NY State Tech L § 208 (2021)
2021 New York Laws STT - State Technology Article 2 - Internet Security and Privacy Act 208 - Notification; Person Without Valid Authorization Has Acquired Private Information.

§  208.  Notification; person without valid authorization has acquired private information. 1. As used in this  section,  the  following  terms shall have the following meanings:  (a)  "Private information" shall mean either: (i) personal information consisting of any information in combination with any one or more of the following data elements, when either the data element or the combination of personal information plus  the  data  element  is  not  encrypted  or encrypted  with  an  encryption  key  that  has  also  been  accessed or acquired:  (1) social security number;  (2) driver's license number or non-driver identification card number;  (3) account number, credit or debit card number, in  combination  with any  required  security code, access code, password or other information which would permit access to an individual's financial account;  (4) account number, or credit or debit card number,  if  circumstances exist  wherein  such  number  could be used to access to an individual's financial account without additional identifying  information,  security code, access code, or password; or  (5)  biometric  information,  meaning  data  generated  by  electronic measurements of an individual's unique physical characteristics, such as fingerprint, voice print, or retina  or  iris  image,  or  other  unique physical  representation  or  digital  representation  which are used to authenticate or ascertain the individual's identity; or  (ii) a user name or e-mail address in combination with a  password  or security  question  and  answer  that  would  permit access to an online account.   "Private information" does not include publicly available  information that  is  lawfully  made  available  to the general public from federal, state, or local government records.  (b) "Breach of the security of the  system"  shall  mean  unauthorized acquisition  or  acquisition without valid authorization of computerized data which compromises the security, confidentiality,  or  integrity  of personal   information   maintained   by  a  state  entity.  Good  faith acquisition of personal information by an employee or agent of  a  state entity for the purposes of the agency is not a breach of the security of the system, provided that the private information is not used or subject to unauthorized disclosure.   In determining whether information has been acquired, or is reasonably believed  to  have  been acquired, by an unauthorized person or a person without  valid  authorization,  such  state  entity  may  consider   the following factors, among others:  (1) indications that the information is in the physical possession and control  of an unauthorized person, such as a lost or stolen computer or other device containing information; or  (2) indications that the information has been downloaded or copied; or  (3) indications that the  information  was  used  by  an  unauthorized person,  such  as  fraudulent  accounts  opened or instances of identity theft reported.  (c) "State entity" shall  mean  any  state  board,  bureau,  division, committee,  commission,  council,  department,  public authority, public benefit corporation, office or other governmental  entity  performing  a governmental or proprietary function for the state of New York, except:  (1) the judiciary; and  (2)  all  cities, counties, municipalities, villages, towns, and other local agencies.  (d) "Consumer reporting agency"  shall  mean  any  person  which,  for monetary  fees,  dues,  or  on  a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or  evaluating  consumer  credit  information  or other information on consumers for the purpose of furnishing consumer reports to third parties, and which  uses any  means  or  facility  of  interstate  commerce  for  the  purpose of preparing  or  furnishing consumer reports. A list of consumer reporting agencies shall be compiled by the state attorney general  and  furnished upon  request  to  state  entities required to make a notification under subdivision two of this section.   2. Any state entity that  owns  or  licenses  computerized  data  that includes  private  information shall disclose any breach of the security of the system following discovery or notification of the breach  in  the security  of  the system to any resident of New York state whose private information was, or is reasonably believed to  have  been,  accessed  or acquired  by  a person without valid authorization. The disclosure shall be made in the most expedient time  possible  and  without  unreasonable delay,  consistent  with  the  legitimate  needs  of law enforcement, as provided in subdivision four of this section, or any measures  necessary to  determine  the  scope of the breach and restore the integrity of the data system. The state entity shall consult with  the  state  office  of information technology services to determine the scope of the breach and restoration  measures.  Within  ninety days of the notice of the breach, the office of information technology services shall deliver a report  on the  scope  of the breach and recommendations to restore and improve the security of the system to the state entity.  (a) Notice to affected persons under this section is not  required  if the  exposure  of  private  information was an inadvertent disclosure by persons authorized to access private information, and the  state  entity reasonably  determines such exposure will not likely result in misuse of such information,  or  financial  or  emotional  harm  to  the  affected persons.  Such  a  determination  must  be  documented  in  writing  and maintained for at least five years. If the incident affected  over  five hundred  residents  of  New  York,  the  state  entity shall provide the written determination to the state  attorney  general  within  ten  days after the determination.  (b)  If  notice of the breach of the security of the system is made to affected persons pursuant to the breach notification requirements  under any  of  the  following  laws, nothing in this section shall require any additional notice to those affected persons, but notice still  shall  be provided  to the state attorney general, the department of state and the office of information technology services pursuant to paragraph  (a)  of subdivision  seven  of  this  section and to consumer reporting agencies pursuant to paragraph (b) of subdivision seven of this section:  (i) regulations  promulgated  pursuant  to  Title  V  of  the  federal Gramm-Leach-Bliley Act (15 U.S.C. 6801 to 6809), as amended from time to time;  (ii)  regulations  implementing  the  Health Insurance Portability and Accountability Act of 1996 (45 C.F.R. parts 160  and  164),  as  amended from  time  to  time, and the Health Information Technology for Economic and Clinical Health Act, as amended from time to time;  (iii)  part  five  hundred  of  title  twenty-three  of  the  official compilation of codes, rules and regulations of the state of New York, as amended from time to time; or  (iv)  any  other  data  security  rules  and  regulations  of, and the statutes administered by, any official department, division,  commission or  agency  of  the  federal or New York state government as such rules, regulations or statutes are interpreted by  such  department,  division, commission or agency or by the federal or New York state courts.   3.  Any  state  entity  that maintains computerized data that includes private information which such agency does  not  own  shall  notify  the  owner  or  licensee  of the information of any breach of the security of the system immediately following discovery, if the  private  information was,  or  is reasonably believed to have been, accessed or acquired by a person without valid authorization.   4.  The  notification required by this section may be delayed if a law enforcement agency determines that such notification impedes a  criminal investigation.  The  notification required by this section shall be made after such law enforcement agency determines that such notification does not compromise such investigation.   5. The notice required by this section shall be directly  provided  to the affected persons by one of the following methods:  (a) written notice;  (b)  electronic  notice,  provided  that  the person to whom notice is required has expressly consented to receiving said notice in  electronic form and a log of each such notification is kept by the state entity who notifies  affected persons in such form; provided further, however, that in no case shall any person or business require a person to  consent  to accepting  said  notice  in said form as a condition of establishing any business relationship or engaging in any transaction;  (c)  telephone  notification  provided  that  a  log  of   each   such notification  is kept by the state entity who notifies affected persons; or  (d) Substitute notice, if a state entity  demonstrates  to  the  state attorney  general  that  the  cost  of providing notice would exceed two hundred fifty thousand dollars, or that the affected  class  of  subject persons  to  be  notified  exceeds five hundred thousand, or such agency does not have sufficient contact information.  Substitute  notice  shall consist of all of the following:  (1) e-mail notice when such state entity has an e-mail address for the subject persons;  (2)  conspicuous posting of the notice on such state entity's web site page, if such agency maintains one; and  (3) notification to major statewide media.   6. Regardless of the method by which notice is provided,  such  notice shall  include  contact  information  for  the  state  entity making the notification, the telephone numbers and websites of the  relevant  state and  federal agencies that provide information regarding security breach response and identity theft prevention and protection information and  a description   of  the  categories  of  information  that  were,  or  are reasonably believed to have been,  accessed  or  acquired  by  a  person without  valid  authorization,  including  specification of which of the elements of personal information and private information  were,  or  are reasonably believed to have been, so accessed or acquired.   7.  (a)  In  the event that any New York residents are to be notified, the state entity shall notify the state attorney general, the department of state and the state office of information technology services  as  to the  timing,  content  and  distribution  of the notices and approximate number of affected persons and provide a copy of  the  template  of  the notice  sent  to  affected  persons.  Such  notice shall be made without delaying notice to affected New York residents.  (b) In the event that more than five thousand New York  residents  are to  be notified at one time, the state entity shall also notify consumer reporting agencies as to the timing, content  and  distribution  of  the notices and approximate number of affected persons. Such notice shall be made without delaying notice to affected New York residents.   8.  The state office of information technology services shall develop, update and provide regular training to all state  entities  relating  to  best  practices  for  the  prevention of a breach of the security of the system.   9.  Any  covered  entity required to provide notification of a breach, including breach of information that is  not  "private  information"  as defined  in  paragraph  (a)  of  subdivision one of this section, to the secretary of health and human services pursuant to the Health  Insurance Portability  and  Accountability  Act  of 1996 or the Health Information Technology for Economic and Clinical Health Act, as amended from time to time, shall provide such notification  to  the  state  attorney  general within five business days of notifying the secretary.   10.  Any  entity  listed  in  subparagraph  two  of  paragraph  (c) of subdivision one of this section shall adopt  a  notification  policy  no more  than  one  hundred  twenty  days  after the effective date of this section.  Such  entity  may  develop  a  notification  policy  which  is consistent  with  this  section or alternatively shall adopt a local law which is consistent with this section.