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Privacy Versus Security

17 Pages Posted: 29 Jan 2013 Last revised: 26 Apr 2013

Derek E. Bambauer

University of Arizona - James E. Rogers College of Law

Date Written: January 29, 2013

Abstract

Legal scholarship tends to conflate privacy and security. However, security and privacy can, and should, be treated as distinct concerns. Privacy discourse involves difficult normative decisions about competing claims to legitimate access to, use of, and alteration of information. It is about selecting among different philosophies, and choosing how various rights and entitlements ought to be ordered. Security implements those choices – it intermediates between information and privacy selections. This Article argues separating privacy from security has important practical consequences. Security failings should be penalized more readily, and more heavily, than privacy ones, because there are no competing moral claims to resolve, and because security flaws make all parties worse off. Currently, security flaws are penalized too rarely, and privacy ones too readily. The Article closes with a set of policy questions highlighted by the privacy versus security distinction that deserve further research.

Keywords: privacy, security, data breach, data mining, Internet, information law, access, alteration, cybercrime, encryption, digital rights management

Suggested Citation

Bambauer, Derek E., Privacy Versus Security (January 29, 2013). Journal of Criminal Law and Criminology, Forthcoming; Arizona Legal Studies Discussion Paper No. 13-06. Available at SSRN: https://ssrn.com/abstract=2208824

Derek E. Bambauer (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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