The Data Breach Notification Law requires businesses and others that own or license personal information of residents of Massachusetts to notify the Office of Consumer Affairs and Business Regulation and the Office of Attorney General when they know or have reason to know of a breach of security. They must also provide notice if they know or have reason to know that the personal information of a Massachusetts resident was acquired or used by an unauthorized person, or used for an unauthorized purpose. In addition to providing notice to government agencies, you must also notify the person(s) whose information is at risk.
What is a Data Breach?
A data breach is the unauthorized acquisition or use of sensitive personal information that creates a substantial risk of identity theft or fraud.
Data breaches can be the result of criminal cyber-activity, such as hacking or ransomware, or because of employee error, such as emailing information to the wrong person.
What is personal information?
The law defines personal information as a resident's first name and last name or first initial and last name in combination with any 1 or more of the following data elements that relate to such resident:
- (a) Social Security number;
- (b) driver's license number or state-issued identification card number; or
- (c) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to a resident's financial account.
Personal information does not include information that can be legally obtained from publicly available sources, such as addresses or birthdays.
When does my business need to report a data breach?
Within a reasonable amount of time after either the discovery of a breach or knowledge that personal information was obtained, the business or entity that was breached must notify both the Office of Consumer Affairs and Business Regulation and the Attorney General’s Office of the breach.
The notification must include:
- A detailed description of the nature and circumstances of the breach of security or unauthorized acquisition or use of personal information;
- The number of Massachusetts residents affected as of the time of notification;
- The steps already taken relative to the incident;
- Any steps intended to be taken relative to the incident subsequent to notification; and
- Information regarding whether law enforcement is engaged investigating the incident.
It is important to understand that some breaches are a result of a breach from a third-party vendor or other entity. For example: In addition to the regular reporting requirements, the law also requires financial institutions to report when a debit or credit card they issue is compromised. This means a breach may have occurred at a retailer but if the consumer used their bank issued card, the financial institution reports the breach as well.
Additional Resources for When does my business need to report a data breach?
The Comprehensive Written Information Security Program (WISP)
Every person that owns or licenses personal information about a resident of the Commonwealth must develop, implement, and maintain a comprehensive information security program
After a breach, it’s critical that the business that experienced the breach develop or review their risk-based written information security program that takes into account their business’ size, nature of their business, amount of resources, the type of records it maintains, and the need for security. A risk-based approach is especially important to small businesses that may not handle a lot of personal information about customers.
Additional Resources for The Comprehensive Written Information Security Program (WISP)
Frequently asked questions about protecting personal information
It can be difficult to understand how 201 CMR 17.00 applies to your business. We put together some of the most frequently asked questions to help.