wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

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against organizations even though their actions created enormous
unwarranted risks.
We contend that there is a better role for law to play. The main lesson of
this book is that time and again, data security law and policy are missing the
bigger picture. Lawmakers should move beyond the reactionary “blaming
the breached” and hold accountable all the actors in the data ecosystem that
contribute to the problem. They should break down the silos between
privacy and security. They should promote human-centric security that
accounts for the way people actually think and act.
Part I of this book focuses on the challenges to data security and why the
law is not adequately addressing these challenges.
In Chapter 2, we provide a brief history of data security in this century.
We discuss how and why data breaches started to capture news media
headlines. In our brief sweep through the past two decades, we cover the
most historic breaches and the new security threats that emerged. When
looking at the big picture, the war against data breaches is being lost, one
battle at a time. There is a lot to learn from data breach stories; there are
common plot lines that clearly show us why data security is so often failing.
In Chapter 3, we survey the law and policy of data security and analyze
its strengths and weaknesses. We conclude that despite some small
successes, law and policy are generally failing to combat the data security
threats we face. Data security law is too reactionary. The law often merely
increases the cost of data breaches but fails to do enough to prevent them.
Moreover, the law has failed to protect individuals who are being put at
greater risk by inadequate data security.
In Part II of this book, we propose a different approach to data security
that we call “holistic data security.” Under this approach, the law would
apply earlier, more frequently, to more actors, and to more activity.
In Chapter 4, we introduce our approach, holistic data security, which
focuses on the mitigation of risk in an entire data ecosystem. Instead of
concentrating solely on individualized harm and specific breaches, data
security law should aim to ensure the wellbeing and resilience of the data
ecosystem. Our approach draws insights from fields that focus on entire
systems, such as public health.32 Both data security and public health rules
seek to keep a complex and dynamic system safe and thriving. Both
frameworks address complex, opaque, and ever-shifting risks that make
attributing causation and effective enforcement at the individual level
difficult. Both fields are tasked with mitigating the spread of “viruses.” Yet
public health law seeks to sustain the health of an entire population by
mandating practices that reduce risk across the board.33 Meanwhile, data
security law struggles to look beyond the place where a virus took hold,
addressing only the last links in the chain.
In Chapter 5, we contend that lawmakers and courts can better distribute
responsibility among all the different actors who play a role in the problem
of data security even if they are not proximate to an actual breach. Data
breaches are not just caused by the particular organizations that have the
breach. Breaches are the product of many actors—it takes a village to create
a breach. We provide a survey of these various actors and their
contributions to the problem.
Unfortunately, the law doesn’t hold most of the actors accountable.
Policymakers often focus rather myopically on the particular organizations
being breached, and they often overlook the fact that data security is a
systemic problem.
In Chapter 6, we argue that policymakers also often fail to address
practices by other organizations that increase the harm of data breaches to
people as well as increase the costs. We can’t eliminate all breaches, but we
can significantly reduce the harm that they cause.
In Chapter 7, we address the relationship between privacy and security.
Privacy is a key and underappreciated aspect of data security. Right now,
there is a schism between privacy and security in companies. Privacy
functions are commonly addressed by the compliance and legal
departments, while security is handled by the information technology
department. The two areas are commonly split apart and rarely speak to
each other.
We should bridge data security and privacy and make them go hand-in-
hand in both law and policy. Strong privacy rules help create accountability
for the collection, use, and dissemination of personal information and can
reduce vulnerabilities and risk by minimizing the use and retention of
personal information. Good privacy strengthens security.
In Chapter 8, we argue that although most failures in data security
involve human error, policymakers are not designing security measures
with humans in mind. Instead, humans are expected to do things that are
beyond the bounds of normal cognition. Far too little emphasis and
resources are given to educating people about their role in data security. The
result is that policymakers have failed to address the greatest security
vulnerability—the human factor.
Consider again the Target breach. On a checklist, Target looked healthy
—it had good policies, a large security team, significant resources, and
strong security software. Spending millions of dollars and installing high-
tech software still couldn’t prevent human blunders. Humans turned off the
software. Humans ignored the blinking red lights. A human clicked on the
wrong link.
Rethinking law with humans at the center is not just a simple rethink—it
goes to the very core of our law and policy regarding data security. It means
that many of our existing policies are flawed and that a number of
commonly accepted good security practices are, in fact, bad.
■
In this book, we are calling for policymakers to take a new direction, a
fundamental shift in focus. Along the way, we suggest some specific things
that the law should require, but we are not aiming to provide a laundry list
of particular measures. Our focus is on the big picture. We propose a
different way of thinking about data security, and we set forth our vision for
how the law can take a different approach.
PART I
A Broader Understanding of Data Security
2
The Data Breach Epidemic
Data breaches have been an epidemic. Every year brings countless
headlines about companies whose safeguards have been defeated, resulting
in the exposure of personal data. Every year the breaches grow bigger and

against organizations even though their actions created enormous

unwarranted risks.

We contend that there is a better role for law to play. The main lesson of

this book is that time and again, data security law and policy are missing the

bigger picture. Lawmakers should move beyond the reactionary “blaming

the breached” and hold accountable all the actors in the data ecosystem that

contribute to the problem. They should break down the silos between

privacy and security. They should promote human-centric security that

accounts for the way people actually think and act.

Part I of this book focuses on the challenges to data security and why the

law is not adequately addressing these challenges.

In Chapter 2, we provide a brief history of data security in this century.

We discuss how and why data breaches started to capture news media

headlines. In our brief sweep through the past two decades, we cover the

most historic breaches and the new security threats that emerged. When

looking at the big picture, the war against data breaches is being lost, one

battle at a time. There is a lot to learn from data breach stories; there are

common plot lines that clearly show us why data security is so often failing.

In Chapter 3, we survey the law and policy of data security and analyze

its strengths and weaknesses. We conclude that despite some small

successes, law and policy are generally failing to combat the data security

threats we face. Data security law is too reactionary. The law often merely

increases the cost of data breaches but fails to do enough to prevent them.

Moreover, the law has failed to protect individuals who are being put at

greater risk by inadequate data security.

In Part II of this book, we propose a different approach to data security

that we call “holistic data security.” Under this approach, the law would

apply earlier, more frequently, to more actors, and to more activity.

In Chapter 4, we introduce our approach, holistic data security, which

focuses on the mitigation of risk in an entire data ecosystem. Instead of

concentrating solely on individualized harm and specific breaches, data

security law should aim to ensure the wellbeing and resilience of the data

ecosystem. Our approach draws insights from fields that focus on entire

systems, such as public health.32 Both data security and public health rules

seek to keep a complex and dynamic system safe and thriving. Both

frameworks address complex, opaque, and ever-shifting risks that make

attributing causation and effective enforcement at the individual level

difficult. Both fields are tasked with mitigating the spread of “viruses.” Yet

public health law seeks to sustain the health of an entire population by

mandating practices that reduce risk across the board.33 Meanwhile, data

security law struggles to look beyond the place where a virus took hold,

addressing only the last links in the chain.

In Chapter 5, we contend that lawmakers and courts can better distribute

responsibility among all the different actors who play a role in the problem

of data security even if they are not proximate to an actual breach. Data

breaches are not just caused by the particular organizations that have the

breach. Breaches are the product of many actors—it takes a village to create

a breach. We provide a survey of these various actors and their

contributions to the problem.

Unfortunately, the law doesn’t hold most of the actors accountable.

Policymakers often focus rather myopically on the particular organizations

being breached, and they often overlook the fact that data security is a

systemic problem.

In Chapter 6, we argue that policymakers also often fail to address

practices by other organizations that increase the harm of data breaches to

people as well as increase the costs. We can’t eliminate all breaches, but we

can significantly reduce the harm that they cause.

In Chapter 7, we address the relationship between privacy and security.

Privacy is a key and underappreciated aspect of data security. Right now,

there is a schism between privacy and security in companies. Privacy

functions are commonly addressed by the compliance and legal

departments, while security is handled by the information technology

department. The two areas are commonly split apart and rarely speak to

each other.

We should bridge data security and privacy and make them go hand-in-

hand in both law and policy. Strong privacy rules help create accountability

for the collection, use, and dissemination of personal information and can

reduce vulnerabilities and risk by minimizing the use and retention of

personal information. Good privacy strengthens security.

In Chapter 8, we argue that although most failures in data security

involve human error, policymakers are not designing security measures

with humans in mind. Instead, humans are expected to do things that are

beyond the bounds of normal cognition. Far too little emphasis and

resources are given to educating people about their role in data security. The

result is that policymakers have failed to address the greatest security

vulnerability—the human factor.

Consider again the Target breach. On a checklist, Target looked healthy

—it had good policies, a large security team, significant resources, and

strong security software. Spending millions of dollars and installing high-

tech software still couldn’t prevent human blunders. Humans turned off the

software. Humans ignored the blinking red lights. A human clicked on the

wrong link.

Rethinking law with humans at the center is not just a simple rethink—it

goes to the very core of our law and policy regarding data security. It means

that many of our existing policies are flawed and that a number of

commonly accepted good security practices are, in fact, bad.

■

In this book, we are calling for policymakers to take a new direction, a

fundamental shift in focus. Along the way, we suggest some specific things

that the law should require, but we are not aiming to provide a laundry list

of particular measures. Our focus is on the big picture. We propose a

different way of thinking about data security, and we set forth our vision for

how the law can take a different approach.

PART I

A Broader Understanding of Data Security

2

The Data Breach Epidemic

Data breaches have been an epidemic. Every year brings countless

headlines about companies whose safeguards have been defeated, resulting

in the exposure of personal data. Every year the breaches grow bigger and