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The Case For a Federal Data Breach Notification Law

By Tracy Marshall on June 7, 2011
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As evidenced by another congressional hearing on data security, the idea of a federal data breach notification law is something that both businesses and consumers can support.  The concept has also attracted bipartisan support in Congress.

Following the string of online data breaches that Sony experienced in April and May- what Rep. Mary Bono Mack has called the “ground zero” of cyber attacks- Sony was criticized because it took a week to investigate the initial breach affecting its PlayStation network before notifying consumers or making a public announcement.  The reality is, however, that in the absence of a federal law having preemptive effect, the inconsistent state laws that companies must navigate when they experience a breach make it a practical impossibility to provide an immediate, meaningful response to affected consumers and government agencies.

Numerous differences in the 46+ state data breach notification laws make notifying affected individuals and agencies complex, especially for companies with national operations.  Companies must perform extensive internal investigations to determine the number of individuals and states involved, the means and extent of unlawful access or acquisition, and the  nature of consumer information accessed or acquired just to initiate the notification process.  They must then examine applicable state laws to determine who (e.g., residents, state agencies, and/or consumer reporting agencies) should be notified, when, and how.  Some states even dictate what information must or cannot be disclosed.  Often, that requires separate forms of notifications to individuals depending on where they reside.

Given the current landscape, the question is not whether a comprehensive federal data breach notification law should or will be adopted, but when.

Photo of Tracy Marshall Tracy Marshall

Tracy Marshall counsels international and domestic for-profit and non-profit clients on a range of privacy, data security, advertising, promotions, and intellectual property matters. She also advises on general corporate and transactional matters.

Tracy assists clients with compliance and advocates on their behalf. She …

Tracy Marshall counsels international and domestic for-profit and non-profit clients on a range of privacy, data security, advertising, promotions, and intellectual property matters. She also advises on general corporate and transactional matters.

Tracy assists clients with compliance and advocates on their behalf. She is a Certified Information Privacy Professional (CIPP/US) through the International Association of Privacy Professionals (IAPP) and helps clients implement privacy, data security, and security breach response programs, develop internal and public-facing privacy policies to comply with applicable laws, respond to cyber and data security incidents, and manage relationships with service providers and third parties. Tracy advises on structuring and conducting email and text messaging campaigns, sweepstakes, contests, and other promotions, and she helps clients protect and enforce their intellectual property rights.

In addition, Tracy counsels clients on corporate matters and assists with structuring and negotiating a variety of transactions, including licensing, marketing, and outsourcing arrangements.

Tracy is frequently invited to speak at privacy, data security, telecommunications, and advertising conferences and is a contributor to Keller and Heckman’s Consumer Protection Connection blog and Beyond Telecom Law Blog.


To learn more about Tracy’s practice areas, click here.
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  • Posted in:
    Privacy and Cybersecurity
  • Blog:
    Beyond Telecom Law Blog
  • Organization:
    Keller Heckman
  • Article: View Original Source

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