Private Law Theory

ABSTRACT
Data breaches continue to roil the headlines, yet regulation and legislation are unlikely to provide a timely solution to protect consumers. Meanwhile, individuals are left, at best, in a state of data insecurity and, at worst, in a compromised economic situation. State common law provides a path forward. Rather than rely on statutory claims or the privacy torts to protect consumer data, this Essay suggests that courts should recognize how contemporary transactions implicate fiduciary-like relationships of trust. By designating what this Essay terms data confidants as a limited form of information fiduciary, courts can reinvigorate the tort of breach of confidence as a remedy for aggrieved consumers.

Solow-Niederman, Alicia, Beyond the Privacy Torts: Reinvigorating a Common Law Approach for Data Breaches (Jan 11, 2018). 127 Yale Law Journal Forum 614 (2018).

First posted 2021-05-01 16:15:17