The Constangy Cyber Team understands the paramount importance of staying informed about the intricacies of data breach notification regulations. With our Cybersecurity & Data Privacy Desktop Reference and these interactive maps, we provide guidance to navigate these complexities. Our interactive maps offer you online access to our succinct summaries of the essential aspects of various consumer and regulatory notification obligations. Please contact us should you have any questions. We look forward to working with you should you have to navigate the consumer notification and/or regulatory reporting process.
Data Breach Notification Statute
Includes corporations, business trusts, estates, partnerships, limited partnerships, limited liability partnerships, limited liability companies, associations, organizations, joint ventures, governments, governmental subdivisions, agencies or instrumentalities, or any other legal entity, whether for profit or not for profit.
An entity shall give notice of any breach following discovery or notification of the breach to any resident of this state whose unencrypted and unredacted personal information was or is reasonably believed to have been accessed and acquired by an unauthorized person and that causes, or the individual or entity reasonably believes has caused or will cause, identity theft or other fraud to any resident of this state. Except as provided in subsection (e) of this section or in order to take any measures necessary to determine the scope of the breach and to restore the reasonable integrity of the system, the notice shall be made without unreasonable delay.
An entity shall give notice of any breach following discovery or notification of the breach to any resident . . . without unreasonable delay. No regulatory timeline.
W. Va. Code § 46A-2A-101 to 105.
- Breach: The “unauthorized access and acquisition of unencrypted and unredacted computerized data that compromises the security or confidentiality of personal information maintained by an individual or entity as part of a database of personal information regarding multiple individuals and that causes the individual or entity to reasonably believe that the breach of security has caused or will cause identity theft or other fraud to any resident of this state
- Personal Information (PI): “The first name or first initial and last name linked to any one or more of the following data elements that relate to a resident of this state, when the data elements are neither encrypted nor redacted:
- Social security number;
- Driver's license number or state identification card number issued in lieu of a driver's license; or
- Financial account number, or credit card, or debit card number in combination with any required security code, access code or password that would permit access to a resident's financial accounts.”
- Medical Information: N/A
- Health Insurance Information: N/A
- Encryption: An entity not required to give notice of the breach if encrypted information is accessed and acquired unless the breach involves a person with access to the encryption key and the entity reasonably believes that such breach has caused or will cause identity theft or other fraud to any resident of this state.
- Good Faith: Good faith acquisition of personal information by an employee or agent of an individual or entity for the purposes of the individual or the entity is not a breach of the security of the system, provided that the personal information is not used for a purpose other than a lawful purpose of the individual or entity or subject to further unauthorized disclosure.
- Risk of Harm: Notification not required if the entity reasonably believes the breach has not caused or will cause identity theft or other fraud to any resident of this state.
- Law Enforcement Delay: Notice may be delayed if a law-enforcement agency determines and advises the entity that the notice will impede a criminal or civil investigation or homeland or national security. Notice must be made without unreasonable delay after the law-enforcement agency determines that notification will no longer impede the investigation or jeopardize national or homeland security.
- Timing: An entity shall give notice of any breach following discovery or notification of the breach to any resident . . . without unreasonable delay.
- Format: N/A
- Content: The notice shall include:
- (1) To the extent possible, a description of the categories of information that were reasonably believed to have been accessed or acquired by an unauthorized person, including social security numbers, driver's licenses or state identification numbers and financial data;
- (2) A telephone number or website address that the individual may use to contact the entity or the agent of the entity and from whom the individual may learn:
- (A) What types of information the entity maintained about that individual or about individuals in general; and
- (B) Whether or not the entity-maintained information about that individual.
- (3) The toll-free contact telephone numbers and addresses for the major credit reporting agencies and information on how to place a fraud alert or security freeze.
- Method: “Notice” means (A) written notice to the postal address in the records of the individual or entity; (B) telephone notice; (C) electronic notice, if the notice is consistent with the provisions regarding electronic records and signatures, set forth in Section 7001, United States Code Title 15, Electronic Signatures in Global and National Commerce Act; (D) Substitute notice.
“If the individual or the entity required to provide notice demonstrates that the cost of providing notice will exceed $50,000 or that the affected class of residents to be notified exceeds one hundred thousand persons or that the individual or the entity does not have sufficient contact information . . . Substitute notice consists of any two of the following:
- E-mail notice if the individual or the entity has e-mail addresses for the members of the affected class of residents;
- Conspicuous posting of the notice on the website of the individual or the entity if the individual or the entity maintains a website; or
- Notice to major statewide media.
Credit Reporting Agencies Notice:
If an entity is required to notify more than one thousand persons of a breach of security pursuant to this article, the entity shall also notify, without unreasonable delay, all consumer reporting agencies that compile and maintain files on a nationwide basis of the timing, distribution, and content of the notices. Nothing in this subsection shall be construed to require the entity to provide to the consumer reporting agency the names or other personal identifying information of breach notice recipients. This subsection shall not apply to an entity who is subject to Title V of the Gramm Leach Bliley Act.
An entity that maintains computerized data that includes personal information that the entity does not own or license shall give notice to the owner or licensee of the information of any breach as soon as practicable following discovery, if the personal information was or the entity reasonably believes was accessed and acquired by an unauthorized person.
The Attorney General shall have exclusive authority to bring action. No civil penalty may be assessed in an action unless the court finds that the defendant has engaged in a course of repeated and willful violations of this article. No civil penalty shall exceed $150,000 per breach of security of the system or series of breaches of a similar nature that are discovered in a single investigation.