Don’t forget physical safeguards for data privacy when returning to in-person work

BY Christopher M. Mason

We have been reminding New York businesses that, on July 9, 2021, New York City’s new biometric privacy law goes into effect and restricts the collection and use of biometric information by “commercial establishments” in the City. For more information, see our recent blog post.

But even returning to an in-person work environment can present challenges that suddenly seem as novel as complying with a new 2021 law. So as business comes back to fuller in-person operation after COVID-19, we are reminding those with bricks-and-mortar operations to make sure that they re-engage with the in-person elements of their data breach protection policies. For example, the New York Stop Hacks and Improve Electronic Data Security (SHIELD) Act’s data security requirements became effective (on March 21, 2020) almost precisely when COVID-19 lockdowns began. See N.Y. Gen. Bus. L. § 899-aa. Under the SHIELD Act, businesses—whether they are physically in New York or not—must protect their computerized “private information” about New York residents (such as account numbers, biometric information, credit and debit card numbers, driver’s license numbers, access codes, user names, e-mail addresses, passwords, and security questions and answers) from unauthorized access, not just theft.

Companies that comply with the Gramm-Leach-Bliley Act, HIPAA, HITECH, or the New York Cybersecurity Requirements for Financial Services will typically satisfy the SHIELD Act, and are less likely to need this reminder. But others—even those which have lighter compliance burdens under the SHIELD Act because they have fewer than 50 employees and less than $3 million in annual revenue—may need a refresher. So do not forget that the law requires that you maintain reasonable physical safeguards as well as administrative and technical safeguards for private information. For example, it may be possible in a work-from-home environment (depending on where and with whom an employee lives, of course) to consider a laptop turned off and left on a kitchen table secure when an employee locks his or her front door and goes out. But in an office or retail environment, or traveling to and from such locations, physical security needs can be quite different. Do not forget to review them, train for them, and monitor them. (And also remember that the SHIELD Act has some important documentation requirements, including potential reporting to the New York Attorney General in certain instances, with penalties of up to $250,000 for noncompliance.)

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Christopher M. Mason


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