Reservoirs of danger: The evolution of public and private law at the dawn of the information age

Southern California Law Review

Volumn 80, Issue 2, 2007, Pages 241-297

  Citron, Danielle Keats ^a  

^a UNIVERSITY OF MARYLAND SCHOOL OF LAW   (United States)

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EID: 33947681687     PISSN: 00383910     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (415)

1. See generally MARTIN REES, OUR FINAL HOUR: A SCIENTIST'S WARNING: HOW TERROR, ERROR, AND ENVIRONMENTAL DISASTER THREATEN HUMANKIND'S FUTURE IN THIS CENTURY - ON EARTH AND BEYOND (2003) (discussing threats arising in the wake of recent developments in bio-, cyber-, and nanotechnology);
2. Bill Joy, Why the Future Doesn't Need Us, WIRED, Apr. 2000, available at http://www.wired.com/wired/archive/8.04/joy_pr.html.
3. See U.S. FEDERAL TRADE COMM'N, INFORMATION COMPROMISE AND THE RISK OF IDENTITY THEFT: GUIDANCE FOR YOUR BUSINESS (June 2004), available at http://www.ftc.gov/bcp/edu/ pubs/business/idtheft/bus59.pdf [hereinafter FTC, INFORMATION COMPROMISE];
4. John Leland & Tom Zeller, Jr., Technology and Easy Credit Give Identity Thieves an Edge, N.Y. TIMES, May 30, 2006, at A1;
5. Senator Clinton Speaks on Privacy Rights to American Constitution Society, U.S. FED. NEWS, June 16, 2006, available at 2006 WLNR 10544222.
6. See LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 350, 364-65 (3d ed. 2005);
7. Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 467 (1897) (highlighting a shift in the late nineteenth century from wrongs, such as assault and battery, to those involving the "incidents" of industry).
8. Rylands v. Fletcher, (1868) 3 L.R.E. & I. App. 330 (H.L.).
9. See infra Part V.B.
10. See Leland & Zeller, supra note 2.
11. Andrew J. McClurg, A Thousand Words Are Worth a Picture: A Privacy Tort Response to Consumer Data Profiling, 98 NW. U. L. REV. 63, 65 (2003).
12. See also DANIEL J. SOLOVE, THE DIGITAL PERSON: TECHNOLOGY AND PRIVACY IN THE INFORMATION AGE 16-26 (2004) (discussing the history of private sector databases).
13. See FRIEDMAN, supra note 3, at 350-68.
14. See Phillip Britt, Survey: Government Struggles with Data Breaches, INFO. TODAY, Jan. 1, 2006, at 48 ("Like thieves [who] rob banks because 'that's where the money is,' computer attackers target databases because that's where the data is.");
15. Privacy Rights Clearinghouse, A Chronology of Data Breaches Since the ChoicePoint Incident, http://www.privacyrights.org/ar/ChronDataBreaches.htm (last visited Aug. 1, 2006) [hereinafter Privacy Rights, Chronology].
16. See FTC, INFORMATION COMPROMISE, supra note 2;
17. Peter P. Swire, Efficient Confidentiality for Privacy, Security, and Confidential Business Information, 2003 BROOKINGS-WHARTON PAPERS ON FIN. SERVS. 273, 290, available at http://muse.jhu.edu/journals/brookings-wharton_papers_on_financial_services/ v2003/2003.1swire.html; Leland & Zeller, supra note 2;
18. David Stout, Veterans Agency to Atone with Free Credit Monitoring, N.Y. TIMES, June 22, 2006, at A17.
19. See ELTING E. MORISON, MEN, MACHINES, AND MODERN TIMES 54 (1966) (explaining that certain government employees spent their "whole lives" assembling the medical and salary records of U.S. soldiers in paper-filing systems during the early part of the twentieth century); SOLOVE, supra note 7, at 14.
20. ROBERT O'HARROW, JR., NO PLACE TO HIDE 4-5 (2005).
21. Nathan Myhrvold, Moore's Law Corollary: Pixel Power, N.Y. TIMES, June 7, 2006, at G3.
22. Laurie J. Flynn, Researchers Say New Chip Breaks Speed Record, N.Y. TIMES, June 20, 2006, at C7.
23. See id.; Press Release, IBM, IBM and Georgia Tech Break Silicon Speed Record (June 20, 2006), http://www-03.ibm.com/press/us/en/pressrelease/ 19843.wss (explaining that the recent breakthrough will "redefine[] the performance limits of silicon-based semiconductors" and that IBM will be working closely with academic and industry partners to deliver a new generation of high-performance, energy-efficient microprocessing).
24. Daniel B. Prieto, Data Mine, NEW REPUBLIC, Dec. 19, 2005, at 17.
25. See also John Markoff & Saul Hansell, Hiding in Plain Sight, Google Seeks an Expansion of Power, N.Y. TIMES, June 14, 2006, at A1 (describing Google as a leader in the effort to build a network of supercomputers that can process more data and searches at speeds constrained only by the speed of light).
26. See J. Nicholas Hoover, High-Stakes Data Mining, INFO.WEEK, May 22, 2006, at 21, 23.
27. Jon William Toigo, Data - The Squeeze Is on - Today's Digital Data Explosion Is the Stuff of Legend, NETWORK COMPUTING, Nov. 24, 2005, at S3.
28. See also JEFFREY W. SEIFERT, CONGRESSIONAL RESEARCH SERVICE REPORT FOR CONGRESS, REPORT No. RL31798, DATA MINING AND HOMELAND SECURITY: AN OVERVIEW 2 (Jan. 27, 2006), available at http://www.fas.org/sgp/crs/intel/RL31798. pdf (noting that the decreased cost of data storage has contributed to the nation's increasing interest in data mining).
29. O'HARROW, supra note 12, at 145. See also Joseph Menn, ChoicePoint Is Fined for Data Breach, L.A. TIMES, Jan. 27, 2006, at C1 (noting that ChoicePoint stores 19 billion records).
30. John Markoff, Gates's Lieutenants Look Ahead, Hoping to Avoid Other Companies' Mistakes, N.Y. TIMES, June 17, 2006, at C1.
31. U.S. GOV'T ACCOUNTABILITY OFFICE, SOC. SEC. NUMBERS: MORE COULD BE DONE TO PROTECT SSNS, GAO REP. NO. GAO-06-586T, TESTIMONY BEFORE THE SUBCOMM. ON SOC. SEC., COMM. ON WAYS AND MEANS, H.R. 3 (Mar. 30, 2006) (statement of Cynthia M. Fagnoni, Managing Director of Education, Workforce, and Income Security Issues), available at http://www.gao.gov/new.items/d06586t.pdf [hereinafter GAO, MORE COULD BE DONE].
32. This Article focuses on the collection of sensitive personal information by the large section of the private sector that is likely to remain unregulated by federal law. See infra text accompanying notes 98-108.
33. BRUCE SCHNEIER, BEYOND FEAR: THINKING SENSIBLY ABOUT SECURITY IN AN UNCERTAIN WORLD 114 (2003); SOLOVE, supra note 7, at 116. Federal law requires the collection of SSNs for the administration of the federal personal income tax, Medicaid, Child Support Enforcement programs, and to ensure compliance with the USA Patriot Act. U.S. GOV'T ACCOUNTABILITY OFFICE, SOC. SEC. NUMBERS: FEDERAL AND STATE LAWS RESTRICT USE OF SSNS, YET GAPS REMAIN, GAO REP. NO. GAO-05-1016T, at 6, 9-10 & n.14, 11, 20-21 (Sept. 15, 2005) (statement of Barbara D. Bovbjerg, Director of Education, Workforce, and Income Security Issues), available at http://www.gao.gov/new.items/d051016t.pdf. See also 26 U.S.C. § 6109(a) (2000) (income tax); USA Patriot Act of 2001, 31 U.S.C. § 5318A(b)(3)(B) (Supp. II 2002); 42 U.S.C.A. § 666(a)(13)(B) (West Supp. 2006) (child support); 42 U.S.C. § 1320b-7(a)(1), (b)(2) (2000) (Medicaid). Although federal law restricts the public disclosure of SSNs by credit reporting agencies, banks, and health care providers, no federal legislation addresses the collection and disclosure of SSNs by employers, retailers, and information resellers.
34. See Privacy Rights Clearinghouse, My Social Security Number: How Secure Is It? (Jan. 2006), http://www.privacyrights.org/fs/fs10-ssn.htm; infra text accompanying notes 73-76.
35. FTC, INFORMATION COMPROMISE, supra note 2.
36. See Hearing Before the H. Energy Commerce Reps. and Subcomm. on Commerce, Trade and Consumer Protection, 109th Cong. (2006) (statement of H.R. Lively, President and CEO for the American Financial Services Association), available at http://energycommerce.house.gov/108/Hearings/ 05112006hearing1871/Lively.pdf [hereinafter Lively Testimony].
37. Lively Testimony, supra note 25 (explaining that SSNs are used to track employees in high-security positions); FREDERICK S. LANE III, THE NAKED EMPLOYEE: HOW TECHNOLOGY IS COMPROMISING WORKPLACE PRIVACY 28 (2003); Employees Sue over Data Theft, N.Y. TIMES, July 5, 2006, at C2 (describing a class-action lawsuit filed by employees of the Union Pacific Corporation for the company's use of SSNs to identify its employees).
38. Greg Sandoval, University Server in Hackers' Hands for a Year, ZDNET NEWS, May 21, 2006, http://news.zdnet.com/2100-1009_22- 6074739.html; Privacy Rights Clearinghouse, supra note 23. Although publicly funded schools governed by the Privacy Act of 1974 must tell students how their SSNs will be used, private institutes face few restrictions in their use of student and alumni SSNs. Privacy Rights Clearinghouse, supra note 23.
39. Thomas J. Smedinghoff, The New Law of Information Security: What Companies Need to Do Now, COMPUTER & INTERNET LAW., Nov. 2005, at 9, 16.
40. See also GAO, MORE COULD BE DONE, supra note 21, at 3-4 (explaining that 90% of businesses outsource the storage of personal data, such as SSNs, to third-party contractors).
41. See SOLOVE, supra note 7, at 19; Jonathan Krim, Net Aids Access to Sensitive ID Data, WASH. POST, Apr. 4, 2005, at A1 (describing numerous companies that sell SSNs for as low as thirty-five dollars on websites such as www.secret-info.com). One such firm, "SixChannels," explains that it continuously gathers the personal data of consumers from a variety of sources, including title companies, credit bureaus, tax liens, and judgments. SixChannels, Next Generation Multichannel Marketing Solutions, Frequently Asked Questions, http://www.sixchannels.net/faq. asp (last visited Aug. 1, 2006).
42. See SOLOVE, supra note 7, at 81, 84 (explaining that "[i]nformation collection is duplicitous, clandestine, and often coerced"); Stephanie Kirchgaessner & Bob Sherwood, Companies Selling Personal Information Have Been Allowed to Operate Relatively Free of Regulation, FIN. TIMES (U.K.), May 20, 2005, at 17 (discussing how data brokers acquire individuals' names and addresses from credit agencies and supplement that information with data culled from public records); McClurg, supra note 7, at 65;
43. Leigh Webb, Personal Information - Asset or Risk?, IDENTITY THEFT 911 NEWSLETTER, Apr. 2006, at 1, available at http://www.identitytheft911-sunj.com/content.do?sp=323 (explaining that because of the increase in instances of personal data collection, often without the consumer's consent, more and more people are falling victim to identity theft).
44. E.g., Kirchgaessner & Sherwood, supra note 30, at 17 (noting that LexisNexis permits consumers to opt out of its database only in limited circumstances, despite the industry's previous commitment to permit such opt outs whenever a consumer requested them); Your Privacy for Sale, CONSUMER REP., Oct. 2006, available at http://www.consumerreports.org/cro/personal-finance/data-privacy-10-06/ a-steady-customer/1006_privacy_ov6_1.htm [hereinafter Your Privacy] (noting that the Pentagon refuses requests to opt out of its vast database).
45. See also O'HARROW, supra note 12, at 138 (explaining that information broker ChoicePoint apparently does not allow individuals to opt out of its databases). When Consumer Reports investigators asked data brokers to permit them access to their own personal information, the data brokers informed them that they could not see everything that was routinely sold to businesses. Your Privacy, supra.
46. See Gang Wei & Dongge Li, Biometrics: Applications, Challenges and the Future, in PRIVACY AND TECHNOLOGIES OF IDENTITY: A CROSS-DISCIPLINARY CONVERSATION 135, 136 (Katherine J. Strandburg & Daniela Stan Raicu eds., 2006);
47. Alex Halperin, Biometrics: Payments at Your Fingerprints, BUS. WK. ONLINE, Mar. 28, 2006, http://www. businessweek.com/technology/content/mar2006/tc20060328_901806.htm?campaign_id= search.
48. Halperin, supra note 32.
49. See Ishwar K. Sethi, Biometrics: Overview and Application, in PRIVACY AND TECHNOLOGIES OF IDENTITY: A CROSS-DISCIPLINARY CONVERSATION, supra note 32, at 117, 120-22. In certain biometric systems, individuals do not provide their biometric information for storage in a database but instead carry cards, known as Smart Cards, with their biometric data stored inside. Id. at 121. Such systems match biometric data contained in a card to the individual's characteristic, such as a fingerprint or iris. Id.
50. See also Kevin Coughlin, Security in the Blink of an Eye, STAR-LEDGER, Jan. 4, 2006, at 43 (describing the use of Smart Cards at airports).
51. Wei & Li, supra note 32, at 137 (explaining that biometric systems either identify an individual by matching the person's sample to the many samples in the database or verify an individual's identity by matching the sample to the template or image in the database with that name).
52. See JOHN D. WOODWARD, JR., NICHOLAS M. ORLANS & PETER T. HIGGINS, BIOMETRICS 329-52 (2003);
53. Roger Allan, Biometrics Wields a Double-Edged Sword, ELECTRONIC DESIGN, June 30, 2005, at 77, available at http://www.elecdesign.com/Articles/ArticleID/10605/10605.html (describing massive databases of biometric data maintained by banking, security, and medical organizations). Technology sold by Identix Incorporated currently allows businesses to store up to twenty million fingerprints in a single computer database.
54. See IDENTIX, ABIS® SYSTEM FREQUENTLY ASKED QUESTIONS - VERSION 4.1, para. 12 (2005), available at http://www.identix.com/support/downloads/ ABIS%204-1%20FAQs%20Draft2_Customer%20Version_Final.pdf. Comnetix Inc. stores biometric image scans indefinitely and, for government users, can submit scans to the national fingerprint database for quick checks against criminal records.
55. John Breeden II, Biometrics Look Ready for Prime Time, GOV'T COMPUTER NEWS, Feb. 6, 2006, at 36, available at 2006 WLNR 2849844.
56. Halperin, supra note 32. One hundred seventy-six Bi-Lo grocery stores in Georgia, North Carolina, South Carolina, and Tennessee use fingerprint systems to allow customers to cash paychecks. O'HARROW, supra note 12, at 174-75.
57. Halperin, supra note 32; Greg Toppo, Eye Scans: A High-Tech Hall Pass?, USA TODAY, Feb. 23, 2006, at 12B (discussing the recent implementation of iris-scan technology as a security measure at a New Jersey elementary school).
58. Coughlin, supra note 34; Elizabeth Fernandez, Fast-track Security Check OK'd for Airports, S.F. CHRON., Apr. 21, 2006, at B3 (discussing the Transportation Security Administration's recent approval of a plan to use fingerprint and iris scans to screen preregistered passengers at airport security checkpoints at twenty airports).
59. Michael Sisk, Biometric Systems Replace the Lost Card Key, CRAIN'S N.Y. BUS., May 1, 2006, at 17.
60. Joan Engebretson, How Security Dealers Really Feel About Biometrics, SEC. DISTRIBUTING & MARKETING., Mar. 13, 2006, available at http://www.sdmmag.com/copyright/ faf86047124f9010VgnVCM100000f932a8c0_?. One in four companies surveyed by Deloitte in 2006 plans to employ biometric security measures over the next eighteen months to authenticate employees.
61. DELOITTE, 2006 GLOBAL SECURITY STUDY 9 (2006), available at http://www.deloitte.com/dtt/cda/doc/content/ dtt_lssecuritystudy_053006.pdf.
62. David Wyld, Biometrics at the Disney Gates, SECUREID NEWS, Mar. 2, 2006, http://www.secureidnews.com/library/2006/03/02/ biometrics-at-the-disney-gates/.
63. Brian J. Rogal, Biometrics: Getting in Touch with a Growing Trend, CREDIT CARD MGMT., Feb. 1, 2006, at 26. Credit unions have "started deploying electronic fingerprint systems at kiosks to allow members to do business remotely." O'HARROW, supra note 12, at 176.
64. See Jonathan Curiel, The Last Days of Privacy, S.F. CHRON., June 25, 2006, at E1 (discussing the present consideration by the banking industry of widespread implementation of biometric technology in ATMs in the United States).
65. O'HARROW, supra note 12, at 171; C. Maxine Most, Biometrics and Financial Services - Show Me the Money!, DIGITAL ID WORLD, Jan./Feb. 2004, at 20, available at http://magazine.digitalidworld.com/Jan04/Page20.pdf.
66. See Dan Frommer, The Tell-Tale Heart, FORBES.COM, Feb. 16, 2006, http://www.forbes.com/technology/2006/02/16/ibm-aladdin- biometric-cx_df_0216biometric.html (predicting that the annual sales of biometric security devices will grow from its present level of $2.2 billion to $6 billion by 2010).
67. See also William Abernathy & Lee Tien, Biometrics: Who's Watching You?, http://www.eff.org/Privacy/Surveillance/biometrics/ (last visited Aug. 2, 2006) (stating that an effective biometric system "must compare captured biometric data to a biometric database").
68. See Jarrett Banks, Identity Theft Suits Gain Popularity with Plaintiffs, CORP. LEGAL TIMES, July 2005, at 32.
69. Michael E. Whitman, Enemy at the Gate: Threats to Information Security, COMM. OF THE ACM, Aug. 2003, at 91, 92-93 (explaining different means by which the Internet opens organizations using it to attack of their computer networks).
70. See also Siobhan Gorman, Hacker Attacks Hitting Pentagon, BALTIMORE SUN, July 2, 2006, at 1A (describing thousands of successful penetrations of the Pentagon's computer networks and noting the obsolescence of NSA's methods to safeguard data).
71. Dean Foust, ID Theft: More Hype Than Harm, BUS. WK., July 3, 2006, at 34.
72. DELOITTE, PROTECTING THE DIGITAL ASSETS: THE 2006 TECHNOLOGY, MEDIA AND TELECOMMUNICATIONS SECURITY SURVEY 7 (2006), available at http://www.deloitte.com/dtt/cda/doc/content/ dtt_DR_ProtectingDigitalAssets_062106.pdf.
73. See Privacy Rights, Chronology, supra note 9.
74. See also Stefanie Olsen, Man Charged with Hacking USC Database, CNET NEWS.COM, Apr. 20, 2006, http://news.com.com/Man+charged+with+hacking+USC+database/2100-7350_3-6063470. html?tag=nl (describing a hacker's successful penetration of a USC database containing 275,000 applicants' SSNs). "Universities are becoming bigger and bigger targets to the hacker community because they are large institutions" with vast collections of SSNs. Id.
75. See Privacy Rights, Chronology, supra note 9 (describing data-security breaches at Guess.com and DSW Inc., among others).
76. See id.
77. See Stout, supra note 10.
78. See FEDERAL TRADE COMMISSION, IDENTITY THEFT SURVEY REPORT 3, 13 (Sept. 2003), available at http://www.consumer.gov/idtheft/pdf/synovatereport. pdf.
79. See also Christine Dugas, Federal Survey: Identity Theft Hits 1 in 4 U.S. Households, USA TODAY, Sept. 4, 2003, at 10B.
80. See Barbara Kiviat, Who's Got Your Number?, TIME, July 17, 2006, at 68 (explaining that "[t]he quickest way to become a victim of identity theft is to let your [SSN] fall into the wrong hands").
81. See Swire, supra note 10, at 290.
82. O'HARROW, supra note 12, at 79; Swire, supra note 10, at 290.
83. Leland & Zeller, supra note 2; Privacy Rights Clearinghouse, supra note 23.
84. See also Harry A. Valetk, Mastering the Dark Arts of Cyberspace: A Quest for Sound Internet Safety Policies, 2004 STAN. TECH. L. REV. 2, ¶ 15 (2004), available at http://stlr.stanford.edu/STLR/Articles/04_STLR_2/contents_f.htm (noting that identity theft is an "enabling crime" that permits criminals to commit other crimes by assuming the victim's identity). This past year, identity thieves used the SSNs and birth dates of three million people to "open new lines of credit, secure loans, [and] flip property" in the victim's name. See Leland & Zeller, supra note 2.
85. See Valetk, supra note 58, ¶¶ 31-32.
86. See BOB SULLIVAN, YOUR EVIL TWIN: BEHIND THE IDENTITY THEFT EPIDEMIC 42 (2004) (describing examples of victims of criminal identity theft who faced arrest and jail time before clearing their names). A false criminal record is virtually impossible to erase because officials of criminal records databases are reluctant to remove information from such databases. Id.
87. Data Breaches and Identity Theft: Hearing Before the S. Comm. on Commerce, Science, and Transportation, 109th Cong. 4 (2005) (prepared statement of Deborah Platt Majoras, Chairman of the FTC), available at http://commerce.senate.gov/pdf/ftc.pdf [hereinafter Majoras Statement] ("Identity theft causes significant economic and emotional injury."); O'HARROW, supra note 12, at 78;
88. Identity Theft Resolution Center, Rutgers University, Identity Theft Overview: Part III - Emotional Considerations, 2003, available at http://www.identitytheft911-sunj.com/articles/article.ext?sp=27.
89. Prieto, supra note 16.
90. Heather M. Howard, Note, The Negligent Enablement of Imposter Fraud: A Common-sense Common Law Claim, 54 DUKE L.J. 1263, 1268 (2005). Victims also risk losing stolen bank funds in excess of the FDIC's insurance limit as the FDIC only insures up to $100,000 of a bank customer's funds. See Federal Deposit Insurance Co., FDIC: Insuring Your Deposits, http://www.fdic.gov (last visited Aug. 2, 2006).
91. Remsburg v. Docusearch, Inc., 816 A.2d 1001, 1005-06 (N.H. 2003).
92. Id. at 1006-08 (finding an information broker liable for the stalker's criminal actions because the information broker's conduct created "'an especial temptation and opportunity for criminal misconduct'" (quoting Walls v. Oxford Mgmt. Co., 633 A.2d 103, 106 (N.H. 1993))).
93. See also Your Privacy, supra note 31 (citing a lawsuit alleging that a former coworker of Stanford Douglas obtained his home address from a data broker and later killed him).
94. See Bruce Barton et al., The Emerging Cyber Risks of Biometrics, RISK MGMT. MAG., Oct. 2005, at 26, 28, available at http://www.rmmag.corn/ShowArticle.cfm?AID=2896; Frommer, supra note 45 (explaining that "any biometric database runs the risk of being hacked" to steal the information inside). The 2006 Biometrics and Privacy report, issued by the world's largest biometrics consulting group, warns that the storage of biometric information in databases runs a "high" degree of risk of theft to gain unauthorized access to a biometric system. Int'l Biometric Group, Biometric Research Report Series, Biometrics and Privacy, 2006 Research Report Series 3-8 (unpublished report on file with author) [hereinafter Int'l Biometric].
95. Sethi, supra note 34, at 131-32; Wei & Li, supra note 32, at 143. Although many biometric vendors would have the public believe that reverse engineering is not possible, that is simply untrue. Sethi, supra note 34, at 131-32. For example, in 2002, an Australian computer science student reverse engineered a fingerprint system as part of his honors thesis. Id. Moreover, a 2003 study showed that sample images can be regenerated from face recognition templates. ANDY ADLER, SAMPLE IMAGES CAN BE INDEPENDENTLY RESTORED FROM FACE RECOGNITION TEMPLATES (2003), available at http://www.site.uottawa.ca/~adler/publications/2003/adler- 2003-fr-templates.pdf. See also Int'l Biometric, supra note 67, at 35 (discussing regeneration of face recognition templates).
96. See Tom Sanders, Biometrics Struggles to Go Mainstream, COMPUTING UK, Feb. 17, 2006, available at http://www.computing. co.uk/vnunet/news/2150496/biometrics-struggle-mainstream; Sethi, supra note 34, at 131. Prosthetic fingerprint samples can trick nearly all biometric scanners except high-end models employing thermal sensors. See id. at 131-32. These sensors ensure that the sample comes from a live human being. Id. Thermal-sensing machines, however, are not fool-proof as its "liveness" testing system can be breached and shut down. See TechTarget Expert Answer Center, Expert Knowledgebase, Joel Dubin, Penetrating a Biometric Security System, Sept. 21, 2005, http://expertanswercenter. techtarget.com/eac/knowledgebaseAnswer/0,295199,sid63_gci1142719,00.html. The significant cost of thermal-sensor scanners also suggests that such machines will not be employed when biometric systems are implemented on a grand scale. See ELECTRONIC PRIVACY INFO. CTR., COMMENTS OF THE ELECTRONIC PRIVACY INFORMATION CENTER, BEFORE THE DEP'T OF THE TREASURY, IN THE MATTER OF FACT ACT BIOMETRIC STUDY, FILE NO. R41105 (Apr. 1, 2004) (submitted by Chris Jay Hoofnagle, Associate Director & W. Neal Hartzog, IPIOP Clerk), available at http://www.epic.org/privacy/ biometrics/factabiometrics.html.
97. See DELOITTE, supra note 41, at 9.
98. A thief's use of an individual's biometric data to commit identity theft will create enormous problems for victims seeking to prove the theft, as all identity-theft victims face a certain amount of difficulty in proving that fraudulent expenses are not their own. See Lynn M. LoPucki, Human Identification Theory and the Identity Theft Problem, 80 TEX. L. REV. 89, 107 (2001). But the likely assumption that one's fingerprint does not lie compounds that difficulty for an individual who suffers financial theft as a result of the leak of the individual's biometric.
99. See Duncan Graham-Rowe, Privacy and Prejudice: Whose ID Is It Anyway?, NEW SCIENTIST, Sept. 17, 2005, at 20. Moreover, an individual's retina scan provides insight into certain medical conditions, such as high blood pressure and AIDS, placing an individual at risk for discrimination by employers. Sethi, supra note 34, at 125. The image of a fingerprint, if restored from the template, could reveal that an individual suffers from certain genetic disorders.
100. DAVIDE MALTONI ET AL., HANDBOOK OF FINGERPRINT RECOGNITION 46 (2003). The Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112(a) (2000), would prohibit any discrimination on the basis of an employee's medical disability. ADA, however, defines disabilities so narrowly that many serious health conditions are not covered by its protections, perhaps including high blood pressure. See id. § 12102(2) (defining disability as a condition that substantially limits one or more major life activities); Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 519 (1999) (stating that because a terminated employee's life activities suffered no substantial limits when the employee took medication for high blood pressure, the employee was not "disabled" within the meaning of ADA because under ADA, disability is properly assessed in light of any mitigating measures employed).
101. BRUCE SCHNEIER, SECRETS AND LIES: DIGITAL SECURITY IN A NETWORKED WORLD 144 (2000). As biometric technology develops universal biometric templates capable of recognition in any system, a thief will be able to use a victim's biometric data to access any database on which the victim's template resides. See Int'l Biometric, supra note 67, at 1.
102. See Federal Information Security Management Act, 44 U.S.C. § 3544(a)(1)(A) (Supp. III 2003) (requiring security measures to protect information collected and maintained by federal agencies and all information systems used or operated by or for federal agencies). The Privacy Act of 1974, 5 U.S.C. § 552a(d) (2000), also regulates the collection and use of records by federal agencies, giving individuals the right to access and correct information in such records.
103. See Title V of the Gramm-Leach-Bliley Act ("GLBA"), 15 U.S.C. §§ 6801-6809 (2000), which prohibits financial institutions from disclosing a consumer's personal information to an unaffiliated third party without giving the consumer the opportunity to opt out of the disclosure. See also 65 Fed. Reg. 33,646 (May 24, 2000) (promulgated pursuant to the GLBA). GLBA also requires financial institutions to implement "appropriate" physical, technical, and procedural safeguards to protect customer information. 15 U.S.C. § 6801(b). The FTC has set forth standards governing the safeguarding of consumer information stored digitally. See Standards for Safeguarding Customer Information, 16 C.F.R. § 314.1-.5 (2006).
104. See also 67 Fed. Reg. 36,484 (May 23, 2002) (discussing standards for safeguarding information).
105. See The Fair and Accurate Credit Transactions Act of 2003 ("FACT Act"), 15 U.S.C. § 1681g(a)(1)(A) (Supp. III 2003), which includes a number of provisions designed to increase the protection of sensitive consumer information, including SSNs.
106. See Health Insurance Portability & Accountability Act of 1996 ("HIPAA"), 42 U.S.C. § 1320d-2 (2000). See also 45 C.F.R. pt. 164 (2005) (prescribing security and privacy regulations pursuant to HIPAA).
107. E.g., FTC Complaint, In re BJ's Wholesale Club, Inc., Case No. 042 3160 (2005), available at http://www.ftc.gov/os/caselist/0423160/ 0423160.htm.
108. See also News Release, U.S. Federal Trade Comm'n, ChoicePoint Settles Data Security Breach Charges (Jan. 26, 2006), available at http://www.ftc.gov/opa/2006/01/choicepoint.htm [hereinafter FTC ChoicePoint].
109. See, e.g., FTC ChoicePoint, supra note 77 (requiring ChoicePoint to establish a comprehensive information security program designed to protect sensitive personal information it collects about consumers and to audit its security practices every two years).
110. Social Security Numbers in Commerce: Reconciling Beneficial Uses with Threats to Privacy: Hearing Before the Subcomm. on Commerce, Trade, and Consumer Protection of the H. Comm. on Energy and Commerce, 109th Cong. (2006) (statement of Jon Leibowitz, Comm'r of the U.S. Federal Trade Comm'n) [hereinafter Leibowitz Statement].
111. SOLOVE, supra note 7, at 73.
112. See Privacy Rights, Chronology, supra note 9.
113. See News Release, U.S. Federal Trade Comm'n, Real Estate Services Company Settles Privacy and Security Charge (May 10, 2006), available at http://www.ftc.gov/opa/2006/05/nationstitle.htm;
114. News Release, U.S. Federal Trade Comm'n, CardSystems Solutions Settles FTC Charges (Feb. 23, 2006), available at http://www.ftc.gov/opa/2006/02/ cardsystems_r.htm;
115. News Release, U.S. Federal Trade Comm'n, DSW Inc. Settles FTC Charges (Dec. 1, 2005), available at http://www.ftc.gov/opa/2005/12/dsw.htm;
116. News Release, U.S. Federal Trade Comm'n, Mortgage Company Settles Information Security Charges (Sept. 28, 2005), available at http://www.ftc.gov/opa/2005/09/Superior.htm; supra text accompanying notes 77-78 (discussing the FTC's settlement with ChoicePoint and BJ's Wholesale Club). See also Leibowitz Statement, supra note 79, at 15 (explaining that since 2001 the FTC has brought thirteen cases challenging businesses that failed to take reasonable steps to protect sensitive consumer information).
117. CAL. CIV. CODE § 1798.81.5(b) (West 2006). See also ARK. CODE ANN. § 4-110-104(b) (Supp. 2005) (requiring reasonable measures to protect sensitive consumer data); R.I. GEN. LAWS § 11-49.2-2(2), (3) (Supp. 2005) (same); NEV. REV. STAT. ANN. § 597.970(1) (LexisNexis Supp. 2004) (requiring businesses to encrypt electronic transmissions that contain consumers' personal information when those transmissions are sent outside the firm).
118. CAL. CIV. CODE § 1798.82 (West Supp. 2006).
119. ARK. CODE ANN. § 4-110-105 (Supp. 2005); CONN. GEN. STAT. ANN. § 36a-701b (West Supp. 2006); DEL. CODE. ANN. tit. 6, § 12B-102 (2005); GA. CODE ANN. § 10-1-912 (Supp. 2006); 815 ILL. COMP. STAT. ANN. 530/10 (West Supp. 2006); IND. CODE ANN. § 4-1-11-5 (LexisNexis Supp. 2005) (applying only to state agencies); LA. REV. STAT. ANN. § 51:3074 (Supp. 2006); ME. REV. STAT. ANN. tit. 10, § 1348 (Supp. 2005); MINN. STAT. ANN. § 325E.61 (West Supp. 2006); MONT. CODE ANN. § 30-14-1704 (2005) (effective Mar. 1, 2006); NEV. REV. STAT. ANN. § 603A.220 (LexisNexis Supp. 2005); N.J. STAT. ANN. § 56:8-163 (West Supp. 2006); N.Y. GEN. BUS. LAW § 899-aa (McKinney Supp. 2006); N.C. GEN. STAT. § 75-65 (2005); N.D. CENT. CODE § 51-30-02 (Supp. 2005); OHIO REV. CODE ANN. §§ 1347.12, 1349.19 (LexisNexis Supp. 2006); 73 PA. CONS. STAT. ANN. § 2303 (West Supp. 2006); R.I. GEN. LAWS § 11-49.2-3 (Supp. 2005); TENN. CODE ANN. § 47-18-2107 (Supp. 2005); TEX. BUS. & COM. CODE ANN. § 48.103 (Vernon Supp. 2006); WASH. REV. CODE ANN. § 19.255.010 (West Supp. 2006).
120. Those states allow consumers to freely freeze their credit reports without any preconditions except Illinois, Kansas, South Dakota, Texas, Vermont, and Washington, which only permit identity-theft victims to freeze their credit reports. CAL. CIV. CODE § 1785.11.2 (West Supp. 2006); COLO. REV. STAT. ANN. § 12-14.3-106.6 (West Supp. 2005); CONN. GEN. STAT. ANN. § 36a-701a (West Supp. 2006); DEL. CODE ANN. tit. 6, § 2203 (2006); 815 ILL. COMP. STAT. ANN. 505/2MM (West Supp. 2006); LA. REV. STAT. ANN. § 9:3571.1M (Supp. 2006); ME. REV. STAT. ANN. tit. 10, § 1313-C (Supp. 2005); NEV. REV. STAT. ANN. § 598C.300 (LexisNexis Supp. 2005); N.J. STAT. ANN. § 56:11-46 (West Supp. 2006); N.C. GEN. STAT. § 75-63 (2005); TEX. BUS. & COM. CODE ANN. § 20.034 (Vernon Supp. 2006); VT. STAT. ANN. tit. 9, § 2480h (Supp. 2005); WASH. REV. CODE ANN. § 19.182.170 (West Supp. 2006); 75 Del. Laws Ch. 328 (2006); 2006 Fla. Laws Ch. 2006-124, 1 (effective July 1, 2006) (to be codified at FLA. STAT. § 501.005); 2006 Haw. Rev. Stat. Ann. Adv. Legis. Serv. 138 (LexisNexis) (effective Jan. 1, 2007); Act of Apr. 19, 2006, 2006 Kan. Sess. Laws Ch. 149 § 12 (effective Jan. 1, 2007); 2006 Ky. Acts Ch. 42, § 3 (to be codified at KY. REV. STAT. ANN. § 367); 2006 Minn. Laws Ch. 233 (effective Aug. 1, 2006); 2006 N.H. Laws Ch. 208 (effective Jan. 1, 2007); Act of June 7, 2006, 2006 N.Y. Laws 63 (effective Nov. 1, 2006); Oklahoma Consumer Report Security Freeze Act, 2006 Okla. Sess. Laws Ch. 283 (effective Jan. 1, 2007) (to be codified at OKLA. STAT. tit. 24, § 149); Consumer Empowerment and Identity Theft Prevention Act of 2006, 2006 R.I. Pub. Laws 568 (effective Jan. 1, 2007) (to be codified at R.I. GEN. LAWS § 6-48-5); Consumer Credit Protection Act, 2006 Utah Laws Ch. 344 (effective Sept. 1, 2008) (to be codified at UTAH CODE ANN. § 13-42-201); 2005 Wis. Sess. Laws 140 (effective Jan. 1, 2007) (to be codified at WIS. STAT. § 100.54(2)); S.B. 180, 81st Leg. (S.D. 2006).
121. ARK. CODE ANN. § 4-86-107 (Supp. 2005) (effective Jan. 1, 2007); MD. CODE ANN., COM. LAW § 14-3402 (LexisNexis 2005); MINN. STAT. ANN. § 325E.59 (West Supp. 2006); MONT. CODE ANN. § 30-14-1722 (2005); N.C. GEN. STAT. § 75-62 (2005); OHIO REV. CODE ANN. § 1349.17 (LexisNexis 2002); VA. CODE ANN. § 59.1-443.2 (Supp. 2005).
122. See S. 1332, 109th Cong. § 2 (2005) (describing databases of personal information as prime targets of hackers, identity thieves, rogue employees, and other criminals, who misuse such data and cause "serious or irreparable harm to an individual's livelihood" and hurt businesses).
123. E.g., Information Protection and Security Act, S. 500, 109th Cong. §§ 2(b), 3(a)(2) (2005) (directing the FTC to promulgate regulations governing the conduct of information brokers and the protection of data held by such brokers without preempting any state law that would provide greater consumer protection); Privacy Act of 2005, S. 116, 109th Cong. § 101 (2005) (rendering it unlawful for commercial entities to sell personal identifying information without the individual's notice and opportunity to restrict disclosure); Social Security On-line Privacy Protection Act, H.R. 82, 109th Cong. § 2 (2005) (preventing interactive computer services from disclosing SSNs or other personally identifiable information without consent). See also Anne Broache, Congress May Slap Restrictions on SSN Use, CNET NEWS.COM, May 12, 2006, http://news.com.com/2100-7348_3- 6071441.html (noting that at least three pieces of pending legislation in the House and Senate would restrict the use and sale of SSNs).
124. S. 768, 109th Cong. § 3 (2005).
125. Id. §§ 3, 5 (ordering the FTC to promulgate regulations governing the sale, maintenance, collection, or transfer of sensitive personal information, including a requirement that all commercial entities take reasonable steps to prevent unauthorized access to sensitive personal information they collect, sell, or transfer). Legislation proposed by Senators Specter, Leahy, and Feingold similarly would require all businesses storing personally identifiable data of over 10,000 individuals to implement a comprehensive data privacy security program. S. 1332, 109th Cong. §§ 401(b), 402 (2005).
126. S. 768, § 3.
127. See SOLOVE, supra note 7, at 104-05; Daniel J. Solove & Chris Jay Hoofnagle, A Model Regime of Privacy Protection, 2006 U. ILL. L. REV. 357, 368-79.
128. See generally Joel R. Reidenberg, Setting Standards for Fair Information Practice in the U.S. Private Sector, 80 IOWA L. REV. 497 (1995). The Schumer proposal brings together many of the state-level innovations discussed in notes 83-87, supra.
129. Standards for Safeguarding Customer Information, 16 C.F.R. pt. 314 (2006).
130. Leibowitz Statement, supra note 79, at 10 n.25.
131. 16 C.F.R. § 314.3.
132. See U.S. FEDERAL TRADE COMM'N, FINAL REPORT OF THE FTC ADVISORY COMMITTEE ON ONLINE ACCESS AND SECURITY § 3.5 (May 15, 2000), available at http://www.ftc.gov/acoas/papers/finalreport.htm; Smedinghoff, supra note 28, at 9, 13 (explaining that the FTC and technologists alike agree that information security is a process, not a product, and thus it does not, and cannot, literally dictate what security measures are required);
133. News Release, U.S. Federal Trade Comm'n, FTC Testifies on Security Issues in Global Information-based Economy (Mar. 16, 2006), available at http://www.ftc.gov/opa/2006/03/globalitsecurity.htm.
134. Identity Theft Resolution Center, Rutgers University, House Commerce Passes 'Partisan' Bill, but Bachus Seeks Consensus, Nov. 2005, available at http://www.identitytheft911-sunj.com/articles/article.ext?sp=74 (discussing H.R. 3997, 109th Cong. (2005)). That bill received support by the information brokerage industry, which argued that consumers would not want to be bombarded with notices every time a breach occurred. Id.
135. See David Lazarus, Data Theft Bill a Step Backward, S.F. CHRON., Nov. 6, 2005, at J1 (discussing H.R. 4127, 109th Cong. (2005)).
136. William M. Landes & Richard A. Posner, The Independent Judiciary in an Interest-group Perspective, 18 J.L. & ECON. 875, 877 (1975).
137. See also Maxwell L. Stearns, The Public Choice Case Against the Item Veto, 49 WASH. & LEE L. REV. 385, 400 (1992).
138. Stearns, supra note 100, at 400. See also ROBERT D. COOTER, THE STRATEGIC CONSTITUTION 67 (2000) (explaining that politicians in a democracy are concerned with the number of votes lobbyists can deliver).
139. MANCUR OLSON, JR., THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS 64 (1965);
140. Herbert Hovenkamp, Legislation, Well-being, and Public Choice, 57 U. CHI. L. REV. 63, 87 (1990); Stearns, supra note 100, at 401.
141. Cynthia R. Farina & Jeffrey J. Rachlinski, Foreword: Post-Public Choice?, 87 CORNELL L. REV. 267, 268 (2002);
142. Saul Levmore, From Cynicism to Positive Theory in Public Choice, 87 CORNELL L. REV. 375 , 375 (2002).
143. See Hearing Before the Subcomm. on Commerce, Trade and Consumer Protection of the H. Comm. on Energy and Commerce, 109th Cong. 2, 11-13 (2006) (prepared statement of Oliver Ireland on behalf of the Financial Services Coordinating Council), available at http://energycommerce.house.gov/108/ Hearings/05112006hearing1871/Ireland.pdf [hereinafter Ireland Statement]; Lively Testimony, supra note 25;
144. Social Security Numbers in Commerce: Reconciling Beneficial Uses with Threats to Privacy: Hearing Before the Subcomm. on Commerce, Trade, and Consumer Protection of the H. Comm. on Energy and Commerce, 109th Cong. 5 (2006) (prepared statement of Susan McDonald, President of Pension Benefit Information), available at http://energycommerce.house.gov/108/Hearings/ 05112006hearing1871/McDonald.pdf;
145. Social Security Numbers in Commerce: Reconciling Beneficial Uses with Threats to Privacy: Hearing Before the Subcomm. on Commerce, Trade, and Consumer Protection of the H. Comm. on Energy and Commerce, 109th Cong. (2006) (prepared statement of Lauren B. Steinfeld, Chief Privacy Officer of the University of Pennsylvania), available at http://energycommerce.house. gov/108/Hearings/05112006hearing1871/Steinfeld.pdf. Cf. Leland & Zeller, supra note 2 (describing strong business opposition to proposed state laws permitting consumers to freeze their credit reports that led to the defeat of proposed legislation in many states).
146. E.g., Ireland Statement, supra note 104, at 11.
147. Prieto, supra note 16, at 18. Indeed, the Republican National Committee maintains a Voter Vault database, which allows party activists to track and solicit voters. Peter Wallsten & Tom Hamburger, The GOP Knows You Don't Like Anchovies, L.A. TIMES, June 25, 2006, at M1.
148. Prieto, supra note 16, at 18.
149. Members of Congress could exempt themselves from any restrictions on the use of voters' cyber-data. That possibility would not diminish the impact that strong interest-group opposition to a comprehensive legislative solution like the Schumer proposal would have on Members' of Congress reluctance to pass such legislation given their self-interest in reelection.
150. E.g., Vincent R. Johnson, Cybersecurity, Identity Theft, and the Limits of Tort Liability, 57 S.C. L. REV. 255, 311 (2005) (suggesting a negligence solution for the release of SSNs);
151. Michael L. Rustad & Thomas H. Koenig, The Tort of Negligent Enablement of Cybercrime, 20 BERKELEY TECH. L.J. 1553, 1557 (2005) (proposing a cause of action against software manufacturers whose software enables cyber-criminals to access information databases).
152. See, e.g., First Amended Complaint for Declaratory and Injunctive Relief at 2, Parke v. Cardsystems Solutions, Inc., No. CGC-05-442624 (Sup. Ct. Cal. July 5, 2005) (alleging that the defendant failed to adequately secure sensitive personal data of over 40 million California residents, thus allowing hackers to steal plaintiffs' SSNs) (currently pending). See also supra note 85 and accompanying text (discussing states that require private entities to employ reasonable security measures over sensitive personal data).
153. Kline v. 1500 Mass. Ave. Apartment Corp., 439 F.2d 477, 480-81 (D.C. Cir. 1970).
154. Id. at 480.
155. Id. at 481, 483-84.
156. Bell v. Mich. Council 25 of the Am. Fed'n of State, County, & Mun. Employees, Local 1023, No. 246684, 2005 WL 356306, at *1 (Mich. Ct. App. Feb. 15, 2005).
157. Id. at *1.
158. Id. at *3-4. See also Johnson, supra note 109, at 273-34 (arguing for the extension of the Kline rule to database operators based on the fiduciary relationship between the operator and the operator's customers). But see Thomas J. Smedinghoff, The Developing U.S. Legal Standard for Cybersecurity, 4 SEDONA CONF. J. 109, 115 (2003) (suggesting that foreseeability is the cornerstone of liability for database breaches).
159. If Congress adopts a comprehensive bill like the Schumer proposal and the FTC follows its current practices, tort regulation would complement the FTC's performance-based standards, which tell entities what they must accomplish but leave them to decide what technology to use to satisfy the regulation at least cost. See Susan Rose-Ackerman, Tort Law in the Regulatory State, in TORT LAW AND THE PUBLIC INTEREST: COMPETITION, INNOVATION, AND CONSUMER WELFARE 80, 91, 95-96 (Peter H. Schuck ed., 1991). This analysis presumes that state law would not be preempted by federal legislation. The Schumer bill and other similar comprehensive proposals signal Congress's intent not to preempt state laws, a view which is consistent with Congress's vow to leave states free to act on data-security issues in FACTA and GLBA. See Identity Theft Resolution Center, supra note 98.
160. E.g., Richard A. Posner, A Theory of Negligence, 1 J. LEG. STUD. 29, 32-34 (1972).
161. E.g., 3 FOWLER V. HARPER, FLEMING JAMES, JR. & OSCAR S. GRAY, THE LAW OF TORTS 131-32 (2d ed. 1986).
162. The question of whether a fault-based system or a strict-liability standard is most economically efficient has been long and carefully debated by prominent scholars and jurists. See, e.g., GUIDO CALABRESI, THE COSTS OF ACCIDENTS: A LEGAL AND ECONOMIC ANALYSIS 263, 312 (1970);
163. RICHARD EPSTEIN, TORTS 91-107 (1999);
164. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 177-92 (6th ed. 2003);
165. Izhak Englard, The System Builders: A Critical Appraisal of Modern American Tort Theory, 9 J. LEG. STUD. 27, 51-56 (1980) (comparing the theories of Calabresi and Posner). Although this Article does not endeavor to tackle that abstract question, that debate may be given greater meaning in light of this concrete policy application of efficiency considerations to today's insecure database problem.
166. United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947) (ruling that "if the probability be called P; the injury, L; and the burden, B, liability [in a negligence regime] depends upon whether B is less than L multiplied by P: i.e., whether B < PL."). For a contemporary invocation of the Hand Formula, see Cross v. Berg Lumber Co., 7 P.3d 922, 936 n.3 (Wyo. 2000). Some reject an economic view of optimal deterrence, instead asking whether the social benefits gained by reducing the risk of injury outweigh the social costs incurred to reduce the risk. KENNETH S. ABRAHAM, THE FORMS AND FUNCTIONS OF TORT LAW 15-16 (2d ed. 2002).
167. See ABRAHAM, supra note 121, at 16; STEVEN SHAVELL, ECONOMIC ANALYSIS OF LAW 46-47, 59 (2004) (explaining that when a due-care level is chosen by courts to equal the socially optimal level of care, the injurers will be led to exercise due care);
168. Kenneth S. Abraham, The Trouble with Negligence, 54 VAND. L. REV. 1187, 1222 (2001).
169. See Richard Craswell & John E. Calfee, Deterrence and Uncertain Legal Standards, 2 J.L. ECON. & ORG. 279, 279-80 (1986).
170. Guiseppe Dari-Mattiacci, Errors and the Functioning of Tort Liability, 13 SUP. CT. ECON. REV. 165, 169, 186 (2005) (explaining how uncertainty in liability rules and damages often yield higher levels of precaution);
171. Jason Scott Johnston, Uncertainty, Chaos, and the Torts Process: An Economic Analysis of Legal Form, 76 CORNELL L. REV. 341, 359 (1991).
172. See Craswell & Calfee, supra note 123, at 299; Mark F. Grady, A New Positive Economic Theory of Negligence, 92 YALE L.J. 799, 809-12 (1983).
173. See SYMANTEC, COMPREHENSIVE THREAT MANAGEMENT: A SYMANTEC SOLUTION FOR MODERN-DAY ATTACK PROTECTION 4-5 (2006), http://wp.bitpipe.com/resource/org_939987896_418/10510712_CTM_wp_edp.pdf? site_cd=fbs (explaining that hacker motivation to make money, coupled with a lower bar for developing malicious software, has steadily increased the number of threats to computer security);
174. THE WHITE HOUSE, THE NATIONAL STRATEGY TO SECURE CYBERSPACE 8 (Feb. 2003), available at http://www.whitehouse.gov/pcipb/ cyberspace_strategy.pdf [hereinafter NATIONAL STRATEGY]; Smedinghoff, supra note 28, at 17. Due to the plethora of tools used by hackers, there has been a "precipitous drop in the time that it takes for a new threat to be developed." SYMANTEC, supra, at 5.
175. See also DAVID SANCHO, ROOTKITS: THE NEW WAVE OF INVISIBLE MALWARE IS HERE (2005), http://www.trendmicro.com/NR/rdonlyres/ 388874B6-C27C-4354-9078-42771EABEBB1/18503/rootkitwp.pdf (explaining the emergence of rootkits technology used by malware developers to infiltrate computers that is difficult to detect with antiviral software);
176. Joris Evers, Office Hit by Another Security Problem, CNET NEWS.COM, June 22, 2006, http://news.zdnet.com/ Office+hit+by+another+security+problem/2100-1009_22-6087161.html (explaining a weakness in software that allows cyber-attackers to access sensitive information).
177. See NATIONAL STRATEGY, supra note 126, at 5, 8-9; Smedinghoff, supra note 28, at 17 (explaining that information security is a "moving target").
178. Uncertainty in the negligence standard also compounds the challenges faced by jurors assessing the care taken by a defendant in its information-security practices. While lay juries ordinarily have difficulty assessing negligence in complicated technical cases, juries may have an especially challenging time assessing a database operator's care over its security system given the rapid changes in technologies and new risks, which will cause experts to present diverging, yet convincing, views. See STEPHEN BREYER, ECONOMIC REASONING AND JUDICIAL REVIEW, AEI-BROOKINGS JOINT CENTER 2003 DISTINGUISHED LECTURE 12 (Dec. 4, 2003) (2004) (noting the difficulty courts have in assessing the "outer bounds of what is reasonable in technical subject matter areas" such as those involving computers where the parties offer warring expert testimony). Although judges serve as gatekeepers over the admissibility of technical expert testimony under Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999), jurors will still wrestle with the clashing views of computer security experts whose testimony is deemed admissible.
179. See LAWRENCE A. GORDON ET AL., COMPUTER SECURITY INSTITUTE, 2005 CSI/FBI COMPUTER CRIME AND SECURITY SURVEY 11 (2005), available at http://i.cmpnet.com/gocsi/db_area/pdfs/fbi/FBI2005.pdf (explaining that "[t]echnical computer security measures such as use of passwords, biometrics, anti-virus software and intrusion detection systems cannot totally reduce an organization's risk of computer security breaches and the associated financial losses");
180. PHOENIX TRUSTCONNECTOR, THE TRUSTED-CONNECTION LANDSCAPE 1 (Sept. 1, 2005), http://research.telephonyonline.com/detail/RES/1126533537_228.html&src= TRM_TOPN (explaining that despite firewalls, intrusion detection systems, and user authentication tools, information systems are being successfully penetrated due to rapid growth of malicious software and innovative hackers);
181. John Dobberstein, Crime Online: State Businesses, Law Enforcement Officials and Other Groups Are Trying to Stop Hackers and Cyber Terrorists, TULSA WORLD, July 23, 2006, at E1 (citing survey results establishing that passwords, biometrics, anti-virus software, and intrusion detection systems "cannot totally reduce an organization's risk of computer security breaches"); Smedinghoff, supra note 28, at 19 (noting that "[a]t some level, security breaches may be inevitable").
182. See SHAVELL, supra note 122, at 46.
183. Today's hazardous cyber-reservoirs would fall outside the current Restatement's description of abnormally dangerous activities. See, e.g., RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM § 20 (Proposed Final Draft No. 1, Apr. 6, 2005) (abnormally dangerous activities must involve "a . . . risk of physical harm" (emphasis added)); Rosenblatt v. Exxon Co., U.S.A., 642 A.2d 180, 188 (Md. 1994) (declining to extend the doctrine of strict liability to embrace economic harm). Nonetheless, information reservoirs share the defining characteristics of the Restatement's abnormally dangerous activities such as blasting and water reservoirs - high utility and high risk. In Kenneth Abraham's view, abnormally dangerous activities are governed by strict liability so as to protect victims who "are unlikely to know much about" the activity and cannot protect themselves against its risks. ABRAHAM, supra note 121, at 169. This rationale applies to information reservoirs as individuals whose data is collected by data brokers know little about where their data resides and can do nothing to prevent database operators from amassing their sensitive data. Although hazardous information reservoirs do not fall within the Restatement prescription of an abnormally dangerous activity, a strong argument exists for extending that definition of abnormally dangerous activities to include bursting cyber-reservoirs. In revisiting the Restatement view of abnormally dangerous activities, the American Law Institute ought to consider compensable harm in the twenty-first century to include injuries to our market identity caused by the release of sensitive personal data. See infra Part IV.D. (discussing the need for a change in our conception of harm in the Information Age).
184. Ind. Harbor Belt R.R. v. Am. Cyanamid Co., 916 F.2d 1174, 1177 (7th Cir. 1990) (Posner, J.); POSNER, supra note 120, at 180 (citing A.W.B. Simpson, Legal Liability for Bursting Reservoirs: The Historical Context of Rylands v. Fletcher, 13 J. LEGAL STUD. 209 (1984)).
185. POSNER, supra note 120, at 180.
186. Id.
187. See supra Part IV.A-B (discussing cyber-security).
188. See Smedinghoff, supra note 28, at 19.
189. For example, employers storing employee SSNs for tax reporting can discontinue using them as a form of employee identification. See Stolen Social Security Number Records Prompt Lawsuit Against Union Pacific, 29 U.S. RAIL NEWS 111 (2006) (describing a complaint asserting that a data-security breach resulted from a company's use of employee SSNs for identification and arguing that the employer should only have used SSNs for tax reporting). Organizations can also disconnect databases containing ultrasensitive information from the Internet to prevent hacking. Additionally, organizations can store biometric information on Smart Cards, which permit individuals to carry their biometrics on a card, instead of in centralized databases subject to theft. See Int'l Biometric, supra note 67, at 22, 24; Sethi, supra note 34, at 120-21.
190. See Jon D. Hanson & Kyle D. Logue, The First-party Insurance Externality: An Economic Justification for Enterprise Liability, 76 CORNELL L. REV. 129, 135, 137-38 (1991).
191. E.g., id.; John E. Calfee & Clifford Winston, Economic Aspects of Liability Rules and Liability Insurance, in LIABILITY: PERSPECTIVES AND POLICY 16, 16 (Robert E. Litan & Clifford Winston eds., 1988).
192. See POSNER, supra note 120, at 181.
193. See infra note 239 (discussing the availability of cyber-risk insurance to database operators that covers third-party losses due to leaks of sensitive data and identity-theft insurance available to individuals). When the demand for a good is inelastic, a seller's ability to pass on the cost of insurance to consumers is strong. Emerging technologies that offer highly valued services in thin markets, meaning that there are few substitutes, including massive computer databases containing sensitive information, are paradigmatic illustrations of markets characterized by inelastic demand. For a discussion of the concept of elasticity, see RICHARD A. IPPOLITO, ECONOMICS FOR LAWYERS 131-39 (2005); PAUL A. SAMUELSON & WILLIAM D. NORDHAUS, ECONOMICS 64-70 (16th ed. 1998).
194. Escola v. Coca Cola Bottling Co. of Fresno, 150 P.2d 436, 441 (Cal. 1944) (Traynor, J., concurring). The maintenance of hazardous information reservoirs parallels the manufacture of defective products in other ways as well. Just as a person injured by a product is "not ordinarily in a position to refute . . . evidence [about a manufacturing process] or identify the cause of the defect," id., here, too, individuals will have great difficulty identifying the flaws in a database operator's security system and proving a database operator's negligence. And like the consumer who lacks the skill to investigate the soundness of a product, individuals have no knowledge about where their data resides, let alone the ability to assess the security provided their personal data. See generally KENNETH S. ABRAHAM, DISTRIBUTING RISK: INSURANCE, LEGAL THEORY, AND PUBLIC POLICY 64-100 (1986) and Kenneth S. Abraham, Liability Insurance and Accident Prevention: The Evolution of an Idea, 64 MD. L. REV. 573 (2005) for insightful discussions of liability insurance.
195. See Abraham, supra note 122, at 1191; Robert E. Keeton, Is There a Place for Negligence in Modern Tort Law?, 53 VA. L. REV. 886, 889-90 (1967) (explaining that adjudications of negligence "place [a] mark of legal disapproval, with all its practical consequences, on identifiable types of conduct [that] may influence the attitudes and future behavior" of others);
196. Benjamin C. Zipursky, Civil Recourse, Not Corrective Justice, 91 GEO. L.J. 695, 743 (2003) (explaining that the norms of tort law are "directive and conduct-oriented: they enjoin persons from treating others in certain ways and from interfering with others' interests in certain ways," serving as "guidance rules").
197. See NATIONAL STRATEGY, supra note 126, at 8; SYMANTEC, supra note 126, at 4-5 (explaining that hacker motivation to make money, coupled with a lower bar for developing malicious software, has steadily increased the number of threats to computer security).
198. See Smedinghoff, supra note 28, at 17.
199. Abraham, supra note 122, at 1203, 1223.
200. Mark Geistfeld, Negligence, Compensation, and the Coherence of Tort Law, 91 GEO. L.J. 585, 618 (2003).
201. O.W. HOLMES, JR., THE COMMON LAW 117 (Boston, Little, Brown, & Co. 1881); Abraham, supra note 122, at 1222 (explaining that "flaws in the negligence standard should make us much more willing to consider proposals for no-fault alternatives to liability for negligence"). Although Holmes is widely regarded as a proponent of negligence and a foe of strict liability, Holmes approved of strict liability for the foreseeable risks of high risk and high social utility activities such as the maintenance of reservoirs.
202. See The Theory of Torts, 7 AM. L. REV. 652, 653, 663 (1873) (wherein Holmes discusses the justifications for strict liability vis-à-vis Rylands v. Fletcher);
203. DAVID ROSENBERG, THE HIDDEN HOLMES: HIS THEORY OF TORTS IN HISTORY 9 (1995) (noting that many scholars overlooked Holmes's approval of Rylands).
204. The Theory of Torts, supra note 148, at 653, 663.
205. See FRIEDMAN, supra note 3, at 356-66, 519. See also MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 1870-1960: THE CRISIS OF LEGAL ORTHODOXY 142 (1992) (discussing how social and economic necessities influence legal decisions).
206. BENJAMIN M. FRIEDMAN, THE MORAL CONSEQUENCES OF ECONOMIC GROWTH 224 (2005).
207. Id. at 54.
208. See id.
209. See infra notes 208-16. The evolving law of water rights in the nineteenth century similarly illustrates the profound role played by economic concerns in the shaping of law. See MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 1780-1860, at 34-35 (1977). In the early nineteenth century, courts viewed land not as a productive asset but as a private estate to be enjoyed for its own sake, finding any nonconsensual interference with the natural flow of water illegal. Id. at 36. As industrialization began to take root, however, courts eroded the restrictive common law rules to permit extensive, uncompensated use of water for business purposes. Id. at 36-37. As the economy strengthened during the second quarter of the nineteenth century, courts began to strike a balance between competing land uses, only freeing economically desirable but injurious activities from legal liability if they were exercised with due care. Id. at 102.
210. See Rylands v. Fletcher, (1868) 3 L.R.E. & I. App. 330, 338-40 (H.L.); Kenneth S. Abraham, Rylands v. Fletcher: Tort Law's Conscience, in TORTS STORIES 207, 207 (Robert L. Rabin & Stephen D. Sugarman eds., 2003).
211. Fletcher v. Rylands, (1865) 159 Eng. Rep. 737, 739-40 (Exch.).
212. Id.
213. Simpson, supra note 132, at 241-42.
214. Fletcher, 159 Eng. Rep. at 743-47.
215. Fletcher v. Rylands, (1866) 1 L.R. Exch. 265, 279 (Exch.).
216. 3 HARPER ET AL., supra note 119, at 191.
217. Fletcher, 1 L.R. Exch. at 279.
218. Rylands v. Fletcher, (1868) 3 L.R.E. & I. App. 330, 338-40, 342 (H.L.).
219. Id. (quoting Fletcher, 1 L.R. Exch. at 279).
220. See supra text accompanying notes 46-72 (discussing the ultrahazardous nature of computer databases).
221. See infra text accompanying notes 217-24 (discussing Rylands as a powerful metaphor to conceptualize the new cyber-harms of the twenty-first century).
222. See. e.g., Brown v. Collins, 53 N.H. 442, 449-50 (1873) (finding Rylands "contrary to American authority, as well as to [the Court's] understanding of legal principles").
223. See LOUIS MENAND, THE METAPHYSICAL CLUB 339 (2001);
224. Roscoe Pound, The End of Law as Developed in Legal Rules and Doctrines, 27 HARV. L. REV. 195, 204 (1914). "[F]ormalism maintains that because law is internally intelligible, it does not require, nor would it be useful for it to have, the assistance of any external discipline, such as history, economics, social science, or philosophy, as part of its understanding or justification."
225. Ken Kress, Formalism, Corrective Justice and Tort Law, 77 IOWA L. REV. i, i (1992).
226. See 3 HARPER ET AL., supra note 119, at 190; F.H. Newark, The Boundaries of Nuisance, 65 L.Q. REV. 480, 487 (1949).
227. Rylands v. Fletcher, (1868) 3 L.R.E. & I. App. 330, 338 (H.L.).
228. See Fletcher v. Rylands, (1866) 1 L.R. Exch. 265, 279-81 (Exch.); 3 HARPER ET AL., supra note 119, at 191-92.
229. But cf. Ezra R. Thayer, Judicial Legislation: Its Legitimate Function in the Development of the Common Law, 5 HARV. L. REV. 172, 184-85 (1892) (embracing a scientific approach to tort law, a subspecies of formalism, which questions the extent to which Rylands truly follows from established tort law involving fire and escaping cows).
230. See Newark, supra note 169, at 487. At the time of Rylands, the English tradition distinguishing trespass and trespass on the case prevailed, a distinction that is largely extinct in contemporary times. I do not mean to equate the nature of the interest invaded in Rylands - land - with that harmed by the release of cyber-data today. Instead, this Article discusses why Rylands serves as a powerful metaphor for the release of sensitive personal data from the Information Age's cyber-reservoirs.
231. See MENAND, supra note 168, at 339 (grouping legal theories that emphasize social consequences of the law under the rubric "utilitarian"); 1 ROSCOE POUND, JURISPRUDENCE 512-13 (1959); Zipursky, supra note 143, at 696. Utilitarian judges "fashioned rules" to prevent "future harms."
232. See Leon Green, The Duty Problem in Negligence Cases: II, 29 COLUM. L. REV. 255, 255-56 (1929).
233. FREDERICK POLLOCK, THE LAW OF TORTS 307 (Phila., Blackstone Publ'g Co. 1887); Frederick Pollock, Duties of Insuring Safety: The Rule in Rylands v. Fletcher, 2 L.Q. REV. 52 (1886) [hereinafter Pollock, Duties].
234. See John Murphy, The Merits of Rylands v. Fletcher, 24 OXFORD J. LEGAL STUD. 643, 649 (2004) (explaining that three references to alkali works in the Exchequer Chamber's decision in Rylands illustrate that concerns of industrial harms were on the forefront of judges' minds). Deadly reservoir failures occurred just before, and during, the Rylands decisions, raising the public's fear about the collection of water in reservoirs. Simpson, supra note 132, at 244-51 (arguing that well-known dam failures prompted Rylands).
235. See also ROSCOE POUND, INTERPRETATIONS OF LEGAL HISTORY 109 (1923) (explaining that Rylands reflected a social-justice ethic prominent in 1860s England that sought to protect individuals from industrial harm and provided for the public's "general security").
236. See POLLOCK, supra note 174, at 307;
237. Pollock, Duties, supra note 174, at 52.
238. POLLOCK, supra note 174, at 307.
239. Id. at 311.
240. See id.; POUND, supra note 175, at 109.
241. See JOHN FABIAN WITT, THE ACCIDENTAL REPUBLIC: CRIPPLED WORKINGMEN, DESTITUTE WIDOWS, AND THE REMAKING OF AMERICAN LAW 8 (2004).
242. See FRANCIS H. BOHLEN, STUDIES IN THE LAW OF TORTS 351 (1926) [hereinafter BOHLEN, STUDIES];
243. Francis H. Bohlen, The Rule in Rylands v. Fletcher: Part I, 59 U. PA. L. REV. 298, 303 (1911);
244. Leon Green, Tort Law Public Law in Disguise, 38 TEX. L. REV. 1, 5 (1960).
245. See BOHLEN, STUDIES, supra note 181, at 368-69 ("What may appear desirable in an ancient and highly organized society whose natural resources have been gradually and fully developed may be utterly inappropriate and harmful in a newly settled country whose natural resources still require exploitation."); Green, supra note 181, at 5 ("[W]e do know that in England at this time a new and prosperous industry as milling could well afford to bear the risks it imposed on the older and equally if not more important mining industry."); Kenzo Takayanagi, Liability Without Fault in the Modern Civil and Common Law, 16 ILL. L. REV. 163, 168 (1921) (attributing the Rylands decision to the growth of commerce and the rise of large-scale enterprises that could spread the cost of accidents). Bohlen also suggested, to much criticism, that the judges hearing the case in the House of Lords hailed from or aspired to the landed gentry and thus adopted a rule that would advance the protection of their interests over the commercial interests of the enterprising middle class. BOHLEN, STUDIES, supra note 181, at 369. Others have refuted this classist explanation of Rylands. See POUND, supra note 175, at 106-07.
246. See generally Robert Thomas Molloy, Fletcher v. Rylands: A Reexamination of Juristic Origins, 9 U. CHI. L. REV. 266 (1942) (explaining that the middle-class backgrounds of some House of Lords judges refutes Bohlen's class thesis).
247. See BOHLEN, STUDIES, supra note 181, at 369 (explaining the U.S. rejection of Rylands as partly attributable to the country's pressing need to encourage material development); Green, supra note 181, at 5 (same).
248. FRIEDMAN, supra note 3, at 351 (explaining that absolute liability rules like that imposed in Rylands were initially rejected in the United States because they risked strangling the economy); W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS 548-49 (5th ed. 1984) (explaining that late-nineteenth-century courts rejected the strict-liability standard because it would be too great a burden on the industrial and commercial development of the country).
249. But see generally Gary T. Schwartz, Tort Law and the Economy in Nineteenth-century America: A Reinterpretation, 90 YALE L.J. 1717 (1981) (rejecting the thesis that tort law of the nineteenth century adopted a fault-based standard in order to subsidize industry).
250. Brown v. Collins, 53 N.H. 442 (1873).
251. Id. at 448. See also Losee v. Buchanan, 51 N.Y. 476, 484 (1873) (condemning the strict-liability rule of Rylands as incompatible with the development of "factories, machinery, dams, canals and railroads"); Pa. Coal Co. v. Sanderson, 6 A. 453, 459-60 (Pa. 1886) (rejecting Rylands as "wholly inapplicable" to the case at bar and noting that the coal industry serves "a great public interest").
252. II SEYMOUR D. THOMPSON, THE LAW OF NEGLIGENCE IN RELATIONS NOT RESTING IN CONTRACT 1234-35 (St. Louis, F.H. Thomas & Co. 1880). See also Jed Handelsman Shugerman, Note, The Floodgates of Strict Liability: Bursting Reservoirs and the Adoption of Fletcher v. Rylands in the Gilded Age, 110 YALE L.J. 333, 348-49, 350 (2000) (explaining that New York and New Hampshire court decisions in the late nineteenth century suggested a concern for economic growth that outweighed the desire to protect urban populations from industrial risks).
253. WITT, supra note 180, at 48. See also FOWLER VINCENT HARPER, A TREATISE ON THE LAW OF TORTS 338 (1933) (explaining that the early rejection of Rylands in the U.S. grew out of concern for the business community).
254. See POUND supra note 175, at 109-10.
255. Davis v. Rich, 62 N.E. 375, 377 (Mass. 1902) (Holmes, C.J.) ("When knowledge of the damage done or threatened to the public is established, the strict rule of Rylands v. Fletcher is not in question."); The Theory of Torts, supra note 148, at 653, 663. As Louis Menand explains, Holmes did not view the law from a monolithic utilitarian lens. MENAND, supra note 168, at 341 (explaining that Holmes saw law's development as guided by utility, morality, doctrinal consistency, and historical concerns). See supra note 148 and accompanying text (describing scholarly interpretations of Holmes's views on negligence and strict liability).
256. The Theory of Torts, supra note 148, at 663. Holmes's "extra-hazardous" activities bear a strong connection to contemporary concepts of abnormally dangerous or ultrahazardous activities. Compare id. at 653, 666, with RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM § 20 (Proposed Final Draft No. 1, Apr. 6, 2005) (stating that abnormally dangerous activities subject the actor to strict liability for physical harm caused by that activity), and RESTATEMENT (SECOND) OF TORTS § 520 (1977) (explaining that courts, in determining whether an activity is abnormally dangerous, should consider, among other things, the high degree of risk of harm to the person, land, or chattel and the extent to which the activity is not a matter of common usage). See supra note 131 (discussing how a Rylands approach to today's insecure cyber-reservoirs might accord with the Restatement view).
257. DAVID G. MCCULLOUGH, THE JOHNSTOWN FLOOD 264 (1968);
258. NORMAN SMITH, A HISTORY OF DAMS 177-78 (1971).
259. MCCULLOUGH, supra note 192, at 264; SMITH, supra note 192, at 177-78.
260. The American Law Review, a bimonthly publication, was probably "the most influential legal periodical of the nineteenth century." THOMAS A. WOXLAND & PATTI J. OGDEN, LANDMARKS IN AMERICAN LEGAL PUBLISHING 48 (1990).
261. Note, The Law of Bursting Reservoirs, 23 AM. L. REV. 643, 646 (1889).
262. Id. at 647. See also Ariz. Employers' Liab. Cases, 250 U.S. 400, 432-33 (1919) (Holmes, J., concurring) ("There is no more certain way of securing attention to the safety of the men . . . than by holding the employer liable for accidents. . . . [T]hey probably will happen a good deal less often when the employer knows that he must answer for them if they do."); Robert J. Kaczorowski, The Commonlaw Background of Nineteenth-century Tort Law, 51 OHIO ST. L.J. 1127, 1128 (1990) (explaining that nineteenth-century judges used tort law as a tool to encourage moral behavior, minimize injuries, and promote honesty and fair dealing in economic relationships); Takayanagi, supra note 182, at 172.
263. See BERNARD SCHWARTZ, THE LAW IN AMERICA 78 (1974) (explaining nineteenth-century tort law's deference to free individual action and decision).
264. See WITT, supra note 180, at 47 (explaining the view that strict liability unethically fined the "free exercise of the nonnegligent injurer's rights"); James Barr Ames, Law and Morals, 22 HARV. L. REV. 97, 99, 103 (1908).
265. Green, supra note 173, at 255. See also YEHOSHUA ARIELI, INDIVIDUALISM AND NATIONALISM IN AMERICAN IDEOLOGY 334 (1964) ("Competitive economic activity was . . . not only the way to progress but the principle of natural justice."); WITT, supra note 180, at 46-47.
266. Ames, supra note 198, at 103.
267. See JOHN G. FLEMING, THE LAW OF TORTS 368 (9th ed. 1998); Murphy, supra note 175, at 665.
268. Murphy, supra note 175, at 665 (internal footnote omitted). See also John H. Wigmore, Responsibility for Tortious Acts: Its History - III.,
269. HARV. L. REV. 441, 452-56 (1894) (discussing the progression of tort liability standards from negligence to the no-fault rule of Rylands).
270. See Shugerman, supra note 187, at 338-39 (noting that only three states - Massachusetts, Minnesota, and Pennsylvania - accepted Rylands by the end of the 1870s).
271. See FRIEDMAN, supra note 3, at 365 (stating that Rylands was "too much, too soon" for the American economy); KEETON ET AL., supra note 184, at 549.
272. Ames, supra note 198, at 99.
273. See 3 HARPER ET AL., supra note 119, at 195 (the "prevailing" twentieth-century view of the rule in Rylands was one of acceptance, rather than rejection); Shugerman, supra note 187, at 345.
274. Shugerman, supra note 187, at 345.
275. Id. See KEETON ET AL., supra note 184, at 549.
276. KEETON ET AL., supra note 184, at 549; Charles O. Gregory, Trespass to Negligence to Absolute Liability, 37 VA. L. REV. 359, 382-83 (1951). See also Robb v. Carnegie Bros. & Co., 22 A. 649, 651 (Pa. 1891) (holding "the production of iron or steel or glass" while of great public importance is "the result[] of private enterprise" which "has no right to claim exemption from the natural consequences" of its acts).
277. Green, supra note 181, at 5.
278. Pound, supra note 168, at 233. See also Bridgeman-Russell Co. v. City of Duluth, 197 N.W. 971, 972 (Minn. 1924) (articulating a social justice rationale for the adoption of Rylands); Green, supra note 181, at 258 (discussing the implications for moral change upon the development of tort law).
279. E.g., Davis v. Rich, 62 N.E. 375, 377 (Mass. 1902) (Holmes, C.J.) (discussing a leaking pipe that created an icy city sidewalk); Gorham v. Gross, 125 Mass. 232, 238-40 (1878) (stating that an employer was strictly liable for a collapsing wall that was negligently constructed by its employee); Wiltse v. City of Red Wing, 109 N.W. 114, 115 (Minn. 1906) (discussing a bursting city reservoir).
280. E.g., Balt. Breweries' Co. v. Ranstead, 28 A. 273, 274 (Md. Ct. App. 1894); Bradford Glycerine Co. v. St. Marys Woolen Mfg. Co., 54 N.E. 528, 531 (Ohio 1899) (discussing exploding nitroglycerine); Green v. Sun Co., 32 Pa. Super. 521, 529-30 (1907) (discussing an oil refinery).
281. Holmes, supra note 3, at 467.
282. ABRAHAM, supra note 121, at 167 ("Rylands was decided against the background late nineteenth-century rule that there was liability only upon proof" of negligence.).
283. See supra notes 109-19 and accompanying text.
284. See, e.g., J.M. BALKIN, CULTURAL SOFTWARE: A THEORY OF IDEOLOGY 247 (1998) (discussing the use of metaphors and their effects); SOLOVE, supra note 7, at 27-28, 36-38, 55 (invoking the tyrannical bureaucracy of Franz Kafka's The Trial to describe commercial collection of personal data); Shyamkrishna Balganesh, Common Law Property Metaphors on the Internet: The Real Problem with the Doctrine of Cybertrespass, 12 MICH. TELECOMM. & TECH. L. REV. 265, 268 (2006) (arguing that the judicial doctrine of cybertrespass resulted from the law's reliance on metaphor);
285. Michael Froomkin, The Metaphor Is the Key: Cryptography, the Clipper Chip, and the Constitution, 143 U. PA. L. REV. 709, 718 (1995) (explaining that the nature of Internet law "depend[s] critically on the legal metaphors" used to describe the Internet and its functions);
286. Dan Hunter, Cyberspace as Place and the Tragedy of the Digital Anticommons, 91 CAL. L. REV. 439, 459 (2003) [hereinafter Hunter, Cyberspace] (arguing that metaphors are "central to legal thinking" and profoundly influence judicial decisionmaking).
287. See generally Dan Hunter, Reason Is Too Large: Analogy and Precedent in Law, 50 EMORY L.J. 1197, 1197 (2001) (arguing that "cognitive science models of human thinking explain how analogical reasoning and precedential reasoning operate in law"). But see RICHARD A. POSNER, OVERCOMING LAW 523-24 (1995) ("A way of thinking, metaphor, yes, but often of an undisciplined and misleading character.").
288. See O'HARROW, supra note 12, at 137-38 (recounting privacy expert Chris Hoofnagle's explanation that extraordinary "reservoirs" of cyber-data constitute infrastructure of our surveillance society).
289. See Mark A. Lemley, Place and Cyberspace, 91 CAL. L. REV. 521, 538 (2003) (noting that Internet trespass cases, which involve electrical charges, "are all about chasing down electronic 'water' in order to reclaim it").
290. See SOLOVE, supra note 7, at 3, 19. See also Eric Lichtblau & James Risen, Bank Data Sifted in Secret by U.S. to Block Terror, N.Y. TIMES, June 23, 2006, at A1 (quoting an official describing the U.S. Government's search of a massive database containing financial records "turning on every spigot . . . and seeing what water would come out").
291. E.g., WILLIAM J. MITCHELL, CITY OF BITS: SPACE, PLACE, AND THE INFOBAHN 23 (1995) (analogizing the physical world to the world of the Internet);
292. Richard A. Epstein, Cybertrespass, 70 U. CHI. L. REV. 73, 82-83 (2003) (arguing that websites look more like real property than ordinary chattel given the land-like descriptions of cyberspace and thus the rules of "real property" offer a "better fit" for the analysis of cyberspace issues);
293. Hunter, Cyberspace, supra note 217, at 452, 516 (stating that many "treat cyberspace as if it were a physical place. . . . [It] may be inchoate and virtual, but no less real in our minds," rendering attempts to supplant the metaphor tragically "doomed to failure");
294. Harold Smith Reeves, Comment, Property in Cyberspace, 63 U. CHI. L. REV. 761, 762 (1996) ("Current judicial and legislative approaches to Cyberspace rely on a conception of bounded property developed to regulate the ownership of land.").
295. Mark Lemley offers a powerful critique of the "cyberspace as place" metaphor adopted by courts and scholars to justify applying real property laws to Internet law issues. See generally Lemley, supra note 219, at 521. But see Hunter, Cyberspace, supra note 217, at 452-53, 511-13 (challenging the perceived wisdom of those who conflate the idea that cyberspace has the characteristics of a place because it risks fencing off of the Internet, a tragedy of the "anticommons"). For Lemley, the metaphor should begin the inquiry, not end it. See Lemley, supra note 219, at 523. Lemley argues that courts ought to consider the context and effect of the proposed rules addressing cyberspace instead of reflexively applying real property rules to cyberspace law issues. Id. My analysis endeavors to avoid that blunder, offering the metaphor of water reservoirs to frame my discussion of the historical and theoretical reasons that support the application of Rylands to the problem of escaping valuable data.
296. In this analysis, I borrow from Mark Lemley's notion that "private and public spaces must coexist on the Internet, just as they do in the physical world." Lemley, supra note 219, at 537. See also MITCHELL, supra note 221, at 23 ("Many of the places in cyberspace are public, like streets and squares; access to them is uncontrolled. Others are private, like mailboxes and houses, and you can enter only if you have the key or can demonstrate that you belong.").
297. In analogizing computer databases to reservoirs of valuable personal data, I do not mean to simply equate cyberspace with real property and databases with reservoirs. See Hunter, Cyberspace, supra note 217, at 487-88 (criticizing judicial decisions that treat a defendant's damage to a plaintiff's computer system as one involving real property, not personal property, due to the oversimplification of all tortious cyber-harm as involving real property law). I use the image of the water reservoir instead to illuminate how contemporary technologies are akin to those in Rylands's time. To that end, I rely on the "interaction" theory of metaphor, which suggests that the combination of the "source" of the comparison and the target to which it is compared results in a "unique agent of meaning" that enriches our conceptualization of the dangers associated with the collection of personal identifying data at this juncture in our economic history. Janet Martin Soskice & Rom Harré, Metaphor in Science, in FROM A METAPHORICAL POINT OF VIEW: A MULTI-DISCIPLINARY APPROACH TO THE COGNITIVE CONTENT OF METAPHOR 289, 291 (Zdravko Radman ed., 1995).
298. See T.S. ASHTON, THE INDUSTRIAL REVOLUTION: 1760-1830, at 114-15 (1968); FRIEDMAN, supra note 151, at 53-54. See also Christine MacLeod, Britain as Workshop of the World (Feb. 11, 2004), http://www.bbc.co.uk/history/trail/ victorian_britain/industry-invention/britain-workshop-world-01.shtml (explaining that by the Great Crystal Palace Exhibition of 1851, Britain was the world's industrial power, producing more than half of the world's iron, coal, and cotton).
299. FRIEDMAN, supra note 151, at 53-54.
300. Id. at 53-54, 228.
301. Murphy, supra note 175, at 665.
302. See Simpson, supra note 132, at 217. See also SMITH, supra note 192, at 170-73 (discussing the construction of dams during the early nineteenth century). See generally G.M. BINNIE, EARLY VICTORIAN WATER ENGINEERS (1981).
303. SMITH, supra note 192, at 164 (explaining that the first recorded dam in Great Britain was built in 1189). In the eleventh century, however, England had 5624 water mills and it is likely that many were powered "by dams of some sort, small though they must have been." Id. at 165.
304. BINNIE, supra note 229, at 50.
305. See SMITH, supra note 192, at 169-80.
306. See BINNIE, supra note 229, at 50 (explaining that the widespread development of large reservoirs occurred in the late 1830s and 1840s to meet the water-power needs of mill owners); Simpson, supra note 132, at 217 (explaining that civil engineers in nineteenth-century England built reservoirs "on the basis of common sense, hunch, and experience, slowly augmented by a body of theoretical knowledge").
307. Simpson, supra note 132, at 219-31 (describing the failure of the Bilberry dam in 1852, which killed seventy-eight people and caused massive property damage, and the flooding of the Dale Dyke dam in 1864).
308. Id. at 219.
309. See Gary Flake, A Virtual Roundtable: Seven Thought Leaders Sound Off on How Connectivity Is Changing the Planet, FORTUNE, July 10, 2006, at 104, 106.
310. Justin Hibbard & Heather Green, The Net: It Feels Like 1998 All over Again, BUS. WK, May 22, 2006, at 30, 32 (describing $5.6 billion of venture capital investments in Internet startups in the first quarter of 2006).
311. Frommer, supra note 45.
312. Lawrence A. Gordon, Martin P. Loeb & Tashfeen Sohail, A Framework for Using Insurance for Cyber-risk Management, COMM. OF THE ACM, Mar. 2003, at 81, 81 (explaining that insurance allows firms to "hedge" potential losses from data-security breaches). The leading insurance companies now carry policies covering third-party risks arising from computer-security breaches, such as losses due to identity theft and an identity-theft victim's mental anguish.
313. Darwin Enhances Tech//404sm: New Cyber Liability, Technology E&O, and Internet Liability Coverage, PR NEWSWIRE, Apr. 26, 2006 (describing liability insurance policies that cover unauthorized access, theft, and loss of data due to security breaches);
314. Gregory D.L. Morris, Into the Breach, RISK & INS., Apr. 15, 2006, at 82, 82, available at http://www.riskandinsurance.com/060415_feature_4.asp (explaining that AIG, Chubb, and others carry data-security insurance covering a vendor's failure to protect personal information).
315. See generally MICHAEL LEWIS, THE NEW NEW THING: A SILICON VALLEY STORY (2000) (describing the advent of the Internet); Gordon et al., supra note 239, at 81 (explaining that cybercriminals successfully hacked into networks and databases of companies surveyed despite their near-universal use of security measures).
316. E.g., Terry Frieden, John King, & Marsha Walton, Source: Theft of Vets' Data Kept Secret for 19 Days, CNN.COM, May 23, 2006, http://www.cnn.com/2006/US/05/23/vets.data/;
317. FTC Laptop Theft Puts 110 People at Risk, REUTERS, June 23, 2006, available at http://news.zdnet.com/2100-1009_22-6087218.html; Kiviat, supra note 55, at 68.
318. See also Privacy Rights, Chronology, supra note 9 (cataloguing hundreds of data breaches in 2005 and 2006).
319. See, e.g., Kiviat, supra note 55, at 68.
320. See Keith N. Hylton, The Theory of Tort Doctrine and the Restatement (Third) of Torts, 54 VAND. L. REV. 1413, 1435 (2001) ("It would be easy to reach the conclusion that a reservoir externalizes far more non-reciprocated risk than benefit onto adjacent activities.").
321. Donald G. Gifford, The Challenge to the Individual Causation Requirement in Mass Products Torts, 62 WASH. & LEE L. REV. 873, 881-82 (2005) (footnotes omitted).
322. See also John C.P. Goldberg, The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs, 115 YALE L.J. 524, 583 (2005) (arguing that "[w]hether couched in terms of James-Traynor loss-spreading, Prosserian utilitarian balancing, or Calabresi-Posner efficient deterrence, tort law has, since the late 1930s, been widely understood by academics to be just another way in which government regulates conduct for the public good").
323. Compare CALABRESI, supra note 120, at 26-28 (discussing three subgoals of accident prevention, including a distributional goal), and Guido Calabresi & Jon T. Hirschoff, Toward a Test for Strict Liability in Torts, 81 YALE L.J. 1055, 1060, 1084-85 (1972) (noting that the cheapest cost-avoider efficiency test cannot be explained solely in terms of distributional goals although such goals may be served by it),
324. with VIRGINIA E. NOLAN & EDMUND URSIN, UNDERSTANDING ENTERPRISE LIABILITY: RETHINKING TORT REFORM FOR THE TWENTY- FIRST CENTURY 175-77 (1995) (arguing that contemporary enterprise liability theory is premised on loss-spreading).
325. CALABRESI, supra note 120, at 26.
326. Id. at 26-27.
327. Id. at 27-28, 44; Hanson & Logue, supra note 138, at 135 (arguing that law-and-economics scholars generally agree that an efficient products liability regime would encourage parties to "prevent all preventable accidents" - the deterrence goal - and would efficiently allocate the risk of unprevented accident costs - the insurance goal).
328. CALABRESI, supra note 120, at 28.
329. Id. at 29.
330. Calabresi & Hirschoff, supra note 245, at 1060 (emphasis omitted). See also CALABRESI, supra note 120, at 26-29; Steven Shavell, Strict Liability Versus Negligence, 9 J. LEGAL STUD. 1, 1-4 (1980) (arguing that strict liability is perfectly efficient where accidents are unilateral or not due to any fault of the victim). Negligence requires courts to examine all possibly relevant circumstances and to make a difficult, expensive, and often unreliable decision about reasonableness.
331. See Calabresi & Hirschoff, supra note 245, at 1083.
332. Id. at 1070. This focus on the actual loss-bearer does not mean that the liability rules differ between those who are insured and those who are uninsured. Id. at 1070 n.54. Instead, in devising a rule appropriate to a particular category of individuals, "the availability of insurance and other means of externalizing costs should be taken into account." Id.
333. See id. at 1066.
334. See Swire, supra note 10, at 286.
335. See id. See also SCHNEIER, supra note 23, at 29 (explaining that information technology is so advanced that individuals cannot evaluate risks in giving a credit card number to a website). In other words, information asymmetry exists between database operators and individuals. Database operators either know or can ascertain flaws in their security systems - individuals can do neither.
336. Swire, supra note 10, at 286.
337. See SOLOVE, supra note 7, at 81, 84-85.
338. See Herb Weisbaum, Why ID Theft Insurance Might Not Be Worth It, MSNBC.COM, May 8, 2006, http://www.msnbc.msn.com/id/12692565/. Identity-theft coverage typically costs $20-$100 per year as a rider to a basic homeowner's policy or as a stand-alone purchase with deductibles ranging from $100 to $1000. Id. Many policies do not cover legal fees or lost wages due to time away from work. Id.
339. Stop Thieves from Stealing You, CONSUMERREPORTS.ORG. , Oct. 2003, http://www.consumerreports.org/cro/consumer-protection/ identity-theft-1003/overview/index.htm.
340. Id. (explaining that identity-theft policies seldom cover a victim's out-of-pocket losses, which typically amount to $800); Weisbaum, supra note 259 (noting that many identity-theft policies do not cover legal fees or lost wages due to time away from work).
341. See supra notes 139-42 (discussing the efficiency of cost-spreading by database operators versus individuals).
342. Swire, supra note 10, at 286-87.
343. See supra notes 29-31 and accompanying text (discussing data brokers). Employees and students might be the cheapest cost-avoiders if they could refuse to provide their SSNs to colleges and employers. But both employees and students lack information to warrant such refusals because they cannot determine the degree of security afforded their information, much less how well their information is protected in future years.
344. See, e.g., Privacy Rights, Chronology, supra note 9 (explaining that a data-security breach at Ohio University released SSNs of alumni as well as current students). Moreover, employees and students may not be in a position to bargain with employers and colleges about the disclosure of their SSNs. See SOLOVE, supra note 7, at 82-83.
345. Posner's theory also supports a strict-liability approach to address the hazardous information reservoirs. See supra notes 132-38 and accompanying text (applying Posner's economic analysis to today's leaking cyber-reservoirs).
346. R.H. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1, 2-8 (1960).
347. Id.
348. Paul M. Schwartz, Privacy and the Economics of Personal Health Care Information, 76 TEX. L. REV. 1, 50 (1997).
349. Harold Demsetz, When Does the Rule of Liability Matter?, 1 J. LEGAL STUD. 13, 27-28 (1972) (explaining that where transacting costs of negotiation are high under Coase's theorem, the legal system can "improve the allocation of resources by placing liability on that party who in the usual situation could be expected to avoid the costly interaction most cheaply").
350. See, e.g., Gregory C. Keating, Pressing Precaution Beyond the Point of Cost-justification, 56 VAND. L. REV. 653, 667 (2003).
351. See Fleming James, Jr., Accident Liability: Some Wartime Developments, 55 YALE L.J. 365, 366 (1946);
352. Clarence Morris, Hazardous Enterprises and Risk Bearing Capacity, 61 YALE L.J. 1172, 1176 (1952);
353. George L. Priest, The Invention of Enterprise Liability: A Critical History of the Intellectual Foundations of Modern Tort Law, 14 J. LEGAL STUD. 461, 476 (1985) (explaining that the father of enterprise liability theory, Fleming James, Jr., argued that the modern direction of law was away from a medieval fault-based approach and toward strict liability, with Rylands v. Fletcher and workers' compensation plans as its "most prominent models").
354. Gregory C. Keating, The Theory of Enterprise Liability and Common Law Strict Liability, 54 VAND. L. REV. 1285, 1334 (2001).
355. See 3 HARPER ET AL., supra note 119, at 132; Priest, supra note 271, at 463.
356. E.g., Robert L. Rabin, Some Thoughts on the Ideology of Enterprise Liability, 55 MD. L. REV. 1190, 1193-94 n.22 (1996). See Keating, supra note 272, at 1324 (describing Judge Friendly's view that enterprises should be held liable for their characteristic risks because they benefit from the imposition of those risks even if liability would not induce precaution). Many enterprise liability theories also contend that the cost-pressures of higher insurance premiums create incentives for enterprises to take safety precautions for their risky activities. See, e.g., id. at 1320.
357. Keating, supra note 272, at 1320. Justice Traynor's celebrated concurrence in Escola v. Coca Cola Bottling Co., 150 P.2d 436, 440 (Cal. 1944), "afforded prominence both to safety incentives and loss-spreading rationales." Rabin, supra note 274, 1194 n.22.
358. Keating, supra note 272, at 1333. See also 3 HARPER ET AL., supra note 119, at 196 n.19 (explaining that "loss distribution, based in effect on enterprise liability," as preferable to negligence "has been widely recognized for years" and is not limited "to activities to which strict liability has heretofore applied"); NOLAN & URSIN, supra note 245, at 150-51 (suggesting enterprise liability's continuing prominence); Murphy, supra note 175, at 666 (highlighting the vitality of Rylands in the twenty-first century to ensure that polluting enterprises pay their way). For examples of contemporary scholarship advocating the retention of enterprise liability, see Steven P. Croley & Jon D. Hanson, Rescuing the Revolution: The Revived Case for Enterprise Liability, 91 MICH. L. REV. 683, 692 (1993) (offering "new arguments on behalf of old justifications for the expansion of manufacturer liability");
359. William K. Jones, Strict Liability for Hazardous Enterprise, 92 COLUM. L. REV. 1705 (1992) (discussing same).
360. See supra note 239 (discussing the increasing availability and use of cyber-risk insurance).
361. John C.P. Goldberg, Twentieth-century Tort Theory, 91 GEO. L.J. 513, 564 (2003).
362. See, e.g., Richard A. Epstein, A Theory of Strict Liability, 2 J. LEGAL STUD. 151, 203-04 (1973).
363. See supra notes 197-200 and accompanying text (describing the philosophy of the nineteenth century's economic moralists).
364. See, e.g., Gregory C. Keating, Rawlsian Fairness and Regime Choice in the Law of Accidents, 72 FORDHAM L. REV. 1857, 1886-87 (2004).
365. See id. at 1887-90.
366. See Zipursky, supra note 143, at 699-700.
367. See RICHARD A. EPSTEIN, PRINCIPLES FOR A FREE SOCIETY: RECONCILING INDIVIDUAL LIBERTY WITH THE COMMON GOOD 3, 320 (1998) (calling for a reinvigoration of laissez-faire philosophy); Goldberg, supra note 278, at 564-65.
368. Goldberg, supra note 278, at 564-65. See generally ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 79-84 (1974) (articulating a libertarian theory of a minimal state that upholds one's freedom to engage in risky activities whose benefits outweigh their costs, such as polluting or driving, so long as the individuals who benefit from the activities compensate those who bear the costs).
369. Goldberg, supra note 278, at 565.
370. Richard A. Epstein, Causation - In Context: An Afterword, 63 CHI.-KENT L. REV. 653, 658 (1987) [hereinafter Epstein, Afterword]; Epstein, supra note 279, at 158.
371. Cf. Epstein, Afterword, supra note 287, at 818-19 (explaining that because auction aggregators that troll an auction web site, such as eBay, gather information from the site and strain it, they interfere with the auction house's property right to exclude such aggregators; thus, the rules for trespass to real property should be imported into cyberspace).
372. In 1972, George Fletcher propounded the "reciprocity of risk" theory. George P. Fletcher, Fairness and Utility in Tort Theory, 85 HARV. L. REV. 537, 540-42 (1972) [hereinafter Fletcher, Fairness].
373. See also George P. Fletcher, Book Review: Corrective Justice for Moderns, 106 HARV. L. REV. 1658, 1677 (1993) (affirming reciprocity of risk theory in reviewing JULES L. COLEMAN, RISKS AND WRONGS (1992)). For Fletcher, fairness requires compensation for a victim's injuries if the injurer exposed the victim to an unfair amount of risk - that is, more risk than the victim exposed to the injurer. See Fletcher, Fairness, supra, at 546-48. Rylands epitomized the reciprocity theory for Fletcher because John Rylands imposed a risk on his coal-mining neighbor, Thomas Fletcher, who did not impose such risks on him. See id. at 546, 550. Thus, fairness required John Rylands to compensate Thomas Fletcher. See id. Fletcher's "reciprocity of risk" paradigm would likely uphold a strict-liability approach to today's insecure cyber-reservoirs. Database operators, in amassing massive collections of sensitive personal data in databases, impose risks upon individuals but such individuals do not impose risks on database operators. Thus, the database operator's imposition of nonreciprocal risks upon individuals would warrant strict-liability treatment for the harm caused by leaking data under the "reciprocity of risk" theory.
374. See Gregory C. Keating, Reasonableness and Rationality in Negligence Theory, 48 STAN. L. REV. 311, 313-14 (1996) [hereinafter Keating, Reasonableness] (building on the "incomplete" reciprocity theory of George Fletcher and Charles Fried). Keating partially rejects Fletcher's "reciprocity of risk" paradigm and offers a different prescription for fairness. See Keating, supra note 281, at 1887;
375. Gregory C. Keating, Distributive and Corrective Justice in the Tort Law of Accidents, 74 S. CAL. L. REV. 193, 200-01 (2000) [hereinafter Keating, Corrective Justice]; Goldberg, supra note 278, at 568-69 (describing Keating's interpretive project as updating Fletcher's reciprocity theory and providing a normative basis for the reciprocity principle based on a "Rawlsian conception of fair terms of cooperation among equals").
376. See Keating, Corrective Justice, supra note 290, at 202.
377. See Keating, supra note 281, at 1857-58.
378. See id. at 1873.
379. Id. at 1862-63.
380. Id. at 1864-66.
381. See id. at 1871.
382. Gregory C. Keating, The Idea of Fairness in the Law of Enterprise Liability, 95 MICH. L. REV. 1266, 1328 (1997).
383. See also Robert E. Keeton, Conditional Fault in the Law of Torts, 72 HARV. L. REV. 401, 441 (1959) (articulating moral and fairness grounds for strict liability for hazardous activities under the rubric of "unjust enrichment" because "those who benefit by receiving the products of blasting activities ought to bear the losses if they can be distributed at a reasonable cost").
384. Keating, supra note 281, at 1891-92. See also MARSHALL S. SHAPO, THE DUTY TO ACT: TORT LAW, POWER, & PUBLIC POLICY 8, 11-12 (1977) (arguing that morality and economic considerations compel the notion that entrepreneurs whose activities cause harm have a duty to repair that harm in return for freedom to act as they wish).
385. Keating, supra note 281, at 1891. See also Jones, supra note 276, at 1778 (contending that fairness demands that when the enterprise "controls the instrumentality of harm" and the victim is "essentially passive" and cannot avoid the harm herself, strict liability should follow); Virginia E. Nolan & Edmund Ursin, The Revitalization of Hazardous Activity Strict Liability, 65 N.C. L. REV. 257, 290 (1987) (arguing that strict liability for entities whose commercial activities impose hazards on individuals is fair because the victim imposed "no similar risk" on the enterprise and lacked the ability to protect herself).
386. See Keating, supra note 281, at 1858. See also JOHN RAWLS, POLITICAL LIBERALISM 300 (1993) ("Fair terms of cooperation articulate an idea of reciprocity and mutuality: all who cooperate must benefit, or share in common burdens, in some appropriate fashion judged by a suitable benchmark of comparison.").
387. See Keating, Reasonableness, supra note 290, at 343-44.
388. See supra note 64 and accompanying text (discussing Remsburg v. Docusearch, Inc., 816 A.2d 1001, 1006 (N.H. 2003)).
389. See JOHN RAWLS, A THEORY OF JUSTICE 61 (1971);
390. Keating, Reasonableness, supra note 290, at 344. It also might impinge on the individual's right to be free from arbitrary arrest under Rawls's basic liberties. RAWLS, supra, at 61.
391. See COLEMAN, supra note 289, at 320 (corrective justice "imposes the duty to repair the wrongs one does" (emphasis omitted)); ERNEST J. WEINRIB, THE IDEA OF PRIVATE LAW 56-57 (1995); Stephen R. Perry, The Moral Foundations of Tort Law, 77 IOWA L. REV. 449, 453 (1992) (corrective justice erases the wrongful actor's gain and restores the victim's loss).
392. See WEINRIB, supra note 304, at 64, 76 (developing Aristotle's notion that corrective justice addresses the disturbances of the equality between two parties such that the "injustice that corrective justice corrects is essentially bipolar"); Perry, supra note 304, at 453-54. See also Benjamin C. Zipursky, Philosophy of Tort Law, in THE BLACKWELL GUIDE TO THE PHILOSOPHY OF LAW AND LEGAL THEORY 122 (Martin P. Golding & William A. Edmundson eds., 2005) (describing varying notions of corrective justice theory).
393. See WEINRIB, supra note 304, at 187-90.
394. Id. at 188. See also COLEMAN, supra note 289, at 367-68 (arguing that no matter how well one maintains an above-ground reservoir, "simply building a reservoir creates unnecessary, and therefore unreasonable risks").
395. WEINRIB, supra note 304, at 189.
396. See Goldberg, supra note 244, at 601 (conceiving tort law "as a law for the redress of wrongs [that] conditions the imposition of liability on conduct that is wrongful toward, and injurious to, the victim"); John C.P. Goldberg & Benjamin C. Zipursky, The Moral of MacPherson, 146 U. PA. L. REV. 1733, 1812-32 (1998);
397. Benjamin C. Zipursky, Rights, Wrongs, and Recourse in the Law of Torts, 51 VAND. L. REV. 1, 3, 15-40, 55-70 (1998) (explaining that tort law only contemplates redress where an injurer bears a relational duty to a victim and commits a wrong against the victim).
398. Zipursky, supra note 143, at 754 (explaining that although civil recourse theory differs from corrective justice theory in critical ways, civil recourse theory, like corrective justice theory, takes "the offensive - as a superior analysis of the structure of tort doctrine, as a form of justice and
399. Goldberg, supra note 244, at 598.
400. E.g., RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL HARM (BASIC PRINCIPLES) § 6 cmts. a, c (Tentative Draft No. 1, 2001) (suggesting that the overarching normative principle of tort law is negligence); James A. Henderson, Jr., Why Negligence Dominates Tort, 50 UCLA L. REV. 377, 378-79 (2002);
401. Robert L. Rabin, The Renaissance of Accident Law Plans Revisited, 64 MD. L. REV. 699, 716 (2005);
402. Gary T. Schwartz, Mixed Theories of Tort Law: Affirming Both Deterrence and Corrective Justice, 75 TEX. L. REV. 1801 (1997).
403. See also G. EDWARD WHITE, TORT LAW IN AMERICA: AN INTELLECTUAL HISTORY 276-77 (rev. ed. 2003) (addressing the emergence of negligence over strict liability as the dominant standard in manufacturing liability cases).
404. Some may argue that in establishing a Rylands claim for bursting cyber-reservoirs, plaintiffs would face significant practical problems proving causation. Although this Article does not attempt to resolve this question, a few preliminary notes can be made. Many contemporary theories that might uphold strict liability also would dispense with the individual causation requirement. See Guido Calabresi, Concerning Cause and the Law of Torts: An Essay for Harry Kalven, Jr., 43 U. CHI. L. REV. 69, 105 (1975) (suggesting that any requirement for proof of causation should be obviated when public policy demands); Gifford, supra note 244, at 881-87 (exploring several tort scholars' rejection of the notion that a particular victim needs to identify a particular injurer to recover). Concerns about causation also may be somewhat alleviated by the adoption of data-breach notification statutes. Such notices would help victims identify the cyber-reservoir that leaked their sensitive personal data. Menn, supra note 19 (noting that 800 individuals were victimized by identity thieves as a result of a data-security breach at ChoicePoint in 2005). Plaintiffs also might invoke cases where manufacturers of mass products were held liable without proof of individual causation under "industry-wide" or market-share liability theories.
405. See Donald G. Gifford, The Peculiar Challenges Posed by Latent Diseases Resulting from Mass Products, 64 MD. L. REV. 613, 654-55 (2005).
406. See WHITE, supra note 312, at 253 (noting that enterprise liability endures in many areas of tort law, including liability for abnormally dangerous activities).
407. Keating, Reasonableness, supra note 290, at 433.
408. RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR ECONOMIC LOSS § 8 (Preliminary Draft No. 1, 2005) ("[A]n actor who accidentally causes pecuniary harm to another that does not result from a wrongful injury to the person or property of the other is subject to liability in tort for neglect of a duty of care to the other only as stated in §§ 9-21."); 4 FOWLER V. HARPER, FLEMING JAMES, JR. & OSCAR S. GRAY, THE LAW OF TORTS §§ 25.18A-25.18D (2d ed. 1986).
409. Nancy Levit, Ethereal Torts, 61 GEO. WASH. L. REV. 136, 174 (1992).
410. See WITT, supra note 180, at 141-42.
411. See Richard S. Markovitz, Liberalism and Tort Law: On the Content of the Corrective-Justice-Securing Tort Law of a Liberal, Rights-based Society, 2006 U. ILL. L. REV. 243, 245, 268-69 (explaining that the recognition of libel, slander, defamation, and privacy actions suggests that tort law recognizes harm caused by an injurer's interference with an individual's right to lead a life of moral integrity).
412. See RUDOLPH VON JHERING, THE STRUGGLE FOR LAW 59 (John J. Lalor trans., 2d ed. 1915) ("Property is but the periphery of my person extended to things."). See generally Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957 (1982) (conceiving personal property as an extension of the self).
413. Cf. Radin, supra note 320, at 1014-15 (arguing for the recognition of an expanded notion of personal property interest based on personhood theory); John Stick, Turning Rawls into Nozick and Back Again, 81 NW. U. L. REV. 363, 374 (1987) (suggesting that Nozick could argue that Rawls's basic liberties include a wider conception of property rights than Rawls acknowledges because the "rights to use and dispose of property yield much more self-respect than limited rights").
414. See Heidi Li Feldman, Harm and Money: Against the Insurance Theory of Tort Compensation, 75 TEX. L. REV. 1567, 1587 (1997) (arguing that emotional suffering stunts a person's capacity to flourish).
415. See Levit, supra note 317, at 189-90.1 recognize the possibility that ultrasensitive plaintiffs may attempt to recover emotional distress damages for the leakage of their data. See Keating, Reasonableness, supra note 290, at 344 n.114, 347 (contending that although purely emotional harm is central to an individual's personality, its exclusion from tort law's protection is justified because such damages would put society at the mercy of the emotionally hyperactive). The possibility of ultrasensitive plaintiffs, however, ought not to preclude recovery for emotional harm given the importance of emotional health to human flourishing and a jury's ability to identify a plaintiff's ultrasensitive nature and, in rum, award damages fairly.