Updates on Developments in Data Privacy and Cybersecurity
On December 24, 2024, New York Governor Kathy Hochul signed into law an amendment to New York General Business Law § 899-aa modifying the state’s data breach notification requirements. The amended law, which is effective immediately, imposes new requirements businesses must follow when providing notifications following a data breach affecting New York residents. Specifically, businesses now must disclose data breaches affecting New York residents within thirty days from the discovery of a breach. Additionally, the amendment adds the New York Department of Financial Services (“NYDFS”) to the list of state regulators that must be notified whenever a breach requiring notification to New York residents occurs.
New York’s data breach notification law requires persons and businesses that own or license data containing personal information (“PI”) to notify affected New York residents, certain state regulators, and (in some circumstances) consumer reporting agencies following a “breach” of PI. A separate provision requiring notification to data owners and licensees applies to businesses and persons that maintain but do not own data containing New York residents’ PI.
Prior to the amendment, New York’s data breach notification law did not set an explicit timeframe for data owners to notify residents whose PI was impacted. Instead, the statute called for notification to residents “in the most expedient time possible and without unreasonable delay.” This language is prevalent in state data breach notification statutes, and recent case law is not determinative of what constitutes a reasonable time period between determination of a breach and notification. While New York’s law as amended preserves this language, it eliminates any doubt as to the outer bounds for timeliness by setting a thirty-day limit for notification of breaches involving PI of New York residents.
The thirty-day notification requirement is the shortest among states that establish an explicit deadline for notification to individuals; however, it is not unique. The New York amendment follows the lead of nearly identical provisions found in Colorado, Florida, Maine, and Washington’s data breach notification laws, which also impose a thirty-day limit for notification to individual state residents.
The revised law eliminates language that allowed businesses to delay notification to state residents “consistent with. . . any measures necessary to determine the scope of the breach and restore system integrity”; however, the “legitimate needs of law enforcement” remain valid grounds for delaying notification to affected residents.
The amendment also introduces a thirty-day deadline for businesses that maintain but do not own data containing PI to notify the owner or licensee in the event of a breach. While the prior law required such notification to be made “immediately,” the amendment adds a clarification that, in any event, “such notification shall be made within thirty days following discovery.”
The amendment further adds NYDFS to the list of state government regulators that must be notified in the event of a PI breach affecting New York residents. Prior to the amendment, New York’s law required notice to the State Attorney General, the New York Department of State, and the New York State Police if any New York residents were notified of an incident pursuant to the law. This reporting requirement is distinct from both the 72-hour cybersecurity incident notification requirement and the 24-hour extortion payment notification requirement that apply to NYDFS licensed financial institutions under 23 NYCRR Part 500.
Prior to the December 2024 amendment, the latest change to New York’s data breach notification law was introduced in 2019 via the Stop Hacks and Improve Electronic Data Security (“SHIELD”) Act, which broadened the scope of PI and the definition of breach. The SHIELD Act also expanded the data security provisions applicable to any person or business that owns or licenses data containing New York residents’ PI.
Ashden Fein is a vice chair of the firm’s global Cybersecurity practice. He advises clients on cybersecurity and national security matters, including crisis management and incident response, risk management and governance, government and internal investigations, and regulatory compliance.
For cybersecurity matters, Ashden counsels clients…
Ashden Fein is a vice chair of the firm’s global Cybersecurity practice. He advises clients on cybersecurity and national security matters, including crisis management and incident response, risk management and governance, government and internal investigations, and regulatory compliance.
For cybersecurity matters, Ashden counsels clients on preparing for and responding to cyber-based attacks, assessing security controls and practices for the protection of data and systems, developing and implementing cybersecurity risk management and governance programs, and complying with federal and state regulatory requirements. Ashden frequently supports clients as the lead investigator and crisis manager for global cyber and data security incidents, including data breaches involving personal data, advanced persistent threats targeting intellectual property across industries, state-sponsored theft of sensitive U.S. government information, extortion and ransomware, and destructive attacks.
Additionally, Ashden assists clients from across industries with leading internal investigations and responding to government inquiries related to the U.S. national security and insider risks. He also advises aerospace, defense, and intelligence contractors on security compliance under U.S. national security laws and regulations including, among others, the National Industrial Security Program (NISPOM), U.S. government cybersecurity regulations, FedRAMP, and requirements related to supply chain security.
Before joining Covington, Ashden served on active duty in the U.S. Army as a Military Intelligence officer and prosecutor specializing in cybercrime and national security investigations and prosecutions — to include serving as the lead trial lawyer in the prosecution of Private Chelsea (Bradley) Manning for the unlawful disclosure of classified information to Wikileaks.
Ashden currently serves as a Judge Advocate in the
U.S. Army Reserve.
Micaela McMurrough serves as co-chair of Covington’s global and multi-disciplinary Technology Group, as co-chair of the Artificial Intelligence and Internet of Things (IoT) initiative. In her practice, she has represented clients in high-stakes antitrust, patent, trade secrets, contract, and securities litigation, and other…
Micaela McMurrough serves as co-chair of Covington’s global and multi-disciplinary Technology Group, as co-chair of the Artificial Intelligence and Internet of Things (IoT) initiative. In her practice, she has represented clients in high-stakes antitrust, patent, trade secrets, contract, and securities litigation, and other complex commercial litigation matters, and she regularly represents and advises domestic and international clients on cybersecurity and data privacy issues, including cybersecurity investigations and cyber incident response. Micaela has advised clients on data breaches and other network intrusions, conducted cybersecurity investigations, and advised clients regarding evolving cybersecurity regulations and cybersecurity norms in the context of international law.
In 2016, Micaela was selected as one of thirteen Madison Policy Forum Military-Business Cybersecurity Fellows. She regularly engages with government, military, and business leaders in the cybersecurity industry in an effort to develop national strategies for complex cyber issues and policy challenges. Micaela previously served as a United States Presidential Leadership Scholar, principally responsible for launching a program to familiarize federal judges with various aspects of the U.S. national security structure and national intelligence community.
Prior to her legal career, Micaela served in the Military Intelligence Branch of the United States Army. She served as Intelligence Officer of a 1,200-member maneuver unit conducting combat operations in Afghanistan and was awarded the Bronze Star.
Caleb Skeath advises clients on a broad range of cybersecurity and privacy issues, including cybersecurity incident response, cybersecurity and privacy compliance obligations, internal investigations, regulatory inquiries, and defending against class-action litigation. Caleb holds a Certified Information Systems Security Professional (CISSP) certification.
Caleb specializes in assisting…
Caleb Skeath advises clients on a broad range of cybersecurity and privacy issues, including cybersecurity incident response, cybersecurity and privacy compliance obligations, internal investigations, regulatory inquiries, and defending against class-action litigation. Caleb holds a Certified Information Systems Security Professional (CISSP) certification.
Caleb specializes in assisting clients in responding to a wide variety of cybersecurity incidents, ranging from advanced persistent threats to theft or misuse of personal information or attacks utilizing destructive malware. Such assistance may include protecting the response to, and investigation of an incident under the attorney-client privilege, supervising response or investigation activities and interfacing with IT or information security personnel, and advising on engagement with internal stakeholders, vendors, and other third parties to maximize privilege protections, including the negotiation of appropriate contractual terms. Caleb has also advised numerous clients on assessing post-incident notification obligations under applicable state and federal law, developing communications strategies for internal and external stakeholders, and assessing and protecting against potential litigation or regulatory risk following an incident. In addition, he has advised several clients on responding to post-incident regulatory inquiries, including inquiries from the Federal Trade Commission and state Attorneys General.
In addition to advising clients following cybersecurity incidents, Caleb also assists clients with pre-incident cybersecurity compliance and preparation activities. He reviews and drafts cybersecurity policies and procedures on behalf of clients, including drafting incident response plans and advising on training and tabletop exercises for such plans. Caleb also routinely advises clients on compliance with cybersecurity guidance and best practices, including “reasonable” security practices.
Caleb also maintains an active privacy practice, focusing on advising technology, education, financial, and other clients on compliance with generally applicable and sector-specific federal and state privacy laws, including FERPA, FCRA, GLBA, TCPA, and COPPA. He has assisted clients in drafting and reviewing privacy policies and terms of service, designing products and services to comply with applicable privacy laws while maximizing utility and user experience, and drafting and reviewing contracts or other agreements for potential privacy issues.
Moriah Daugherty advises clients on a broad range of cybersecurity, data privacy, and national security matters, including government and internal investigations, regulatory inquiries, litigation, and compliance with state and federal privacy laws.
As part of her cybersecurity practice, Moriah specializes in assisting clients…
Moriah Daugherty advises clients on a broad range of cybersecurity, data privacy, and national security matters, including government and internal investigations, regulatory inquiries, litigation, and compliance with state and federal privacy laws.
As part of her cybersecurity practice, Moriah specializes in assisting clients in responding to cybersecurity incidents, including matters involving Advanced Persistent Threats targeting sensitive intellectual property and personally identifiable information. Moriah also assists clients in evaluating existing security controls and practices, assessing information security policies, and preparing for cyber and data security incidents.
As part of her litigation and investigations practice, Moriah leverages her government experience to advise clients on national security and law enforcement related compliance issues, internal investigations, and response to government inquiries.
Prior to becoming a lawyer, Moriah spent eight years working for the Federal Bureau of Investigation and U.S. Department of Justice.
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