As we suspected, California’s current governor, Edmund G. “Jerry” Brown, Jr. (D), signed into law S.B. 24, which adds some additional protections to the state’s current data breach notification requirements. The champion of this law and its recent enhancements, State Sen. Joe Simitian (D-Palo Alto), has finally succeeded after a number of prior attempts to pass this measure were vetoed by then-Gov. Arnold Schwarzenegger (R).

Summary of Changes

Under S.B. 24, breaches occurring on and after January 1, 2012, that require notification to California residents will have to meet the following additional requirements:

• The notifications themselves will need to satisfy specific content requirements, such as including a description of the type of information breached, time of breach, and toll-free telephone numbers and addresses of the major credit reporting agencies;
• If more than 500 California residents are affected by a single breach, an electronic copy of the breach notification must be send to the California Attorney General;
• If the law’s "substitute notice" provisions are used, notice also must be provided to the Office of Information Security or the Office of Privacy Protection. Substitute notice is permitted when the person or business required to provide the notice demonstrates that (I)(i) the cost of providing notice would exceed two hundred fifty thousand dollars ($250,000), or (ii) that the affected class of subject persons to be notified exceeds 500,000, or (II) the person or business does not have sufficient contact information. Prior to the change, substitute notice consisted of only email notification, conspicuous posting of the notice on the person or business’ website, and notification to statewide media.

Companies responding to multi-state breaches face significant challenges trying to harmonize the various state law requirements. See, for example, the recent changes to the Illinois statute. Presently, a number of bills are being considered in Congress that would preempt all of the state laws in this area, however, passage of one of these laws does not appear to be imminent. As data breaches go global, similar concerns exist as countries are enacting their own breach notification mandates.