§ 899-aa. Notification; person without valid authorization has
acquired private information. 1. As used in this section, the following
terms shall have the following meanings:

(a) "Personal information" shall mean any information concerning a
natural person which, because of name, number, personal mark, or other
identifier, can be used to identify such natural person;

(b) "Private information" shall mean either: (i) personal information
consisting of any information in combination with any one or more of the
following data elements, when either the data element or the combination
of personal information plus the data element is not encrypted, or is
encrypted with an encryption key that has also been accessed or
acquired:

(1) social security number;

(2) driver's license number or non-driver identification card number;

(3) account number, credit or debit card number, in combination with
any required security code, access code, password or other information
that would permit access to an individual's financial account;

(4) account number, credit or debit card number, if circumstances
exist wherein such number could be used to access an individual's
financial account without additional identifying information, security
code, access code, or password; or

(5) biometric information, meaning data generated by electronic
measurements of an individual's unique physical characteristics, such as
a fingerprint, voice print, retina or iris image, or other unique
physical representation or digital representation of biometric data
which are used to authenticate or ascertain the individual's identity;
or

(ii) a user name or e-mail address in combination with a password or
security question and answer that would permit access to an online
account.

"Private information" does not include publicly available information
which is lawfully made available to the general public from federal,
state, or local government records.

(c) "Breach of the security of the system" shall mean unauthorized
access to or acquisition of, or access to or acquisition without valid
authorization, of computerized data that compromises the security,
confidentiality, or integrity of private information maintained by a
business. Good faith access to, or acquisition of, private information
by an employee or agent of the business for the purposes of the business
is not a breach of the security of the system, provided that the private
information is not used or subject to unauthorized disclosure.

In determining whether information has been accessed, or is reasonably
believed to have been accessed, by an unauthorized person or a person
without valid authorization, such business may consider, among other
factors, indications that the information was viewed, communicated with,
used, or altered by a person without valid authorization or by an
unauthorized person.

In determining whether information has been acquired, or is reasonably
believed to have been acquired, by an unauthorized person or a person
without valid authorization, such business may consider the following
factors, among others:

(1) indications that the information is in the physical possession and
control of an unauthorized person, such as a lost or stolen computer or
other device containing information; or

(2) indications that the information has been downloaded or copied; or

(3) indications that the information was used by an unauthorized
person, such as fraudulent accounts opened or instances of identity
theft reported.

(d) "Consumer reporting agency" shall mean any person which, for
monetary fees, dues, or on a cooperative nonprofit basis, regularly
engages in whole or in part in the practice of assembling or evaluating
consumer credit information or other information on consumers for the
purpose of furnishing consumer reports to third parties, and which uses
any means or facility of interstate commerce for the purpose of
preparing or furnishing consumer reports. A list of consumer reporting
agencies shall be compiled by the state attorney general and furnished
upon request to any person or business required to make a notification
under subdivision two of this section.

2. Any person or business which owns or licenses computerized data
which includes private information shall disclose any breach of the
security of the system following discovery or notification of the breach
in the security of the system to any resident of New York state whose
private information was, or is reasonably believed to have been,
accessed or acquired by a person without valid authorization. The
disclosure shall be made in the most expedient time possible and without
unreasonable delay, consistent with the legitimate needs of law
enforcement, as provided in subdivision four of this section, or any
measures necessary to determine the scope of the breach and restore the
integrity of the system.

(a) Notice to affected persons under this section is not required if
the exposure of private information was an inadvertent disclosure by
persons authorized to access private information, and the person or
business reasonably determines such exposure will not likely result in
misuse of such information, or financial harm to the affected persons or
emotional harm in the case of unknown disclosure of online credentials
as found in subparagraph (ii) of paragraph (b) of subdivision one of
this section. Such a determination must be documented in writing and
maintained for at least five years. If the incident affects over five
hundred residents of New York, the person or business shall provide the
written determination to the state attorney general within ten days
after the determination.

(b) If notice of the breach of the security of the system is made to
affected persons pursuant to the breach notification requirements under
any of the following laws, nothing in this section shall require any
additional notice to those affected persons, but notice still shall be
provided to the state attorney general, the department of state and the
division of state police pursuant to paragraph (a) of subdivision eight
of this section and to consumer reporting agencies pursuant to paragraph
(b) of subdivision eight of this section:

(i) regulations promulgated pursuant to Title V of the federal
Gramm-Leach-Bliley Act (15 U.S.C. 6801 to 6809), as amended from time to
time;

(ii) regulations implementing the Health Insurance Portability and
Accountability Act of 1996 (45 C.F.R. parts 160 and 164), as amended
from time to time, and the Health Information Technology for Economic
and Clinical Health Act, as amended from time to time;

(iii) part five hundred of title twenty-three of the official
compilation of codes, rules and regulations of the state of New York, as
amended from time to time; or

(iv) any other data security rules and regulations of, and the
statutes administered by, any official department, division, commission
or agency of the federal or New York state government as such rules,
regulations or statutes are interpreted by such department, division,
commission or agency or by the federal or New York state courts.

3. Any person or business which maintains computerized data which
includes private information which such person or business does not own
shall notify the owner or licensee of the information of any breach of
the security of the system immediately following discovery, if the
private information was, or is reasonably believed to have been,
accessed or acquired by a person without valid authorization.

4. The notification required by this section may be delayed if a law
enforcement agency determines that such notification impedes a criminal
investigation. The notification required by this section shall be made
after such law enforcement agency determines that such notification does
not compromise such investigation.

5. The notice required by this section shall be directly provided to
the affected persons by one of the following methods:

(a) written notice;

(b) electronic notice, provided that the person to whom notice is
required has expressly consented to receiving said notice in electronic
form and a log of each such notification is kept by the person or
business who notifies affected persons in such form; provided further,
however, that in no case shall any person or business require a person
to consent to accepting said notice in said form as a condition of
establishing any business relationship or engaging in any transaction.

(c) telephone notification provided that a log of each such
notification is kept by the person or business who notifies affected
persons; or

(d) substitute notice, if a business demonstrates to the state
attorney general that the cost of providing notice would exceed two
hundred fifty thousand dollars, or that the affected class of subject
persons to be notified exceeds five hundred thousand, or such business
does not have sufficient contact information. Substitute notice shall
consist of all of the following:

(1) e-mail notice when such business has an e-mail address for the
subject persons, except if the breached information includes an e-mail
address in combination with a password or security question and answer
that would permit access to the online account, in which case the person
or business shall instead provide clear and conspicuous notice delivered
to the consumer online when the consumer is connected to the online
account from an internet protocol address or from an online location
which the person or business knows the consumer customarily uses to
access the online account;

(2) conspicuous posting of the notice on such business's web site
page, if such business maintains one; and

(3) notification to major statewide media.

6. (a) whenever the attorney general shall believe from evidence
satisfactory to him or her that there is a violation of this article he
or she may bring an action in the name and on behalf of the people of
the state of New York, in a court of justice having jurisdiction to
issue an injunction, to enjoin and restrain the continuation of such
violation. In such action, preliminary relief may be granted under
article sixty-three of the civil practice law and rules. In such action
the court may award damages for actual costs or losses incurred by a
person entitled to notice pursuant to this article, if notification was
not provided to such person pursuant to this article, including
consequential financial losses. Whenever the court shall determine in
such action that a person or business violated this article knowingly or
recklessly, the court may impose a civil penalty of the greater of five
thousand dollars or up to twenty dollars per instance of failed
notification, provided that the latter amount shall not exceed two
hundred fifty thousand dollars.

(b) the remedies provided by this section shall be in addition to any
other lawful remedy available.

(c) no action may be brought under the provisions of this section
unless such action is commenced within three years after either the date
on which the attorney general became aware of the violation, or the date
of notice sent pursuant to paragraph (a) of subdivision eight of this
section, whichever occurs first. In no event shall an action be brought
after six years from the date of discovery of the breach of private
information by the company unless the company took steps to hide the
breach.

7. Regardless of the method by which notice is provided, such notice
shall include contact information for the person or business making the
notification, the telephone numbers and websites of the relevant state
and federal agencies that provide information regarding security breach
response and identity theft prevention and protection information, and a
description of the categories of information that were, or are
reasonably believed to have been, accessed or acquired by a person
without valid authorization, including specification of which of the
elements of personal information and private information were, or are
reasonably believed to have been, so accessed or acquired.

8. (a) In the event that any New York residents are to be notified,
the person or business shall notify the state attorney general, the
department of state and the division of state police as to the timing,
content and distribution of the notices and approximate number of
affected persons and shall provide a copy of the template of the notice
sent to affected persons. Such notice shall be made without delaying
notice to affected New York residents.

(b) In the event that more than five thousand New York residents are
to be notified at one time, the person or business shall also notify
consumer reporting agencies as to the timing, content and distribution
of the notices and approximate number of affected persons. Such notice
shall be made without delaying notice to affected New York residents.

9. Any covered entity required to provide notification of a breach,
including breach of information that is not "private information" as
defined in paragraph (b) of subdivision one of this section, to the
secretary of health and human services pursuant to the Health Insurance
Portability and Accountability Act of 1996 or the Health Information
Technology for Economic and Clinical Health Act, as amended from time to
time, shall provide such notification to the state attorney general
within five business days of notifying the secretary.

10. The provisions of this section shall be exclusive and shall
preempt any provisions of local law, ordinance or code, and no locality
shall impose requirements that are inconsistent with or more restrictive
than those set forth in this section.