On October 6, 2015, California Governor Jerry Brown signed three new laws which substantially alter and expand the state’s security breach notification requirements. The new changes to California Civil Code sections 1798.29 and 1798.82, the Golden State’s laws that require notifications by state agencies and private sector entities of certain breaches of security (i) provide a definition for encryption, (ii) establish new requirements for the content and form of breach notifications, and (iii) add license plate information gathered through automated license plate recognition (ALPR) systems to the definition of personal information subject to the state’s notification requirements. These changes become effective January 1, 2016.

When is Personal Information Considered “Encrypted”

Under California’s current law, if personal information is “encrypted,” the notification requirements will not apply. Until now, the law had not defined when personal information would be considered to be “encrypted.” Assembly Bill 964 amends California Civil Code sections 1798.29 and 1798.82 to provide a definition for this previously undefined term. With passage of the amendment, the term “encrypted” is now defined as “rendered unusable, unreadable or indecipherable to an unauthorized person through a security technology or methodology generally accepted in the field of information technology.” This language seems to allow for flexibility in the types of encryption that can be applied, as well as for future changes in encryption technology. For more information on encryption technologies, click here.

Updates to Content and Form of Breach Notification

Senate Bill 570 amends California Civil Code sections 1798.29 and 1798.82 to require government agencies and businesses to clarify the content of security breach notifications and provides a model security breach notification. All security breach notifications must now be titled “Notice of Data Breach” and present required information under the following headlines: “What Happened,” “What Information Was Involved,” “What We Are Doing,” “What You Can Do,” and “For More Information.” The notice must be designed to call attention to the nature and significance of the matter, must be clear and conspicuous and must be in text no smaller than 10-point type.

Use of the model notification form will be deemed compliant with California’s notification requirements, and thus helpful for agencies and business when trying to understand what the notice needs to say. However, in the case of breaches affecting individuals in multiple states, when simplifying the notification process is critical, use of California’s model notice across multiple states may be problematic. For example, the “What Happened” section should not be included in notices to Massachusetts residents as that state’s law prohibits including a description of the nature of the breach or unauthorized acquisition or use.

Information Obtained from Automated License Plate Recognition Systems is Personal Information

Popular among local law enforcement, automated license plate recognition (ALPR) systems allow license plate information to be captured from videos and stored. Senate Bill 34 added new sections to California’s Civil Code, beginning with section 1798.90.5, to require that certain users of those systems – called ALPR operators – safeguard ALPR information, including a requirement to implement a usage and privacy policy in order to ensure that the collection, use maintenance, sharing and dissemination of ALPR information is consistent with respect for individuals’ privacy and civil liberties. However, the Senate Bill also amends California Civil Code sections 1798.29 and 1798.82 to include information obtained from ALPR systems in the definition of “personal information” when used along with an individual’s name. Thus, if this information is involved in a breach of security, it will trigger a notification requirement. Also, individuals harmed by unauthorized access or use of ALPR information or a breach of security of an ALPR system may bring a private right of action.

These amendments represent significant changes to the security breach notifications provisions of Civil Code sections 1798.29 and 1798.82, as well as additional protections for information obtained from ALPR systems. In particular, they impact how to respond to security breaches, how to protect personal information and the scope of what information is protected. Businesses are encouraged to review their encryption policies, adopt compliant security breach notification forms and, if using an ALPR system, adopt compliant policies with respect to ALPR information and the employees who control those systems.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He founded and currently leads the firm’s Privacy, e-Communication and Data Security Practice, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with…

Joseph J. Lazzarotti is a Principal in the Morristown, New Jersey, office of Jackson Lewis P.C. He founded and currently leads the firm’s Privacy, e-Communication and Data Security Practice, 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, Mr. Lazzarotti 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 – Mr. Lazzarotti 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 – Mr. Lazzarotti’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.

Mr. Lazzarotti 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.

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