[Senate Report 111-290]
[From the U.S. Government Publishing Office]
Calendar No. 563
111th Congress Report
2d Session SENATE 111-290
=======================================================================
DATA BREACH NOTIFICATION ACT
_______
September 15, 2010.--Ordered to be printed
_______
Mr. Leahy, from the Committee on the Judiciary, submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. 139]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to which was referred the
bill (S. 139) to require Federal agencies, and persons engaged
in interstate commerce, in possession of data containing
sensitive personally identifiable information, to disclose any
breach of such information, having considered the same, reports
favorably thereon, without amendment, and recommends that the
bill do pass.
CONTENTS
Page
I. Background and Purpose of the Data Breach Notification Act.......2
II. History of the Bill and Committee Consideration..................7
III. Section-by-Section Summary of the Bill...........................9
IV. Congressional Budget Office Cost Estimate.......................11
V. Regulatory Impact Evaluation....................................15
VI. Conclusion......................................................15
VII. Additional Views................................................16
VIII.Changes to Existing Law Made by the Bill, as Reported...........20
I. Background and Purpose of the Data Breach Notification Act
A. SUMMARY
In the first decade of the 21st century, American consumers
have borne witness to an explosion in the commerce of digital
information. From Government agencies to financial
institutions, from doctors' offices to retail stores, entities
are collecting and storing sensitive personal information by
the gigabyte. Such widespread use of electronic data to
identify individuals expedites everyday transactions, with
great benefit to consumers: Systems access information faster;
businesses conduct individually-tailored transactions more
effectively; and Government agencies can now transfer data at
lightning speed. Convenience, however, comes hand-in-hand with
risks. Cyberspace has become a primary platform for domestic
and international crime; data privacy, in turn, is now
essential to our individual and collective security.
In February of 2009, Director of National Intelligence,
Dennis C. Blair provided the following details on the threats,
``spam--unsolicited email that can contain malicious software--
now accounts for 81 percent of all email according to Message
Labs (Symantec); the Georgia Tech Information Security Center
projects a ten-fold increase in malicious software targeting
data in the coming year; and botnets--networks of hijacked
computers used to deliver spam or launch distributed denial of
service attacks--are expected to compose 15 percent of all
online computers in 2009.''\1\ The technology necessary to
employ cyber attacks, in other words, is increasingly
accessible. It can also be devastatingly dangerous.
---------------------------------------------------------------------------
\1\Director of National Intelligence Dennis C. Blair, Annual Threat
Assessment of the Intelligence Community for the Senate Select
Committee on Intelligence (Unclassified Version), at 39 (February 12,
2009), available at http://intelligence.senate.gov/090212/blair.pdf.
---------------------------------------------------------------------------
Despite the acknowledged threats, however, United States
privacy law has failed to keep pace with technological
developments. The Data Breach Notification Act aims to enhance
data security by ensuring that individuals and law enforcement
are notified when sensitive personal information is put at risk
and by creating incentives for entities to take steps to secure
their data systems. Multiple Federal entities, including the
Secret Service, the Federal Trade Commission,\2\ and President
George W. Bush's Identity Theft Task Force,\3\ have urged
Congress to pass such legislation. It is long past time for
Congress to enact a single, national standard for notification
in the event of a data breach.
---------------------------------------------------------------------------
\2\See Protecting the Privacy of the Social Security Number from
Identity Theft: Hearing Before the Subcomm. on Social Security of the
H. Comm. on Ways & Means, 110th Cong. 14 (2007) (statement of the
Federal Trade Commission), available at http://www.ftc.gov/os/
testimony/P065409socsectest.pdf; Data Breaches and Identity Theft:
Hearing Before the S. Comm. on Commerce, Science, and Transportation,
109th Cong. 7 (2005) (statement of the Federal Trade Commission),
available at http://www.ftc.gov/os/2005/06/050616databreaches.pdf.
\3\President's Identity Theft Task Force, Combating Identity Theft:
A Strategic Plan, 34-37 (2007), available at http://www.idtheft.gov/
reports/StrategicPlan.pdf.
---------------------------------------------------------------------------
B. INCREASING RISKS FROM DATA BREACHES
1. Identity theft
When asked about their daily concerns, consumers in the
United States place identity theft at the top of the list. At
the Federal Trade Commission, where consumer concerns flood in
every day, complaints about identity theft rank above concerns
about deceptive advertisements, harassing telemarketing, or
unfair credit practices.\4\ In April of 2007, Zogby Interactive
Survey found that 91 percent of adult users of the Internet
were concerned that their identities might be stolen;\5\ and a
September 2009 Unisys Security Index survey found that 65
percent of American respondents were ``seriously concerned''
about misuse of their personal information--more respondents
than expressed worry over the H1N1 virus in the headlines at
the time.\6\
---------------------------------------------------------------------------
\4\Director of National Intelligence Dennis C. Blair, Annual Threat
Assessment of the Intelligence Community for the Senate Select
Committee on Intelligence (Unclassified Version), at 39 (February 12,
2009), available at http://intelligence.senate.gov/090212/blair.pdf.
\5\Zogby International, Zogby Poll: Most Americans Worried About
Identity Theft, Apr. 3, 2007, www.zogby.com/search/ReadNews.dbm?ID=1275
(last visited Jan. 11, 2010).
\6\Unisys Corporation, Unisys Security Index: United States (2009),
available at http://www.unisyssecurityindex.com/resources/reports/
US%20Security%20Index%20Oct%2009.pdf.
---------------------------------------------------------------------------
Such widespread concerns are not surprising. Security
breaches are rampant, and identity theft places a heavy toll on
its victims. The Privacy Rights Clearinghouse reports that
between 2005 and 2009 security breaches allowed unauthorized
access to more than 340 million records containing individuals'
sensitive personal information.\7\
---------------------------------------------------------------------------
\7\Privacy Rights Clearinghouse, Chronology of Data Breaches,
http://www.privacyrights.org/ar/ChronDataBreaches.htm#CP (last visited
Jan. 11, 2010).
---------------------------------------------------------------------------
These breaches make clear that vulnerabilities exist across
industries, and in entities both public and private. For
example, in February 2009, the Federal Aviation Administration
announced a breach pursuant to which 45,000 records containing
current and former employees' personal information were
exposed;\8\ in January 2009, Heartland Payment Systems provided
public notice that hackers had installed malicious software on
the company's payment processing network and accessed more than
130 million credit card accounts;\9\ in December 2008, Royal
Bank of Scotland Group PLC's processing unit, RBS Worldpay,
disclosed that a breach of its payment systems had put more
than 1.5 million consumers' financial records and more than 1.1
million social security numbers at risk;\10\ earlier that year,
State Department officials informed three leading Presidential
candidates that contractors had accessed their passport files
without authorization;\11\ and in January 2007, TJX Companies,
the parent company of retailers Marshalls and TJ Maxx,
announced that hackers had accessed information from more than
45 million credit and debit cards.\12\ These breaches present a
grave and real threat for consumers, Government, and business
entities.
---------------------------------------------------------------------------
\8\Joe Davidson, FAA's Latest Security Challenge Is in Cyberspace,
Not the Skies, Washington Post, D3 (February 11, 2009).
\9\Brian Krebs, Payment Processor Breach May Be Largest Ever,
Washington Post Security Fix (January 20, 2009), http://
voices.washingtonpost.com/securityfix/2009/01/
payment_processor_breach_may_b.html.
\10\Press Release, RBS WorldPay, RBS WorldPay Announces Compromise
of Data Security and Outlines Steps to Mitigate Risks (Dec. 23, 2008),
available at http://www.rbsworldpay.us/
RBS_WorldPay_Press_Release_Dec_23.pdf.
\11\Amy Schatz, Congress Raises Call for Data Safeguards, Wall
Street Journal, A4 (March 30, 2008).
\12\TJX Says Theft of Credit Data Involved 45.7 Million Cards, New
York Times, C2 (March 30, 2007).
---------------------------------------------------------------------------
Once information is obtained, the potential for harm is
great. Financial account numbers are sold cheaply on the
Internet black market, with a Russian website advertising
stolen credit card numbers with limits above $10,000 at the
price of $50 for a batch of ten as early as 2004.\13\ Debit
card numbers may be used to siphon money globally from
automatic teller machines. And sensitive personally
identifiable information may be used for acts as various as
opening fraudulent credit accounts, leasing property under
false names, evading sanctions by providing false identities to
law enforcement, and stalking.
---------------------------------------------------------------------------
\13\Brian Krebs, Phishing Feeds Internet Black Markets,
WashingtonPost.com (November 10, 2004), http://www.washingtonpost.com/
wp-dyn/articles/A59347-2004Nov18.html.
---------------------------------------------------------------------------
These immediate harms are not the only concerns. Victims of
identity theft who suffer no direct financial loss may find
their credit ruined and their lives disrupted as they spend
upwards of 80 hours to restore their records.\14\
---------------------------------------------------------------------------
\14\Jon Swartz, Survey: ID Theft Takes Time to Wipe Clean, USA
Today, B1 (July 28, 2005).
---------------------------------------------------------------------------
Data breaches cost U.S. businesses as well. In 2008, the
average cost to private companies was $6.65 million per data
breach.\15\ Adding to such direct costs is the revenue lost
when consumers decrease purchases based on fear of identity
theft. In 2006, 30 percent of consumers polled by the Wall
Street Journal said that they limited their online purchases
because of such fears, and 24 percent said they had cut back on
online banking.\16\
---------------------------------------------------------------------------
\15\Ponemon Institute, Fourth Annual U.S. Cost of Data Breach
Survey (2009), available at http://www.ponemon.org/local/upload/
fckjail/generalcontent/18/file/2008-
2009%20US%20Cost%20of%20Data%20Breach%20Report%20Final.pdf.
\16\Jennifer Cummings, Substantial Numbers of U.S. Adults Taking
Steps to Prevent Identity Theft, Harris Interactive & Wall Street
Journal Online, May 18, 2006, http://www.harrisinteractive.com/news/
allnewsbydate.asp?NewsID=1058.
---------------------------------------------------------------------------
2. Organized crime and cybersecurity
Today's larger, more carefully targeted, and more
sophisticated data breaches are increasingly perpetrated by
organized crime rings working across national boundaries. In
the past year alone, Federal prosecutors indicted an American
and two Russian co-conspirators for installing malicious
software in grocers' payment systems to fraudulently obtain
more than 4.2 million credit and debit card accounts,\17\ and
individuals from Russia, Estonia, and Moldova for using
sophisticated hacking techniques to compromise RBS Worldpay's
data encryption protection and gain access to over 1.5 million
financial accounts and 1.1 million social security numbers.\18\
---------------------------------------------------------------------------
\17\Jerry Harkavy, Illicit Software Placed on Hannaford Servers
Blamed for Breach of 4.2 Million Cards, Brattleboro Reformer (March 28,
2008).
\18\Press Release, Federal Bureau of Investigation, International
Effort Defeats Major Hacking Ring (November 10, 2009), available at
http://atlanta.fbi.gov/dojpressrel/pressrel09/atl111009.htm.
---------------------------------------------------------------------------
Intrusions by cybercriminals and foreign states have also
placed sensitive military information, valuable intellectual
property, and essential infrastructure at risk. As documented
by the Office of the Director of National Intelligence,
nations, including Russia and China, have the technological
capability to collect intelligence information from U.S.-based
networks and to use such networks to interfere with our
national infrastructure, and ``terrorist groups, including al-
Qa'ida, HAMAS, and Hizballah, have expressed the desire to use
cyber means to target the United States.''\19\ In 2009 alone,
we have seen computer technology utilized to penetrate civilian
air traffic control networks,\20\ the U.S. electrical grid,\21\
defense projects such as the Pentagon's Joint Strike Fighter
project,\22\ and live video feeds from operational U.S.
Predator drones.\23\ The United States as a Nation, like each
individual American consumer, can no longer afford to take data
security for granted.
---------------------------------------------------------------------------
\19\Director of National Intelligence Dennis C. Blair, Annual
Threat Assessment of the Intelligence Community for the Senate Select
Committee on Intelligence (Unclassified Version), at 39 (Feb. 12,
2009), available at http://intelligence.senate.gov/090212/blair.pdf.
\20\Siobhan Gorman, FAA's Air-Traffic Networks Breached by Hackers,
Wall Street Journal, A4 (May 7, 2009).
\21\Siobhan Gorman, Electricity Grid in U.S. Penetrated by Spies,
Wall Street Journal, A1 (April 8, 2009).
\22\Siobhan Gorman, August Cole, & Yochi Dreazen, Computer Spies
Breach Fighter-Jet Project, Wall Street Journal, A1 (April 11, 2009).
\23\Siobhan Gorman, August Cole, & Yochi Dreazen, Insurgents Hack
U.S. Drones, Wall Street Journal, A4 (December 17, 2009).
---------------------------------------------------------------------------
To track the use of new technologies for disrupting
computer networks, to trace profits obtained via technological
theft, and to apprehend those responsible for breaches, Federal
law enforcement needs information about cyber crimes to
effectively safeguard individuals and the national security.
C. THE DATA BREACH NOTIFICATION ACT
Federal data breach notification legislation is an
essential step toward protecting data security in the United
States. The Data Breach Notification Act would serve the dual
purpose of informing consumers when their personal information
is at risk and informing Federal law enforcement when a breach
has occurred.
The bill provides a single Federal standard--ensuring that
U.S. consumers receive notice of a breach wherever they live,
that businesses have clear notification standards to follow
across State lines, and that Federal law enforcement receives
the information it needs to protect public safety and national
security. Supporters of the legislation include Consumers Union
and the Business Software Alliance.
1. Providing notice to consumers
First, S. 139 requires that a business or Government entity
that experiences a data breach promptly notify any consumer
whose sensitive personally identifiable information has been
exposed. In 2002, California led the nation by enacting S.B.
1386, the first State law to require that businesses notify
consumers in the event of a breach.\24\ Today, there is
national consensus that such notice is necessary to allow
consumers to take steps to prevent identity theft. Forty-five
States, the District of Columbia, Puerto Rico, and the Virgin
Islands currently have laws requiring that consumers receive
notice of data breaches.
---------------------------------------------------------------------------
\24\Cal. Civ. Code Sec. Sec. 1798.29, .82, .84.
---------------------------------------------------------------------------
The bill strikes a careful balance between over-
notification and underreporting of data breaches. Section 3(b)
provides a safe harbor releasing an entity from the obligation
to notify consumers if there is ``no significant risk that a
security breach has resulted in, or will result in, harm to the
individual.'' This notification trigger recognizes that there
are harms other than identity theft that can result from a data
breach--harms such as financial crimes and stalking--while
simultaneously acknowledging that consumers may not respond to
notices if they arrive frequently when there is no risk of
harm.
The bill provides additional exemptions to the notice
requirement when a law enforcement or national security reason
counsels against immediate notice and allows reasonable delay
for an entity to conduct a risk assessment to determine the
threat posed by a breach.
The requirements for notice are specific. Individuals must
be notified in writing, by telephone, or by email if they have
consented to such notice. When a breach places the sensitive
personally identifiable information of more than 5,000
residents of a State at risk, notice must also be provided
according to Section 4(2) through major media outlets in the
State.
2. Increasing law enforcement capabilities to protect and enhance
cybersecurity
Second, to enhance Federal law enforcement's capabilities
in fighting cybercrime, S. 139 mandates that notice immediately
be provided to the Secret Service in the event that a breach
involves unauthorized access to more than 10,000 individuals'
sensitive personally identifiable information or to a database
containing the sensitive personally identifiable information of
more than 1,000,000 individuals nationwide. The bill also
empowers the Secret Service to obtain additional information
about the data breach from business entities and requires that
it provide further notice to Federal agencies such as the
Federal Bureau of Investigation, the U.S. Postal Inspection
Service, and State Attorneys General, who may be involved in
preventing further harm from the breach or the perpetration of
additional breaches.
In Congressional testimony, the Department of Justice has
specifically urged Congress to require security breach
reporting to Federal law enforcement, including both the U.S.
Secret Service and the Federal Bureau of Investigation. This
law is intended to ensure that law enforcement receives such
notice of data breaches.\25\ Additionally, as highlighted in
the President's 2009 Cyberspace Policy Review, partnerships
among Government agencies, law enforcement, and private
industry are essential to addressing cybersecurity-related
risks.\26\ The bill is intended to facilitate interagency and
public-private cooperation to solve and prevent data breaches.
---------------------------------------------------------------------------
\25\Identify Theft: A Victims Bill of Rights: Hearing Before the
Subcomm. on Information Policy, Census and National Archives of the H.
Comm. on Oversight and Government Reform, 111th Cong. 9 (2009)
(statement of Deputy Assistant Attorney General Jason M. Weinstein),
available at http://oversight.house.gov/images/stories/documents/
20090617111143.pdf.
\26\Cyberspace Policy Review: Assuring a Trusted and Resilient
Information and Communications Infrastructure, at iv (May 29, 2009),
available at http://www.whitehouse.gov/assets/documents/
Cyberspace_Policy_Review_final.pdf.
---------------------------------------------------------------------------
3. Enforcement
Third, S. 139 contains strong civil enforcement provisions.
The bill authorizes State Attorneys General, or the U.S.
Attorney General, to bring a civil enforcement action against
violators of the bill's notification requirements and to
recover a civil penalty of not more than $1,000 per affected
individual, per day, and a maximum penalty of $1,000,000 per
violation, unless the violation is willful or intentional. It
is not uncommon for Congress to authorize both Federal and
State entities to enforce Federal consumer protection laws. In
fact, Federal antitrust laws, the CAN-SPAM Act (Controlling the
Assault of Non-Solicited Pornography and Marketing Act of
2003), and the Communications Act of 1934 also authorize State
Attorneys General to seek damages or to enjoin further Federal
law violations. The State enforcement provisions in S. 139 are
modeled after those laws and require cooperation and
communication between Federal and State entities to prevent
duplication of efforts.
The bill authorizes the Secret Service to investigate data
security breaches and to provide guidance to companies that
have been the victim of a data security breach on their notice
obligations under the bill. Since 1984, Congress has provided
statutory authority for the Secret Service to investigate a
wide range of financial crimes, including offenses under 18
U.S.C. Sec. 1028 (false identification fraud), Sec. 1029
(access device fraud), Sec. 1030 (computer fraud). In the last
two decades, the Secret Service has conducted more than 733,000
financial fraud and identity theft investigations involving
these statutes, leading to the prosecution of more than 116,000
individuals.\27\
---------------------------------------------------------------------------
\27\United States Secret Service, White Paper: Data Broker
Legislation--S.1490 (2007).
---------------------------------------------------------------------------
Section 316(b) of the bill expressly requires that the FBI
must be notified of any data security breach that involves
espionage, foreign counterintelligence, or national security
matters. Under title 18, section 1030(d)(1), the Secret Service
and FBI have concurrent jurisdiction to investigate violations
of section 1030 relating to false identification fraud, access
device fraud, and computer fraud. Section 1030 designates the
FBI as the primary investigative agency for such offenses if
they involve espionage, foreign counterintelligence, or other
national security matters. Accordingly, the bill incorporates
this requirement in the context of breach notice, so that the
FBI is promptly notified of any data breach matters that
involve espionage, foreign counterintelligence, or national
security.
4. Preemption
Fourth, the legislation balances the important role of
States as leaders on privacy issues with the recognized need
for Federal uniformity in breach notification law. As discussed
in the President's Identity Theft Task Force Report of
September 2008, ``at present, there is no single data security
or breach notification standard that applies in the United
States. Rather, there is a patchwork of state laws and sector-
specific Federal laws and regulations that are varied and have
uneven application.''\28\ The bill preempts State laws on
breach notification in order to provide a clear, national
standard. The bill also, however, carves out an exception for
State laws requiring that consumers be provided with additional
information about victim protection assistance available in
certain States. Finally, the bill's requirements do not apply
to State or local government entities, and the Committee does
not intend for the bill to preempt or displace State laws that
address obligations of State and local government entities to
provide notice of a security breach.
---------------------------------------------------------------------------
\28\President's Identity Theft Task Force Report, Combating
Identity Theft: A Strategic Plan, 13 (2008), available at http://
www.idtheft.gov/reports/IDTReport2008.pdf.
---------------------------------------------------------------------------
II. History of the Bill and Committee Consideration
A. INTRODUCTION OF THE BILL
Senator Dianne Feinstein introduced the Data Breach
Notification Act on January 6, 2009. This legislation is very
similar to the Notification of Risk to Personal Data Act of
2007, S. 239, which Senator Feinstein introduced on January 10,
2007, and to the Notification of Risk to Personal Data Act of
2005, S. 751, which Senator Feinstein introduced on April 11,
2005. The Judiciary Committee favorably reported S. 239 on May
3, 2007, by voice vote with an amendment in the nature of a
substitute. The legislation is also very similar to Subtitle B
of the Personal Data Privacy and Security Act of 2009, S. 1490.
The Committee favorably reported S. 1490 on November 5, 2009
with amendments.
The Committee has held two hearings directly related to S.
139. On March 21, 2007, the Judiciary Committee's Subcommittee
on Terrorism, Technology and Homeland Security held a hearing
titled, ``Identity Theft: Innovative Solutions for an Evolving
Problem.'' This hearing examined the problem of identity theft
and legislative solutions to this problem, and discussed the
need for Federal legislation on data breach notification. The
following witnesses testified at this hearing: Ronald Tenpas,
Associate Deputy Attorney General, United States Department of
Justice; Lydia Parnes, Director Bureau of Consumer Protection,
Federal Trade Commission; James Davis, Chief Information
Officer and Vice Chancellor for Information Technology,
University of California, Los Angeles; Joanne McNabb, Chief
California Office of Privacy Protection; and Chris Jay
Hoofnagle, Senior Staff Attorney, Samuelson Law, Technology &
Public Policy Clinic, School of Law (Boalt Hall), University of
California, Berkeley.
On April 13, 2005, the Judiciary Committee held a hearing
titled, ``Securing Electronic Personal Data: Striking a Balance
between Privacy and Commercial and Governmental Use.'' This
hearing examined the growing problem of breaches of data
security and the practices and weaknesses of the rapidly
growing data broker industry. The hearing also explored
legislative options for ensuring that consumers who were at
risk of identity theft could protect their personal data and
take steps to prevent the misuse of their private information.
The following witnesses testified at this hearing: Deborah
Platt Majoras, Chairman of the Federal Trade Commission; Chris
Swecker, Assistant Director for the Criminal Investigative
Division at the Federal Bureau of Investigation; Larry D.
Johnson, Special Agent in Charge of the Criminal Investigative
Division of the U.S. Secret Service; William H. Sorrell,
President of the National Association of Attorneys General;
Douglas C. Curling, President, Chief Operating Office, and
Director of ChoicePoint, Inc.; Kurt P. Sanford, President & CEO
of the U.S. Corporate & Federal Markets LexisNexis Group;
Jennifer T. Barrett, Chief Privacy Officer of Acxiom Corp.;
James X. Dempsey, Executive Director of the Center for
Democracy & Technology; and Robert Douglas, CEO of
PrivacyToday.com.
B. COMMITTEE CONSIDERATION
On October 23, 2009, S. 139 was placed on the Judiciary
Committee's agenda. The Committee considered this legislation
on November 5, 2009. No amendments were offered to the bill.
The Committee voted to report the Data Breach Notification Act
of 2009, without amendment, favorably to the Senate by roll
call vote as follows:
Tally: 14 Yeas, 3 Nays, Pass 2
Yeas (14): Leahy (D-VT), Kohl (D-WI), Feinstein (D-CA),
Feingold (D-WI), Schumer (D-NY), Durbin (D-IL), Cardin (D-MD),
Whitehouse (D-RI), Klobuchar (D-MN), Kaufman (D-DE), Specter
(D-PA), Franken (D-MN), Hatch (R-UT), Grassley (R-IA).
Nays (3): Sessions (R-AL), Graham (R-SC), Coburn (R-OK).
Pass (2): Kyl (R-AZ), Cornyn (R-TX).
III. Section-by-Section Summary of the Bill
Section 1. Short title
This section provides that the legislation may be cited as
the ``Data Breach Notification Act.''
Section 2. Notice to individuals
Section 2 requires that a business entity or Federal agency
give notice to an individual whose sensitive personally
identifiable information has been, or is reasonably believed to
have been, compromised, following the discovery of a data
security breach. The notice required under section 2 must be
made without unreasonable delay. Section 2 requires that a
business entity or Federal agency that does not own or license
the information compromised as a result of a data security
breach notify the owner or licensee of the data. The owner or
licensee of the data would then provide the notice to
individuals as required under this section. However, agreements
between owners, licensees and third parties regarding the
obligation to provide notice under section 2 are preserved.
Section 3. Exemptions
Section 3 allows a business entity or Federal agency to
delay notification by providing a written certification to the
U.S. Secret Service that providing such notice would impede a
criminal investigation, or damage national security. This
provision further requires that the Secret Service must review
all certifications from business entities (and may review
certifications from agencies) seeking an exemption from the
notice requirements based upon national security or law
enforcement, to determine if the exemption sought has merit.
The Secret Service has 10 business days to conduct this review,
which can be extended by the Secret Service if additional
information is needed. Upon completion of the review, the
Secret Service must provide written notice of its determination
to the agency or business entity that provided the
certification. If the Secret Service determines that the
exemption is without merit, the exemption will not apply.
Section 312 also prohibits Federal agencies from providing a
written certification to delay notice, to conceal violations of
law, prevent embarrassment or restrain competition.
Section 3(b) exempts a business entity or agency that
conducts a risk assessment after a data breach occurs, and
finds no significant risk of harm to the individuals whose
sensitive personally identifiable information has been
compromised, from the notice requirements of section 2,
provided that: (1) the business entity or Federal agency
notifies the Secret Service of the results of the risk
assessment within 45 days of the security breach; and (2) the
Secret Service does not determine within 10 business days of
receipt the notification that a significant risk of harm does
in fact exist and that notice of the breach should be given.
Under section 3(b) a rebuttable presumption exists that the use
of encryption technology, or other technologies that render the
sensitive personally identifiable information indecipherable,
and thus, that there is no significant risk of harm.
Section 3(c) also provides a financial fraud prevention
exemption from the notice requirement, if a business entity has
a program to block the fraudulent use of information--such as
credit card numbers--to avoid fraudulent transactions. Debit
cards and other financial instruments are not covered by this
exemption.
Section 4. Methods of notice
Section 4 provides that notice to individuals may be given
in writing to the individuals last known address, by telephone
or via email notice, if the individual has consented to email
notice. Media notice is also required if the number of
residents in a particular State whose information was, or is
reasonably believed to have been, compromised exceeds 5,000
individuals.
Section 5. Content of notification
Section 5 requires that the notice detail the nature of the
personally identifiable information that has been compromised
by the data security beach, a toll free number to contact the
business entity or Federal agency that suffered the breach, and
the toll free numbers and addresses of major credit reporting
agencies. Section 5 also preserves the right of States to
require that additional information about victim protection
assistance be included in the notice.
Section 6. Coordination of notification with credit reporting agencies
Section 6 requires that, for situations where notice of a
data security breach is required for 5,000 or more individuals,
a business entity or Federal agency must also provide advance
notice of the breach to consumer reporting agencies.
Section 7. Notice to law enforcement
Section 7 requires that business entities and Federal
agencies notify the Secret Service of the fact that a security
breach occurred within 14 days of the breach, if the data
security breach involves: (1) more than 10,000 individuals; (2)
a database that contains information about more than one
million individuals; (3) a Federal Government database; or (4)
individuals known to be Government employees or contractors
involved in national security or law enforcement. The Secret
Service is responsible for notifying other Federal law
enforcement agencies, including the FBI and the relevant State
Attorneys General, within 14 days of receiving notice of a data
security breach.
Section 8. Enforcement
Section 8 allows the Attorney General to bring a civil
action to recover penalties for violations of the notification
requirements in subtitle B. Violators are subject to a civil
penalty of up to $1,000 per day, per individual and a maximum
penalty of $1 million per violation, unless the violation is
willful or intentional.
Section 9. Enforcement by State attorneys general
Section 9 allows State attorneys general to bring a civil
action in U.S. district court to enforce subtitle B. The
attorney general may stay, or intervene in, any State action
brought under this subtitle.
Section 10. Effect on Federal and State law
Section 10 preempts State laws on breach notification, with
the exception of State laws regarding providing consumers with
information about victim protection assistance that is
available to consumers in a particular State. Because the
breach notification requirements in the bill do not apply to
State and local government entities, this provision does not
preempt State or local laws regarding the obligations of State
and local government entities to provide notice of a data
security breach.
Section 11. Authorization of appropriations
Section 11 authorizes funds for the Secret Service as may
be necessary to carry out investigations and risk assessments
of security breaches under the requirements of subtitle B.
Section 12. Reporting on risk assessment exemptions
Section 12 requires that the Secret Service report to
Congress on the number and nature of data security breach
notices invoking the risk assessment exemption and the number
and nature of data security breaches subject to the national
security and law enforcement exemptions.
Section 13. Definitions
Section 13 defines ``sensitive personally identifiable
information'' in a limited manner. Information will qualify if
it combines a person's last name and first name or first
initial with one of these four categories of personal
information: (1) a non-truncated social security number,
driver's license number, passport number, or alien registration
number; (2) two of: the individual's home address and telephone
number, mother's maiden name, or complete birth date; (3)
unique biometric data; or (4) a unique account number or
electronic identification number in combination with an
associated security code. Additionally, a financial account
number will qualify as ``sensitive personally identifiable
information'' if it is accessed or acquired without the account
holder's name but in combination with an associated security
code or password.
Section 14. Effective date
This Act takes effect 90 days after the date of enactment
of this Act.
IV. Congressional Budget Office Cost Estimate
The Committee sets forth, with respect to the bill, S. 139,
the following estimate and comparison prepared by the Director
of the Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974:
December 11, 2009.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 139, the Data Breach
Notification Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Mark
Grabowicz and Matthew Pickford (for federal costs) and Marin
Randall (for the impact on the private sector).
Sincerely,
Douglas W. Elmendorf.
Enclosure.
S. 139--Data Breach Notification Act
Summary: S. 139 would require most government and business
entities that collect, transmit, store, or use sensitive
personal information to notify any individuals whose
information has been unlawfully accessed through a breach in
the security systems designed to protect such information from
unauthorized access. The legislation defines sensitive personal
information as combinations of an individual's name, address or
phone number, and Social Security number, driver's license
number, financial account information, or biometric data (that
is, finger print, voice print, or retina scan). Under certain
circumstances, entities could apply to the Secret Service for
exemptions from the notification requirements. In addition, S.
139 would create civil penalties for entities that fail to
provide notice to affected individuals.
CBO expects that agencies would incur negligible costs to
implement the legislation because they already comply with the
notification requirements in the bill. Implementing S. 139
could increase collections of civil penalties that would affect
revenues, but CBO estimates that any such effect would not be
significant in any year. In addition, enacting S. 139 could
affect direct spending for notification requirements by
agencies not funded through annual appropriations. CBO
estimates, however, that any changes in net spending by those
agencies would be negligible. Complying with the bill's
provisions could increase the expenses of the Secret Service,
but CBO estimates that such costs would be less than $500,000
annually and subject to the availability of appropriated funds.
S. 139 contains intergovernmental mandates as defined in
the Unfunded Mandates Reform Act (UMRA), but CBO estimates that
the cost of complying with the requirements would be small and
would not exceed the threshold established in UMRA ($69 million
in 2009, adjusted annually for inflation).
The notification requirements in S. 139 would impose
private-sector mandates as defined in UMRA. Because most
businesses already comply with similar state requirements, CBO
estimates that the incremental cost to comply with the mandates
would fall below the annual threshold established in UMRA for
private-sector mandate ($139 million in 2009, adjusted annually
for inflation).
Estimated cost to the Federal Government: Enacting S. 139
could affect both direct spending and revenues, but CBO
estimates that any such effects would be negligible.
In the event of a security breach, S. 139 would require
most government agencies to notify individuals whose personal
information has been unlawfully accessed. Notification would be
in the form of an individual notice (a written notice to a home
mailing address, a telephone call, or an e-mail) as well as
through the mass media for breaches involving the sensitive
information of 5,000 or more individuals. The legislation also
would require the agency to provide affected individuals with a
description of the accessed information, a toll-free number to
contact the agency, the names and toll-free telephone numbers
of the major credit-reporting agencies, and in some instances,
information on an individual state's victim protection
assistance.
This provision would codify the current practice of the
federal government regarding notifications of security
breaches. While existing laws generally do not require agencies
to notify affected individuals of data breaches, this has been
the practice of agencies that have experienced such breaches.
Therefore, CBO expects that implementing those notification
provisions would probably not lead to a significant increase in
spending. Nonetheless, the federal government is also one of
the largest providers, collectors, consumers, and disseminators
of personal information in the United States. Although CBO
cannot anticipate the number of security breaches, a
significant breach of security involving a major collector of
personal information, such as the Internal Revenue Service or
the Social Security Administration, could involve millions of
individuals, and there would be significant costs to notify
individuals of such a security breach.
The legislation also would require a business entity or
federal agency (under certain circumstances) to notify the
Secret Service that a security breach has occurred, but would
permit entities or agencies to apply to the Secret Service for
exemption from notice under certain circumstances. Based on
information from the Secret Service, CBO estimates any
additional investigative or administrative costs to that agency
would likely total less than $500,000 annually and would be
subject to the availability of appropriated funds.
Impact on state, local, and tribal governments: S. 139
contains intergovernmental mandates as defined in UMRA. The
bill would explicitly preempt laws in at least 45 states
regarding the treatment of personal information and would
impose notification requirements and limitations on State
Attorneys General and state insurance authorities. Because the
limits on state authority would impose no duties with costs and
because the notification requirements would result in minimal
additional spending, CBO estimates the costs of the mandates
would be small and would not exceed the threshold established
in UMRA ($69 million in 2009, adjusted annually for inflation).
Estimated impact on private sector: S. 139 would impose
private-sector mandates as defined in UMRA. The bill would
require business entities engaged in interstate commerce that
use, access, transmit, store, dispose of, or collect sensitive
personally identifiable information to notify individuals if a
security breach occurs that affects the individuals' sensitive,
personally identifiable information. Entities would be able to
notify individuals using written letter, the telephone, or
email under certain circumstances. The bill also would require
those entities to notify the owner or licensee of any such
information that the entity does not own or license and would
require notice in major media outlets serving a state or
jurisdiction for any breach of more than 5,000 residents'
records within a particular state. In addition, business
entities would be required to notify other entities and
agencies in the event of a large security breach. Entities that
experience the breach of such data would have to notify the
affected victims and consumer reporting agencies if the breach
involves more than 5,000 individuals, and the U.S. Secret
Service if the breach involves more than 10,000 individuals.
The bill, however, would exempt business entities from the
notification requirements under certain circumstances.
According to industry sources, millions of individuals'
sensitive personally identifiable information is breached every
year. However, according to those sources, 45 states already
have laws requiring notification in the event of a security
breach. In addition, it is the standard practice of most
businesses to notify individuals if a security breach occurs.
CBO therefore estimates that the incremental costs incurred by
businesses to comply with the requirements in the bill would
fall below the annual threshold established in UMRA for
private-sector mandate ($139 million in 2009, adjusted annually
for inflation).
Previous CBO estimates: On December 2, 2009, CBO
transmitted a cost estimate for S. 1490, the Personal Data
Privacy and Security Act of 2009, as ordered reported by the
Senate Committee on the Judiciary on November 5, 2009. On
December 7, 2009, CBO transmitted a cost estimate for H.R.
2221, the Data Accountability and Trust Act, as ordered
reported by the House Committee on Energy and Commerce on
September 30, 2009. Those bills address security breaches of
sensitive personal information and notification requirements
for the federal government and private industry. S. 1490 would
require agencies to prepare additional reports for the Congress
on the security of sensitive personal information held by the
federal government. CBO estimates that preparing those reports
and other security assessments would cost $25 million over the
2010-2014 period. H.R. 2221 would require the Federal Trade
Commission to develop regulations to enforce new notification
requirements. CBO estimates that it would cost that agency $5
million over the 2010-2014 period to carry out those
activities.
CBO determined that S. 1490 and H.R. 2221 also contained
intergovernmental mandates, but any costs would be small and
would not exceed the threshold established in UMRA ($69 million
in 2009, adjusted for inflation). In addition, CBO determined
that S. 1490 and H.R. 2221 would impose private-sector mandates
that would exceed the annual threshold established in UMRA
($139 million in 2009, adjusted annually for inflation) in at
least one of the first five years the mandate are in effect.
Estimate prepared by: Federal costs: Mark Grabowicz and
Matthew Pickford; Impact on state, local, and tribal
governments: Elizabeth Cove Delisle; Impact on the private
sector: Marin Randall.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
V. Regulatory Impact Evaluation
In compliance with rule XXVI of the Standing Rules of the
Senate, the Committee finds that no significant regulatory
impact will result from the enactment of S. 139.
VI. Conclusion
By providing a Federal standard for notification in the
event of a data breach, the Data Breach Notification Act, S.
139, will create a powerful incentive for government and
private industry to improve the security of their data systems,
will ensure that consumers are notified when their sensitive
personally identifiable information is at risk, and will
provide Federal law enforcement with critical information in
the fight against cyber crime.
VII. Additional Views
----------
ADDITIONAL VIEWS FROM SENATORS SESSIONS, KYL AND GRAHAM
There is bipartisan agreement on the need for congressional
action to confront the growing threat posed by criminals who
steal Americans' personal information. There is also a
bipartisan consensus on a need for a national standard for
notifying consumers and law enforcement in the event of a data
breach that compromises individuals' sensitive personal
information. Such notice provides law enforcement with valuable
leads on how to fight cybercrime, including data and identity
theft crimes, which has exploded in recent years, and which is
increasingly committed by sophisticated criminal enterprises
with global reach. Timely notice of genuine threats to
individuals' identity information also gives consumers the
opportunity to protect themselves. In order for such consumer
protections to be effective, however, it is important that
notices be sent after a conscientious assessment of the risk
that a breach poses to consumers. If notices are sent for
trivial security breaches, consumers may be overwhelmed by
inconsequential notices and become more likely to ignore
warnings that matter--when their identity information is
genuinely at risk. If we are to succeed in our shared goal of
protecting consumers, it is critical that Congress strike a
careful balance. We are concerned that this bill could lead to
excessive (and thus counterproductive) notice to consumers, and
so we hope that the right balance can be achieved when this
bill comes before the full Senate.
To date, 45 states, the District of Columbia, Puerto Rico,
and the U.S. Virgin Islands have adopted laws governing notice
to individuals whose personal identity information has been
compromised. Such protection is important, but the
proliferation of state laws has produced a patchwork in which
the protections for consumers--and the rules for business--are
uneven and at times confusing. We firmly believe that Congress
should provide a uniform national standard in this area, and we
commend Senator Feinstein's efforts to do so in this bill. We
remain committed to the goals underlying this legislation, and
we hope to work with our colleagues to craft a bill that best
serves our shared interests in assisting law enforcement and
protecting consumers.
BACKGROUND
Identity theft is a major concern for consumers and for
businesses, and the threat posed by the increasingly
sophisticated criminal enterprises that perpetrate these acts
is both serious and growing. Both business and government have
spent a great deal of time and effort to understand and combat
this crime. Law enforcement agencies at the federal, state and
local levels have increased their cooperation, and businesses
and governments at all levels have adopted more rigorous
internal controls to protect individuals' information.
Nevertheless, periodic breaches that compromise sensitive
personal information continue to occur, because of inadequate
defenses against criminals, or because of negligence in
securing sensitive information. Reports this week that the
National Archives may have compromised sensitive information,
including Social Security numbers, for 250,000 individuals
because of a single lost computer hard drive are a sober
reminder of the need for better security.
Our first priority must be to ensure that consumers have
the tools to protect themselves in the event of a data breach.
Americans need to be notified when information pertaining to
them is compromised in a way that may jeopardize their
identities. For such notices to be effective, however, they
must be issued only when there are reasonable grounds to do so.
We know from the experience of the Gramm-Leach-Bliley Act
(GLBA) that over-notification leads to consumer apathy, with
the result that consumers are exposed to greater risks.
SPECIFIC CONCERNS WITH S.139, THE DATA BREACH NOTIFICATION ACT
Although we support the goals of this legislation, we have
some specific concerns with S.139 as reported by the Committee,
and believe that the bill could be improved in several areas.
1. The scope of protected personal information includes widely
publicly-available information
The bill defines the protected class of information--
``sensitive personally identifiable information''--to include
widely-available information such as home address, phone
number, and date of birth. Such information is frequently
available in public records, and release or compromise of such
information alone is not sufficient to pose a risk of identity
theft. Nor is the release of such information alone
sufficiently grave to justify notice to the FBI and the Secret
Service.
2. The definition of Security Breach is too broad
The bill defines a breach as including unauthorized
``access'' or ``acquisition'' of sensitive personally
identifiable information. While ``access'' to such information
is a common term used in the criminal code, its use alongside
``acquisition'' implies that ``access'' refers only to
instances where the personal data is not ``acquired''--i.e.
where the data is not in some way recorded, collected, or taken
for future, potentially harmful, use. Thus, the current
definition of a ``breach'' would appear to cover instances
where information is viewed in passing, or possibly where a
person obtains unauthorized access to a computer system that
contains personal information, even if the invader never views
or downloads the information. Such activity, however, does not
threaten individuals whose data was ``accessed'' with any harm.
Although the definition of a Security Breach excludes ``the
release of a public record'' that is not otherwise protected by
confidentiality or nondisclosure rules, the S.139 does not
define a ``public record'' and thus the bill could be read to
treat release of specific information available in a public
record as a Breach while permitting release of a full public
record.
3. The ``harm'' standard for notice to consumers is vague
One of the most valuable aspects of S. 139 is the
requirement that companies who suffer data breaches report
those incidents to law enforcement. That reporting requirement
will assist our law enforcement agencies to better analyze and
defend against the methods of increasingly sophisticated and
global criminal enterprises that commonly engage in data theft.
In order to avoid desensitizing the public through over-
notification of such breaches, however, Congress should provide
a clear risk-based standard for requiring companies to take the
additional step of notifying individual consumers who might
have been affected by the breach.
The standard currently in S.139, requires consumer notice
unless there is ``no significant risk'' of ``harm to the
individual.'' ``Harm'' is undefined, and although the Majority
suggests that the ``harm'' in question should cover not only
identity theft but also financial crime or threats to a
person's safety such as from stalking, judicial interpretations
of similar state laws suggest that the current language could
encompass not only such serious matters but also less concrete
``harms,'' such as the time a person must spend to expunge
negative credit information or even purely reputational
``harms'' that might be suffered from some types of
disclosures. A more disciplined approach would be to require
notice when there is a risk of ``misuse of the individual's
personal information for identity theft, fraud, or other
illegal purposes, or financial harm to the individual.''
4. Consumer notice methods and timing
S. 139 requires entities victimized by a Security Breach to
send any notice to consumers ``without unreasonable delay.''
While ``reasonable delay'' is defined to include the time
necessary to determine the scope of the breach and secure the
database from further exploitation, the bill does not currently
make clear that notice may be delayed to allow the holder of
the data to assess the possible risks to consumers and evaluate
the need for a breach notice.
More significantly, S. 139 currently requires consumers
receive both actual notice of a breach (through mail,
telephone, or email) and constructive notice through
announcements in major media outlets. Where actual notice is
feasible, however, any constructive notice through mass media
outlets is duplicative and unnecessary. Congress should follow
the example of those states, including California, that call
for notice through mass media only as a fall-back alternative
when actual notice is impossible or impracticable. In addition,
S.139 should allow consumers to be notified through whatever
channels they customarily use to communicate with the business
or entity whose systems were breached. As currently drafted,
the bill would not permit notice via email unless a consumer
has specifically consented to such email notice in advance.
5. Other Issues
We agree with the sponsors of S. 139 on the need for
Congress to set a uniform national standard for breach
notification, and we hope that the preemption language in the
bill will be reinforced when S. 139 is considered by the full
Senate. We also believe that the civil penalty provisions in
the bill should be clarified to ensure that the civil penalty
cap applies to each incident or breach, so that the damages
ceiling for mishandling a breach would not be multiplied by the
number of consumers--possibly in the millions--that could be
affected in a single incident. In addition, we would suggest
that the bill's reference to encryption technology adopted by
an ``established standards setting body'' might be strengthened
by making clear that the standard-setting body must be widely-
accepted or certified by the FTC.
CONCLUSION
For these reasons, although we share the general goals S.
139 attempts to serve, we urge our colleagues to revisit these
policy and drafting issues that remain in this bill.
Jeff Sessions.
Jon Kyl.
Lindsey Graham.
VIII. Changes to Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 139, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
UNITED STATES CODE
TITLE 15--COMMERCE AND TRADE
* * * * * * *
CHAPTER 41--CONSUMER CREDIT PROTECTION
* * * * * * *
Subchapter III--Credit Reporting Agencies
* * * * * * *
Sec. 1681c-1. Identity theft prevention; fraud alerts and active duty
alerts
* * * * * * *
(b) Extended Alerts.--
(1) In general.--Upon the direct request of a
consumer, or an individual acting on behalf of or as a
personal representative of a consumer, who submits an
identity theft report, or evidence that the consumer
has received notice that the consumer's financial
information has or may have been compromised, to a
consumer reporting agency described in section 1681a(p)
of this title that maintains a file on the consumer, if
the agency has received appropriate proof of the
identity of the requester, the agency shall--
(A) include a fraud alert in the file of that
consumer, and also provide that alert along
with any credit score generated in using that
file, during the 7-year period beginning on the
date of such request, unless the consumer or
such representative requests that such fraud
alert be removed before the end of such period
and the agency has received appropriate proof
of the identity of the requester for such
purpose;
(B) during the 5-year period beginning on the
date of such request, exclude the consumer from
any list of consumers prepared by the consumer
reporting agency and provided to any third
party to offer credit or insurance to the
consumer as part of a transaction that was not
initiated by the consumer, unless the consumer
or such representative requests that such
exclusion be rescinded before the end of such
period; and
(C) refer the information regarding the
extended fraud alert under this paragraph to
each of the other consumer reporting agencies
described in section 1681a(p) of this title, in
accordance with procedures developed under
section 1681s(f) of this title.