Data Privacy

American businesses spend an average of $7.01 million on a single data breach, including the price of notifying potentially affected individuals and ensuing legal costs. As the amount of data collected from and about people explodes, the number of breaches has also grown. Companies affected by data breaches subsequently face significant enforcement by federal and state regulators, as well as litigation by opportunistic plaintiffs' lawyers. Data privacy, as a result, is predicted to become “the new asbestos.” Reforms can help curb unreasonable costs to businesses while still providing relief to those who have truly been harmed. Read More...

Information holders no longer just have to worry about whether employees are disposing of data correctly—from domestic hackers to hostile foreign governments, cyberattacks have grown in number and in sophistication. As businesses work to navigate the evolving landscape, they find themselves bombarded by federal and state regulators using outdated laws, to plaintiffs seeking large settlements despite showing no actual injury from a data breach.

It is unclear for businesses what the scope of their liability is and to whom. The U.S. has a patchwork of federal laws intended to protect personal information. At the same time, states laws continue to evolve, imposing different (and sometimes contradictory) requirements for data privacy, including when and how victims of data breaches must notify their customers. Regulators have struggled to keep pace with the rising number of incidents and individuals’ concerns, with the result being a piecemeal, hastily-assembled legal regime.

A standard federal law governing breach notification requirements, preempting state laws, would provide much-needed predictability for businesses and protect them from abusive and overlapping enforcement. There is public support for this commonsense solution. Only those who are actually at risk or who have been harmed by a data breach should get notice or be able to sue.

Moreover, vague laws prohibiting unfair and deceptive practices, from Section 5 of the Federal Trade Commission (FTC) Act to similar state laws, are ripe for abuse; the FTC and some state attorneys general have broadly wielded them to go after businesses’ privacy and security practices. To make matters worse, individual and class action plaintiffs, led by the plaintiff’s bar, have jumped on the bandwagon as well.

It is important that privacy laws address real harms and actual injury and place reasonable limits on liability while discouraging meritless suits that simply take advantage of businesses. Holding businesses to impossible standards and allowing excessive and duplicative litigation hurts Americans and the economy.

Suggested Resources

Research
  • Torts of the Future: Addressing the Liability and Regulatory Implications of Emerging Technologies

    Torts of the Future: Addressing the Liability and Regulatory Implications of Emerging Technologies

    March 29, 2017

    Torts of the Future examines the emerging technology sectors of autonomous vehicles, commercial drones, private space exploration, the "sharing economy," and the Internet of Things, and assesses the existing regulatory and litigation environments and future liability trends for each. The paper also draws from experience in each area to present guiding principles for addressing the liability and regulatory implications of emerging technologies. Read More

  • Engineered Liability: The Plaintiffs' Bar's Campaign to Expand Data Privacy and Security Litigation

    Engineered Liability: The Plaintiffs' Bar's Campaign to Expand Data Privacy and Security Litigation

    April 19, 2017

    As data breaches are becoming more commonplace, the plaintiffs' bar is engineer a staggering expansion of liability in the areas of privacy and data security. Class action lawyers are pursuing data privacy cases and amassing fortunes even where no one has been harmed. This paper examines the data privacy and security legal landscape, plaintiffs' bar tactics, major cases and settlements, and a suggested framework for reform. Read More

All Results for Data Privacy

  1. In the News Today - February 12, 2019

    February 12, 2019 | News

    Settlement Rejection Shows Courts Are Hesitant to Approve Deals "Thin on Details But Rich in Attorney's Fees"... Read More

  2. In the News Today - February 7, 2019

    February 07, 2019 | News

    "Ten Things You Probably Didn't Know About the CCPA"... Read More

  3. In the News Today - February 6, 2019

    February 06, 2019 | News

    Business Groups Ask For Clarity on New California Data Privacy Law... Read More

  4. Illinois Supreme Court Opens the Door to Wave of Data Litigation

    January 28, 2019 | News

    The Illinois Supreme Court last week lowered the threshold for lawsuits under the state's Biometric Information Privacy Act (BIPA). One defense attorney told Law360 that the decision will open businesses to "hundreds of thousands to millions of dollars in exposure."... Read More

  5. In the News Today - January 18, 2019

    January 18, 2019 | News

    High Court Eyes Scope of Class Action Fairness Act; Locality Data Privacy Lawsuits May Be the Rule, Not the Exception... Read More

  6. In the News Today - January 4, 2019

    January 04, 2019 | News

    Illinois Judge Rules for Google in State Biometric Data Lawsuit... Read More

  7. In the News Today - December 10, 2018

    December 10, 2018 | News

    "What Crashing Autonomous Cars Tell Us About the Future of Product Liability;" "Calif. Privacy Act Will Increase Data Breach Liability"... Read More

  8. In the News Today - December 3, 2018

    December 03, 2018 | News

    Tech Lawyers Expect Data Privacy Legislation Next Year; Pennsylvania Lawyer Sanctioned for "Frivolous" Insurance Appeal... Read More

  9. In the News Today - November 15, 2018

    November 15, 2018 | News

    Is the Scope of Illinois' Biometric Privacy Law Expanding?; California Jury Clears Johnson & Johnson in Talc Case... Read More

  10. European Union Data Protection Law Stymies Mergers, Complicates Deals

    November 14, 2018 | News

    Over half of the 539 mergers and acquisitions professionals surveyed by business services provider Merrill Corp. indicate that they have worked on merger deals that have fallen apart because...... Read More