As of October 1, 2021, Connecticut’s Data Privacy Breach Notification Act’s (“Act”) Amendments (“Amendments”) are in effect. P.A. No. 21-59. The Amendments:
Expand the definition of “personal information;”
Create extraterritorial jurisdiction;
Remove the safe harbor provision while conducting an investigation;
Lower the notification period from ninety to sixty days;
Further detail notification methods and procedures; and
Create safe harbors for those in compliance with the Health Insurance Portability and Accountability Act of 1996 (HIPPA) and the Health Information Technology for Economic and Clinical Health Act (HITECH).
The new definition of personal information will require businesses to examine the types of data it stores and how it is stored. The expanded definition of personal information now includes taxpayer identification numbers, IRS issued identity protection personal identification numbers, passport numbers, military identification numbers or any other commonly issued government identification numbers – in conjunction with the first name or initial and last name of the individual.
Businesses storing COVID-19 vaccination records will also need consider the new definition because it expands coverage to medical information. The expanded definition now includes medical information regarding an individual’s medical history, conditions (mental or physical), treatment, diagnosis; identifiers used by Health Insurance companies and biometric data – in conjunction with the first name or initial and last name of the individual.
The Amendments also define a breach of security as including the disclosure of a username and password combination including an e-mail address or security question and answer that would provide online access to an account. The Amendments require, in the event of a breach of login credentials, that (1) a notice informing the person whose information was breached to promptly change their credentials on other websites using the same credentials and (2) not to rely on an email account that was part of the breach to make such notice.
The Amendments remove the limitations that required that: (1) persons subject to the Act must conduct business in Connecticut and (2) that the information subject to the Act be maintained in the ordinary course of business. Theoretically, any business that stores personal information of a Connecticut resident is now subject to the Act.
The Amendments remove the safe harbor provision allowing for an investigation after discovery of the breach before notification. Companies now have only sixty-days from the discovery of the breach of security to notify Connecticut residents. The Act also now includes an ongoing notification duty to Connecticut residents as well.
The notification of affected persons may be avoided if after an “appropriate investigation” the person covered by the Act determines that no harm will befall the individual whose personal information was either acquired or accessed. However, the sixty-day notification period still applies and any “appropriate investigation” would need to be completed before the duty to notify is triggered. Furthermore, the Act no longer requires that the information be both acquired and accessed. Simple acquisition is enough as well as is a brief intrusion into unencrypted protected personal information stored on a secured network.
Finally, the Amendments create a safe harbor for persons in compliance with HITECH and HIPPA privacy and security standards so long as notice to the attorney general is provided. Materials and information provided to the attorney general are exempt from public disclosure except when provided by the attorney general to third parties for the purpose of furthering an investigation.
The Amended Data Privacy Breach Notification Act is much more onerous to comply with and best practices include having a breach notification plan that can be used at a moment’s notice, creating an inventory of personal information stored by the entity and, encrypting all personal data. Encrypting personal information remains the best way to comply with Act but the risk of non-compliance can be high since non-compliance is considered a Connecticut Unfair Trade Practices violation which can result in compensatory and punitive damages as well as attorney’s fees.
