wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

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including information about people’s families. Why did it need to keep all
this data and why keep it for so long?
Had OPM collected and stored less data and regularly deleted some of it,
the breach wouldn’t have been as damaging. Moreover, had OPM
segmented the data or better restricted access to it, the hackers would have
had a harder time hauling it all away. Had OPM assigned a data steward for
the data, someone who would be accountable for it and who would make
sure it was properly being cared for, the breach might never have occurred.
OPM maintained background check information to protect security—to
prevent government personnel from being compromised and betraying the
United States by giving up secrets, helping foreign governments break into
computer systems, or other things. Ironically, the hacked data not only
violated people’s privacy but it created a grave security threat—and it
continues to pose such a threat to this day. Several security experts have
warned that the information in security clearance and background checks
could be used to blackmail government employees in sensitive positions.12
A former assistant director of the FBI’s Criminal, Cyber, Response and
Services Branch told The Washington Post that the OPM breach provided
hackers with “very detailed information about people who hold very
sensitive clearances.”13 Hackers could use this information to conduct spear
phishing, targeted attempts to glean personal information to “gain access to
sensitive computer accounts and even potentially conduct a physical attack
or attempt extortion.”14
The story of the OPM breach certainly reveals a stunning display of bad
security practices. The story also demonstrates how poor privacy practices
made the breach more possible and much worse than it should have been. In
this chapter, we address the relationship between privacy and security.
Good data security is almost impossible without a robust commitment to
privacy values. Privacy is a key and underappreciated aspect of data
security. Lawmakers and industry should break down the regulatory and
organizational silos that keep them apart and strengthen our privacy rules as
one way to enhance data security and mitigate breaches.
UNDERSTANDING CYBERSECURITY, DATA SECURITY, AND DATA
PRIVACY
At the outset of our discussion, it is essential to understand the general
scope of the domains of cybersecurity, data security, and privacy.
Cybersecurity is generally used to broadly refer to the security of all forms
of information and technical infrastructures, such as intellectual property,
critical infrastructure data, trade secrets, personal data, and more.15Data
security is a narrower domain that involves the security of personal data. As
David Thaw observes, cybersecurity as a whole can have different goals
than protecting personal data.16 He elaborates, “The security techniques and
goals for protection of strategic weapon control systems are different than
the techniques and goals for an average consumer, for example, protecting
their personal computer used primarily for entertainment purposes.”17
Privacy involves, among other things, a wide array of protections of
personal data. Because privacy is an important aspect of personal data, it is
closer to data security, but still not entirely the same. In some formulations,
privacy is a broader domain that encompasses data security, which is a
subset of the protections given to personal data. It is this formulation that
we prefer, as we see data privacy as a pie with many essential pieces, one of
which is data security.
In many ways, the EU’s terminology is better. The EU uses the term
data protection to encompass both data privacy and data security. The EU is
exactly right—data privacy and data security are both, essentially, about
protecting data. The EU doesn’t see privacy and security as separate
domains, at least not in the same way that the United States does.
Although privacy and data security are related and intertwined, they
aren’t identical. As law professor Derek Bambauer observes, “Privacy
establishes a normative framework for deciding who should legitimately
have the capability to access and alter information. Security implements
those choices.”18 Jeff Kosseff notes that security “promotes the
confidentiality, integrity, and availability of public and private information,
systems, and networks.” Security “must address more than just the
confidentiality of personal information, and also seek to protect from
unauthorized alteration of data and attacks such as ransomware that cause
data or systems to become unavailable.”19
We caution against clean and rigid distinctions between privacy and data
security, at least in law and policy. Much of data security involves duties
and administrative policies and procedures that are similar to those for
privacy. Moreover, as we argued earlier, data security is more of an art than
a science, and it involves difficult policy tradeoffs just like privacy does.
Although privacy and security are distinct in many ways, they have quite a
lot in common. Viewing data security policy primarily as a collection of
requirements for breach notifications and technical controls excludes many
of the most important issues from security, and it silos privacy and security
in ways that are unproductive.
THE SCHISM BETWEEN PRIVACY AND SECURITY
A major schism exists between privacy and security. This schism arose in
part because data security gets lumped with cybersecurity, and much of
security these days is the province of the Information Technology
department.
Different Silos and Different Languages
Organizations often place privacy functions in Compliance or Legal while
data security is commonly in Information Technology (IT).20 When
companies organize their departments in this way, privacy and security
professionals interact less and have a lower ability to change each other’s
practices, habits, and fluencies. Not only do privacy and security teams
infrequently speak to each other, they often speak in different languages.
It’s like the Tower of Babel.
Law professor Ari Waldman noticed two important issues that came up
in his extensive interviews with technologists and lawyers working on
privacy and security within organizations.21 First, some corporations
conflate privacy and security (and then focus only on security). Others
bracket off the presumably non-security aspects of “privacy” into
compliance departments with workers whose expertise is in paper trails, not
privacy. Privacy is then given a meager budget, while IT departments get
tasked with “security” and budgets that allow them to do their work. Then,
Waldman notes, comes the magician’s misdirection. Having empowered IT
departments to fix security flaws, corporations then report that they are

including information about people’s families. Why did it need to keep all

this data and why keep it for so long?

Had OPM collected and stored less data and regularly deleted some of it,

the breach wouldn’t have been as damaging. Moreover, had OPM

segmented the data or better restricted access to it, the hackers would have

had a harder time hauling it all away. Had OPM assigned a data steward for

the data, someone who would be accountable for it and who would make

sure it was properly being cared for, the breach might never have occurred.

OPM maintained background check information to protect security—to

prevent government personnel from being compromised and betraying the

United States by giving up secrets, helping foreign governments break into

computer systems, or other things. Ironically, the hacked data not only

violated people’s privacy but it created a grave security threat—and it

continues to pose such a threat to this day. Several security experts have

warned that the information in security clearance and background checks

could be used to blackmail government employees in sensitive positions.12

A former assistant director of the FBI’s Criminal, Cyber, Response and

Services Branch told The Washington Post that the OPM breach provided

hackers with “very detailed information about people who hold very

sensitive clearances.”13 Hackers could use this information to conduct spear

phishing, targeted attempts to glean personal information to “gain access to

sensitive computer accounts and even potentially conduct a physical attack

or attempt extortion.”14

The story of the OPM breach certainly reveals a stunning display of bad

security practices. The story also demonstrates how poor privacy practices

made the breach more possible and much worse than it should have been. In

this chapter, we address the relationship between privacy and security.

Good data security is almost impossible without a robust commitment to

privacy values. Privacy is a key and underappreciated aspect of data

security. Lawmakers and industry should break down the regulatory and

organizational silos that keep them apart and strengthen our privacy rules as

one way to enhance data security and mitigate breaches.

UNDERSTANDING CYBERSECURITY, DATA SECURITY, AND DATA

PRIVACY

At the outset of our discussion, it is essential to understand the general

scope of the domains of cybersecurity, data security, and privacy.

Cybersecurity is generally used to broadly refer to the security of all forms

of information and technical infrastructures, such as intellectual property,

critical infrastructure data, trade secrets, personal data, and more.15Data

security is a narrower domain that involves the security of personal data. As

David Thaw observes, cybersecurity as a whole can have different goals

than protecting personal data.16 He elaborates, “The security techniques and

goals for protection of strategic weapon control systems are different than

the techniques and goals for an average consumer, for example, protecting

their personal computer used primarily for entertainment purposes.”17

Privacy involves, among other things, a wide array of protections of

personal data. Because privacy is an important aspect of personal data, it is

closer to data security, but still not entirely the same. In some formulations,

privacy is a broader domain that encompasses data security, which is a

subset of the protections given to personal data. It is this formulation that

we prefer, as we see data privacy as a pie with many essential pieces, one of

which is data security.

In many ways, the EU’s terminology is better. The EU uses the term

data protection to encompass both data privacy and data security. The EU is

exactly right—data privacy and data security are both, essentially, about

protecting data. The EU doesn’t see privacy and security as separate

domains, at least not in the same way that the United States does.

Although privacy and data security are related and intertwined, they

aren’t identical. As law professor Derek Bambauer observes, “Privacy

establishes a normative framework for deciding who should legitimately

have the capability to access and alter information. Security implements

those choices.”18 Jeff Kosseff notes that security “promotes the

confidentiality, integrity, and availability of public and private information,

systems, and networks.” Security “must address more than just the

confidentiality of personal information, and also seek to protect from

unauthorized alteration of data and attacks such as ransomware that cause

data or systems to become unavailable.”19

We caution against clean and rigid distinctions between privacy and data

security, at least in law and policy. Much of data security involves duties

and administrative policies and procedures that are similar to those for

privacy. Moreover, as we argued earlier, data security is more of an art than

a science, and it involves difficult policy tradeoffs just like privacy does.

Although privacy and security are distinct in many ways, they have quite a

lot in common. Viewing data security policy primarily as a collection of

requirements for breach notifications and technical controls excludes many

of the most important issues from security, and it silos privacy and security

in ways that are unproductive.

THE SCHISM BETWEEN PRIVACY AND SECURITY

A major schism exists between privacy and security. This schism arose in

part because data security gets lumped with cybersecurity, and much of

security these days is the province of the Information Technology

department.

Different Silos and Different Languages

Organizations often place privacy functions in Compliance or Legal while

data security is commonly in Information Technology (IT).20 When

companies organize their departments in this way, privacy and security

professionals interact less and have a lower ability to change each other’s

practices, habits, and fluencies. Not only do privacy and security teams

infrequently speak to each other, they often speak in different languages.

It’s like the Tower of Babel.

Law professor Ari Waldman noticed two important issues that came up

in his extensive interviews with technologists and lawyers working on

privacy and security within organizations.21 First, some corporations

conflate privacy and security (and then focus only on security). Others

bracket off the presumably non-security aspects of “privacy” into

compliance departments with workers whose expertise is in paper trails, not

privacy. Privacy is then given a meager budget, while IT departments get

tasked with “security” and budgets that allow them to do their work. Then,

Waldman notes, comes the magician’s misdirection. Having empowered IT

departments to fix security flaws, corporations then report that they are