Breached! Why Data Security Law Fails and How to Improve It (Chapter 1)

Authors

Daniel J. Solove, George Washington University Law SchoolFollow
Woodrow Hartzog, Northeastern University School of Law and Khoury College of Computer Sciences; Center for Law, Information and Creativity (CLIC); Stanford Law School Center for Internet and Society

Document Type

Book Part

Publication Date

2022

Status

Accepted

Abstract

Digital connections permeate our lives—and so do data breaches. Given that we must be online for basic communication, finance, healthcare, and more, it is remarkable how difficult it is to secure our personal information. Despite the passage of many data security laws, data breaches are increasing at a record pace. In their book, BREACHED! WHY DATA SECURITY LAW FAILS AND HOW TO IMPROVE IT (Oxford University Press 2022), Professors Daniel Solove and Woodrow Hartzog argue that the law fails because, ironically, it focuses too much on the breach itself.

Drawing insights from many fascinating stories about data breaches, Solove and Hartzog show how major breaches could have been prevented or mitigated through better rules and often inexpensive, non-cumbersome means. They also reveal why the current law is counterproductive. It pummels organizations that have suffered a breach but doesn’t recognize how others contribute to the breach. These outside actors include software companies that create vulnerable software, device companies that make insecure devices, government policymakers who write regulations that increase security risks, organizations that train people to engage in risky behaviors, and more.

Although humans are the weakest link for data security, the law remains oblivious to the fact that policies and technologies are often designed with a poor understanding of human behavior. BREACHED! sets forth a holistic vision for data security law—one that holds all actors accountable, understands security broadly and in relationship to privacy, looks to prevention and mitigation rather than reaction, and is designed with people in mind. The book closes with a roadmap for how we can reboot law and policy surrounding data security.

Chapter 1 - Introduction: Chronicle of a Breach Foretold is available for download. The chapter tells the story of the Target breach and the lessons that can be learned from it about the shortcomings of data security law.

GW Paper Series

2022-24

SSRN Link

https://ssrn.com/abstract=4142572

Recommended Citation

Solove, Daniel J. and Hartzog, Woodrow, "Breached! Why Data Security Law Fails and How to Improve It (Chapter 1)" (2022). GW Law Faculty Publications & Other Works. 1604.
https://scholarship.law.gwu.edu/faculty_publications/1604