II 

114TH CONGRESS 

1ST SESSION S. 1158 

To ensure the privacy and security of sensitive personal information, to 

prevent and mitigate identity theft, to provide notice of security breaches 

involving sensitive personal information, and to enhance law enforcement 

assistance and other protections against security breaches, fraudulent 

access, and misuse of personal information. 

IN THE SENATE OF THE UNITED STATES 

APRIL 30, 2015 

Mr. LEAHY (for himself, Mr. FRANKEN, Ms. WARREN, Mr. BLUMENTHAL, Mr. 

WYDEN, and Mr. MARKEY) introduced the following bill; which was read 

twice and referred to the Committee on the Judiciary 

A BILL 

To ensure the privacy and security of sensitive personal 

information, to prevent and mitigate identity theft, to 

provide notice of security breaches involving sensitive 

personal information, and to enhance law enforcement 

assistance and other protections against security 

breaches, fraudulent access, and misuse of personal information. 

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


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1 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

2 (a) SHORT TITLE.—This Act may be cited as the 

3 ‘‘Consumer Privacy Protection Act of 2015’’. 

4 (b) TABLE OF CONTENTS.—The table of contents for 

5 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. Findings. 

Sec. 3. Definitions. 

TITLE I—PUNISHMENT FOR CONCEALMENT OF SECURITY 

BREACHES AND TOOLS TO COMBAT CYBERCRIME 

Sec. 101. Concealment of security breaches involving sensitive personally identifiable information. 

Sec. 102. Reporting of certain cybercrimes. 

Sec. 103. Authority to shut down botnets. 

Sec. 104. Deterring the development and sale of computer and cell phone spying devices. 

TITLE II—CONSUMER PRIVACY AND SECURITY OF SENSITIVE 

PERSONALLY IDENTIFIABLE INFORMATION 

Subtitle A—Consumer Privacy and Data Security Program 

Sec. 201. Purpose and applicability of consumer privacy and data security program. 

Sec. 202. Requirements for consumer privacy and data security program. 

Sec. 203. Federal enforcement. 

Sec. 204. Enforcement by State attorneys general. 

Sec. 205. Relation to other laws. 

Subtitle B—Security Breach Notification 

Sec. 211. Notice to individuals. 

Sec. 212. Exemptions. 

Sec. 213. Methods of notice. 

Sec. 214. Content of notification. 

Sec. 215. Coordination of notification with credit reporting agencies. 

Sec. 216. Notice to the Federal Trade Commission. 

Sec. 217. Notice to law enforcement. 

Sec. 218. Federal enforcement. 

Sec. 219. Enforcement by State attorneys general. 

Sec. 220. Effect on Federal and State law. 

Sec. 221. Reporting on exemptions. 

Sec. 222. Effective date. 

TITLE III—COMPLIANCE WITH STATUTORY PAY-AS-YOU-GO ACT 

Sec. 301. Budget compliance. 


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1 SEC. 2. FINDINGS. 

2 Congress finds that— 

3 (1) databases of sensitive personally identifiable 

4 information are increasingly prime targets of hack5 ers, identity thieves, rogue employees, and other 

6 criminals, including organized and sophisticated 

7 criminal operations; 

8 (2) security breaches caused by such criminal 

9 acts are a serious threat to consumer privacy, con10 sumer confidence, homeland security, national secu11 rity, e-commerce, and economic stability; 

12 (3) misuse of sensitive personally identifiable 

13 information has the potential to cause serious or ir14 reparable harm to an individual’s livelihood, privacy, 

15 and liberty and undermine efficient and effective 

16 business and government operations; 

17 (4) identity theft is a serious threat to the Na18 tion’s economic stability, national security, homeland 

19 security, cybersecurity, the development of e-com20 merce, and the privacy rights of Americans; 

21 (5) it is important for business entities that 

22 own, use, store, or license sensitive personally identi23 fiable information to adopt reasonable policies and 

24 procedures to help ensure the security and privacy of 

25 sensitive personally identifiable information; and 


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1 (6) individuals whose personal information has 

2 been compromised or who have been victims of iden3 tity theft should receive the necessary information 

4 and assistance to mitigate any potential damage. 

5 SEC. 3. DEFINITIONS. 

6 In this Act, the following definitions shall apply: 

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

8 persons related by common ownership or by cor9 porate control. 

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

11 meaning given such term in section 551 of title 5, 

12 United States Code. 

13 (3) BUSINESS ENTITY.—The term ‘‘business 

14 entity’’ means any organization, corporation, trust, 

15 partnership, sole proprietorship, unincorporated as16 sociation, or venture established to make a profit, or 

17 a nonprofit organization. 

18 (4) CONSUMER PRIVACY AND DATA SECURITY

19 PROGRAM.—The term ‘‘consumer privacy and data 

20 security program’’ means the program described in 

21 section 202(a). 

22 (5) COVERED ENTITY.—The term ‘‘covered en23 tity’’ means any business entity, other than a service 

24 provider, that collects, uses, accesses, transmits, 


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1 stores, or disposes of sensitive personally identifiable 

2 information. 

3 (6) DESIGNATED ENTITY.—The term ‘‘des4 ignated entity’’ means the Federal Government enti5 ty designated by the Secretary of Homeland Security 

6 under section 217(a). 

7 (7) ENCRYPTION.—The term ‘‘encryption’’— 

8 (A) means the protection of data in elec9 tronic form, in storage or in transit, using an 

10 encryption technology that has been generally 

11 accepted by experts in the field of information 

12 security that renders such data indecipherable 

13 in the absence of associated cryptographic keys 

14 necessary to enable decryption of such data; 

15 and 

16 (B) includes appropriate management and 

17 safeguards of such cryptographic keys so as to 

18 protect the integrity of the encryption. 

19 (8) IDENTITY THEFT.—The term ‘‘identity 

20 theft’’ means a violation of section 1028(a)(7) of 

21 title 18, United States Code. 

22 (9) SECURITY BREACH.— 

23 (A) IN GENERAL.—The term ‘‘security 

24 breach’’ means compromise of the privacy or se25 curity of computerized data that results in, or 


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1 that there is a reasonable basis to conclude has 

2 resulted in, unauthorized access to or acquisi3 tion of sensitive personally identifiable informa4 tion. 

5 (B) EXCLUSION.—The term ‘‘security 

6 breach’’ does not include— 

7 (i) a good faith access or acquisition 

8 of sensitive personally identifiable informa9 tion by a business entity, or an employee 

10 or agent of a business entity, if the sen11 sitive personally identifiable information is 

12 not subject to further unauthorized disclo13 sure; 

14 (ii) the release of a public record not 

15 otherwise subject to confidentiality or non16 disclosure requirements; or 

17 (iii) any lawfully authorized investiga18 tive, protective, or intelligence activity of a 

19 law enforcement or intelligence agency of 

20 the United States, a State, or a political 

21 subdivision of a State. 

22 (10) SENSITIVE PERSONALLY IDENTIFIABLE IN23 FORMATION.—The term ‘‘sensitive personally identi24 fiable information’’ means any information or comVerDate Sep 11 2014 21:25 May 11, 2015 Jkt 049200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1158.IS S1158

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1 pilation of information, in electronic or digital form 

2 that includes the following: 

3 (A) A non-truncated social security num4 ber, a driver’s license number, passport num5 ber, or alien registration number or other gov6 ernment-issued unique identification number. 

7 (B) A financial account number or credit 

8 or debit card number in combination with any 

9 security code, access code, or password if re10 quired for an individual to obtain credit, with11 draw funds, or engage in financial transactions. 

12 (C) A unique electronic account identifier, 

13 including an online user name or email address, 

14 in combination with any security code, access 

15 code, password, or security question and an16 swer, if required for an individual to obtain 

17 money, goods, services, access to digital photo18 graphs, digital videos or electronic communica19 tions, or any other thing of value. 

20 (D) Unique biometric data, such as 

21 faceprint, fingerprint, voice print, a retina or 

22 iris image, or any other unique physical rep23 resentation. 

24 (E) An individual’s first and last name or 

25 first initial and last name in combination with 


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1 any information that relates to the individual’s 

2 past, present, or future physical or mental 

3 health or condition, or to the provision of health 

4 care to or diagnosis of the individual, including 

5 health insurance information such as a health 

6 insurance policy number or subscriber identi7 fication number, or any information in an indi8 vidual’s health insurance application and claims 

9 history. 

10 (F) Information about an individual’s geo11 graphic location generated by or derived from 

12 the operation or use of an electronic commu13 nications device that is sufficient to identify the 

14 street and name of the city or town in which 

15 the device is located, excluding telephone num16 bers or network or Internet protocol addresses. 

17 (G) Password-protected digital photo18 graphs and digital videos not otherwise avail19 able to the public. 

20 (11) SERVICE PROVIDER.—The term ‘‘service 

21 provider’’ means a business entity that provides elec22 tronic data transmission, routing, intermediate and 

23 transient storage, or connections to its system or 

24 network, where the business entity providing such 

25 services does not select or modify the content of the 


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1 electronic data, is not the sender or the intended re2 cipient of the data, and the business entity trans3 mits, routes, or provides connections for sensitive 

4 personally identifiable information in a manner that 

5 sensitive personally identifiable information is undif6 ferentiated from other types of data that such busi7 ness entity transmits, routes, or provides connec8 tions. Any such business entity shall be treated as 

9 a service provider under this Act only to the extent 

10 that it is engaged in the provision of such trans11 mission, routing, intermediate and transient storage 

12 or connections. 

13 TITLE I—PUNISHMENT FOR CON14 CEALMENT OF SECURITY 

15 BREACHES AND TOOLS TO 

16 COMBAT CYBERCRIME 

17 SEC. 101. CONCEALMENT OF SECURITY BREACHES INVOLV18 ING SENSITIVE PERSONALLY IDENTIFIABLE 

19 INFORMATION. 

20 (a) IN GENERAL.—Chapter 47 of title 18, United 

21 States Code, is amended by adding at the end the fol22 lowing: 


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1 ‘‘§ 1041. Concealment of security breaches involving 

2 sensitive personally identifiable informa3 tion 

4 ‘‘(a) IN GENERAL.—Whoever, having knowledge of a 

5 security breach and of the fact that notice of such security 

6 breach is required under title II of the Consumer Privacy 

7 Protection Act of 2015, intentionally and willfully conceals 

8 the fact of such security breach, shall, in the event that 

9 such security breach results in economic harm to any indi10 vidual in the amount of $1,000 or more, be fined under 

11 this title or imprisoned for not more than 5 years, or both. 

12 ‘‘(b) PERSON DEFINED.—For purposes of subsection 

13 (a), the term ‘person’ has the meaning given the term in 

14 section 1030(e)(12).’’. 

15 (b) CONFORMING AND TECHNICAL AMENDMENTS.— 

16 The table of sections for chapter 47 of title 18, United 

17 States Code, is amended by adding at the end the fol18 lowing: 

‘‘1041. Concealment of security breaches involving sensitive personally identifiable information.’’. 

19 (c) ENFORCEMENT AUTHORITY.— 

20 (1) IN GENERAL.—The United States Secret 

21 Service and Federal Bureau of Investigation shall 

22 have the authority to investigate offenses under sec23 tion 1041 of title 18, United States Code, as added 

24 by subsection (a). 


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1 (2) NONEXCLUSIVITY.—The authority granted 

2 in paragraph (1) shall not be exclusive of any exist3 ing authority held by any other Federal agency. 

4 SEC. 102. REPORTING OF CERTAIN CYBERCRIMES. 

5 Section 1030 of title 18, United States Code, is 

6 amended by striking subsection (h) and inserting the fol7 lowing: 

8 ‘‘(h) REPORTING CERTAIN CRIMINAL CASES.—Not 

9 later than 1 year after the date of the enactment of this 

10 subsection, and annually thereafter, the Attorney General 

11 shall report to the Committee on the Judiciary of the Sen12 ate and the Committee on the Judiciary of the House of 

13 Representatives the number of criminal cases brought 

14 under subsection (a) that involve conduct in which— 

15 ‘‘(1) the defendant— 

16 ‘‘(A) exceeded authorized access to a non17 governmental computer; or 

18 ‘‘(B) accessed a non-governmental com19 puter without authorization; and 

20 ‘‘(2) the sole basis for the Government deter21 mining that access to the non-governmental com22 puter was unauthorized, or in excess of authoriza23 tion, was that the defendant violated a contractual 

24 obligation or agreement with a service provider or 


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1 employer, such as an acceptable use policy or terms 

2 of service agreement.’’. 

3 SEC. 103. AUTHORITY TO SHUT DOWN BOTNETS. 

4 (a) AMENDMENT.—Section 1345 of title 18, United 

5 States Code, is amended— 

6 (1) in the heading, by inserting ‘‘and abuse’’ 

7 after ‘‘fraud’’; 

8 (2) in subsection (a)— 

9 (A) in paragraph (1)— 

10 (i) in subparagraph (B), by striking 

11 ‘‘or’’ at the end; 

12 (ii) in subparagraph (C), by inserting 

13 ‘‘or’’ after the semicolon; and 

14 (iii) by inserting after subparagraph 

15 (C) the following: 

16 ‘‘(D) violating section 1030(a)(5) where such 

17 conduct would damage (as defined in section 1030), 

18 100 or more protected computers (as defined in sec19 tion 1030) during any 1-year period, including by 

20 denying access to or operation of the computers, in21 stalling unwanted software on the computers, using 

22 the computers without authorization, or obtaining 

23 information from the computers without authoriza24 tion;’’; and 


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1 (B) in paragraph (2), by inserting ‘‘, a vio2 lation of section 1030(a)(5) as described in sub3 section (a)(1)(D),’’ before ‘‘or a Federal’’; 

4 (3) in subsection (b), by adding ‘‘, except in the 

5 case of a person violating section 1030(a)(5) in the 

6 manner described in subsection (a)(1)(D),’’ before 

7 ‘‘take such other action’’; and 

8 (4) by adding at the end the following: 

9 ‘‘(c) A restraining order or prohibition described in 

10 subsection (b), if issued in circumstances described in sub11 section (a)(1)(D)— 

12 ‘‘(1) may only authorize action that solely af13 fects persons violating section 1030 in the manner 

14 described in subsection (a)(1)(D); and 

15 ‘‘(2) may, upon application of the Attorney 

16 General— 

17 ‘‘(A) specify that no cause of action shall 

18 lie in any court against a person for complying 

19 with the restraining order, prohibition, or other 

20 action; and 

21 ‘‘(B) provide that the United States shall 

22 pay to such person a fee for reimbursement for 

23 such costs as are reasonably necessary and 

24 which have been directly incurred in complying 


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1 with the restraining order, prohibition, or other 

2 action. 

3 ‘‘(d) There are authorized to be appropriated to the 

4 Department of Justice, the Department of Homeland Se5 curity, and the Department of the Treasury such sums 

6 as are necessary to implement this section, including pay7 ments made by the United States of a fee for reimburse8 ment.’’. 

9 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

10 The table of section for chapter 63 is amended by striking 

11 the item relating to section 1345 and inserting the fol12 lowing: 

‘‘1345. Injunctions against fraud and abuse.’’. 

13 SEC. 104. DETERRING THE DEVELOPMENT AND SALE OF 

14 COMPUTER AND CELL PHONE SPYING DE15 VICES. 

16 Section 1956(c)(7)(D) of title 18, United States 

17 Code, is amended by inserting ‘‘section 2512 (relating to 

18 the manufacture, distribution, possession, and advertising 

19 of wire, oral, or electronic communication intercepting de20 vices),’’ before ‘‘section 46502’’. 


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1 TITLE II—CONSUMER PRIVACY 

2 AND SECURITY OF SENSITIVE 

3 PERSONALLY IDENTIFIABLE 

4 INFORMATION 

5 Subtitle A—Consumer Privacy and 

6 Data Security Program 

7 SEC. 201. PURPOSE AND APPLICABILITY OF CONSUMER 

8 PRIVACY AND DATA SECURITY PROGRAM. 

9 (a) PURPOSE.—The purpose of this subtitle is to en10 sure standards for developing and implementing adminis11 trative, technical, and physical safeguards to protect the 

12 security of sensitive personally identifiable information. 

13 (b) APPLICABILITY.—A covered entity engaging in 

14 interstate commerce that collects, uses, accesses, trans15 mits, stores, or disposes of sensitive personally identifiable 

16 information in electronic or digital form of not less than 

17 10,000 United States persons during any 12-month period 

18 is subject to the requirements for a consumer privacy and 

19 data security program for protecting sensitive personally 

20 identifiable information. 

21 (c) LIMITATIONS.—Notwithstanding any other obli22 gation under this subtitle, this subtitle does not apply to 

23 the following: 

24 (1) FINANCIAL INSTITUTIONS.—Financial insti25 tutions— 


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1 (A) subject to and in compliance with the 

2 data security requirements and standards under 

3 section 501(b) of the Gramm-Leach-Bliley Act 

4 (15 U.S.C. 6801(b)); and 

5 (B) subject to the jurisdiction of an agency 

6 or authority described in section 505(a) of the 

7 Gramm-Leach-Bliley Act (15 U.S.C. 6805(a)). 

8 (2) HIPAA AND HITECH REGULATED ENTI9 TIES.—An entity that is subject to and in compli10 ance with the data security requirements of the fol11 lowing, with respect to data that is subject to such 

12 requirements: 

13 (A) Section 13401 of the Health Informa14 tion Technology for Economic and Clinical 

15 Health Act (42 U.S.C. 17931). 

16 (B) Part 160 or 164 of title 45, Code of 

17 Federal Regulations (or any successor regula18 tions). 

19 (C) The regulations promulgated under 

20 section 264(c) of the Health Insurance Port21 ability and Accountability Act of 1996 (42 

22 U.S.C. 1320d–2 note). 

23 (D) In the case of a business associate, as 

24 defined in section 13400 of the Health Informa25 tion Technology for Economic and Clinical 


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1 Health Act (42 U.S.C. 17921), the applicable 

2 privacy and data security requirements of part 

3 1 of subtitle D of title XIII of division A of the 

4 American Reinvestment and Recovery Act of 

5 2009 (42 U.S.C. 17931 et seq.). 

6 (3) SERVICE PROVIDERS.—A service provider 

7 for any electronic communication by a third-party, 

8 to the extent that the service provider is engaged 

9 solely in the transmission, routing, or temporary, in10 termediate, or transient storage of that communica11 tion. 

12 SEC. 202. REQUIREMENTS FOR CONSUMER PRIVACY AND 

13 DATA SECURITY PROGRAM. 

14 (a) CONSUMER PRIVACY AND DATA SECURITY PRO15 GRAM.—A covered entity subject to this subtitle shall com16 ply with the following safeguards and any other adminis17 trative, technical, or physical safeguards identified by the 

18 Federal Trade Commission in a rulemaking process pursu19 ant to section 553 of title 5, United States Code, for the 

20 protection of sensitive personally identifiable information: 

21 (1) SCOPE.—A covered entity shall implement a 

22 comprehensive consumer privacy and data security 

23 program that includes administrative, technical, and 

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1 plexity, and the nature and scope, of the activities 

2 of the covered entity. 

3 (2) DESIGN.—The consumer privacy and data 

4 security program shall be designed to— 

5 (A) ensure the privacy and security of sen6 sitive personally identifying information; 

7 (B) protect against any anticipated 

8 vulnerabilities to the privacy and security of 

9 sensitive personally identifying information; and 

10 (C) protect against unauthorized access, 

11 acquisition, disclosure, or use of sensitive per12 sonally identifying information. 

13 (3) RISK ASSESSMENT.—A covered entity 

14 shall— 

15 (A) identify reasonably foreseeable internal 

16 and external vulnerabilities and internal and ex17 ternal threats that could result in unauthorized 

18 access, disclosure, or use of sensitive personally 

19 identifiable information or of systems con20 taining sensitive personally identifiable informa21 tion; 

22 (B) assess the likelihood of and potential 

23 damage from unauthorized access, acquisition, 

24 disclosure, or use of sensitive personally identi25 fiable information; 


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1 (C) assess the sufficiency of its technical, 

2 physical, and administrative controls in place to 

3 control and minimize risks from unauthorized 

4 access, acquisition, disclosure, or use of sen5 sitive personally identifiable information; and 

6 (D) assess the vulnerability of sensitive 

7 personally identifiable information during de8 struction and disposal of such information, in9 cluding through the disposal or retirement of 

10 hardware. 

11 (4) RISK MANAGEMENT AND CONTROL.—Each 

12 covered entity shall— 

13 (A) design its consumer privacy and data 

14 security program to control the risks identified 

15 under paragraph (3); 

16 (B) adopt measures commensurate with 

17 the sensitivity of the data as well as the size, 

18 complexity, nature, and scope of the activities 

19 of the covered entity that— 

20 (i) controls access to sensitive person21 ally identifiable information, including con22 trols to authenticate and permit access 

23 only to authorized individuals; 

24 (ii) detect, record, and preserve infor25 mation relevant to actual and attempted 


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1 fraudulent, unlawful, or unauthorized ac2 cess, acquisition, disclosure, or use of sen3 sitive personally identifiable information, 

4 including by employees and other individ5 uals otherwise authorized to have access; 

6 (iii) protect sensitive personally identi7 fiable information during use, trans8 mission, storage, and disposal by 

9 encryption, redaction, disclosure limitation 

10 methodologies, or access controls, that are 

11 widely accepted as an effective industry 

12 practice or industry standard, or other rea13 sonable means; 

14 (iv) ensure that sensitive personally 

15 identifiable information is properly de16 stroyed and disposed of, including during 

17 the destruction of computers and other 

18 electronic media that contain sensitive per19 sonally identifiable information; and 

20 (v) ensure that no third party is au21 thorized to access or acquire sensitive per22 sonally identifiable information in its pos23 session without the covered entity first per24 forming sufficient due diligence to ascer25 tain, with reasonable certainty, that such 


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1 information is being sought for a valid 

2 legal purpose; and 

3 (C) establish a plan and procedures for 

4 minimizing the amount of sensitive personally 

5 identifiable information maintained by the cov6 ered entity, which shall provide for the reten7 tion of sensitive personally identifiable informa8 tion only as reasonably needed for the business 

9 purposes of such business entity or as necessary 

10 to comply with any legal obligation. 

11 (5) LIMITATION.—Nothing in this subsection 

12 shall be construed to permit, and nothing does per13 mit, the Federal Trade Commission to issue regula14 tions requiring, or according greater legal status to, 

15 the implementation of or application of a specific 

16 technology or technological specifications for meeting 

17 the requirements of this title. 

18 (b) TRAINING.—Covered entities subject to this sub19 title shall take steps to ensure employee training and su20 pervision for implementation of the consumer privacy and 

21 data security program of the covered entity. 

22 (c) VULNERABILITY TESTING.— 

23 (1) IN GENERAL.—Covered entities subject to 

24 this subtitle shall take steps to ensure regular test25 ing of key technical, physical, and administrative 


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1 controls for information and information systems of 

2 the consumer privacy and data security program to 

3 detect, prevent, and respond to attacks or intrusions, 

4 or other system failures. 

5 (2) FREQUENCY.—The frequency and nature of 

6 the tests required under paragraph (1) shall be de7 termined by the risk assessment of the covered enti8 ty under subsection (a)(3). 

9 (d) RELATIONSHIP TO CERTAIN PROVIDERS OF

10 SERVICES.—In the event a covered entity subject to this 

11 subtitle engages a person or entity not subject to this sub12 title (other than a service provider) to receive sensitive 

13 personally identifiable information in performing services 

14 or functions (other than the services or functions provided 

15 by a service provider) on behalf of and under the instruc16 tion of such covered entity, the covered entity shall— 

17 (1) exercise appropriate due diligence in select18 ing the person or entity for responsibilities related to 

19 sensitive personally identifiable information, and 

20 take reasonable steps to select and retain a person 

21 or entity that is capable of maintaining appropriate 

22 controls for the privacy and security of the sensitive 

23 personally identifiable information at issue; and 

24 (2) require the person or entity by contract to 

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1 signed to meet the objectives and requirements gov2 erning subtitle A. 

3 (e) PERIODIC ASSESSMENT AND CONSUMER PRIVACY

4 AND DATA SECURITY MODERNIZATION.—Each covered 

5 entity subject to this subtitle shall on a regular basis mon6 itor, evaluate, and adjust, as appropriate its consumer pri7 vacy and data security program in light of any relevant 

8 changes in— 

9 (1) technology; 

10 (2) internal or external threats and 

11 vulnerabilities to sensitive personally identifiable in12 formation; and 

13 (3) the changing business arrangements of the 

14 covered entity, such as— 

15 (A) mergers and acquisitions; 

16 (B) alliances and joint ventures; 

17 (C) outsourcing arrangements; 

18 (D) bankruptcy; and 

19 (E) changes to sensitive personally identifi20 able information systems. 

21 (f) IMPLEMENTATION TIMELINE.—Not later than 1 

22 year after the date of enactment of this Act, a covered 

23 entity subject to the provisions of this subtitle shall imple24 ment a consumer privacy and data security program pur25 suant to this subtitle. 


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1 SEC. 203. FEDERAL ENFORCEMENT. 

2 (a) IN GENERAL.—The Attorney General and the 

3 Federal Trade Commission may enforce civil violations of 

4 section 201 or 202. 

5 (b) CIVIL ACTIONS BY THE ATTORNEY GENERAL OF

6 THE UNITED STATES.— 

7 (1) IN GENERAL.—The Attorney General may 

8 bring a civil action in the appropriate United States 

9 district court against any covered entity that en10 gages in conduct constituting a violation of this sub11 title and, upon proof of such conduct by a prepon12 derance of the evidence, such covered entity shall be 

13 subject to a civil penalty in an amount that is not 

14 greater than the product of the number of individ15 uals whose sensitive personally identifiable informa16 tion was placed at risk as a result of the violation 

17 and $16,500. 

18 (2) PENALTY LIMITATION.—Notwithstanding 

19 any other provision of law, the total amount of the 

20 civil penalty assessed against a covered entity for 

21 conduct involving the same or related acts or omis22 sions that results in a violation of this subtitle may 

23 not exceed $5,000,000, unless such conduct is found 

24 to be willful or intentional. 

25 (3) DETERMINATIONS.—The determination of 

26 whether a violation of a provision of this subtitle has 


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1 occurred, and if so, the amount of the penalty to be 

2 imposed, if any, shall be made by the court sitting 

3 as the finder of fact. The determination of whether 

4 a violation of a provision of this subtitle was willful 

5 or intentional, and if so, the amount of the addi6 tional penalty to be imposed, if any, shall be made 

7 by the court sitting as the finder of fact. 

8 (4) ADDITIONAL PENALTY LIMIT.—If a court 

9 determines under paragraph (3) that a violation of 

10 a provision of this subtitle was willful or intentional 

11 and imposes an additional penalty, the court may 

12 not impose an additional penalty in an amount that 

13 exceeds $5,000,000. 

14 (c) INJUNCTIVE ACTIONS BY THE ATTORNEY GEN15 ERAL.— 

16 (1) IN GENERAL.—If it appears that a covered 

17 entity has engaged, or is engaged, in any act or 

18 practice constituting a violation of this subtitle, the 

19 Attorney General may petition an appropriate dis20 trict court of the United States for an order— 

21 (A) enjoining such act or practice; or 

22 (B) enforcing compliance with this subtitle. 

23 (2) ISSUANCE OF ORDER.—A court may issue 

24 an order under paragraph (1), if the court finds that 


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1 the conduct in question constitutes a violation of this 

2 subtitle. 

3 (d) CIVIL ACTIONS BY THE FEDERAL TRADE COM4 MISSION.— 

5 (1) IN GENERAL.—Compliance with the require6 ments imposed under this subtitle may be enforced 

7 under the Federal Trade Commission Act (15 

8 U.S.C. 41 et seq.) by the Federal Trade Commission 

9 with respect to business entities subject to this Act. 

10 All of the functions and powers of the Federal Trade 

11 Commission under the Federal Trade Commission 

12 Act are available to the Commission to enforce com13 pliance by any person with the requirements imposed 

14 under this title. 

15 (2) CIVIL PENALTIES.— 

16 (A) IN GENERAL.—Any covered entity that 

17 violates the provisions of this subtitle shall be 

18 subject to a civil penalty in the amount that is 

19 not greater than the product of the number of 

20 individuals whose sensitive personally identifi21 able information was placed at risk as a result 

22 of the violation and $16,500. 

23 (B) PENALTY LIMITATION.—Notwith24 standing any other provision of law, the total 

25 amount of the civil penalty assessed against a 


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1 covered entity for conduct involving the same or 

2 related acts or omissions that results in a viola3 tion of this subtitle may not exceed $5,000,000, 

4 unless such conduct is found to be willful or in5 tentional. 

6 (C) DETERMINATIONS.—The determina7 tion of whether a violation of a provision of this 

8 subtitle has occurred, and if so, the amount of 

9 the penalty to be imposed, if any, shall be made 

10 by the court sitting as the finder of fact. The 

11 determination of whether a violation of a provi12 sion of this subtitle was willful or intentional, 

13 and if so, the amount of the additional penalty 

14 to be imposed, if any, shall be made by the 

15 court sitting as the finder of fact. 

16 (D) ADDITIONAL PENALTY LIMIT.—If a 

17 court determines under subparagraph (C) that 

18 a violation of a provision of this subtitle was 

19 willful or intentional and imposes an additional 

20 penalty, the court may not impose an additional 

21 penalty in an amount that exceeds $5,000,000. 

22 (3) UNFAIR OR DECEPTIVE ACTS OR PRAC23 TICES.—For the purpose of the exercise by the Fed24 eral Trade Commission of its functions and powers 

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1 tion of any requirement or prohibition imposed 

2 under this title shall constitute an unfair or decep3 tive act or practice in commerce in violation of a 

4 regulation under section 18(a)(1)(B) of the Federal 

5 Trade Commission Act (15 U.S.C. 57a(a)(I)(B)) re6 garding unfair or deceptive acts or practices and 

7 shall be subject to enforcement by the Federal Trade 

8 Commission under that Act with respect to any busi9 ness entity, irrespective of whether that business en10 tity is engaged in commerce or meets any other ju11 risdictional tests in the Federal Trade Commission 

12 Act. 

13 (e) COORDINATION OF ENFORCEMENT.— 

14 (1) IN GENERAL.—When opening an investiga15 tion, the Federal Trade Commission shall consult 

16 with the Attorney General. 

17 (2) LIMITATION.—The Federal Trade Commis18 sion may initiate investigations under this subsection 

19 unless the Attorney General determines that such an 

20 investigation would impede an ongoing criminal in21 vestigation or national security activity. 

22 (3) COORDINATION AGREEMENT.— 

23 (A) IN GENERAL.—In order to avoid con24 flicts and promote consistency regarding the en25 forcement and litigation of matters under this 


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1 Act, not later than 180 days after the date of 

2 enactment of this Act, the Attorney General 

3 and the Federal Trade Commission shall enter 

4 into an agreement for coordination regarding 

5 the enforcement of this Act. 

6 (B) REQUIREMENT.—The coordination 

7 agreement entered into under subparagraph (A) 

8 shall include provisions to ensure that parallel 

9 investigations and proceedings under this sec10 tion are conducted in a manner that avoids con11 flicts and does not impede the ability of the At12 torney General to prosecute violations of Fed13 eral criminal laws. 

14 (f) OTHER RIGHTS AND REMEDIES.—The rights and 

15 remedies available under this section are cumulative and 

16 shall not affect any other rights and remedies available 

17 under law. 

18 SEC. 204. ENFORCEMENT BY STATE ATTORNEYS GENERAL. 

19 (a) STATE ENFORCEMENT.— 

20 (1) CIVIL ACTIONS.—In any case in which the 

21 attorney general of a State or any State or local law 

22 enforcement agency authorized by the State attorney 

23 general or by State statute to prosecute violations of 

24 consumer protection law, has reason to believe that 

25 a covered entity has violated section 201 or 202, the 


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1 State, as parens patriae, may bring a civil action on 

2 behalf of the residents of that State to— 

3 (A) enjoin that act or practice; 

4 (B) enforce compliance with section 201 or 

5 202; or 

6 (C) impose a civil penalty in an amount 

7 that is not greater than the product of the 

8 number of individuals whose sensitive personally 

9 identifiable information was placed at risk as a 

10 result of the violation and $16,500. 

11 (2) PENALTY LIMITATION.— 

12 (A) IN GENERAL.—Notwithstanding any 

13 other provision of law, the total sum of civil 

14 penalties assessed against a covered entity for 

15 all violations of the provisions of this subtitle 

16 resulting from the same or related acts or omis17 sions may not exceed $5,000,000, unless such 

18 conduct is found to be willful or intentional. 

19 (B) DETERMINATIONS.—The determina20 tion of whether a violation of a provision of this 

21 subtitle has occurred, and if so, the amount of 

22 the penalty to be imposed, if any, shall be made 

23 by the court sitting as the finder of fact. The 

24 determination of whether a violation of a provi25 sion of this subtitle was willful or intentional, 


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1 and if so, the amount of the additional penalty 

2 to be imposed, if any, shall be made by the 

3 court sitting as the finder of fact. 

4 (C) ADDITIONAL PENALTY LIMIT.—If a 

5 court determines under subparagraph (B) that 

6 a violation of a provision of this subtitle was 

7 willful or intentional and imposes an additional 

8 penalty, the court may not impose an additional 

9 penalty in an amount that exceeds $5,000,000. 

10 (3) NOTICE.— 

11 (A) IN GENERAL.—Before filing an action 

12 under this subsection, the attorney general of 

13 the State involved shall provide to the Attorney 

14 General of the United States and the Federal 

15 Trade Commission— 

16 (i) a written notice of that action; and 

17 (ii) a copy of the complaint for that 

18 action. 

19 (B) EXCEPTION.—Subparagraph (A) shall 

20 not apply with respect to the filing of an action 

21 by an attorney general of a State under this 

22 subsection, if the attorney general of a State 

23 determines that it is not feasible to provide the 

24 notice described in this subparagraph before the 

25 filing of the action. 


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1 (C) NOTIFICATION WHEN PRACTICABLE.— 

2 In an action described under subparagraph (B), 

3 the attorney general of a State shall provide the 

4 written notice and the copy of the complaint to 

5 the Attorney General of the United States and 

6 the Federal Trade Commission as soon after 

7 the filing of the complaint as practicable. 

8 (4) FEDERAL PROCEEDINGS.—Upon receiving 

9 notice under paragraph (2), the Attorney General of 

10 the United States and the Federal Trade Commis11 sion shall have the right to— 

12 (A) move to stay the action, pending the 

13 final disposition of a pending Federal pro14 ceeding or action as described in section 203; 

15 (B) initiate an action in the appropriate 

16 United States district court under section 203 

17 and move to consolidate all pending actions, in18 cluding State actions, in such court; 

19 (C) intervene in an action brought under 

20 paragraph (1); and 

21 (D) file petitions for appeal. 

22 (5) PENDING PROCEEDINGS.—If the Attorney 

23 General of the United States or the Federal Trade 

24 Commission initiates a Federal civil action for a vio25 lation of this subtitle, or any regulations thereunder, 


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1 no attorney general of a State may bring an action 

2 for a violation of this subtitle that resulted from the 

3 same or related acts or omissions against a defend4 ant named in the Federal civil action initiated by the 

5 Attorney General of the United States or the Fed6 eral Trade Commission. 

7 (6) RULE OF CONSTRUCTION.—For purposes of 

8 bringing any civil action under paragraph (1) noth9 ing in this subtitle shall be construed to prevent an 

10 attorney general of a State from exercising the pow11 ers conferred on the attorney general by the laws of 

12 that State to— 

13 (A) conduct investigations; 

14 (B) administer oaths and affirmations; or 

15 (C) compel the attendance of witnesses or 

16 the production of documentary and other evi17 dence. 

18 (7) VENUE; SERVICE OF PROCESS.— 

19 (A) VENUE.—Any action brought under 

20 subsection (a) may be brought in— 

21 (i) the district court of the United 

22 States that meets applicable requirements 

23 relating to venue under section 1391 of 

24 title 28, United States Code; or 


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1 (ii) another court of competent juris2 diction. 

3 (B) SERVICE OF PROCESS.—In an action 

4 brought under subsection (a), process may be 

5 served in any district in which the defendant— 

6 (i) is an inhabitant; or 

7 (ii) may be found. 

8 (b) NO PRIVATE CAUSE OF ACTION.—Nothing in 

9 this subtitle establishes a private cause of action against 

10 a business entity for violation of any provision of this sub11 title. 

12 SEC. 205. RELATION TO OTHER LAWS. 

13 (a) PREEMPTION.—For any covered entity that is 

14 subject to this subtitle, the provisions of this subtitle shall 

15 supersede any other provision of Federal law, or any provi16 sions of the law of any State or political subdivision of 

17 a State requiring data security practices that are less 

18 stringent than the requirements of this subtitle. 

19 (b) CONSUMER PROTECTION LAWS.—Except as pro20 vided in subsection (a), this section shall not be construed 

21 to limit the enforcement of any State consumer protection 

22 law by an attorney general of a State. 

23 (c) PROTECTION OF CERTAIN STATE LAWS.—Noth24 ing in this Act shall be construed to preempt the applica25 bility of— 


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1 (1) State trespass, contract, or tort law; or 

2 (2) any other State law to the extent that the 

3 law relates to acts of fraud. 

4 (d) PRESERVATION OF FTC AUTHORITY.—Nothing 

5 in this Act may be construed in any way to limit the au6 thority of the Federal Trade Commission under any other 

7 provision of law. 

8 Subtitle B—Security Breach 

9 Notification 

10 SEC. 211. NOTICE TO INDIVIDUALS. 

11 (a) IN GENERAL.—Except as provided in section 212, 

12 a covered entity shall, following the discovery of a security 

13 breach of such information, notify any resident of the 

14 United States whose sensitive personally identifiable infor15 mation has been, or is reasonably believed to have been, 

16 accessed or acquired. 

17 (b) OBLIGATION OF THIRD PARTY ENTITIES.— 

18 (1) IN GENERAL.—In the event of a breach of 

19 security of a system maintained by a third party en20 tity that has been contracted to maintain or process 

21 data in electronic form containing sensitive person22 ally identifiable information on behalf of a covered 

23 entity who owns or possesses such data, the third 

24 party entity shall notify the covered entity of the 

25 breach of security. Upon receiving notification from 


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1 the third party entity, such covered entity shall pro2 vide the notification required under subsection (a). 

3 (2) NOTICE BY THIRD PARTY ENTITIES.—Noth4 ing in this subtitle shall prevent or abrogate an 

5 agreement between a covered entity required to give 

6 notice under this section and a third party entity 

7 that has been contracted to maintain or process data 

8 in electronic form containing sensitive personally 

9 identifiable information for a covered entity, to pro10 vide the notifications required under subsection (a). 

11 (3) SERVICE PROVIDERS.—If a service provider 

12 becomes aware of a security breach containing sen13 sitive personally identifiable information that is 

14 owned or possessed by a covered entity that connects 

15 to or uses a system or network provided by the serv16 ice provider for the purpose of transmitting, routing, 

17 or providing intermediate or transient storage of 

18 such data, the service provider shall be required to 

19 promptly notify the covered entity who initiated such 

20 connection, transmission, routing, or storage of the 

21 security breach if the covered entity can be reason22 ably identified. Upon receiving such notification 

23 from a service provider, the covered entity shall be 

24 required to provide the notification required under 

25 subsection (a). 


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1 (c) TIMELINESS OF NOTIFICATION.— 

2 (1) IN GENERAL.—All notifications required 

3 under this section shall be made as expediently as 

4 possible and without unreasonable delay following 

5 the discovery by the covered entity of a security 

6 breach. 

7 (2) REASONABLE DELAY.—Reasonable delay 

8 under this subsection may include any reasonable 

9 time necessary to determine the scope of the security 

10 breach, prevent further disclosures, and provide no11 tice to law enforcement when required. Except as 

12 provided in subsection (d), delay of notification shall 

13 not exceed 30 days following the discovery of a secu14 rity breach. 

15 (3) BURDEN OF PRODUCTION.—The covered 

16 entity required to provide notice under this subtitle 

17 shall, upon the request of the Attorney General of 

18 the United States or the Federal Trade Commission 

19 provide records or other evidence of the notifications 

20 required under this subtitle, including to the extent 

21 applicable, the reasons for any delay of notification. 

22 (d) DELAY OF NOTIFICATION AUTHORIZED FOR LAW

23 ENFORCEMENT OR NATIONAL SECURITY PURPOSES.— 

24 (1) IN GENERAL.—If a Federal law enforce25 ment agency or intelligence agency determines that 


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1 the notification required under this section would 

2 impede a criminal investigation, or national security 

3 activity, such notification shall be delayed upon writ4 ten notice from a Federal law enforcement agency or 

5 intelligence agency to the covered entity that experi6 enced the security breach. The notification from a 

7 Federal law enforcement agency or intelligence agen8 cy shall specify in writing the period of delay re9 quested for law enforcement or national security 

10 purposes. 

11 (2) EXTENDED DELAY OF NOTIFICATION.—If 

12 the notification required under subsection (a) is de13 layed pursuant to paragraph (1), a covered entity 

14 shall give notice 15 days after the day such law en15 forcement or national security delay was invoked un16 less a Federal law enforcement or intelligence agency 

17 provides written notification that further delay is 

18 necessary. 

19 (3) LAW ENFORCEMENT IMMUNITY.—No non20 constitutional cause of action shall lie in any court 

21 against any agency for acts relating to the delay of 

22 notification for law enforcement or national security 

23 purposes under this subtitle. 


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1 (e) LIMITATIONS.—Notwithstanding any other obli2 gation under this subtitle, this subtitle does not apply to 

3 the following: 

4 (1) FINANCIAL INSTITUTIONS.—Financial insti5 tutions— 

6 (A) subject to and in compliance with the 

7 data security requirements and standards under 

8 section 501(b) of the Gramm-Leach-Bliley Act 

9 (15 U.S.C. 6801(b)); and 

10 (B) subject to the jurisdiction of an agency 

11 or authority described in section 505(a) of the 

12 Gramm-Leach-Bliley Act (15 U.S.C. 6805(a)). 

13 (2) HIPAA AND HITECH REGULATED ENTI14 TIES.—An entity that is subject to and in compli15 ance with the data breach notification of the fol16 lowing, with respect to data that is subject to such 

17 requirements: 

18 (A) Section 13401 of the Health Informa19 tion Technology for Economic and Clinical 

20 Health Act (42 U.S.C. 17931). 

21 (B) Part 160 or 164 of title 45, Code of 

22 Federal Regulations (or any successor regula23 tions). 

24 (C) The regulations promulgated under 

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1 ability and Accountability Act of 1996 (42 

2 U.S.C. 1320d–2 note). 

3 (D) In the case of a business entity, the 

4 applicable data breach notification requirements 

5 of part 1 of subtitle D of title XIII of division 

6 A of the American Reinvestment and Recovery 

7 Act of 2009 (42 U.S.C. 17931 et seq.), if such 

8 business entity is acting as a covered entity, a 

9 business associate, or a vendor of personal 

10 health records, as those terms are defined in 

11 section 13400 of the Health Information Tech12 nology for Economic and Clinical Health Act 

13 (42 U.S.C. 17921). 

14 (E) In the case of and third party service 

15 provider, section 13407 of the Health Informa16 tion Technology for Economic and Clinical 

17 Health Act (42 U.S.C. 17937). 

18 SEC. 212. EXEMPTIONS. 

19 (a) NATIONAL SECURITY AND LAW ENFORCEMENT

20 EXEMPTION.— 

21 (1) IN GENERAL.—Section 211 shall not apply 

22 to a covered entity if a Federal law enforcement 

23 agency or intelligence agency— 

24 (A) determines that notification of the se25 curity breach— 


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1 (i) could be expected to reveal sen2 sitive sources and methods or similarly im3 pede the ability of the Government to con4 duct law enforcement investigations; or 

5 (ii) could be expected to cause damage 

6 to the national security; 

7 (B) communicates the determination made 

8 under subparagraph (A) to the covered entity; 

9 and 

10 (C) orders that notification required under 

11 section 211 not be made. 

12 (2) IMMUNITY.—No non-constitutional cause of 

13 action shall lie in any court against any Federal 

14 agency for acts relating to the exemption from noti15 fication for law enforcement or national security 

16 purposes under this title. 

17 (b) SAFE HARBOR EXEMPTION.—A covered entity 

18 shall be exempt from the notice requirements under sec19 tion 211 if the covered entity reasonably determines that 

20 sensitive personally identifiable information is rendered 

21 unusable, unreadable, or indecipherable through data se22 curity technology or methodology, including encryption or 

23 redaction, that is generally accepted by experts in the field 

24 of information security, such that there is no reasonable 


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1 likelihood that a security breach has resulted in, or will 

2 result in, the misuse of data. 

3 SEC. 213. METHODS OF NOTICE. 

4 A covered entity shall be in compliance with section 

5 211 if it provides the following: 

6 (1) INDIVIDUAL NOTICE.—Notice to individuals 

7 by 1 of the following means if the method of notifi8 cation selected can most likely be expected to reach 

9 the intended individual: 

10 (A) Written notification to the last known 

11 home mailing address of the individual in the 

12 records of the covered entity. 

13 (B) Telephone notice to the individual per14 sonally, provided that the telephone notice is 

15 made directly to each affected consumer, and is 

16 not made through a prerecorded message. 

17 (C) E-mail notice, if— 

18 (i)(I) the covered entity’s primary 

19 method of communication with the indi20 vidual is by e-mail; or 

21 (II) the individual has consented to 

22 receive such notice and the notice is con23 sistent with the provisions permitting elec24 tronic transmission of notices under sec25 tion 101 of the Electronic Signatures in 


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1 Global and National Commerce Act (15 

2 U.S.C. 7001); and 

3 (ii) the e-mail notice does not request, 

4 or contain a hypertext link to a request, 

5 that the consumer provide personal infor6 mation in response to the notice. 

7 (2) MEDIA AND WEBSITE NOTICE.—In the 

8 event notice is required to more than 5,000 individ9 uals in 1 State and individual notice is not feasible 

10 due to lack of sufficient contact information for the 

11 individuals required to be notified, a covered entity 

12 shall— 

13 (A) provide notice to the major media out14 lets serving the State or jurisdiction of the indi15 viduals believed to be affected; and 

16 (B) place notice in a clear and conspicuous 

17 place on the website of the covered entity if the 

18 covered entity operates a website. 

19 SEC. 214. CONTENT OF NOTIFICATION. 

20 (a) IN GENERAL.—Regardless of the method by 

21 which notice is provided to individuals under section 213, 

22 such notice shall include, to the extent possible— 

23 (1) a general description of the incident and the 

24 date or estimated date of the security breach and 


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1 the date range during which the sensitive personally 

2 identifiable information was compromised; 

3 (2) a description of the categories of sensitive 

4 personally identifiable information that was, or is 

5 reasonably believed to have been, accessed or ac6 quired by an unauthorized person; 

7 (3) the acts the covered entity, or the agent of 

8 the covered entity, has taken to protect sensitive 

9 personally identifiable information from further se10 curity breach; 

11 (4) a toll-free number— 

12 (A) that the individual may use to contact 

13 the covered entity, or the agent of the covered 

14 entity; and 

15 (B) from which the individual may learn 

16 what types of sensitive personally identifiable 

17 information the covered entity maintained about 

18 that individual; and 

19 (5) the toll-free contact telephone numbers and 

20 addresses for the major credit reporting agencies if 

21 the sensitive personally identifiable information that 

22 was breached could be used to commit financial 

23 fraud or identity theft. 

24 (b) DIRECT BUSINESS RELATIONSHIP.—Regardless 

25 of whether a covered entity or a designated third party 


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1 provides the notice required pursuant to section 211(b), 

2 such notice shall include the name of the covered entity 

3 that has the most direct relationship with the individual 

4 being notified. 

5 SEC. 215. COORDINATION OF NOTIFICATION WITH CREDIT 

6 REPORTING AGENCIES. 

7 If a covered entity is required to provide notification 

8 to more than 5,000 individuals under section 211(a) and 

9 the sensitive personally identifiable information that was 

10 breached could be used to commit financial fraud or iden11 tity theft, the covered entity shall also notify all consumer 

12 reporting agencies that compile and maintain files on con13 sumers on a nationwide basis (as defined in section 603(p) 

14 of the Fair Credit Reporting Act (15 U.S.C. 1681a(p)) 

15 of the timing and distribution of the notices. Such notice 

16 shall be given to the consumer credit reporting agencies 

17 without unreasonable delay and, if it will not delay notice 

18 to the affected individuals, prior to the distribution of no19 tices to the affected individuals. 

20 SEC. 216. NOTICE TO THE FEDERAL TRADE COMMISSION. 

21 A covered entity required to provide notification 

22 under section 211(a) shall provide a copy of the notifica23 tion to the Federal Trade Commission not later than the 

24 date on which notice is provided to individuals required 

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1 lish procedures to ensure the attorneys general of each 

2 State with affected residents receives a copy of the notice 

3 provided to it under this section. 

4 SEC. 217. NOTICE TO LAW ENFORCEMENT. 

5 (a) DESIGNATION OF GOVERNMENT ENTITY TO RE6 CEIVE NOTICE.— 

7 (1) IN GENERAL.—Not later than 60 days after 

8 the date of enactment of this Act, the Secretary of 

9 Homeland Security, in consultation with the Attor10 ney General, shall designate a Federal Government 

11 entity to receive the notices required under section 

12 211 and this section. 

13 (2) RESPONSIBILITIES OF THE DESIGNATED

14 ENTITY.—The designated entity shall— 

15 (A) promptly provide the information that 

16 it receives to the United States Secret Service 

17 or the Federal Bureau of Investigation for law 

18 enforcement purposes; and 

19 (B) provide the information described in 

20 subparagraph (A) as appropriate to other Fed21 eral agencies for law enforcement, national se22 curity, or data security purposes. 

23 (b) NOTICE.—A covered entity shall notify the des24 ignated entity of the fact that a security breach has oc25 curred if— 


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1 (1) the number of individuals whose sensitive 

2 personally identifying information was, or is reason3 ably believed to have been, accessed or acquired by 

4 an unauthorized person exceeds 5,000; 

5 (2) the security breach involves a database, 

6 networked or integrated databases, or other data 

7 system containing the sensitive personally identifi8 able information of more than 500,000 individuals 

9 nationwide; 

10 (3) the security breach involves databases 

11 owned by the Federal Government; or 

12 (4) the security breach involves primarily sen13 sitive personally identifiable information of individ14 uals known to the covered entity to be employees 

15 and contractors of the Federal Government involved 

16 in national security or law enforcement. 

17 (c) DEPARTMENT OF JUSTICE REVIEW OF THRESH18 OLDS FOR NOTICE.—The Attorney General, in consulta19 tion with the Secretary of Homeland Security, after notice 

20 and the opportunity for public comment, and in a manner 

21 consistent with this section, shall promulgate regulations, 

22 as necessary, under section 553 of title 5, United States 

23 Code, to adjust the thresholds for notice to law enforce24 ment and national security authorities under subsection 

25 (a) and to facilitate the purposes of this section. 


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1 (d) TIMING.—The notice required under subsection 

2 (b) shall be provided as promptly as possible, but such 

3 notice must be provided not less than 72 hours before no4 tice is provided to an individual pursuant to section 211, 

5 or not later than 10 days after the discovery of the events 

6 requiring notice, whichever occurs first. For each breach 

7 requiring notice under this subsection, a copy of the notice 

8 to individuals required under section 211 shall also be pro9 vided to the designated entity not later than the date on 

10 which the notice is provided to affected individuals. 

11 SEC. 218. FEDERAL ENFORCEMENT. 

12 (a) IN GENERAL.—The Attorney General and the 

13 Federal Trade Commission may enforce civil violations of 

14 this subtitle. 

15 (b) CIVIL ACTIONS BY THE ATTORNEY GENERAL OF

16 THE UNITED STATES.— 

17 (1) IN GENERAL.—The Attorney General may 

18 bring a civil action in the appropriate United States 

19 district court against any covered entity that en20 gages in conduct constituting a violation of this sub21 title and, upon proof of such conduct by a prepon22 derance of the evidence, the covered entity shall be 

23 subject to a civil penalty in an amount not greater 

24 than the product of the number of violations of this 

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1 cation to an individual as required under this sub2 title shall be treated as a separate violation. 

3 (2) PENALTY LIMITATION.—Notwithstanding 

4 any other provision of law, the total amount of the 

5 civil penalty assessed against a covered entity for 

6 conduct involving the same or related acts or omis7 sions that results in a violation of this subtitle may 

8 not exceed $5,000,000, unless such conduct is found 

9 to be willful or intentional. 

10 (3) DETERMINATIONS.—The determination of 

11 whether a violation of a provision of this subtitle has 

12 occurred, and if so, the amount of the penalty to be 

13 imposed, if any, shall be made by the court sitting 

14 as the finder of fact. The determination of whether 

15 a violation of a provision of this subtitle was willful 

16 or intentional, and if so, the amount of the addi17 tional penalty to be imposed, if any, shall be made 

18 by the court sitting as the finder of fact. 

19 (4) ADDITIONAL PENALTY LIMIT.—If a court 

20 determines under paragraph (3) that a violation of 

21 a provision of this subtitle was willful or intentional 

22 and imposes an additional penalty, the court may 

23 not impose an additional penalty in an amount that 

24 exceeds $5,000,000. 


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1 (c) INJUNCTIVE ACTIONS BY THE ATTORNEY GEN2 ERAL.— 

3 (1) IN GENERAL.—If it appears that a covered 

4 entity has engaged, or is engaged, in any act or 

5 practice constituting a violation of this subtitle, the 

6 Attorney General may petition an appropriate dis7 trict court of the United States for an order— 

8 (A) enjoining such act or practice; or 

9 (B) enforcing compliance with this subtitle. 

10 (2) ISSUANCE OF ORDER.—A court may issue 

11 an order under paragraph (1), if the court finds that 

12 the conduct in question constitutes a violation of this 

13 subtitle. 

14 (d) CIVIL ACTIONS BY THE FEDERAL TRADE COM15 MISSION.— 

16 (1) IN GENERAL.—Compliance with the require17 ments imposed under this subtitle may be enforced 

18 under the Federal Trade Commission Act (15 

19 U.S.C. 41 et seq.) by the Federal Trade Commission 

20 with respect to business entities subject to this Act. 

21 All of the functions and powers of the Federal Trade 

22 Commission under the Federal Trade Commission 

23 Act are available to the Commission to enforce com24 pliance by any person with the requirements imposed 

25 under this title. 


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1 (2) CIVIL PENALTIES.— 

2 (A) IN GENERAL.—Any covered entity that 

3 violates this subtitle shall be subject to a civil 

4 penalty in the amount that is not greater than 

5 the product of the number of violations of this 

6 subtitle and $16,500. Each failure to provide 

7 notification to an individual as required under 

8 this subtitle shall be treated as a separate viola9 tion. 

10 (B) PENALTY LIMITATION.—Notwith11 standing any other provision of law, the total 

12 sum of civil penalties assessed against a covered 

13 entity for all violations of the provisions of this 

14 subtitle resulting from the same or related acts 

15 or omissions may not exceed $5,000,000, unless 

16 such conduct is found to be willful or inten17 tional. 

18 (C) DETERMINATIONS.—The determina19 tion of whether a violation of a provision of this 

20 subtitle has occurred, and if so, the amount of 

21 the penalty to be imposed, if any, shall be made 

22 by the court sitting as the finder of fact. The 

23 determination of whether a violation of a provi24 sion of this subtitle was willful or intentional, 

25 and if so, the amount of the additional penalty 


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1 to be imposed, if any, shall be made by the 

2 court sitting as the finder of fact. 

3 (D) ADDITIONAL PENALTY LIMIT.—If a 

4 court determines under subparagraph (C) that 

5 a violation of a provision of this subtitle was 

6 willful or intentional and imposes an additional 

7 penalty, the court may not impose an additional 

8 penalty in an amount that exceeds $5,000,000. 

9 (3) UNFAIR OR DECEPTIVE ACTS OR PRAC10 TICES.—For the purpose of the exercise by the Fed11 eral Trade Commission of its functions and powers 

12 under the Federal Trade Commission Act, a viola13 tion of any requirement or prohibition imposed 

14 under this title shall constitute an unfair or decep15 tive act or practice in commerce in violation of a 

16 regulation under section 18(a)(1)(B) of the Federal 

17 Trade Commission Act (15 U.S.C. 57a(a)(I)(B)) re18 garding unfair or deceptive acts or practices and 

19 shall be subject to enforcement by the Federal Trade 

20 Commission under that Act with respect to any busi21 ness entity, irrespective of whether that business en22 tity is engaged in commerce or meets any other ju23 risdictional tests in the Federal Trade Commission 

24 Act. 

25 (e) COORDINATION OF ENFORCEMENT.— 


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1 (1) IN GENERAL.—When opening an investiga2 tion, the Federal Trade Commission shall consult 

3 with the Attorney General. 

4 (2) LIMITATION.—The Federal Trade Commis5 sion may initiate investigations under this subsection 

6 unless the Attorney General determines that such an 

7 investigation would impede an ongoing criminal in8 vestigation or national security activity. 

9 (3) COORDINATION AGREEMENT.— 

10 (A) IN GENERAL.—In order to avoid con11 flicts and promote consistency regarding the en12 forcement and litigation of matters under this 

13 Act, not later than 180 days after the enact14 ment of this Act, the Attorney General and the 

15 Federal Trade Commission shall enter into an 

16 agreement for coordination regarding the en17 forcement of this Act. 

18 (B) REQUIREMENT.—The coordination 

19 agreement entered into under subparagraph (A) 

20 shall include provisions to ensure that parallel 

21 investigations and proceedings under this sec22 tion are conducted in a manner that avoids con23 flicts and does not impede the ability of the At24 torney General to prosecute violations of Fed25 eral criminal laws. 


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1 (f) RULEMAKING.—The Federal Trade Commission 

2 may, in consultation with the Attorney General, issue such 

3 other regulations as it determines to be necessary to carry 

4 out this subtitle. All regulations promulgated under this 

5 Act shall be issued in accordance with section 553 of title 

6 5, United States Code. 

7 (g) OTHER RIGHTS AND REMEDIES.—The rights and 

8 remedies available under this subtitle are cumulative and 

9 shall not affect any other rights and remedies available 

10 under law. 

11 (h) FRAUD ALERT.—Section 605A(b)(1) of the Fair 

12 Credit Reporting Act (15 U.S.C. 1681c–1(b)(1)) is 

13 amended by inserting ‘‘, or evidence that the consumer 

14 has received notice that the consumer’s financial informa15 tion has or may have been compromised,’’ after ‘‘identity 

16 theft report’’. 

17 SEC. 219. ENFORCEMENT BY STATE ATTORNEYS GENERAL. 

18 (a) IN GENERAL.— 

19 (1) CIVIL ACTIONS.— 

20 (A) IN GENERAL.—In any case in which 

21 the attorney general of a State or any State or 

22 local law enforcement agency authorized by the 

23 State attorney general or by State statute to 

24 prosecute violations of consumer protection law, 

25 has reason to believe that a covered entity has 


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1 violated this subtitle, the State, as parens 

2 patriae, may bring a civil action on behalf of 

3 the residents of the State to— 

4 (i) enjoin that practice; 

5 (ii) enforce compliance with this sub6 title; or 

7 (iii) impose a civil penalty in an 

8 amount not greater than the product of 

9 the number of violations of this subtitle 

10 and $16,500. 

11 (B) FAILURE TO PROVIDE NOTIFICA12 TION.—For purposes of subparagraph (A)(iii), 

13 each failure to provide notification to an indi14 vidual as required under this subtitle shall be 

15 treated as a separate violation. 

16 (2) PENALTY LIMITATION.— 

17 (A) IN GENERAL.—Notwithstanding any 

18 other provision of law, the total sum of civil 

19 penalties assessed against a covered entity for 

20 all violations of the provisions of this subtitle 

21 resulting from the same or related acts or omis22 sions may not exceed $5,000,000, unless such 

23 conduct is found to be willful or intentional. 

24 (B) DETERMINATIONS.—The determina25 tion of whether a violation of a provision of this 


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1 subtitle has occurred, and if so, the amount of 

2 the penalty to be imposed, if any, shall be made 

3 by the court sitting as the finder of fact. The 

4 determination of whether a violation of a provi5 sion of this subtitle was willful or intentional, 

6 and if so, the amount of the additional penalty 

7 to be imposed, if any, shall be made by the 

8 court sitting as the finder of fact. 

9 (C) ADDITIONAL PENALTY LIMIT.—If a 

10 court determines under subparagraph (B) that 

11 a violation of a provision of this subtitle was 

12 willful or intentional and imposes an additional 

13 penalty, the court may not impose an additional 

14 penalty in an amount that exceeds $5,000,000. 

15 (3) NOTICE.— 

16 (A) IN GENERAL.—Before filing an action 

17 under paragraph (1), the attorney general of 

18 the State involved shall provide to the Attorney 

19 General of the United States and the Federal 

20 Trade Commission— 

21 (i) written notice of the action; and 

22 (ii) a copy of the complaint for the ac23 tion. 

24 (B) EXEMPTION.— 


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1 (i) IN GENERAL.—Subparagraph (A) 

2 shall not apply with respect to the filing of 

3 an action by an attorney general of a State 

4 under this subtitle, if the State attorney 

5 general determines that it is not feasible to 

6 provide the notice described in such sub7 paragraph before the filing of the action. 

8 (ii) NOTIFICATION.—In an action de9 scribed in clause (i), the attorney general 

10 of a State shall provide notice and a copy 

11 of the complaint to the Attorney General 

12 of the United States and the Federal 

13 Trade Commission at the time the State 

14 attorney general files the action. 

15 (b) FEDERAL PROCEEDINGS.—Upon receiving notice 

16 under subsection (a)(2), the Attorney General and the 

17 Federal Trade Commission shall have the right to— 

18 (1) move to stay the action, pending the final 

19 disposition of a pending Federal proceeding or ac20 tion; 

21 (2) initiate an action in the appropriate United 

22 States district court under section 218 and move to 

23 consolidate all pending actions, including State ac24 tions, in such court; 


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1 (3) intervene in an action brought under sub2 section (a)(2); and 

3 (4) file petitions for appeal. 

4 (c) PENDING PROCEEDINGS.—If the Attorney Gen5 eral or the Federal Trade Commission initiates a criminal 

6 proceeding or civil action for a violation of a provision of 

7 this subtitle, or any regulations thereunder, no attorney 

8 general of a State may bring an action for a violation of 

9 a provision of this subtitle against a defendant named in 

10 the Federal criminal proceeding or civil action. 

11 (d) CONSTRUCTION.—For purposes of bringing any 

12 civil action under subsection (a), nothing in this subtitle 

13 regarding notification shall be construed to prevent an at14 torney general of a State from exercising the powers con15 ferred on such attorney general by the laws of that State 

16 to— 

17 (1) conduct investigations; 

18 (2) administer oaths or affirmations; or 

19 (3) compel the attendance of witnesses or the 

20 production of documentary and other evidence. 

21 (e) VENUE; SERVICE OF PROCESS.— 

22 (1) VENUE.—Any action brought under sub23 section (a) may be brought in— 

24 (A) the district court of the United States 

25 that meets applicable requirements relating to 


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1 venue under section 1391 of title 28, United 

2 States Code; or 

3 (B) another court of competent jurisdic4 tion. 

5 (2) SERVICE OF PROCESS.—In an action 

6 brought under subsection (a), process may be served 

7 in any district in which the defendant— 

8 (A) is an inhabitant; or 

9 (B) may be found. 

10 (f) NO PRIVATE CAUSE OF ACTION.—Nothing in this 

11 subtitle establishes a private cause of action against a 

12 business entity for violation of any provision of this sub13 title. 

14 SEC. 220. EFFECT ON FEDERAL AND STATE LAW. 

15 (a) PREEMPTION.—For a covered entity that is sub16 ject to this subtitle, the provisions of this subtitle shall 

17 supersede any other provision of Federal law, or any provi18 sions of the law of any State or political subdivision of 

19 a State requiring notification of a security breach of sen20 sitive personally identifiable information that are less 

21 stringent than the requirements of this subtitle. 

22 (b) CONSUMER PROTECTION LAWS.—Except as pro23 vided in subsection (a), this section shall not be construed 

24 to limit the enforcement of any State consumer protection 

25 law by an attorney general of a State. 


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1 (c) PROTECTION OF CERTAIN STATE LAWS.—Noth2 ing in this Act shall be construed to preempt the applica3 bility of— 

4 (1) State trespass, contract, or tort law; or 

5 (2) any other State law to the extent that the 

6 law relates to acts of fraud. 

7 (d) PRESERVATION OF FTC AUTHORITY.—Nothing 

8 in this Act may be construed in any way to limit the au9 thority of the Federal Trade Commission under any other 

10 provision of law. 

11 (e) PRESERVATION OF FCC AUTHORITY.—Nothing 

12 in this Act may be construed in any way to limit the au13 thority of the Federal Communications Commission under 

14 any other provision of law. 

15 SEC. 221. REPORTING ON EXEMPTIONS. 

16 Not later than 18 months after the date of enactment 

17 of this Act, and upon the request by Congress thereafter, 

18 the Attorney General, in consultation with the Secretary 

19 of Homeland Security, shall submit a report to Congress 

20 on the number and nature of security breaches subject to 

21 the national security and law enforcement exemptions 

22 under section 212(a). 


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1 SEC. 222. EFFECTIVE DATE. 

2 This subtitle shall take effect on the expiration of the 

3 date that is 90 days after the date of enactment of this 

4 Act. 

5 TITLE III—COMPLIANCE WITH 

6 STATUTORY PAY-AS-YOU-GO ACT 

7 SEC. 301. BUDGET COMPLIANCE. 

8 The budgetary effects of this Act, for the purpose of 

9 complying with the Statutory Pay-As-You-Go Act of 2010, 

10 shall be determined by reference to the latest statement 

11 titled ‘‘Budgetary Effects of PAYGO Legislation’’ for this 

12 Act, submitted for printing in the Congressional Record 

13 by the Chairman of the Senate Budget Committee, pro14 vided that such statement has been submitted prior to the 

15 vote on passage. 

Æ 


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