My fellow Hogan Lovells Privacy and Information Management practice leader, Marcy Wilder, and I are delegates to the eG8 Forum in Paris, where later today I will be a speaker at the session on privacy. CEOs of Google, Facebook, News Corporation and other Internet companies are participating in the Forum. G8 Chair President Sarkozy hopes the eG8 Forum — the prequel to the G8 gathering of world leaders starting tomorrow in Deauville, France — will lead to greater international cooperation in Internet governance. Skeptics fear that the Forum is a stalking horse for greater legal regulation of the Internet, as reported here. Nevertheless, the gathering has provided a remarkable opportunity for the sharing of ideas and perspectives on the future of the Internet.
Here are my prepared remarks for the privacy session at the eG8 Forum:
As the only privacy lawyer on today’s panel, I appreciate the opportunity to share my perspectives. As we all know, data is the raw material of our Information Age. But the scale and scope of data collection and use are accelerating in ways previously unimaginable. The Internet, mobile devices, and new forms of networked sensors are combining to produce more and more data that can be collected, analyzed, shared and stored. Thus, according to a new McKinsey study we heard about yesterday here at the eG8 Forum, we are entering the era of “big data,” the label for the vast and increasing amounts of digital information being produced every day.
The potential of big data, according to McKinsey, is more efficient and competitive businesses, a stronger world economy and better-served consumers, including with better health care services. The experts at McKinsey are concerned however that before the end of the decade, there will not be enough trained personnel to analyze all of the data.
They also note the issue of personal privacy, an issue underlying the growing concern about the amount of data being collected about our lives and used by businesses, often without our knowledge or consent. While not a focus of the McKinsey study on big data, the world leaders gathering soon in Deauville, France for the annual G8 Summit will be considering the issue of privacy as they address the agenda item on how best to advance the Internet. Presumably, they understand – as a US Commerce Department report recently noted – that if privacy concerns increase, trust in the Internet will decrease, creating an economic drag on the Internet’s potential.
The G8 leaders will be informed by our work. And I hope our discussion of Internet privacy will not divide on geographic lines, with representatives from the EU, which has an omnibus privacy law, expressing disdain for the American targeted approach to privacy protection, and those with a US orientation complaining about over-regulation of privacy. If that is how the discussion evolves, that will be too bad, for there is greater need than ever for global strategies to protect privacy, and countries on both sides of the Atlantic have much to learn from each other.
To be sure, the regional approaches to privacy protection differ even as we share a commitment to the OECD’s Fair Information Practice Principles. In the EU, the Data Protection Directive, implemented through national legislation, is an across-the-board regulation of personal data that places strict limits on the collection, use and retention of personal information. The US, by contrast, has chosen to legislate at the federal level with respect to sensitive data such as health, financial and children’s data, and to target enforcement on privacy violations through the regulatory powers of the Federal Trade Commission and state attorneys general. A number of states have stepped in, too, to regulate the collection, use and security of personal data. Nearly all of the states have data security breach notification laws to inform people when their personal data is at risk.
Privacy self-regulation by businesses and industry groups also is an American tradition, as more and more companies recognize that violations of privacy tarnishes brands and alienates consumers. As the privacy think tank I founded and co-chair, the Future of Privacy Forum, has noted, the recent initiative by industry to empower consumers to stop online tracking of their web activities by advertisers is an example of self-regulatory effort to protect privacy.
While the American approach to privacy may be untidy, in contrast to an omnibus law, a recent Berkeley study concluded that the combination of laws and increased attention by business to the importance of privacy has led to a notably more privacy-protective environment than existed in the 1990’s. And there is recognition in the US that more has to be done to protect privacy. A report from the Federal Trade Commission will be finalized soon on new approaches to privacy protection and legislators on Capitol Hill are focusing on privacy as never before.
Still, the EU takes the position that the US lacks “adequate protection” for the personal data of EU citizens and thus bans the cross-border transfer of such data to the US unless special legal undertakings are made by US businesses to receive the data.
In the US, with our First Amendment traditions, we have trouble understanding the justification for certain EU legal actions in the name of privacy, such as "super injunctions" preventing "tweets" naming litigants in civil actions, enforcement of the so-called “right to be forgotten” against a search engine merely for linking to an unflattering article about someone on the Web. Nor do we understand how a Google executive can be convicted criminally for a random posting by a YouTube user that was said to violate personal privacy.
Despite these differences, there is an emerging consensus on both sides of the Atlantic that people are entitled to greater privacy protections. There is much that can be done cooperatively to advance such protections, like cooperation in cross-border enforcement against multi-national privacy violators, and the adoption of “Privacy by Design” as a standard to be followed by businesses at every stage in the development of new technologies.
In the era of big data, privacy is too important to be overshadowed by claims of legal framework superiority. The eG8 and G8 are good places to sound the chord of cooperation in the advancement of personal privacy.
I am pleased to be part of the discussion.