Privacy Law and Policy : Privacy Lawyer & Attorney : Kevin Whitaker Law Firm : Patient Confidentiality, Defamation, Identity Theft : Privacy Law & Policy Blog

Massachusetts Senate Bill No. 173 (PDF file) introduced by Senator Michale W. Morrissey this year, would amend M.G.L. 93H and effectively water down the Office of Consumer Affairs and Business Regulation's (OCABR) authority on a few fronts. I'm taking each one up in a separate post. Today, I'll address a proposed change that involves encryption and specific technologies and adds the following language,

The department [OCABR] shall not in its regulations, however, require covered persons to use a specific technology or technologies, or a specific method or methods for protecting personal information.

To put this proposed change in the proper context, you must know OCABR's current regulations require data be encrypted. Unlike today, this proposed change would ensure OCABR is prevented from requiring specific technology or methods be employed. Thus, the proposed amendment effectively guts OCABR's encryption requirement (and its power to do so in regulations). Not only does this weaken the agency helping protect consumers' data, but it takes the bright lines out of the regulations and makes the revised law effectively fuzzy at best. In sum, the change leads to foreseeable ambiguity and real world enforcement problems.

Who does this change really protect?

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Massachusetts Senate Bill No. 173 (PDF file), introduced earlier this year, would amend M.G.L. 93H (MA Data Security Law) and effectively water down the law while reducing the Office of Consumer Affairs and Business Regulation's (OCABR) authority to protect Massachusetts consumers' privacy rights.

These proposed changes to the data protection law are a timely topic as the original MA law was passed following TJX's large-scale data breach. TJX has recently entered into a $9.75 million settlement with 41 states over their data breach. According to the Boston Herald in, TJX to pay states $9.75M in data breach settlement,

The $9.75 million settlement payment includes $2.5 million to establish a data security fund for the states and $1.75 million to cover the states’ investigations into the data breach. Massachusetts will receive more than $950,000 of that money.

The Herald reports, Attorney General Martha Coakley, who was a driving force for all states' involved, said in a statement

Protecting consumers’ personally-identifiable information is of paramount importance to prevent fraudulent use of credit and identity theft.

All retailers and companies that hold or use personally-identifiable information must employ data security systems that guard against the improper disclosure or use of that information. This settlement ensures that companies cannot write-off the risk of a data breach as a cost of doing business.

The Identity Theft Assistance Center (ITAC) blog, in TJX Agrees to Pay $9.75 million to 41 States in Data Breach Case, states:

The company [TJX] also stated in an official news release that it “firmly believes it did not violate any consumer protection or data security laws.” However, California Attorney General Jerry Brown had a different POV [point of view] and cited the company’s 2004 internal audit, which found security vulnerabilities. ... "TJX ignored flaws in its credit card database, until hackers broke into it, gaining access to the personal information of almost 50 million people..."

In the wake of the TJX settlement, under MA Attorney General Coakley's and other attorney generals' realized efforts, it's disappointing to see present attempts to water down the Massachusetts data protection law by state legislators. In coming posts I'll discuss four changes being proposed and how each fails to help consumers or protect individual privacy rights. Thus the title of this series, "An Act Ensuring Less Privacy of Massachusetts Resident's Data" which plays off of the proposed act's title "An Act ensuring the privacy of certain data."

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