§ 24-73-103 — Governmental entity - notification of security breach

(1) Definitions. As used in this section, unless the context otherwise requires:

(a) Biometric data means unique biometric data generated from
measurements or analysis of human body characteristics for the purpose of
authenticating the individual when he or she accesses an online account.

(b) Determination that a security breach occurred means the point in time
at which there is sufficient evidence to conclude that a security breach has taken
place.

(c) Encrypted means rendered unusable, unreadable, or indecipherable to
an unauthorized person through a security technology or methodology generally
accepted in the field of information security.

(d) Governmental entity means the state and any state agency or
institution, including the judicial department, county, city and county, incorporated
city or town, school district, special improvement district, authority, and every other
kind of district, instrumentality, or political subdivision of the state organized
pursuant to law. Governmental entity includes entities governed by home rule
charters. Governmental entity does not include an entity acting as a third-party
service provider as defined in subsection (1)(i) of this section.

(e) Medical information means any information about a consumer's medical
or mental health treatment or diagnosis by a health-care professional.

(f) Notice means:

(I) Written notice to the postal address listed in the records of the
governmental entity;

(II) Telephonic notice;

(III) Electronic notice, if a primary means of communication by the
governmental entity with a Colorado resident is by electronic means or the notice
provided is consistent with the provisions regarding electronic records and
signatures set forth in the federal Electronic Signatures in Global and National
Commerce Act, 15 U.S.C. sec. 7001 et seq.; or

(IV) Substitute notice, if the governmental entity required to provide notice
demonstrates that the cost of providing notice will exceed two hundred fifty
thousand dollars, the affected class of persons to be notified exceeds two hundred
fifty thousand Colorado residents, or the governmental entity does not have
sufficient contact information to provide notice. Substitute notice consists of all of
the following:

(A) Email notice if the governmental entity has email addresses for the
members of the affected class of Colorado residents;

(B) Conspicuous posting of the notice on the website page of the
governmental entity if the governmental entity maintains one; and

(C) Notification to major statewide media.

(g) (I) Personal information means:

(A) A Colorado resident's first name or first initial and last name in
combination with any one or more of the following data elements that relate to the
resident, when the data elements are not encrypted, redacted, or secured by any
other method rendering the name or the element unreadable or unusable: Social
security number; driver's license number or identification card number; student,
military, or passport identification number; medical information; health insurance
identification number; or biometric data, as defined in subsection (1)(a) of this
section;

(B) A Colorado resident's username or email address, in combination with a
password or security questions and answers, that would permit access to an online
account; or

(C) A Colorado resident's account number or credit or debit card number in
combination with any required security code, access code, or password that would
permit access to that account.

(II) Personal information does not include publicly available information
that is lawfully made available to the general public from federal, state, or local
government records or widely distributed media.

(h) Security breach means the unauthorized acquisition of unencrypted
computerized data that compromises the security, confidentiality, or integrity of
personal information maintained by a governmental entity. Good faith acquisition of
personal information by an employee or agent of a governmental entity for the
purposes of the governmental entity is not a security breach if the personal
information is not used for a purpose unrelated to the lawful government purpose
or is not subject to further unauthorized disclosure.

(i) Third-party service provider means an entity that has been contracted to
maintain, store, or process personal information on behalf of a governmental entity.

(2) Disclosure of breach. (a) A governmental entity that maintains, owns, or
licenses computerized data that includes personal information about a resident of
Colorado shall, when it becomes aware that a security breach may have occurred,
conduct in good faith a prompt investigation to determine the likelihood that
personal information has been or will be misused. The governmental entity shall
give notice to the affected Colorado residents unless the investigation determines
that the misuse of information about a Colorado resident has not occurred and is
not reasonably likely to occur. Notice must be made in the most expedient time
possible and without unreasonable delay, but not later than thirty days after the
date of determination that a security breach occurred, consistent with the
legitimate needs of law enforcement and consistent with any measures necessary
to determine the scope of the breach and to restore the reasonable integrity of the
computerized data system.

(b) In the case of a breach of personal information, notice required by this
subsection (2) to affected Colorado residents must include, but need not be limited
to, the following information:

(I) The date, estimated date, or estimated date range of the security breach;

(II) A description of the personal information that was acquired or reasonably
believed to have been acquired as part of the security breach;

(III) Information that the resident can use to contact the governmental entity
to inquire about the security breach;

(IV) The toll-free numbers, addresses, and websites for consumer reporting
agencies;

(V) The toll-free number, address, and website for the federal trade
commission; and

(VI) A statement that the resident can obtain information from the federal
trade commission and the credit reporting agencies about fraud alerts and security
freezes.

(c) If an investigation by the governmental entity pursuant to subsection
(2)(a) of this section determines that the type of personal information described in
subsection (1)(g)(I)(B) of this section has been misused or is reasonably likely to be
misused, then the governmental entity shall, in addition to the notice otherwise
required by subsection (2)(b) of this section and in the most expedient time possible
and without unreasonable delay, but not later than thirty days after the date of
determination that a security breach occurred, consistent with the legitimate needs
of law enforcement and consistent with any measures necessary to determine the
scope of the breach and to restore the reasonable integrity of the computerized
data system:

(I) Direct the person whose personal information has been breached to
promptly change his or her password and security question or answer, as
applicable, or to take other steps appropriate to protect the online account with the
person or business and all other online accounts for which the person whose
personal information has been breached uses the same username or email address
and password or security question or answer.

(II) For log-in credentials of an email account furnished by the governmental
entity, the governmental entity shall not comply with this section by providing the
security breach notification to that email address, but may instead comply with this
section by providing notice through other methods, as defined in subsection (1)(f) of
this section, or by clear and conspicuous notice delivered to the resident online
when the resident is connected to the online account from an internet protocol
address or online location from which the governmental entity knows the resident
customarily accesses the account.

(d) The breach of encrypted or otherwise secured personal information must
be disclosed in accordance with this section if the confidential process, encryption
key, or other means to decipher the secured information was also acquired in the
security breach or was reasonably believed to have been acquired.

(e) A governmental entity that is required to provide notice pursuant to this
subsection (2) is prohibited from charging the cost of providing such notice to
individuals.

(f) Nothing in this subsection (2) prohibits the notice described in this
subsection (2) from containing additional information, including any information
that may be required by state or federal law.

(g) If a governmental entity uses a third-party service provider to maintain
computerized data that includes personal information, then the third-party service
provider shall give notice to and cooperate with the governmental entity in the
event of a security breach that compromises such computerized data, including
notifying the governmental entity of any security breach in the most expedient time
and without unreasonable delay following discovery of a security breach, if misuse
of personal information about a Colorado resident occurred or is likely to occur.
Cooperation includes sharing with the covered entity information relevant to the
security breach; except that such cooperation does not require the disclosure of
confidential business information or trade secrets.

(h) Notice required by this section may be delayed if a law enforcement
agency determines that the notice will impede a criminal investigation and the law
enforcement agency has notified the governmental entity that operates in Colorado
not to send notice required by this section. Notice required by this section must be
made in good faith, in the most expedient time possible and without unreasonable
delay, but not later than thirty days after the law enforcement agency determines
that notification will no longer impede the investigation, and has notified the
governmental entity that it is appropriate to send the notice required by this
section.

(i) If a governmental entity is required to notify more than one thousand
Colorado residents of a security breach pursuant to this section, the governmental
entity shall also notify, in the most expedient time possible and without
unreasonable delay, all consumer reporting agencies that compile and maintain
files on consumers on a nationwide basis, as defined by the federal Fair Credit
Reporting Act, 15 U.S.C. sec. 1681a (p), of the anticipated date of the notification to
the residents and the approximate number of residents who are to be notified.
Nothing in this subsection (2)(i) requires the governmental entity to provide to the
consumer reporting agency the names or other personal information of security
breach notice recipients. This subsection (2)(i) does not apply to a person who is
subject to Title V of the federal Gramm-Leach-Bliley Act, 15 U.S.C. sec. 6801 et
seq.

(j) A waiver of these notification rights or responsibilities is void as against
public policy.

(k) (I) The governmental entity that must notify Colorado residents of a data
breach pursuant to this section shall provide notice of any security breach to the
Colorado attorney general in the most expedient time possible and without
unreasonable delay, but not later than thirty days after the date of determination
that a security breach occurred, if the security breach is reasonably believed to
have affected five hundred Colorado residents or more, unless the investigation
determines that the misuse of information about a Colorado resident has not
occurred and is not likely to occur.

(II) The Colorado attorney general shall designate a person or persons as a
point of contact for functions set forth in this subsection (2)(k) and shall make the
contact information for that person or those persons public on the attorney
general's website and by any other appropriate means.

(l) The breach of encrypted or otherwise secured personal information must
be disclosed in accordance with this section if the confidential process, encryption
key, or other means to decipher the secured information was also acquired or was
reasonably believed to have been acquired in the security breach.

(3) Procedures deemed in compliance with notice requirements. (a)
Pursuant to this section, a governmental entity that maintains its own notification
procedures as part of an information security policy for the treatment of personal
information and whose procedures are otherwise consistent with the timing
requirements of this section is in compliance with the notice requirements of this
section if the governmental entity notifies affected Colorado residents in
accordance with its policies in the event of a security breach; except that notice to
the attorney general is still required pursuant to subsection (2)(k) of this section.

(b) A governmental entity that is regulated by state or federal law and that
maintains procedures for a security breach pursuant to the laws, rules, regulations,
guidances, or guidelines established by its state or federal regulator is in
compliance with this section; except that notice to the attorney general is still
required pursuant to subsection (2)(k) of this section. In the case of a conflict
between the time period for notice to individuals, the law or regulation with the
shortest notice period controls.

(4) Violations. The attorney general may bring an action for injunctive relief
to enforce the provisions of this section.

(5) Attorney general criminal authority. Upon receipt of notice pursuant to
subsection (2) of this section, and with either a request from the governor to
prosecute a particular case or with the approval of the district attorney with
jurisdiction to prosecute cases in the judicial district where a case could be brought,
the attorney general has the authority to prosecute any criminal violations of
section 18-5.5-102.

Legislative History

Source: L. 2018: Entire article added, (HB 18-1128), ch. 266, p. 1641, � 4, effective September 1.