It is sad to say goodbye to Concurring Opinions, a law professor blog I co-founded in 2005. The blog began when a group of us (Dave Hoffman, Kaimi Wenger, Nate Oman, and me) who were blogging at PrawfsBlawg decided we wanted more autonomy in blog governance, so we founded Concurring Opinions. Over the years, we added many great permabloggers: Danielle Citron, Deven Desai, Frank Pasquale, Gerard Magliocca, Ronald K.L. Collins, Larry Cunningham, Naomi Cahn, Sarah Waldeck, Solangel Maldonado, Corey Yung, Jaya Ramji-Nogales, and others.
All posts in Data Privacy
Cybersecurity litigation is currently at a crossroads. Courts have struggled in these cases, coming out in wildly inconsistent ways about whether a data breach causes harm. Although the litigation landscape is uncertain, there are some near certainties about cybersecurity generally: There will be many data breaches, and they will be terrible and costly. We thus have seen the rise of cybersecurity insurance to address this emergent and troublesome risk vector.
I am delighted to be interviewing Kimberly Horn, who is the Global Focus Group Leader for Cyber Claims at Beazley. Kim has significant experience in data privacy and cyber security matters, including guiding insureds through immediate and comprehensive responses to data breaches and network intrusions. She also has extensive experience managing class action litigation, regulatory investigations, and PCI negotiations arising out of privacy breaches.
One of the biggest challenges for organizations is locating all the personal data they have. This task must be done, however, to comply with the General Data Protection Regulation (GDPR) and other privacy laws. Moreover, the GDPR and the new California Consumer Privacy Act provide that individuals have rights regarding their data. These rights often require that organizations must keep records of individual privacy preferences regarding their data.
I had the opportunity to interview Dimitri Sirota about these issues. Dimitri is the CEO and co-founder of one of the first enterprise privacy management platforms, BigID, and a privacy and identity expert.
In the period of just a week, California passed a bold new privacy law — the California Consumer Privacy Act of 2018. This law was hurried through the legislative process to avoid a proposed ballot initiative with the same name. The ballot initiative was the creation of Alastair Mactaggart, a real estate developer who spent millions to bring the initiative to the ballot. Mactaggart indicated that he would withdraw the initiative if the legislature were to pass a similar law, and this is what prompted the rush to pass the new Act, as the deadline to withdraw the initiative was looming.
The text of the California Consumer Privacy Act is here. The law becomes effective on January 1, 2020.
There are others who summarize the law extensively, so I will avoid duplicating those efforts. Instead, I will highlight a few aspects of the law that I find to be notable:
(1) The Act creates greater transparency about the personal information businesses collect, use, and share.
(2) The Act provides consumers with a right to opt out of the sale of personal information to third parties and it attempts to restrict penalizing people who exercise this right. Businesses can’t deny goods or services or charge different prices by discounting those who don’t opt out or provide a “different level or quality of goods or services to the consumer.” However, businesses can do these things if they are “reasonably related to the value provided to the consumer by the consumer’s data.” This is a potentially large exception depending upon how it is interpreted.
(3) The Act allows businesses to “offer financial incentives, including payments to consumers as compensation,” for collecting and selling their personal information. Financial incentive practices cannot be “unjust, unreasonable, coercive, or usurious in nature.” I wonder whether this provision will undercut the restriction on offering different pricing or levels of service in exchange for people allowing for the collection and sale of their information. Through some clever adjustments, businesses that were enticing consumers to allow the collection and sale of their personal data through different prices or discounts can now restructure these into “financial incentives.”
Recently published by Cambridge University Press, Re-Engineering Humanity explores how artificial intelligence, automated decisionmaking, the increasing use of Big Data are shaping the future of humanity. This excellent interdisciplinary book is co-authored by Professors Evan Selinger and Brett Frischmann, and it critically examines three interrelated questions. Under what circumstances can using technology make us more like simple machines than actualized human beings? Why does the diminution of our human potential matter? What will it take to build a high-tech future that human beings can flourish in? This is a book that will make you think about technology in a new and provocative way.
Hot off the press is Professor Woodrow Hartzog’s new book, Privacy’s Blueprint: The Battle to Control the Design of New Technologies (Harvard Univ. Press 2018). This is a fascinating and engaging book about a very important and controversial topic: Should privacy law regulate technological design?
Every year, we hear about how climate change is worsening. It seems the same story is happening with data security. Last year was the worst year in recorded data breach history. More than 5,200 breaches were reported in 2017, with more than 7.8 billion records compromised. By comparison, there are 7.6 billion people on Earth, so 2017 saw the number of records compromised surpass the total world population. Previously, 2016 was the record-holder with 6.3 billion records compromised. Are there any records left that haven’t been compromised?
Major breaches and security incidents included the enormous Equifax breach of 145 million records, the Uber breach, and the NSA leaked tools, which spawned WannaCry and other niceties. Click here for a collection of summaries of some of the more notable breaches of 2017.
In this post, I provide a brief overview of my scholarship last year.
I co-authored Risk and Anxiety: A Theory of Data Breach Harms with Professor Daniel Keats Citron. The piece is forthcoming in Texas Law Review this year. Even though there continues to be a steady flow of data breaches, there remains significant confusion in the courts around the issue of harm. Courts struggle with data breach harms because they are intangible, risk-oriented, and diffuse. Professor Citron and I argue: “Despite the intangible nature of these injuries, data breaches inflict real compensable injuries. Data breaches raise significant public concern and legislative activity. Would all this concern and activity exist if there were no harm? Why would more than 90% of the states pass data-breach notification laws in the past decade if breaches did not cause harm?” We provide examples of different types of data breaches and discuss whether harm should be recognized. We argue that there are many instances where we would find harm that the majority of courts today would not.
Download Risk and Anxiety: A Theory of Data Breach Harms for free.
The General Data Protection Regulation (GDPR) is one of the world’s strictest data privacy laws and requires privacy professionals around the globe to design and implement comprehensive compliance programs. In the past year, I developed a series of resources and training courses to assist privacy professionals with this complex task.
200+ pages of the GDPR summarized into 1 page! Download it for free here. This one page visual summary of GDPR will help you and your workforce understand many of the key elements associated with this law including Territorial Scope, Lawful Processing, Rights of Data Subjects, Enforcement and more.
I created a new highly-interactive version of the GDPR Whiteboard (~5 mins) — a computer-based module that can readily be used on internal websites to raise awareness and teach basic information about GDPR. It can also be used in a learning management system (LMS)
The GDPR Interactive Whiteboard adds a new level of engagement to the analog GDPR Whiteboard. and can be used in tandem with the analog version or in lieu of it.
A Guide to GDPR Training will answer many of your questions about implementing workforce privacy awareness training.
The GDPR mandates that all staff “involved in the processing operations” receive privacy awareness training. In general, the Data Protection Officer (DPO) is tasked with ensuring that all training requirements have been fulfilled. A comprehensive GDPR training program should include:
- basic privacy awareness training for your general workforce
- advanced training for personnel who need more detailed knowledge of GDPR
- role-based training specific to an individual’s job function.
I have several training courses to help organizations meet the GDPR requirements, such as the ones below plus courses on Privacy by Design, vendor management, risk and trust, and other important privacy topics.
This course provides an overview of the GDPR. It also explains the importance of GDPR compliance and the severe penalties that may be imposed for non-compliance. It is suitable for both lawyers and non-lawyers . This course can also be offered in conjunction with other courses in our series – Privacy Shield and European Union Privacy Law.
Data Controllers and Data Processors
Rights and Responsibilities
International Data Transfer
- Rights and Responsibilities
Purpose Specification and Minimization
Right to Erasure
Right to Data Portability
Data Protection by Design
Data Protection Impact Assessments
Record of Data Processing Activities
Data Breach Notification
- International Data Transfer
This course (~20 minutes or 30 minutes) is designed to provide basic privacy awareness to the workforce of global organizations. I updated this program for GDPR. The course focuses on three main issues:
- Why is privacy important?
- What is personal data?
- How do we protect privacy?
- The Purpose of this Training
People Care About Privacy
- Why We Protect Personal Data
- What is Personal Data?
Identifying Personal Data or PII
- Data Collection
Data Collection Limitation
- Data Handling and Processing
- Use of Personal Data
- Individual Knowledge and Participation
Access and Correction
Right to Erasure
Right to Data Portability
- Transfer and Sharing of Data
International Transfers of Data
Sharing Data with Third Parties
Privacy by Design
Ask the Privacy Office
Please check out our humorous 1-minute video vignette about the GDPR.
The clock is ticking on getting ready to comply with the EU General Data Protection Regulation (GDPR). EU regulators will start enforcing it on May 25, 2018.
GDPR is less than a year away, and it’s quite a challenge to get ready for. Becoming compliant is not something that can be achieved overnight, or in a week, or in a month, or even in quarter. A lot of privacy and security controls must be put into place or adapted to satisfy new EU standards and rights.