In a novel approach to data breach notification requirements, Texas has amended its breach notification law (Business & Commerce Code, Section 521.053) to require notification to residents of not only Texas, but to residents of each of the 50 states.  The amendment becomes effective September 1, 2012, and applies to “all persons who conduct business in the state,” without further defining what “conducting business” would entail. 

The law was amended to require notification of a breach of system security to any individual whose sensitive personal information was, or is reasonable believe to have been, acquired by an unauthorized person.  A review of the amendment reflects the legislature’s intent to expand the notification requirement by its deletion of the language “resident of this state” from the current data breach notification law. 

This law has obvious far reaching import for residents of the four states which do not currently maintain data breach notification laws (Alabama, Kentucky, New Mexico, and South Dakota).  Under Texas’ law, residents of these states whose personal information is owned, licensed or maintained by a business/employer subject to Texas law would now receive notification of a breach of their personal information. 

Additionally, Texas’ breach notification law does not include a “risk of harm trigger.”  A number of state data breach notification laws only require notification where illegal use of the breached personal information has occurred, or is reasonably likely to occur and that creates a risk of harm to a person.  However, under Texas’ law, notification is required only upon acquisition, without regard to a risk of harm.  While Texas’ amended law appears to include some limiting language on its application to states that have their own breach notification laws, as worded, it is unclear whether this would include states whose risk of harm trigger would not require notification.  Accordingly, for those entities which conduct business in Texas, notification of those affected may be required even if the individual’s home state would not have required notice in the case of low-risk breaches 

The amendment also adds civil penalties for any person who fails to take reasonable actions to comply with the notification requirements.  These penalties are compounded by the number of individuals who are not notified and for each consecutive day notification is not provided, resulting in a maximum fine of $250,000.  Additionally, the amendment makes a violation a misdemeanor, unless the breached information is protected by HIPAA, which would elevate the violation to a felony. 

Companies, especially those that maintain vast amounts of personal information for persons in multiple states, must be aware of the various state laws which potentially impact there business and amendments like those highlighted above. See also recent amendments to the breach notification statutes in California and Illinois.

Print:
EmailTweetLikeLinkedIn
Photo of Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. and a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Mr. Gavejian focuses on the matrix…

Jason C. Gavejian is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. and a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

As a Certified Information Privacy Professional (CIPP/US), Mr. Gavejian focuses on the matrix of laws governing privacy, security, and management of data. Mr. Gavejian is Co-Editor of, and a regular contributor to, the firm’s Workplace Privacy, Data Management & Security Report blog.

Mr. Gavejian’s work in the area of privacy and data security includes counseling international, national, and regional companies on the vast array of privacy and security mandates, preventive measures, policies, procedures, and best practices. This includes, but is not limited to, the privacy and security requirements under state, federal, and international law (e.g., HIPAA/HITECH, GDPR, California Consumer Privacy Act (CCPA), FTC Act, ECPA, SCA, GLBA etc.). Mr. Gavejian helps companies in all industries to assess information risk and security as part of the development and implementation of comprehensive data security safeguards including written information security programs (WISP). Additionally, Mr. Gavejian assists companies in analyzing issues related to: electronic communications, social media, electronic signatures (ESIGN/UETA), monitoring and recording (GPS, video, audio, etc.), biometrics, and bring your own device (BYOD) and company owned personally enabled device (COPE) programs, including policies and procedures to address same. He regularly advises clients on compliance issues under the Telephone Consumer Protection Act (TCPA) and has represented clients in suits, including class actions, brought in various jurisdictions throughout the country under the TCPA.

Mr. Gavejian represents companies with respect to inquiries from the HHS/OCR, state attorneys general, and other agencies alleging wrongful disclosure of personal/protected information. Mr. Gavejian negotiates vendor agreements and other data privacy and security agreements, including business associate agreements. His work in the area of privacy and data security includes counseling and coaching clients through the process of investigating and responding to breaches of the personally identifiable information (PII) or protected health information (PHI) they maintain about consumers, customers, employees, patients, and others, while also assisting clients in implementing policies, practices, and procedures to prevent future data incidents.

Mr. Gavejian represents management exclusively in all aspects of employment litigation, including restrictive covenants, class-actions, harassment, retaliation, discrimination, and wage and hour claims in both federal and state courts. Mr. Gavejian regularly appears before administrative agencies, including the Equal Employment Opportunity Commission (EEOC), the Office for Civil Rights (OCR), the New Jersey Division of Civil Rights, and the New Jersey Department of Labor. Mr. Gavejian’s practice also focuses on advising/counseling employers regarding daily workplace issues.

Mr. Gavejian’s litigation experience, coupled with his privacy practice, provides him with a unique view of many workplace issues and the impact privacy, data security, and social media may play in actual or threatened lawsuits.

Mr. Gavejian regularly provides training to both executives and employees and regularly speaks on current privacy, data security, monitoring, recording, BYOD/COPE, biometrics (BIPA), social media, TCPA, and information management issues. His views on these topics have been discussed in multiple publications, including the Washington Post, Chicago Tribune, San Francisco Chronicle (SFGATE), National Law Review, Bloomberg BNA, Inc.com, @Law Magazine, Risk and Insurance Magazine, LXBN TV, Business Insurance Magazine, and HR.BLR.com.

Mr. Gavejian is the Co-Chair of Jackson Lewis’ Hispanic Attorney Resource Group, a group committed to increasing the firm’s visibility among Hispanic-American and other minority attorneys, as well as mentoring the firm’s attorneys to assist in their training and development. Mr. Gavejian also previously served on the National Leadership Committee of the Hispanic National Bar Association (HNBA) and regularly volunteers his time for pro bono matters.

Prior to joining Jackson Lewis, Mr. Gavejian served as a judicial law clerk for the Honorable Richard J. Donohue on the Superior Court of New Jersey, Bergen County.