,
for notices legally required to be in writing, set forth in Section
7001 of Title 15 of the United States Code (Electronic Signatures
in Global and National Commerce); or
(c) Substitute notice, if the data collector demonstrates that
the cost of providing notice would exceed two hundred fifty
thousand dollars or that the affected class of subject persons to
be notified exceeds two hundred fifty thousand people, or the data
collector does not have sufficient contact information. Substitute
notice shall consist of all of the following:
(i) Conspicuous posting of the notice on the Internet site of
the data collector, if the data collector maintains a public
Internet site; and
(ii) Notification to major statewide media. The notice to
media shall include a toll-free phone number where a consumer can
learn whether or not that consumer's personal information is
included in the security breach.
(3) The notice shall include:
(a) To the extent possible, a description of the categories of information that was, or is reasonably believed to have been,
acquired by an unauthorized person, including social security
numbers, driver's license or state identification numbers and
financial data; and
(b) A toll-free number that the consumer may use to contact
the data collector or person, or the agent of the data collector or
person; and from which the consumer may learn:
(i) What types of information the data collector or person
maintained about that consumer or about consumers in general;
(ii) Whether or not the data collector or person maintained
information about that consumer;
(iii) The toll-free contact telephone numbers and addresses
for the major credit reporting agencies.
(4) The notification required by this section may be delayed
if a law-enforcement agency determines, in writing, that the
notification may impede a criminal investigation.
(5) A data collector required to provide notification under
this article shall provide or arrange for the provision of, to each
consumer to whom notification is provided under subsection (2) of
this section and on request and at no cost to such consumer,
consumer credit reports from at least one of the major credit
reporting agencies beginning not later than two months following a
breach of security and continuing on a quarterly basis for a period
of two years thereafter.
§46A-2B-103. Waiver invalid.
Any waiver of the provisions of this article is contrary to
public policy, and is void and unenforceable.
§46A-2B-104. Unconscionable acts.
Violation of any provision of this article constitutes an
unconscionable act and is subject to the penalties set forth in
article seven of this chapter.
(1) Any consumer injured by a violation of this article may
institute a civil action to recover damages.
(2) Any data collector that violates, proposes to violate, or
has violated this article may be enjoined as provided in article
seven in this chapter.
(3) The rights and remedies available under this section are
cumulative to each other and to any other rights and remedies
available under law.
The provisions of this article are severable. If any phrase,
clause, sentence, provision or section is declared to be invalid or
preempted, in whole or in part, by federal law or regulation, the
validity of the remainder of this article shall not be affected
NOTE: The purpose of this bill is to provide a procedure upon
the unauthorized acquisition of data that compromises the security,
confidentiality, or integrity of personal information maintained by
the data collector. The bill requires that consumers be notified
that there has been a breach of the security of information
maintained by the data collector. Civil penalties and other
remedies are provided for violations.
This article is new; therefore, strike-throughs and
underscoring have been omitted.