Section 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.

Enacted by Chapter 40, 2021 General Session