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Encryption safe harbours and data breach notification laws

Burdon, Mark, Reid, Jason F., & Low, Rouhshi (2010) Encryption safe harbours and data breach notification laws. Computer Law and Security Review, 26(5), pp. 520-534.

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Abstract

Data breach notification laws require organisations to notify affected persons or regulatory authorities when an unauthorised acquisition of personal data occurs. Most laws provide a safe harbour to this obligation if acquired data has been encrypted. There are three types of safe harbour: an exemption; a rebuttable presumption and factor-based analysis. We demonstrate, using three condition-based scenarios, that the broad formulation of most encryption safe harbours is based on the flawed assumption that encryption is the silver bullet for personal information protection. We then contend that reliance upon an encryption safe harbour should be dependent upon a rigorous and competent risk-based review that is required on a case-by-case basis. Finally, we recommend the use of both an encryption safe harbour and a notification trigger as our preferred choice for a data breach notification regulatory framework.

Impact and interest:

2 citations in Scopus
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ID Code: 37693
Item Type: Journal Article
Keywords: Data breach notification, Encryption, Information security management, Data protection
DOI: 10.1016/j.clsr.2010.07.002
ISSN: 1873-6734
Subjects: Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Law not elsewhere classified (180199)
Divisions: Current > QUT Faculties and Divisions > QUT Business School
Current > QUT Faculties and Divisions > Faculty of Law
Past > Institutes > Information Security Institute
Copyright Owner: Copyright 2010 Elsevier B.V.
Deposited On: 05 Oct 2010 10:43
Last Modified: 01 Mar 2012 00:21

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