State Data Breach Notification Laws: Have They Helped?
This essay appeared as the second half of a point/counterpoint with Marcus Ranum. Marcus’s half is here.
THERE ARE THREE REASONS for breach notification laws. One, it’s common politeness that when you lose something of someone else’s, you tell him. The prevailing corporate attitude before the law—”They won’t notice, and if they do notice they won’t know it’s us, so we are better off keeping quiet about the whole thing”—is just wrong. Two, it provides statistics to security researchers as to how pervasive the problem really is. And three, it forces companies to improve their security.
That last point needs a bit of explanation. The problem with companies protecting your data is that it isn’t in their financial best interest to do so. That is, the companies are responsible for protecting your data, but bear none of the costs if your data is compromised. You suffer the harm, but you have no control—or even knowledge—of the company’s security practices. The idea behind such laws, and how they were sold to legislators, is that they would increase the cost—both in bad publicity and the actual notification—of security breaches, motivating companies to spend more to prevent them. In economic terms, the law reduces the externalities and forces companies to deal with the true costs of these data breaches.
So how has it worked?
Earlier this year, three researchers at the Heinz School of Public Policy and Management at Carnegie Mellon University—Sasha Romanosky, Rahul Telang and Alessandro Acquisti—tried to answer that question. They looked at reported data breaches and rates of identity theft from 2002 to 2007, comparing states with a law to states without one. If these laws had their desired effects, people in states with notification laws should experience fewer incidences of identity theft. The result: not so much. The researchers found data breach notification laws reduced identity theft by just 2 percent on average.
I think there’s a combination of things going on. Identity theft is being reported far more today than five years ago, so it’s difficult to compare identity theft rates before and after the state laws were enacted.Most identity theft occurs when someone’s home or work computer is compromised, not from theft of large corporate databases, so the effect of these laws is small. Most of the security improvements companies made didn’t make much of a difference, reducing the effect of these laws.
The laws rely on public shaming. It’s embarrassing to have to admit to a data breach, and companies should be willing to spend to avoid this PR expense. The problem is, in order for this to work well, public shaming needs the cooperation of the press. And there’s an attenuation effect going on. The first major breach after the first state disclosure law was in February 2005 in California, when ChoicePoint sold personal data on 145,000 people to criminals. The event was big news, ChoicePoint’s stock tanked, and it was shamed into improving its security.
Next, LexisNexis exposed personal data on 300,000 individuals, and then Citigroup lost data on 3.9 million. The law worked; the only reason we knew about these security breaches was because of the law. But the breaches came in increasing numbers, and in larger quantities. Data breach stories felt more like “crying wolf” and soon, data breaches were no longer news.
Today, the remaining cost is that of the direct mail campaign to notify customers, which often turns into a marketing opportunity.
I’m still a fan of these laws, if only for the first two reasons I listed. Disclosure is important, but it’s not going to solve identity theft. As I’ve written previously, the reason theft of personal information is common is that the data is valuable once stolen. The way to mitigate the risk of fraud due to impersonation is not to make personal information difficult to steal, it’s to make it difficult to use.
Disclosure laws only deal with the economic externality of data owners protecting your personal information. What we really need are laws prohibiting financial institutions from granting credit to someone using your name with only a minimum of authentication.