Insight

What Is the Future of Data Protection?

One answer is that it’s bleak.

Future of Data Protection
Holly K. Towle

Holly K. Towle

June 26, 2017 02:58 PM

One answer is that it’s bleak.

A saving grace, however, is that certain current factors may increasingly lead to greater judicial application of traditional privacy laws even as data protection (DP) laws falter.

The Current Mess

In the U.S., there is a difference between privacy and data protection. Privacy values have long existed, such as in federal and state constitutions, common law torts, and a range of laws aimed at privacy as traditionally conceived, typically in regards to the right or value of avoiding disclosure of secret or intimate information about a human being.1 Essentially, that kind of privacy protects us from third parties butting into what is our business, not theirs. Traditional privacy laws, however, tend to not work well with non-private data (such as a name in the proverbial public telephone book).

Non-private data has become the province of DP laws. This started with the increase in data created by the Internet and its electronic format and connectivity, and then was further influenced by the data explosion from social media and open governmental datasets, etc. This enabled the current focus on big data and artificial intelligence, concepts that involve analysis of massive, diverse datasets to see what patterns emerge and what they might mean.2

In the early stages of DP, regulators such as the Federal Trade Commission (FTC) started bringing enforcement actions in the name of privacy, even though much of the data was not private. This created cognitive dissonance in the U.S. for businesses subject to the FTC’s jurisdiction.

  1. Businesses could not understand how non-private data that had been commonly collected and used for years was suddenly deemed and searched in vain for a new law expressly stating that.
  2. Instead, businesses were allegedly required to locate, comb through, and collate regulatory blogs, newsletters, guidance, etc. to determine their new compliance requirements.
  3. What they were able to find was not uniform and kept changing. For example, FTC staff views of protectable “personally identifying information” morphed to include non-personal information and then morphed to include data reasonably linkable to an individual or their devices, all in nonobvious announcements of the type not used for changes in law.
  4. Regulators barely mentioned First Amendment concepts that constitutionally protect the free flow of information, even though data can be a building block of free speech and knowledge advancement.3

Piled on top of the U.S. cognitive dissonance was (and is) the attempt by U.S. businesses to learn and comply with non-uniform DP laws globally, all in a context that increasingly includes regulatory infighting and creates a specter of compliance futility. This is further indication that some of these laws seem more aimed at trade competition and lucrative fines for regulators than feasible DP.

The current result for many businesses is “privacy fatigue.” They feel like the guinea pig on a wheel—it cannot run fast enough. The result for data subjects is as lamentable, but from the opposite perspective. Individuals seem to be experiencing “privacy futility” as their opt-outs fail to work or last, and the uneven patchwork of compliance allows their data to escape into the data sphere.

The Future

The bleak prospects of DP and the rise of big data analytics might, ironically, result in adapted applications of traditional privacy laws. It is hard to assert that use of a name from the public phone book violates privacy. It is much easier to assert that a detailed data profile on an individual can cross a privacy line even if each bit of data is, not itself, necessarily private. In a sense, big data and artificial intelligence have the ability to create more than the sum of their parts.

Profile creation or uses evolving from deception have the same capacity to cross lines, such as lines that might invoke privacy torts protecting against intruding on seclusion4 or casting an individual in a false light. The FTC has already indicated its views on how big data uses can run afoul of consumer protection, anti-discrimination, and fair lending or employment laws.5 One question is whether and the extent to which such uses might increasingly run afoul of true privacy laws.

The point that “privacy is dead, get over it,” may have been true in the early days of the Internet when regulators pretended non-private data was private. Such data was not really private in the first place, however, hence the development of DP. But big data and data profiling uses will test the legal foundations of DP, and some DP laws will fall to the First Amendment. At the same time, some uses of big data may cross privacy lines and give privacy a fresh chance to rise. In short, privacy might not be dead after all, even if DP laws falter.

-------------------

1 For more information about this legal foundation, see Chapter 12 of Towle and Nimmer, The Law of Electronic Commercial Transactions (2003–2017).
2 The results are not based on statistical sampling and include “garbage in, garbage out” concepts, i.e., results may or may not be relevant, misleading, or brilliant. “Ice cream does not cause summer” is a phrase sometimes used to illustrate the point: big data will reveal a pattern of ice cream references tied to summer, but that does not mean that ice cream causes or is necessary to summer.
3 See Sorrell v. IMS Health Inc., 131 S. Ct. 2653, 180 L. Ed. 2d 544 (2011).
4 See e.g., by analogy, In re Google Inc. Cookie Placement Consumer Privacy Litigation, 806 F.3d 125 (3d Cir. 2015). A company may commit intrusion upon seclusion by collecting information using duplicitous tactics—in the case, Google and several other advertising companies devised ways to evade cookie-blocking options in Safari’s browser while touting publicly that they respected their users’ choices about whether to take advantage of cookie-blocking technology.
5 See “Big Data a Tool for Inclusion or Exclusion? Understanding the Issues” (January 2016) at https://www.ftc.gov/system/files/documents/reports/big-data-tool-inclusion-or-exclusion-understandingissues/160106big-data-rpt.pdf.
6 Typically attributed to Sun Miocrosystems’ CEO, Scott McNealy, in 1999: “You have zero privacy anyway. Get over it.” See also http://www.computerworld.com/article/2585627/security0/mcnealy-calls-for-smart-cards-to-help-security.html.

Related Articles

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

The Future of Data Privacy: You Can Run but You Can’t Hide (or Can You?)


by Chad W. King

In Ernest Cline’s dystopian novel "Ready Player One," the world’s population is addicted to a virtual reality game called the OASIS.

The Future of Data Privacy

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


by Fábio Pereira

My Data My Rules

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

What Are the Anti-Protest Laws in the U.S.?


by Jim Owen

The First Amendment includes the right to assemble. But how are the rules surrounding protesting changing?

Anti-Protest Laws in the U.S.

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"

Internet Speech in the Crosshairs


by Ari Holtzblatt and Jamie Gorelick

Charges of anti-right bias notwithstanding, online platforms are on solid ground when they defend their policies and procedures as neutral and protected by the First Amendment.

Is Internet Speech Protected?

An Interview With Jean-Paul Jassy of Jassy Vick Carolan


by Best Lawyers

The 2019 "Lawyer of the Year" winner for First Amendment Law in Los Angeles speaks about his career highlights.

Meet the Attorney Who Represented Mark Boal

In the News Weekly Roundup: Los Angeles Times Wins First Amendment Fight


by Best Lawyers

A roundup of recent news of listed lawyers across the country.

Los Angeles Times Wins First Amendment Fight

Michael Baughman, Pennsylvania’s 2018 Lawyer of the Year in Media Law


by Abigail Rowe

An interview with Michael Baughman, who was recognized with the 2018 "Lawyer of the Year" award in media law.

Michael Baughman, Pennsylvania’s 2018 Lawyer

In the News: Georgia


by Nicole Ortiz

A summary of newsworthy content from Colorado lawyers and law firms.

In the News Georgia 2018

Trending Articles

Announcing the 2023 The Best Lawyers in America Honorees


by Best Lawyers

Only the top 5.3% of all practicing lawyers in the U.S. were selected by their peers for inclusion in the 29th edition of The Best Lawyers in America®.

Gold strings and dots connecting to form US map

Best Lawyers: Ones to Watch in America for 2023


by Best Lawyers

The third edition of Best Lawyers: Ones to Watch in America™ highlights the legal talent of lawyers who have been in practice less than 10 years.

Three arrows made of lines and dots on blue background

The Best Lawyers in South Africa™ 2023


by Best Lawyers

Best Lawyers proudly announces lawyers recognized in South Africa for 2023.

South African flag

Could Reign Supreme End with the Queen?


by Sara Collin

Canada is revisiting the notion of abolishing the monarchy after Queen Elizabeth II’s passing, but many Canadians and lawmakers are questioning if Canada could, should and would follow through.

Teacup on saucer over image of Queen's eye

IN PARTNERSHIP

2022: Another Banner Year


by John Fields

Block O’Toole & Murphy continues to secure some of New York’s highest results for personal injury matters.

Three men in business suits standing in office

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?

Announcing the 2023 The Best Lawyers in Canada Honorees


by Best Lawyers

The Best Lawyers in Canada™ is entering its 17th edition for 2023. We highlight the elite lawyers awarded this year.

Red map of Canada with white lines and dots

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

What the Courts Say About Recording in the Classroom


by Christina Henagen Peer and Peter Zawadski

Students and parents are increasingly asking to use audio devices to record what's being said in the classroom. But is it legal? A recent ruling offer gives the answer to a question confusing parents and administrators alike.

Is It Legal for Students to Record Teachers?

Thirteen Years of Excellence


by Best Lawyers

For the 13th consecutive year, “Best Law Firms” has awarded the most elite and talented law firms across the country through a thorough and trusted data review process.

Red, white and blue pipes and writing on black background

The Upcycle Conundrum


by Karen Kreider Gaunt

Laudable or litigious? What you need to know about potential copyright and trademark infringement when repurposing products.

Repurposed Products and Copyright Infringemen

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

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 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 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

Announcing The Best Lawyers in Germany™ 2023


by Best Lawyers

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

Black, red and yellow stripes