Senate Bill 2099

AN ACT TO REQUIRE NOTICE OF A BREACH OF SECURITY; TO DEFINE CERTAIN TERMS; TO PROVIDE THAT NOTICE MAY BE DELAYED FOR A REASONABLE PERIOD OF TIME IF NOTICE WILL IMPEDE A CRIMINAL INVESTIGATION; TO PROVIDE METHODS OF NOTICE; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. (1) For purposes of this section, "breach of security" means unauthorized access to or acquisition of electronic files, media, databases or computerized data containing personal information when access to the personal information has not been secured by encryption or by any other method or technology that renders the personal information unreadable or unusable; "personal information" means an individual's first name or first initial and last name in combination with any one or more of the following data:

(a) Social security number;

(b) Driver's license number or state identification card number; or

(c) Account number, credit or debit card number, in combination with any required security code, access code or password that would permit access to an individual's financial account. "Personal information" does not include publicly available information that is lawfully made available to the general public from federal, state or local government records or widely distributed media.

(2) Any person who conducts business in this state, and who, in the ordinary course of the person's business, owns, licenses or maintains computerized data that includes personal information, shall disclose any breach of security following the discovery of the breach to any resident of this state whose personal information was, or is reasonably believed to have been, accessed by an unauthorized person through such breach of security. Disclosure shall be made without unreasonable delay, subject to the provisions of subsection (3) of this section and the completion of an investigation by the person to determine the nature and scope of the incident, to identify the individuals affected, or to restore the reasonable integrity of the data system. Notification shall not be required if, after an appropriate investigation and consultation with relevant federal, state and local agencies responsible for law enforcement, the person reasonably determines that the breach will not likely result in harm to the individuals whose personal information has been acquired and assessed.

(3) Any person who maintains computerized data that includes personal information that the person does not own shall notify the owner or licensee of the information of any breach of the security of the data immediately following its discovery, if the personal information was, or is reasonably believed to have been accessed by an unauthorized person.

(4) Any notification required by this section shall be delayed for a reasonable period of time if a law enforcement agency determines that the notification will impede a criminal investigation and the law enforcement agency has made a request that the notification be delayed. Any delayed notification shall be made after such law enforcement agency determines that notification will not compromise the criminal investigation and so notifies the person of such determination.

(5) Any notice required by the provisions of this section may be provided by one of the following methods: (a) written notice; (b) telephone notice; or (c) electronic notice, provided such notice is consistent with the provisions regarding electronic records and signatures set forth in 15 USC 7001; (d) substitute notice, provided such person demonstrates that the cost of providing notice in accordance with paragraph (a), (b) or (c) of this subsection would exceed Two Hundred Fifty Thousand Dollars ($250,000.00), that the affected class of subject persons to be notified exceeds five hundred thousand (500,000) persons or the person does not have sufficient contact information. Substitute notice shall consist of the following: electronic mail notice when the person, business or agency has an electronic mail address for the affected individuals; conspicuous posting of the notice on the Web site of the person, business or agency if the person maintains one; and notification to major statewide media, including newspapers, radio and television.

(6) Any person who maintains the person's own security breach procedures as part of an information security policy for the treatment of personal information and otherwise complies with the timing requirements of this section, shall be deemed to be in compliance with the security breach notification requirements of this section, provided the person notifies affected individuals in accordance with the person's policies in the event of a breach of security. Any person who maintains such a security breach procedure pursuant to the rules, regulations, procedures or guidelines established by the primary or functional regulator, as defined in 15 USC 6809(4), shall be deemed to be in compliance with the security breach notification requirements of this section, provided the person notifies subject persons in accordance with the policies or the rules, regulations, procedures or guidelines established by the primary or functional regulator in the event of a breach of security of the system.

(7) Failure to comply with the requirements of this section shall constitute an unfair trade practice and shall be enforced by the Attorney General.

SECTION 2. This act shall take effect and be in force from and after July 1, 2010.