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Why Privacy Now Goes Far Beyond Complying W ith Your Privacy Policy

Why Privacy Now Goes Far Beyond Complying W ith Your Privacy Policy. Peter Swire Facebook: Privacy@Scale June 3 , 2015. Overview: Why Privacy Has Gotten Harder. The history: First Wave of Global Privacy Protection – 1990’s Post 9/ 11: comply with the privacy policy was the key

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Why Privacy Now Goes Far Beyond Complying W ith Your Privacy Policy

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  1. Why Privacy Now Goes Far Beyond Complying With Your Privacy Policy Peter Swire Facebook: Privacy@Scale June 3, 2015

  2. Overview: Why Privacy Has Gotten Harder • The history: • First Wave of Global Privacy Protection – 1990’s • Post 9/11: comply with the privacy policy was the key • Second Wave – what we are in now • The technology: • From the Internet (90s) to multiple new tech challenges, from social networks to IoT • The result: • Responses from post 9/11 period do not handle the risks and realities in privacy and cyber today • Also, update on USA Freedom Act

  3. First Wave • 1993 – commercial activity on Internet • The First Wave • EU Directive in effect (1998); Safe Harbor (2000) • HIPAA (rules 1999-2000) • GLBA (law 1999) • Children’s Online Privacy Protection Act (1998) • Privacy policies and FTC rise to prominence for Internet privacy

  4. Post 9/11 – Privacy slowdown • Security vs. privacy • Connect the dots • From “need to know” to “need to share” • Patriot Act 2001 (compare to 2000 proposal) • PNRs as US/EU focus – sharing more data • Self-regulatory efforts declined • FTC focus on “harm” only • Corporate focus primarily on the privacy policy

  5. Post-9/11 (continued) • Meanwhile • Institutionalization of the CPO role • Safe Harbor adoption • While US did little • Canada, Mexico & steady stream of others led to over 100 countries with comprehensive laws by 2012 …

  6. 2012 Privacy Laws Comprehensive Law Sectoral Law

  7. Compare 2012 with 1998 Privacy Laws Comprehensive Law Sectoral Law

  8. The Second Wave: Public Attention to Privacy and Cyber • Like the 90’s, press stories very prominent on privacy and cyber • See the IAPP Daily Dashboard – it’s long every day (11) • Press and private sector • WSJ and “what they know” series • Growth industry for privacy, data breach, cyber reporters

  9. The Second Wave – New Technologies by 2010 that Weren’t Prominent Post-9/11 • Social networks • Facebook not open to the public until 2006 • Mobile and smartphones • Location; new customer data to many companies • Online behavioral advertising • Huge slump after dot.com crash • Today, central to many business strategies • Cloud • Government access (Snowden) • Cyber-security/encryption/information sharing

  10. The Second Wave – New Technologies Emerging since 2010 • Internet of Things • Pervasive sensors reveal the limits of notice and choice • Big Data • Analytics of PII core to growing range of businesses • Challenges to de-identification when have so many data points • Discrimination and ethics as emerging major topic • Contrast with 1990’s web and E-commerce: • OBA is based on web surfing (in part) • Social networks, smartphones/location, cloud, IoT, Big Data – raise many different issues than B2C web surfing

  11. EU as a Driver of Change (Again) • Coming soon: General EU Data Protection Regulation • Right to be Forgotten • 2% of global revenues • Expanded jurisdiction • Expanding DPA enforcement/activity • Coming changes to Safe Harbor • And, it’s not just the EU • Global companies need a global strategy

  12. Second Wave: The Snowden Effect • Press and government surveillance (Snowden) • Created atmosphere for possible change • Competitive issue for US companies abroad • One response was President Obama’s Review Group on Intelligence & Communications Technology

  13. December 2013: The Situation Room

  14. Second Wave: More Reform than the Skeptics Predicted • USA Freedom Act and Review Group Recommendations • Section 215 order only with judicial approval and heightened standard (Rec 1) • End government storage of bulk telephone data and have records held in private sector, accessible only with a judicial order (Rec 5) • Similar limits on bulk collection: National Security Letters (Rec 2) • General rule limiting bulk collection (Rec 4) • Greater transparency by government about foreign intelligence orders (Rec 9 & 10) • Congressional approval of public interest advocates to represent privacy and civil liberties interests before the FISC (Rec 28) • Multiple executive branch reforms described in Swire March 2015 IAPP Privacy Perspectives

  15. Second Wave: Many US Government Privacy Initiatives • Obama administration • Privacy a big part of 2015 State of the Union • Information sharing bills havepassed the House • Data breach being seriously considered this year • New bill language for Consumer Privacy Bill of Rights • Student privacy (K-12): bipartisan • FTC: far beyond 2005 view of “harm” • Consent decrees in privacy: “comprehensive” programs • So many issues/workshops: OBA/DNT, Big Data (discrimination), IoT, data brokers, cross-device tracking • Cyber security (along with many other federal agencies) • Congress • Info sharing, data breach, drones, IoT, Big Data, wearable health devices, ECPA …

  16. Second Wave: The Private Sector • Self-regulation is back • Student privacy; online advertising; smart grid; mobile notices; beacons and retailers; connected cars; drones; IoT • CPO – far beyond drafting privacy policy & compliance • Benefits of data – monetization strategy • Cyber – big data and risk of big data breach • Your company’s data strategy • Compliance with current rules • Compliance with what is coming • Insight about where to position your company • Ethics, training beyond compliance

  17. Conclusion • A lot happened in the first wave of global privacy protection • With 9/11, less privacy change • But the second wave is on us now • Multiple, important emerging technologies that generate many issues beyond web surfing • I started talking about the second wave, and predicting legislative change, in 2012 • USA Freedom is one result • Be prepared for others • Organizations need a strategy to manage their data for business goals, consistent with both privacy and security

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