California

Cal. Civ. Code § 1798.29; 1798.80 et seq.

S.B. 1386 (signed into law September 25, 2002)

Effective July 1, 2003

S.B. 24 (signed into law August 31, 2011)

Effective January 1, 2012

Application. Any person, business, or state agency (collectively, Entity) that does business in CA and owns or licenses computerized data that contains PI.

The provisions governing maintenance of PI that the Entity does not own appear applicable to any Entity maintaining information on CA residents, whether or not the Entity conducts business in CA.

Security Breach Definition. An unauthorized acquisition of computerized data that compromises the security, confidentiality, or integrity of PI maintained by the Entity.

Good-faith acquisition of PI by an employee or agent of the Entity for the purposes of the Entity is not a breach of the security of the system, provided that the PI is not used or subject to further unauthorized disclosure.

Notification Obligation. Any Entity to which the statute applies shall disclose any breach of the security of the system following discovery or notification of the breach in the security of the data to any CA resident whose unencrypted PI was, or is reasonably believed to have been, acquired by an unauthorized person.

Attorney General Notification. If an Entity is required to notify more than 500 CA residents, the Entity shall electronically submit a single sample copy of the notification, excluding any personally identifiable information, to the Attorney General.

Third-Party Data Notification. If an Entity maintains computerized data that includes PI that the Entity does not own, the Entity must notify the owner or licensee of the information of any breach of the security of the data immediately following discovery if the PI was, or is reasonably believed to have been, acquired by an unauthorized person.

Timing of Notification. The disclosure shall be made in the most expedient time possible and without unreasonable delay, consistent with the legitimate needs of law enforcement and any measures necessary to determine the scope of the breach and restore the reasonable integrity of the data system.

Personal Information Definition. An individual’s first name or first initial and last name in combination with any one or more of the following data elements, when either the name or the data elements are not encrypted:

Social Security Number;
Driver license number or CA identification card number;
Account number or credit card number or debit card number in combination with any required security code, access code, or password that would permit access to an individual’s financial account;
Medical information (any information regarding an individual’s medical history, mental or physical condition, or medical treatment or diagnosis by a health care professional); or
Health insurance information (an individual’s health insurance policy number or subscriber identification number, any unique identifier used by a health insurer to identify the individual, or any information in an individual’s application and claims history, including any appeals records).

PI does not include publicly available information that is lawfully made available to the general public from federal, state, or local government records.

Notice Required. Notice may be provided by one of the following methods:

Written notice; or
Electronic notice, if the notice provided is consistent with the provisions regarding electronic records and signatures set forth in 15 U.S.C. § 7001 (E-SIGN Act).

The notice shall be clear and conspicuous and shall include a description of the following:

Date of the notice;
Name and contact information for the Entity;
Type of PI subject to the unauthorized access and acquisition;
The date, estimated date, or date range during which the breach occurred, if it can be determined;
Whether notification was delayed as a result of law enforcement investigation, if that can be determined;
The toll-free telephone numbers and addresses of the major credit reporting agencies if the breach exposed a social security number or a driver's license or California identification card number.

At the Entity’s discretion, the notice may also include:

Information about what the Entity has done to protect individuals whose information has been breached;
Advice on steps that the person whose information was breached may take to protect him or herself

Substitute Notice Available. If the Entity demonstrates that the cost of providing notice would exceed $250,000, or that the affected class of subject persons to be notified exceeds 500,000, or the Entity does not have sufficient contact information. Substitute notice shall consist of all of the following:

Email notice when the Entity has an email address for the subject persons;
Conspicuous posting of the notice on the Entity’s Web site if the Entity maintains one; and
Notification to major statewide media and the California Office of privacy Protection. State agencies using substitute notice must notify the California Office of Information Security.

Exception: Own Notification Policy. An Entity that maintains its own notification procedures as part of an information security policy for the treatment of PI and is otherwise consistent with the timing requirements of the statute shall be deemed in compliance with the notification requirements of the statute if it notifies subject persons in accordance with its policies in the event of a security breach.

Exception: HIPAA-Covered Entities (effective Jan. 1, 2012). A covered entity under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) will be deemed to have complied with the notice requirements in this state law if it has complied with the notice requirements in Section 13402(f) of the Health Information Technology for Economic and Clinical Health Act (HITECH).

Other Key Provisions:

Delay for Law Enforcement. Notification may be delayed if the law enforcement agency determines that the notification will impede a criminal investigation. The notification required by the statute shall be made after the law enforcement agency determines that it will not compromise the investigation.
Private Right of Action. Any customer injured by a violation of this title may institute a civil action to recover damages. In addition, any business that violates, proposes to violate, or has violated this title may be enjoined.
Waiver Not Permitted.