So, you have a formal data breach response plan in place or an informal plan of action in mind….now what? With Alabama and South Dakota in a race to become the 49th state to enact data breach notification legislation (for sure, no one wants to be the “last man standing” in this scenario!), it may be a good time to review your plan.
If you collect or use or maintain personally identifying information (PII) of individuals from more than one state, does your plan take into account the notification requirements for each applicable state? And, do you regularly monitor the plan to ensure it is timely modified to address any recent legislative changes? In the absence of preemptive federal legislation simplifying the notification process, companies must ensure that they comply with each state’s notification requirements when a breach impacts individuals residing in those states.
Unfortunately, while state data breach notification laws have some similarities, they vary greatly in other aspects – including what constitutes a “data breach” triggering the notification requirement. Other differences include who to notify (e.g., just the impacted individuals or also state agencies), how to notify (mail or electronically; general or specific format and content), and when to notify (from a general “as expeditiously as possible” to a specific number of days within which to notify – 5, 15, 30, 45 days). Keep in mind that if the PII of citizens outside the U.S. is breached, notification deadlines may be even more restrictive (for example, 72 hours under Article 33 of the EU’s General Data Protection Regulation).
In addition, it is also a best practice for companies to annually test out their plan by conducting table top exercises or drills. Such a test should include all possible company players to ensure everyone knows not only what role they play in addressing a potential data breach, but also what obstacles may come into play when seeking to meet strict notification deadlines. As Alexander Graham Bell once said, “Before anything else, preparation is the key to success.” So, brush off that data breach response plan and make sure you are truly prepared.