Kentucky Gov. Steve Beshear signed H.R. 232 on April 10, 2014, making the Commonwealth the 47th state to enact a data breach notification law. The law also limits how cloud service providers can use student data. A breach notification law in New Mexico may follow shortly.

Data Breach Notification Mandate

The Kentucky law follows the same general structure of many of the breach notification laws in the other states:

  • A breach of the security of the system happens when there is unauthorized acquisition of unencrypted and unredacted computerized data that compromises the security, confidentiality, or integrity of personally identifiable information maintained by the information holder as part of a database regarding multiple individuals that actually causes, or leads the information holder to reasonably believe has caused or will cause, identity theft or fraud against any resident of Kentucky. The law does not refer to “access” only acquisition, and appears to have a risk of harm trigger.
  • The good faith acquisition of personally identifiable information by an employee or agent of the information holder for the purposes of the information holder is not a breach if the personally identifiable information is not used or subject to further unauthorized disclosure.
  • “Personally identifiable information” means an individual’s first name or first initial and last name in combination with the individual’s (i) Social Security number, (ii) Driver’s license number; or (iii) Account number, credit or debit card number, in combination with any required security code, access code, or password permit access to an individual’s financial account.
  • The notification required under the law must be made in the most expedient time possible and without unreasonable delay, consistent with the legitimate needs of law enforcement or any measures necessary to determine the scope of the breach and restore the reasonable integrity of the data system.
  • Notice may be provided in writing and can be provided electronically if the E-Sign Act requirements are met. For larger breaches, the law also contains substitute notice provisions similar to those in other states.
  • If notification is required to more than 1,000 Kentuckians at one time under this law, all nationwide consumer reporting agencies and credit bureaus also must be notified of the timing, distribution and content of the notices. However, the law does not require the Kentucky Attorney General to be notified of the incident, as is the case in a number of other states such as California, Maryland, Massachusetts, New Hampshire, and New York.
  • The law excludes persons and entities that are subject to Title V of the Gramm-Leach-Bliley Act of 1999 and the Health Insurance Portability and Accountability Act of 1996 (HIPAA). Of course, covered entities, business associates and certain vendors have their own breach notification requirements.

Protections for Student Data In the Cloud

The law is designed to protect student data at educational institutions, public or private, including any administrative units, that serve students in kindergarten through grade twelve when stored in the “cloud”. We may see more of these kinds of laws, particularly in light of the Fordham Law School study on the topic. For purposes of this law, “student data” means

any information or material, in any medium or format, that concerns a student and is created or provided by the student in the course of the student’s use of cloud computing services, or by an agent or employee of the educational institution in connection with the cloud computing services. Student data includes the student’s name, email address, email messages, postal address, phone number, and any documents, photos, or unique identifiers relating to the student.

Cloud providers serving these institutions in Kentucky need to be aware of this law not only so they can take steps to comply, but because it requires the providers to certify in their services contracts with the educational institutions that the providers will comply with this new law.

Specifically, the law prohibits cloud computing service providers from “processing student data for any purpose other than providing, improving, developing, or maintaining the integrity of its cloud computing services, unless the provider receives express permission from the student’s parent.” Processing is defined pretty broadly, it means to “use, access, collect, manipulate, scan, modify, analyze, transform, disclose, store, transmit, aggregate, or dispose of student data.”

While the provider may assist an educational institution with certain research permitted under the Family Educational Rights and Privacy Act of 1974, also known as “FERPA,” it may not use the data to “advertise or facilitate advertising or to create or correct an individual or household profile for any advertisement purpose.” Finally, the provider may not sell, disclose, or otherwise process student data for any commercial purpose.

 

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.