When businesses set out to safeguard “personal information,” a fundamental consideration is what that term means. Likewise, when negotiating a third-party vendor agreement, it typically is not enough to rely on the standard definition for “confidential information.” Recently, Nevada and other states have updated their definitions of personal information in connection data breaches notification and safeguarding requirements. We cannot cover all of the updates here, but particularly for organizations in multiple states, it is important to ask the question and consider exactly what elements of personal information require protection. You may end up being more protective and include more data than necessary, it may be practical to do so, but you will want to know what must be protected.
The Usual Suspects
In states that have enacted data breach notification laws or affirmative obligations to protect personal information, you can count on personal information including the usual suspects: Social Security number (SSN), drivers’ license number or state identification number, and financial account numbers and payment card numbers with access codes. Why? Well, in general, these are the data elements believed to be the ones most likely used in the commission of identity theft. Note a few states, like Nevada, make clear the law does not apply to the last four digits of some of these numbers, including the SSN.
But, of course, state laws are not the only source for law on the classes of personal information that warrant protection. Depending on the nature of your business, federal and international laws can also play a significant role in shaping the definition of personal information in your policy, as can contractual obligations.
Casting a Wider Net
One of the few states with an encryption mandate, Nevada recently expanded the scope of personal information subject to that mandate. Prior to the amendment, the state law (NRS 603A.040) defined personal information as noted above: Social Security number, drivers’ license number or state identification number, and financial account numbers and payment card numbers with access codes. Massachusetts, which also has encryption mandate, uses a similar definition. With the enactment of Assembly Bill No. 179, which becomes effective July 1, 2015 (though compliance is not require until July 1, 2016), “personal information” also includes:
- driver authorization card number;
- a medical identification number;
- a health insurance identification number; and
- a user name, unique identifier or electronic mail address in combination with a password, access code or security question and answer that would permit access to an online account.
A quick survey of some of the 47 state data breach notification laws reveals, in addition to the elements above, other elements of personal information that could trigger a notification requirement in certain states, such as:
- biometric data, such as a fingerprint, retina or iris image;
- date of birth;
- maiden name;
- an identification number assigned by an employer; and
- digitized or other electronic signature.
As noted, classifications of personal information requiring protection are not solely a function of state law.
From a consumer protection standpoint, the Federal Trade Commission takes a broad view of personal information that needs to be secured and protected. In a decision concerning whether a company adequately safeguarded customer information, the FTC defined that term to include the following elements:
- first and last name;
- home or other physical address;
- e-mail address or other online contact information, such as an instant messaging user identifier or a screen name;
- telephone number;
- Social Security number;
- driver’s license or other state-issued identification number;
- financial institution account number;
- credit or debit card information;
- persistent identifier, such as a customer number held in a “cookie,” a static Internet Protocol (“IP”) address, a mobile device ID, or processor serial number;
- precise geolocation data of an individual or mobile device, including GPS-based, WiFi-based, or cell-based location information;
- an authentication credential, such as a username and password; or,
- any other communications or content that is input into, stored on, captured with, accessed, or transmitted through a covered device, including but not limited to contacts, e-mails, text messages, photos, videos, and audio recording.
For covered entities and business associates under HIPAA, “protected health information” encompasses health information, including demographic information, about an individual (and which does or can reasonably identify the individual) that relates to the (i) past, present, or future physical or mental health or condition of an individual, (ii) the provision of health care to an individual, or (iii) the past, present, or future payment for the provision of health care to an individual.
For employers, federal statutes like the Genetic Information Nondiscrimination Act (GINA) can be a trap for the unwary. It requires genetic information be safeguarded and not disclosed, except under certain circumstances. It may seem unusual, but one example of genetic information is information about the manifestation of disease in the spouse of an employee.
If you are charged with preparing your company to be compliant with safeguarding personal information, it is worth spending some time thinking about what personal information you need to protect. This requires knowing your business, where you do business, where your employees and customers reside, who you do business with, what youe contractual obligations are, and a number of other factors. The answers may surprise you.