On April 6, 2017, New Mexico Governor Susana Martinez signed HB 15, making New Mexico the 48th state to enact a data breach notification law.  The law has an effective date of June 16, 2017 and follows the same general structure of many of the breach notification laws in other states.

Importantly, the definition of personal identifying information (PII) under New Mexico’s Data Breach Notification Act includes biometric data (“a record generated by automatic measurements of an identified individual’s fingerprints, voice print, iris or retina patterns, facial characteristics or hand geometry that is used to uniquely and durably authenticate an individual’s identity when the individual accesses a physical location, device, system or account.”).  We have seen a number of states (e.g. Illinois) implement or amend their own data breach notification laws to include elements such as biometric data.

The Data Breach Notification Act includes three key components: (i) Disposal of PII; (ii) Security Measures for Storage of PII; and (iii) Notification of a Security Breach.

Disposal of PII:

Under the Act, organizations are required to arrange for the proper disposal of records containing the PII of New Mexico residents when they are no longer reasonably needed for business purposes.  Proper disposal means shredding, erasing, or otherwise modifying the PII contained in the records to be unreadable or undecipherable.

Security Measures for Storage of PII:

Organizations must implement and maintain – and contractually require their service providers and vendors to implement and maintain – reasonable security procedures and practices to protect the PII they own or license from unauthorized access, destruction, use, modification, or disclosure.  Unlike California, New Mexico has not yet provided guidance on what constitutes reasonable security procedures and practices.  Nevertheless, all organizations should be implementing safeguards to protect the personal and company information they maintain.

Notification of a Security Breach:

In the event of a breach, the Act provides:

  • Notification must be provided to each New Mexico resident within forty-five (45) calendar days following discovery of the breach.
  • If the person maintains or possesses PII of a New Mexico resident (but is not the owner or licensee) notification must be provided to the owner or licensee of the PII within forty-five (45) calendar days following discovery of the breach.
  • Notification to each New Mexico residents must include:
    • The name and contact information of the notifying person;
    • A list of the types of PII reasonably believed to have been subject to the breach;
    • The date(s), or estimated dates(s), of the breach;
    • A general description of the breach;
    • The toll-free numbers and addresses of the major consumer reporting agencies;
    • Advice directing the recipient to review account statements and credit reports to detect errors; and
    • Advice informing the recipient of their rights pursuant to the federal Fair Credit Reporting Act.
  • In the event of a breach affecting more than 1000 New Mexico residents, notification must be provided to the New Mexico Attorney General and the major consumer reporting agencies within forty-five (45) calendar days following discovery of the breach.  Such notice must include a copy of the notification sent to affected residents.
  • Notification may be delayed at the request of law enforcement or as necessary to determine the scope of the breach and restore the integrity, security, and confidentiality of the system.
  • A risk of harm trigger.  Specifically, notification is not required if, after an appropriate investigation, the person determines the breach “does not give rise to a significant risk of identity theft of fraud.”
  • The Act does not apply to a person subject to GLBA or HIPAA.

Under the Act, the New Mexico Attorney General may bring an action for injunctive relief and an award of damages for actual costs or loses, including consequential financial losses.  If a violation of the Act is knowing or reckless, a civil penalty of the greater of $25,000 or, in the case of failed notification, $10 per instance of failed notification up to a maximum of $150,000.

Breach notification laws continue to evolve and it is imperative for organizations to be prepared to respond appropriately.  If you need assistance with a data incident or data breach, please contact our 24/7 Data Incident Response Team at 844-544-5296 or breach@jacksonlewis.com.

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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.