Solove & Hartzog: The Failure of Data Security Law

Daniel J. Solove of George Washington Woodrow Hartzog of Boston University and the Stanford Law School Center for Internet and Society have posted on SSRN a chapter from their book, Breached! Why Data Security Law Fails and How to Improve It. The chapter is titled The Failure of Data Security Law. Here’s the abstract:

In this book chapter, we survey the law and policy of data security and analyze its strengths and weaknesses. Broadly speaking, there are three types of data security laws: (1) breach notification laws; (2) security safeguards laws that require substantive measures to protect security; and (3) private litigation under various causes of action. We argue that despite some small successes, the law is generally failing to combat the data security threats we face.

Breach notification laws merely require organizations to provide transparency about data breaches, but the laws don’t provide prevention or a cure. Security safeguards laws are often enforced too late, if at all. Enforcement authorities wait until a data breach occurs, but penalizing organizations after a breach increases the pain of a breach marginally, but not enough to be a game changer. Private litigation has increased the costs of data breaches but has accomplished little else. Courts have often struggled to understand the harm from data breaches, so data breach cases have frequently been dismissed.

Overall, we contend that data security law is too reactionary. The law fails to do enough to prevent data breaches, focuses too much on organizations that suffer data breaches and ignores other contributing actors, and doesn’t take sufficient steps to mitigate the harm from data breaches.

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