Effective November 2, 2018, companies that suffer a breach may have certain defenses in Ohio if they have a written cybersecurity program in place. Under this new law, companies can use as an affirmative defense the existence of a cyber program in rebuttal to an argument that they failed to implement reasonable information security controls, and that failure resulted in a breach. The definition of breach (and personal information that if impacted gives rise to a duty to notify) is identical to Ohio’s existing breach notification law. The defense is available if the company has a written program in place, and that program conforms to “industry-recognized frameworks” like the National Institute of Standards and Technology’s Framework, ISO 27000, FedRAMP, PCI Standards, the Security Rule of the Health Insurance Portability and Accountability Act, or the Safeguards Rule of the Gramm-Leach-Bliley Act. Anticipating that these frameworks may be amended from time to time, the law gives companies a year to modify their programs to get into compliance with the amended law. Programs must meet minimal criteria to qualify. This includes (1) protecting the security and confidentiality of the information, (2) protecting against anticipated threats or hazards, and (3) protecting against unauthorized access to and acquisition of the information. The program would be right-sized to take into account the size of the business, nature of its business, type of information, cost of protection tools, and resources available to the company. The drafters emphasized that this provision does not give rise to a private right of action.
Putting it Into Practice: Unlike other states which require companies to have a written security programs in place (Alabama, Massachusetts, and Oregon), Ohio’s new law seeks to provide a strong incentive to companies to put into place a similar a program without actually making having a written program a requirement.