Data Breach Requirements: W. Va. Code § 46A-2A-101 et seq.
The numbering and internal citations herein are derived from the applicable state statute.
Personal Information
The term “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 accounts.
Security Breach Definition
The term “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 Exception
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 Analysis
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.
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.
Notification Timeline
Except as provided in subsection (e) (law enforcement exception) 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.
Security and Investigation Exceptions
A breach notice 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 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.
Notification Content Requirements
The breach 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.
Delivery Methods
A breach notice may be provided by one of the following methods:
(A) Written notice to the postal address in the records of the individual or entity;
(B) Telephonic notice;
(C) Electronic notice, if the notice provided is consistent with the provisions regarding electronic records and signatures, set forth in 15 U.S.C. § 7001 (The 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 100,000 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
Substitute notice consists of any two of the following:
(i) Email notice if the individual or the entity has email 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.
Notice to Government Agencies
N/A
Consumer Reporting Agencies
If an entity is required to notify more than 1,000 persons of a breach, 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.
Preemption and Compliance
See Consumer Reporting Agencies (GLBA exception).
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 this article.
An entity that complies with the notification requirements or procedures pursuant to the rules, regulations, procedures, or guidelines established by the entity’s primary or functional regulator shall be in compliance with this article.
Data Processor Obligations
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.