The U.S. House of Representatives, referred to the House Committee on Energy and Commerce on April 30, 2009, continues to debate, revise and take testimony on a major piece of proposed federal legislation regarding privacy, the Data Accountability and Trust Act (H.R. 2221) (“DATA”).
The proposed DATA legislation has three primary goals. First, DATA would put into place a first of its kind (other than the HITECH Act applicable to medical data, discussed here) federal law regarding the standards for notification of breaches or thefts involving personally identifiable information. DATA would also require that notification be provided to the FTC if there is a breach. Although there is no current requirement of notification to state agencies, DATA does allow state agencies and the FTC to enforce the provisions of DATA. Although almost all states and jurisdictions have data breach notification laws in place, and other states are on the verge of passing new data breach notification laws, a federal law would replace the jumble of standards and reporting requirements. Although privacy proponents summarily applaud the idea of data breach notification standards, fear of putting in place a lower standard than already in place in some jurisdictions continues to cast a shadow over this prospect. As with many state laws, a firm can avoid notifying customers and the FTC if it determines that there is no risk of harm from the breach or theft. This “no risk” standard, however, would be a lesser standard than those states that require reporting regardless of whether there is a risk. Therefore, while preemption is not being dismissed by those following the legislation, a demand for adequate notification standards continues.
Second, DATA would require that those firms that store personally identifiable information to have in place security policies and procedures to ensure that information is adequately protected. These proposed provisions largely track those already in place in the Gramm-Leach-Bliley Act. The definition of “personal information” in DATA is fairly limited in scope, namely because having too broad of a definition (think of the very broad definition used by the European Union) would lead to over-notification if there is a breach, a possibility many fear would lead to complacency if breach notification becomes an everyday occurrence. The current definition under DATA is: an individual’s first name or initial and last name, or address, or phone number, in combination with any 1 or more of the following data elements for that individual: (i) Social Security number; (ii) driver’s license number or other State identification number; and (iii) financial account number, or credit or debit card number, and any required security code, access code, or password that is necessary to permit access to an individual’s financial account.
However, the definition of “personal information” in DATA is no broader with respect to security policies and procedures, meaning that those firms required to have in place security policies and procedures is likewise limited. While there may be a particular concern about imposing (potentially) costly requirements on firms that hold information less sensitive than that in the definition of “personal information,” there will be a push to expand the definition of “personal information” for purposes of security policies and procedures requirements.
Third, DATA has added provisions related to consumers’ ability to review and correct misinformation held by a firm. Similar to the right to review and protest information contained in credit reports under the Fair Credit Reporting Act (PDF link), consumers are allowed to point out incorrect “personal information” a firm maintains. That statement alone raises two major flaws in the current legislation. First, the definition of “personal information” is limited and would only allow a review and correction of highly sensitive information. Under FCRA, any reported information is subject to review and correction. Second, there is no clear direction on what is meant by “maintain.” Does information obtained from clearinghouses constitute “maintaining” that information? Most state statutes are interested in possession and/or use of the data, which is a much clearer standard.
DATA will continue to evolve and be adjusted as interested parties provide feedback and suggestion. Whether DATA is the national privacy law that we are all anticipating and, in many ways, hoping for remains to be seen.
Mark McCreary is a partner in Fox Rothschild’s Corporate Department, specializing in privacy and Internet law. If you have questions regarding this post, or any other privacy matter, you may contact Mark at (215) 299-2010 or firstname.lastname@example.org.