Privacy & Cybersecurity Law Blog

As reported in BNA Privacy Law Watch, on August 17, 2017, Delaware amended its data breach notification law, effective April 14, 2018. The Delaware law previously required companies to give notice of a breach to affected Delaware residents “as soon as possible” after determining that, as a result of the breach, “misuse of information about a Delaware resident has occurred or is reasonably likely to occur.” The prior version of the law did not require regulator notification.

The amendments include several key provisions:

• Definition of Personal Information. Under the revised law, the definition of “personal information” is expanded and now includes a Delaware resident’s first name or first initial and last name in combination with any one or more of the following data elements: (1) Social Security number; (2) driver’s license or state or federal identification card number; (3) account number, credit card number or debit card number in combination with any required security code, access code or password that would permit access to a financial account; (4) passport number; (5) a username or email address in combination with a password or security question and answer that would permit access to an online account; (6) medical history, treatment or diagnosis by a health care professional, or DNA profile; (7) health insurance identification number; (8) biometric data; and (9) an individual taxpayer identification number.
• Timing. Companies will be required to notify affected individuals of a data breach within 60 days.
• Notice to the Attorney General. Companies will be required to notify the Delaware Attorney General if a breach affects more than 500 Delaware residents.
• Harm Threshold. The amendments change the law’s harm threshold for notification. Under the revised law, notification to affected individuals (and the Attorney General, if applicable) is required unless, after an appropriate investigation, the company reasonably determines that the breach is unlikely to result in harm to affected individuals.
• Credit Monitoring. Companies will be required to offer credit monitoring services to affected individuals at no cost for one year if the breach includes a Delaware resident’s Social Security number. California’s breach notification law contains a similar requirement.