Delaware joins the growing number of states that recently amended their data breach notification law. On August 17th, Delaware amended its data breach notification law with House Bill 180, the first significant change since 2005, effective 240 days after enactment (on or about April 14, 2018). 

Delaware maintains the state law trend of requiring businesses to implement reasonable security measures, expanding the definition of personal information, increasing notification requirements, requiring a risk of harm trigger, and requiring mitigation.

Key aspects of Delaware’s amended data breach notification law include:

  • Maintain Reasonable Procedures and Practices to Protect Personal Information Any “person” subject to the amended law, is now required to implement and maintain reasonable security procedures and practices. The definition of “person” has now been expanded to include any business form, governmental entity, “or any other legal entity”.
  • Expanding the Definition of “Personal Information” – The definition of “Personal Information” was expanded to include: passport number; a username or email address, in combination with a password or security question and answer that would permit access to an online account; medical history, mental or physical condition, medical treatment or diagnosis by a health care professional, or deoxyribonucleic acid profile; health insurance policy number, subscriber identification number, or any other unique identifier used by a health insurer to identify the person; unique biometric data generated from measurements or analysis of human body characteristics for authentication purposes; and an individual taxpayer identification number.
  • Data Breach Notification/Risk of Harm Trigger – Businesses affected by a data breach are now required to give notice to affected state residents “as soon as possible” following the conclusion of an investigation that “misuse of information about a Delaware resident has occurred or is likely to occur”. In addition, the new amendment requires notification within 60 days unless the investigation “reasonably determines that breach of security is unlikely to result in harm to the individuals whose personal information has been breached” or law enforcement has requested a delay in notification.
  • Attorney General Notice – If the affected number of Delaware residents to be notified exceeds 500 residents notice must also be provided to the Attorney General.
  • Credit Monitoring – If the breach of security includes a social security number, the business is now required to offer to each resident, whose personal information was breached or is reasonably believed to have been breached, reasonable identity theft prevention services and identity theft mitigation services at no cost to such resident for a period of 1 year. Both California and Connecticut have similar provisions.

While all states do not currently require reasonable safeguards or credit monitoring, there appears to be a growing trend (which we expect will continue) to include these requirements when breach notification laws are amended. As such, it is imperative for organizations facing a breach to ensure they are applying the most current law.

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Photo of Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and co-leader of the firm’s Privacy, Data and Cybersecurity practice group. Jason is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy…

Jason C. Gavejian is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and co-leader of the firm’s Privacy, Data and Cybersecurity practice group. Jason is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy Professionals.

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

Jason’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.). Jason 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, Jason 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.

Jason represents companies with respect to inquiries from the HHS/OCR, state attorneys general, and other agencies alleging wrongful disclosure of personal/protected information. He 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.

Jason 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. He 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. Jason’s practice also focuses on advising/counseling employers regarding daily workplace issues.

Jason’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.

Jason 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,, @Law Magazine, Risk and Insurance Magazine, LXBN TV, Business Insurance Magazine, and

Jason is the co-leader 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. He 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, Jason served as a judicial law clerk for the Honorable Richard J. Donohue on the Superior Court of New Jersey, Bergen County.