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PRIOR PRINTER'S NOS. 2566, 2588
PRINTER'S NO. 3128
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1846
Session of
2017
INTRODUCED BY ELLIS, IRVIN, RABB, MILNE, PICKETT, BAKER, DAVIS,
QUIGLEY, BOBACK, CHARLTON, O'NEILL, GROVE, DRISCOLL, THOMAS,
MILLARD, JAMES, A. HARRIS, GODSHALL, KORTZ, C. QUINN,
D. COSTA, TOEPEL, TALLMAN, KAMPF, HEFFLEY, WATSON, SCHWEYER,
DeLUCA, BRADFORD, WARD, B. MILLER, M. QUINN, ROZZI, WHEELAND,
FRANKEL AND SOLOMON, OCTOBER 13, 2017
AS AMENDED ON SECOND CONSIDERATION, HOUSE OF REPRESENTATIVES,
MARCH 12, 2018
AN ACT
Amending the act of December 22, 2005 (P.L.474, No.94), entitled
"An act providing for the notification of residents whose
personal information data was or may have been disclosed due
to a security system breach; and imposing penalties," further
providing for definitions and, for notification of breach;
providing for notification; further providing AND for notice
exemption; and further providing for civil relief.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. The definitions of "breach of the security of the
system," "notice" and "personal information" in section 2 of the
act of December 22, 2005 (P.L.474, No.94), known as the Breach
of Personal Information Notification Act, are amended and the
section is amended by adding definitions to read:
Section 2. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
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"Breach of the security of the system." The [unauthorized
access and acquisition of computerized data that materially
compromises] loss, unauthorized access, acquisition or use of
unencrypted data, encrypted data, the confidential process or
key that is capable of compromising the security or
confidentiality of personal information maintained by the entity
as part of a database of personal information regarding multiple
individuals [and that causes or the entity reasonably believes
has caused or will cause loss or injury to any resident of this
Commonwealth]. Good faith acquisition of personal information by
an employee or agent of the entity for the purposes of the
entity is not a breach of the security of the system if the
personal information is not used for a purpose other than the
lawful purpose of the entity and is not subject to further
unauthorized disclosure.
"BREACH OF THE SECURITY OF THE SYSTEM." THE UNAUTHORIZED
[ACCESS AND ACQUISITION OF COMPUTERIZED DATA THAT MATERIALLY
COMPROMISES] ACCESS AND ACQUISITION OF UNENCRYPTED DATA, OR
ENCRYPTED DATA WITH THE CONFIDENTIAL PROCESS OR KEY REQUIRED TO
DECRYPT THE DATA, THAT IS LIKELY TO COMPROMISE THE SECURITY OR
CONFIDENTIALITY OF PERSONAL INFORMATION MAINTAINED BY THE ENTITY
AS PART OF A DATABASE OF PERSONAL INFORMATION REGARDING MULTIPLE
INDIVIDUALS AND THAT CAUSES OR THE ENTITY REASONABLY BELIEVES
HAS CAUSED OR WILL CAUSE LOSS OR INJURY TO ANY RESIDENT OF THIS
COMMONWEALTH. GOOD FAITH ACQUISITION OF PERSONAL INFORMATION BY
AN EMPLOYEE OR AGENT OF THE ENTITY FOR THE PURPOSES OF THE
ENTITY IS NOT A BREACH OF THE SECURITY OF THE SYSTEM IF THE
PERSONAL INFORMATION IS NOT USED FOR A PURPOSE OTHER THAN THE
LAWFUL PURPOSE OF THE ENTITY AND IS NOT SUBJECT TO FURTHER
UNAUTHORIZED DISCLOSURE.
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"Bureau." The Bureau of Consumer Protection in the Office of
Attorney General.
* * *
"DISCOVERY." THE FINAL DETERMINATION THAT A BREACH OF THE
SECURITY OF THE SYSTEM HAS OCCURRED, INCLUDING, BUT NOT LIMITED
TO, THE FINAL DETERMINATION REGARDING MATERIAL COMPROMISE OF
SECURITY AND REASONABLE CAUSATION OF LOSS OR INJURY.
* * *
"Health insurance information." An individual's health
insurance policy number or subscriber identification number , a
unique identifier used by a health insurer to identify the
individual or information in an individual's application and
claims history, including appeals records .
* * *
"Medical information." Information regarding an individual's
medical history, mental or physical MEDICAL condition or medical
treatment or diagnosis PROVIDED by a health care professional.
"Notice." The term shall include notice of residents and
notice of Commonwealth.
"Notice of Commonwealth." Written notice to the Director of
the Bureau of Consumer Protection of the Office of Attorney
General.
"Notice of residents." [May be provided by any] For
residents of this Commonwealth, any of the following methods of
notification:
(1) Written notice to the last known home address for
the individual.
(2) Telephonic notice, if the customer can be reasonably
expected to receive it and the notice is given in a clear and
conspicuous manner, describes the incident in general terms
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and verifies personal information but does not require the
customer to provide personal information and the customer is
provided with a telephone number to call or Internet website
to visit for further information or assistance.
(3) E-mail notice, if a prior business relationship
exists and the person or entity has a valid e-mail address
for the individual.
(4) (i) Substitute notice, if the entity demonstrates
one of the following:
(A) The cost of providing notice would exceed
$100,000.
(B) The affected class of subject persons to be
notified exceeds 175,000.
(C) The entity does not have sufficient contact
information.
(ii) Substitute notice shall consist of all of the
following:
(A) E-mail notice when the entity has an e-mail
address for the subject persons.
(B) Conspicuous posting of the notice on the
entity's Internet website if the entity maintains
one.
(C) Notification to major Statewide media.
"Personal information." Information that is under the
control of an individual, is not otherwise generally available
to the public through lawful means and is linked or linkable by
the person to a specific individual or linked to a device that
is associated with or routinely used by a specific individual,
including: AS FOLLOWS:
(1) AN INDIVIDUAL'S FIRST NAME OR FIRST INITIAL AND LAST
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NAME IN COMBINATION WITH AND LINKED TO ANY ONE OR MORE OF THE
FOLLOWING DATA ELEMENTS WHEN THE ELEMENTS ARE NOT ENCRYPTED
OR REDACTED:
[(1) An individual's first name or first initial and
last name in combination with and linked to any one or more
of the following data elements when either the name or the
data elements are not encrypted or redacted:]
(i) [Social Security number.] Identification
numbers, such as:
(A) Social Security number.
(B) Driver's license number.
(C) State identification card number issued in
lieu of a driver's license.
(D) Passport number.
(E) Taxpayer identification number.
(F) Patient identification number.
(G) Insurance member number.
(H) Employee identification number.
(ii) [Driver's license number or a State
identification card number issued in lieu of a driver's
license.] Other associated names, such as:
(A) Maiden name.
(B) Mother's maiden name.
(C) Alias.
(II) DRIVER'S LICENSE NUMBER OR A STATE
IDENTIFICATION CARD NUMBER ISSUED IN LIEU OF A DRIVER'S
LICENSE.] THE FOLLOWING IDENTIFICATION NUMBERS:
(A) SOCIAL SECURITY NUMBER.
(B) DRIVER'S LICENSE NUMBER.
(C) STATE IDENTIFICATION CARD NUMBER ISSUED IN
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LIEU OF A DRIVER'S LICENSE.
(D) PASSPORT NUMBER.
(E) TAXPAYER IDENTIFICATION NUMBER.
(F) MEDICAL INFORMATION.
(G) HEALTH INSURANCE INFORMATION.
(iii) Financial account number, credit or debit card
number, alone or in combination with any required
expiration date, security code, access code or password
that would permit access to an individual's financial
account.
(iv) Electronic identifier or routing code, in
combination with any required security code, access code
or password that would permit access to an individual's
financial account.
(v) Electronic account information, such as account
name or user name.
(vi) Internet Protocol (IP) or Media Access Control
(MAC) address or other host-specific persistent static
identifier that consistently links to a particular
individual or small, well-defined group of individuals.
(vii) Biometric data, such as genetic information, a
fingerprint, facial scan, retina or iris image, voice
signature, x-ray image or other unique physical
representation or digital representation of biometric
data.
(viii) Date of birth.
(ix) Place of birth.
(x) Insurance information.
(xi) Employment information.
(xii) Education information.
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(xiii) Vehicle information, such as:
(A) Registration number.
(B) Title number.
(xiv) Contact information, such as:
(A) Telephone number.
(B) Address.
(C) E-mail address.
(xv) Digitized or other electronic signature.
(IV) BIOMETRIC DATA, MEANING DATA GATHERED BY
MEASUREMENT OF THE HUMAN BODY, INCLUDING FINGERPRINTS,
VOICE PRINTS, EYES, RETINAS OR IRISES, THAT IS USED BY
THE OWNER OR LICENSEE TO UNIQUELY AUTHENTICATE THE
IDENTITY OF A PERSON WHEN THE INDIVIDUAL ACCESSES A
SYSTEM OR ACCOUNT.
(2) The term does not include publicly available
information that is lawfully made available to the general
public from Federal, State or local government records[.] OR
FROM ANOTHER PUBLICLY AVAILABLE SOURCE, INCLUDING NEWS
REPORTS, PERIODICALS, PUBLIC SOCIAL MEDIA POSTS OR OTHER
WIDELY DISTRIBUTED MEDIA.
* * *
Section 2. Section 3(a) 3 of the act is amended and the
section is amended by adding subsections to read:
Section 3. Notification of breach.
(a) General rule.--An entity that [maintains, stores or
manages] OWNS OR LICENSES computerized data that includes
personal information shall provide notice of any breach of the
security of the system following discovery of the breach of the
security of the system [to any resident of this Commonwealth
whose unencrypted and unredacted personal information was or is
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reasonably believed to have been accessed and acquired by an
unauthorized person]. Except as provided in section 4 or in
order to take any measures necessary to determine the scope of
the breach and to restore the reasonable integrity of the data
system, the notice shall be made [without unreasonable delay.]
WITHIN 45 DAYS OF DISCOVERY OF THE BREACH OF THE SECURITY OF THE
SYSTEM BY THE OWNER OR LICENSEE. For the purpose of this
section, a resident of this Commonwealth may be determined to be
an individual whose principal mailing address, as reflected in
the computerized data which is maintained, stored or managed by
the entity, is in this Commonwealth.
* * *
[(B) ENCRYPTED INFORMATION.--AN ENTITY MUST PROVIDE NOTICE
OF THE BREACH IF ENCRYPTED INFORMATION IS ACCESSED AND ACQUIRED
IN AN UNENCRYPTED FORM, IF THE SECURITY BREACH IS LINKED TO A
BREACH OF THE SECURITY OF THE ENCRYPTION OR IF THE SECURITY
BREACH INVOLVES A PERSON WITH ACCESS TO THE ENCRYPTION KEY.]
(C) VENDOR NOTIFICATION.--A VENDOR THAT MAINTAINS, STORES OR
MANAGES COMPUTERIZED DATA ON BEHALF OF [ANOTHER ENTITY] AN OWNER
OR LICENSEE OF PERSONAL INFORMATION SHALL PROVIDE NOTICE OF ANY
BREACH OF THE SECURITY SYSTEM FOLLOWING DISCOVERY BY THE VENDOR
TO THE [ENTITY] OWNER OR LICENSEE ON WHOSE BEHALF THE VENDOR
MAINTAINS, STORES OR MANAGES THE DATA. THE [ENTITY] OWNER OR
LICENSEE SHALL BE RESPONSIBLE FOR MAKING THE DETERMINATIONS AND
DISCHARGING ANY REMAINING DUTIES UNDER THIS ACT.
(d) Notice to residents of this Commonwealth.--
(1) Notification must be in plain language.
(2) Notice of the breach of the security of the system
under this section shall be made to the affected residents of
this Commonwealth and must include the following:
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(i) The date, estimated date or date range of the
breach of the security of the system.
(ii) Whether the notification was delayed as a
result of a law enforcement investigation.
(iii) A list of types of PERSONAL information that
were or are believed to have been subject to the breach
of the security of the system.
(iv) A general description of the breach of the
security of the system.
(v) Toll-free telephone numbers and addresses of
consumer reporting agencies if the breach of the security
of the system exposed a Social Security number or an A
GOVERNMENT-ISSUED identification card number.
(vi) The name and contact information of the
reporting agency that was notified under section 5.
(3) The entity providing notice under this subsection
may include information about what the entity has done to
protect affected individuals and offer advice on what steps
affected individuals may take to protect their information
and what steps the individual whose information has been
breached may take to protect himself or herself.
(4) Notice under this subsection shall be made within 45
days of learning of the breach of the security of the system.
DISCOVERY OF THE BREACH OF THE SECURITY OF THE SYSTEM BY THE
OWNER OR LICENSEE.
(e) Notice to Attorney General.--
(1) Notice WHEN NOTICE of the breach of the security of
the system under this section MUST BE GIVEN TO MORE THAN
1,000 AFFECTED INDIVIDUALS IN THIS COMMONWEALTH, THE NOTICE
shall be made to the bureau NOT LESS THAN FIVE DAYS PRIOR TO
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THE NOTICE TO AFFECTED INDIVIDUALS UNDER SUBSECTION (D) .
(2) Notice under this subsection must include the
following:
(i) The nature of the breach of the security of the
system.
(3) NOTICE UNDER THIS SUBSECTION MUST INCLUDE, NO LATER
THAN THE TIME NOTICE IS GIVEN TO THE RESIDENTS OF THIS
COMMONWEALTH, THE FOLLOWING:
(ii) (I) The number of residents of this
Commonwealth affected by the breach of the security of
the system.
(iii) (II) Steps taken by the entity relating to the
breach of the security of the system.
(3) Notice under this subsection shall be made within 30
days of the breach of the security of the system.
(f) State agencies.--If a State agency is the subject of a
breach of security of the system, the State agency must provide
notice of the breach of security of the system required under
subsection (a) without unreasonable delay following discovery of
the breach. A State agency under the Governor's jurisdiction
shall provide notice of a breach of the security of the system
to the Governor's Office of Administration without unreasonable
delay. Notification under this subsection shall occur
notwithstanding the procedures and policies under section 7.
(g) Counties, school districts and municipalities.--A
county, s chool district or municipality shall provide notice to
the district attorney in the county in which the breach occurred
of a breach of the security of the system required under
subsection (a) without unreasonable delay following discovery of
the breach. Notification under this subsection shall occur
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notwithstanding the procedures and policies under section 7.
Section 3. The act is amended by adding a section to read:
Section 5.1. Notification.
When an entity provides notification under this act, the
entity shall also notify, without unreasonable delay, the bureau
of the timing, distribution and number of notices and any other
information as required by the bureau.
Section 4 3. Section 7(b) of the act is amended by adding a
paragraph to read:
Section 7. Notice exemption.
* * *
(b) Compliance with Federal requirements.--
* * *
(3) If an entity does not have a Federal or state
notification rule, regulation, procedure or guideline in
effect, the entity must comply with this act.
Section 5. Section 8 of the act is amended to read:
Section 8. Civil relief.
A violation of this act shall be deemed to be an unfair
method of competition and an unfair or deceptive act or practice
in violation of the act of December 17, 1968 (P.L.1224, No.387),
known as the Unfair Trade Practices and Consumer Protection Law.
The Office of Attorney General shall have exclusive authority to
bring an action under the Unfair Trade Practices and Consumer
Protection Law for a violation of this act.
Section 6 4. This act shall take effect in 60 days.
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