On October 30, as reported by the Bureau of National Affairs (“BNA”), the Massachusetts Office of Consumer Affairs and Business Regulation stated that final amendments to its information security regulations had been filed with the Massachusetts Secretary of State. The Standards for the Protection of Personal Information of Residents of the Commonwealth have been the subject of much commentary and a series of amendments as regulators seek to address concerns expressed by businesses over the stringent and specific nature of the regulations. The most recent round of amendments was announced August 17, 2009.
A final version of the latest amendments has not yet been made public, but the BNA has circulated a copy of what is purported to be the final draft, which includes changes to provisions related to service providers. First, the definition of “service provider” has been modified to (1) clarify that “any person” who “stores” personal information through the provision of services will fall within the definition’s scope (the term “stores” was not included in the prior version’s definition), and (2) remove the express exclusion of the U.S. Postal Service from the term “service provider.”
The “safe harbor” provision with respect to existing service provider contracts also has been revised. Pursuant to the regulations, businesses that are subject to the regulations generally must require by contract that third-party service providers implement and maintain appropriate security measures for personal information. While the previous version of the regulation stated that “any contract a person has entered into with a third party service provider prior to March 1, 2012, shall be deemed in compliance . . . notwithstanding the absence in any such contract of [this requirement], so long as the contract was entered into before March 1, 2010,” the new version provides that “until March 1, 2012, a contract a person has entered into with a third party service provider to perform services . . . satisfies [this provision] even if the contract does not include a requirement that the third party service provider maintain such appropriate safeguards, as long as said person entered into the contract no later than March 1, 2010.” The revision clarifies that the deadline for updating service provider contracts entered into prior to March 1, 2010 is March 1, 2012, and any contracts entered into after March 1, 2010 must comply with the regulations upon execution.