New York

N.Y. Gen. Bus. Law § 899-aa

A.B. 4254 (signed into law August 10, 2005)

N.Y. State Tech. Law § 208

Effective December 7, 2005

Application. Any person, business, or state entity (excepting the judiciary, cities, counties, municipalities, villages, towns and other local agencies) (collectively, Entity) which conducts business in New York state and which owns or licenses computerized data which includes private information.

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

Security Breach Definition. Unauthorized acquisition or acquisition without valid authorization of computerized data that compromises the security, confidentiality, or integrity of PI maintained by a business. In determining whether information has been acquired, or is reasonably believed to have been acquired, by an unauthorized person or a person without valid authorization, Entities may consider the following factors, among others:

Indications that the information is in the physical possession and control of an unauthorized person, such as a lost or stolen computer or other device containing information;
Indications that the information has been downloaded or copied; or
Indications that the information was used by an unauthorized person, such as fraudulent accounts opened or instances of identity theft reported.

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 private information is not used or subject to unauthorized disclosure.

Notification Obligation. Any Entity to which the statute applies shall disclose any breach of the security following discovery or notification of the breach in the security of the system to any resident of NY whose private information was, or is reasonably believed to have been, acquired by a person without valid authorization.

Notification to Consumer Reporting Agencies. If more than 5,000 NY residents are to be notified at one time, the Entity shall also notify consumer reporting agencies as to the timing, content and distribution of the notices and approximate number of affected persons.

Attorney General/Agency Notification. If any NY residents are to be notified, the Entity shall notify the state Attorney General, the consumer protection board, and the state Office of Cyber Security and Critical Infrastructure Coordination as to the timing, content and distribution of the notices and approximate number of affected persons. The state AG’s website has a form to be used for notifications.

Third-Party Data Notification. Any Entity that maintains computerized data that includes private information that the Entity does not own shall notify the owner or licensee of the information of any breach of the security of the system immediately following discovery, if the private information was, or is reasonably believed to have been, acquired by a person without valid authorization.

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

Personal Information Definition. Information concerning a natural person which, because of name, number, personal mark, or other identifier, can be used to identify such natural person.

Private Information Definition. Personal information consisting of any information in combination with any one or more of the following data elements, when either the personal information or the data element is not encrypted, or encrypted with an encryption key that has also been acquired:

Social Security Number;
Driver license number or non-driver identification card number; or
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.

Notice Required. Notice shall include:

Contact information for the Entity making the notification; and
A description of the categories of information that were, or are reasonably believed to have been, acquired by a person without valid authorization, including specification of which of the elements of PI and private information were, or are reasonably believed to have been, so acquired.

The notice required shall be directly provided to the affected persons by one of the following methods:

Written notice;
Telephonic notice, provided that a log of each such notification is kept by the Entity; or
Electronic notice, provided that the person to whom notice is required has expressly consented to receiving said notice in electronic form and a log of each such notification is kept by the Entity who notifies affected persons in such form; provided further, however, that in no case shall any Entity require a person to consent to accepting said notice in said form as a condition of establishing any business relationship or engaging in any transaction.

Substitute Notice Available. If the Entity demonstrates to the state AG 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 addresses 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.

Other Key Provisions:

Delay for Law Enforcement. The notification required by this section may be delayed if a law enforcement agency determines that such notification impedes a criminal investigation. The required notification shall be made after such law enforcement agency determines that such notification does not compromise such investigation.
AG Enforcement. The AG may bring an action to enjoin and restrain the continuation of such violation.