In the wake of recent, large-scale data breaches, one being the breach at the Office of Personnel Management (OPM) affecting millions of federal employees, a number of bills have been battling their way through Congress to address breach notification and data security requirements at the federal level. There has been an ongoing pattern for years – big breaches, flurry of bills in both houses of Congress, bills die… big breaches, flurry of bills in both houses of Congress, bills die…

A sticking point for this legislation now and in past years is whether a federal law should preempt state notification laws. In a letter signed by the Attorneys General of just about every state with a data breach notification law (47 states have such a law), the National Association of Attorneys General tells Congress to let states continue to address this issue. It does not appear that the NAAG is necessarily opposed to a federal data breach notification law or data security standard, it just prefers that “a federal law must not diminish the important role states already play protecting consumers from data breaches and identity theft.”

However, many consider the matrix of state laws to be confusing and a barrier to a streamlined notification process that a uniform federal standard might bring. There is some merit to this. For example, the notification law in Massachusetts prohibits businesses from describing the circumstances of the breach in the notification letter. However, the notification laws in many other states require the letter contain a brief description. Also, some states such as New Jersey require notification to a state agency before notification is made to affected individuals, while other states do not have such a requirement. A third example is that many state laws have a “risk of harm” trigger; that is, a provision that says, in essence, notification is not required if there is not a significant risk of harm to the affected persons. The language in these provisions, however, varies considerably, making it difficult for a business to apply those provisions in a multi-state breach.

The debate certainly will continue. But what is important for businesses large and small is that they have a plan to respond to a breach, and practice that plan. Most companies will experience a data breach affecting personal information and, whether driven by federal and/or state laws, will likely have to notify affected persons. Preparation is critical, and here are some questions businesses, particularly small and mid-sized businesses should be asking:

  • Who are the key people in the organization that would be in the best position to drive the breach response?
  • Do employees know what a data breach is and where to report one?
  • Does the company have vendors lined-up in the event there is a breach?
  • Does our IT team have the appropriate expertise – they manage our systems, and IT equipment, but do they know data security, forensics, etc.
  • Who should we call first if we suspect we have had a breach?
  • Do we have to bargain with the union about our plans for dealing with breaches involving employee data?
  • Is there an insurance policy that might cover some of the costs?
  • Do we have a plan for addressing media attention?
  • Do we have any contractual obligations in connection with a breach? Will this affect our government contract? Have we met our payment card obligations (PCI compliance)?
  • Are we prepared to have our data privacy and security safeguards and written policies scrutinized by a federal or state agency?
  • What steps should we be prepared to take to mitigate potential harm following a breach?
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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.