Scarinci Hollenbeck, LLC
The Firm
201-896-4100 info@sh-law.comFirm Insights
Author: Scarinci Hollenbeck, LLC
Date: March 12, 2014
The Firm
201-896-4100 info@sh-law.comData breaches are a growing threat to U.S. businesses. In the wake of Target’s high-profile data theft, which impacted more than 110 million consumers, and the more recent theft of consumer data from Neiman Marcus who disclosed that hackers invaded its systems for several months in a breach that involved 1.1 million credit and debit cards, security experts, federal lawmakers, and business leaders are all working to determine how best to protect sensitive information from falling into the wrong hands.
At a recent privacy symposium hosted by the University of Maine School of Law, Professor Dennis Hirsch of Capital University Law School proposed a novel approach to data protection. His source of inspiration — oil spills.
In his forthcoming paper, The Glass House Effect: Big Data, Oil Spills and the Need for Clean Data Technology, Hirsh takes the oft quoted analogy “’big data’ is the new oil” and extends it to spill prevention and cleanup. “Data spills occur with the regularity of oil spills. The victim of identity theft, bogged down in unwanted credit cards and bills, is just as trapped and unable to fly as the bird caught in the oil slick, its wings coated with a glossy substance from which it struggles to free itself,” he writes.
Hirsh further argues that environmental law can provide strategies that allow businesses to take advantage of big data’s many benefits, while reducing its negative impacts. He specifically cites the Clean Water Act and Oil Pollution Act as examples.
For instance, Hirsch notes that victims of data breaches are often unable to recover the full extent of their damages because they must demonstrate a “concrete and particular harm” that is “actual or imminent.” Accordingly, damages related to emotional distress and the risk of future damages are generally not allowed. As Congress expanded the Oil Pollution Act to allow for greater recovery for oil spill victims, Hirsh suggests that lawmakers should pass federal legislation that allows for the recovery of noneconomic damages created by data breaches.
In addition, Hirsh calls for legislation that authorizes a federal agency to clean up after data spills (i.e., investigating the root causes, determining the severity of the breach, and providing credit monitoring and identity theft recovery services to the public). The federal government could then recoup its expenses from the responsible party.
Finally, Hirsh notes that increasing liability for data breaches will only accomplish so much, just as it does in the oil industry. Akin to the push for viable sources of “clean energy,” Hirsh calls for the prevention of data breaches through new, “clean data” technologies and privacy-protective business models.
Hirsh acknowledges that his policy proposals are “intended (to be) provocative suggestions (rather) than full-fledged proposals . . . to spark creative thinking about solutions.” However, out-of-the box thinking may be just what is needed to solve this pressing and complex problem.
If you have any questions about the proposals discussed or would like to discuss your company’s data protection strategies, please contact me, Cyber Jurist. Fernando Pinguelo, or the Scarinci Hollenbeck attorney with whom you work. To learn more about data privacy and security, visit eWhiteHouseWatch – Where Law, Technology & Politics Collide.
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Earlier this month, the U.S. Supreme Court issued a decision in Ames v. Ohio Department of Youth Services vitiating the so-called “background circumstances” test required by half of federal circuit courts.1 The background circumstances test required majority group plaintiffs pleading discrimination under Title VII of the Civil Rights Act to meet a heightened pleading standard […]
Author: Matthew F. Mimnaugh
Special purpose acquisition companies (better known as SPACs) appear to be making a comeback. SPAC offerings for 2025 have already nearly surpassed last year’s totals, with additional transactions in the pipeline. SPACs last experienced a boom between 2020–2021, with approximately 600 U.S. companies raising a record $163 billion in 2021. Notable companies that went public […]
Author: Dan Brecher
Merging two companies is a complex legal and business transaction. A short form merger, in which an acquiring company merges with a subsidiary corporation, offers a more streamlined process that involves important corporate governance considerations. A short form merger, in which an acquiring company merges with a subsidiary corporation, offers a more streamlined process. However, […]
Author: Dan Brecher
The Trump Administration’s new tariffs are having an oversized impact on small businesses, which already tend to operate on razor thin margins. Many businesses have been forced to raise prices, find new suppliers, lay off staff, and delay growth plans. For businesses facing even more dire financial circumstances, there are additional tariff response options, including […]
Author: Brian D. Spector
Business partnerships, much like marriages, function exceptionally well when partners are aligned but can become challenging when disagreements arise. Partnership disputes often stem from conflicts over business strategy, financial management, and unclear role definitions among partners. Understanding Business Partnership Conflicts Partnership conflicts place significant stress on businesses, making proactive measures essential. Partnerships should establish detailed […]
Author: Christopher D. Warren
*** The original article was featured on Bloomberg Tax, April 28, 2025 — As a tax attorney who spends much of my time helping people and companies who have large, unresolved issues with the IRS or one or more state tax departments, it often occurs to me that the best service that I can provide […]
Author: Scott H. Novak
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.
Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.
Let`s get in touch!
Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!