Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 80 Second Substitute (2021GS)

Sponsor

Rep. Brooks, W.

Final action

Governor Signed 3/11/2021

Outcome

Became law — signed by Gov. Spencer J. Cox

Summary

What it does

• This bill:
• defines terms;
• creates affirmative defenses to causes of action arising out of a breach of system security;
• provides that a person may not claim an affirmative defense if the person had notice of a threat or hazard;
• establishes the requirements for asserting an affirmative defense for a breach of system security;
• provides that the creation of an affirmative defense does not create a cause of action for failure to comply with the requirements for asserting the affirmative defense;
• addresses a choice of law provision in an agreement; and
• provides a severability clause.

Every vote on this bill

Bill text

DATA SECURITY AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Walt Brooks
Senate Sponsor: 
Wayne A. Harper
LONG TITLE
General Description:
This bill creates affirmative defenses to certain causes of action arising out of a breach
of system security.
Highlighted Provisions:
This bill:
▸ defines terms;
▸ creates affirmative defenses to causes of action arising out of a breach of system
security;
▸ provides that a person may not claim an affirmative defense if the person had notice
of a threat or hazard;
▸ establishes the requirements for asserting an affirmative defense for a breach of
system security;
▸ provides that the creation of an affirmative defense does not create a cause of action
for failure to comply with the requirements for asserting the affirmative defense;
▸ addresses a choice of law provision in an agreement; and
▸ provides a severability clause.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
ENACTS:
78B-4-701
, Utah Code Annotated 1953
78B-4-702
, Utah Code Annotated 1953
78B-4-703
, Utah Code Annotated 1953
78B-4-704
, Utah Code Annotated 1953
78B-4-705
, Utah Code Annotated 1953
78B-4-706
, Utah Code Annotated 1953
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
78B-4-701
 is enacted to read:
Part 7. Cybersecurity Affirmative Defense Act
 78B-4-701.
Definitions.
As used in this part:
(1) "Breach of system security" means the same as that term is defined in Section
13-44-102
.
(2) "NIST" means the National Institute for Standards and Technology in the United
States Department of Commerce.
(3) "PCI data security standard" means the Payment Card Industry Data Security
Standard.
(4) (a) "Person" means:
(i) an individual;
(ii) an association;
(iii) a corporation;
(iv) a joint stock company;
(v) a partnership;
(vi) a business trust; or
(vii) any unincorporated organization.
(b) "Person" includes a financial institution organized, chartered, or holding a license
authorizing operation under the laws of this state, another state, or another country.
(5) "Personal information" means the same as that term is defined in Section
13-44-102
.
Section 2. Section 
78B-4-702
 is enacted to read:
 78B-4-702.
Affirmative defense for a breach of system security.
(1) A person that creates, maintains, and reasonably complies with a written
cybersecurity program that meets the requirements of Subsection (4), and is in place at the time
of a breach of system security of the person, has an affirmative defense to a claim that:
(a) is brought under the laws of this state or in the courts of this state; and
(b) alleges that the person failed to implement reasonable information security controls
that resulted in the breach of system security.
(2) A person has an affirmative defense to a claim that the person failed to
appropriately respond to a breach of system security if:
(a) the person creates, maintains, and reasonably complies with a written cybersecurity
program that meets the requirements of Subsection (4) and is in place at the time of the breach
of system security; and
(b) the written cybersecurity program had protocols at the time of the breach of system
security for responding to a breach of system security that reasonably complied with the written
cybersecurity program under Subsection (2)(a) and the person followed the protocols.
(3) A person has an affirmative defense to a claim that the person failed to
appropriately notify an individual whose personal information was compromised in a breach of
system security if:
(a) the person creates, maintains, and reasonably complies with a written cybersecurity
program that meets the requirements of Subsection (4) and is in place at the time of the breach
of system security; and
(b) the written cybersecurity program had protocols at the time of the breach of system
security for notifying an individual about a breach of system security that reasonably complied
with the requirements for a written cybersecurity program under Subsection (3)(a) and the
person followed the protocols.
(4) A written cybersecurity program described in Subsections (1), (2), and (3) shall
provide administrative, technical, and physical safeguards to protect personal information,
including:
(a) being designed to:
(i) protect the security, confidentiality, and integrity of personal information;
(ii) protect against any anticipated threat or hazard to the security, confidentiality, or
integrity of personal information; and
(iii) protect against a breach of system security;
(b) reasonably conforming to a recognized cybersecurity framework as described in
Subsection 
78B-4-703
(1); and
(c) being of an appropriate scale and scope in light of the following factors:
(i) the size and complexity of the person;
(ii) the nature and scope of the activities of the person;
(iii) the sensitivity of the information to be protected;
(iv) the cost and availability of tools to improve information security and reduce
vulnerability; and
(v) the resources available to the person.
(5) (a) Subject to Subsection (5)(b), a person may not claim an affirmative defense
under Subsection (1), (2), or (3) if:
(i) the person had actual notice of a threat or hazard to the security, confidentiality, or
integrity of personal information;
(ii) the person did not act in a reasonable amount of time to take known remedial
efforts to protect the personal information against the threat or hazard; and
(iii) the threat or hazard resulted in the breach of system security.
(b) A risk assessment to improve the security, confidentiality, or integrity of personal
information is not an actual notice of a threat or hazard to the security, confidentiality, or
integrity of personal information.
Section 3. Section 
78B-4-703
 is enacted to read:
 78B-4-703.
Components of a cybersecurity program eligible for an affirmative
defense.
(1) Subject to Subsection (3), a person's written cybersecurity program reasonably
conforms to a recognized cybersecurity framework if the written cybersecurity program:
(a) is designed to protect the type of personal information obtained in the breach of
system security; and
(b) (i) is a reasonable security program described in Subsection (2);
(ii) reasonably conforms to the current version of any of the following frameworks or
publications, or any combination of the following frameworks or publications:
(A) NIST special publication 800-171;
(B) NIST special publications 800-53 and 800-53a;
(C) the Federal Risk and Authorization Management Program Security Assessment
Framework;
(D) the Center for Internet Security Critical Security Controls for Effective Cyber
Defense; or
(E) the International Organization for Standardization/International Electrotechnical
Commission 27000 Family - Information security management systems;
(iii) for personal information obtained in the breach of the system security that is
regulated by the federal government or state government, reasonably complies with the
requirements of the regulation, including:
(A) the security requirements of the Health Insurance Portability and Accountability
Act of 1996, as described in 45 C.F.R. Part 164, Subpart C;
(B) Title V of the Gramm-Leach-Bliley Act of 1999, Pub. L. No. 106-102, as amended;
(C) the Federal Information Security Modernization Act of 2014, Pub. L. No. 113-283;
(D) the Health Information Technology for Economic and Clinical Health Act, as
provided in 45 C.F.R. Part 164;
(E) Title 13, Chapter 44, Protection of Personal Information Act; or
(F) any other applicable federal or state regulation; or
(iv) for personal information obtained in the breach of system security that is the type
of information intended to be protected by the PCI data security standard, reasonably complies
with the current version of the PCI data security standard.
(2) A written cybersecurity program is a reasonable security program under Subsection
(1)(b)(i) if:
(a) the person coordinates, or designates an employee of the person to coordinate, a
program that provides the administrative, technical, and physical safeguards described in
Subsections 
78B-4-702
(4)(a) and (c);
(b) the program under Subsection (2)(a) has practices and procedures to detect,
prevent, and respond to a breach of system security;
(c) the person, or an employee of the person, trains, and manages employees in the
practices and procedures under Subsection (2)(b);
(d) the person, or an employee of the person, conducts risk assessments to test and
monitor the practice and procedures under Subsection (2)(b), including risk assessments on:
(i) the network and software design for the person;
(ii) information processing, transmission, and storage of personal information; and
(iii) the storage and disposal of personal information; and
(e) the person adjusts the practices and procedures under Subsection (2)(b) in light of
changes or new circumstances needed to protect the security, confidentiality, and integrity of
personal information.
(3) (a) If a recognized cybersecurity framework described in Subsection (1)(b)(ii) or
(iv) is revised, a person with a written cybersecurity program that relies upon that recognized
cybersecurity framework shall reasonably conform to the revised version of the framework no
later than one year after the day in which the revised version of the framework is published.
(b) If a recognized cybersecurity framework described in Subsection (1)(b)(iii) is
amended, a person with a written cybersecurity program that relies upon that recognized
cybersecurity framework shall reasonably conform to the amended regulation of the framework
in a reasonable amount of time, taking into consideration the urgency of the amendment in
terms of:
(i) risks to the security of personal information;
(ii) the cost and effort of complying with the amended regulation; and
(iii) any other relevant factor.
Section 4. Section 
78B-4-704
 is enacted to read:
 78B-4-704.
No cause of action.
This part may not be construed to create a private cause of action, including a class
action, if a person fails to comply with a provision of this part.
Section 5. Section 
78B-4-705
 is enacted to read:
 78B-4-705.
Choice of law.
A choice of law provision in an agreement that designates this state as the governing
law shall apply this part, if applicable, to the fullest extent possible in a civil action brought
against a person regardless of whether the civil action is brought in this state or another state.
Section 6. Section 
78B-4-706
 is enacted to read:
 78B-4-706.
Severability clause.
If any provision of this part, or the application of any provision of this part to any
person or circumstance, is held invalid, the remainder of this part shall be given effect without
the invalid provision or application.