A Repeated Call for Omnibus Federal Cybersecurity Law

By Li, Carol | Notre Dame Law Review, May 2019 | Go to article overview

A Repeated Call for Omnibus Federal Cybersecurity Law


Li, Carol, Notre Dame Law Review


INTRODUCTION

In 2013, Target reported that the credit card and personally identifiable information of "as many as 110 million customers" had been compromised. (1) In 2014, Yahoo! announced that a "state-sponsored actor" had gained access to personal information of 500 million users that year, and "all 3 billion user accounts had been compromised" in a data breach that occurred in 2013. (2) Nine months into 2014, nearly 2000 cybersecurity incidents were confirmed, "compromis[ing] almost [one] [b]illion records worldwide." (3) In 2017, Equifax reported a data breach that exposed nearly 150 million consumers. (4) Between January 2017 and August 2018, "[a]t least 16 separate security breaches occurred at retailers," including Macy's, Sears, Delta Air Lines, Best Buy, Panera, and Whole Foods. (5) Even after its Cambridge Analytica scandal, Facebook reported in 2018 that "at least 50 million users' data were confirmed at risk after attackers exploited a vulnerability that allowed them access to personal data." (6) Worse yet, it was found that "[t]he vulnerability was introduced on the site in July 2017, but Facebook didn't know about it until" mid-September 2018. (7)

One need not be a cybersecurity expert to recognize that cyber risk is escalating: companies that many of us regularly use, trust, and rely on are falling to data hacks left and right. The number of "[r]ecent highly publicized data breaches have underscored the growing reality that attacks on private corporations constitute a national security issue." (8) According to industry experts: "today it is a matter of when, not if, a company's data will be breached." (9) The Ponemon Institute reported in 2018 that "[t]he risk of cyber extortion and data breaches will increase in frequency," but that "[d]espite the growing cyber threat, cybersecurity is not considered a strategic priority." (10) In 2018, the average expenditures required to address a data breach continued to increase, with the average total expenditure increasing to $3.86 million and the average cost for each lost or stolen record increasing to $ 148. (11) Living "in a world where every action we take can be observed, recorded, analyzed, and storedf,]... consumers want better consumer protections over personal data." (12)

In Part I, this Note discusses the concerning regularity of high-profile data breaches that have occurred within the United States' weak and patchwork landscape of cybersecurity law. Part II discusses the challenges companies face when attempting to comply with the current cybersecurity law, and why companies who are deemed compliant are still falling victim to hackers and data breaches. Part III makes a call for federal legislation to replace the current, inadequate, fragmented, and uneven landscape of cybersecurity law. Part IV discusses numerous factors and incentives to consider in creating an omnibus federal cybersecurity law. Finally, Part V offers some critiques to creating an omnibus law.

I. CURRENT STATE OF CYBERSECURITY LAW IN THE UNITED STATES: A FRAGMENTED FRAMEWORK OF CYBERSECURITY OBLIGATIONS

Despite the increasing frequency of data privacy breaches compared to the rest of the world, "the legal framework to protect privacy and personal data in the United States is quite weak." (13) Part of this weakness is due to the fragmented, patchwork nature of cybersecurity laws, which in turn makes it difficult for companies to comply. As it stands, "[t]he United States does not have a national law that prescribes specific data security standards for all industries." (14) Instead, companies must figure out how to comply with a "fragmented and disconnected framework of state and federal laws governing cybersecurity obligations." (15) The United States' framework consists of "hundreds of state and federal statutes, regulations, binding guidelines, and court-created rules regarding data security, privacy, and other issues commonly considered to fall under the umbrella 'cybersecurity. …

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A Repeated Call for Omnibus Federal Cybersecurity Law
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