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Unreasonable: A Strict Liability Solution To The Ftc’S Data Security Problem, James C. Cooper, Bruce H. Kobayashi

Michigan Technology Law Review

For over two decades, the FTC creatively employed its capacious statute to police against shoddy data practices. Although the FTC’s actions were arguably needed at the time to fill a gap in enforcement, there are reasons to believe that its current approach has outlived its usefulness and is in serious need of updating. In particular, our analysis shows that the FTC’s current approach to data security is unlikely to instill anything close to optimal incentives for data holders. These shortcomings cannot be fixed through changes to the FTC enforcement approach, as they are largely generated by a mismatch between the …