wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

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Our goal is to reorient the way the law addresses actors who create and
participate in systems that leave personal information vulnerable to
exposure and misuse.
Our book is not about cybersecurity in the broadest sense of the term,
which applies to all forms of security with systems that use the Internet.27
Instead, our focus is on data security, a significant piece of the
cybersecurity pie that involves personal data. Data security law is largely
part of privacy, data protection, and consumer protection frameworks like
the Federal Trade Commission’s (FTC) enforcement of rules against
deceptive and unfair trade practices, the European Union’s General Data
Protection Regulation (GDPR), statutes that govern entities using personal
data like the Health Insurance Portability and Accountability Act (HIPAA),
and the law of torts that provides a remedy for negligent data practices.28
Although there is a lot of overlap between optimal regulation for data
security and cybersecurity, there are important differences. The risk
thresholds, threat modeling, actors affected, and type and magnitude of
harm can differ when personal data is involved rather than when supply
chains, machinery, or infrastructure are involved. It thus makes sense in
some contexts to treat data security as unique from other areas of
cybersecurity, and the law does so. Data security law emerges more from
privacy law than cybersecurity law.
Unfortunately, data security law currently exists in an awkward space
between cybersecurity and privacy. Being in this space has been a detriment
to data security law, which has often failed to incorporate the strengths of
both cybersecurity and privacy. Laws addressing privacy issues often
include data security as part of their framework. Because the legislative lens
is on privacy, legislators typically focus on the individual. Breach
notification dominates data security law. The security rules are often vague
and sparse. In contrast, cybersecurity law frequently includes more robust
security rules based on systems-focused security frameworks.
In a cruelly ironic way, data security law also fails to draw strengths
from privacy law. Data security remains quite siloed from privacy. When it
is part of privacy laws, data security is often cabined to narrow sections.
Data security law has not fully incorporated privacy law’s evolving
recognition about designing to accommodate human behavior and
protecting human values beyond confidentiality. To make matters worse,
the protections in privacy law often fall short in ways that are bad for data
security.
The fact that data security is often part of the fabric of privacy law is a
missed opportunity. Lawmakers could draw from privacy law’s toolbox to
bring a richer and more nuanced approach to securing personal data. Yet so
far, they have not.
In this book, we hope to bring data security law out of this “no man’s
land” to better reflect the overlapping wisdom of privacy and cybersecurity.
Because we focus mainly on personal data, we largely leave to others more
general critical cybersecurity issues such as infrastructure security,
industrial espionage, cyberwarfare, computer crime, trade secrets and
proprietary data, and the nuanced debates surrounding the market for and
disclosure of security vulnerabilities.29 Of course, these issues overlap with
data security problems.30 But in this book we are examining the data
security piece of the pie.
We also are not seeking to critique the established strategies
technologists have developed to protect information. Nor are we proposing
new technological approaches to the field of cybersecurity. Rather, as legal
scholars, we are drawing from existing security knowledge that the law
often fails to embrace. Because we are not technology experts, we will not
delve too deeply into technical specifics of data security. Instead, our goal is
to develop principles and theories that can guide the law for the foreseeable
future. In this book, we propose a general approach lawmakers and judges
can take to improve the security of personal data, and we outline a broad set
of principles to bring coherence and consistency to a body of law that for
too long has been focusing in the wrong direction.
Our argument is built around one overarching point: To improve the
rules
for
securing
personal
information,
policymakers
must
counterintuitively shift the law’s focus beyond data breaches. Too much of
the current law of data security places the breach at the center of
everything. Turning data security law into the “law of breaches” has the
effect of over-emphasizing the conduct of the breached entities while
ignoring the other actors and factors that contributed to the breach. We
present an alternative, broader vision of data security policy in three areas:
accountability, redress, and technological design.
It is tempting to say to organizations: “Come on, just be more secure!”
But data security is notoriously complicated and needs a great deal of
calibration. Ironically, some attempts by lawmakers and industry to add
more security can actually make systems more vulnerable.31 Security
measures come with difficult costs and tradeoffs, so the choice of which
ones to use and how many is quite challenging.
Data security is a delicate dance between technology and people. The
ideal amount of data security is not necessarily to be as secure as possible
and avoid a breach at all costs. In most cases, it is a poor policy choice for
an organization to have the strongest possible security because the tradeoffs
are too significant. It is easy to underappreciate the costs of many security
measures because costs are often thought of in monetary terms. But the
biggest costs of many security measures are that they can reduce
functionality, make things inefficient and inconvenient, and be difficult and
time-consuming.
One of the challenges with data security is that there are no absolute
answers, as we are dealing with a continuum of risk and an ongoing cat-
and-mouse game between attackers and defenders. Policy choices depend
upon not only an assessment of risk but also an assessment of the costs of
addressing those risks. A complicated balancing must take place.
Current data security rules fail to address risk effectively. In many
circumstances, the law penalizes breaches with little regard to
considerations of risk and balance. Other times, the law levies no penalty

Our goal is to reorient the way the law addresses actors who create and

participate in systems that leave personal information vulnerable to

exposure and misuse.

Our book is not about cybersecurity in the broadest sense of the term,

which applies to all forms of security with systems that use the Internet.27

Instead, our focus is on data security, a significant piece of the

cybersecurity pie that involves personal data. Data security law is largely

part of privacy, data protection, and consumer protection frameworks like

the Federal Trade Commission’s (FTC) enforcement of rules against

deceptive and unfair trade practices, the European Union’s General Data

Protection Regulation (GDPR), statutes that govern entities using personal

data like the Health Insurance Portability and Accountability Act (HIPAA),

and the law of torts that provides a remedy for negligent data practices.28

Although there is a lot of overlap between optimal regulation for data

security and cybersecurity, there are important differences. The risk

thresholds, threat modeling, actors affected, and type and magnitude of

harm can differ when personal data is involved rather than when supply

chains, machinery, or infrastructure are involved. It thus makes sense in

some contexts to treat data security as unique from other areas of

cybersecurity, and the law does so. Data security law emerges more from

privacy law than cybersecurity law.

Unfortunately, data security law currently exists in an awkward space

between cybersecurity and privacy. Being in this space has been a detriment

to data security law, which has often failed to incorporate the strengths of

both cybersecurity and privacy. Laws addressing privacy issues often

include data security as part of their framework. Because the legislative lens

is on privacy, legislators typically focus on the individual. Breach

notification dominates data security law. The security rules are often vague

and sparse. In contrast, cybersecurity law frequently includes more robust

security rules based on systems-focused security frameworks.

In a cruelly ironic way, data security law also fails to draw strengths

from privacy law. Data security remains quite siloed from privacy. When it

is part of privacy laws, data security is often cabined to narrow sections.

Data security law has not fully incorporated privacy law’s evolving

recognition about designing to accommodate human behavior and

protecting human values beyond confidentiality. To make matters worse,

the protections in privacy law often fall short in ways that are bad for data

security.

The fact that data security is often part of the fabric of privacy law is a

missed opportunity. Lawmakers could draw from privacy law’s toolbox to

bring a richer and more nuanced approach to securing personal data. Yet so

far, they have not.

In this book, we hope to bring data security law out of this “no man’s

land” to better reflect the overlapping wisdom of privacy and cybersecurity.

Because we focus mainly on personal data, we largely leave to others more

general critical cybersecurity issues such as infrastructure security,

industrial espionage, cyberwarfare, computer crime, trade secrets and

proprietary data, and the nuanced debates surrounding the market for and

disclosure of security vulnerabilities.29 Of course, these issues overlap with

data security problems.30 But in this book we are examining the data

security piece of the pie.

We also are not seeking to critique the established strategies

technologists have developed to protect information. Nor are we proposing

new technological approaches to the field of cybersecurity. Rather, as legal

scholars, we are drawing from existing security knowledge that the law

often fails to embrace. Because we are not technology experts, we will not

delve too deeply into technical specifics of data security. Instead, our goal is

to develop principles and theories that can guide the law for the foreseeable

future. In this book, we propose a general approach lawmakers and judges

can take to improve the security of personal data, and we outline a broad set

of principles to bring coherence and consistency to a body of law that for

too long has been focusing in the wrong direction.

Our argument is built around one overarching point: To improve the

rules

for

securing

personal

information,

policymakers

must

counterintuitively shift the law’s focus beyond data breaches. Too much of

the current law of data security places the breach at the center of

everything. Turning data security law into the “law of breaches” has the

effect of over-emphasizing the conduct of the breached entities while

ignoring the other actors and factors that contributed to the breach. We

present an alternative, broader vision of data security policy in three areas:

accountability, redress, and technological design.

It is tempting to say to organizations: “Come on, just be more secure!”

But data security is notoriously complicated and needs a great deal of

calibration. Ironically, some attempts by lawmakers and industry to add

more security can actually make systems more vulnerable.31 Security

measures come with difficult costs and tradeoffs, so the choice of which

ones to use and how many is quite challenging.

Data security is a delicate dance between technology and people. The

ideal amount of data security is not necessarily to be as secure as possible

and avoid a breach at all costs. In most cases, it is a poor policy choice for

an organization to have the strongest possible security because the tradeoffs

are too significant. It is easy to underappreciate the costs of many security

measures because costs are often thought of in monetary terms. But the

biggest costs of many security measures are that they can reduce

functionality, make things inefficient and inconvenient, and be difficult and

time-consuming.

One of the challenges with data security is that there are no absolute

answers, as we are dealing with a continuum of risk and an ongoing cat-

and-mouse game between attackers and defenders. Policy choices depend

upon not only an assessment of risk but also an assessment of the costs of

addressing those risks. A complicated balancing must take place.

Current data security rules fail to address risk effectively. In many

circumstances, the law penalizes breaches with little regard to

considerations of risk and balance. Other times, the law levies no penalty