In the midst of COVID-19 challenges, privacy and security matters continue to be at the forefront for federal and state legislature. In late March, the Washington D.C. (“D.C.”) legislature amended its data breach notification law, with significant overhauls including expansion of its definition of personal information, updates to notification requirements and new credit monitoring obligations. The Security Breach Protection Amendment Act of 2019, b23-0215, passed the 12-member D.C. Council unanimously and was signed by D.C. Mayor Muriel Bowser on March 26. The new law became effective on May 19, 2020.

Key updates to D.C.’s new law include:

  • Expansion of personal information

Following many other states, the new law will add to the data elements that if breached could trigger a notification obligation.  Currently, personal information is defined as (1) any number or code or combination of numbers or codes, such as account number, security code, access code, or password, that allows access to or use of an individual’s financial or credit account, (2) or an individual’s first name or first initial and last name, or phone number, or address, and any one or more of the following data elements: Social Security Number; Driver license number or DC identification card number; or Credit card number or debit card number.

The amendment significantly expands the definition of personal information to include the following new data elements:

  • Identifiers including taxpayer identification number, passport number, military identification number and other unique identification numbers issued on a government document;
  • medical information;
  • genetic information and DNA profile;
  • health insurance information, including a policy number, subscriber information number, or any unique identifier used by a health insurer that permits access to an individual’s health and billing information;
  • biometric data; and
  • any combination of data elements listed above, that would enable a person to commit identity theft without reference to the individual’s name.

Personal information also includes “a user name or email address in combination with a password, security question and answer, or other means of authentication, or any combination of data elements [listed above] that permits access an individual’s email account.”

  • Notification to Attorney General

Notification to the Office of the Attorney General is now required for any breach affecting 50 or more D.C. residents. Notice must be provided in the “most expedient manner possible, without unreasonable delay, but in no event later than when notice is provided”. There are also several specific content requirements for notice to the Attorney General, including whether there is knowledge of any foreign country involvement.

  • GLBA/HIPAA Exemption

The new law exempts entities subject to GLBA or HIPAA if those entities maintain breach notification procedures and provide notification as required under those law, as applicable. However those entities must still notify the Attorney General of any breach that requires notification by GLBA or HIPAA.

  • Risk of Harm Threshold

If a person or entity reasonable determines, after reasonable investigation and consultation with the Office of the Attorney General and federal law enforcement agencies, that the breach likely will not result in harm to affected individuals, notice is not required.

  • Free Mitigation Services for Affected Residents

D.C. joins California, Connecticut, Delaware and Massachusetts in requiring companies to provide identity theft protection or credit monitoring services to residents affected by a breach at no cost. The new D.C. law requires that a person or entity that experiences a breach that includes Social Security numbers and/or taxpayer identification numbers, must offer affected individuals at least 18 months of identity theft protection services at no cost.

Data Security Requirements

Finally, the new law, notably, establishes data security requirements for covered businesses. In short, any business that owns, licenses, maintains, handles or otherwise possesses personal information of D.C. residents must implement and maintain reasonable security safeguards, including procedures and practices that are appropriate to the nature of the personal information and nature and size of the entity of the operation. Further, covered entities must enter written agreements with their third party service providers requiring the service provider to implement and maintain similar security procedures and practices.

This amendment keeps Washington D.C. in line with other states across the nation currently enhancing their data breach notification laws in light of recent large-scale data breaches and heightened public awareness.  Organizations across the United States should be evaluating and enhancing their data breach prevention and response capabilities.

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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.