The significance of mandatory data breach warnings to identity crime.
The Australian Government has raised considerable debate around the introduction of data breach notification as a way of preserving data arising through breaches of data . Public instances of data breaches have attracted awareness of the need for greater protection of personal data . The heightened public awareness of these issues has prompted the Australian Government to introduce laws in Australia to deal with data breach notification , the fundamental purpose of which is that the person whose data has been breached has a "right to know" of this breach . Mandatory data breach notification is a legal requirement on the holder of data to notify those affected in the event of a data breach ; thus, through being notified of a breach, the person whose data has been misused may take appropriate action to prevent further harm resulting .
There are scarce information to link the notification of data breaches and identity crime, however, based on reports from the United States it is argued that a discernable reduction in the incidence of identity crime can occur through the introduction of mandatory breach notification laws . Australia is in the process of introducing mandatory breach notification laws, which are in their final stages of legislative enactment, and will provide new opportunities to consider the relationship between mandatory breach notification and crime, in particular, identity crime. Data breaches are likely to become more important given the trends toward cloud computing and large data sets.
II. THE VULNERABILITIES OF PERSONAL IDENTIFICATION INFORMATION
Advances in technology have resulted in increased volumes of information being stored electronically, particularly on the Internet , which, include personal identification information . Personal identification information is information that is unique to the person, for example their name, address and credit card number . In the event of a data breach, it is this information that can present vulnerabilities for identity crime to the individual . Identity crime can also impact on corporations also where personal details are used to defraud corporations . While corporations may be responsible for this crime, they can also be the victim. Nonetheless, 33% of the information exposed through data breaches includes personal identification information like names, addresses and credit card numbers .
In many countries there is no compulsion to record breaches of data. Further, in Australia, at present, there is no formal requirement regarding such breaches , however Australia will introduce data breach notification requirements in 2014 . Prior to enactment of the new legislation, the approach to regulating privacy has been regulated by the Privacy Act 1988 (Cth), under which organisations and agencies storing personal information are subject to requirements to provide adequate security protection . The Privacy Act applies to the use of information which is sensitive, including personal identification information . There are criminal sanctions for the possession of personal identification information with the purpose of committing an offense in many States, for example Queensland . However, when it comes to data breaches, the responsibility for the protection of private information is less clear in Australia, where an organisation or agency is not compelled to report data breaches, and the responsibility for this notification is therefore voluntary and falls back to the organisation concerned. This lack of mandatory reporting can have ramifications for identity theft.
III. EXPLORING THE LINKS BETWEEN DATA BREACHES AND IDENTITY CRIME
The cost of data breaches has steadily increased . At the same time, the number of identity crimes has increased, with for example the United States having over 15 million people that are victims of this crime each year . A proportion of identity crime can be definitively traced back to data breaches, hence, the causal relationship between data breach and identity crime has significance. Noteworthy is the statement by the United States Federal Trade Commission that the introduction of data disclosure laws has reduced identity theft by at about 6 percent . This points toward a reduction, albeit a small one, in the incidence of identity crime as a direct result of regulatory implementation. Although early to predict, it is probable that the same trend will be evident with the introduction of a mandatory breach notification in Australia.
IV. THE DRIVERS FOR MANDATORY BREACH NOTIFICATION LAWS IN AUSTRALIA
In the existing regulatory environment in Australia, an organisation or agency involved in a data breach often exercises some discretion in dealing with that breach. As a consequence, many breaches may not be reported and appropriately actioned through notifying those involved or the Privacy Commissioner . However, despite the largely voluntary nature of reporting, examples exist that demonstrate that some organisations and agencies, irrespective of the lack of compulsion to do so, actively take responsibility for data breaches and act accordingly by notifying those affected. . However, because it is discretionary, this does not always occur.
For localities that do not have mechanisms that compel data breach notifications such as Australia (at present), this results in difficulty in obtaining accurate data on the extent of data breaches. Symantec estimates that the cost of data breaches in Australia at $2.16 million in 2011 . Nonetheless, examples of significant data breaches are still reported to the Privacy Commissioner, are from companies such as Sony  and Lego , with other notable breaches relating to Telstra  and Vodafone . Likewise, significant instances of data breaches are also evident in other countries . In this respect, for Australia, an advantage of having mandatory notification is that it may highlight a hidden societal problem .
Data breach costs continue to increase, according to research undertaken by the Ponemon Institute and IBM, the costs of data breaches increased in Australia by $4 per record up to a total of $145 per record in 2014 . Similarly, the average organisational cost per for data breaches increased in Australia from 2.72 million dollars in 2014 to 2.8 million in 2014 . A recent example of a data breach involving Australia involved eBay where a computer hacking attack resulted in data breaches to as many as 145 million customers . The eBay breach was said to have occurred through the compromise of a small number of employee credentials . These credentials were used to facilitate access to the personal identification information of customers. eBay admitted that the personal information had been taken but otherwise denied any risk of loss relating to financial information. The reason for this is that eBay account details are retained separate to financial details in PayPal. The particular personal information that was stolen included email addresses as well as physical addresses, phone numbers and dates of birth . While this breach was not related to financial information, it involved personal identification information which has implications for identity crime.
As a consequence of this breach, eBay took corrective action in notifying customers of the breach and also of the needed users to change log in details to prevent any further risk . However, a criticism that arose following this breach was the delay taken by eBay to announce the breach and to make efforts to notify users. Further to this breach, there are investigations taking place on the liability of eBay for this breach particularly from U.S bodies located within Connecticut, Florida and Illinois . There may result in further legal action and will be followed with interest.
This eBay breach came only months after a significant data breach involving the retailer Target in the United States where 100 million users were purported to have been impacts . In this breach up to 30 million financial details were stolen over a two month period with up to 70 million personal details stolen. The breach in Target was disclosed in December 2013 . The personal details breached included names, addresses and phone number of Target customers . As a consequence of this breach, Target identified a drop in profits of around 46 per cent in profit on the year before, this loss is directly attributable to this data breach. Arising from this breach, financial institutions also sufferred losses expressed through the reissuance of cards and the upgrading of payment systems. These losses were estimated to amount to an estimated at 200 million dollars . For corporations there are potentially significant costs attached with data breaches that include losses to future revenue through lost consumer confidence . In the loss to Target, in addition to a financial sanction imposed of 17 million dollars ($US), this also impacts on the goodwill to the organisation which directly results in financial harm .
Research undertaken by Symantec in 2013 found that Australia is prominent as a country impacted by data breaches . Furthermore, Australian companies had the largest number of records compromised particularly where contrasts might be made to data breaches in other countries like Italy and Japan which were comparatively minimal . Associated with these loses are abnormally high rate of customer churn which means that consumer loss associated with this crime is significant, as evident from the Target example expressed previously . Interestingly the United States expended the most resources on notification and perhaps attributes a lower levels of customer loss and from this it will be interesting to observe if this changes in Australia through the introduction of mandatory breach notification laws in Australia change the extent of churn .
V. THE MARKET FOR INFORMATION
Personal identification information has a value, which can be equated to assets that can be traded and sold . While often the value of this information is based on benefit that's comes from it . Now the risk to individuals is far more profound with information being shared online as well as traded like a commodity . There are likely to be many costs associated with the misuse of information arising from data breaches that are not readily estimated. It is difficult to know how and in what way information will be used in the future. For instance, with identity crime, personal identification information can be warehoused by an identity criminal and used some time later to perpetrate crime and this makes it difficult to know when the crime will be committed and from what source the details were obtained. This crime is pervasive as many victims will not find out they have becomes victims until they are contacted by debt collectors . At that time, they will need to establish how this took place and from where to prevent it occurring again. This becomes difficult with such a time lapse between the data acquisition and the crime.
Personal identification information has value and has created a market in the trade of it . Many individuals born after 2012 will have a profound digital footprint on the Internet . They may develop an identity on the Internet from birth that will extend their life. Personal information is far easier to aggregate because of the ways it is shared and social networking is partly responsible for this . The capability for information dissemination is made more dramatic through the emergence of 'big data'. 'Big data' can be expressed as data made up of complex data sets which are mammoth. Some of this data incorporates personal identification information, financial information as well as various other types . Another emerging and potential risk of identity crime is that of the risk of data breaches through clouds . The vulnerability for data in clouds, like that from big data is based on the extent of information stored which is likely to contain a significant amount of information . The potential for loss for personal identification information is substantial given the amount of organisations storing data online and the reliance on this emerging technology for this information storage .
Romansky, Telang and Acquisti suggest that while a person has a right to know of a data breach involving their personal information, another driver for compelling such notification is information dissemination more broadly to increase communal knowledge of the occurrence . Such dissemination of information means that the practices undertaken by organisations and agencies relating to the management of information may become more transparent , meaning that individuals are better aware of where the greater and lesser risks arise.
Anecdotally, in Australia there is mixed support for the introduction of mandatory breach notification. In 2012, a representative sample of 700 Australians who were surveyed by eBay found that 80% of respondents supported the introduction of laws requiring notification of breaches in Australia . This statistic is likely to be different today following the eBay data breach in 2014. Interestingly, many of those surveyed were most concerned about identity theft and the loss of financial data resulting from data breaches, and it was these considerations that drove their support . Therefore a driver for regulatory change is the very real threat of identity crime . This sentiment is similarly reflected other jurisdictions .
According to the Australian Privacy Breach Notification Discussion paper, earlier recommendations by the Australian Law Reform Commission (ALRC) in relation to mandatory breach notification were subject to criticism . However, it was clear that some response to dealing with data breaches through the privacy regulatory responses available was still needed. The Office of the Australian Information Commissioner introduced a guide to handling security breaches as a measure to mitigate the impacts of data breaches , providing a guide to practical steps to handle data breaches, among other things . However, a limitation of this is that it does not compel any notification in respect of a breach or prescribe penalties . Nonetheless, the guide is helpful in assisting organisations and agencies with data breaches until more formalised rules and regulations take effect in Australia .
An important driver for the introduction of laws around mandatory data breach notification is that this could serve as a deterrent to overcome poor information management practices . This is based on the consequences that flow to the organisation or agency that does not deal with personal identification information in an appropriate manner . According to the Australian Privacy Breach Notification Discussion paper, there is merit in the identification of bodies that do not take appropriate steps in responding to data breaches . In addition, a side benefit, is that the broader community confidence in the approaches that are taken to manage information . These are powerful motivators to having such laws introduced in Australia.
Laws relating to mandatory notification of data breaches have been implemented in a number of countries including, the United States (mentioned above), Germany, Norway and Japan . In the United States for instance, such approaches to dealing with data breaches go historically as far back as 2003 in California . There are lessons to be learnt from those who have developed similar laws in the past, such as moderating the number of warnings to avoid fatigue . Despite the obvious improvement to policy and practice that relates to the overall improvement to privacy that such a regulatory change makes, there are others that relate to the relationship between privacy and other crimes.
VI. THE LINK BETWEEN DATA BREACHES AND IDENTITY CRIME
Romanosky, Telang and Acquisti suggest that the link between identity theft and data breaches is tenuous due to the lack of data available to conclusively support this relationship , and that further, the data around identity crime is questionable. Needles also suggests that the relationship is not significant due to the lack of data available to support such a link . However, Cate, Abrams, Bruening and Swindle aver that the nexus between data breaches and identity theft is under stated because the true extent of identity crime is not known . However, Romanosky, Telang and Acquisti state that up over 30% of identity thefts are caused by data breaches by corporations , and Burdon notes that an important link exists between data breach notification and the mitigation of identity theft . Likewise, Regan highlights that mandatory breach notifications can positively reduce identity crime through increasing awareness . Therefore despite the difficulties in drawing direct linkages between data breaches and identity crime, there is a relationship .
The ALRC notes that in the United States, a key rationale for the introduction of mandatory breach notification laws was around mitigating the potential for identity theft . Accordingly, the ALRC suggests that in Australia, without regulatory oversight of data breaches and the appropriate notifications stemming from these, the risks associated with identity theft will only increase . This may be aside from whether there are consistent criminal sanctions relating to identity crimes. Therefore, the ALRC argues that through regulating the reporting of data breaches it may be possible to mitigate the damage arising from identity crime . Consequently, there is more work that is needed to explore the relationship between these variables.
VII. HOW MIGHT THE REGULATORY RESPONSE LOOK?
In Australia, the approach proposed to mandate the reporting of data breaches is based on the privacy frameworks and related technologies . Australian governmental agencies, as well as private sector organisations , are guided by principles outlining how information can be used, disclosed and stored . This is different from the approach in the United States, which emphases specific uses of personal information such as health information,  and that of driver's licenses . However, there is often many forms of personal identification information that can become susceptible through data breaches. The principles in the United States are not founded on privacy principles in the same way as the Australian approach, and rather represent disparate approaches driven by state specific regulatory needs than an overarching approach, which means the approach in Australia is likely to be different to the United States.
An issue with dealing with identity crime is that it is not regulated internationally and rather falls to various domestic regulatory mechanisms for effect . The international agreement that deals with identity crime is in the European Convention on Cybercrime  which promotes cooperation and coordination in cyber-crimes. However, despite this convention there are arguably inadequate and inconsistent national responses to this crime . This has implications for the prevention of the identity crime as well as the measures of redress . Discrepancies in the regulatory responses to identity crime are evident through research undertaken through the European Union which found that most countries do not have specific laws that deal with identity theft . To provide a contrast, in Latvia, has sanctions attached to identity crime which state that the crime has a penalty of up to 15 years imprisonment . In Romania the penalties for this crime are up to 20 years imprisonment for offences . In contrast, other European countries like Finland which has a penalty of up to 4 years  and Denmark 6 years imprisonment . Hence, with European Countries there are significant differences in the penalties for this crime.
VIII. LESSONS LEARNED FROM THE US: WHAT SHOULD BE REPORTED?
The response to the question of what should be reported is dependent on the stringency of response applied to the reporting requirement. A broader policy question that needs consideration is what breaches should be reported? This has been referred to as the 'trigger' for the notification of a breach in parts of the United States . Reporting data breaches has a cost associated with it, and the more stringent the reporting requirement then the more costly it becomes . However, not adequately reporting a breach renders the reporting process unworkable, and any remedial responses arising from the breach unattainable. Therefore, there is a delicate balance in the reporting process in terms of identifying the incidence of data breach that should be reported and in this respect, the response needs to be substantive enough to make it worthwhile. In the United States, for instance, a negative consequence has been observed through the overuse of notification mechanisms which can result in complacency due to fatigue . It is hoped that this is will not be the outcome of regulatory reform in Australia as the focus is rather on an assessment and notification where there is a breach that places a person at risk of harm .
The ALRC suggested models for data breach notification in Australia which were largely based on the United States approach . Jurisdictions in the United States tend to have stringent triggers for reporting data breaches but tend to vary between States; For instance, Indiana requires a database owner who knows or should know that the data has been breached to report such incidence . This places a responsibility on the organisation concerned to report instances where there might be a suspicion of data loss. This may be a reasonable approach for Australia however there are diverging views about what information should qualify for mandatory breach notification; and the organisation or agency involved may not be in the best position to make determinations as to what should be reported. Therefore deferring such responsibility to another authority such as the Privacy Commissioner may be preferable . This is what is being proposed in Australia under the current bill . Ideally the data that is likely to have an adverse effect on the individual is the data that should be reported and this can be construed broadly .
Key to the effectiveness of any such notification of breach will be the speed in which such notification take place, so as to mitigate any possible consequences flowing from that breach . Further the way in which this communication takes place will invariably impact on the speed of such a response . In the United States, in California, the requirement is the most expedient manner to avoid unreasonable delay . How this will be applied in an Australian context, is not yet clear, however it certainly appear to be as soon as practicable following the breach . Regardless, any notification of breach must be timely to be effective particularly given the speed in which misuse of data can take place .
IX. PROPOSALS FOR CHANGE IN AUSTRALIA
A Federal approach to mandatory data breach notification could provide uniformity in respect of the approach taken and potentially avoid issues arising through a mixture of responses based on State laws or similar . Similar to the United States this may overcome the issue of variability in State based approaches to mandatory breach notification and inconsistencies . Another advantage of a Federally regulated approach is that it would provide consistent remedies for the victims of such data breaches . This is the proposed approach to be adopted within Australia.
The ALRC has suggested that market based incentives remain an important tool for improving information security measures . The threat to reputation is a market driven force that is important in mitigating data breaches . Arising from this threat, the damage to reputation for such bodies can be extensive . The ALRC recognise reputational damage as an incentive for organisations to improve information security but ultimately they also take the view that this alone was not an adequate measure and needed to be accompanied by a regulatory response prompting action . Nonetheless, it is important to acknowledge the role that is played by these other factors in mitigating the effect of data breaches.
There has been debate around the sanctions that should apply to organisations or agencies that fail to notify of a data breach . Therefore, if the penalties are civil and monetary then what should these be in terms of a sanction amounts? If these are non-monetary, then how should this be framed? The proposed changes would allow the Privacy Commissioner to investigate and make determinations as well as provide remedies for noncompliance through the Privacy Act . The United Kingdom, for instance, applies a fixed penalty of a thousand pounds to data breaches . Alternative options to civil penalties include administrative penalties, in addition to naming organisations and agencies that do not report data breaches . This has implications for reputation which have been identified above. Perhaps an appropriate penalty involves a mixture of these options. The governmental approach to these remains unclear in until the bill becomes law and the future actions, in this regard will becomes clearer in time.
An important part of mitigating data loss is to encourage organisations and agencies to engage with better data management practices, including acknowledging the steps that have been taken by organisations and agencies to mitigate risk attached to potential breaches. This might include for instance, what emphasis is placed on encryption or similar steps to mitigate data breaches, which is recognised in other jurisdictions . The ALRC considered this important for reducing liability in instances of data breaches . The implementation of preventative measures needs to be recognised as a deterrent to data breaches, but the extent of this needs to consistently.
In Australia, those against mandatory data breach reporting argue that such reporting can impose unreasonable financial burdens on organisations . The cost stems from the cost in making contact with the person whose data has been breached . This is reflected in Australia, at present by the voluntary reporting requirements/expectations under the Office of the Australian Information Commissioner . However, at present, there is little incentive for organisations and agencies to comply with reporting of data breaches , and the ALRC similarly asserts that this poor market incentives result in low levels of reporting . If the status quo in dealing with data breaches was working effectively it would be unlikely that such debate would be occurring regarding the need for mandatory notification of breach laws in Australia nor elsewhere.
In Australia, the regulatory change is set to commence in 2014. The new regulatory requirements will oblige organisations to provide notifications where the data breach will result in harm that is 'serious' , including injury to feelings, reputation, financial or economic harm . This requirement provides, among other things, for the entity concerned to as soon as practicable notify the Commissioner and each individual significantly affected by the data breach . The regulatory change modifies the Privacy Act 1988 (Cth) by establishing mandatory notification through the changes proposed in the Privacy Amendment (Privacy Alerts) Bill 2013 . This amendment provides the right for the Privacy Commissioner to take enforcement action, investigate complaints as well as obtain undertakings from organisations about compliance. Similarly civil penalties will also be available under this regime .
The trend to recognise legislative requirements for the notification of data breaches has certainly been a factor in introduction of such rules into Australia . In particular, in this context, strong reference is made to the United States that has adopted some regulatory approach to dealing with data breaches. Further, reference has also been made to the European Union which similarly requires telecommunication and internet service providers to disclose certain data breaches to national authorities . Importantly, within this jurisdiction, a further draft data protection regulation document broadens these obligations .
A concern expressed by the ALRC was that they wish to reduce the burden of compliance , a sentiment that is similarly reflected in other jurisdictions and certainly identified as an area of concern in the European Union . Thereby care has been taken to identify breaches as 'serious data breaches' for the purposes of the legislation as the trigger upon which action must be taken . What is interesting about the developments in the regulatory responses to data breach disclosure is that increasingly there is an awareness of the need for an appropriate regulatory response, and the government is tentatively approaching this. It will be interesting to observe the developments in this regard.
X. THE EVOLUTION OF THE LAW AND THE LESSON LEARNED
In 2014 amendments took effect in Australia in relation to privacy through The Privacy Amendment (Enhancing Privacy Protection) Act 2012 which introduced a range of changes to the privacy principles regulating the handling of personal information . This applies to the ways in which personal information is dealt with by the Australian Governments agencies and some private sector organisations. The provisions enhanced the powers of the Office of the Australian Information Commissioner and changes to credit reporting laws, and provide greater recognition of external dispute resolution schemes and privacy codes . The recent changes to the privacy laws represent the largest changes to these laws in 25 years in Australia . Specific to this article are the changes that have been made to Australian Privacy Principles 6, 7 and 8 which all relate to the disclosure of personal information; the use or disclosure of personal information, the use of information for direct marketing and cross-border disclosure of personal information. However, the specific Bill to provide for mandatory breach notification unfortunately lapsed in Australian Parliament resulting in a delay in it becoming law. The significant aspect of this bill is that it would allow the investigation of data breaches but this is delayed until the bill becomes law .
XI. THE FUTURE PROSPECTS OF A SUCCESSFUL IMPLEMENTATION--REGULATORY IMPACT ASSESSMENT
It can be difficult to assess the extent to which regulatory efforts will influence identity crime. More research is needed to gauge the impact of changes to privacy law on the incidence of identity crime. In studies by the European Union it was recognised that it is desirable to have a coordinated mechanism to report crime internationally . The centralisation of data collection functions is important for the collection of data related to this crime as well as potentially providing support mechanisms for victims . In addition, having a centralised data collection function, improves the common understanding of this crime . The focus on victims is important as they wear the loss and are seldom the focus of regulation as the focus seems to remain on the offender rather than the victim. This might provide a useful way forward in dealing with this crime and perhaps also better understanding the relationship between data breaches and identity crime.
This paper brings together existing literature on the relationship between identity crime and mandatory breach notification laws. Given the increased prevalence of both data breaches and of identity crime it is important to acknowledge the existence of the relationship between these variables. Further, where laws are introduced to deal with mandatory breach disclosure, as they are at present in Australia, it is vital to consider the implications such laws will have on the reduction of
identity crime. It is also important to recognise that while there is a link between data breaches and identity crime that is somewhat tenuous, there is a significant relationship. This will only be measureable post-implementation, and can form the basis of future discussion.
Both the literature and issues currently being experienced in practice suggests that there is a need to be able to mitigate data breaches, which will in turn assist in the prevention of identity crime. It is not clear whether regulating the notification of data breaches is going to have discernible impact on identity crime, and only time will reveal the true extent of this. However, what is clear from this conceptual research is that there is a relationship between data breaches and identity crime that means that a reduction in one (data breaches) are likely to result in a reduction in the other. Hence, it is reasonable to suggest that the introduction of mandatory breach notification laws in Australia will have a direct impact on the incidence of identity crime in that country.
We would like to acknowledge the support of Faculty of Business at Federation University Australia and the support of the Law Faculty at Bond University. I would like that thank the reviewers of the paper presented to Cybersec2014 for their helpful comments and feedback.
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Faculty of Business. Federation University Australia
PhD Student, Bond University
Faculty of Law. Bond University Robina, Australia
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|Author:||Holm, Eric; Mackenzie, Geraldine|
|Publication:||International Journal of Cyber-Security and Digital Forensics|
|Date:||Jul 1, 2014|
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