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“Data Breach Fatigue,” Ralph Nader and What It Could Mean for the Privacy Profession

Target. The University of Maryland. EBay. Just a few of the organizations that have been hit with major, headline-grabbing data breaches. And that’s only in the past six months.

Breaches—both minuscule and major—are now so common that it’s hard not to think fatigue will soon set in—if it hasn’t already. I’m finding that friends and family—generally people not involved in the privacy profession—are becoming more aware of these events, which is great, but will the public eventually begin to ignore them?

For one thing, harm in many such cases is difficult to prove. On top of that, if a class-action does stand, individual compensation is a pittance. The alternative has been to award cy-près grants to organizations that pledge to help educate or prevent such harms from recurring (full disclosure: the IAPP has been a recipient of such a grant), but a consumer receives virtually no compensation. So what’s in it for them? Will they stop caring?

And if so, what will this ultimately mean for the chief privacy officer? Or the privacy pro?

Don’t get me wrong, I’m not saying that breaches aren’t a bad thing. They’re terrible. I’m a victim of identity theft and know, first-hand, how alienating it feels to have someone else maliciously use your personal information. It’s unquantifiable.

But, for the privacy profession, what would lagging consumer interest in data breaches mean? Might it be a good thing? Or, to put it another way, what would federal data breach legislation do to the profession? Will it make data protection into a check-box compliance framework, similar to ensuring that cars have seatbelts?

Not following? I’ll explain.

Last week, two articles compared the current data breach cycle to past consumer issues. One, as written by InfoWorld’s Paul Venezia, looked back to the Triangle Shirtwaist tragedy in 1911. Such a terrible event helped move the ball forward for worker safety. But, mass casualties are the most demonstrable form of irreparable harm. So the need for change was quantifiable and tangible.

Venezia explained:

Hundreds of millions of people have already been negatively affected by these breaches, and there is no end in sight. Sadly, there are few meaningful repercussions for losing customer data. The markets don't seem to care about data breaches, presumably because other than "aw, shucks" apologies by the company, there's little other impact on the business.

This is where regulations need to catch up to technology—quickly. We need to penalize companies that cause large-scale data breaches impacting millions of people. Before you argue otherwise, these companies do cause these breaches; they are not victims.

We could likely argue, in certain cases, who the true victim is, but lacking data security seems prevalent in the business world. The FTC seems pretty keen on that right now. So, Venezia argues, personal data needs to be regulated like other commodities: food, emissions or transportation.

But bad food makes people sick and kills them. Emissions cause acid rain which makes people sick and kills them. Unsafe cars lead to fatal accidents. What do data breaches do?

Before Ralph Nader, seat belts were non-existent and crash testing wasn’t hardly thought of. He was able to rally public support because so many people saw the results of unsafe vehicles first hand. So car safety eventually got regulated because lawmakers heard from constituents. Now, ensuring seat belts are included in a new vehicle is just part of the work flow. The boxes get checked off.

Could something similar happen to the chief privacy officer? If consumers rally and catch the ear of lawmakers, will she or he become the chief box checker?

In a column for Wired, Dave Hansen of SafeNet highlights one main problem for advocates looking for a federal data-security law: the current relationship between companies and their breached consumers. “These same consumers still continue to do business with those organizations,” he writes. “When data privacy is defined down to the point where consumers simply assume breaches will happen, there simply is no data privacy.”

And organizational harm comes into play here "in certain 'high stakes' environments like financial services. Data breaches remain a catastrophic risk to these organizations—thus it is not surprising that financial services institutions have the most sophisticated and effective security environments in the private sector."

However, this high stakes environment is not implemented in other sectors. Hansen continues:

There are only two things that can break the current data breach cycle. The first is a cultural revolution similar to what we have seen with product safety—where government regulation and education has had the ripple effect of inspiring a mass reset of consumer expectations. This causes a “change or perish” business environment for corporations selling to those consumers. The second, which will likely be a reaction to the first, is a complete transformation of the security mindset around protecting consumer data.

Maintaining consumer trust saturates blogs and press releases, and privacy professionals have a huge role to play here. Privacy as a business driver is a great thing for privacy pros.

Privacy as a legislative mandate? Maybe not so much. Data breach fatigue is a double-edged sword.

On the one hand, if consumers stop caring about breached personal data, that’s not good for the privacy pro; it won’t be a business driver. But, on the other hand, if these massive breaches continue and consumers really do care, Congress will eventually act—even Hell can freeze over. And if Congress does finally implement a federal data breach law, it’s likely to be less strict than some of the more data-protective state laws. If that happens, if companies simply have to follow a check list of federal mandates, would this turn many privacy pros into compliance pros?

Do you want to be the person who makes sure there’s a seatbelt in every car?

photo credit: chuckbiscuito via photopin cc

Written By

Jedidiah Bracy, CIPP/E, CIPP/US

2 Comments

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  • Brooks Dobbs Jun 6, 2014

    So long as personal data can be IP address or email address and breach can potentially be defined as merely loss of control, then you will either have non-strict compliance or fatigue.
    
    Dear JohnDoe@gmail.com your personal data was breached in the response to a blog about breach fatigue.  Be on the lookout for a few million more notices by organizations set on strict compliance.
  • Fred Sep 3, 2014

    In 2009 the Ontario Privacy Commissioner's office (as the only Canadian privacy authority with mandatory breach reporting) wrote a discussion paper on "Privacy Externalities, Security Breach Notification and the Role of Independent Oversight," arguing for a flexible regulatory approach that allows regulators an early seat at the breach crisis table to advocate for the customers/clients. Ontario's cooperative model minimizes breach fatigue as well as unnecessary reporting and remediation costs. http://www.ipc.on.ca/images/Resources/privacy_externalities.pdf

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