03 May 2021

Data Breach

'The Data Breach Epidemic: A Modern Legal Analysis' by Laura A Hendee in (2021) 24(1) Journal of Technology Law and Policy comments 

This Note sheds light on the major legal issues surrounding the numerous data breaches that plague our modern technology-driven society. Current laws in the United States vary widely in how they handle the resolution of harm to unsuspecting victims of data breaches. The issue of Article III standing is commonly at the forefront of the conflict and discussion in this area, which has resulted in a substantial circuit split in the United States. The newly enacted California Consumer Privacy Act will likely have a major impact in this area of the law and will undoubtedly influence how consumers’ personal information is handled in the years to come.

'Beyond the Privacy Torts: Reinvigorating a Common Law Approach for Data Breaches' by Alicia Solow-Niederman in (2018) 127 Yale Law Journal Forum 614 comments 

Data breaches continue to roil the headlines, yet regulation and legislation are unlikely to provide a timely solution to protect consumers. Meanwhile, individuals are left, at best, in a state of data insecurity and, at worst, in a compromised economic situation. State common law provides a path forward. Rather than rely on statutory claims or the privacy torts to protect consumer data, this Essay suggests that courts should recognize how contemporary transactions implicate fiduciary-like relationships of trust. By designating what this Essay terms data confidants as a limited form of information fiduciary, courts can reinvigorate the tort of breach of confidence as a remedy for aggrieved consumers.