Cybersecurity, Identity Theft, and the Limits of Tort Liability

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Full Title of Reference

Cybersecurity, Identity Theft, and the Limits of Tort Liability

Full Citation

Vincent R. Johnson, Cybersecurity, Identity Theft, and the Limits of Tort Liability, 57 S.C. L. Rev. 255 (2005). Web AltWeb



Key Words

Identity Fraud/Theft, Communications Privacy Law, Hacker, Password Weakness


This article considers to what extent database possessors (such as credit card companies and universities) can be held liable for harm caused to data subjects (such as consumers, applicants, and alumni) when information relating to those persons is hacked or otherwise subject to improper access. Addressing common-law and statutory sources (including new legislation in 17 states) the article clearly differentiates the duty to safeguard data from the duty to notify data subjects that the security of their information has been breached. By analogy to the “medical-monitoring damages” which some states award in toxic-exposure cases, the article argues that “security-monitoring damages” should be available in database-intrusion cases. More specifically, the article proposes that, in cases of ordinary negligence, the interests of society will be best served by limiting recoverable economics losses to the cost of security-monitoring damages once a database possessor discloses to the affected individual the fact that data has been improperly accessed. This approach will encourage database possessors to discover and reveal instances of data intrusion. It will also place data subjects in a position to protect their own interests by monitoring their economic and personal security when there is heightened vulnerability.

The Duty to Protect Personal Information

A legal duty to exercise due care to personal information may arise from statute or common law. Statutorily created duties may also allow or disallow a private right of action where that duty is breached. Alternately, a statute which mandates specific action be taken to protect personal information may serve as a predicate for a tort action under the theory of negligence per se. Under this theory, a court may determine that violation of a statute designed to protect a group the plaintiff is a member from the type of harm the plaintiff suffered sets the standard for negligence to impose civil liability. However, where a statute merely requires that data be adequately protected, as opposed to mandating a particular data protection technique, it is not useful to speak of negligence per se.

Additional Notes and Highlights


 I.  The Vulnerable Foundations of Modern Society
 II.  The Duty to Protect Database Information
    A.     Statutes Legislatively Creating a Cause of Action
    B.     Statutes Judicially Determined to Set the Standard of Care
           1.     The Gramm-Leach-Bliley Act
           2.     State Security Breach Notification Laws
    C.     Basic Tort Principles
           1.     Palsgraf, Kline, and Related Cases
           2.     Public Policy Analysis
           3.     Voluntary Assumption of Duty
    D.     Fiduciary Obligations
 III. The Duty to Reveal Evidence of Security Breaches
    A.     Statutory Duties
    B.     Basic Tort Principles
           1.     General Duty or Limited Duty
           2.     The Obligation to Correct Previous Statements
           3.     Conduct Creating a Continuing Risk of Physical Harm
    C.     Fiduciary Duty of Candor
 IV.  Limiting Cybersecurity Tort Liability
    A.     The Economic-Loss Rule
    B.     Emotional-Distress Damages
    C.     Security-Monitoring Damages
 V.   Conclusion: Security in Insecure Times