2020 -- S 2618

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LC004579

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2020

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A N   A C T

RELATING TO INSURANCE -- INSURANCE DATA SECURITY ACT

     Introduced By: Senator Mark P. McKenney

     Date Introduced: February 27, 2020

     Referred To: Senate Commerce

     (Dept. of Business Regulation)

It is enacted by the General Assembly as follows:

     SECTION 1. Title 27 of the General Laws entitled "INSURANCE" is hereby amended by

adding thereto the following chapter:

CHAPTER 1.3

INSURANCE DATA SECURITY ACT

     27-1.3-1. Title.

     This chapter shall be known and may be cited as the "Insurance Data Security Act."

     27-1.3-2. Purpose and intent.

     (a) The purpose and intent of this chapter are to establish standards for data security and

standards for the investigation of, and notification to the commissioner of, a cybersecurity event

applicable to licensees, as defined in § 27-1.3-3. Notwithstanding any other provision of law, this

chapter establishes the exclusive state standards applicable to licensees for data security, the

investigation of a cybersecurity event as defined in § 27-1.3-3, and notification to the

commissioner. These provisions do not affect a licensee’s responsibility to notify consumers in

accordance with § 27-1.3-6(c).

     (b) This chapter may not be construed to create or imply a private cause of action for

violation of its provisions nor may it be construed to curtail a private cause of action which would

otherwise exist in the absence of this chapter.

     27-1.3-3. Definitions.

     As used in this chapter, the following terms shall have these meanings:

     (1) "Authorized individual" means an individual known to and screened by the licensee

and determined to be necessary and appropriate to have access to the nonpublic information held

by the licensee and its information systems.

     (2) "Commissioner" means the health insurance commissioner established pursuant to §

42-14.5-1.

     (3) "Consumer" means an individual, including, but not limited to applicants,

policyholders, insureds, beneficiaries, claimants, and certificate holders who is a resident of this

state and whose nonpublic information is in a licensee’s possession, custody or control.

     (4) "Cybersecurity event" means an event resulting in unauthorized access to, disruption

or misuse of, an information system or nonpublic information stored on such information system.

     (i) The term "cybersecurity event" does not include the unauthorized acquisition of

encrypted nonpublic information if the encryption, process or key is not also acquired, released or

used without authorization.

     (ii) "Cybersecurity event" does not include an event with regard to which the licensee has

determined that the nonpublic information accessed by an unauthorized person has not been used

or released and has been returned or destroyed.

     (5) "Department" means the department of business regulation, division of insurance.

     (6) "Encrypted" means the transformation of data into a form which results in a low

probability of assigning meaning without the use of a protective process or key.

     (7) "Information security program" means the administrative, technical, and physical

safeguards that a licensee uses to access, collect, distribute, process, protect, store, use, transmit,

dispose of, or otherwise handle nonpublic information.

     (8) "Information system" means a discrete set of electronic information resources

organized for the collection, processing, maintenance, use, sharing, dissemination or disposition of

electronic information, as well as any specialized system such as industrial/process controls

systems, telephone switching and private branch exchange systems, and environmental control

systems.

     (9) "Licensee" means any person licensed, authorized to operate, or registered, or required

to be licensed, authorized, or registered pursuant to the insurance laws of this state, but shall not

include a purchasing group or a risk retention group chartered and licensed in a state other than this

state or a licensee that is acting as an assuming insurer that is domiciled in another state or

jurisdiction.

     (10) "Multi-factor authentication" means authentication through verification of at least two

(2) of the following types of authentication factors:

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     (i) Knowledge factors, such as a password; or

     (ii) Possession factors, such as a token or text message on a mobile phone; or

     (iii) Inherence factors, such as a biometric characteristic.

     (11) "Nonpublic information" means information that is not publicly available information

and is:

     (i) Business related information of a licensee the tampering with which, or unauthorized

disclosure, access or use of which, would cause a material adverse impact to the business,

operations or security of the licensee;

     (ii) Any information concerning a consumer which because of name, number, personal

mark, or other identifier can be used to identify such consumer, in combination with any one or

more of the following data elements:

     (A) Social security number;

     (B) Driver’s license number or non-driver identification card number;

     (C) Account number, credit or debit card number;

     (D) Any security code, access code or password that would permit access to a consumer’s

financial account; or

     (E) Biometric records;

     (iii) Any information or data, except age or gender, in any form or medium created by or

derived from a health care provider or a consumer and that relates to:

     (A) The past, present or future physical, mental or behavioral health or condition of any

consumer or a member of the consumer's family;

     (B) The provision of health care to any consumer; or

     (C) Payment for the provision of health care to any consumer.

     (12) "Person" means any individual or any non-governmental entity, including, but not

limited to, any non-governmental partnership, corporation, limited liability company, branch,

agency or association.

     (13) "Publicly available information" means any information that a licensee has a

reasonable basis to believe is lawfully made available to the general public from: federal, state or

local government records; widely distributed media; or disclosures to the general public that are

required to be made by federal, state or local law:

     (i) For the purposes of this definition, a licensee has a reasonable basis to believe that

information is lawfully made available to the general public if the licensee has taken steps to

determine:

     (A) That the information is of the type that is available to the general public; and

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     (B) Whether a consumer can direct that the information not be made available to the general

public and the consumer has not done so.

     (14) "Risk assessment" means the procedure that each licensee is required to conduct under

§ 27-1.3-4(c).

     (15) "State" means the state of Rhode Island.

     (16) "Third-party service provider" means a person, not otherwise defined as a licensee,

that contracts with a licensee to maintain, process, store or otherwise is permitted access to

nonpublic information through its provision of services to the licensee.

     27-1.3-4. Information security program.

     (a) Implementation of an information security program. Commensurate with the size and

complexity of the licensee, the nature and scope of the licensee’s activities, including its use of

third-party service providers, and the sensitivity of the nonpublic information used by the licensee

or in the licensee’s possession, custody or control, each licensee shall develop, implement, and

maintain a comprehensive written information security program based on the licensee’s risk

assessment and that contains administrative, technical, and physical safeguards for the protection

of nonpublic information and the licensee’s information system.

     (b) Objectives of information security program. A licensee’s information security program

shall be designed to:

     (1) Protect the security and confidentiality of nonpublic information and the security of the

information system;

     (2) Protect against any threats or hazards to the security or integrity of nonpublic

information and the information system;

     (3) Protect against unauthorized access to or use of nonpublic information, and minimize

the likelihood of harm to any consumer; and

     (4) Define and periodically reevaluate a schedule for retention of nonpublic information

and a mechanism for its destruction when no longer needed.

     (c) Risk assessment. The licensee shall:

     (1) Designate one or more employees, an affiliate, or an outside vendor designated to act

on behalf of the licensee who is responsible for the information security program;

     (2) Identify reasonably foreseeable internal or external threats that could result in

unauthorized access, transmission, disclosure, misuse, alteration or destruction of nonpublic

information, including the security of information systems and nonpublic information that are

accessible to, or held by, third-party service providers;

     (3) Assess the likelihood and potential damage of these threats, taking into consideration

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the sensitivity of the nonpublic information;

     (4) Assess the sufficiency of policies, procedures, information systems and other

safeguards in place to manage these threats, including consideration of threats in each relevant area

of the licensee’s operations, including:

     (i) Employee training and management;

     (ii) Information systems, including network and software design, as well as information

classification, governance, processing, storage, transmission, and disposal; and

     (iii) Detecting, preventing, and responding to attacks, intrusions, or other systems failures;

and

     (5) Implement information safeguards to manage the threats identified in its ongoing

assessment, and no less than annually, assess the effectiveness of the safeguards’ key controls,

systems, and procedures.

     (d) Risk management. Based on its risk assessment, the licensee shall:

     (1) Design its information security program to mitigate the identified risks, commensurate

with the size and complexity of the licensee’s activities, including its use of third-party service

providers, and the sensitivity of the nonpublic information used by the licensee or in the licensee’s

possession, custody or control;

     (2) Determine which security measures listed below are appropriate and implement such

security measures:

     (i) Place access controls on information systems, including controls to authenticate and

permit access only to authorized individuals to protect against the unauthorized acquisition of

nonpublic information;

     (ii) Identify and manage the data, personnel, devices, systems, and facilities that enable the

organization to achieve business purposes in accordance with their relative importance to business

objectives and the organization’s risk strategy;

     (iii) Restrict access at physical locations containing nonpublic information only to

authorized individuals;

     (iv) Protect, by encryption or other appropriate means, all nonpublic information while

being transmitted over an external network and all nonpublic information stored on a laptop

computer or other portable computing or storage device or media;

     (v) Adopt secure development practices for in-house developed applications utilized by the

licensee and procedures for evaluating, assessing or testing the security of externally developed

applications utilized by the licensee;

     (vi) Modify the information system in accordance with the licensee’s information security

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program;

     (vii) Utilize effective controls, which may include multi-factor authentication procedures

for any individual accessing nonpublic information;

     (viii) Regularly test and monitor systems and procedures to detect actual and attempted

attacks on, or intrusions into, information systems;

     (ix) Include audit trails within the information security program designed to detect and

respond to cybersecurity events and designed to reconstruct material financial transactions

sufficient to support normal operations and obligations of the licensee;

     (x) Implement measures to protect against destruction, loss, or damage of nonpublic

information due to environmental hazards, such as fire and water damage or other catastrophes or

technological failures; and

     (xi) Develop, implement, and maintain procedures for the secure disposal of nonpublic

information in any format;

     (3) Include cybersecurity risks in the licensee’s enterprise risk management process;

     (4) Stay informed regarding emerging threats or vulnerabilities and utilize reasonable

security measures when sharing information relative to the character of the sharing and the type of

information shared; and

     (5) Provide its personnel with cybersecurity awareness training that is updated as necessary

to reflect risks identified by the licensee in the risk assessment.

     (e) Oversight by board of directors. If the licensee has a board of directors, the board or

an appropriate committee of the board shall, at a minimum:

     (1) Require the licensee’s executive management or its designees to develop, implement,

and maintain the licensee’s information security program;

     (2) Require the licensee’s executive management or its designees to report in writing at

least annually, the following information:

     (i) The overall status of the information security program and the licensee’s compliance

with this chapter; and

     (ii) Material matters related to the information security program, addressing issues such as

risk assessment, risk management and control decisions, third-party service provider arrangements,

results of testing, cybersecurity events or violations and management’s responses thereto, and

recommendations for changes in the information security program; and

     (3) If executive management delegates any of its responsibilities pursuant to this section,

it shall oversee the development, implementation and maintenance of the licensee’s information

security program prepared by the designee(s) and shall receive a report from the designee(s)

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complying with the requirements of the report to the board of directors.

     (f) Oversight of third-party service provider arrangements.

     (1) A licensee shall exercise due diligence in selecting its third-party service provider; and

     (2) A licensee shall require a third-party service provider to implement appropriate

administrative, technical, and physical measures to protect and secure the information systems and

nonpublic information that are accessible to, or held by, the third-party service provider.

     (g) Program adjustments. The licensee shall monitor, evaluate and adjust, as appropriate,

the information security program consistent with any relevant changes in technology, the sensitivity

of its nonpublic information, internal or external threats to information, and the licensee’s own

changing business arrangements, such as mergers and acquisitions, alliances and joint ventures,

outsourcing arrangements and changes to information systems.

     (h) Incident response plan:

     (1) As part of its information security program, each licensee shall establish a written

incident response plan designed to promptly respond to, and recover from, any cybersecurity event

that compromises the confidentiality, integrity or availability of nonpublic information in its

possession, the licensee’s information systems, or the continuing functionality of any aspect of the

licensee’s business or operations;

     (2) Such incident response plan shall address the following areas:

     (i) The internal process for responding to a cybersecurity event;

     (ii) The goals of the incident response plan;

     (iii) The definition of clear roles, responsibilities and levels of decision-making authority;

     (iv) External and internal communications and information sharing;

     (v) Identification of requirements for the remediation of any identified weaknesses in

information systems and associated controls;

     (vi) Documentation and reporting regarding cybersecurity events and related incident

response activities; and

     (vii) The evaluation and revision as necessary of the incident response plan following a

cybersecurity event.

     (i) Annual certification to commissioner of domiciliary state. Annually, each insurer

domiciled in this state shall submit to the commissioner a written statement by February 15

certifying that the insurer is in compliance with the requirements set forth in this section. Each

insurer shall maintain for examination by the department all records, schedules and data supporting

this certificate for a period of five (5) years. To the extent an insurer has identified areas, systems

or processes that require material improvement, updating or redesign, the insurer shall document

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the identification and the remedial efforts planned and underway to address such areas, systems or

processes. This documentation must be available for inspection by the commissioner.

     27-1.3-5. Investigation of a cybersecurity event.

     (a) If the licensee learns that a cybersecurity event has or may have occurred, the licensee,

or an outside vendor and/or service provider designated to act on behalf of the licensee, shall

conduct a prompt investigation.

     (b) During the investigation, the licensee, or an outside vendor and/or service provider

designated to act on behalf of the licensee, shall, at a minimum, determine as much of the following

information as possible:

     (1) Determine whether a cybersecurity event has occurred;

     (2) Assess the nature and scope of the cybersecurity event;

     (3) Identify any nonpublic information that may have been involved in the cybersecurity

event; and

     (4) Perform or oversee reasonable measures to restore the security of the information

systems compromised in the cybersecurity event in order to prevent further unauthorized

acquisition, release or use of nonpublic information in the licensee’s possession, custody or control.

     (c) If the licensee learns that a cybersecurity event has or may have occurred in a system

maintained by a third-party service provider, the licensee will complete the steps listed in

subsection (b) of this section or confirm and document that the third-party service provider has

completed those steps.

     (d) The licensee shall maintain records concerning all cybersecurity events for a period of

at least five (5) years from the date of the cybersecurity event and shall produce those records upon

demand of the commissioner.

     27-1.3-6. Notification of a cybersecurity event.

     (a) Notification to the commissioner. Each licensee shall notify the commissioner as

promptly as possible but in no event later than seventy-two (72) hours from a determination that a

cybersecurity event has occurred when either of the following criteria has been met:

     (1) This state is the licensee’s state of domicile, in the case of an insurer, or this state is the

licensee’s home state, in the case of a producer, as those terms are defined in § 27-2.4-2; or

     (2) The licensee reasonably believes that the nonpublic information involved affects two

hundred fifty (250) or more consumers residing in this state and that is either of the following:

     (i) A cybersecurity event impacting the licensee of which notice is required to be provided

to any government body, self-regulatory agency or any other supervisory body pursuant to any state

or federal law; or

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     (ii) A cybersecurity event that has a reasonable likelihood of materially harming:

     (A) Any consumer residing in this state; or

     (B) Any material part of the normal operation(s) of the licensee.

     (b) The licensee shall provide any information required by this section in electronic form

as directed by the commissioner. The licensee shall have a continuing obligation to update and

supplement initial and subsequent notifications to the commissioner concerning the cybersecurity

event. The licensee shall provide as much of the following information as possible:

     (1) Date of the cybersecurity event;

     (2) Description of how the information was exposed, lost, stolen, or breached, including

the specific roles and responsibilities of third-party service providers, if any;

     (3) How the cybersecurity event was discovered;

     (4) Whether any lost, stolen, or breached information has been recovered and if so, how

this recovery was achieved;

     (5) The identity of the source of the cybersecurity event;

     (6) Whether the licensee has filed a police report or has notified any regulatory, government

or law enforcement agencies and, if so, when such notification was provided;

     (7) Description of the specific types of information acquired without authorization.

Specific types of information consisting of particular data elements including, for example, types

of medical information, types of financial information or types of information allowing

identification of the consumer;

     (8) The period during which the information system was compromised by the cybersecurity

event;

     (9) The number of total consumers in this state affected by the cybersecurity event. The

licensee shall provide the best estimate in the initial report to the commissioner and update this

estimate with each subsequent report to the commissioner pursuant to this section;

     (10) The results of any internal review identifying a lapse in either automated controls or

internal procedures, or confirming that all automated controls or internal procedures were followed;

     (11) Description of efforts being undertaken to remediate the situation which permitted the

cybersecurity event to occur;

     (12) A copy of the licensee’s privacy policy and a statement outlining the steps the licensee

will take to investigate and notify consumers affected by the cybersecurity event; and

     (13) Name of a contact person who is both familiar with the cybersecurity event and

authorized to act for the licensee.

     (c) Notification to consumers. A licensee shall comply with chapter 49.3 of title 11, as

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applicable, and provide a copy of the notice sent to consumers under that chapter to the

commissioner, when a licensee is required to notify the commissioner under subsection (a) of this

section.

     (d) Notice regarding cybersecurity events of third-party service providers:

     (1) In the case of a cybersecurity event in a system maintained by a third-party service

provider, of which the licensee has become aware, the licensee shall treat that event as it would

under subsection (a) of this section;

     (2) The computation of the licensee’s deadlines shall begin on the day after the third-party

service provider notifies the licensee of the cybersecurity event or the licensee otherwise has actual

knowledge of the cybersecurity event, whichever is sooner;

     (3) Nothing in this chapter shall prevent or abrogate an agreement between a licensee and

another licensee, a third-party service provider or any other party to fulfill any of the investigation

requirements imposed under § 27-1.3-5 or notice requirements imposed under this section.

     (e) Notice regarding cybersecurity events of reinsurers to insurers:

     (1)(i) In the case of a cybersecurity event involving nonpublic information that is used by

the licensee that is acting as an assuming insurer or in the possession, custody or control of a

licensee that is acting as an assuming insurer and that does not have a direct contractual relationship

with the affected consumers, the assuming insurer shall notify its affected ceding insurers and the

commissioner of its state of domicile within seventy two (72) hours of making the determination

that a cybersecurity event has occurred;

     (ii) The ceding insurers that have a direct contractual relationship with affected consumers

shall fulfill the consumer notification requirements imposed under chapter 49.3 of title 11 and any

other notification requirements relating to a cybersecurity event imposed under this section;

     (2)(i) In the case of a cybersecurity event involving nonpublic information that is in the

possession, custody or control of a third-party service provider of a licensee that is an assuming

insurer, the assuming insurer shall notify its affected ceding insurers and the commissioner of its

state of domicile within seventy two (72) hours of receiving notice from its third-party service

provider that a cybersecurity event has occurred;

     (ii) The ceding insurers that have a direct contractual relationship with affected consumers

shall fulfill the consumer notification requirements imposed under chapter 49.3 of title 11 and any

other notification requirements relating to a cybersecurity event imposed under this section.

     (f) Notice regarding cybersecurity events of insurers to producers of record.

     In the case of a cybersecurity event involving nonpublic information that is in the

possession, custody or control of a licensee that is an insurer or its third-party service provider and

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for which a consumer accessed the insurer’s services through an independent insurance producer,

the insurer shall notify the producers of record of all affected consumers as soon as practicable as

directed by the commissioner.

     The insurer is excused from this obligation for those instances in which it does not have

the current producer of record information for any individual consumer.

     27-1.3-7. Power of commissioner.

     (a) The commissioner shall have power to examine and investigate into the affairs of any

licensee to determine whether the licensee has been or is engaged in any conduct in violation of

this chapter. This power is in addition to the powers which the commissioner has pursuant to

chapter 13.1 of title 27. Any such investigation or examination shall be conducted pursuant to

chapter 13.1 of title 27.

     (b) Whenever the commissioner has reason to believe that a licensee has been or is engaged

in conduct in this state which violates this chapter, the commissioner may take action that is

necessary or appropriate to enforce the provisions of this chapter.

     27-1.3-8. Confidentiality.

     (a) Any documents, materials or other information in the control or possession of the

department that are furnished by a licensee or an employee or agent thereof acting on behalf of a

licensee pursuant to §§ 27-1.3-4(i) and 27-1.3-6(b)(2), (3), (4), (5), (8), (10), and (11), or that are

obtained by the commissioner in an investigation or examination pursuant to § 27-1.3-7 shall be

confidential by law and privileged, shall not be subject to chapter 2 of title 38 shall not be subject

to subpoena, and shall not be subject to discovery or admissible in evidence in any private civil

action; provided, however, the commissioner is authorized to use the documents, materials or other

information in the furtherance of any regulatory or legal action brought as a part of the

commissioner’s duties.

     (b) Neither the commissioner nor any person who received documents, materials or other

information while acting under the authority of the commissioner shall be permitted or required to

testify in any private civil action concerning any confidential documents, materials, or information

subject to subsection (a) of this section.

     (c) In order to assist in the performance of the commissioner’s duties under this chapter,

the commissioner:

     (1) May share documents, materials or other information, including the confidential and

privileged documents, materials or information subject to subsection (a) of this section, with other

state, federal, and international regulatory agencies, with the National Association of Insurance

Commissioners, its affiliates or subsidiaries, and with state, federal, and international law

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enforcement authorities; provided that, the recipient agrees in writing to maintain the

confidentiality and privileged status of the document, material or other information;

     (2) May receive documents, materials or information, including otherwise confidential and

privileged documents, materials or information, from the National Association of Insurance

Commissioners, its affiliates or subsidiaries and from regulatory and law enforcement officials of

other foreign or domestic jurisdictions, and shall maintain as confidential or privileged any

document, material or information received with notice or the understanding that it is confidential

or privileged under the laws of the jurisdiction that is the source of the document, material or

information;

     (3) May share documents, materials or other information subject to subsection (a) of this

section, with a third-party consultant or vendor provided the consultant agrees in writing to

maintain the confidentiality and privileged status of the document, material or other information;

and

     (4) May enter into agreements governing sharing and use of information consistent with

this subsection.

     (d) No waiver of any applicable privilege or claim of confidentiality in the documents,

materials, or information shall occur as a result of disclosure to the commissioner under this section

or as a result of sharing as authorized in subsection (c) of this section.

     (e) Nothing in this chapter shall prohibit the commissioner from releasing final, adjudicated

actions that are open to public inspection pursuant to chapter 2 of title 38 to a database or other

clearinghouse service maintained by the National Association of Insurance Commissioners, its

affiliates or subsidiaries.

     27-1.3-9. Exceptions.

     (a) The following exceptions shall apply to this chapter:

     (1) A licensee with fewer than ten (10) employees, including any independent contractors,

is exempt from § 27-1.3-4;

     (2) A licensee subject to Pub.L. 104–191, 110 Stat. 1936, enacted August 21, 1996 (Health

Insurance Portability and Accountability Act) that has established and maintains an information

security program pursuant to such statutes, rules, regulations, procedures or guidelines established

thereunder, will be considered to meet the requirements of § 27-1.3-4; provided that, the licensee

is compliant with, and submits a written statement certifying its compliance with, the same; and

     (3) An employee, agent, representative or designee of a licensee, who is also a licensee, is

exempt from § 27-1.3-4 and need not develop its own information security program to the extent

that the employee, agent, representative or designee is covered by the information security program

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of the other licensee.

     (b) In the event that a licensee ceases to qualify for an exception, the licensee shall have

one hundred eighty (180) days to comply with this chapter.

     27-1.3-10. Penalties.

     In the case of a violation of this chapter, a licensee may be penalized in accordance with §

42-14-16.

     27-1.3-11. Severability.

     If any provisions of this chapter or the application thereof to any person or circumstance is

for any reason held to be invalid, the remainder of the chapter and the application of such provision

to other persons or circumstances shall not be affected thereby.

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO INSURANCE -- INSURANCE DATA SECURITY ACT

***

     This act would adopt the National Association of Insurance Commissioners (NAIC)

Cybersecurity Act which establishes the current standard for insurers doing business in this state.

     This act would take effect upon passage.

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