Written by Michelle Anderson and Anne Kierig
New York Attorney General Eric Schneiderman announced that his office received a record number (1,300) of data breach notices in 2016. In the press release, Attorney General Schneiderman also provided a list of recommendations for how organizations can help protect sensitive personal data—a list that could be used as a benchmark against which the Attorney General’s office could evaluate whether a company has implemented reasonable security measures.
Many of the recommendations overlap with those made by other regulators (e.g., minimizing data collection practices is in the FTC’s Start with Security: A Guide for Business), but they reiterate that the New York Attorney General considers both encryption and offering post-breach services like credit monitoring to be more of an expectation than an option. They also highlight the importance of having a written information security policy, rather than undocumented procedures. The Attorney General’s recommendations update recommendations made in a 2014 report titled Information Exposed: Historical Examination of Data Security in New York State and are as follows:
- Understand where your business stands by understanding the types of information your business has collected and needs, how long it is stored, and what steps have been taken to secure it. Data mapping would be a ready way to meet this recommendation.
- Identify and minimize data collection practices by collecting only the information that you need, storing it only for the minimum time necessary, and using data minimization tactics when possible (e.g., don’t store credit card expiration dates with credit card numbers).
- Create an information security plan that includes encryption and other technical standards, as well as training, awareness, and “detailed procedural steps in the event of data breaches.” This recommendation reiterates a recommendation from the 2014 report, in which the Attorney General said that effective technical safeguards include “[r]equir[ing] encryption of all stored sensitive personal information—including on databases, hard drives, laptops, and portable devices.”
- Implement an information security plan and conduct regular reviews to ensure that the plan aligns with ever-changing best practices.
- Take immediate action in the event of a breach by investigating immediately and thoroughly and notifying consumers, law enforcement, regulators, credit bureaus, and other businesses as required. This is the only new recommendation from the 2014 report, which mentioned the importance of immediate breach response in the context of implementing an information security plan. Now, however, it’s a separate recommendation.
- Offer mitigation products in the event of a breach, including credit monitoring.
The announcement also revealed that the number of data breaches reported to the New York Attorney General’s office in 2016 represented a 60% increase over prior years. It reported that the most common causes of data breaches were external (i.e., hacking) and employee negligence (consisting of inadvertent exposure of records, insider wrongdoing, and the loss of a device or media). These causes accounted for, respectively, 40% and 37% of the reported breaches, showing a rise in employee negligence as a breach source. The information exposed consisted overwhelmingly of Social Security numbers (46%) and financial account information (35%).
This announcement also comes on the heels of final cybersecurity rules for the financial sector from the New York Department of Financial Services (NYDFS). The NYDFS requirements went into effect on March 1, 2017, and are designed to keep both “nonpublic information” and “information systems” secure. More information about these requirements can be found in DLA Piper’s Cybersecurity Law Alert NYDFS announces final cybersecurity rules for financial services sector: key takeaways.