wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

text stringlengths 0 118
what the typical letter says: It begins by saying that the organization regrets
to inform you that your data was lost or stolen or improperly accessed,
describes the type of data involved, briefly relays what is known about the
incident, provides a phone number hotline to call for more information, and
often offers one year of free credit monitoring. And that’s it, even if you get
that much.
The organization sending these letters hope that after a quick groan, you
will throw the letter in the trash and move on with your day. Indeed, the
costs for organizations are lower if fewer people call the hotline or request
credit monitoring, so the letters are written to avoid making people feel
uneasy or alarmed.
Breach notification is now a basic part of the canon for data security law.
That lone California law sparked a trend that has launched billions of
letters. If there’s an undisputed winner in all this, it’s the post office.
Variations in Breach Notification Laws
Although breach notification laws all have some form of notification in
common, the laws are far from uniform, and their approaches have evolved
over the years.
Breach notification laws differ significantly on how they define a “data
breach”—the type of incident that triggers notification. Generally speaking,
most states define a breach either as any unauthorized access to personal
information or as acquisition of personal information.14 Many states adopt
some form of a harm requirement along the lines of the “CIA” security triad
(intrusions that compromise the confidentiality, integrity, or availability of
personal data).15 However, enough ambiguity remains in many definitions
of a security breach that it is not fully clear if a breach occurs merely when
unauthorized people gain access to a data storage system or whether the
data must be exposed to significant risk (even if harm has not yet
occurrred).16
California’s breach law requires that personal data be “reasonably
believed” to have been “acquired” by an unauthorized party.17 According to
guidance by the California Office of Privacy Protection, factors to
demonstrate acquisition of personal data include indications that the data is
“in the physical possession and control of an unauthorized person” or “has
been downloaded or copied” or “was used by an unauthorized person.”18
Many U.S. states have followed this approach and define a breach as
involving the acquisition of personal data.
The problem with requiring the acquisition of data is that sometimes
unauthorized people look at data yet do not copy it. The goal might have
been just to learn information. But many laws do not consider such actions
to be a breach. Frequently, all that can be known is that a hacker broke in
and improperly accessed the data; whether the hacker copied it or used it is
unknown. Nor is it known what the hacker might do in the future. In other
words, the hacker could have acquired the data, but it is quite difficult to
know for sure.
Other notification laws require notification only if here is a “misuse” of
personal data or a reasonable likelihood of misuse.19 HIPAA’s breach
notification standard requires notification when there is a risk greater than a
“low risk” that information is “compromised.”20 The EU’s General Data
Protection Regulation (GDPR) requires notification whenever data has been
improperly accessed, destroyed, lost, or altered that will “result in a risk to
the rights and freedoms of natural persons.”21
Another way that notification laws vary is in how they define “personal
information.” Notification is required only for breaches involving personal
information. In the U.S., most states define personal information as an
individual’s first name or first initial and last name in combination with an
additional data element, such as a Social Security Number, driver’s license
number, or financial account information with the applicable PIN or access
code for same. Recently, however, many states have amended their statute’s
definition of personal information to include additional data elements, such
as biometric health information, username, email address, and password.
In the EU, the GDPR has a broader concept of personal information.
Using the term “personal data,” the GDPR’s definition encompasses “any
information relating to an identified or identifiable natural person.”
Personal data is “identifiable” when it is possible to identify people directly
or indirectly” from the information.22 The GDPR’s definition is much more
sensible compared to the way many U.S. notification laws have defined
personal information. There are many instances under U.S. laws where
information can be linked to people and can be used to cause them harm yet
don’t fall under the statutory definitions of personal information.
Once a notification law is triggered—by a type of incident affecting
personal information—the laws further vary in how quickly they require
notification. Many laws mandate notification “without delay” or “as soon as
practicable.” In the United States, a sizeable minority of states (about 40
percent) have timelines. Florida and Ohio were the first states to mandate a
maximum time (45 days) between the identification of a breach and
notification of the affected parties. Both laws were passed in 2005. In 2006,
Wisconsin and Colorado set time limits of 45 days and 30 days,
respectively.
Before 2014, only these four states had set time limits. But then, in 2014
and over the next few years, 14 more states added timelines ranging from
15 to 90 days, with most still mandating 45 days. Recently, timelines have
been shrinking. The GDPR, for example, requires notification of the
authorities within 72 hours after discovering the breach.23
Notification laws also diverge in who can sue following a violation of
the law. In the U.S., 10 states and the District of Columbia explicitly allow
for a private right of action in their laws.24 Most states lack a private right
of action.
Problems with Breach Notification Laws
Breach notification laws are quite popular, but do they work well? In at
least one way, they do. Breach notification laws have added much greater
transparency to data breaches. The increased transparency has been
tremendously important, shedding much-needed light on the extensiveness
of the data breach epidemic and the inadequacy of the data security of many
organizations. They also at least provide a reputational incentive to
encourage executives to invest some resources into avoiding data breaches.
Unfortunately, in many other respects, breach notification falls short.
Breach notification laws ultimately do not require good security; they
merely require organizations to provide information about data breaches.
INADEQUATE PROTECTION OF CONSUMERS

what the typical letter says: It begins by saying that the organization regrets

to inform you that your data was lost or stolen or improperly accessed,

describes the type of data involved, briefly relays what is known about the

incident, provides a phone number hotline to call for more information, and

often offers one year of free credit monitoring. And that’s it, even if you get

that much.

The organization sending these letters hope that after a quick groan, you

will throw the letter in the trash and move on with your day. Indeed, the

costs for organizations are lower if fewer people call the hotline or request

credit monitoring, so the letters are written to avoid making people feel

uneasy or alarmed.

Breach notification is now a basic part of the canon for data security law.

That lone California law sparked a trend that has launched billions of

letters. If there’s an undisputed winner in all this, it’s the post office.

Variations in Breach Notification Laws

Although breach notification laws all have some form of notification in

common, the laws are far from uniform, and their approaches have evolved

over the years.

Breach notification laws differ significantly on how they define a “data

breach”—the type of incident that triggers notification. Generally speaking,

most states define a breach either as any unauthorized access to personal

information or as acquisition of personal information.14 Many states adopt

some form of a harm requirement along the lines of the “CIA” security triad

(intrusions that compromise the confidentiality, integrity, or availability of

personal data).15 However, enough ambiguity remains in many definitions

of a security breach that it is not fully clear if a breach occurs merely when

unauthorized people gain access to a data storage system or whether the

data must be exposed to significant risk (even if harm has not yet

occurrred).16

California’s breach law requires that personal data be “reasonably

believed” to have been “acquired” by an unauthorized party.17 According to

guidance by the California Office of Privacy Protection, factors to

demonstrate acquisition of personal data include indications that the data is

“in the physical possession and control of an unauthorized person” or “has

been downloaded or copied” or “was used by an unauthorized person.”18

Many U.S. states have followed this approach and define a breach as

involving the acquisition of personal data.

The problem with requiring the acquisition of data is that sometimes

unauthorized people look at data yet do not copy it. The goal might have

been just to learn information. But many laws do not consider such actions

to be a breach. Frequently, all that can be known is that a hacker broke in

and improperly accessed the data; whether the hacker copied it or used it is

unknown. Nor is it known what the hacker might do in the future. In other

words, the hacker could have acquired the data, but it is quite difficult to

know for sure.

Other notification laws require notification only if here is a “misuse” of

personal data or a reasonable likelihood of misuse.19 HIPAA’s breach

notification standard requires notification when there is a risk greater than a

“low risk” that information is “compromised.”20 The EU’s General Data

Protection Regulation (GDPR) requires notification whenever data has been

improperly accessed, destroyed, lost, or altered that will “result in a risk to

the rights and freedoms of natural persons.”21

Another way that notification laws vary is in how they define “personal

information.” Notification is required only for breaches involving personal

information. In the U.S., most states define personal information as an

individual’s first name or first initial and last name in combination with an

additional data element, such as a Social Security Number, driver’s license

number, or financial account information with the applicable PIN or access

code for same. Recently, however, many states have amended their statute’s

definition of personal information to include additional data elements, such

as biometric health information, username, email address, and password.

In the EU, the GDPR has a broader concept of personal information.

Using the term “personal data,” the GDPR’s definition encompasses “any

information relating to an identified or identifiable natural person.”

Personal data is “identifiable” when it is possible to identify people directly

or indirectly” from the information.22 The GDPR’s definition is much more

sensible compared to the way many U.S. notification laws have defined

personal information. There are many instances under U.S. laws where

information can be linked to people and can be used to cause them harm yet

don’t fall under the statutory definitions of personal information.

Once a notification law is triggered—by a type of incident affecting

personal information—the laws further vary in how quickly they require

notification. Many laws mandate notification “without delay” or “as soon as

practicable.” In the United States, a sizeable minority of states (about 40

percent) have timelines. Florida and Ohio were the first states to mandate a

maximum time (45 days) between the identification of a breach and

notification of the affected parties. Both laws were passed in 2005. In 2006,

Wisconsin and Colorado set time limits of 45 days and 30 days,

respectively.

Before 2014, only these four states had set time limits. But then, in 2014

and over the next few years, 14 more states added timelines ranging from

15 to 90 days, with most still mandating 45 days. Recently, timelines have

been shrinking. The GDPR, for example, requires notification of the

authorities within 72 hours after discovering the breach.23

Notification laws also diverge in who can sue following a violation of

the law. In the U.S., 10 states and the District of Columbia explicitly allow

for a private right of action in their laws.24 Most states lack a private right

of action.

Problems with Breach Notification Laws

Breach notification laws are quite popular, but do they work well? In at

least one way, they do. Breach notification laws have added much greater

transparency to data breaches. The increased transparency has been

tremendously important, shedding much-needed light on the extensiveness

of the data breach epidemic and the inadequacy of the data security of many

organizations. They also at least provide a reputational incentive to

encourage executives to invest some resources into avoiding data breaches.

Unfortunately, in many other respects, breach notification falls short.

Breach notification laws ultimately do not require good security; they

merely require organizations to provide information about data breaches.

INADEQUATE PROTECTION OF CONSUMERS