What are the data breach notification laws in West Virginia?

A data breach is the unauthorized disclosure of someone's personally identifiable information (PII), which is any data that could reveal an individual's identity.

Data breaches can happen if an employee clicks on a link in a phishing email, if a laptop or thumb drive is stolen, or if hackers break into a computer network. Accidental security breaches are another cause, such as misconfigured software that leaves data unprotected.

Every small business that handles credit cards or stores customer information is vulnerable to data breaches. IT consultants, healthcare providers, and financial institutions are among the industries with the highest risk.

The West Virginia Consumer Protection Act defines personal information as an individual's first name or first initial and last name in combination with one or more of the following data elements:

• Social Security number
• Driver's license number or state identification card number
• Financial account number, credit card number, or debit card number in combination with a security code or other means of access to a resident's financial account

Any business that handles PII should invest in cyber liability insurance to mitigate costs in the event of a data breach.

West Virginia state law outlines when and how businesses need to respond to a security breach. Breaches of security must be reported when they are believed to have compromised the personal information of residents and there is a risk of identity theft or other fraud.

Businesses must report security breaches to affected residents "without unreasonable delay," and to nationwide consumer reporting agencies when over 1,000 residents are affected. Delays may be permitted only when notification would interfere with a law enforcement agency's criminal or civil investigation, or homeland or national security.

Permitted methods include written notice, telephone notice, and electronic notice. A substitute notice is allowed when notification costs would exceed $50,000, over 100,000 people were affected, or if the business doesn't have sufficient contact information. The substitute notice should consist of any two of the following:

• Email notice
• Conspicuous posting of the notice on the business's website
• Notification of major statewide media

Data breach notices sent to West Virginia residents must include:

• The types of information involved
• A telephone number or website address where residents can learn whether their personal information was stored by the business
• Toll-free telephone numbers and addresses for the major credit reporting agencies
• Information on how to place a fraud alert or security freeze

Notifications sent to consumer reporting agencies (e.g., TransUnion, Equifax) must include the timing, distribution and content of the notices sent to residents.

Data breaches that impact healthcare facilities and healthcare professionals are regulated by federal laws. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) includes a Breach Notification Rule that requires notification after a breach of unsecured protected health information. Businesses must notify:

• Affected individuals
• The Secretary of Health and Human Services
• The media, if over 500 residents of a state or jurisdiction were affected

Under HIPAA, individuals must be notified by first-class mail, or by email if they've agreed to electronic communication, within 60 days of the discovery of a breach.

The cost of a data breach can be significant, which is why cyber insurance is so important for businesses that handle personal data.

Notifying those affected and paying for credit monitoring can be expensive. You’ll have to investigate and fix your security weaknesses while suffering a possible loss of income, and government fines can also be costly. You might even face a ransomware attack, where hackers shut down your computer systems and demand payment.

Small businesses most often need first-party cyber liability insurance. Also called data breach insurance, this policy provides financial protection against data breaches at your business.

You can often add this coverage to your general liability insurance or business owner’s policy (BOP), which combines general liability coverage with commercial property insurance at a discount.

If you're responsible for another company's data security, then you may need third-party cyber liability insurance. This policy covers legal expenses when a client blames your business for failing to prevent a data breach at their company.

Because most tech businesses need this coverage, it's usually included with their errors and omissions insurance (E&O) in a bundle called tech E&O.

E&O insurance, also called professional liability insurance, covers your legal costs in the event that a client sues you for making a mistake or failing to deliver on a contract. Tech E&O extends that coverage to include lawsuits related to data breaches and cyberattacks.

While any business could be at risk of a lawsuit after a data breach, this coverage is especially important for information technology businesses, especially IT consultants, network security companies, and cybersecurity businesses that recommend software or are responsible for information security.

Failure to comply with West Virginia's data breach notification laws is considered an unfair or deceptive act of practice. The Attorney General has the exclusive right to bring action.

Civil penalties are not permitted unless the business repeatedly and willfully violated the law. The maximum civil penalty is $150,000 per breach of the security of the system or series of similar breaches discovered in a single investigation.

For businesses that store personal and financial data, it's crucial to take appropriate steps to prevent data breaches.

Businesses are advised to safeguard PII through a variety of security measures, such as designating one or more employees to coordinate a security program. It’s a good idea to conduct an audit of the personal information and unique identifiers you store in your data systems.

Strong passwords, security questions, two-step authentication, and access codes can provide reasonable data protection for your business, reducing the chance of unauthorized access of electronic files.

Complete Insureon’s easy online application today to compare insurance quotes from top-rated insurance carriers for cyber policies. Our licensed agents will help you find coverage that fulfills West Virginia's insurance requirements and protects your business. Once you find the right policy for your small business, you can begin coverage in less than 24 hours.