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General Assembly Raised Bill No. 6607
January Session, 2021
LCO No. 4480
Referred to Committee on COMMERCE
Introduced by:
(CE)
AN ACT INCENTIVIZING THE ADOPTION OF CYB ERSECURITY
STANDARDS FOR BUSINE SSES.
Be it enacted by the Senate and House of Representatives in General
Assembly convened:
Section 1. (NEW) (Effective October 1, 2021) (a) As used in this section: 1
(1) "Business" means any individual or sole proprietorship, 2
partnership, firm, corporation, trust, limited liability company, limited 3
liability partnership, joint stock company, joint venture, association or 4
other legal entity through which business for profit or not-for-profit is 5
conducted; 6
(2) "Covered entity" means a business that accesses, maintains, 7
communicates or processes personal information or restricted 8
information in or through one or more systems, networks or services 9
located in or outside this state; 10
(3) "Data breach" means unauthorized access to and acquisition of 11
computerized data that compromises the security or confidentiality of 12
personal information or restricted information owned by or licensed to 13
a covered entity and that causes, reasonably is believed to have caused 14 Raised Bill No. 6607
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or reasonably is believed will cause a material risk of identity theft or 15
other fraud to a person or property. "Data breach" does not include (A) 16
good faith acquisition of personal information or restricted information 17
by the covered entity's employee or agent for the purposes of the 18
covered entity, provided the personal information or restricted 19
information is not used for an unlawful purpose or subject to further 20
unauthorized disclosure, or (B) acquisition of personal information or 21
restricted information pursuant to a search warrant, subpoena or other 22
court order, or pursuant to a subpoena, order or duty of a regulatory 23
state agency; 24
(4) "Personal information" means an individual's name, consisting of 25
the individual's first name or first initial and last name, in combination 26
with and linked to any one or more of the following data elements, when 27
the data elements are not encrypted, redacted or altered by any method 28
or technology in such a manner that the data elements are unreadable: 29
(A) Social security number; (B) driver's license number or state 30
identification number; or (C) account number or credit or debit card 31
number, in combination with and linked to any required security code, 32
access code or password that would permit access to an individual's 33
financial account; and 34
(5) "Restricted information" means any information about an 35
individual, other than personal information, that, alone or in 36
combination with other information, including personal information, 37
can be used to distinguish or trace the individual's identity or that is 38
linked or linkable to an individual, if the information is not encrypted, 39
redacted or altered by any method or technology in such a manner that 40
the information is unreadable, and the breach of which is likely to result 41
in a material risk of identity theft or other fraud to a person or property. 42
(b) In any cause of action founded in tort that is brought under the 43
laws of this state or in the courts of this state and that alleges that the 44
failure to implement reasonable cybersecurity controls resulted in a data 45
breach concerning personal information or restricted information, it 46
shall be an affirmative defense that a covered entity created, maintained 47 Raised Bill No. 6607
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and complied with a written cybersecurity program that contains 48
administrative, technical and physical safeguards for the protection of 49
personal or restricted information and that reasonably conforms to an 50
industry recognized cybersecurity framework, as described in 51
subsection (c) of this section and that such covered entity designed its 52
cybersecurity program in accordance with the provisions of subsection 53
(d) of this section. 54
(c) A covered entity's cybersecurity program, as described in 55
subsection (b) of this section, reasonably conforms to an industry 56
recognized cybersecurity framework if: 57
(1) (A) The cybersecurity program reasonably conforms to the current 58
version of or any combination of the current versions of: 59
(i) The "Framework for Improving Critical Infrastructure 60
Cybersecurity" published by the National Institute of Standards and 61
Technology; 62
(ii) The National Institute of Standards and Technology's special 63
publication 800-171; 64
(iii) The National Institute of Standards and Technology's special 65
publications 800-53 and 800-53a; 66
(iv) The Federal Risk and Management Program's "FedRAMP 67
Security Assessment Framework"; 68
(v) The Center for Internet Security's "Center for Internet Security 69
Critical Security Controls for Effective Cyber Defense"; or 70
(vi) The "ISO/IEC 27000-series" information security standards 71
published by the International Organization for Standardization and the 72
International Electrotechnical Commission. 73
(B) When a revision to a document listed in subparagraph (A) of this 74
section is published, a covered entity whose cybersecurity program 75
reasonably conforms to a prior version of said document, such covered 76 Raised Bill No. 6607
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entity shall reasonably conform to such revision not later than one year 77
after the publication date of such revision. 78
(2) (A) The covered entity is regulated by the state or the federal 79
government or is otherwise subject to the requirements of any of the 80
laws or regulations identified in subparagraph (A)(i) to (A)(iv), 81
inclusive, of this subdivision, and such covered entity's cybersecurity 82
program reasonably conforms to the current version of: 83
(i) The security requirements of the Health Insurance Portability and 84
Accountability Act of 1996, P.L. 104-191, as amended from time to time, 85
as set forth in 45 CFR 164, Subpart C, as amended from time to time; 86
(ii) Title V of the Gramm-Leach-Bliley Act of 1999, P.L. 106-102, as 87
amended from time to time; 88
(iii) The Federal Information Security Modernization Act of 2014, P.L. 89
113-283, as amended from time to time; 90
(iv) The security requirements of the Health Information Technology 91
for Economic and Clinical Health Act, as amended from time to time, as 92
set forth in 45 CFR 162, as amended from time to time. 93
(B) If any of the laws or regulations identified in subparagraph (A)(i) 94
to (A)(iv), inclusive, of this subdivision are amended, a covered entity 95
whose cybersecurity program reasonably conforms to a prior version of 96
said laws or regulations, such covered entity shall reasonably conform 97
to such amended law or regulation not later than one year after the date 98
of such amendment. 99
(3) (A) The cybersecurity program reasonably complies with the 100
current version of the "Payment Card Industry Data Security Standard" 101
and the current version of another applicable industry recognized 102
cybersecurity framework described in subparagraph (A) of subdivision 103
(1) of this subsection. 104
(B) When a revision to the "Payment Card Industry Data Security 105
Standard" is published, a covered entity whose cybersecurity program 106 Raised Bill No. 6607
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reasonably conforms to a prior version of said document, such covered 107
entity shall reasonably conform to such revision not later than one year 108
after the publication date of such revision. 109
(d) (1) A covered entity's cybersecurity program shall be designed to 110
do the following with respect to personal and restricted information: (A) 111
Protect the security and confidentiality of such information; (B) protect 112
against any anticipated threats or hazards to the security or integrity of 113
such information; and (C) protect against unauthorized access to and 114
acquisition of the information that is likely to result in a material risk of 115
identity theft or other fraud to the individual to whom the information 116
relates. 117
(2) The scale and scope of a covered entity's cybersecurity program 118
shall be based on the following factors: (A) The size and complexity of 119
the covered entity; (B) the nature and scope of the activities of the 120
covered entity; (C) the sensitivity of the information to be protected; (D) 121
the cost and availability of tools to improve information security and 122
reduce vulnerabilities; and (E) the resources available to the covered 123
entity. 124
This act shall take effect as follows and shall amend the following
sections:
Section 1 October 1, 2021 New section
Statement of Purpose:
To incentivize the adoption of cybersecurity standards for businesses by
allowing businesses that adopt certain cybersecurity framework to
plead an affirmative defense to any cause of action that alleges that a
failure to implement reasonable cybersecurity controls resulted in a data
breach concerning personal or restricted information.
[Proposed deletions are enclosed in brackets. Proposed additions are indicated by underline, except
that when the entire text of a bill or resolution or a section of a bill or resolution is new, it is not
underlined.]