Reasonableness Meets Requirements: Regulating Security and Privacy in Software
Otto, Paul N., Duke Law Journal
Software security and privacy issues regularly grab headlines amid fears of identity theft, data breaches, and threats to security. Policymakers have responded with a variety of approaches to combat such risk. Suggested measures include promulgation of strict rules, enactment of open-ended standards, and, at times, abstention in favor of allowing market forces to intervene. This Note lays out the basis for understanding how both policymakers and engineers should proceed in an increasingly software-dependent society. After explaining what distinguishes software-based systems from other objects of regulation, this Note argues that policymakers should pursue standards-based approaches to regulating software security and privacy. Although engineers may be more comfortable dealing with strict rules, this Note explains why both policymakers and engineers benefit from pursuing standards over rules. The nature of software development prevents engineers from ever guaranteeing security and privacy, but with an effective regulatory standards framework complemented by engineers' technical expertise, heightened security, and privacy protections can benefit society.
On October 20, 2008, Anne Pressly, a television anchorwoman in Little Rock, Arkansas, was discovered in her home after having been attacked and severely beaten. (1) Although she spent the next week at a hospital, Ms. Pressly never regained consciousness and ultimately passed away on October 25. (2) The attack quickly gained national media attention, (3) especially because the beating was particularly savage and yet apparently random. (4)
In addition to attracting national media attention, the situation surrounding Ms. Pressly's attack and subsequent hospitalization also inspired curiosity among hospital employees within the St. Vincent Health System. Within a month of Ms. Pressly's death, the hospital announced the firing of several employees for "improperly accessing [her] medical records. (5)
In cases the media follows, there have been many breaches of patients' privacy rights through unauthorized access to medical records. (6) The suspension or termination of hospital employees often follows such breaches, owing to the strict privacy protections put in place by the Health Insurance Portability and Accountability Act of 1996 (HIPAA) (7) and its resulting regulations regarding the security and privacy of medical records. (8) As a news article describing the Pressly situation mentions, however, "you still have to wonder ... why is there not more limited access to those [medical] records--especially with a prominent individual when you could really expect an unauthorized person would get overly curious? Why does the hospital allow any employee access to records they do not need to see?" (9)
The problem of unauthorized access to private information is not limited to the healthcare domain, nor is the general problem restricted to unauthorized access. Personally identifiable information (10)--whether financial, medical, or otherwise private--is threatened by identity theft, (11) data breaches, (12) and fraud, (13) among other threats. Misuse of personally identifiable information has increased as more information enters electronic form, thus facilitating both its exchange and exposure on a larger scale. The transition to electronic record systems has necessitated the development of complex software systems (14) to manage the creation, storage, and transmission of electronic information.
Increasingly, laws and regulations specify how software systems must implement data security and privacy measures. Some legal requirements regarding security and privacy emerge in advance of software system development to control the direction of software use. (15) Other security and privacy requirements emerge in response to perceived excesses or threats from existing software systems. (16) In both scenarios, policymakers (17) must make decisions about the means through which they seek to control software design, development, and deployment. …