The Federal Trade Commission (FTC) recently published a paper recapping its December 2017 Informational Injury Workshop. Workshop participants, including academics, industry experts, consumer advocates, and government researchers, discussed what types of consumer harm might qualify as “substantial injury” under the FTC Act and what factors should be considered. The paper noted that several important points emerged from the workshop.
Territoriality will continue to be one of the most vexing problems for data regulation in 2018. One aspect of this debate relates to whether a U.S. judge can compel the disclosure of personal data located in Europe without using international treaty mechanisms. This issue is currently being considered by the United States Supreme Court in the case United States v. Microsoft. The case involves the question of whether a U.S. statute relating to search warrants can be interpreted as extending to a search for data located outside the United States; in this case, the data is located in Ireland. The U.S. Court of Appeals found that, in the absence of express wording in the statute relating to extraterritorial application, the statute should be interpreted as being limited to searches conducted within the territory of the United States. The Supreme Court is currently reviewing the case. In December, 2017, the European Commission filed an amicus brief urging the Supreme Court to give due consideration to the principles of international comity and territoriality when interpreting the U.S. statute.
A Scottish council has been required to provide data indicating whether it pays traditionally “male” jobs more than traditionally “female” roles, after the Supreme Court rejected its argument that Data Protection legislation prevented disclosure. The case provides clarification on what is meant by the requirement that disclosure, and other forms of data processing, be “necessary” for the purposes of a legitimate interest.