Privacy's Trajectory
As many of our readers know, the International Association of Privacy Professionals (IAPP) will celebrate 10 years this Tuesday, March 16. In connection with that anniversary, the IAPP is releasing a whitepaper, "A Call For Agility: The Next-Generation Privacy Professional," tomorrow, March 15. Monday morning you can find the whitepaper here. I am honored that the IAPP has given me the opportunity to read and blog about the whitepaper in advance of its official release. Where exactly is privacy going in today's environment? What is the role of the privacy professional over the next 10 years? And, a lot of people I know and love (you know who you are) would ask, what in the world is a privacy professional anyway?
Of late, I have found myself reiterating, and getting a lot of positive feedback for, the following proposition: with data (massive amounts of it) as the new currency, the explosion in outsourcing to "trusted partners," and the growth of legal risks associated with an ever-expanding body of privacy and data security regulation, the role for professionals who understand privacy is becoming increasingly important. Further, such professionals are uniquely positioned to bring together various key stakeholders in an organization, including Information Security, Legal, IT, and various business units. Why? Because privacy professionals are, by virtue of what they do, multidisciplinary. And the growing opportunities for such professionals are inextricably intertwined with that quality. The IAPP has summed this up succinctly, and eloquently in its whitepaper, as follows:
The next 10 years will see more types of data collected from more people, and more privacy laws in more places. A deepening and broadening of data protection regulations in the industrialized world will spread to emerging markets and place a higher premium on legal and compliance acumen. In addition, an expansion of health information networks, smart grid networks and cloud computing platforms will make industry and technology expertise a more indispensable part of practicing privacy.
. . . the privacy professional’s success in the next decade will demand greater adaptability and most importantly, agility. The agile privacy professional is the next-generation privacy professional: an expert practitioner who is keenly attuned to cultural and regional distinctions as these continue to grow in an increasingly interconnected data economy; who can migrate and adapt to different roles within an organization and offer value at each; who exhibits both comfort and grasp of legal/compliance and technical disciplines; and who instills direction and leadership of privacy management within the organization.
The following analysis and discussion of the IAPP's whitepaper is completely my own. I think that the paper raises some incredibly important points about the need for privacy professionals to lead the way for more effective information governance. As an outside lawyer (with my own unique perspective), my key takeaway is the following -- privacy professionals must understand law AND technology, and must facilitate dialogue between those two disciplines and as between those disciplines, on the one hand, and the business side, on the other.
The importance of a "privacy professional" understanding both legal and technical disciplines cannot be overstated:
The central role of regulatory and IT drivers shaping the privacy profession almost ensures an ongoing need for privacy professionals to be conversant in not one, but both of these disciplines.
Regulation and "Reasonable Security"
I believe this is largely due to what the IAPP describes in the whitepaper as the "Second Wave of Regulation," which began in approximately 2003 with California's landmark data breach notification legislation, Civil Code section 1798.82 (for private entities), often called SB 1386. On the heels of that came 44 additional such state laws, DC, Puerto Rico, the Virgin Islands, and now some similar European legislation, as discussed in the whitepaper. And, with the light now shining on security risks and failures within private organizations, additional security standards and legislation began to emerge - most notably, as highlighted by the IAPP, the Payment Card Industry (PCI) Data Security Standard (DSS) and laws such as Nevada's (SB 227) that incorporate that Standard. For more on that, see Dave's posts here, here and here. Further, as noted in the whitepaper,
A number of factors have spurred North American (and particularly American) organizations to dedicate more resources to privacy process improvement: most notably, PCI DSS enforcement, FTC enforcement, and data breach notification.
Not discussed in the IAPP whitepaper in depth, but just as important, a number of states have crafted legislation designed to require "reasonable" security or safeguards to address security risks in a more proactive fashion, as opposed to the traditional reactive breach notification approach. Massachusetts, Massachusetts M.G.L. c. 93H and 201 CMR §§ 17.00-17.05, is of course the most recent, most detailed, and most well known, but many states require the same "reasonable security" (sometimes for all personal information, sometimes for just Social Security numbers), including, but not limited to, California (Civ. Code §§ 1798.81, 1798.81.5, and 1798.85), Arkansas (Code Ann. §4-110-104(b)), Colorado (Rev. Stat. Ann. §6-1-713), Connecticut (HB 5658), Maryland (Com. Law Code Ann. § 14-3503), Nevada, as mentioned above (Rev. Stat. § 603A.210 and SB 227), Oregon (Rev. Stat. § 646A.622), Rhode Island (Stat. § 11-49.2-2), Texas (Bus. & Com. Code Ann §§ 48.102(a) and 521.001, .052, .151) Utah (Code Ann. § 13-44-201), and Washington (Rev. Code Ann. §19.215.020 to .030). There are more, I could go on.
What in the world is "reasonable security"? A privacy professional who understands the law and traditional notions of negligence, various concepts of privacy (Fair Information Practice Principles, etc.) as embodied in different standards and legislation around the world (from EU to Australia), and the evolution of information security (as a technical matter) is ideally positioned to help assess what "reasonable security" means and determine what will be compliant, what will be legally defensible, what will be best practice, and what will be just good business. And such a privacy professional can facilitate discussions among stakeholders that speak somewhat different languages in this regard to reach solutions that are acceptable to all involved.
From Privacy to Information Governance
As a lawyer, I am also extraordinarily pleased to see, in the IAPP's whitepaper, a reference to the new ediscovery rules that came into play in the latter half of the 2000s, most notably the amendments to the Federal Rules of Civil Procedure in 2006. What does privacy have to do with ediscovery? Everything. As noted in the IAPP's whitepaper, the amended rules "increased the need for organizations to conduct data inventories and implement data-retention policies." How do you protect sensitive data (personally identifiable information, trade secrets, IP, etc.)? You figure out where it is first. And thus, as the IAPP points out, we start to see the "privacy" role evolve into an information governance role.
Speaking of information governance, let's return to technology. States the IAPP: cloud computing will set the pace for the next decade:
One of the clear directions of technology in the past 10 years as it pertains to personal data has been more—more types of data collected from more people in more ways, and shared with more entities. The emergence of cloud computing—essentially a new computing paradigm in which data is stored off-premises and by a range of third parties—sets the pace for the next decade. Short of a wholesale social movement to opt out of information technology and “go dark,” the conveniences and commercial benefits of more data collection and sharing seem to point in the direction of more. People will not 'go dark,' we estimate, because the utility of sharing information will continue to well exceed the risks of doing so.
Thus, the IAPP stresses the need for agility and identifies five strategies for action:
(1) Redefine the privacy role [information governance]; (2) Rotate through departments/business units; (3) Develop multi-cultural literacy; (4) Understand legal and technical disciplines; and, (5) Instill direction and leadership.
Bottom line? Proactive, multidisciplinary solutions to information governance that incorporate information technology savvy and that address compliance, legal defensibility, and best practices, are now and will become increasingly crucial to any organization that handles sensitive data. Privacy professionals are well positioned to lead those efforts. Congratulations to the IAPP on its 10th anniversary! I look forward to the next 10 years.
Thoughts from the RSA Conference
As the partners of InfoLawGroup make our way through the sensory overload of the RSA Conference this week, I am reminded (and feel guilty) that it has been a while since I posted here. I have good excuses - have simply been too busy with work - but after spending several days in the thought-provoking environment that is RSA, I had to break down and write something. A few observations, from a lawyer's perspective, based on some pervasive themes:
- We all need to work together, and we can. Legal, Information Security, Privacy, Compliance, IT, and the affected business units. Now more than ever, it is essential that ALL the stakeholders join forces, as early as possible, to address security and privacy risks, assess and vet business deals, and put in place appropriate procedures - RFPs, due diligence, contract negotiation - to address the risks.
- Cloud, cloud, cloud, yada, yada, yada. Hold up - the technology is not new - but usage and the business model have changed dramatically. I have been having this argument with my information security and technology friends for months. OK, I get it. "Cloud" technology in some form or another has been around for 30 or 40 years. What is new is the massive scale, availability and changes in usage and the business model - in part driven by the economics. Guess what? Those business model changes make the legal risks even more pervasive. Going back to (1) above, all of the stakeholders need to be in the room (or on the phone or videoconference) discussing the issues BEFORE the decision is made to enter into a cloud arrangement. ANY cloud arrangement. Not after the RFP is issued. Not after IS does its due diligence. Not after the contract negotiations have begun. And not after the contract is inked. The same due diligence and attention to risks that would apply in a traditional outsourcing/offshoring relationship must be applied here, too. The cost savings are illusory if the short-term and/or long-term risks are significant. Think about the kind of data at issue. What are the risks? Evidence preservation, data security, breach response, enforcement rights, indemnification. And before we even get to those - can the data be transferred across borders in the first place? Think about it early. And then talk about it before decisions are made.
More after the jump.
- Privacy is the next frontier in Information Security. Wait, what? I have to admit that my initial reaction to this was - seriously? Privacy regulations have been here for some time. That's true, and the privacy profession has been growing for the last 10-15 years. But the privacy profession is in its infancy as compared to information security and IT. Why is the privacy profession growing? In part because the regulatory environment has exploded. But Information Security and Privacy care about the same thing -- data management and governance. We can help each other find creative solutions to mitigate risk.
- The regulatory scheme is becoming more complex, at breakneck speed. What regulations do information security professionals and the businesses they serve need to understand and address? Many - international, federal, state, and local. And things are changing constantly. Just this week the Massachusetts data security regulations became effective. And last week the FTC filed its notice of appeal of the District Court's ruling that the FTC cannot apply the Red Flags Rule to attorneys.
Information Security and Privacy, together with Legal, should consider all potentially applicable laws in evaluating security risks. What are those laws? Well, depending on your industry, and where your customers and employees reside, a few, but not all, might include FTCA, GLBA, HIPAA (including the HITECH Act), state data security laws (such as the new Massachusetts data security regulations and Nevada's encryption and PCI law), Sarbanes-Oxley, Red Flags Rule, FACTA Disposal Rule, ECPA, E-Sign, FERPA, the Federal Rules of Civil Procedure and Evidence, the PATRIOT Act, PIPEDA, the EU Data Protection Directive, EU member country laws, other foreign laws across the globe, state breach notification laws, and Social Security number protection statutes. But there are many more. And that's not even getting into contractual standards such as PCI-DSS.
- Lawyers need to embrace technology. I was fortunate enough to attend a CLE last week, pre-RSA, hosted by the Entertainment Law and Intellectual Property Section of the Los Angeles County Bar Association. Roland Trope, who moderated the panel on social networking issues, raised a tremendously important question: Are lawyers "competent" if they do not keep track of, and understand, changes in technology? The ABA is considering changes to the Model Rules of Professional Conduct to address this question. Some take the position that no changes are necessary and that the requirement can be read into the existing Rules. In any event, what better place than RSA to reflect on that question and the future of the legal profession and its relationship with technology.
That's it for now - back to work, and preparing for my next cloud presentation tomorrow. In the meantime, I encourage our readers - the lawyers, the information security professionals, and the privacy professionals - to weigh in.
