The Federal Trade Commission (FTC) has approved an amendment to its Safeguards Rule that will require non-banking financial institutions to report certain data breaches (or “notification events”) to the FTC (not affected individuals).

The “Safeguards Rule,” short for “Standards for Safeguarding Customer Information,” was created to ensure that businesses maintain safeguards to protect the security of customer information. The Safeguards Rule already applied to financial institutions subject to the FTC jurisdiction and that aren’t subject to the enforcement authority of another regulator under the Gramm-Leach-Bliley Act. Under the Rule, financial institutions are defined as any institution the business of which is engaging in an activity that is financial in nature or incidental to such financial activities. FTC guidance can help to better navigate that definition.   

Amendment

While parts of the Safeguards Rule already apply to non-banking financial institutions such as mortgage brokers, motor vehicle dealers, accountants, tax preparation services, and payday lenders, the recent amendment expands the data breach reporting requirements to these entities.

The recent amendment presents a significant expansion of the obligation to provide notification of a “notification event,” even beyond what generally is required under potentially applicable state breach notification laws. Under the FTC’s amendment, the notification obligation applies to “customer information,” whereas most state breach notification laws apply to “personal information.” Remember definitions are important. While states have expanded their definitions of personal information over the years, the term is generally defined to include an individual’s first name (or first initial) and last name, together with one or more of the following data elements:

  • Social security number.
  • Driver’s license number, California identification card number, tax identification number, passport number, military identification number, or other unique identification number issued on a government document commonly used to verify the identity of a specific individual.
  • Account number or credit or debit card number, in combination with any required security code, access code, or password that would permit access to an individual’s financial account.
  • Medical information.
  • Health insurance information.
  • Unique biometric data generated from measurements or technical analysis of human body characteristics, such as a fingerprint, retina, or iris image, is used to authenticate a specific individual. Unique biometric data does not include a physical or digital photograph, unless used or stored for facial recognition purposes.
  • Information or data collected through the use or operation of an automated license plate recognition system, as defined in Section 1798.90.5.
  • Genetic data.

The above definition is taken from California’s breach notification law that applies to certain businesses and is one of the most expansive. It also includes a username or email address, in combination with a password or security question and answer that would permit access to an online account. However, many other states include only a portion of these elements, often only those in the first three bullets above.

On the other hand, customer information is nonpublic, personally identifiable financial information maintained about a “customer.” For this purpose, a customer is a consumer with whom the financial institution has a continuing relationship to provide financial products or services for personal, family, or household purposes. In its final rule, the FTC describes customer information as follows:

The definition of “customer information” in the Rule does not encompass all information that a financial institution has about consumers. “Customer information” is defined as records containing “non-public personal information” about a customer. “Non-public personal information” is, in turn, defined as “personally identifiable financial information,” and excludes information that is publicly available or not “personally identifiable.” The Commission believes that security events that trigger the notification requirement—where customers’ non-public personally identifiable, unencrypted financial information has been acquired without authorization—are serious and support the need for Commission notification.

This definition is not limited to a specific set of data elements like Social Security numbers or financial account numbers. Also, while many state laws limit the definition of personal information to computerized data, FTC guidance provides that customer information includes “any record containing nonpublic personal information about a customer of a financial institution, whether in paper, electronic, or other form, that is handled or maintained by or on behalf of you or your affiliates.”

Under the amendment, non-banking financial institutions must report “notification events” in which the data of at least 500 people has been acquired without authorization as soon as possible, and no later than 30 days after the discovery to the FTC. A few other points about the rule:

  • Notification events are defined as unauthorized acquisitions of customer information, while several state breach notification laws include unauthorized access to personal information.
  • As noted above, the final rule does not require notification to affected individuals. However, like many states, notably Maine, the FTC will publish information about the notification events it receives.
  • The FTC’s final rule does not include a risk of harm exception, which is a provision in state laws. Such provisions can be welcomed relief to businesses as they provide that even if there is a “breach” as defined under the law, notice is not required if, generally speaking, there is not a significant risk of harm to affected individuals.    

The breach notification requirement becomes effective 180 days after publication of the rule in the Federal Register. 

If you have questions about data breach reporting or related issues please reach out to a member of our Privacy, Data, and Cybersecurity practice group to discuss.

Tags: customer information, cybersecurity, data breach, FTC, non-banking financial institutions, notification event, personal information, Safeguards Rule
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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.

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