wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

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emails look the same even though it might be possible to identify certain
ones as being far riskier to open than others.
Data security laws often fail to address signals when addressing the
implementation of “reasonable safeguards.” But signals play an important
role in how humans think about security and in how they behave. The law
should not ignore this important dimension of data security.
■
Lawmakers must do far more to encourage a more human-centric approach
to designing for good data security. Good policy depends upon keeping
people’s foreseeable behavior front and center when creating, modifying,
and enforcing data security rules. Technological systems are not self-created
or self-executing. People made them, people administer them, and people
use them. The more our laws and frameworks reflect this, the better off we
will be.
9
Conclusion
The Holistic Approach
Data security is a problem that is spiraling out of control. The epidemic is
growing worse each year, with no signs of abating, and the stakes couldn’t
be higher. More organizations are collecting more personal data. Our
personal data is being used in ways that have profound effects on our lives.
As more devices are being connected online, the physical world and the
Internet are merging, posing risks to life and limb. Connected devices are
going into our houses and even into our bodies.
As we stumble into the future, it seems as though we have fallen back to
the days where pirates teemed on the seas. Criminals and fraudsters are
lurking around every corner, ready to kidnap your data, post it online, break
into your accounts, steal your money, pollute your credit reports, and ruin
your reputation. Despite spending hundreds of millions of dollars on
security each year, the most powerful companies in the world can’t seem to
keep the hackers out. Rome is in flames, and the barbarians have broken
through the gate.
Policymakers have not stood idly by. They have rushed in to help,
creating both cybersecurity frameworks and privacy rules. And in the
middle lies data security—a creature born of individualistic privacy
protections for personal information applied to systems of data. In a fairly
short span of time, a large body of data security law has been created. Data
security law currently consists of three broad types of law—breach
notification laws, safeguards laws, and private litigation—all of which
focus far too heavily on data breaches. This reactionary body of law
rummages through the ashes of breaches, but it doesn’t do enough to
actually prevent breaches or reduce the harm from them. Meanwhile, the
fire still rages.
In this book, we proposed a different approach to data security law. Our
goal has been to rethink the foundations. Although at the surface, data
breaches look like a bunch of isolated incidents, below the surface, they are
symptoms of deeper interconnected problems involving the whole data
ecosystem. Data security law has the potential to incorporate the best
wisdom from systems-based cybersecurity frameworks and privacy rules
that accommodate human behavior and aim to foster human flourishing.
Recognizing data breaches as the product of systemic problems is
essential to improving the law’s effectiveness. Systemic problems, if
addressed structurally, can be ameliorated far more readily than countless
scattered isolated problems. Instead of tackling each breach one at a time,
the law can address many breaches all at once at the common source.
Looking at data security in this way—as a problem with deep roots in
the structure of the data ecosystem—makes it clear that the law must take a
new direction. Instead of focusing on breaches, the law must focus on the
entire system of data processing and the actors within it. We call this a
“holistic approach” to data security law. Lawmakers should take a page
from public health law and focus on the overall “health” of the entire data
ecosystem.
In many ways, the law is not only failing to improve data security but
also is making the problem worse. The law is setting up bad incentives,
encouraging organizations to adopt flawed security measures, providing
special sanctuary to actors who are contributing factors in many breaches,
facilitating practices that increase data security risks, and intensifying the
harms that breaches cause. Unfortunately, the law is a big part of the
problem rather than the solution.
Understood this way, it is no wonder why the problem of data security is
worsening—the system’s design is deeply flawed. Systemic problems will
continue to relentlessly churn out the same outcomes. We could carry on
with failed laws and policies, repeating the same approach after every
breach in the hope that, through a miracle, something will change. Or we
could take a different approach, one that focuses more on the underlying
sources of the breach epidemic. Currently, the train is on the wrong track,
and switching tracks will be difficult. It it is imperative we do so, however,
because the train is heading toward a cliff.
We have sketched out a blueprint for a more effective role for the law to
play in securing our personal data. We are not aiming to provide a fix-all
solution—there are no easy answers for data security. Nor has our goal been
to propose specific legislation.
Instead, we endeavor to offer a blueprint that consists of a different
approach to data security law. Before lawmakers can craft specific
solutions, they need broad directional guidance and a more complete way of
thinking about how to protect our personal information within systems that
accounts for the way people make choices and interpret signals. Below, we
review some of the key parts of our blueprint.
Data security law should be more proactive and less reactive Certain
kinds of problems require proactive measures. Take food safety as an
example. Lawmakers and regulators could wait until a salmonella outbreak
makes people sick before holding restaurants accountable for unsanitary
conditions. But that would be chasing the problem. Instead, regulators
demand sanitary conditions from restaurants and require a strict set of rules
regarding food preparation to ensure people will not get sick when they eat
out. Everyone involved in the supply chain of food, from the farm to the
restaurant table, is required to act responsibly. Inspectors from the health
department don’t have to wait until someone gets sick to find health code
violations. Instead, they regularly inspect these businesses and hold them
accountable for violations so they can make things safe before people get

emails look the same even though it might be possible to identify certain

ones as being far riskier to open than others.

Data security laws often fail to address signals when addressing the

implementation of “reasonable safeguards.” But signals play an important

role in how humans think about security and in how they behave. The law

should not ignore this important dimension of data security.

■

Lawmakers must do far more to encourage a more human-centric approach

to designing for good data security. Good policy depends upon keeping

people’s foreseeable behavior front and center when creating, modifying,

and enforcing data security rules. Technological systems are not self-created

or self-executing. People made them, people administer them, and people

use them. The more our laws and frameworks reflect this, the better off we

will be.

9

Conclusion

The Holistic Approach

Data security is a problem that is spiraling out of control. The epidemic is

growing worse each year, with no signs of abating, and the stakes couldn’t

be higher. More organizations are collecting more personal data. Our

personal data is being used in ways that have profound effects on our lives.

As more devices are being connected online, the physical world and the

Internet are merging, posing risks to life and limb. Connected devices are

going into our houses and even into our bodies.

As we stumble into the future, it seems as though we have fallen back to

the days where pirates teemed on the seas. Criminals and fraudsters are

lurking around every corner, ready to kidnap your data, post it online, break

into your accounts, steal your money, pollute your credit reports, and ruin

your reputation. Despite spending hundreds of millions of dollars on

security each year, the most powerful companies in the world can’t seem to

keep the hackers out. Rome is in flames, and the barbarians have broken

through the gate.

Policymakers have not stood idly by. They have rushed in to help,

creating both cybersecurity frameworks and privacy rules. And in the

middle lies data security—a creature born of individualistic privacy

protections for personal information applied to systems of data. In a fairly

short span of time, a large body of data security law has been created. Data

security law currently consists of three broad types of law—breach

notification laws, safeguards laws, and private litigation—all of which

focus far too heavily on data breaches. This reactionary body of law

rummages through the ashes of breaches, but it doesn’t do enough to

actually prevent breaches or reduce the harm from them. Meanwhile, the

fire still rages.

In this book, we proposed a different approach to data security law. Our

goal has been to rethink the foundations. Although at the surface, data

breaches look like a bunch of isolated incidents, below the surface, they are

symptoms of deeper interconnected problems involving the whole data

ecosystem. Data security law has the potential to incorporate the best

wisdom from systems-based cybersecurity frameworks and privacy rules

that accommodate human behavior and aim to foster human flourishing.

Recognizing data breaches as the product of systemic problems is

essential to improving the law’s effectiveness. Systemic problems, if

addressed structurally, can be ameliorated far more readily than countless

scattered isolated problems. Instead of tackling each breach one at a time,

the law can address many breaches all at once at the common source.

Looking at data security in this way—as a problem with deep roots in

the structure of the data ecosystem—makes it clear that the law must take a

new direction. Instead of focusing on breaches, the law must focus on the

entire system of data processing and the actors within it. We call this a

“holistic approach” to data security law. Lawmakers should take a page

from public health law and focus on the overall “health” of the entire data

ecosystem.

In many ways, the law is not only failing to improve data security but

also is making the problem worse. The law is setting up bad incentives,

encouraging organizations to adopt flawed security measures, providing

special sanctuary to actors who are contributing factors in many breaches,

facilitating practices that increase data security risks, and intensifying the

harms that breaches cause. Unfortunately, the law is a big part of the

problem rather than the solution.

Understood this way, it is no wonder why the problem of data security is

worsening—the system’s design is deeply flawed. Systemic problems will

continue to relentlessly churn out the same outcomes. We could carry on

with failed laws and policies, repeating the same approach after every

breach in the hope that, through a miracle, something will change. Or we

could take a different approach, one that focuses more on the underlying

sources of the breach epidemic. Currently, the train is on the wrong track,

and switching tracks will be difficult. It it is imperative we do so, however,

because the train is heading toward a cliff.

We have sketched out a blueprint for a more effective role for the law to

play in securing our personal data. We are not aiming to provide a fix-all

solution—there are no easy answers for data security. Nor has our goal been

to propose specific legislation.

Instead, we endeavor to offer a blueprint that consists of a different

approach to data security law. Before lawmakers can craft specific

solutions, they need broad directional guidance and a more complete way of

thinking about how to protect our personal information within systems that

accounts for the way people make choices and interpret signals. Below, we

review some of the key parts of our blueprint.

Data security law should be more proactive and less reactive Certain

kinds of problems require proactive measures. Take food safety as an

example. Lawmakers and regulators could wait until a salmonella outbreak

makes people sick before holding restaurants accountable for unsanitary

conditions. But that would be chasing the problem. Instead, regulators

demand sanitary conditions from restaurants and require a strict set of rules

regarding food preparation to ensure people will not get sick when they eat

out. Everyone involved in the supply chain of food, from the farm to the

restaurant table, is required to act responsibly. Inspectors from the health

department don’t have to wait until someone gets sick to find health code

violations. Instead, they regularly inspect these businesses and hold them

accountable for violations so they can make things safe before people get