NAIC Revised Draft Insurance Data Security Model Law Continues to Raise Significant Industry Concerns

By Karen L. Booth, Esq. of Locke Lord LLP The National Association of Insurance Commissioners (NAIC) Cybersecurity (EX) Task Force has received significant industry comments regarding its revised draft Insurance Data Security Model Law issued August 17, 2016 (the aEURoeProposed Model LawaEUR?). While the revised draft addresses certain concerns voiced by the industry, some comments submitted to the NAIC regarding the revised draft raise significant concerns about key issues such as uniformity and overlapping regulation, onerous breach notification obligations, and the Proposed Model LawaEUR(TM)s overly broad definition of aEURoepersonal information.aEUR? While the initial draft of the Proposed Model Law would have set aEURoeexclusive standardsaEUR? for data security and breach notification in states adopting the model as drafted, the revised draft complicates this goal, stating that the Proposed Model Law is not to be construed to supersede or alter existing law, except to the extent it is inconsistent. Industry comments stressed the importance of a single, exclusive state law, as uniform among the states as possible, to simplify the existing patchwork of such requirements currently applicable to insurance carriers, producers and others. To this end, certain groups have also recommended that entities subject to HIPAA be excluded from the Proposed Model Law. A change heavily criticized by the insurance industry removes the harm trigger from the Proposed Model LawaEUR(TM)s breach notification requirement, thus expanding notification obligations which industry commentators argue are already overly broad, as the definition of aEURoepersonal informationaEUR? under the Proposed Model Law potentially extends beyond data elements that could be used for identity theft, and beyond definitions of the term under existing breach notification requirements. The revised draft of the Proposed Model Law would further shorten the initial draftaEUR(TM)s extremely tight deadline for notification to state insurance departments. Under the revised draft, notices containing a great deal of information must be provided to the state insurance commissioner within three business days after determining that a breach has occurred aEUR" a significantly shorter deadline than those imposed by existing law. Industry comments also noted approval of a number of the changes made in the revised draft, including elimination of the private cause of action, and removal of privacy notice requirements viewed as confusing and contradictory. In addition, the revised draft clarifies that the Proposed Model Law does not set a single standard for data security programs for all insurance department licensees, but instead, requires that each licenseeaEUR(TM)s data protection protocols should correspond to the size, complexity and nature of its operations, as well as the sensitivity of the personal information that it collects. The NAIC has expressed intentions to finalize the Proposed Model Law by the end of the year. Meanwhile, the Texas Department of Insurance issued CommissioneraEUR(TM)s Bulletin # B-0022-16 of September 15, 2016, which imposes additional requirements for reporting of cybersecurity incidents, and further complicates the existing patchwork of multi-layer state breach notification requirements to which insurers are currently subject. For additional information, please contact Karen aEUR" (860)541-7714

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