wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

text stringlengths 0 118
Breached!
Breached!
Why Data Security Law Fails and How to Improve It
DANIEL J. SOLOVE & WOODROW HARTZOG
Oxford University Press is a department of the University of Oxford. It furthers the University’s
objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a
registered trade mark of Oxford University Press in the UK and certain other countries.
Published in the United States of America by Oxford University Press 198 Madison Avenue, New
York, NY 10016, United States of America.
© Daniel J. Solove and Woodrow Hartzog 2022
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or
transmitted, in any form or by any means, without the prior permission in writing of Oxford
University Press, or as expressly permitted by law, by license, or under terms agreed with the
appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of
the above should be sent to the Rights Department, Oxford University Press, at the address above.
You must not circulate this work in any other form and you must impose this same condition on any
acquirer.
CIP data is on file at the Library of Congress ISBN 978–0–19–094055–3
eISBN 978–0–19–094057–7

To Pamela and Griffin—DJS
To Mom and Dad—WH
TABLE OF CONTENTS
1.
Introduction: Chronicle of a Breach Foretold
PART I: A BROADER UNDERSTANDING OF DATA SECURITY
2.
The Data Breach Epidemic
3.
The Failure of Data Security Law
PART II: HOLISTIC DATA SECURITY LAW
4.
The Big Picture: System and Structure
5.
Responsibility Across the Whole Data Ecosystem
6.
Reducing Harm from Data Breaches
7.
Unifying Privacy and Data Security
8.
Designing Security for Humans, the Weakest Link
9.
Conclusion: The Holistic Approach
ACKNOWLEDGMENTS
NOTES
INDEX
1
Introduction
Chronicle of a Breach Foretold
Sometimes the thing we are looking for is right in front of us and yet we
still don’t see it. A great novella by Gabriel Garcia Marquez called
Chronicle of a Death Foretold begins with the vicious fatal stabbing of the
main character. The rest of the story reveals that all the warning signs about
the murder were in plain sight yet ignored by everyone. The murder was
readily preventable—but, because of human nature, it was almost
inevitable.
The story of most data breaches follows the same pattern. We have read
about thousands of data breaches, and the moral of most of these stories
boils down to the same thing: The breaches were preventable, but people
made blunders. What is quite remarkable about these stories is that they
haven’t evolved that much in decades. The same mistakes keep happening
again and again. After so many years, and so many laws to regulate data
security, why haven’t the stories changed?
Let us begin with a classic data breach tale involving one of the largest
and most notable breaches of its time—the Target breach of 2013. The story
has many of the common themes of data breach stories, and what makes it
particularly fascinating is that it is a sinister version of a David-and-Goliath
story. Target was Goliath, and it was well-fortified. With its extensive
resources and defenses, Target was far more protected than most
organizations. Yet, it still failed. This fact should send shivers down our
spines.
In mid-December 2013, right in the middle of the holiday shopping
season, executives at Target found out some dreaded news: Target had been
hacked. It was cruel irony that the second-largest discount store chain in the
United States quite literally had a target sign on it—Target’s logo is a red
and white bullseye. The hackers hit it with an arrow straight into the center.
Executives at Target learned about the breach from Department of
Justice officials, who informed them that stolen data from Target was
appearing online and that reports of fraudulent credit card charges were
starting to pop up.1 Quite concerned, the Target executives immediately
hired a forensics firm to investigate.
What they discovered was devastating. Target’s computer system had
been infected with malware, and there had been a data breach. It wasn’t just
a small breach, or a sizeable one, or even a big one—it was a breach of epic
proportions.2 Target had the dubious distinction of having suffered the
largest retail data breach in U.S. history.3
Over the course of two weeks starting in November 2013, hackers had
stolen detailed information for about 40 million credit and debit card
accounts, as well as personal information on about 70 million Target
customers.4 The hackers had begun to sell their tremendous data haul on
black-market fraud websites.
The timing couldn’t have been worse for Target. It suffered the single
largest decline of holiday transactions since it first began reporting the
statistic.5 Target sales plummeted during a season which traditionally
accounts for 20 to 40 percent of a retailer’s annual sales.6 To stop the
bleeding, Target offered a 10 percent discount across the board.
Nevertheless, the damage was catastrophic. The company’s profits for the
holiday shopping period fell a whopping 46 percent.7
The pain was just beginning. On top of the lost profits, costs associated
with the breach topped $200 million by mid-February 2014. These costs

Breached!

Why Data Security Law Fails and How to Improve It

DANIEL J. SOLOVE & WOODROW HARTZOG

Oxford University Press is a department of the University of Oxford. It furthers the University’s

objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a

registered trade mark of Oxford University Press in the UK and certain other countries.

Published in the United States of America by Oxford University Press 198 Madison Avenue, New

York, NY 10016, United States of America.

transmitted, in any form or by any means, without the prior permission in writing of Oxford

University Press, or as expressly permitted by law, by license, or under terms agreed with the

appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of

the above should be sent to the Rights Department, Oxford University Press, at the address above.

You must not circulate this work in any other form and you must impose this same condition on any

acquirer.

CIP data is on file at the Library of Congress ISBN 978–0–19–094055–3

eISBN 978–0–19–094057–7

To Pamela and Griffin—DJS

To Mom and Dad—WH

TABLE OF CONTENTS

1.

Introduction: Chronicle of a Breach Foretold

PART I: A BROADER UNDERSTANDING OF DATA SECURITY

2.

The Data Breach Epidemic

3.

The Failure of Data Security Law

PART II: HOLISTIC DATA SECURITY LAW

4.

The Big Picture: System and Structure

5.

Responsibility Across the Whole Data Ecosystem

6.

Reducing Harm from Data Breaches

7.

Unifying Privacy and Data Security

8.

Designing Security for Humans, the Weakest Link

9.

Conclusion: The Holistic Approach

ACKNOWLEDGMENTS

NOTES

INDEX

1

Introduction

Chronicle of a Breach Foretold

Sometimes the thing we are looking for is right in front of us and yet we

still don’t see it. A great novella by Gabriel Garcia Marquez called

Chronicle of a Death Foretold begins with the vicious fatal stabbing of the

main character. The rest of the story reveals that all the warning signs about

the murder were in plain sight yet ignored by everyone. The murder was

readily preventable—but, because of human nature, it was almost

inevitable.

The story of most data breaches follows the same pattern. We have read

about thousands of data breaches, and the moral of most of these stories

boils down to the same thing: The breaches were preventable, but people

made blunders. What is quite remarkable about these stories is that they

haven’t evolved that much in decades. The same mistakes keep happening

again and again. After so many years, and so many laws to regulate data

security, why haven’t the stories changed?

Let us begin with a classic data breach tale involving one of the largest

and most notable breaches of its time—the Target breach of 2013. The story

has many of the common themes of data breach stories, and what makes it

particularly fascinating is that it is a sinister version of a David-and-Goliath

story. Target was Goliath, and it was well-fortified. With its extensive

resources and defenses, Target was far more protected than most

organizations. Yet, it still failed. This fact should send shivers down our

spines.

In mid-December 2013, right in the middle of the holiday shopping

season, executives at Target found out some dreaded news: Target had been

hacked. It was cruel irony that the second-largest discount store chain in the

United States quite literally had a target sign on it—Target’s logo is a red

and white bullseye. The hackers hit it with an arrow straight into the center.

Executives at Target learned about the breach from Department of

Justice officials, who informed them that stolen data from Target was

appearing online and that reports of fraudulent credit card charges were

starting to pop up.1 Quite concerned, the Target executives immediately

hired a forensics firm to investigate.

What they discovered was devastating. Target’s computer system had

been infected with malware, and there had been a data breach. It wasn’t just

a small breach, or a sizeable one, or even a big one—it was a breach of epic

proportions.2 Target had the dubious distinction of having suffered the

largest retail data breach in U.S. history.3

Over the course of two weeks starting in November 2013, hackers had

stolen detailed information for about 40 million credit and debit card

accounts, as well as personal information on about 70 million Target

customers.4 The hackers had begun to sell their tremendous data haul on

black-market fraud websites.

The timing couldn’t have been worse for Target. It suffered the single

largest decline of holiday transactions since it first began reporting the

statistic.5 Target sales plummeted during a season which traditionally

accounts for 20 to 40 percent of a retailer’s annual sales.6 To stop the

bleeding, Target offered a 10 percent discount across the board.

Nevertheless, the damage was catastrophic. The company’s profits for the

holiday shopping period fell a whopping 46 percent.7

The pain was just beginning. On top of the lost profits, costs associated

with the breach topped $200 million by mid-February 2014. These costs