My Guest Blogger Eddie Block (CISSP, CIPM, CIPP/G, CISA, CEH) is a senior attorney in Gardere’s Litigation Group and member of the Cybersecurity and Privacy Legal Services Team who focuses on all aspects of information cyber security, including credentialing functions, firewall and IDS deployment and monitoring, and penetration testing, and related complex litigation. Eddie blogs at JurisHacker.

Breach notification laws: Better privacy or the 10th circle?

Now only Alabama and South Dakota do not have a notification law on the books since on April April 19, 2017 New Mexico became the 48th state to enact a data breach notification law. .

On the one hand this is good news for the privacy on New Mexicans. They are now ensured they will have notice of a breach of their personally identifying information. They will have the opportunity to mitigate the damage resulting from such a personal exposure.

For security and privacy folks, though, there is a different perspective. We now have 48 distinct regulations to track. If I have a client that does business across the country, I have to ensure I am able to help them comply with 48 different (and sometimes contradictory) regulations. As an example, assume I have a client doing business in Texas, Oklahoma, and Colorado:

In Texas and Oklahoma consider a drivers license an element of personally identifying information; Colorado does not.
Colorado requires notification to the credit reporting agencies (CRA) if more than 1000 records are breached. CRA reporting is required in Texas if more than 10,000 records are breached. Oklahoma does not require CRA reporting at all.
Oklahoma allows for electronic communications if the cost of written communication exceeds $50,000; in Texas and Colorado it is only allowable if the costs exceed $250,000.

Add the other 45 states to the mix and the mapping becomes complex. I won’t comment on whether there is a “better” rule, but the hodgepodge of requirements makes it more difficult for everyone. This is the type of conflict that is ripe for a federal rule to unify requirements. Unfortunately the attempts to do so over the past few years have failed to garner much attention.

BTW: For the curious, there are at least 89 different counties with breach or privacy laws. A breach at a multi-national corporation can be very complex.

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