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Comments on Senator Feinstein’s bill, S. 139

Posted on January 11, 2009 by Dissent

Earlier this week, Senator Feinstein grabbed the privacy headlines when she reintroduced the same breach notification bill that she has introduced in every session of Congress for the past few years. Like me, the bill has not improved with age.

S.139 is intended to provide a national “floor” on data breach notifications for breaches involving “sensitive personally identifiable information” in electronic or digital form. In its past incarnations, it has had 2 co-sponsors at most, and we’ll have to see if this time around, things are any different.

The bill has a few good provisions – such as the requirement of media notice in breaches over a certain size and notification to a federal agency of breaches or databases over a certain size, but there are so many flaws in the proposed law that it is not worthy of active support. I’ll just point out a few of my concerns about it:

1. There is no specific requirement on timeliness of notification.

2. A safe harbor provision exempts a business or agency from notification if its own risk assessment

concludes that there is no significant risk that a security breach has resulted in, or will result in, harm to the individual whose sensitive personally identifiable information was subject to the security breach.

Nowhere, however, does the bill define what constitutes “harm” to the individual, and financial fraud or ID theft are not the only kinds of “harm” that individuals may be concerned about.

3. Entities who certify themselves for (conditional) exemptions from notification for National Security or “no significant risk” reasons submit documentation to the Secret Service who would review the exemption. There would be absolutely no transparency about exemptions granted for national security or risk assessment purposes. Although the Secret Service would provide certain data to Congress in terms of the number and nature of breaches that were granted exemptions under safe harbor provisions and national security concerns

Any report submitted under subsection (a) shall not disclose the contents of any risk assessment provided to the United States Secret Service under this Act.

So we’d have some kind of central registry for breaches meeting the above criteria, which is a good thing, but we’d have no access to those data.

4. The content of notification provisions does not require the agency or business to give the individual any information as to what happened and when it happened. Wouldn’t you want to know if your retailer suffered a breach because of a hack or because some employee left a laptop with unencrypted data in their car overnight and it was stolen? I would. And I’d want to know whether my data were accessed or acquired one week ago or 6 months ago.

5. Enforcement would be by the Attorney General and states attorney general. The bill does not establish any private cause of action.

Why not? That’s a rhetorical question, I suppose, as we can all guess the answer. But if a person spends months trying to restore their credit or life because of a security breach, why shouldn’t they have redress in a court of law to sue civilly? S.2168, introduced by Senator Patrick Leahy during the last Congress, passed the Senate and was sent over to the House. That bill — which has its own imperfections — would at least allow victims some restitution for time and aggravation to clean up any messes.

So far, Senator Leahy has not reintroduced another breach notification bill he introduced during the last session, S. 495. I will be watching to see he does, although frankly, none of these bills are strong enough. All I want is a bill that requires disclosure to a central registry like the FTC so that data would be accessible under FOI, a private cause of action, notification in a timely manner that provides sufficient information for individuals to assess the risk and take steps to protect themselves, and a bill that defines a right to privacy and applies to all PII so that we get away from this patchwork quilt of federal laws that has too many holes in the quilt.

That’s not asking too much, is it?

Category: Breach LawsFederalLegislationU.S.

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2 thoughts on “Comments on Senator Feinstein’s bill, S. 139”

  1. craigmock says:
    January 12, 2009 at 8:04 am

    Notice the line just after the Safe Harbor risk assessment though. It states the Secret Service still must review the company’s risk assessment and can still require the company to send notification even though the company claims an exemption based on their risk assessment. The Secret Service only has 10 days to respond though…which could be a problem if there are floods of breaches.

    “The United States Secret Service does not indicate, in writing, and not later than 10 business days after the date of receipt of the decision described in subparagraph (B)(ii), that notice should be given”

  2. admin says:
    January 12, 2009 at 9:14 am

    Yes, I had noted that provision. But somehow I don’t see the Secret Service as being an agency that is likely to view this from a consumer standpoint – I think they are more likely to rubber stamp any attempt to keep things secret. If it was the FTC reviewing the certification, that would be more reassuring.

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