Text: S.2179 — 115th Congress (2017-2018)All Information (Except Text)

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Introduced in Senate (11/30/2017)

 
[Congressional Bills 115th Congress]
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[S. 2179 Introduced in Senate (IS)]

<DOC>






115th CONGRESS
  1st Session
                                S. 2179

  To protect consumers by requiring reasonable security policies and 
  procedures to protect data containing personal information, and to 
  provide for nationwide notice in the event of a breach of security.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           November 30, 2017

 Mr. Nelson (for himself, Mr. Blumenthal, and Ms. Baldwin) introduced 
the following bill; which was read twice and referred to the Committee 
                on Commerce, Science, and Transportation

_______________________________________________________________________

                                 A BILL


 
  To protect consumers by requiring reasonable security policies and 
  procedures to protect data containing personal information, and to 
  provide for nationwide notice in the event of a breach of security.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Data Security and Breach 
Notification Act''.

SEC. 2. REQUIREMENTS FOR INFORMATION SECURITY.

    (a) General Security Policies and Procedures.--
            (1) Regulations.--Not later than 1 year after the date of 
        enactment of this Act, the Commission shall promulgate 
        regulations under section 553 of title 5, United States Code, 
        to require each covered entity that owns or possesses data 
        containing personal information, or contracts to have any 
        third-party entity maintain or process such data for such 
        covered entity, to establish and implement policies and 
        procedures regarding information security practices for the 
        treatment and protection of personal information taking into 
        consideration--
                    (A) the size of, and the nature, scope, and 
                complexity of the activities engaged in by such covered 
                entity;
                    (B) the current state of the art in administrative, 
                technical, and physical safeguards for protecting such 
                information;
                    (C) the cost of implementing the safeguards under 
                subparagraph (B); and
                    (D) the impact on small businesses and nonprofits.
            (2) Requirements.--The regulations shall require the 
        policies and procedures to include the following:
                    (A) A security policy with respect to the 
                collection, use, sale, other dissemination, and 
                maintenance of personal information.
                    (B) The identification of an officer or other 
                individual as the point of contact with responsibility 
                for the management of information security.
                    (C) A process for identifying and assessing any 
                reasonably foreseeable vulnerabilities in each system 
                maintained by the covered entity that contains such 
                personal information, including regular monitoring for 
                a breach of security of each such system.
                    (D) A process for taking preventive and corrective 
                action to mitigate any vulnerabilities identified in 
                the process required by subparagraph (C), that may 
                include implementing any changes to information 
                security practices and the architecture, installation, 
                or implementation of network or operating software.
                    (E) A process for disposing of data in electronic 
                form containing personal information by destroying, 
                permanently erasing, or otherwise modifying the 
                personal information contained in such data to make 
                such personal information permanently unreadable or 
                indecipherable.
                    (F) A standard method or methods for the 
                destruction of paper documents and other non-electronic 
                data containing personal information.
    (b) Limitations.--
            (1) Covered entities subject to the gramm-leach-bliley 
        act.--A financial institution that is subject to title V of the 
        Gramm-Leach-Bliley Act (15 U.S.C. 6801 et seq.) and is in 
        compliance with information security requirements under that 
        Act shall be deemed in compliance with this section.
            (2) Applicability of other information security 
        requirements.--A person who is subject to, and in compliance 
        with, the information security requirements of section 13401 of 
        the Health Information Technology for Economic and Clinical 
        Health Act (42 U.S.C. 17931) or of section 1173(d) of title XI, 
        part C of the Social Security Act (42 U.S.C. 1320d-2(d)) shall 
        be deemed in compliance with this section with respect to any 
        data governed by section 13401 of the Health Information 
        Technology for Economic and Clinical Health Act (42 U.S.C. 
        17931) or by the Health Insurance Portability and 
        Accountability Act of 1996 Security Rule (45 C.F.R. 160.103 and 
        part 164).

SEC. 3. NOTIFICATION OF BREACH OF SECURITY.

    (a) Nationwide Notification.--A covered entity that owns or 
possesses data in electronic form containing personal information, 
following the discovery of a breach of security of the system 
maintained by the covered entity that contains such data, shall 
notify--
            (1) each individual who is a citizen or resident of the 
        United States and whose personal information was or is 
        reasonably believed to have been acquired or accessed from the 
        covered entity as a result of the breach of security; and
            (2) the Commission, unless the covered entity has notified 
        the designated entity under section 4.
    (b) Special Notification Requirements.--
            (1) Third-party entities.--In the event of a breach of 
        security of a system maintained by a third-party entity that 
        has been contracted to maintain or process data in electronic 
        form containing personal information on behalf of any other 
        covered entity who owns or possesses such data, the third-party 
        entity shall notify the covered entity of the breach of 
        security. Upon receiving notification from the third-party 
        entity, such covered entity shall provide the notification 
        required under subsection (a).
            (2) Coordination of notification with credit reporting 
        agencies.--If a covered entity is required to provide 
        notification to more than 5,000 individuals under subsection 
        (a)(1), the covered entity also shall notify each major credit 
        reporting agency of the timing and distribution of the notices, 
        except when the only personal information that is the subject 
        of the breach of security is the individual's first name or 
        initial and last name, or address, or phone number, in 
        combination with a credit or debit card number, and any 
        required security code. Such notice shall be given to each 
        credit reporting agency without unreasonable delay and, if it 
        will not delay notice to the affected individuals, prior to the 
        distribution of notices to the affected individuals.
    (c) Timeliness of Notification.--Notification under subsection (a) 
shall be made--
            (1) not later than 30 days after the date of discovery of a 
        breach of security; or
            (2) as promptly as possible if the covered entity providing 
        notice can show that providing notice within the timeframe 
        under paragraph (1) is not feasible due to circumstances 
        necessary--
                    (A) to accurately identify affected consumers;
                    (B) to prevent further breach or unauthorized 
                disclosures; or
                    (C) to reasonably restore the integrity of the data 
                system.
    (d) Method and Content of Notification.--
            (1) Direct notification.--
                    (A) Method of direct notification.--A covered 
                entity shall be in compliance with the notification 
                requirement under subsection (a)(1) if--
                            (i) the covered entity provides conspicuous 
                        and clearly identified notification--
                                    (I) in writing; or
                                    (II) by e-mail or other electronic 
                                means if--
                                            (aa) the covered entity's 
                                        primary method of communication 
                                        with the individual is by e-
                                        mail or such other electronic 
                                        means; or
                                            (bb) the individual has 
                                        consented to receive 
                                        notification by e-mail or such 
                                        other electronic means and such 
                                        notification is provided in a 
                                        manner that is consistent with 
                                        the provisions permitting 
                                        electronic transmission of 
                                        notices under section 101 of 
                                        the Electronic Signatures in 
                                        Global and National Commerce 
                                        Act (15 U.S.C. 7001); and
                            (ii) the method of notification selected 
                        under clause (i) can reasonably be expected to 
                        reach the intended individual.
                    (B) Content of direct notification.--Each method of 
                direct notification under subparagraph (A) shall 
                include--
                            (i) the date, estimated date, or estimated 
                        date range of the breach of security;
                            (ii) a description of each type of personal 
                        information that was or is reasonably believed 
                        to have been acquired or accessed as a result 
                        of the breach of security;
                            (iii) a telephone number that an individual 
                        can use at no cost to the individual to contact 
                        the covered entity to inquire about the breach 
                        of security or the information the covered 
                        entity maintained or possessed about that 
                        individual;
                            (iv) notice that the individual may be 
                        entitled to consumer credit reports under 
                        subsection (e)(1);
                            (v) instructions how an individual can 
                        request consumer credit reports under 
                        subsection (e)(1);
                            (vi) a telephone number, that an individual 
                        can use at no cost to the individual, and an 
                        address to contact each major credit reporting 
                        agency; and
                            (vii) a telephone number, that an 
                        individual can use at no cost to the 
                        individual, and an Internet Web site address to 
                        obtain information regarding identity theft 
                        from the Commission.
            (2) Substitute notification.--
                    (A) Circumstances giving rise to substitute 
                notification.--A covered entity required to provide 
                notification under subsection (a)(1) may provide 
                substitute notification instead of direct notification 
                under paragraph (1)--
                            (i) if direct notification is not feasible 
                        due to a lack of sufficient contact information 
                        for the individual required to be notified; or
                            (ii) if the covered entity owns or 
                        possesses data in electronic form containing 
                        personal information of fewer than 10,000 
                        individuals and direct notification is not 
                        feasible due to excessive cost to the covered 
                        entity required to provide such notification 
                        relative to the resources of such covered 
                        entity, as determined in accordance with the 
                        regulations issued by the Commission under 
                        paragraph (3)(A).
                    (B) Method of substitute notification.--Substitute 
                notification under this paragraph shall include--
                            (i) conspicuous and clearly identified 
                        notification by e-mail to the extent the 
                        covered entity has an e-mail address for an 
                        individual who is entitled to notification 
                        under subsection (a)(1);
                            (ii) conspicuous and clearly identified 
                        notification on the Internet Web site of the 
                        covered entity if the covered entity maintains 
                        an Internet Web site; and
                            (iii) notification to print and to 
                        broadcast media, including major media in 
                        metropolitan and rural areas where the 
                        individuals whose personal information was 
                        acquired reside.
                    (C) Content of substitute notification.--Each 
                method of substitute notification under this paragraph 
                shall include--
                            (i) the date, estimated date, or estimated 
                        date range of the breach of security;
                            (ii) a description of each type of personal 
                        information that was or is reasonably believed 
                        to have been acquired or accessed as a result 
                        of the breach of security;
                            (iii) notice that an individual may be 
                        entitled to consumer credit reports under 
                        subsection (e)(1);
                            (iv) instructions how an individual can 
                        request consumer credit reports under 
                        subsection (e)(1);
                            (v) a telephone number that an individual 
                        can use at no cost to the individual to contact 
                        the covered entity to inquire about the breach 
                        of security or the information the covered 
                        entity maintained or possessed about that 
                        individual;
                            (vi) a telephone number, that an individual 
                        can use at no cost to the individual, and an 
                        address to contact each major credit reporting 
                        agency; and
                            (vii) a telephone number, that an 
                        individual can use at no cost to the 
                        individual, and an Internet Web site address to 
                        obtain information regarding identity theft 
                        from the Commission.
            (3) Regulations and guidance.--
                    (A) Regulations.--Not later than 1 year after the 
                date of enactment of this Act, the Commission, by 
                regulation under section 553 of title 5, United States 
                Code, shall establish criteria for determining 
                circumstances under which substitute notification may 
                be provided under paragraph (2), including criteria for 
                determining if direct notification under paragraph (1) 
                is not feasible due to excessive costs to the covered 
                entity required to provide such notification relative 
                to the resources of such covered entity. The 
                regulations may also identify other circumstances where 
                substitute notification would be appropriate, including 
                circumstances under which the cost of providing direct 
                notification exceeds the benefits to consumers.
                    (B) Guidance.--In addition, the Commission, in 
                consultation with the Small Business Administration, 
                shall provide and publish general guidance with respect 
                to compliance with this subsection. The guidance shall 
                include--
                            (i) a description of written or e-mail 
                        notification that complies with paragraph (1); 
                        and
                            (ii) guidance on the content of substitute 
                        notification under paragraph (2), including the 
                        extent of notification to print and broadcast 
                        media that complies with paragraph (2)(B)(iii).
    (e) Other Obligations Following Breach.--
            (1) In general.--Not later than 60 days after the date of 
        request by an individual who received notification under 
        subsection (a)(1) and quarterly thereafter for 2 years, a 
        covered entity required to provide notification under 
        subsection (a)(1) shall provide, or arrange for the provision 
        of, to the individual at no cost, consumer credit reports from 
        at least 1 major credit reporting agency.
            (2) Limitation.--This subsection shall not apply if the 
        only personal information that is the subject of the breach of 
        security is the individual's first name or initial and last 
        name, or address, or phone number, in combination with a credit 
        or debit card number, and any required security code.
            (3) Rulemaking.--The Commission's rulemaking under 
        subsection (d)(3) shall include--
                    (A) determination of the circumstances under which 
                a covered entity required to provide notification under 
                subsection (a)(1) must provide or arrange for the 
                provision of free consumer credit reports; and
                    (B) establishment of a simple process under which a 
                covered entity that is a small business or small 
                nonprofit organization may request a full or a partial 
                waiver or a modified or an alternative means of 
                complying with this subsection if providing free 
                consumer credit reports is not feasible due to 
                excessive costs relative to the resources of such 
                covered entity and relative to the level of harm, to 
                affected individuals, caused by the breach of security.
    (f) Delay of Notification Authorized for National Security and Law 
Enforcement Purposes.--
            (1) In general.--If the United States Secret Service or the 
        Federal Bureau of Investigation determines that notification 
        under this section would impede a criminal investigation or a 
        national security activity, notification shall be delayed upon 
        written notice from the United States Secret Service or the 
        Federal Bureau of Investigation to the covered entity that 
        experienced the breach of security. Written notice from the 
        United States Secret Service or the Federal Bureau of 
        Investigation shall specify the period of delay requested for 
        national security or law enforcement purposes.
            (2) Subsequent delay of notification.--
                    (A) In general.--A covered entity shall provide 
                notification under this section not later than 30 days 
                after the day that the delay was invoked unless a 
                Federal law enforcement or intelligence agency provides 
                subsequent written notice to the covered entity that 
                further delay is necessary.
                    (B) Written justification requirements.--
                            (i) United states secret service.--If the 
                        United States Secret Service instructs a 
                        covered entity to delay notification under this 
                        section beyond the 30-day period under 
                        subparagraph (A) (referred to in this clause as 
                        ``subsequent delay''), the United States Secret 
                        Service shall submit written justification for 
                        the subsequent delay to the Secretary of 
                        Homeland Security before the subsequent delay 
                        begins.
                            (ii) Federal bureau of investigation.--If 
                        the Federal Bureau of Investigation instructs a 
                        covered entity to delay notification under this 
                        section beyond the 30-day period under 
                        subparagraph (A) (referred to in this clause as 
                        ``subsequent delay''), the Federal Bureau of 
                        Investigation shall submit written 
                        justification for the subsequent delay to the 
                        Attorney General before the subsequent delay 
                        begins.
            (3) Law enforcement immunity.--No cause of action shall lie 
        in any court against any Federal agency for acts relating to 
        the delay of notification for national security or law 
        enforcement purposes under this Act.
    (g) General Exemption.--
            (1) In general.--A covered entity shall be exempt from the 
        requirements under this section if, following a breach of 
        security, the covered entity reasonably concludes that there is 
        no reasonable risk of identity theft, fraud, or other unlawful 
        conduct.
            (2) Presumption.--
                    (A) In general.--There shall be a presumption that 
                no reasonable risk of identity theft, fraud, or other 
                unlawful conduct exists following a breach of security 
                if--
                            (i) the data is rendered unusable, 
                        unreadable, or indecipherable through a 
                        security technology or methodology; and
                            (ii) the security technology or methodology 
                        under clause (i) is generally accepted by 
                        experts in the information security field.
                    (B) Rebuttal.--The presumption under subparagraph 
                (A) may be rebutted by facts demonstrating that the 
                security technology or methodology in a specific case 
                has been or is reasonably likely to be compromised.
            (3) Technologies or methodologies.--Not later than 1 year 
        after the date of enactment of this Act, and biennially 
        thereafter, the Commission, after consultation with the 
        National Institute of Standards and Technology, shall issue 
        rules (pursuant to section 553 of title 5, United States Code) 
        or guidance to identify each security technology and 
        methodology under paragraph (2). In identifying each such 
        security technology and methodology, the Commission and the 
        National Institute of Standards and Technology shall--
                    (A) consult with relevant industries, consumer 
                organizations, data security and identity theft 
                prevention experts, and established standards setting 
                bodies; and
                    (B) consider whether and in what circumstances a 
                security technology or methodology currently in use, 
                such as encryption, complies with the standards under 
                paragraph (2).
            (4) Commission guidance.--Not later than 1 year after the 
        date of enactment of this Act, the Commission, after 
        consultation with the National Institute of Standards and 
        Technology, shall issue guidance regarding the application of 
        the exemption under paragraph (1).
    (h) Exemptions for National Security and Law Enforcement 
Purposes.--
            (1) In general.--A covered entity shall be exempt from the 
        requirements under this section if--
                    (A) a determination is made--
                            (i) by the United States Secret Service or 
                        the Federal Bureau of Investigation that 
                        notification of the breach of security could be 
                        reasonably expected to reveal sensitive sources 
                        and methods or similarly impede the ability of 
                        the Government to conduct law enforcement or 
                        intelligence investigations; or
                            (ii) by the Federal Bureau of Investigation 
                        that notification of the breach of security 
                        could be reasonably expected to cause damage to 
                        the national security; and
                    (B) the United States Secret Service or the Federal 
                Bureau of Investigation, as the case may be, provides 
                written notice of its determination under subparagraph 
                (A) to the covered entity.
            (2) United states secret service.--If the United States 
        Secret Service invokes an exemption under paragraph (1), the 
        United States Secret Service shall submit written justification 
        for invoking the exemption to the Secretary of Homeland 
        Security before the exemption is invoked.
            (3) Federal bureau of investigation.--If the Federal Bureau 
        of Investigation invokes an exemption under paragraph (1), the 
        Federal Bureau of Investigation shall submit written 
        justification for invoking the exemption to the Attorney 
        General before the exemption is invoked.
            (4) Immunity.--No cause of action shall lie in any court 
        against any Federal agency for acts relating to the exemption 
        from notification for national security or law enforcement 
        purposes under this Act.
            (5) Reports.--Not later than 18 months after the date of 
        enactment of this Act, and upon request by Congress thereafter, 
        the United States Secret Service and Federal Bureau of 
        Investigation shall submit to Congress a report on the number 
        and nature of breaches of security subject to the exemptions 
        for national security and law enforcement purposes under this 
        subsection.
    (i) Financial Fraud Prevention Exemption.--
            (1) In general.--A covered entity shall be exempt from the 
        requirements under this section if the covered entity utilizes 
        or participates in a security program that--
                    (A) effectively blocks the use of the personal 
                information to initiate an unauthorized financial 
                transaction before it is charged to the account of the 
                individual; and
                    (B) provides notice to each affected individual 
                after a breach of security that resulted in attempted 
                fraud or an attempted unauthorized transaction.
            (2) Limitations.--An exemption under paragraph (1) shall 
        not apply if--
                    (A) the breach of security includes personal 
                information, other than a credit card number or credit 
                card security code, of any type; or
                    (B) the breach of security includes both the 
                individual's credit card number and the individual's 
                first and last name.
    (j) Financial Institutions Regulated by Federal Functional 
Regulators.--
            (1) In general.--A covered financial institution shall be 
        deemed in compliance with this section if--
                    (A) the Federal functional regulator with 
                jurisdiction over the covered financial institution has 
                issued a standard by regulation or guideline under 
                title V of the Gramm-Leach-Bliley Act (15 U.S.C. 6801 
                et seq.) that--
                            (i) requires financial institutions within 
                        its jurisdiction to provide notification to 
                        individuals following a breach of security; and
                            (ii) provides protections substantially 
                        similar to, or greater than, those required 
                        under this Act; and
                    (B) the covered financial institution is in 
                compliance with the standard under subparagraph (A).
            (2) Definitions.--In this subsection--
                    (A) the term ``covered financial institution'' 
                means a financial institution that is subject to--
                            (i) the data security requirements of the 
                        Gramm-Leach-Bliley Act (15 U.S.C. 6801 et 
                        seq.);
                            (ii) any implementing standard issued by 
                        regulation or guideline issued under that Act; 
                        and
                            (iii) the jurisdiction of a Federal 
                        functional regulator under that Act;
                    (B) the term ``Federal functional regulator'' has 
                the meaning given the term in section 509 of the Gramm-
                Leach-Bliley Act (15 U.S.C. 6809); and
                    (C) the term ``financial institution'' has the 
                meaning given the term in section 509 of the Gramm-
                Leach-Bliley Act (15 U.S.C. 6809).
    (k) Exemption; Health Privacy.--
            (1) Covered entity or business associate under hitech 
        act.--To the extent that a covered entity under this Act acts 
        as a covered entity or a business associate under section 13402 
        of the Health Information Technology for Economic and Clinical 
        Health Act (42 U.S.C. 17932), has the obligation to provide 
        notification to individuals following a breach of security 
        under that Act or its implementing regulations, and is in 
        compliance with that obligation, the covered entity shall be 
        deemed in compliance with this section.
            (2) Entity subject to hitech act.--To the extent that a 
        covered entity under this Act acts as a vendor of personal 
        health records, a third party service provider, or other entity 
        subject to section 13407 of the Health Information Technology 
        for Economical and Clinical Health Act (42 U.S.C. 17937), has 
        the obligation to provide notification to individuals following 
        a breach of security under that Act or its implementing 
        regulations, and is in compliance with that obligation, the 
        covered entity shall be deemed in compliance with this section.
            (3) Limitation of statutory construction.--Nothing in this 
        Act may be construed in any way to give effect to the sunset 
        provision under section 13407(g)(2) of the Health Information 
        Technology for Economic and Clinical Health Act (42 U.S.C. 
        17937(g)(2)) or to otherwise limit or affect the applicability, 
        under section 13407 of that Act, of the requirement to provide 
        notification to individuals following a breach of security for 
        vendors of personal health records and each entity described in 
        clause (ii), (iii), or (iv) of section 13424(b)(1)(A) of that 
        Act (42 U.S.C. 17953(b)(1)(A)).
    (l) Web Site Notice of Federal Trade Commission.--If the 
Commission, upon receiving notification of any breach of security that 
is reported to the Commission, finds that notification of the breach of 
security via the Commission's Internet Web site would be in the public 
interest or for the protection of consumers, the Commission shall place 
such a notice in a clear and conspicuous location on its Internet Web 
site.
    (m) FTC Study on Notification in Languages in Addition to 
English.--Not later than 1 year after the date of enactment of this 
Act, the Commission shall conduct a study on the practicality and cost 
effectiveness of requiring the direct notification required by 
subsection (d)(1) to be provided in a language in addition to English 
to individuals known to speak only such other language.
    (n) General Rulemaking Authority.--The Commission may promulgate 
regulations necessary under section 553 of title 5, United States Code, 
to effectively enforce the requirements of this section.

SEC. 4. NOTICE TO LAW ENFORCEMENT.

    (a) Designation of Government Entity To Receive Notice.--Not later 
than 60 days after the date of enactment of this Act, the Secretary of 
the Department of Homeland Security shall designate a Federal 
Government entity to receive notice under this section.
    (b) Notice.--A covered entity shall notify the designated entity of 
a breach of security if--
            (1) the number of individuals whose personal information 
        was, or is reasonably believed to have been, acquired or 
        assessed as a result of the breach of security exceeds 10,000;
            (2) the breach of security involves a database, networked 
        or integrated databases, or other data system containing the 
        personal information of more than 1,000,000 individuals;
            (3) the breach of security involves databases owned by the 
        Federal Government; or
            (4) the breach of security involves primarily personal 
        information of individuals known to the covered entity to be 
        employees or contractors of the Federal Government involved in 
        national security or law enforcement.
    (c) Content of Notices.--
            (1) In general.--Each notice under subsection (b) shall 
        contain--
                    (A) the date, estimated date, or estimated date 
                range of the breach of security;
                    (B) a description of the nature of the breach of 
                security;
                    (C) a description of each type of personal 
                information that was or is reasonably believed to have 
                been acquired or accessed as a result of the breach of 
                security; and
                    (D) a statement of each paragraph under subsection 
                (b) that applies to the breach of security.
            (2) Construction.--Nothing in this section shall be 
        construed to require a covered entity to reveal specific or 
        identifying information about an individual as part of the 
        notice under paragraph (1).
    (d) Responsibilities of the Designated Entity.--The designated 
entity shall promptly provide each notice it receives under subsection 
(b) to--
            (1) the United States Secret Service;
            (2) the Federal Bureau of Investigation;
            (3) the Federal Trade Commission;
            (4) the United States Postal Inspection Service, if the 
        breach of security involves mail fraud;
            (5) the attorney general of each State affected by the 
        breach of security; and
            (6) as appropriate, other Federal agencies for law 
        enforcement, national security, or data security purposes.
    (e) Timing of Notices.--Notice under this section shall be 
delivered as follows:
            (1) Notice under subsection (b) shall be delivered as 
        promptly as possible, but--
                    (A) not less than 3 business days before 
                notification to an individual under section 3; and
                    (B) not later than 10 days after the date of 
                discovery of the events requiring notice.
            (2) Notice under subsection (d) shall be delivered as 
        promptly as possible, but not later than 1 business day after 
        the date that the designated entity receives notice of a breach 
        of security from a covered entity.

SEC. 5. APPLICATION AND ENFORCEMENT.

    (a) General Application.--The requirements of sections 2 and 3 
shall apply to--
            (1) those persons, partnerships, or corporations over which 
        the Commission has authority under section 5(a)(2) of the 
        Federal Trade Commission Act (15 U.S.C. 45(a)(2)); and
            (2) notwithstanding sections 4 and 5(a)(2) of the Federal 
        Trade Commission Act (15 U.S.C. 44 and 45(a)(2)), any nonprofit 
        organization, including any organization described in section 
        501(c) of the Internal Revenue Code of 1986 that is exempt from 
        taxation under section 501(a) of the Internal Revenue Code of 
        1986.
    (b) Opt-In for Certain Other Entities.--
            (1) In general.--Notwithstanding sections 4 and 5(a)(2) of 
        the Federal Trade Commission Act (15 U.S.C. 44 and 45(a)(2)), 
        the requirements of section 3 shall apply to any other covered 
        entity not included under subsection (a) that enters into an 
        agreement with the Commission under which that covered entity 
        would be subject to section 3 with respect to any acts or 
        omissions that occur while the agreement is in effect and that 
        may constitute a violation of section 3, if--
                    (A) not less than 30 days prior to entering into 
                the agreement with the covered entity, the Commission 
                publishes notice in the Federal Register of the 
                Commission's intent to enter into the agreement; and
                    (B) not later than 14 business days after entering 
                into the agreement with the covered entity, the 
                Commission publishes in the Federal Register--
                            (i) notice of the agreement;
                            (ii) the identity of each person covered by 
                        the agreement; and
                            (iii) the effective date of the agreement.
            (2) Construction.--
                    (A) Other federal law.--An agreement under 
                paragraph (1) shall not effect a covered entity's 
                obligation to provide notice of a breach of security or 
                similar event under any other Federal law.
                    (B) No preemption prior to valid agreement.--
                Subsections (a)(2) and (b) of section 7 shall not apply 
                to a breach of security that occurs before a valid 
                agreement under paragraph (1) is in effect.
    (c) Enforcement by the Federal Trade Commission.--
            (1) Unfair or deceptive acts or practices.--A violation of 
        section 2 or 3 of this Act shall be treated as an unfair and 
        deceptive act or practice in violation of a regulation under 
        section 18(a)(1)(B) of the Federal Trade Commission Act (15 
        U.S.C. 57a(a)(1)(B)) regarding unfair or deceptive acts or 
        practices.
            (2) Violation of title v of the gramm-leach-bliley act.--A 
        violation of a regulation prescribed by the Commission under 
        title V of the Gramm-Leach-Bliley Act for the financial 
        institutions subject to the Commission's jurisdiction (15 
        U.S.C. 6801 et seq.) shall be treated as an unfair and 
        deceptive act or practice in violation of a regulation under 
        section 18(a)(1)(B) of the Federal Trade Commission Act (15 
        U.S.C. 57a(a)(1)(B)) regarding unfair or deceptive acts or 
        practices.
            (3) Powers of commission.--The Commission shall enforce 
        this Act in the same manner, by the same means, with the same 
        jurisdiction, except as provided in subsections (a)(2) and (b) 
        of this section, and with the same powers and duties as though 
        all applicable terms and provisions of the Federal Trade 
        Commission Act (15 U.S.C. 41 et seq.) were incorporated into 
        and made a part of this Act. Any covered entity who violates 
        such regulations shall be subject to the penalties and entitled 
        to the privileges and immunities provided in that Act.
            (4) Limitation.--In promulgating rules under this Act, the 
        Commission shall not require the deployment or use of any 
        specific products or technologies, including any specific 
        computer software or hardware.
    (d) Enforcement by State Attorneys General.--
            (1) Civil action.--In any case in which the attorney 
        general of a State, or an official or agency of a State, has 
        reason to believe that an interest of the residents of that 
        State has been or is threatened or adversely affected by any 
        covered entity who violates section 2 or section 3 of this Act, 
        the attorney general, official, or agency of the State, as 
        parens patriae, may bring a civil action on behalf of the 
        residents of the State in a district court of the United States 
        of appropriate jurisdiction--
                    (A) to enjoin further violation of such section by 
                the defendant;
                    (B) to compel compliance with such section; or
                    (C) to obtain civil penalties in the amount 
                determined under paragraph (2).
            (2) Civil penalties.--
                    (A) Calculation.--
                            (i) Treatment of violations of section 2.--
                        For purposes of paragraph (1)(C) with regard to 
                        a violation of section 2, the amount determined 
                        under this paragraph is the amount calculated 
                        by multiplying the number of days that a 
                        covered entity is not in compliance with such 
                        section by an amount not greater than $11,000.
                            (ii) Treatment of violations of section 
                        3.--For purposes of paragraph (1)(C) with 
                        regard to a violation of section 3, the amount 
                        determined under this paragraph is the amount 
                        calculated by multiplying the number of 
                        violations of such section by an amount not 
                        greater than $11,000. Each failure to send 
                        notification as required under section 3 to a 
                        resident of the State shall be treated as a 
                        separate violation.
                    (B) Adjustment for inflation.--Beginning on the 
                date that the Consumer Price Index is first published 
                by the Bureau of Labor Statistics that is after 1 year 
                after the date of enactment of this Act, and each year 
                thereafter, the amounts specified in clauses (i) and 
                (ii) of subparagraph (A) and in clauses (i) and (ii) of 
                subparagraph (C) shall be increased by the percentage 
                increase in the Consumer Price Index published on that 
                date from the Consumer Price Index published the 
                previous year.
                    (C) Maximum total liability.--Notwithstanding the 
                number of actions which may be brought against a 
                covered entity under this subsection, the maximum civil 
                penalty for which any covered entity may be liable 
                under this subsection shall not exceed--
                            (i) $5,000,000 for each violation of 
                        section 2; and
                            (ii) $5,000,000 for all violations of 
                        section 3 resulting from a single breach of 
                        security.
            (3) Intervention by the ftc.--
                    (A) Notice and intervention.--The State shall 
                provide prior written notice of any action under 
                paragraph (1) to the Commission and provide the 
                Commission with a copy of its complaint, except in any 
                case in which such prior notice is not feasible, in 
                which case the State shall serve such notice 
                immediately upon commencing such action. The Commission 
                shall have the right--
                            (i) to intervene in the action;
                            (ii) upon so intervening, to be heard on 
                        all matters arising therein; and
                            (iii) to file petitions for appeal.
                    (B) Limitation on state action while federal action 
                is pending.--If the Commission has instituted a civil 
                action for violation of this Act, no State attorney 
                general, or official or agency of a State, may bring an 
                action under this subsection during the pendency of 
                that action against any defendant named in the 
                complaint of the Commission for any violation of this 
                Act alleged in the complaint.
            (4) Construction.--For purposes of bringing any civil 
        action under paragraph (1), nothing in this Act shall be 
        construed to prevent an attorney general of a State from 
        exercising the powers conferred on the attorney general by the 
        laws of that State--
                    (A) to conduct investigations;
                    (B) to administer oaths or affirmations; or
                    (C) to compel the attendance of witnesses or the 
                production of documentary and other evidence.
    (e) Notice to Law Enforcement; Civil Enforcement by Attorney 
General.--
            (1) In general.--The Attorney General may bring a civil 
        action in the appropriate United States district court against 
        any covered entity that engages in conduct constituting a 
        violation of section 4.
            (2) Penalties.--
                    (A) In general.--Upon proof of such conduct by a 
                preponderance of the evidence, a covered entity shall 
                be subject to a civil penalty of not more than $1,000 
                per individual whose personal information was or is 
                reasonably believed to have been accessed or acquired 
                as a result of the breach of security that is the basis 
                of the violation, up to a maximum of $100,000 per day 
                while such violation persists.
                    (B) Limitations.--The total amount of the civil 
                penalty assessed under this subsection against a 
                covered entity for acts or omissions relating to a 
                single breach of security shall not exceed $1,000,000, 
                unless the conduct constituting a violation of section 
                4 was willful or intentional, in which case an 
                additional civil penalty of up to $1,000,000 may be 
                imposed.
                    (C) Adjustment for inflation.--Beginning on the 
                date that the Consumer Price Index is first published 
                by the Bureau of Labor Statistics that is after 1 year 
                after the date of enactment of this Act, and each year 
                thereafter, the amounts specified in subparagraphs (A) 
                and (B) shall be increased by the percentage increase 
                in the Consumer Price Index published on that date from 
                the Consumer Price Index published the previous year.
            (3) Injunctive actions.--If it appears that a covered 
        entity has engaged, or is engaged, in any act or practice that 
        constitutes a violation of section 4, the Attorney General may 
        petition an appropriate United States district court for an 
        order enjoining such practice or enforcing compliance with 
        section 4.
            (4) Issuance of order.--A court may issue such an order 
        under paragraph (3) if it finds that the conduct in question 
        constitutes a violation of section 4.
    (f) Concealment of Breaches of Security.--
            (1) In general.--Chapter 47 of title 18, United States 
        Code, is amended by adding at the end the following:
``Sec. 1041. Concealment of breaches of security involving personal 
              information
    ``(a) In General.--Any person who, having knowledge of a breach of 
security and of the fact that notification of the breach of security is 
required under the Data Security and Breach Notification Act, 
intentionally and willfully conceals the fact of the breach of 
security, shall, in the event that the breach of security results in 
economic harm to any individual in the amount of $1,000 or more, be 
fined under this title, imprisoned for not more than 5 years, or both.
    ``(b) Person Defined.--For purposes of subsection (a), the term 
`person' has the same meaning as in section 1030(e)(12) of this title.
    ``(c) Enforcement Authority.--
            ``(1) In general.--The United States Secret Service and the 
        Federal Bureau of Investigation shall have the authority to 
        investigate offenses under this section.
            ``(2) Construction.--The authority granted in paragraph (1) 
        shall not be exclusive of any existing authority held by any 
        other Federal agency.''.
            (2) Conforming and technical amendments.--The table of 
        sections for chapter 47 of title 18, United States Code, is 
        amended by adding at the end the following:

``1041. Concealment of breaches of security involving personal 
                            information.''.

SEC. 6. DEFINITIONS.

    In this Act:
            (1) Breach of security.--
                    (A) In general.--The term ``breach of security'' 
                means compromise of the security, confidentiality, or 
                integrity of, or loss of, data in electronic form that 
                results in, or there is a reasonable basis to conclude 
                has resulted in, unauthorized access to or acquisition 
                of personal information from a covered entity.
                    (B) Exclusions.--The term ``breach of security'' 
                does not include--
                            (i) a good faith acquisition of personal 
                        information by a covered entity, or an employee 
                        or agent of a covered entity, if the personal 
                        information is not subject to further use or 
                        unauthorized disclosure;
                            (ii) any lawfully authorized investigative, 
                        protective, or intelligence activity of a law 
                        enforcement or an intelligence agency of the 
                        United States, a State, or a political 
                        subdivision of a State; or
                            (iii) the release of a public record not 
                        otherwise subject to confidentiality or 
                        nondisclosure requirements.
            (2) Commission.--The term ``Commission'' means the Federal 
        Trade Commission.
            (3) Covered entity.--The term ``covered entity'' means a 
        sole proprietorship, partnership, corporation, trust, estate, 
        cooperative, association, or other commercial entity, and any 
        charitable, educational, or nonprofit organization, that 
        acquires, maintains, or utilizes personal information.
            (4) Data in electronic form.--The term ``data in electronic 
        form'' means any data stored electronically or digitally on any 
        computer system or other database, including recordable tapes 
        and other mass storage devices.
            (5) Designated entity.--The term ``designated entity'' 
        means the Federal Government entity designated by the Secretary 
        of Homeland Security under section 4.
            (6) Encryption.--The term ``encryption'' means the 
        protection of data in electronic form in storage or in transit 
        using an encryption technology that has been adopted by an 
        established standards setting body which renders such data 
        indecipherable in the absence of associated cryptographic keys 
        necessary to enable decryption of such data. Such encryption 
        must include appropriate management and safeguards of such keys 
        to protect the integrity of the encryption.
            (7) Identity theft.--The term ``identity theft'' means the 
        unauthorized use of another person's personal information for 
        the purpose of engaging in commercial transactions under the 
        identity of such other person, including any contact that 
        violates section 1028A of title 18, United States Code.
            (8) Major credit reporting agency.--The term ``major credit 
        reporting agency'' means a consumer reporting agency that 
        compiles and maintains files on consumers on a nationwide basis 
        within the meaning of section 603(p) of the Fair Credit 
        Reporting Act (15 U.S.C. 1681a(p)).
            (9) Personal information.--
                    (A) Definition.--The term ``personal information'' 
                means any information or compilation of information 
                that includes--
                            (i) a non-truncated social security number;
                            (ii) a financial account number or credit 
                        or debit card number in combination with any 
                        security code, access code, or password that is 
                        required for an individual to obtain credit, 
                        withdraw funds, or engage in a financial 
                        transaction; or
                            (iii) an individual's first and last name 
                        or first initial and last name in combination 
                        with--
                                    (I) a driver's license number, a 
                                passport number, or an alien 
                                registration number, or other similar 
                                number issued on a government document 
                                used to verify identity;
                                    (II) unique biometric data such as 
                                a finger print, voice print, retina or 
                                iris image, or any other unique 
                                physical representation;
                                    (III) a unique account identifier, 
                                electronic identification number, user 
                                name, or routing code in combination 
                                with any associated security code, 
                                access code, or password that is 
                                required for an individual to obtain 
                                money, goods, services, or any other 
                                thing of value; or
                                    (IV) two of the following:
                                            (aa) Home address or 
                                        telephone number.
                                            (bb) Mother's maiden name, 
                                        if identified as such.
                                            (cc) Month, day, and year 
                                        of birth.
                    (B) Modified definition by rulemaking.--If the 
                Commission determines that the definition under 
                subparagraph (A) is not reasonably sufficient to 
                protect individuals from identity theft, fraud, or 
                other unlawful conduct, the Commission by rule 
                promulgated under section 553 of title 5, United States 
                Code, may modify the definition of ``personal 
                information'' under subparagraph (A) to the extent the 
                modification will not unreasonably impede interstate 
                commerce.

SEC. 7. EFFECT ON OTHER LAWS.

    (a) Preemption of State Information Security Laws.--
            (1) Covered entities under section 5(a).--With respect to a 
        covered entity subject to the Act under section 5(a), this Act 
        supersedes any provision of a statute, regulation, or rule of a 
        State or political subdivision of a State that expressly--
                    (A) requires information security practices and 
                treatment of data containing personal information, as 
                defined in section 6, similar to any of those required 
                under section 2; or
                    (B) requires notification to individuals of a 
                breach of security of personal information as defined 
                in section 6.
            (2) Covered entities under section 5(b).--With respect to a 
        covered entity subject to the Act under section 5(b), this Act 
        supersedes any provision of a statute, regulation, or rule of a 
        State or political subdivision of a State that expressly 
        requires notification to individuals of a breach of security of 
        personal information as defined in section 6.
    (b) Additional Preemption.--
            (1) In general.--No person other than a person specified in 
        section 5(d) may bring a civil action under the laws of any 
        State if such action is premised in whole or in part upon the 
        defendant violating any provision of this Act.
            (2) Protection of consumer protection laws.--Except as 
        provided in subsection (a) of this section, this subsection 
        shall not be construed to limit the enforcement of any State 
        consumer protection law by an attorney general of a State.
    (c) Protection of Certain State Laws.--This Act shall not be 
construed to preempt the applicability of--
            (1) State trespass, contract, or tort law; or
            (2) any other State laws to the extent that those laws 
        relate to acts of fraud.
    (d) Preservation of FTC Authority.--Nothing in this Act may be 
construed in any way to limit or affect the Commission's authority 
under any other provision of law.

SEC. 8. EFFECTIVE DATE.

    This Act and the amendments made by this Act shall take effect 1 
year after the date of enactment of this Act.
                                 <all>

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