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

Connecticut Attorney General Releases Status Update on Data Privacy Act


by Gregory Sirico

Connecticut's attorney general recently released a report on the current status of the Data Privacy Act, focusing in on some keys areas of enforcement.

Animated woman's face with code scattered everywhere

IN PARTNERSHIP

Federal Trade Commission’s Proposal Sets Noncompete World on Fire: Justified Fears?


by David J. Carr

A recent FTC proposed rule that would bar noncompete agreements could have major impacts against the working class.

Blue maze walls and bright circles with small outline of person walking through

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"

How Do I Protect My Child From Online Predators?


by Kelly L. Frey Sr.

New technologies open up new ways for children to be exploited online. The Children’s Online Privacy Protection Act offers a solution.

What COPPA Means for Your Child

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

Trending Articles

Presenting The Best Lawyers in Australia™ 2025


by Best Lawyers

Best Lawyers is proud to present The Best Lawyers in Australia for 2025, marking the 17th consecutive year of Best Lawyers awards in Australia.

Australia flag over outline of country

Best Lawyers Expands 2024 Brazilian Awards


by Best Lawyers

Best Lawyers is honored to announce the 14th edition of The Best Lawyers in Brazil™ and the first edition of Best Lawyers: Ones to Watch in Brazil™.

Image of Brazil city and water from sky

The Best Lawyers in Mexico Celebrates a Milestone Year


by Best Lawyers

Best Lawyers is excited to announce the 15th edition of The Best Lawyers in Mexico™ and the second edition of Best Lawyers: Ones to Watch in Mexico™ for 2024.

Sky view of Mexico city scape

How Palworld Is Testing the Limits of Nintendo’s Legal Power


by Gregory Sirico

Many are calling the new game Palworld “Pokémon GO with guns,” noting the games striking similarities. Experts speculate how Nintendo could take legal action.

Animated figures with guns stand on top of creatures

How To Find A Pro Bono Lawyer


by Best Lawyers

Best Lawyers dives into the vital role pro bono lawyers play in ensuring access to justice for all and the transformative impact they have on communities.

Hands joined around a table with phone, paper, pen and glasses

Announcing The Best Lawyers in New Zealand™ 2025 Awards


by Best Lawyers

Best Lawyers is announcing the 16th edition of The Best Lawyers in New Zealand for 2025, including individual Best Lawyers and "Lawyer of the Year" awards.

New Zealand flag over image of country outline

Presenting the 2024 Best Lawyers Family Law Legal Guide


by Best Lawyers

The 2024 Best Lawyers Family Law Legal Guide is now live and includes recognitions for all Best Lawyers family law awards. Read below and explore the legal guide.

Man entering home and hugging two children in doorway

Announcing The Best Lawyers in Japan™ 2025


by Best Lawyers

For a milestone 15th edition, Best Lawyers is proud to announce The Best Lawyers in Japan.

Japan flag over outline of country

The Best Lawyers in Singapore™ 2025 Edition


by Best Lawyers

For 2025, Best Lawyers presents the most esteemed awards for lawyers and law firms in Singapore.

Singapore flag over outline of country

Canada Makes First Foray Into AI Regulation


by Sara Collin

As Artificial Intelligence continues to rise in use and popularity, many countries are working to ensure proper regulation. Canada has just made its first foray into AI regulation.

People standing in front of large, green pixelated image of buildings

Commingling Assets


by Tamires M. Oliveira

Commingling alone does not automatically turn an otherwise immune asset into an asset subject to marital distribution as explained by one family law lawyer.

Toy house and figure of married couple standing on stacks of coins

How Much Is a Lawyer Consultation Fee?


by Best Lawyers

Best Lawyers breaks down the key differences between consultation and retainer fees when hiring an attorney, a crucial first step in the legal process.

Client consulting with lawyer wearing a suit

The Hague Convention and International Custody Battles


by Alexandra Goldstein

One family law lawyer explains how Joe Jonas and Sophie Turner’s celebrity divorce brings The Hague Convention treaty and international child custody battles into the spotlight.

Man and woman celebrities wearing black and standing for photo

Presenting the 2024 Best Lawyers Employment and Workers’ Compensation Legal Guide


by Best Lawyers

The 2024 Best Lawyers Employment and Workers' Compensation Legal Guide provides exclusive access to all Best Lawyers awards in related practice areas. Read below and explore the legal guide.

Illustration of several men and women in shades of orange and teal

New York Passes 9/11 Notice Act


by Gregory Sirico

Best Lawyers highlights the newly enacted 9/11 Notice Act, which seeks to find individuals eligible for medical care coverage under different federal programs.

Firefighter stands with their back turned with flames in the background

Filing For Divorce in North Carolina


by Melody J. King

Family law lawyer Melody King answers some of the most important questions individuals may have about filing for divorce in North Carolina.

Illustration of man and woman on paper that has been torn apart