It’s official! Alabama is the only remaining state lacking a data breach notification statute. On March 21, 2018 South Dakota Attorney General Marty Jackley announced that Governor Dennis Daugaard signed into law the state’s first data breach notification law, after unanimous approval by both chambers of the state legislature a couple weeks prior. The law will take effect July 1, 2018.

 South Dakota’s new law creates a breach notification requirement for any person or business conducting business in South Dakota that owns or retains computerized personal or protected information of South Dakota residents. On trend with recent amendments to other state data breach notification laws, the South Dakota law includes an expansive definition of personal information.

The law defines personal information as a person’s first name or first initial and last name in combination with any one or more of the following data elements:

  • Social Security Number;
  • driver’s license number or other unique identification number created or collected by a government body;
  • account, credit card or debit card number, in combination with any required security code, access code, password, routing number, PIN or any additional information that would permit access to a person’s financial account;
  • health information; and
  • an identification number assigned to a person by the person’s employer in combination with any required security code, access code, password, or biometric data generated from measurements or analysis of human body characteristics for authentication purposes.

In addition, protected information is defined as:

  • a username or email address in combination with a password, security question answer, or other information that permits access to an online account; and
  • account number or credit or debit card number, in combination with any required security code, access code, or password that permits access to a person’s financial account.
  • NOTE: “protected information” does not include a person’s name.

The law requires an information holder to disclose a breach to any South Dakota resident whose personal or protected information was, or is reasonably believed to have been, acquired by an unauthorized person. This disclosure must be made within 60 days from the discovery or notification of the breach, unless a longer period of time is required due to the legitimate needs of law enforcement.

Further, breaches affecting more than 250 South Dakota residents must be reported to the state’s Attorney General. Note that if the information holder reasonably believes the breach will not likely result in harm to the affected person, the information holder is not required to make a disclosure so long as the information holder first conducts an appropriate investigation and provides notice to the attorney general. This determination needs to be documented in writing and maintained for at least three years.

The South Dakota law makes each failure to disclose a breach an unfair or deceptive practice under South Dakota’s Deceptive Trade Practices And Consumer Protection law, which imposes criminal penalties for violations. In addition, the law authorizes the state Attorney General to impose a civil penalty of up to $10,000 per day per violation and to recover attorneys’ fees and costs associated with an action brought against the information holder.

A string of large-scale breaches made clear that additional protections for South Dakota consumers were needed. Alabama is now the only state without a data breach notification law, but that will likely change in the coming weeks. A house-amended version of Senate Bill 318, the Alabama Data Breach Notification Act sponsored by Senator Arthur Orr (R-Decatur), passed the House of Representatives unanimously on March 22nd, but requires concurrence from the Senate before being sent to the Alabama governor for signing.

 

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Tampa, Florida, 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…

Joseph J. Lazzarotti is a principal in the Tampa, Florida, 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.

Photo of Jason C. Gavejian Jason C. Gavejian

Jason C. Gavejian is the office managing principal of the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and a member of the firm’s Board of Directors. He is also a Certified Information Privacy Professional (CIPP/US) with the International Association of Privacy…

Jason C. Gavejian is the office managing principal of the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. and a member of the firm’s Board of Directors. He 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 Privacy 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.