The Past, Present, and Future of Data Privacy

It is always important to remember that our world is largely the result of fortunate accidents.

Data Privacy
Kelly L. Frey Sr.

Kelly L. Frey Sr.

June 26, 2017 02:25 PM

It is always important to remember that our world is largely the result of fortunate accidents.

The oxygenated world in which complex life could evolve didn’t occur until halfway through Earth’s recorded history (and was merely a consequence, a waste product, of the conversion of sunlight into food for cyanobacteria through photosynthesis). Mammals didn’t thrive until the great Chicxulub impact created an extinction event for the dominant creatures (dinosaurs), allowing our smaller, hairy ancestors to diversify and increase in size. And man’s very existence was so tenuous that mitochondrial DNA analysis suggests that all current human beings now on Earth are descended from one maternal lineage.

And so it is with the world of data and privacy. Our digital world was not architected or designed (and certainly not designed for privacy)—it developed as a result of a series of fortunate accidents and synergies. From the first discussions of redundant communication infrastructure designed for the Cold War in the late 1960s that evolved into the Internet, to the proliferation of personal computers in the 1980s as entertainment/personal service devices that eventually spawned HTML-based web browser communication, to the set of satellite based mass/cellular communication that eventually connected the now pervasive mobile/digital devices that began appearing in the 2000s.

We are now faced with the same dilemma as the creators of the atom bomb: What do we do with what we have created? The obvious answer is that we use it. The problematic question is how.

While security breaches that reveal personally identifiable information of millions of people make headlines (and generate the type of belated and ineffective legal protections that provide “notice but no practical remedy”), our more valuable assets—our privacy and ability to remain anonymous—are rapidly vanishing.

Every two days we create as much information as we did from the dawn of civilization until 2003: over 2.5 quintillion bytes (to give some context, it would take over 200,000 years for just one quintillion gallons of water to flow over Niagara Falls). Many create daily digital footprints through their digital devices of every place they go, every person they communicate with, every item they buy, and every cause they support. Not intentionally, mind you, but all as a consequence of using a cell phone with GPS, not using cash, and opting for virtual/digital communications. And big brother—or at least big data—is watching and archiving everything.

The legal and commercial response to this environment (as it is with most revolutionary technology) is too little, too late. We have some minimal state and federal protection schemes for the most abused personal information (our name and financial information) and a slightly higher regulatory framework for financial and medical institutions/information and children. But more recently, we have an administration opposed to even the most basic Internet privacy rules. Similarly, after over a decade of pervasive digital identities, we are still talking about “passwords” (which are usually too weak), embedded digital devices in the Internet of things that lack any security, and a new generation raised on the Amazon/Facebook premise that readily choose convenience over privacy (and systematically give up control of our digital identities in the name of commerce and social discourse).

What makes this situation more practically problematic is that there is relatively little protection of the most pervasive digital fingerprint we leave: our cell phone number! Data aggregators can not only track what you do and where you are, but relate that information to the quintillion bytes of commercial and personal activity that can be cross-referenced with that number since it’s freely shared across all environments in which we exist.

Lawyers need to be concerned and engaged in this discourse.

First, we need to expect more. We need to expect that the government will establish not only schemas that protect and guarantee our most fundamental privacy rights (including the right to be anonymous and forgotten), but also govern those entities that consumers cannot, i.e., the huge data aggregators and mass merchants that can prey upon the individual and have an economic incentive to do so. We need to expect businesses to incorporate sufficient security in every digital device to protect its integrity and allow upgrades as new threats are detected, whether that is a “kill switch” in an iPhone that gets misplaced, a chip in an intelligent doll, or the computer in a smart car that determines when it brakes. We need to move from proxies such as passwords to more robust authentication and verification schemas based upon who we are, not what we possess.

Second, we need to anticipate more. We as a society have allowed the happenstance of the digital environment to develop as a fortunate accident. With the advent of true artificial intelligence, we need to become purposeful in integrating controls with capabilities. And with the intrusion of digital-assist devices in inherently dangerous instruments like cars, airplanes, traffic controls, and power grids, we need to become mindful that any transitional technology is inherently flawed and that the goal is not merely efficiency gains but ultimately safety and practical benefit. We should “vote with our dollars” only for technology that assures us of both.

Lastly, we need to reflect more. As the amount, granularity, and personal intrusion capable with digital data increase logarithmically, we need to understand that these new capabilities allow us to be both less and at the same time more, and that is a choice each of us should be able to personally make. Perhaps that choice is based upon what we legislate and what our societal conscience dictates. But it could also be based on economics, or merely accident.

My voice, as is the voice of most lawyers, is one of reason. Verify us, and with that, create a future where privacy remains a constitutional, alienable human right and is protectable regardless of how such protection is created and maintained. As lawyers, we have that duty and privilege

Related Articles

My Data My Rules: An Overview of Data Protection in Brazil

by Fábio Pereira

My Data My Rules

Privacy Practice

by Casey Waughn

Data protection is all the rage among tech companies and state, national (and even transnational) governments alike. Is it a passing fad or here to stay? And how should businesses and groups of all sizes handle compliance with a blizzard of new laws?

Data Protection Prompt New Privacy Laws

Recent Developments on Privacy and Data Protection in Brazil

by Ricardo Barretto Ferreira da Silva and Camila Taliberti Ribeiro da Silva

A change of paradigm is urgent and requires a robust legislation on personal data protection.

Privacy and Data Protection Brazil

Trending Top Five: Critical Corporate Components for 2022

by Justin Smulison

It’s no longer “business as usual” for most of Corporate America. With a growing list of challenges facing the legal and financial health of many companies, we talked to several major General Counsel about the biggest areas in which businesses should remain vigilant.

Corporate Advice From General Counsel

Current State of EU to U.S. Data Transfers

by Gregory Sirico

The Biden Administration and European Commission recently came to a principle political agreement concerning the ever-changing future of EU to U.S. data transfers.

New Framework for EU and U.S. Data Transfers

Announcing the 7th Annual Women in the Law Publication

by Best Lawyers

The 7th Annual Women in the Law publication is a celebration of all the female legal talent across the country, honoring every woman listed in The Best Lawyers in America and Best Lawyers: Ones to Watch in America.

Honoring Female Lawyers in the United States

New England States With Incoming Legislation

by Gregory Sirico

Best Lawyers takes an in depth look at newly proposed bills, litigation and cases coming out of four New England states.

New England Laws Taking Effect in 2022

How Does Your Firm Measure Up?

by Best Lawyers

BL Intelligence provides your firm with valuable industry data.

Best Lawyers 27th Edition Stats

A Sea Change on Land

by Linda A. Klein and Suneel Gupta

Autonomous vehicles will revolutionize almost every area of the law. Here’s a look at what’s rapidly approaching.

Legal Considerations for Autonomous Vehicles

A Startup Accelerator Program Sets Cuatrecasas Apart

by Best Lawyers

Miguel de Almada and Frederico Bettencourt Ferreira from the Portuguese firm discuss their 2019 "Law Firm of the Year" award for Litigation and Arbitration.

Cuatrecasas "Law Firm of the Year"

2019 Women in the Law at a Glance

by Best Lawyers

2019 "Women in the Law" by the numbers.

What Practices Grew the Most in 2019?

Bringing Cloud Liability Down to Earth

by Jim Steinberg and Lance McCord

Unlike most traditionally licensed software, cloud solutions also put the customer at risk by transmitting, storing, and processing the customer’s data outside of the customer’s networks.

Cloud Liability

The European Regulation on Data Protection and Brexit

by Anna Viladàs Jené

After many years of negotiations, on 27 April 2016, the European Regulation concerning the protection of individuals in respect of the processing of personal data and the free movement of this data (hereafter, “the Regulation”), has finally seen the light of day.

Brexit Data Protection

Trending Articles

The Real Camille: An Interview with Johnny Depp’s Lawyer Camille Vasquez

by Rebecca Blackwell

Camille Vasquez, a young lawyer at Brown Rudnick, sat down with Best Lawyers CEO Phillip Greer to talk about her distinguished career, recently being named partner and what comes next for her.

Camille Vasquez in office

Announcing the 2022 Best Lawyers® in the United States

by Best Lawyers

The results include an elite field of top lawyers listed in the 28th Edition of The Best Lawyers in America® and in the 2nd Edition of Best Lawyers: Ones to Watch in America for 2022.

2022 Best Lawyers Listings for United States

Famous Songs Unprotected by Copyright Could Mean Royalties for Some

by Michael B. Fein

A guide to navigating copyright claims on famous songs.

Can I Sing "Happy Birthday" in Public?

Best Lawyers: Ones to Watch – The Future of Legal Talent Looks Bright

by Justin Smulison

Best Lawyers: Ones to Watch is launching its second edition in the United States, and after talking with both a company leader and esteemed lawyers on the list, the importance of this prestigious list is evident.

Best Lawyers: Ones to Watch in America 2022

Johnny Depp and Amber Heard: The Best Lawyers Honorees Behind the Litigation

by Gregory Sirico

Best Lawyers takes a look at the recognized legal talent representing Johnny Depp and Amber Heard in their ongoing defamation trial.

Lawyers for Johnny Depp and Amber Heard

Why Cariola Díez Pérez-Cotapos Developed Its Own Legal Tech

by Best Lawyers

Juan Pablo Matus of Cariola Díez Pérez-Cotapos, 2019 "Law Firm of the Year" award for Corporate and M&A Law in Chile, discusses his firm's joint venture with Cognitiva in creating Lexnova, a legal AI system.

Cariola Díez Pérez-Cotapos Interview

Choosing a Title Company: What a Seller Should Expect

by Roy D. Oppenheim

When it comes to choosing a title company, how much power exactly does a seller have?

Choosing the Title Company As Seller

Announcing the 2022 "Best Law Firms" Rankings

by Best Lawyers

The 2022 “Best Law Firms” publication includes all “Law Firm of the Year” recipients, national and metro Tier 1 ranked firms and editorial from thought leaders in the legal industry.

The 2022 Best Law Firms Awards

Announcing the 2022 Best Lawyers in Canada™

by Best Lawyers

The results include an elite field of top lawyers listed in the 16th Edition of The Best Lawyers in Canada™ and 1st Edition of Best Lawyers: Ones to Watch in Canada.

Announcing the 2022 Best Lawyers in Canada™

Education by Trial: Cultivating Legal Expertise in the Courtroom

by Margo Pierce

The intricacies of complex lawsuits require extensive knowledge of the legal precedent. But they also demand a high level of skill in every discipline needed to succeed at trial, such as analyzing technical reports and deposing expert witnesses.

Cultivating Legal Expertise in the Courtroom

Announcing The Best Lawyers in France™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms from France.

Blue, white and red strips

Wage and Overtime Laws for Truck Drivers

by Greg Mansell

For truck drivers nationwide, underpayment and overtime violations are just the beginning of a long list of problems. Below we explore the wages you are entitled to but may not be receiving.

Truck Driver Wage and Overtime Laws in the US

Caffeine Overload and DUI Tests

by Daniel Taylor

While it might come as a surprise, the over-consumption of caffeine could trigger a false positive on a breathalyzer test.

Can Caffeine Cause You to Fail DUI Test?

Announcing the 2022 Best Lawyers™ in Australia

by Best Lawyers

The results include an elite field of top lawyers and firms.

Announcing the 2022 Best Lawyers™ in Australi

Announcing The Best Lawyers in Australia™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms from Australia.

The Best Lawyers in Australia™ 2023

Announcing The Best Lawyers in The United Kingdom™ 2023

by Best Lawyers

The results include an elite field of top lawyers and firms from the United Kingdom.

The Best Lawyers in The United Kingdom 2023