According to one survey, Florida is fourth on the list of states with the most reported data breaches. No doubt, data breaches continue to be a significant risk for all business, large and small, across the U.S., including the Sunshine State. Perhaps more troubling is that class action litigation is more likely to follow a data breach. A common claim in those cases – the business did not do enough to safeguard personal information from the attack. So, Florida businesses need to know about the Florida Information Protection Act (FIPA) which mandates that certain entities implement reasonable measures to protect electronic data containing personal information.

According to a Law.com article:

The monthly average of 2023 data breach class actions was 44.5 through the end of August, up from 20.6 in 2022.

While a business may not be able to completely prevent a data breach, adopting reasonable safeguards can minimize the risk of one occurring, as well as the severity of an attack. Additionally, maintaining reasonable safeguards to protect personal information strengthens the businesses’ defensible position should it face an government agency investigation or lawsuit after an attack.

Entities Subject to FIPA

FIPA applies to a broad range of organizations, including:

• Covered Entities: This encompasses any sole proprietorship, partnership, corporation, or other legal entity that acquires, maintains, stores, or uses personal information…so, just about any business in the state. There are no exceptions for small businesses.

• Governmental Entities: Any state department, division, bureau, commission, regional planning agency, board, district, authority, agency, or other instrumentality that handles personal information.

• Third-Party Agents: Entities contracted to maintain, store, or process personal information on behalf of a covered entity or governmental entity. This means that just about any vendor or third party service provider that maintains, stores, or processes personal information for a covered entity is also covered by FIPA.

Defining “Reasonable Measures” in Florida

FIPA requires:

Each covered entity, governmental entity, or third-party agent shall take reasonable measures to protect and secure data in electronic form containing personal information.

While FIPA mandates the implementation of “reasonable measures” to protect personal information, it does not provide a specific definition, leaving room for interpretation. However, guidance can be drawn from various sources:

• Industry Standards: Adhering to established cybersecurity frameworks, such as the Center for Internet Security’s Critical Security Controls, can demonstrate reasonable security practices. 
• Regulatory Guidance: For businesses that are more heavily regulated, such as healthcare entities, they can looked to federal and state frameworks that apply to them, such as the Health Insurance Portability and Accountability Act (HIPAA). Entities in the financial sector may be subject to both federal regulations, like the Gramm-Leach-Bliley Act, and state-imposed data protection requirements. The Florida Attorney General’s office may offer insights or recommendations on what constitutes reasonable measures. Here is one example, albeit not comprehensive.
• Standards in Other States: Several other states have outlined more specific requirements for protecting personal information. Examples include New York and Massachusetts. 

Best Practices for Implementing Reasonable Safeguards

Very often, various data security frameworks have several overlapping provisions. With that in mind, covered businesses might consider the following nonexhaustive list of best practices toward FIPA compliance. Many of the items on this list will seem obvious, even basic. But in many cases, these measures either simply have not been implemented or are not covered in written policies and procedures.

• Conduct Regular Risk Assessments: Identify and evaluate potential vulnerabilities within your information systems to address emerging threats proactively.
• Implement Access Controls: Restrict access to personal information to authorized personnel only, ensuring that employees have access solely to the data necessary for their roles.
• Encrypt Sensitive Data: Utilize strong encryption methods for personal information both at rest and during transmission to prevent unauthorized access.
• Develop and Enforce Written Data Security Policies, and Create Awareness: Establish comprehensive data protection policies and maintain them in writing. Once completed, information about relevant policies and procedures need to shared with employees, along with creating awareness about the changing risk landscape.
• Maintain and Practice Incident Response Plans: Prepare and regularly update a response plan to address potential data breaches promptly and effectively, minimizing potential damages. Letting this plan sit on the shelf will have minimal impact on preparedness when facing a real data breach. It is critical to conduct tabletop and similar exercises with key members of leadership.
• Regularly Update and Patch Systems: Keep all software and systems current with the latest security patches to protect against known vulnerabilities.

By diligently implementing these practices, entities can better protect personal information, comply with Florida’s legal requirements, and minimize risk.