On May 27, 2023, Texas’ Governor signed Senate Bill 768 amending Texas’ data breach notification law. The law in question, Section 521.053 of the Texas Business and Commerce Code, sets out the specific requirements any person conducting business in the state who owns or licenses sensitive personal information in a computerized format must follow in the event of any breach of system security.

The amendment updates only the portion of the law requiring a business to notify the Texas Attorney General of any data breach affecting at least 250 Texas residents. Previously, the law required such persons to notify the Texas Attorney General within 60 days of discovering a breach affecting 250+ residents but did not specify a particular method of providing the notice. The amendment shortens the deadline from 60 days to “as soon as practicable and not later than 30 days” and requires such persons to submit the notification via an electronic form accessible on the Attorney General’s website.

The changes go into effect on September 1, 2023. However, the amendment does not disturb any of the other requirements of the law that are already in effect. Such persons are still required to provide notice of a data breach to affected individuals “without unreasonable delay” but not later than 60 days after discovering the breach. For breaches affecting more than 10,000 individuals, such persons are required to notify each consumer reporting agency without unreasonable delay. In the case of a person who maintains computerized sensitive personal information on behalf of another and experiences a breach of system security, notice must be provided to the owner or license holder of the information “immediately after discovering the breach.”

Although the amendment brings Texas’ rules more closely in line with some other states, there remains a complicated and often conflicting web of data breach rules nationwide. Connecticut, for example, imposes a 60-day requirement for notifying affected individuals (similar to Texas) but requires all data breaches to be reported to the state’s Attorney General (not only when the breach affects more than a specified number of residents). Also, Connecticut and four other jurisdictions require credit monitoring, and ID theft services be provided for a period of time at no cost to affected persons, though that is not the case in the Lone Star State. Florida, on the other hand, is both more and less strict than Texas, its law requires notifications to individuals within 30 days (stricter than Texas) but imposes a higher threshold (500 affected residents) before requiring a notification to the Attorney General. These are just a few of the nuances organizations must grapple with when facing a data breach affecting individuals in multiple states. Because Texas’ data breach law allows the business to choose to give notice under the laws where the individual is located or under Texas’ laws when a breach affects a non-resident, it can be advantageous to know the distinctions.

For additional information regarding Texas’ or another state’s data breach requirements, please reach out to a member of our Privacy, Data, and Cybersecurity practice group.

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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.