|Va. Code § 18.2-186.6 (effective July 1, 2008), § 32.1-127.1:05 (effective January 1, 2011) |
Application. An individual, corporation, business trust, estate, partnership, limited partnership, limited liability partnership, limited liability company, association, organization, joint venture, government, governmental subdivision, agency, or instrumentality or any other legal entity, whether for profit or not for profit (collectively, Entity) that owns or licenses computerized data that includes PI.
Security Breach Definition. Unauthorized access and acquisition of unencrypted and unredacted computerized data that compromises the security or confidentiality of PI maintained by an Entity as part of a database of PI regarding multiple individuals and that causes, or the Entity reasonably believes has caused, or will cause, identity theft or other fraud to any resident of VA.
- A separate provision covering health information applies only to government entities, defined as any authority, board, bureau, commission, district or agency of the Commonwealth or of any political subdivision of the Commonwealth, including cities, towns and counties, municipal councils, governing bodies of counties, school boards and planning commissions; boards of visitors of public institutions of higher education; and other organizations, corporations, or agencies in VA supported wholly or principally by public funds.
Notification Obligation. If unencrypted or unredacted PI was or is reasonably believed to have been accessed and acquired by an unauthorized person and causes, or the Entity reasonably believes has caused or will cause, identity theft or another fraud to any resident of VA, an Entity to which the statute applies shall disclose any breach of the security of the system following discovery or notification of the breach of the security of the system to any affected resident of VA.
- Good-faith acquisition of PI by an employee or agent of an Entity for the purposes of the Entity is not a breach of the security of the system, provided that the PI is not used for a purpose other than a lawful purpose of the individual or entity or subject to further unauthorized disclosure.
Notification to Consumer Reporting Agencies. In the event an Entity provides notice to more than 1,000 persons at one time pursuant to the general security breach section, the Entity shall notify, without unreasonable delay, all consumer reporting agencies that compile and maintain files on consumers on a nationwide basis of the timing, distribution, and content of the notice.
- An Entity shall disclose the breach of the security of the system if encrypted information is accessed and acquired in an unencrypted form, or if the security breach involves a person with access to the encryption key and the Entity reasonably believes that such a breach has caused or will cause identity theft or other fraud to any resident of VA.
- For health information, the Entity must notify both the subject of the medical information and any affected resident of VA, if those are not the same person.
Attorney General/Agency Notification. The state AG must be notified whenever any VA residents are notified under the criteria above. In the event an Entity provides notice to more than 1,000 persons at one time pursuant to this section, the individual or entity shall notify, without unreasonable delay, the state AG of the timing, distribution, and content of the notice. For health information, the Entity must also notify the Commissioner of Health.
Third-Party Data Notification. An Entity that maintains computerized data that includes PI that the Entity does not own or license shall notify the owner or licensee of the information of any breach of the security of the system without unreasonable delay following discovery of the breach of the security of the system, if the PI was accessed and acquired by an unauthorized person or the Entity reasonably believes the PI was accessed and acquired by an unauthorized person.
Timing of Notification. Notice required by the statute shall be made without unreasonable delay. Notice may be reasonably delayed to allow individual or entity to determine scope of the breach of security and restore the reasonable integrity of the system.
Personal Information Definition. The first name or first initial and last name in combination with and linked to any one or more of the following data elements that relate to a resident of VA, when the data elements are neither encrypted nor redacted:
The health information breach law applies to the first name or first initial and last name with any of the following elements:
- Social Security Number;
- Driver license number or state identification card number issued in lieu of a driver license 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 a resident’s financial accounts.
PI does not include information that is lawfully obtained from publicly available information, or from federal, state, or local government records lawfully made available to the general public.
- Any information regarding an individual’s medical or mental health history, mental or physical condition, or medical treatment or diagnosis by a health care professional; or
- 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.
Notice Required. Notice shall include a description of the following:
- The incident in general terms;
- The type of PI or medical information that was subject to the unauthorized access and acquisition;
- The general acts of the individual or entity to protect the PI from further unauthorized access;
- A telephone number that the person may call for further information and assistance, if one exists; and
- Advice that directs the person to remain vigilant by reviewing account statements and monitoring free credit reports.
Substitute Notice Available. If the Entity demonstrates that the cost of providing notice will exceed $50,000, the affected class of VA residents to be notified exceeds 100,000 residents, or the individual or the entity does not have sufficient contact information or consent to provide written, electronic or telephonic notice. Substitute notice consists of all of the following:
- Written notice to the last known postal address in the records of the individual or entity;
- Telephone notice; or
- Electronic notice.
Exception: Own Notification Policy. An Entity that maintains its own notification procedures as part of an information privacy or security policy for the treatment of PI that are consistent with the timing requirements of this section shall be deemed to be in compliance with the notification requirements of this section if it notifies residents of VA in accordance with its procedures in the event of a breach of the security of the system.
- E-mail notice if the individual or the entity has e-mail addresses for the members of the affected class of residents;
- Conspicuous posting of the notice on the Entity’s Web site if the Entity maintains one; and
- Notice to major statewide media.
Exception: Compliance with Other Laws.
Penalties. The state AG may impose a civil penalty not to exceed $150,000 per breach of the security of the system or a series of breaches of a similar nature that are discovered in a single investigation. (This provision does not apply to health information breaches.)
- Gramm-Leach-Bliley Act. An entity that is subject to Title V of the Gramm-Leach-Bliley Act and maintains procedures for notification of a breach of the security of the system in accordance with the provision of that Act and any rules, regulations, or guidelines promulgated thereto shall be deemed to be in compliance with this section.
- Primary Regulator. An entity that complies with the notification requirements or procedures pursuant to the rules, regulations, procedures, or guidelines established by the entity’s primary or functional state or federal regulator shall be in compliance with this section.
- HIPAA-Covered Entities. The notification requirements for incidents involving medical information do not apply to (i) a “covered entity” or “business associate” subject to requirements for notification in the case of a breach of protected health information (42 U.S.C. § 17932 et seq.) or (ii) a person or entity who is a non-HIPAA-covered entity subject to the Health Breach Notification Rule promulgated by the Federal Trade Commission pursuant to 42 U.S.C. § 17937 et seq.
Other Key Provisions:
- Delay for Law Enforcement. Notice required by this section may be delayed if, after the Entity notifies a law enforcement agency, the law enforcement agency determines and advises the Entity that the notice will impede a criminal or civil investigation, or homeland or national security. Notice shall be made without unreasonable delay after the law enforcement agency determines that the notification will no longer impede the investigation or jeopardize national or homeland security.
- AG Enforcement.