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The theft and loss of personal information is a serious and growing problem. As the TJX incident and the other 1,150 reported data breaches since 2000 demonstrate, data breaches inflict large direct and indirect costs on businesses and other organizations. During this time, breaches of over 380,346,097 identities have been reported. They also cause severe financial and other harm to individuals whose credit card numbers, Social Security numbers and other critical personal data are stolen and illegally used by unscrupulous outsiders or insiders. This harm creates distrust of the electronic tools and processes that increasingly undergird our economy's growth and productivity.

In response to this costly problem, organizations have employed a myriad of technologies and engaged in various types of employee education. Increasingly, legislators and regulators have jumped into the fray, viewing the problem as a consumer protection issue. This legislative approach has become steadily more security-oriented as the problem has intensified. It began with data breach notification laws. More than 40 states now have these laws on the books. Because they usually only require organizations to notify customers and others of a data breach within a set period of time after the breach, these laws are generally recognized as inadequate. They inform customers and others of the loss of critical personal information, but have shown they minimally effect preventing these losses from occurring.

So states are "moving up the ladder" and are now passing data handing regulations. In Nevada this October, a was law passed that required all businesses to encrypt personally identifiable customer data, including names and credit card numbers that are transmitted electronically. Starting in January 2009, Massachusetts will require businesses to encrypt sensitive data stored on laptop computers and other portable devices. The states of Michigan and Washington are considering similar regulations.
But are even these stricter state laws enough to protect critical personal electronic data?

While helpful, they undoubtedly have serious limitations. First, they focus on encryption. While a useful technology, it can also be expensive and cumbersome, especially for small businesses. Second, encryption laws have the same limitations as notification laws: while they mitigate the risk of a lost tape or mobile device, they cannot prevent data breaches. An insider who has access to identity information and retransmitting that critical information, either intentionally or inadvertently, will not be stopped by encryption. Finally, these laws have the same limitation all state laws do. They create a patchwork of requirements and regulations that can be daunting for a large organization to navigate, next to impossible for a small firm.


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