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work to navigate the evolving landscape, they find themselves bombarded by federal and state regulators using outdated laws, to plaintiffs seeking large settlements despite showing no actual injury from a data breach.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 - April 4, 2019

    April 04, 2019 | News

    DOJ Chief Privacy Officer Calls for Single, Preemptive Federal Data Privacy Law... Read More

  2. Proposed Illinois Law May Rein In Biometric Data Lawsuits

    April 03, 2019 | News

    A bipartisan pair of Illinois state senators has introduced a bill that could rein in the mounting litigation over the state's Biometric Information Privacy Act, Biometric Update reports.... Read More

  3. Illinois Law Blocks Residents From Buying Some New Technologies

    April 02, 2019 | News

    The Illinois Biometric Privacy Act has shut out new consumer and home security products from being sold in the state, CNET reports.... Read More

  4. In the News Today - March 28, 2019

    March 28, 2019 | News

    Florida Lawmakers Consider Whether to Follow Illinois, Open Lawsuit Floodgates... Read More

  5. Data Privacy Debate Heats Up on Capitol Hill

    March 06, 2019 | News

    The debate over a national data privacy law is gaining steam, The Hill reports. ... Read More

  6. In the News Today - March 1, 2019

    March 01, 2019 | News

    EU's GDPR Remains a "Legal Puzzle"... Read More

  7. In the News Today - February 28, 2019

    February 28, 2019 | News

    Senate Holds Hearing on Federal Data Privacy Laws... Read More

  8. 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

  9. In the News Today - February 7, 2019

    February 07, 2019 | News

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

  10. In the News Today - February 6, 2019

    February 06, 2019 | News

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