Concepts sound similar but are different. Sometimes on tech realm when the say “privacy” – they mean “security”.
Confusion – as DB shows – even among academics…DRM… Privacy – firms data usage policy. Security – negligence and missteps which lead to breaches by internal and external forces, as well as mere accidents. Security is one of the elements of FIPPs. There are grey areas – such as an executive going beyond the mandate received.
Privacy – benefits are now even outed by the GDPR fines although we have yet to see them in action. Privacy – reputation might be managed…
Security – breaches are costly – to restore systems. In other words – with privacy – there is often a conflict b/w firm and individual. With security – often interests are aligned.
Will not discuss different roles for processer and controller.
Destroy utility – is this always correct? Consider cost balance.
Human element - resolved by training – but also architecture. This is a very serious concern (Metnick). [human engineering, manipulation]. Organizational steps and procedures. Documentations of steps. Active management. Proper allocation of responsibilities..
Standards – NIST, ISO, others.
Explain the economics of encryption – cost of computing power. Account for the relevant risks. Could use certification. Comparison to Directive: required “appropriate” measures.
Beyond what DB wrote – we have security in very different contexts. It even does not always involve personal information.
FTC enforces general contractual obligations (deceptive). It also can find that some security measures are unfair. Windham case. But see LabMD case.
Introduction - Security/Privacy
Relation to privacy.
In the technical world, often mixed or
Privacy – concerns often result from firm’s
Security – often results from negligence.
○ Sometimes breaches follow even diligent
The Economics of Privacy – at times
breaches are beneficial.
Weak incentives to improve without laws.
○ Caveat – reputational costs.
The Economics of Security – security
important to limit costs.
Problems: incentives too low,
externalities. Market too slow to adapt.
Response – regulation.
Privacy/Security – Going
Possible Conflicts – Data access.
Often do not conflict.
Security implements privacy choices.
Important to analytically distinguish.
Which should receive harsher penalties
Bambauer: strict liability for security.
○ Destroy utility (?)
○ Bambauer – stricter for security, because of
lack of competing interests.
Achieving Security- Basic
Elements and Remedies
The human element
Audits ex post.
Data limitations ex ante.
Security – monitoring, fire walls, passwords.
Reliance on accepted standards
Ex post remedies – damages (class actions),
fines, sanctions, shaming.
Element of risk (all systems have holes…)
Challenge of defining harms.
1. Taking into account the state of the art, the costs of
implementation and the nature, scope, context and purposes of
processing as well as the risk of varying likelihood and severity for
the rights and freedoms of natural persons, the controller and the
processor shall implement appropriate technical and organisational
measures to ensure a level of security appropriate to the risk,
including inter alia as appropriate:
(a) the pseudonymisation and encryption of personal data;
(b) the ability to ensure the ongoing confidentiality, integrity,
availability and resilience of processing systems and services;
(c) the ability to restore the availability and access to personal
data in a timely manner in the event of a physical or technical
(d) a process for regularly testing, assessing and evaluating
the effectiveness of technical and organisational measures for
ensuring the security of the processing.
2. In assessing the appropriate level of security account shall be
taken in particular of the risks that are presented by processing, in
particular from accidental or unlawful destruction, loss, alteration,
unauthorised disclosure of, or access to personal data transmitted,
stored or otherwise processed.
Basic Security - GPDR
Article 32 – requirement for ensuring “a
level of security appropriate to the risk”
Noted measures: pseudosymmetry,
Account for the “state of the art”.
Important factors – restoring system,
assuring confidentiality, integrity, etc.
Require ongoing testing and evaluation.
Heavy sanctions – Article 83(4)(a).
Security – Comparative
Israel – three tier taxonomy.
General – FTC actions – and their limitations
Sector Specific – health, banking, credit,
○ Encryption requirement (Mass.).