wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

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See, e.g., Cybersecurity Requirements for Financial Services Companies, 23 C.R.R.-N.Y. § 500.
33.
Mass. Gen. Laws. Ch. 93H, Sec. 3(a) (2018), 201 Mass. Code Regs. 201 CMR 17.00 (2018).
34.
Or. Rev. Stat. § 646A.600 et seq; Nev. Rev. Stat. § 603A.010 et seq.
35.
See William McGeveran, The Duty of Data Security, 103 Minn. L. Rev. 1135 (2019).
36.
Privacy Act, 5 U.S.C. § 552a(e)(10).
37.
The FCC relied upon Sections 222(a) and 201(b) of the FCC Act. Section 222 of the Act
protects the confidentiality of what is called “customer proprietary network information”—or
CPNI for short. The FCC viewed inadequate data security to be a failure to protect the
confidentiality of CPNI. Section 201(b) of the Act prohibits any “unjust and unreasonable”
practice. The FCC viewed inadequate data security to violate this part of the Act too. These
security enforcement efforts were led by Travis LeBlanc, whom The Atlantic called the “FCC’s
$365 million man” because he issued $365 million in penalties and consumer refunds in only
his first year at the FCC. Brendan Sasson, The FCC’s $365 Million Man, The Atlantic, (Apr. 26,
2015), https://www.theatlantic.com/politics/archive/2015/04/the-fccs-365-million-man/456489/.
38.
SeeN.M. Stat. § 57-12C-1 et seq.; 815 Ill. Comp. Stat. 530/1 et seq.; Ala. Code § 8-19F-1 et seq.
Other states with reasonable-security-measure requirements include Arkansas, Delaware,
Florida, Nevada, Indiana, Maryland, Connecticut, New Jersey, Oregon, Rhode Island, and Utah.
39.
See, e.g., FTC v. Sandra L. Rennert et al., CV-S-00-0861-JBR (July 12, 2000) (settling claims
against online pharmacies requiring them to “establish and maintain reasonable procedures to
protect the confidentiality, security and integrity of personal information collected from
consumers”).
40.
Letter from James C. Miller III, Chairman, FTC, to Hon. John D. Dingell, Chairman, House
Comm. On Energy & Commerce (Oct. 14, 1983).
41.
FTC v. Eli Lilly, No. 012-3124.
42.
Decision and Order, TJX Companies, Inc., 72-3055, 2008 WL 903808 (Mar. 27, 2008).
43.
15 U.S.C. § 45(n).
44.
See Daniel J. Solove & Woodrow Hartzog, The FTC and the New Common Law of Privacy, 114
Colum. L. Rev. 583 (2014); Kristina Rozan, How Do Industry Standards for Data Security
Match Up with the FTC’s Implied “Reasonable” Standards—And What Might This Mean for
Liability Avoidance?, IAPP (Nov. 25, 2014).
45.
Most of the FTC cases have settled, but in 2015, the Wyndham Hotel chain challenged the
FTC’s authority to regulate data security. One of Wyndham’s arguments was that the FTC’s
reasonableness approach was too vague to put companies on fair notice as to what they must do
for adequate security. This argument was rejected by the courts, mainly because reasonableness
approaches are common in the law. A few years later, however, another challenge to FTC
authority resulted in some pushback against a broad reasonableness approach. In a challenge
brought by LabMD, the court concluded that an FTC consent order was unenforceable because
“it does not enjoin a specific act or practice. Instead, it mandates a complete overhaul of [the
defendant’s] data-security program and says precious little about how this is to be
accomplished.”
Though this holding doesn’t affect the FTC’s power to regulate data security, it raises questions
about the FTC’s ability to use “reasonable” standards in its consent orders.
46.
GLBA Safeguards Rule, 16 C.F.R. § 314.
47.
The SEC enforced under its Procedures to Safeguard Customer Records and Information, 17
CFR 248.30.
48.
R. T. Jones Capital Equities Management, Inc., SEC File No. 3-16827 (Sept. 22, 2015),
https://www.sec.gov/litigation/admin/2015/ia-4204.pdf. In 2018, the SEC issued its first fine to
a company for failing to disclose its data breach—a fine of $35 million to Yahoo for its series of
breaches involving the personal data of billions of individuals. Jacob Kastrenakes, SEC Issues
$35 Million Fine Over Yahoo Failing to Disclose Data Breach, Verge, (Apr. 24, 2018),
https://www.theverge.com/2018/4/24/17275994/yahoo-sec-fine-2014-data-breach-35-million;
Olivia Beavers, SEC Fines Yahoo $35 Million Over 2014 Email Breach, Hill, (Apr. 24, 2018),
https://thehill.com/policy/cybersecurity/384607-sec-fines-yahoo-35-million-over-2014-email-
breach.
49.
Daniel J. Solove, The Most Alarming Fact of the HIPAA Audits, Privacy + Security Blog, (Nov.
3, 2014), https://teachprivacy.com/alarming-fact-hipaa-audits/. Audited companies didn’t do
much better of Phase 2 of HHS’s study. See Report on 2016–2017 HIPAA Audits,
https://www.hhs.gov/sites/default/files/hipaa-audits-industry-report.pdf.
50.
Simon Sharwood, Adobe to hire security auditor to prevent repeat of password SNAFU, The
Register,
(June
9,
2015),
https://www.theregister.com/2015/06/09/adobe_to_hire_security_auditor_to_prevent_repeat_of
_password_snafu/.
51.
Juha Saarien, Adobe fined $1.3m for 2013 mega data breach, IT News, (Nov. 16, 2016),
https://www.itnews.com.au/news/adobe-fined-13m-for-2013-mega-data-breach-441498.
52.
Robert Schoshinski, Equifax Data Breach: Pick Free Credit Monitoring, FTC, (July 31, 2019),
https://www.consumer.ftc.gov/blog/2019/07/equifax-data-breach-pick-free- credit-monitoring.
53.
Sasha Romanosky& David A. Hoffman et al., Empirical Analysis of Data Breach Litigation, 11
Journal of Empirical Legal Studies 74 (2014).
54.
Daniel J. Solove & Danielle Keats Citron, Risk and Anxiety: A Theory of Data Breach Harms,
96 Tex. L. Rev. 737 (2018).
55.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
56.
Friends of the Earth Inc. v. Laidlaw Envt’l Sys., Inc., 528 U.S. 167 (2000).
57.

See, e.g., Cybersecurity Requirements for Financial Services Companies, 23 C.R.R.-N.Y. § 500.

33.

Mass. Gen. Laws. Ch. 93H, Sec. 3(a) (2018), 201 Mass. Code Regs. 201 CMR 17.00 (2018).

34.

Or. Rev. Stat. § 646A.600 et seq; Nev. Rev. Stat. § 603A.010 et seq.

35.

See William McGeveran, The Duty of Data Security, 103 Minn. L. Rev. 1135 (2019).

36.

Privacy Act, 5 U.S.C. § 552a(e)(10).

37.

The FCC relied upon Sections 222(a) and 201(b) of the FCC Act. Section 222 of the Act

protects the confidentiality of what is called “customer proprietary network information”—or

CPNI for short. The FCC viewed inadequate data security to be a failure to protect the

confidentiality of CPNI. Section 201(b) of the Act prohibits any “unjust and unreasonable”

practice. The FCC viewed inadequate data security to violate this part of the Act too. These

security enforcement efforts were led by Travis LeBlanc, whom The Atlantic called the “FCC’s

$365 million man” because he issued $365 million in penalties and consumer refunds in only

his first year at the FCC. Brendan Sasson, The FCC’s $365 Million Man, The Atlantic, (Apr. 26,

2015), https://www.theatlantic.com/politics/archive/2015/04/the-fccs-365-million-man/456489/.

38.

SeeN.M. Stat. § 57-12C-1 et seq.; 815 Ill. Comp. Stat. 530/1 et seq.; Ala. Code § 8-19F-1 et seq.

Other states with reasonable-security-measure requirements include Arkansas, Delaware,

Florida, Nevada, Indiana, Maryland, Connecticut, New Jersey, Oregon, Rhode Island, and Utah.

39.

See, e.g., FTC v. Sandra L. Rennert et al., CV-S-00-0861-JBR (July 12, 2000) (settling claims

against online pharmacies requiring them to “establish and maintain reasonable procedures to

protect the confidentiality, security and integrity of personal information collected from

consumers”).

40.

Letter from James C. Miller III, Chairman, FTC, to Hon. John D. Dingell, Chairman, House

Comm. On Energy & Commerce (Oct. 14, 1983).

41.

FTC v. Eli Lilly, No. 012-3124.

42.

Decision and Order, TJX Companies, Inc., 72-3055, 2008 WL 903808 (Mar. 27, 2008).

43.

15 U.S.C. § 45(n).

44.

See Daniel J. Solove & Woodrow Hartzog, The FTC and the New Common Law of Privacy, 114

Colum. L. Rev. 583 (2014); Kristina Rozan, How Do Industry Standards for Data Security

Match Up with the FTC’s Implied “Reasonable” Standards—And What Might This Mean for

Liability Avoidance?, IAPP (Nov. 25, 2014).

45.

Most of the FTC cases have settled, but in 2015, the Wyndham Hotel chain challenged the

FTC’s authority to regulate data security. One of Wyndham’s arguments was that the FTC’s

reasonableness approach was too vague to put companies on fair notice as to what they must do

for adequate security. This argument was rejected by the courts, mainly because reasonableness

approaches are common in the law. A few years later, however, another challenge to FTC

authority resulted in some pushback against a broad reasonableness approach. In a challenge

brought by LabMD, the court concluded that an FTC consent order was unenforceable because

“it does not enjoin a specific act or practice. Instead, it mandates a complete overhaul of [the

defendant’s] data-security program and says precious little about how this is to be

accomplished.”

Though this holding doesn’t affect the FTC’s power to regulate data security, it raises questions

about the FTC’s ability to use “reasonable” standards in its consent orders.

46.

GLBA Safeguards Rule, 16 C.F.R. § 314.

47.

The SEC enforced under its Procedures to Safeguard Customer Records and Information, 17

CFR 248.30.

48.

R. T. Jones Capital Equities Management, Inc., SEC File No. 3-16827 (Sept. 22, 2015),

https://www.sec.gov/litigation/admin/2015/ia-4204.pdf. In 2018, the SEC issued its first fine to

a company for failing to disclose its data breach—a fine of $35 million to Yahoo for its series of

breaches involving the personal data of billions of individuals. Jacob Kastrenakes, SEC Issues

$35 Million Fine Over Yahoo Failing to Disclose Data Breach, Verge, (Apr. 24, 2018),

https://www.theverge.com/2018/4/24/17275994/yahoo-sec-fine-2014-data-breach-35-million;

Olivia Beavers, SEC Fines Yahoo $35 Million Over 2014 Email Breach, Hill, (Apr. 24, 2018),

https://thehill.com/policy/cybersecurity/384607-sec-fines-yahoo-35-million-over-2014-email-

breach.

49.

Daniel J. Solove, The Most Alarming Fact of the HIPAA Audits, Privacy + Security Blog, (Nov.

3, 2014), https://teachprivacy.com/alarming-fact-hipaa-audits/. Audited companies didn’t do

much better of Phase 2 of HHS’s study. See Report on 2016–2017 HIPAA Audits,

https://www.hhs.gov/sites/default/files/hipaa-audits-industry-report.pdf.

50.

Simon Sharwood, Adobe to hire security auditor to prevent repeat of password SNAFU, The

Register,

(June

9,

2015),

https://www.theregister.com/2015/06/09/adobe_to_hire_security_auditor_to_prevent_repeat_of

_password_snafu/.

51.

Juha Saarien, Adobe fined $1.3m for 2013 mega data breach, IT News, (Nov. 16, 2016),

https://www.itnews.com.au/news/adobe-fined-13m-for-2013-mega-data-breach-441498.

52.

Robert Schoshinski, Equifax Data Breach: Pick Free Credit Monitoring, FTC, (July 31, 2019),

https://www.consumer.ftc.gov/blog/2019/07/equifax-data-breach-pick-free- credit-monitoring.

53.

Sasha Romanosky& David A. Hoffman et al., Empirical Analysis of Data Breach Litigation, 11

Journal of Empirical Legal Studies 74 (2014).

54.

Daniel J. Solove & Danielle Keats Citron, Risk and Anxiety: A Theory of Data Breach Harms,

96 Tex. L. Rev. 737 (2018).

55.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

56.

Friends of the Earth Inc. v. Laidlaw Envt’l Sys., Inc., 528 U.S. 167 (2000).

57.