Senate Bill No. 340
(By Senators Kessler, Chafin, Oliverio, Barnes, White,
Foster, Hunter, Green, Minard, Wells, Jenkins, Yoder,
Love, Guills, Unger and McKenzie)
[Originating in the Committee on Judiciary;
reported February 21, 2008.]
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §46A-2A-101,
§46A-2A-102, §46A-2A-103, §46A-2A-104 and §46A-2A-105, all
relating to providing definitions; providing that the
unauthorized access of certain computerized data which
compromises the security or confidentiality of personal
information is a breach of the security of a system; requiring
notification to an individual of any breach of the security of
a system of personal information; requiring certain actions by
an entity with respect to a breach of security; making failure
to comply with the provisions of this article an unfair or
deceptive act or practice; providing for enforcement of this
article by the Attorney General; providing civil penalties for
violations; providing for enforcement of violations by a
licensed financial institution by the primary functional regulator of the institution; and providing for the
applicabiity of the article.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §46A-2A-101,
§46A-2A-102, §46A-2A-103, §46A-2A-104 and §46A-2A-105, all to read
ARTICLE 2A. BREACH OF SECURITY OF CONSUMER INFORMATION.
As used in this article:
(1) "Breach of the security of a system" means 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. 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
(2)"Entity" 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.
(3)"Encrypted" means transformation of data through the use
of an algorithmic process to into a form in which there is a low
probability of assigning meaning without use of a confidential
process or key or securing the information by another method that
renders the data elements unreadable or unusable.
(4)"Financial institution" has the meaning given that term
in Section 6809(3), United States Code Title 15, as amended.
(5)"Individual" means a natural person.
(6)"Personal information" means 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:
(A)Social security number;
(B)Driver's license number or state identification card
number issued in lieu of a driver's license; or
(C)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
The term does not include information that is lawfully
obtained from publicly available information, or from federal,
state or local government records lawfully made available to the general public.
(A)Written notice to the postal address in the records of
the individual or entity;
(C)Electronic notice, if the notice provided 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 fifty thousand dollars 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 or to provide notice as described in
paragraph (A), (B) or (C). Substitute notice consists of any two of
(i)E-mail notice if the individual or the entity has e-mail
addresses for the members of the affected class of residents;
(ii)Conspicuous posting of the notice on the website of the
individual or the entity if the individual or the entity maintains
a website; or
(iii)Notice to major statewide media.
(8)"Redact" means alteration or truncation of data such that
no more than the last four digits of a social security number,
driver's license number, state identification card number or account number is accessible as part of the personal information.
§46A-2A-102. Notice of breach of security of computerized personal
(a)An individual or entity that owns or licenses
computerized data that includes personal information shall give
notice of any breach of the security of the system following
discovery or notification of the breach of the security of the
system 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.
(b)An individual or entity must give notice of the breach of
the security of the system if encrypted information is accessed and
acquired in an unencrypted form or if the security breach involves
a person with access to the encryption key and the individual or
entity reasonably believes that such breach has caused or will
cause identity theft or other fraud to any resident of this state.
(c)An individual or entity that maintains computerized data
that includes personal information that the individual or entity
does not own or license shall give notice to the owner or licensee
of the information of any breach of the security of the system as soon as practicable following discovery, if the personal
information was or the entity reasonably believes was accessed and
acquired by an unauthorized person.
(d)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
(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
(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.
(e)Notice required by this section may be delayed if a law-
enforcement agency determines and advises the individual or entity
that the notice will impede a criminal or civil investigation or
homeland or national security. Notice required by this section
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.
(f)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, as defined by 15 U. S. C. §1681a (p), 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, 15 U. S. C. 6801, et seq.
(g) The notice required by this section shall not be
considered a debt communication as defined by the Fair Debt
Collection Practice Act in 15 U. S. C. §1692a.
§46A-2A-103. Procedures deemed in compliance with security breach
(a)An entity that maintains its own notification procedures
as part of an information privacy or security policy for the
treatment of personal information and that are consistent with the
timing requirements of this article shall be deemed to be in
compliance with the notification requirements of this article if it
notifies residents of this state in accordance with its procedures
in the event of a breach of security of the system.
(b)A financial institution that responds in accordance with
the notification guidelines prescribed by the Federal Interagency
Guidance on Response Programs for Unauthorized Access to Customer Information and Customer Notice is deemed to be in compliance with
(c)An entity that complies with the notification
requirements or procedures pursuant to the rules, regulation,
procedures or guidelines established by the entity's primary or
functional regulator shall be in compliance with this article.
(a)Except as provided by subsection (c) of this section,
failure to comply with the notice provisions of this article
constitutes an unfair or deceptive act of practice in violation of
section one hundred four, article six, chapter forty-six-a of this
code, which may be enforced by the Attorney General pursuant to the
enforcement provisions of this chapter.
(b)Except as provided by subsection (c) of this section, 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
one hundred fifty thousand dollars per breach of security of the
system or series of breaches of a similar nature that are
discovered in a single investigation.
(c)A violation of this article by a licensed financial
institution shall be enforceable exclusively by the financial
institution's primary functional regulator.
This article shall apply to the discovery or notification of a breach of the security of the system that occurs on or after the
effective date of this article.
(NOTE: The purpose of this bill is to provide a procedure to
notify consumers when the unauthorized acquisition of computerized
data that compromises the security, confidentiality or integrity of
personal information has occurred. Civil penalties and other
remedies are provided for violations of the article.
This section is new; therefore, strike-throughs and
underscoring have been omitted.)