2023 Utah Code › Title 78B - Judicial Code › Chapter 4 - Limitations on Liability › Part 7 - Cybersecurity Affirmative Defense Act › Section 702 - Affirmative defense for a breach of system security.

Effective 5/5/2021
78B-4-702.
Affirmative defense for a breach of system security.
(1) A person that creates, maintains, and reasonably complies with a written cybersecurity program that meets the requirements of Subsection (4), and is in place at the time of a breach of system security of the person, has an affirmative defense to a claim that:
(a) is brought under the laws of this state or in the courts of this state; and
(b) alleges that the person failed to implement reasonable information security controls that resulted in the breach of system security.
(2) A person has an affirmative defense to a claim that the person failed to appropriately respond to a breach of system security if:
(a) the person creates, maintains, and reasonably complies with a written cybersecurity program that meets the requirements of Subsection (4) and is in place at the time of the breach of system security; and
(b) the written cybersecurity program had protocols at the time of the breach of system security for responding to a breach of system security that reasonably complied with the written cybersecurity program under Subsection (2)(a) and the person followed the protocols.
(3) A person has an affirmative defense to a claim that the person failed to appropriately notify an individual whose personal information was compromised in a breach of system security if:
(a) the person creates, maintains, and reasonably complies with a written cybersecurity program that meets the requirements of Subsection (4) and is in place at the time of the breach of system security; and
(b) the written cybersecurity program had protocols at the time of the breach of system security for notifying an individual about a breach of system security that reasonably complied with the requirements for a written cybersecurity program under Subsection (3)(a) and the person followed the protocols.
(4) A written cybersecurity program described in Subsections (1), (2), and (3) shall provide administrative, technical, and physical safeguards to protect personal information, including:
(a) being designed to:
(i) protect the security, confidentiality, and integrity of personal information;
(ii) protect against any anticipated threat or hazard to the security, confidentiality, or integrity of personal information; and
(iii) protect against a breach of system security;
(b) reasonably conforming to a recognized cybersecurity framework as described in Subsection 78B-4-703(1); and
(c) being of an appropriate scale and scope in light of the following factors:
(i) the size and complexity of the person;
(ii) the nature and scope of the activities of the person;
(iii) the sensitivity of the information to be protected;
(iv) the cost and availability of tools to improve information security and reduce vulnerability; and
(v) the resources available to the person.
(5)
(a) Subject to Subsection (5)(b), a person may not claim an affirmative defense under Subsection (1), (2), or (3) if:
(i) the person had actual notice of a threat or hazard to the security, confidentiality, or integrity of personal information;
(ii) the person did not act in a reasonable amount of time to take known remedial efforts to protect the personal information against the threat or hazard; and
(iii) the threat or hazard resulted in the breach of system security.
(b) A risk assessment to improve the security, confidentiality, or integrity of personal information is not an actual notice of a threat or hazard to the security, confidentiality, or integrity of personal information.
Enacted by Chapter 40, 2021 General Session