Embracing Insecurity: Harm Reduction Through a No-Fault Approach to Consumer Data Breach Litigation

Abstract

The lack of a clear remedy for data subjects whose private information has been compromised in data breaches prompts expensive and exploratory litigation that encounters difficulties with the unique set of risks posed by the data economy. Examining the market forces and risk environments posed by the data economy yields the conclusion that vulnerability is a guaranteed feature and investments in cybersecurity go largely unrewarded. The importance of data to our economy requires that the benefit of potential solutions to data subjects be weighed against the potential costs of burdening innovation. This Note proposes that the ideal solution should prioritize harm reduction by implementing a no-fault resolution system to provide an efficient remedy for compromised data subjects and a safe harbor-based compliance program to improve cybersecurity without hampering the direction of innovation.