Response to McGeveran’s The Duty of Data Security: Not the Objective Duty He Wants, Maybe the Subjective Duty We Need

103 Minn. L. Rev. Headnotes 139 (2019)

17 Pages Posted: 30 Jun 2019

See all articles by Justin (Gus) Hurwitz

Justin (Gus) Hurwitz

University of Nebraska at Lincoln - College of Law; International Center for Law & Economics (ICLE)

Date Written: June 28, 2019

Abstract

William McGeveran’s recent article, The Duty of Data Security, is a significant contribution to ongoing debates about what duty firms holding electronic information about consumers owe in ensuring the security of that data. It also supports the opposite conclusion from that which McGeveran articulates. McGeveran frames the article as identifying a clear duty of data security. This response argues that in his efforts to locate a clear duty in existing data security law he has identified a standard that, in all meaningful ways, is one of subjective (not objective) reasonableness – and therefore offers no clarity at all. There is likely room for disagreement on both sides of this argument – both that which McGeveran makes and my response to it. The ultimate purpose this this response, however, is to recognize this aspect of the duty that McGeveran has identified and to reframe it in the familiar terms of objective vs. subjective reasonableness. This distinction is both useful and important, and has gone unremarked upon in two decades of discussions about the data security obligations.

Suggested Citation

Hurwitz, Justin (Gus), Response to McGeveran’s The Duty of Data Security: Not the Objective Duty He Wants, Maybe the Subjective Duty We Need (June 28, 2019). 103 Minn. L. Rev. Headnotes 139 (2019). Available at SSRN: https://ssrn.com/abstract=3411838

Justin (Gus) Hurwitz (Contact Author)

University of Nebraska at Lincoln - College of Law ( email )

103 McCollum Hall
P.O. Box 830902
Lincoln, NE 68583-0902
United States

International Center for Law & Economics (ICLE) ( email )

5005 SW Meadows Rd.
Suite 300
Lake Oswego, OR 97035
United States

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