Very few times in history have a group of people sat down with the purpose of writing a set of new laws to improve society. Instead, what usually happens is that laws are written to solve specific problems. This leads to a litany of laws piling up over the decades. While it could always be debated how effective a particular law might be at accomplishing its goal, the rapid pace of technological advancement over the past 20 years – especially as compared to the pace of the lawmaking process – has introduced new challenges as laws become quickly outdated, sometimes even by the time they take effect.
The results of this are acutely apparent in the cross-section between the fields of cybersecurity and consumer protection, namely data breaches.
The magnanimity of consumer protection laws in the United States were written for a society concerned with immediate product safety and compensation for resulting injuries, not for the nebulous and incalculable injuries that may be sustained by potential millions when private records are exposed.
Why are data breaches so damaging?
The unique problem of data breaches stems from the fact that the breach of privacy carries in of itself no specific harm. Instead, it is the later misuse of information that has been breached that may lead to ensuing harm. However, with data breaches occurring on a near-daily basis, the causality of specific financial or reputational damage is nigh impossible to link to a single breach causally; with our laws written around the concept of calculable damages being the source of justified remuneration, we are left constantly and increasingly victimized but unable to seek just compensation.
Some would argue that even more problematic is the irreparable nature of many of the most severe data breaches. Once a name and social security number are leaked, that identity is permanently and irreversibly at risk for being used fraudulently. While one could always apply for a new social security number, the Social Security Administration is extremely reluctant to issue new identities, and while that is a debate for another time, it goes to show just how difficult it can be to recover from a breach. Victims are permanently marred and at increased risk for future injuries resulting from a single breach, no matter how much time has passed.
Because of the damage resulting from a data breach being so far removed temporally and causally from the actual breach itself, adequate compensation is rarely won, if it is even sought. Was it the Equifax breach, the MoviePass breach, or one of the innumerable other breaches this year that resulted in your identity being stolen and used to take out fraudulent loans a decade from now?
Moreover, even if you should find that it was MoviePass’ negligence that leads to your identity being stolen, what compensation can you seek from a company that has been defunct for years? Our laws were not written to address these issues adequately. Our legal system often does not ponder questions of uncertainty and possibility, and that’s the perfect summary of what victims face in the aftermath of a breach; uncertainty and possibilities.
For all the uncertainty victims face, the solutions going forward as a country are equally opaque.
It would be easy to write some draconian law to punish companies for exposing private data, but as is often the case, that could have unintended consequences, such as pushing data overseas where even looser security and weaker privacy laws may exacerbate the problem. Instead, it’s going to take a significant shift in our collective-consciousness over how data is handled.
Laws written for managing telecommunications and transmissions in that era are being used to handle complex cybersecurity and data privacy cases.
This can’t come just from one party though; companies need to seriously consider what data they need to collect, and what information needs to be retained on a long-term basis. Consumers have to take ownership of their data and demand a higher quality of service from corporations and governments over how their data is collected and used.
Just like holding valuables such as gold and art entails a security risk, so too does data. If people started treating data like the digital gold it really is, maybe then we could all come together to work out a solution.
But until then, I’ll be keeping my data to myself.