Reasonableness Meets Requirements: Regulating Security and Privacy in Software

Software security and privacy issues regularly grab headlines amid fears of identity theft, data breaches, and threats to security. Policymakers have responded with a variety of approaches to combat such risk. Suggested measures include promulgation of strict rules, enactment of open-ended standards, and, at times, abstention in favor of allowing market forces to intervene. This Note lays out the basis for understanding how both policymakers and engineers should proceed in an increasingly software-dependent society. After explaining what distinguishes software-based systems from other objects of regulation, this Note argues that policymakers should pursue standards-based approaches to regulating software security and privacy. Although engineers may be more comfortable dealing with strict rules, this Note explains why both policymakers and engineers benefit from pursuing standards over rules. The nature of software development prevents engineers from ever guaranteeing security and privacy, but with an effective regulatory standards framework complemented by engineers' technical expertise, heightened security, and privacy protections can benefit society.