It is sad to say goodbye to ConcurringOpinions.com, 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.
12/13/18 Update: Here is the video from the session described below.
On Wednesday, December 12, 2018, I’ll be speaking at the Data Security hearing, part of the FTC Hearings on Competition and Consumer Protection in the 21st Century. My panel begins at 1:00 PM:
The U.S. Approach to Consumer Data Security
Wednesday, December 12, 2018 from 1:00 PM to 2:30 PM
Center for Democracy & Technology
Daniel J. Solove
George Washington University Law School
University of Pittsburgh
Perkins Coie LLP
Lisa J. Sotto
Hunton Andrews Kurth LLP
Moderator: James Cooper
Federal Trade Commission, Bureau of Consumer Protection
I previously spoke at an earlier hearing in this series back in September on a panel about consumer privacy protection (video / transcript). The upcoming hearing focuses on data security.
In the annals of what must be one of the most ridiculous data security incidents, a law firm employee sent a client file on an unencrypted thumb drive in the mail. The file contained Social Security information and other financial data.
The envelope arrived without the USB drive. The firm contacted the post office.
What happened next is most bizarre. Here’s an excerpt from the law firm’s letter notifying the state attorney general:
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.
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.”