Massachusetts and Oregon
Join Numerous Other States
by Adopting Data Breach Notification Legislation

Massachusetts and Oregon have become the two latest states to join the flood of data breach notification legislation, bringing the total number of such state laws to 39.

Although there are several pieces of federal legislation working their way through Congress that may help businesses to address the growing compliance problem by preempting conflicting state laws, as of this writing, no federal action has been forthcoming.

Beginning February 3, 2008, businesses and Massachusetts government agencies that maintain, store, lease or own personal information of Massachusetts residents will be required to notify consumers when that information is lost or stolen. The data breach notification legislation, which was signed into law on August 3, 2007, has several features that differentiate it from other state data breach notification laws, including civil penalties. In addition to the owners or licensors of personal data, the Massachusetts law imposes specific notification requirements on businesses that merely store or maintain personal data. The law requires business entities that store or maintain, but do not own, personal data to provide notice as soon as possible to the owner or licensor of the data. As with other similar state laws, entities that own or license the personal data are required to provide notice to Massachusetts residents if there has been a security breach compromising personal information. Another requirement of which to be aware is the additional reporting requirement: The owner or licensor must also provide notice to the Massachusetts’ attorney general, director of consumer affairs and business regulation and ultimately to the consumer reporting agencies and state agencies identified by the director of consumer affairs. Notice must be given “as soon as possible” and “without unreasonable delay.”

Like most states with data breach notification laws, personal information includes first name or initial and last name combined with one of the following: social security number, driver’s license number, state identification card or passport number or financial account information along with password or security code information. A breach is defined as an unauthorized acquisition or use of unencrypted data. A breach also occurs when the security of encrypted data is compromised.

Businesses that own or lease the data must provide notice to Massachusetts’ residents by written or electronic means. Substitute notice is permitted if the cost of providing written notice exceeds $250,000 or the number of affected residents exceeds 500,000. The notice must include information about a consumer’s right to obtain a police report and detailed information about how a consumer requests a security freeze. The notice should not include the nature of the breach or unauthorized use or the number of residents affected by it.

Businesses in compliance with federal laws covering protection and privacy of personal information are considered in compliance with Massachusetts law as long as affected Massachusetts residents are notified in accordance with the federal law. Civil penalties of not more that $5,000 per violation may be imposed along with costs of any investigation and litigation including attorneys’ fees.

The law also requires companies and state agencies to destroy documents and erase data containing personal information when disposing of records.

Oregon’s recently adopted breach notification law is somewhat different than Massachusetts’ in that it requires businesses to develop, implement and maintain reasonable safeguards to protect the security and confidentiality of personal information. A business is considered in compliance with the Oregon law if it implements a data security program that meets certain technical, physical and administrative standards. Notice is required in Oregon if unauthorized access of data “materially compromises” the confidentiality or security of personal information. For a comparison of the Massachusetts and Oregon laws, and other pending and enacted state data breach notification laws, click here.

Businesses should take action to limit exposure by reviewing their data collection practices and implementing an incident response plan that would comply with the notice requirements in the various states in which they have customers.

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Cynthia Larose, CIPP
617.348.1732 | CJLarose@mintz.com

Stefani Watterson, CIPP
202.661.8706 | SVWatterson@mintz.com

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