Attorney General Urges Congress to Preserve Authority to Enforce State Data Breach and Date Security Laws

Attorney General Jim Hood

Joining a bipartisan effort to ensure that any future federal data breach notification or data security law is effective and provides consumers with the best protection, Attorney General Jim Hood joined a multistate letter on July 7 to the U.S. Congress emphasizing the importance of maintaining states’ authority to enforce data breach and data security laws, and their ability to enact laws to address future data security risks.

Citing recent efforts in Congress to pass a national law on data breach notification and data security, Attorney General Hood, joined by 46 other attorneys general, cautions against federal preemption of state data breach and security law and argues that any federal law must not diminish the important role states already play protecting consumers from data breaches and identity theft, especially in states like Massachusetts whose laws provide greater protections than federal counterparts.

“As the vast majority of my colleagues and I have explained in this letter, any federal data breach protections should be an additional layer of protection for consumers,” said Attorney General Hood. “State laws already in place are critical tools that must not be preempted. Maintaining state laws in addition to any new federal legislation ensures that all breaches – no matter how large or small – can be addressed.”

The letter points out a number of concerns with federal preemption of state data breach and security laws, including:

Data breaches and identity theft continue to cause significant harm to consumers. Since 2005, nearly 5,000 data breaches have compromised more than 815 million records containing sensitive information about consumers – primarily financial account information, Social Security numbers or medical information. Full-blown identity theft involving the use of a Social Security number can cost a consumer $5,100 on average.
Data security vulnerabilities are too common. States frequently encounter circumstances where data breach incidents result from the failure by data collectors to reasonably protect the sensitive data entrusted to them by consumers, putting consumers’ personal information at unnecessary risk. Many of these breaches could have been prevented if the data collector had taken reasonable steps to secure consumers’ data.
States play an important role responding to data breaches and identity theft. The States have been at the frontlines in helping consumers deal with the repercussions of a data breach, providing important assistance to consumers who have been impacted by data breaches or who suffer identity theft or fraud as a result, and investigating the causes of data breaches to determine whether the data collector experiencing the breach had reasonable data security in place. Forty-seven states now have laws requiring data collectors to notify consumers when their personal information has been compromised by a data breach, and a number of states have also passed laws requiring companies to adopt reasonable data security practices.
The letter urges Congress to preserve existing protections under state law, ensure that states can continue to enforce breach notification requirements under their own state laws and enact new laws to respond to new data security threats, and to not hinder states that are helping their residents by preempting state data breach and security laws.

In 2005, 44 state attorneys general—including Attorney General Hood—wrote a similar letter to Congress calling for a national law on breach notification that did not preempt state enforcement or state law.

Attorney General Hood concluded, “In Mississippi, we hear about security breaches on a regular basis. Our office works to ensure that businesses are complying with our security breach notification requirements and providing appropriate levels of protection to consumers whose information has been exposed. If federal law took away state security breach laws like Mississippi’s, we’d be left without a meaningful method to make businesses take action in response to security breaches.”

In addition to Mississippi, the other state and territorial attorneys general offices that signed today’s letter are: Alabama, Alaska, Arizona, Arkansas, California, Connecticut, Delaware, District of Columbia, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Northern Mariana Islands, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia, Washington, and West Virginia.

Click here for a copy of the final letter.