PRIVACY + SECURITY BLOG

News, Developments, and Insights

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Cartoon: The Privacy Paradox

Cartoon Privacy Paradox - TeachPrivacy Privacy Training 02 small

This cartoon is about the “privacy paradox” — the phenomenon where people say that they value privacy highly, yet in their behavior relinquish their personal data for very little in exchange or fail to use measures to protect their privacy.

I recently wrote an article about the privacy paradox: The Myth of the Privacy Paradox, forthcoming 89 Geo. Wash. L. Rev.  You can download it on SSRN for free.

Download Article Solove Myth of the Privacy Paradox

Commentators typically make one of two types of arguments about the privacy paradox. On one side, privacy regulation skeptics contend behavior is the best metric to evaluate how people actually value privacy. Behavior reveals that people ascribe a low value to privacy or readily trade it away for goods or services. The argument often goes on to contend that privacy regulation should be reduced.

On the opposite side, other commentators argue that people’s behavior isn’t an accurate metric of preferences because behavior is distorted by biases and heuristics, manipulation and skewing, and other factors.  People also demonstrate a strong tendency to favor immediate gratification, and this often leads to people giving up their data; the costs aren’t understood until it is far too late.

In contrast to both of these camps, I contend that the privacy paradox is a myth created by faulty logic. The behavior involved in privacy paradox studies involves people making decisions about risk in very specific contexts. In contrast, people’s attitudes about their privacy concerns or how much they value privacy are much more general in nature. It is a leap in logic to generalize from people’s risk decisions involving specific personal data in specific contexts to reach broader conclusions about how people value their own privacy.

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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy and data security training. He also posts at his blog at LinkedIn, which has more than 1 million followers.

Professor Solove is the organizer, along with Paul Schwartz, of the annual Privacy + Security Forum events.

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Cartoon: GDPR Lawful Basis

Cartoon GDPR Lawful Basis - TeachPrivacy GDPR Training

This cartoon is about the GDPR’s lawful basis requirement to process personal data. One of the biggest differences between U.S. and EU privacy law is that in the U.S., organizations can collect and use personal data in nearly any way they choose as long as they state what they are doing in their privacy notice and follow what they say.  In the EU, in contrast, the GDPR requires that organizations have a “lawful basis” to collect and process personal data. The GDPR specified six lawful bases, including consent, performance of a contract, compliance with a legal obligation, public interest, protect the vital interests of the data subject or other people, and legitimate interest in processing the data.

Many organizations use legitimate interest as their lawful basis.

Article 6(1)(f) of the GDPR provides: 

1.Processing shall be lawful only if and to the extent that at least one of the following applies:

(f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.

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Notable Changes in the Modified Draft CCPA Regulation

CCPA Regulation - TeachPrivacy CCPA Training 01

Updated on March 27, 2020 — The California AG came out with a modified modified draft of the CCPA regulation on March 11, 2020.  Most notably, a few of the changes in the February 7 draft were walked back.  I will discuss the details below. 

On Friday, February 7, 2020, the California AG dropped a new modified draft CCPA regulation.  Comments are due by February 24, 2020 at 5 PM Pacific Time.

Here are some notable changes:

(1) IP Addresses Can Somehow Escape from Being Personal Information 

New text of the regulation:

§ 999.302. Guidance Regarding the Interpretation of CCPA Definitions
(a) Whether information is “personal information,” as that term is defined in Civil Code section 1798.140, subdivision (o), depends on whether the business maintains information in a manner that “identifies, relates to, describes, is reasonably capable of being associated with, or could be reasonably linked, directly or indirectly, with a particular consumer or household.” For example, if a business collects the IP addresses of visitors to its website but does not link the IP address to any particular consumer or household, and could not reasonably link the IP address with a particular consumer or household, then the IP address would not be “personal information.”

This last sentence about IP addresses was stricken in the new modified CCPA regulation of March 11.

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A Terrifying New Dimension of Ransomware

Ransomware

Ransomware has long been a scourge. Since at least 2012, ransomware has grown dramatically. Ransoms have increased — the average ransom payout is now more than $40,000. Organizations most hit are public sector, software services, professional services, and healthcare.  Healthcare, in particular, is a soft target because of the need to get systems back and running quickly. According to a McAfee report, ransomware attacks more than doubled in 2019.  An FBI warning from fall 2019 didn’t indicate an increase in the number of attacks but did show an increase in the targeting and severity of the attacks: “Ransomware attacks are becoming more targeted, sophisticated, and costly, even as the overall frequency of attacks remains consistent. Since early 2018, the incidence of broad, indiscriminant ransomware campaigns has sharply declined, but the losses from ransomware attacks have increased significantly, according to complaints received by IC3 and FBI case information.”

For a long time, a debate has raged about whether to pay the ransom.  Some argue that the ransom should never be paid, but organizations facing the loss of their data might not have much of a choice. But if organizations back up their data, then they can they can avoid paying the ransoms and restore their data. But now there’s a new development in ransomware that is particularly troubling and that makes paying the ransoms a necessity even when data is backed up.  Ransomware groups are now threatening to release an organization’s data online if the ransom isn’t paid.

Ransomware Threaten to Disclose DataThis year, five law firms were hit with Maze Ransomware. Instead of just encrypting the data, the ransomware group exfiltrated it first and then posted a small amount of it online. The group threatened to post the remainder of the data online unless the ransom was paid. According to one article: “Recent reports have shown the hacking group behind Maze ransomware has been steadily posting the data of its victims online after the organizations fail to pay the ransom demand. A compiled list of victims shows the data of several healthcare organizations are included in those postings, despite a lack of public reporting of those incidents.”

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