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Legal Update

February 17, 2009

CLIENT ALERT: Massachusetts Data Security Regulations: Deadline for Compliance Delayed Until January 1, 2010 - By Rachel Munoz

On February 12, 2009, the Office of Consumer Affairs and Business Regulation (“OCABR”) issued a new deadline of January 1, 2010, for businesses that maintain personal information to be in compliance with the Standards for the Protection of Personal Information of Residents of the Commonwealth (“regulations”) established by the OCABR. See generally, 201 C.M.R. 17.00, et seq. These regulations mandate that businesses develop, implement, maintain and monitor a comprehensive written information security program to protect personal information.

In 2007, Massachusetts, like forty-four other states, enacted data security laws. Effective
October 31, 2007, Chapter 93H requires notice to the attorney general, the director of the
OCABR, and any affected Massachusetts resident of a data security breach. In early 2008, Chapter 93I set forth the manner in which personal information is to be disposed and destroyed. The amended regulations are discussed below.

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 one or more of the following: (a) social
security number; (b) driver’s license number or Massachusetts identification card number; and/or (c) financial account number, or credit or debit card number.

Who is Covered?

The regulations apply to every “person that owns, licenses, stores or maintains personal
information of a Massachusetts resident.” These regulations are far-reaching and apply
to almost all Massachusetts employers that have personal data of Massachusetts residents,
regardless of whether the business is in Massachusetts.

Security Program

Persons and businesses covered by the data security laws and regulations must have in
place a written “Comprehensive Information Security Program” that is “reasonably
consistent with industry standards.” The program must have administrative, technical,
and physical safeguards to ensure the security and confidentiality of records that contain
personal information.

The Comprehensive Information Security Program requires:

• The designation of one or more employees to maintain the program.

• Risk assessment of all paper, electronic, or other records that contain personal
information, including evaluating and improving the effectiveness of existing
safeguards; this may include:
  • ongoing employee training;
  • monitoring, ensuring, and enforcing employee compliance with all policies and procedures; and
  • a means of detecting and preventing security failures.
• The development of security policies for employees that take into account
whether and how employees are allowed to keep, access, and transport records
containing personal information outside of business premises.

• Disciplining employees that violate the security program.

• Preventing terminated employees’ access to records containing personal
information.

• Limiting the amount collected, time retained, and access to personal information
to only those instances where it reasonably necessary to accomplish the legitimate
purpose for which it is collected, stored, and accessed and to comply with state
and federal law.

• Placing reasonable restrictions on physical access to records that contain personal
information, including implementing a written procedure that describes how such
access is restricted and the secure storage of such records.

• Monitoring and reviewing the operation of the program and upgrading the
information safeguards annually or more frequently if there is a change in
business practices that may reasonably implicate the security and integrity of the
records that contain personal information.

• Addressing third-party service providers. Employers must take “all reasonable
steps” to: 1) “verify that any third-party service provider with access to personal
information has the capacity to protect such personal information” as required by
the regulations; and, 2) “ensure that such third party service provider is applying
to such personal information protective security measures at least as stringent as
those required” by the regulations.

• Implementing a data security breach action plan. Document actions taken in
response to a security breach, as well as any changes made in the policy or other
business practices as a result of the breach. (As mentioned above, Chapter 93H
requires notification to the Attorney General and the OCABR in the event of a
security breach or unauthorized use/acquisition of personal information.)

• Addressing computer system security requirements. As part of the written
information security policy, there must be a security system in place that covers
all computers, including any wireless system. The following elements, at a
minimum, must be in place:
  • Secure user authentication protocols including control of user IDs, secure assignment and selection of passwords, restricting access to passwords, restricting access to active and authorized users only.
  • Secure access control measures that permit access to records and files that contain personal information for only those persons that must access such information to carry out their job duties, assign unique computer identifications and passwords that are reasonably designed to preserve the integrity of the security controls.
  • Encrypt all files and records that contain personal information, which will travel across public networks and wireless systems to the extent feasible. All personal information on laptops or other portable devices must be encrypted.
  • Reasonable monitoring of systems for unauthorized use of access to personal information.
  • Where files containing personal information are on a system connected to the internet, the system must have reasonably up-to-date firewall protection and operating system security patches.
  •  Reasonably-up-to-date versions of such software or software that can receive updates, including malware protection, patches, and virus definitions must be in place on the computer system.
  • Employees must be trained and educated on the proper use of the computer security system and the importance of personal information security.
Compliance Will Be Measured on a Case-by-Case Basis

This overview of the data security laws and regulations touches on the minimum required
of employers that employ Massachusetts residents. Compliance with these regulations
will account for the size, scope, and type of business; the amount of resources available
to the business; the amount of stored data to protect; and, the need for security and
confidentiality of consumer and employee information. See 201 C.M.R. 17.03.  As
compliance will be measured on a case-by-case basis, it is essential that employers begin
taking steps now to ensure compliance by January 1, 2010. If you have questions or
concerns about the data security laws and regulations, please contact your MBJ attorney.


Notice of Schedule Change for Seminar and Updates to Regulations

The seminar, “Massachusetts Personal Information Law: Are You Ready?” originally
scheduled for March 3, 2009 has been rescheduled for the fall of 2009. Details on the rescheduled seminar will be announced as the date approaches.  Finally, it is anticipated that these regulations may continue to evolve, both in substance with respect to the date(s) of implementation. Please check our website for updates, or contact your MBJ attorney for the most up-to-date information.


Rachel Munoz, Esq. is an attorney with Morgan, Brown & Joy, LLP and may be reached at (617) 523-6666 or at rmunoz@morganbrown.com. Morgan, Brown & Joy, LLP
focuses exclusively on representing employers in employment and labor matters.


This publication, which may be considered advertising under the ethical rules of certain jurisdictions, should not be construed as legal advice or a legal opinion on any specific facts or circumstances by Morgan, Brown & Joy, LLP and its attorneys. This newsletter is intended for general information purposes only and you should consult an attorney concerning any specific legal questions you may have.

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