(1) If a covered entity is subject to a breach of security or receives notice of a breach of security from a vendor, the covered entity shall give notice of the breach of security to:

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(a) The consumer to whom the personal information pertains.

(b) The Attorney General, either in writing or electronically, if the number of consumers to whom the covered entity must send the notice described in paragraph (a) of this subsection exceeds 250.

(2)(a) A vendor that discovers a breach of security or has reason to believe that a breach of security has occurred shall notify a covered entity with which the vendor has a contract as soon as is practicable but not later than 10 days after discovering the breach of security or having a reason to believe that the breach of security occurred.

(b) If a vendor has a contract with another vendor that, in turn, has a contract with a covered entity, the vendor shall notify the other vendor of a breach of security as provided in paragraph (a) of this subsection.

(c) A vendor shall notify the Attorney General in writing or electronically if the vendor was subject to a breach of security that involved the personal information of more than 250 consumers or a number of consumers that the vendor could not determine. This paragraph does not apply to the vendor if the covered entity described in paragraph (a) or (b) of this subsection has notified the Attorney General in accordance with the requirements of this section.

(3)(a) A covered entity shall give notice of a breach of security in the most expeditious manner possible, without unreasonable delay, but not later than 45 days after discovering or receiving notification of the breach of security.

(b) Before providing the notice described in paragraph (a) of this subsection, a covered entity shall undertake reasonable measures that are necessary to:

(A) Determine sufficient contact information for the intended recipient of the notice;

(B) Determine the scope of the breach of security; and

(C) Restore the reasonable integrity, security and confidentiality of the personal information.

(c) A covered entity may delay giving the notice described in paragraph (a) of this subsection only if a law enforcement agency determines that a notification will impede a criminal investigation and if the law enforcement agency requests in writing that the covered entity delay the notification.

(4) A covered entity may notify a consumer of a breach of security:

(a) In writing;

(b) Electronically, if the covered entity customarily communicates with the consumer electronically or if the notice is consistent with the provisions regarding electronic records and signatures set forth in the Electronic Signatures in Global and National Commerce Act (15 U.S.C. § 7001) as that Act existed on January 1, 2020;

(c) By telephone, if the covered entity contacts the affected consumer directly; or

(d) With substitute notice, if the covered entity demonstrates that the cost of notification otherwise would exceed $250,000 or that the affected class of consumers exceeds 350,000, or if the covered entity does not have sufficient contact information to notify affected consumers. For the purposes of this paragraph, ‘substitute notice’ means:

(A) Posting the notice or a link to the notice conspicuously on the covered entity’s website if the covered entity maintains a website; and

(B) Notifying major statewide television and newspaper media.

(5) Notice under this section must include, at a minimum:

(a) A description of the breach of security in general terms;

(b) The approximate date of the breach of security;

(c) The type of personal information that was subject to the breach of security;

(d) Contact information for the covered entity;

(e) Contact information for national consumer reporting agencies; and

(f) Advice to the consumer to report suspected identity theft to law enforcement, including the Attorney General and the Federal Trade Commission.

(6) If a covered entity discovers or receives notice of a breach of security that affects more than 1,000 consumers, the covered entity shall notify, without unreasonable delay, all consumer reporting agencies that compile and maintain reports on consumers on a nationwide basis of the timing, distribution and content of the notice the covered entity gave to affected consumers and shall include in the notice any police report number assigned to the breach of security. A covered entity may not delay notifying affected consumers of a breach of security in order to notify consumer reporting agencies.

(7)(a) If a covered entity must notify a consumer of a breach of security under this section, and in connection with the notification the covered entity or an agent or affiliate of the covered entity offers to provide credit monitoring services or identity theft prevention and mitigation services without charge to the consumer, the covered entity, the agent or the affiliate may not condition the provision of the services on the consumer’s providing the covered entity, the agent or the affiliate with a credit or debit card number or on the consumer’s acceptance of any other service the covered entity offers to provide for a fee.

(b) If a covered entity or an agent or affiliate of the covered entity offers additional credit monitoring services or identity theft prevention and mitigation services for a fee to a consumer under the circumstances described in paragraph (a) of this subsection, the covered entity, the agent or the affiliate must separately, distinctly, clearly and conspicuously disclose in the offer for the additional credit monitoring services or identity theft prevention and mitigation services that the covered entity, the agent or the affiliate will charge the consumer a fee.

(c) The terms and conditions of any contract under which one person offers or provides credit monitoring services or identity theft prevention and mitigation services on behalf of another person under the circumstances described in paragraph (a) of this subsection must require compliance with the requirements of paragraphs (a) and (b) of this subsection.

(8) Notwithstanding subsection (1) of this section, a covered entity does not need to notify consumers of a breach of security if, after an appropriate investigation or after consultation with relevant federal, state or local law enforcement agencies, the covered entity reasonably determines that the consumers whose personal information was subject to the breach of security are unlikely to suffer harm. The covered entity must document the determination in writing and maintain the documentation for at least five years.

(9) This section does not apply to:

(a) Personal information that is subject to, and a person that complies with, notification requirements or procedures for a breach of security that the person’s primary or functional federal regulator adopts, promulgates or issues in rules, regulations, procedures, guidelines or guidance, if the personal information and the person would otherwise be subject to ORS § 646A.600 to 646A.628.

(b) Personal information that is subject to, and a person that complies with, a state or federal law that provides greater protection to personal information and disclosure requirements at least as thorough as the protections and disclosure requirements provided under this section.

(c) A covered entity or vendor that complies with regulations promulgated under Title V of the Gramm-Leach-Bliley Act of 1999 (15 U.S.C. § 6801 to 6809) as that Act existed on January 1, 2020, if personal information that is subject to ORS § 646A.600 to 646A.628 is also subject to that Act.

(d) A covered entity or vendor that complies with regulations promulgated under the Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191, 110 Stat. 1936) and the Health Information Technology for Economic and Clinical Health Act of 2009 (P.L. 111-5, Title XIII, 123 Stat. 226), as those Acts existed on January 1, 2020, if personal information that is subject to ORS § 646A.600 to 646A.628 is also subject to those Acts.

(10) Notwithstanding the exemptions set forth in subsection (9) of this section, a person, a covered entity or a vendor shall provide to the Attorney General within a reasonable time at least one copy of any notice the person, the covered entity or the vendor sends to consumers or to the person’s, the covered entity’s or the vendor’s primary or functional regulator in compliance with this section or with other state or federal laws or regulations that apply to the person, the covered entity or the vendor as a consequence of a breach of security, if the breach of security affects more than 250 consumers.

(11)(a) A person’s violation of a provision of ORS § 646A.600 to 646A.628 is an unlawful practice under ORS § 646.607.

(b) A covered entity or vendor in an action or proceeding may affirmatively defend against an allegation that the covered entity or vendor has not developed, implemented and maintained reasonable safeguards to protect the security, confidentiality and integrity of personal information that is subject to ORS § 646A.600 to 646A.628 but is not subject to an Act described in subsection (9)(c) or (d) of this section by showing that, with respect to the personal information that is subject to ORS § 646A.600 to 646A.628, the covered entity or vendor developed, implemented and maintained reasonable security measures that would be required for personal information subject to the applicable Act.

(c) The rights and remedies available under this section are cumulative and are in addition to any other rights or remedies that are available under law. [2007 c.759 § 3; 2015 c.357 § 2; 2018 c.10 § 2; 2019 c.180 § 3]