Introduced Version
Senate Bill 241 History
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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 241
(By Senators Kessler, Unger, Love, Hunter and Green)
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[Introduced January 17, 2008; referred to the Committee on the
Judiciary.]
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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 of any
breach of consumer information security; 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
said article are severable under certain circumstances.
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.
§46A-2B-101. Definitions.
For the purposes of this article, the following terms 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, if the personal
information is not used for a purpose unrelated to the data
collector or subject to further unauthorized disclosure.
(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
parties.
(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 article
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. 1681b
as in effect on the effective date of this article.
(5) "Credit card" means any card, plate, coupon book or other
credit device existing for the purpose of obtaining money,
property, labor or services on credit.
(6) "Data Collector" includes, but is not limited to, a sole proprietorship, partnership, corporation, association or other
group, however organized and whether or not organized to operate at
a profit, including a financial institution organized, chartered or
holding a license or authorization certificate under the law of
this state, any other state, the United States, or of any other
country, or the parent or subsidiary of a financial institution, or
any other entity that, 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 the financial institution, for the purpose of
transferring money between accounts or obtaining money, property,
labor or services.
(8) "Person" means any individual, firm, partnership,
association, corporation, limited liability company, organization
or any other entity, but does not include the state or any
political subdivision of the state or any agency of the state.
(9) "Personal information" means an individual's first name or
first initial and 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:
(A) Social Security number;
(B) Driver's license number or state identification card
number;
(C) Account number, credit or debit card number, if
circumstances exist where the number could be used without
additional identifying information, access codes or passwords;
(D) Account passwords or personal identification numbers or
other access codes; or
(E) Biometric data;
"Personal information" does not include publicly available
information that is lawfully made available to the general public
from federal, state or local government records.
§46A-2B-102. Notice of breach.
(a) Except as provided in subsection (d) 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 resident shall notify the
resident 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 (d) of this section, or
any measures necessary to determine the scope of the breach and
restore the reasonable integrity, security and confidentiality of
the data system.
(b) For purposes of this section, notice to consumers may be
provided by one of the following methods:
(1) Written notice;
(2) Electronic notice, if the notice provided is consistent
with the provisions regarding electronic records and signatures set
forth in Section 7001, Title 15 of the United States Code; or
(3) 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 five hundred thousand people, or the data
collector does not have sufficient contact information. Substitute
notice consists of the following:
(A) Conspicuous posting of the notice on the web site page of
the data collector, if the data collector maintains a public web
site page; and
(B) 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.
(c) The notice shall include:
(1) A description of the categories of information that were
reasonably believed to have been accessed or acquired by an
unauthorized person, including social security numbers, driver's
license or state identification numbers and financial data; and
(2) A toll-free number that the consumer may use to contact
the data collector or the agent of the data collector and from whom
the consumer may learn:
(A) What types of information the data collector maintained
about that consumer or about consumers in general;
(B) Whether or not the data collector maintained information
about that consumer; and
(C) The toll-free contact telephone numbers and addresses for
the major credit reporting agencies.
(d) 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. The notification
required by this section shall be made after the law-enforcement
agency determines that the notification will not compromise the
investigation.
(e) 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 required and on request, and
at no cost to the 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 after that. The data
collector shall, in the alternative, pay for security freeze fees
for each of the major nationwide credit reporting agencies and for
fees associated with two temporary lifts per agency for a twelve
month period.
§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.
§46A-2B-105. Remedies and enforcement.
(a) Any consumer injured by a violation of this article may
institute a civil action to recover actual damages.
(b) Any data collector who violates or proposes to violate
this article may be enjoined as provided in article seven of this chapter.
(c) The Attorney General may enforce this article.
(d) The rights and remedies available under this section are
cumulative to each other and to any other rights and remedies
available under law.
§46A-2B-106. Severability.
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 is not affected by the
federal law or regulation
.
NOTE: The purpose of this bill is to provide a procedure to
address 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 of a breach of information security 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.