Senate Bill No. 340
(By Senators Kessler, Chafin, Oliverio, Barnes, White, Foster,
Hunter, Green, Minard, Wells, Jenkins, Yoder, Love, Guills, Unger
[Introduced January 24, 2008; referred to the Committee on the
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.
For the purposes of this article, the following terms have the
(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. 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 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.
(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, 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,
and 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 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 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;
(E) Biometric data; or
(F) Any of items listed in items (A) through (E) of this
subdivision, when not in connection with the consumer's last name,
address or telephone 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 if the 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.
(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
with 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,
for notice legally required to be in writing, set forth in Section
7001, Title 15 of the United States Code, Electronic Signatures in
Global and National Commerce Act; 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 two hundred fifty thousand people, or the data
collector does not have sufficient contact information. Substitute
notice consists of all of the following:
(A) Conspicuous posting of the notice on the Internet site of
the data collector, if the data collector maintains a public
Internet 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) To the extent possible, 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 person or the agent of the data collector or
person and from whom the consumer may learn:
(A) What types of information the data collector or person
maintained about that consumer or about consumers in general;
(B) Whether or not the data collector or person 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
(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 provided under subsection (b)
of this section 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 damages.
(b) Any data collector that violates, proposes to violate or
has violated 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.
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
notify consumers when the unauthorized acquisition of data that
compromises the security, confidentiality or integrity of personal
information maintained by the data collector occurs. 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.