II 

113TH CONGRESS 

2D SESSION S. 1927 

To protect information relating to consumers, to require notice of security 

breaches, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 15, 2014 

Mr. CARPER (for himself and Mr. BLUNT) introduced the following bill; which 

was read twice and referred to the Committee on Banking, Housing, and 

Urban Affairs 

A BILL 

To protect information relating to consumers, to require 

notice of security breaches, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Data Security Act of 

5 2014’’. 

6 SEC. 2. DEFINITIONS. 

7 For purposes of this Act, the following definitions 

8 shall apply: 


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1 (1) AFFILIATE.—The term ‘‘affiliate’’ means 

2 any company that controls, is controlled by, or is 

3 under common control with another company. 

4 (2) AGENCY.—The term ‘‘agency’’ has the same 

5 meaning as in section 551(1) of title 5, United 

6 States Code. 

7 (3) BREACH OF DATA SECURITY.— 

8 (A) IN GENERAL.—The term ‘‘breach of 

9 data security’’ means the unauthorized acquisi10 tion of sensitive account information or sen11 sitive personal information. 

12 (B) EXCEPTION FOR DATA THAT IS NOT IN

13 USABLE FORM.— 

14 (i) IN GENERAL.—The term ‘‘breach 

15 of data security’’ does not include the un16 authorized acquisition of sensitive account 

17 information or sensitive personal informa18 tion that is maintained or communicated in 

19 a manner that is not usable— 

20 (I) to commit identity theft; or 

21 (II) to make fraudulent trans22 actions on financial accounts. 

23 (ii) RULE OF CONSTRUCTION.—For 

24 purposes of this subparagraph, information 

25 that is maintained or communicated in a 


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1 manner that is not usable includes any in2 formation that is maintained or commu3 nicated in an encrypted, redacted, altered, 

4 edited, or coded form. 

5 (4) COMMISSION.—The term ‘‘Commission’’ 

6 means the Federal Trade Commission. 

7 (5) CONSUMER.—The term ‘‘consumer’’ means 

8 an individual. 

9 (6) CONSUMER REPORTING AGENCY THAT COM10 PILES AND MAINTAINS FILES ON CONSUMERS ON A

11 NATIONWIDE BASIS.—The term ‘‘consumer reporting 

12 agency that compiles and maintains files on con13 sumers on a nationwide basis’’ has the same mean14 ing as in section 603(p) of the Fair Credit Report15 ing Act (15 U.S.C. 1681a(p)). 

16 (7) COVERED ENTITY.— 

17 (A) IN GENERAL.—The term ‘‘covered en18 tity’’ means any— 

19 (i) entity, the business of which is en20 gaging in financial activities, as described 

21 in section 4(k) of the Bank Holding Com22 pany Act of 1956 (12 U.S.C. 1843(k)); 

23 (ii) financial institution, including any 

24 institution described in section 313.3(k) of 


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1 title 16, Code of Federal Regulations, as in 

2 effect on the date of enactment of this Act; 

3 (iii) entity that maintains or otherwise 

4 possesses information that is subject to 

5 section 628 of the Fair Credit Reporting 

6 Act (15 U.S.C. 1681w); or 

7 (iv) other individual, partnership, cor8 poration, trust, estate, cooperative, associa9 tion, or entity that maintains or commu10 nicates sensitive account information or 

11 sensitive personal information. 

12 (B) EXCEPTION.—The term ‘‘covered enti13 ty’’ does not include any agency or any other 

14 unit of Federal, State, or local government or 

15 any subdivision of the unit. 

16 (8) FINANCIAL INSTITUTION.—The term ‘‘fi17 nancial institution’’ has the same meaning as in sec18 tion 509(3) of the Gramm-Leach-Bliley Act (15 

19 U.S.C. 6809(3)). 

20 (9) SENSITIVE ACCOUNT INFORMATION.—The 

21 term ‘‘sensitive account information’’ means a finan22 cial account number relating to a consumer, includ23 ing a credit card number or debit card number, in 

24 combination with any security code, access code, 


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1 password, or other personal identification informa2 tion required to access the financial account. 

3 (10) SENSITIVE PERSONAL INFORMATION.— 

4 (A) IN GENERAL.—The term ‘‘sensitive 

5 personal information’’ means the first and last 

6 name, address, or telephone number of a con7 sumer, in combination with any of the following 

8 relating to the consumer: 

9 (i) Social security account number. 

10 (ii) Driver’s license number or equiva11 lent State identification number. 

12 (iii) Taxpayer identification number. 

13 (B) EXCEPTION.—The term ‘‘sensitive per14 sonal information’’ does not include publicly 

15 available information that is lawfully made 

16 available to the general public from— 

17 (i) Federal, State, or local government 

18 records; or 

19 (ii) widely distributed media. 

20 (11) SUBSTANTIAL HARM OR INCONVEN21 IENCE.— 

22 (A) IN GENERAL.—The term ‘‘substantial 

23 harm or inconvenience’’ means— 

24 (i) material financial loss to, or civil 

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1 sumer, due to the unauthorized use of sen2 sitive account information or sensitive per3 sonal information relating to the consumer; 

4 or 

5 (ii) the need for a consumer to expend 

6 significant time and effort to correct erro7 neous information relating to the con8 sumer, including information maintained 

9 by a consumer reporting agency, financial 

10 institution, or government entity, in order 

11 to avoid material financial loss, increased 

12 costs, or civil or criminal penalties, due to 

13 the unauthorized use of sensitive account 

14 information or sensitive personal informa15 tion relating to the consumer. 

16 (B) EXCEPTION.—The term ‘‘substantial 

17 harm or inconvenience’’ does not include— 

18 (i) changing a financial account num19 ber or closing a financial account; or 

20 (ii) harm or inconvenience that does 

21 not result from identity theft or account 

22 fraud. 

23 SEC. 3. PROTECTION OF INFORMATION AND SECURITY 

24 BREACH NOTIFICATION. 

25 (a) SECURITY PROCEDURES REQUIRED.— 


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1 (1) IN GENERAL.—Each covered entity shall 

2 implement, maintain, and enforce reasonable policies 

3 and procedures to protect the confidentiality and se4 curity of, sensitive account information and sensitive 

5 personal information that is maintained or is being 

6 communicated by or on behalf of a covered entity 

7 from the unauthorized use of the information that is 

8 reasonably likely to result in substantial harm or in9 convenience to the consumer to whom the informa10 tion relates. 

11 (2) LIMITATION.—Any policy or procedure im12 plemented or maintained under paragraph (1) shall 

13 be appropriate to— 

14 (A) the size and complexity of the covered 

15 entity; 

16 (B) the nature and scope of the activities 

17 of the covered entity; and 

18 (C) the sensitivity of the consumer infor19 mation to be protected. 

20 (b) INVESTIGATION REQUIRED.— 

21 (1) IN GENERAL.—If a covered entity deter22 mines that a breach of data security has or may 

23 have occurred in relation to sensitive account infor24 mation or sensitive personal information that is 

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1 half of, the covered entity, the covered entity shall 

2 conduct an investigation to— 

3 (A) assess the nature and scope of the 

4 breach; 

5 (B) identify any sensitive account informa6 tion or sensitive personal information that may 

7 have been involved in the breach; and 

8 (C) determine if the sensitive account in9 formation or sensitive personal information is 

10 reasonably likely to be misused in a manner 

11 causing substantial harm or inconvenience to 

12 the consumers to whom the information relates. 

13 (2) NEURAL NETWORKS AND INFORMATION SE14 CURITY PROGRAMS.—In determining the likelihood 

15 of misuse of sensitive account information under 

16 paragraph (1)(C), a covered entity shall consider 

17 whether any neural network or security program has 

18 detected, or is likely to detect or prevent, fraudulent 

19 transactions resulting from the breach of security. 

20 (c) NOTICE REQUIRED.—If a covered entity deter21 mines under subsection (b)(1)(C) that sensitive account 

22 information or sensitive personal information involved in 

23 a breach of data security is reasonably likely to be misused 

24 in a manner causing substantial harm or inconvenience 

25 to the consumers to whom the information relates, the covVerDate Mar 15 2010 07:19 Jan 16, 2014 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1927.IS S1927

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1 ered entity, or a third party acting on behalf of the covered 

2 entity, shall— 

3 (1) notify, in the following order— 

4 (A) the appropriate agency or authority 

5 identified in section 5; 

6 (B) an appropriate law enforcement agen7 cy; 

8 (C) any entity that owns, or is obligated 

9 on, a financial account to which the sensitive 

10 account information relates, if the breach in11 volves a breach of sensitive account informa12 tion; 

13 (D) each consumer reporting agency that 

14 compiles and maintains files on consumers on a 

15 nationwide basis, if the breach involves sensitive 

16 personal information relating to 5,000 or more 

17 consumers; and 

18 (E) all consumers to whom the sensitive 

19 account information or sensitive personal infor20 mation relates; and 

21 (2) take reasonable measures to restore the se22 curity and confidentiality of the sensitive account in23 formation or sensitive personal information involved 

24 in the breach. 

25 (d) COMPLIANCE.— 


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1 (1) IN GENERAL.—An entity shall be deemed to 

2 be in compliance with— 

3 (A) in the case of a financial institution— 

4 (i) subsection (a), and any regulations 

5 prescribed under subsection (a), if the fi6 nancial institution maintains policies and 

7 procedures to protect the confidentiality 

8 and security of sensitive account informa9 tion and sensitive personal information 

10 that are consistent with the policies and 

11 procedures of the financial institution that 

12 are designed to comply with the require13 ments of section 501(b) of the Gramm14 Leach-Bliley Act (15 U.S.C. 6801(b)) and 

15 any regulations or guidance prescribed 

16 under that section that are applicable to 

17 the financial institution; and 

18 (ii) subsections (b) and (c), and any 

19 regulations prescribed under subsections 

20 (b) and (c), if the financial institution— 

21 (I)(aa) maintains policies and 

22 procedures to investigate and provide 

23 notice to consumers of breaches of 

24 data security that are consistent with 

25 the policies and procedures of the fiVerDate Mar 15 2010 07:19 Jan 16, 2014 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1927.IS S1927

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1 nancial institution that are designed 

2 to comply with the investigation and 

3 notice requirements established by 

4 regulations or guidance under section 

5 501(b) of the Gramm-Leach-Bliley 

6 Act (15 U.S.C. 6801(b)) that are ap7 plicable to the financial institution; or 

8 (bb) is an affiliate of a bank 

9 holding company that maintains poli10 cies and procedures to investigate and 

11 provide notice to consumers of 

12 breaches of data security that are con13 sistent with the policies and proce14 dures of a bank that is an affiliate of 

15 the financial institution, and the poli16 cies and procedures of the bank are 

17 designed to comply with the investiga18 tion and notice requirements estab19 lished by any regulations or guidance 

20 under section 501(b) of the Gramm21 Leach-Bliley Act (15 U.S.C. 6801(b)) 

22 that are applicable to the bank; and 

23 (II) provides for notice to the en24 tities described under subparagraphs 

25 (B), (C), and (D) of subsection (c)(1), 


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1 if notice is provided to consumers pur2 suant to the policies and procedures 

3 of the financial institution described 

4 in subclause (I); and 

5 (B) subsections (a), (b), and (c), if the en6 tity is a covered entity for purposes of the regu7 lations promulgated under section 264(c) of the 

8 Health Insurance Portability and Accountability 

9 Act of 1996 (42 U.S.C. 1320d–2 note), to the 

10 extent that the entity is in compliance with 

11 such regulations. 

12 (2) DEFINITIONS.—For purposes of this sub13 section, the terms ‘‘bank holding company’’ and 

14 ‘‘bank’’ shall have the same meaning given the terms 

15 under section 2 of the Bank Holding Company Act 

16 of 1956 (12 U.S.C. 1841). 

17 SEC. 4. IMPLEMENTING REGULATIONS. 

18 (a) IN GENERAL.—Notwithstanding any other provi19 sion of law, and except as provided in section 6, the agen20 cies and authorities identified in section 5, with respect 

21 to the covered entities that are subject to the respective 

22 enforcement authority of the agencies and authorities, 

23 shall prescribe regulations to implement this Act. 

24 (b) COORDINATION.—Each agency and authority re25 quired to prescribe regulations under subsection (a) shall 


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1 consult and coordinate with each other agency and author2 ity identified in section 5 so that, to the extent possible, 

3 the regulations prescribed by each agency and authority 

4 are consistent and comparable. 

5 (c) METHOD OF PROVIDING NOTICE TO CON6 SUMERS.—The regulations required under subsection (a) 

7 shall— 

8 (1) prescribe the methods by which a covered 

9 entity shall notify a consumer of a breach of data se10 curity under section 3; and 

11 (2) allow a covered entity to provide the notice 

12 by— 

13 (A) written, telephonic, or e-mail notifica14 tion; or 

15 (B) substitute notification, if providing 

16 written, telephonic, or e-mail notification is not 

17 feasible due to— 

18 (i) lack of sufficient contact informa19 tion for the consumers that must be noti20 fied; or 

21 (ii) excessive cost to the covered enti22 ty. 

23 (d) CONTENT OF CONSUMER NOTICE.—The regula24 tions required under subsection (a) shall— 


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1 (1) prescribe the content that shall be included 

2 in a notice of a breach of data security that is re3 quired to be provided to consumers under section 3; 

4 and 

5 (2) require the notice to include— 

6 (A) a description of the type of sensitive 

7 account information or sensitive personal infor8 mation involved in the breach of data security; 

9 (B) a general description of the actions 

10 taken by the covered entity to restore the secu11 rity and confidentiality of the sensitive account 

12 information or sensitive personal information 

13 involved in the breach of data security; and 

14 (C) the summary of rights of victims of 

15 identity theft prepared by the Commission 

16 under section 609(d) of the Fair Credit Report17 ing Act (15 U.S.C. 1681g(d)), if the breach of 

18 data security involves sensitive personal infor19 mation. 

20 (e) TIMING OF NOTICE.—The regulations required 

21 under subsection (a) shall establish standards for when 

22 a covered entity shall provide any notice required under 

23 section 3. 

24 (f) LAW ENFORCEMENT DELAY.—The regulations 

25 required under subsection (a) shall allow a covered entity 


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1 to delay providing notice of a breach of data security to 

2 consumers under section 3 if a law enforcement agency 

3 requests such a delay in writing. 

4 (g) SERVICE PROVIDERS.—The regulations required 

5 under subsection (a) shall— 

6 (1) require any party that maintains or commu7 nicates sensitive account information or sensitive 

8 personal information on behalf of a covered entity to 

9 provide notice to that covered entity if the party de10 termines that a breach of data security has, or may 

11 have, occurred with respect to the sensitive account 

12 information or sensitive personal information; and 

13 (2) ensure that there is only 1 notification re14 sponsibility with respect to a breach of data security. 

15 (h) TIMING OF REGULATIONS.—The regulations re16 quired under subsection (a) shall— 

17 (1) be issued in final form not later than 6 

18 months after the date of enactment of this Act; and 

19 (2) take effect not later than 6 months after 

20 the date on which they are issued in final form. 

21 SEC. 5. ADMINISTRATIVE ENFORCEMENT. 

22 (a) IN GENERAL.—Notwithstanding any other provi23 sion of law, section 3, and the regulations required under 

24 section 4, shall be enforced exclusively under— 


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1 (1) section 8 of the Federal Deposit Insurance 

2 Act (12 U.S.C. 1818), in the case of— 

3 (A) a national bank, a Federal branch or 

4 Federal agency of a foreign bank, or any sub5 sidiary thereof (other than a broker, dealer, 

6 person providing insurance, investment com7 pany, or investment adviser), or a savings asso8 ciation, the deposits of which are insured by the 

9 Federal Deposit Insurance Corporation, or any 

10 subsidiary thereof (other than a broker, dealer, 

11 person providing insurance, investment com12 pany, or investment adviser), by the Office of 

13 the Comptroller of the Currency; 

14 (B) a member bank of the Federal Reserve 

15 System (other than a national bank), a branch 

16 or agency of a foreign bank (other than a Fed17 eral branch, Federal agency, or insured State 

18 branch of a foreign bank), a commercial lending 

19 company owned or controlled by a foreign bank, 

20 an organization operating under section 25 or 

21 25A of the Federal Reserve Act (12 U.S.C. 

22 601, 611), or a bank holding company and its 

23 nonbank subsidiary or affiliate (other than a 

24 broker, dealer, person providing insurance, in25 vestment company, or investment adviser), by 


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1 the Board of Governors of the Federal Reserve 

2 System; and 

3 (C) a bank, the deposits of which are in4 sured by the Federal Deposit Insurance Cor5 poration (other than a member of the Federal 

6 Reserve System), an insured State branch of a 

7 foreign bank, or any subsidiary thereof (other 

8 than a broker, dealer, person providing insur9 ance, investment company, or investment ad10 viser), by the Board of Directors of the Federal 

11 Deposit Insurance Corporation; 

12 (2) the Federal Credit Union Act (12 U.S.C. 

13 1751 et seq.), by the National Credit Union Admin14 istration Board with respect to any federally insured 

15 credit union; 

16 (3) the Securities Exchange Act of 1934 (15 

17 U.S.C. 78a et seq.), by the Securities and Exchange 

18 Commission with respect to any broker or dealer; 

19 (4) the Investment Company Act of 1940 (15 

20 U.S.C. 80a–1 et seq.), by the Securities and Ex21 change Commission with respect to any investment 

22 company; 

23 (5) the Investment Advisers Act of 1940 (15 

24 U.S.C. 80b–1 et seq.), by the Securities and Ex25 change Commission with respect to any investment 


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1 adviser registered with the Securities and Exchange 

2 Commission under that Act; 

3 (6) the Commodity Exchange Act (7 U.S.C. 1 

4 et seq.), by the Commodity Futures Trading Com5 mission with respect to any futures commission mer6 chant, commodity trading advisor, commodity pool 

7 operator, or introducing broker; 

8 (7) the provisions of title XIII of the Housing 

9 and Community Development Act of 1992 (12 

10 U.S.C. 4501 et seq.), by the Director of Federal 

11 Housing Enterprise Oversight (and any successor to 

12 the functional regulatory agency) with respect to the 

13 Federal National Mortgage Association, the Federal 

14 Home Loan Mortgage Corporation, and any other 

15 entity or enterprise (as defined in that title) subject 

16 to the jurisdiction of the functional regulatory agen17 cy under that title, including any affiliate of any the 

18 enterprise; 

19 (8) State insurance law, in the case of any per20 son engaged in providing insurance, by the applica21 ble State insurance authority of the State in which 

22 the person is domiciled; and 

23 (9) the Federal Trade Commission Act (15 

24 U.S.C. 41 et seq.), by the Commission for any other 

25 covered entity that is not subject to the jurisdiction 


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1 of any agency or authority described under para2 graphs (1) through (8). 

3 (b) EXTENSION OF FEDERAL TRADE COMMISSION

4 ENFORCEMENT AUTHORITY.—The authority of the Com5 mission to enforce compliance with section 3, and the reg6 ulations required under section 4, under subsection (a)(8) 

7 shall— 

8 (1) notwithstanding the Federal Aviation Act of 

9 1958 (49 U.S.C. App. 1301 et seq.), include the au10 thority to enforce compliance by air carriers and for11 eign air carriers; and 

12 (2) notwithstanding the Packers and Stock13 yards Act (7 U.S.C. 181 et seq.), include the author14 ity to enforce compliance by persons, partnerships, 

15 and corporations subject to the provisions of that 

16 Act. 

17 (c) NO PRIVATE RIGHT OF ACTION.— 

18 (1) IN GENERAL.—This Act, and the regula19 tions prescribed under this Act, may not be con20 strued to provide a private right of action, including 

21 a class action with respect to any act or practice 

22 regulated under this Act. 

23 (2) CIVIL AND CRIMINAL ACTIONS.—No civil or 

24 criminal action relating to any act or practice gov25 erned under this Act, or the regulations prescribed 


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1 under this Act, shall be commenced or maintained in 

2 any State court or under State law, including a 

3 pendent State claim to an action under Federal law. 

4 SEC. 6. PROTECTION OF INFORMATION AT FEDERAL AGEN5 CIES. 

6 (a) DATA SECURITY STANDARDS.—Each agency 

7 shall implement appropriate standards relating to admin8 istrative, technical, and physical safeguards— 

9 (1) to insure the security and confidentiality of 

10 the sensitive account information and sensitive per11 sonal information that is maintained or is being 

12 communicated by, or on behalf of, that agency; 

13 (2) to protect against any anticipated threats or 

14 hazards to the security of the sensitive account in15 formation and sensitive personal information; and 

16 (3) to protect against misuse of the sensitive 

17 account information and sensitive personal informa18 tion that could result in substantial harm or incon19 venience to a consumer. 

20 (b) SECURITY BREACH NOTIFICATION STAND21 ARDS.—Each agency shall implement appropriate stand22 ards providing for notification of consumers when the 

23 agency determines that sensitive account information or 

24 sensitive personal information that is maintained or is 

25 being communicated by, or on behalf of, the agency— 


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1 (1) has been acquired without authorization; 

2 and 

3 (2) is reasonably likely to be misused in a man4 ner causing substantial harm or inconvenience to the 

5 consumers to whom the information relates. 

6 SEC. 7. RELATION TO STATE LAW. 

7 No requirement or prohibition may be imposed under 

8 the laws of any State with respect to the responsibilities 

9 of any person to— 

10 (1) protect the security of information relating 

11 to consumers that is maintained or communicated 

12 by, or on behalf of, the person; 

13 (2) safeguard information relating to consumers 

14 from potential misuse; 

15 (3) investigate or provide notice of the unau16 thorized access to information relating to consumers, 

17 or the potential misuse of the information, for fraud18 ulent, illegal, or other purposes; or 

19 (4) mitigate any loss or harm resulting from 

20 the unauthorized access or misuse of information re21 lating to consumers. 

22 SEC. 8. DELAYED EFFECTIVE DATE FOR CERTAIN PROVI23 SIONS. 

24 (a) COVERED ENTITIES.—Sections 3 and 7 shall take 

25 effect on the later of— 


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1 (1) 1 year after the date of enactment of this 

2 Act; or 

3 (2) the effective date of the final regulations re4 quired under section 4. 

5 (b) AGENCIES.—Section 6 shall take effect 1 year 

6 after the date of enactment of this Act. 

Æ 


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