March 2007 Vol. 105 No. 5 THE REVIEW

Notification of Data Security Breaches

Paul M. Schwartz & Edward J. Janger

The law increasingly requires private companies to disclose information for the benefit of consumers. The latest examples of such regulation are state and federal laws that require companies to notify individuals of data security incidents involving their personal information. These laws, proposed in the wake of highly publicized data spills, seek to punish the breached entity and to protect consumers by requiring the entity to notify its customers about the security breach. There are competing approaches, however, to how the law is to mandate release of information about data leaks. This Article finds that the current statutes’ focus on reputational sanction is incomplete. An important function of breach notification is mitigation of harm after a data leak. This function requires a multi-institutional coordinated response of the kind that is absent from current policy proposals. This Article advocates creation of a coordinated response architecture and develops the elements of such an approach. Central to this architecture is a coordinated response agent (CRA) that oversees steps for automatic consumer protection and heightens mitigation. This Article also proposes a bifurcated notice scheme that lets firms know that the CRA is watching and is scrutinizing their decision whether or not to disclose information about a breach to the affected individuals. Moreover, the CRA will set in motion automatic protective measures on behalf of the breached consumers. Finally, the CRA will regulate the content of notification messages to reflect the nature of the data breach.

   //  VIEW PDF
& Other Current Events

Lost in Translation: The Accidental Origins of Bond v. United States

One of the unusual features of cases about the constitutionality of federal statutes is that they are...

Foreword: What Books on Law Should Be

I have thought it might be useful to our profession, and appropriate to a foreword to a collection of...

A Pragmatic Republic, If You Can Keep It

Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law....

Classic Revisited – Frost for Lawyers: "The Best Thing That We're Put Here For's to See"

The Poetry of Robert Frost: The Collected Poems. Edited by Edward Connery Lathem....

Racial Templates

A Wicked War: Polk, Clay, Lincoln, and the 1846 U.S. Invasion of Mexico. By Amy S. Greenberg....
MAILING LIST
Sign Up to Join Our Mailing List