2023 New York Laws › GBS - General Business › Article 39-F - Notification of Unauthorized Acquisition of Private Information; Data Security Protections › 899-AA - Notification; Person Without Valid Authorization Has Acquired Private Information.

§   899-aa.  Notification;  person  without  valid  authorization  has
acquired private information.  1. As used in this section, the following
terms shall have the following meanings:
(a) "Personal information" shall mean  any  information  concerning  a
natural  person  which, because of name, number, personal mark, or other
identifier, can be used to identify such natural person;
(b) "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 is
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
that would permit access to an individual's financial account;
(4)  account  number,  credit  or  debit card number, if circumstances
exist wherein such number  could  be  used  to  access  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
a  fingerprint,  voice  print,  retina  or  iris  image, or other unique
physical representation or  digital  representation  of  biometric  data
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
which  is  lawfully  made  available to the general public from federal,
state, or local government records.
(c) "Breach of the security of the  system"  shall  mean  unauthorized
access  to  or acquisition of, or access to or acquisition without valid
authorization, of  computerized  data  that  compromises  the  security,
confidentiality,  or  integrity  of  private information maintained by a
business. Good faith access to, or acquisition of,  private  information
by an employee or agent of the business for the purposes of the business
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 accessed, or is reasonably
believed  to  have  been accessed, by an unauthorized person or a person
without valid authorization, such business  may  consider,  among  other
factors, indications that the information was viewed, communicated with,
used,  or  altered  by  a  person  without  valid authorization or by an
unauthorized person.
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 business 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.
(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 any person or business required to make a notification
under subdivision two of this section.
2. Any person or business which owns  or  licenses  computerized  data
which  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 system.
(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  person  or
business  reasonably  determines such exposure will not likely result in
misuse of such information, or financial harm to the affected persons or
emotional harm in the case of unknown disclosure of  online  credentials
as  found  in  subparagraph  (ii) of paragraph (b) of subdivision one of
this section.  Such a determination must be documented  in  writing  and
maintained  for  at  least five years. If the incident affects over five
hundred residents of New York, the person or business 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
division  of state police pursuant to paragraph (a) of subdivision eight
of this section and to consumer reporting agencies pursuant to paragraph
(b) of subdivision eight 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  person  or  business  which maintains computerized data which
includes private information which such person or business 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 person or
business 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 person or  business  who  notifies  affected
persons; or
(d)  substitute  notice,  if  a  business  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  business
does  not  have  sufficient contact information. Substitute notice shall
consist of all of the following:
(1) e-mail notice when such business has an  e-mail  address  for  the
subject  persons,  except if the breached information includes an e-mail
address in combination with a password or security question  and  answer
that would permit access to the online account, in which case the person
or business shall instead provide clear and conspicuous notice delivered
to  the  consumer  online  when  the consumer is connected to the online
account from an internet protocol address or  from  an  online  location
which  the  person  or  business  knows the consumer customarily uses to
access the online account;
(2) conspicuous posting of the notice  on  such  business's  web  site
page, if such business maintains one; and
(3) notification to major statewide media.
6.  (a)  whenever  the  attorney  general  shall believe from evidence
satisfactory to him or her that there is a violation of this article  he
or  she  may  bring an action in the name and on behalf of the people of
the state of New York, in a court  of  justice  having  jurisdiction  to
issue  an  injunction,  to  enjoin and restrain the continuation of such
violation. In such action,  preliminary  relief  may  be  granted  under
article  sixty-three of the civil practice law and rules. In such action
the court may award damages for actual costs or  losses  incurred  by  a
person  entitled to notice pursuant to this article, if notification was
not  provided  to  such  person  pursuant  to  this  article,  including
consequential  financial  losses.  Whenever the court shall determine in
such action that a person or business violated this article knowingly or
recklessly, the court may impose a civil penalty of the greater of  five
thousand  dollars  or  up  to  twenty  dollars  per  instance  of failed
notification, provided that the  latter  amount  shall  not  exceed  two
hundred fifty thousand dollars.
(b)  the remedies provided by this section shall be in addition to any
other lawful remedy available.
(c) no action may be brought under  the  provisions  of  this  section
unless such action is commenced within three years after either the date
on which the attorney general became aware of the violation, or the date
of  notice  sent  pursuant to paragraph (a) of subdivision eight of this
section,  whichever occurs first. In no event shall an action be brought
after six years from the date of discovery  of  the  breach  of  private
information  by  the  company  unless the company took steps to hide the
breach.
7. Regardless of the method by which notice is provided,  such  notice
shall  include contact information for the person or business 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.
8. (a) In the event that any New York residents are  to  be  notified,
the  person  or  business  shall  notify the state attorney general, the
department of state and the division of state police as to  the  timing,
content  and  distribution  of  the  notices  and  approximate number of
affected persons and shall 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 person or business 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.
9. Any covered entity required to provide notification  of  a  breach,
including  breach  of  information  that is not "private information" as
defined in paragraph (b) 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. The provisions of  this  section  shall  be  exclusive  and  shall
preempt  any provisions of local law, ordinance or code, and no locality
shall impose requirements that are inconsistent with or more restrictive
than those set forth in this section.