Last month, privacy and security professionals from around the world gathered in Washington, D.C. for the International Association of Privacy Professionals’ Global Privacy Summit 2016. The conference focused on the new perspectives in privacy that welcome (back) the human element, the increasing role of governmental regulators in establishing and enforcing security and privacy practices, and new EU-centered developments in privacy that will likely have long lasting impacts through the industry.
We were there to take it all in, and offer these five key areas of emphasis and takeaways.
- The Role of the Regulator. Every year, the IAPP showcases regulators from the U.S. and abroad, to offer perspectives on privacy and security. This year there appeared to be even greater emphasis on the role of the regulator in shaping privacy and security through enforcement actions, examinations/audits, and their prominent role in establishing best practices in security. More than one-third of the approximately 80 full length panel presentations featured government agency representatives and regulators. Beyond the typical expected agencies (e.g., the Federal Trade Commission, Federal Communications Commission, various Attorneys General’s Offices, Department of Commerce, and the Department of Health and Human Services), representatives from non-traditional government agencies made notable appearances, including the U.S. Department of Transportation, the Consumer Financial Protection Bureau, Department of Education, Commodity Futures Trading Commission, and the City of Seattle. In a possible signal from these agencies that they intend to get more involved in cybersecurity and data privacy in 2016, they discussed a wide variety of new topics, including the connected devices and the internet of things, financial institution examinations, and encryption. Organizations, especially those that are in highly regulated industries, are well-counseled to take this as a sign that enforcement investigations and proceedings have not yet reached their high point.
- GDPR and European Privacy. Unsurprisingly, a number of sessions explored the forthcoming implementation of Europe’s GDPR – its General Data Protection Regulation. The GDPR will involve sweeping changes to Europe’s regulation of privacy and data protection, including extraterritorial applicability to any company that provides services to European residents, and potential fines of up to four percent (4%) of a company’s global gross revenue. Whereas sessions in years past focused on what GDPR may include, with its recent adoption by the European Parliament, much of the emphasis turned to practical advice (see our advice here) on beginning to prepare for GDPR, which will likely be enforced two years following adoption. Of particular concern to many was the reality that organizations with individuals in Europe—whether customers, employees, or others—it is crucial to consider how these new requirements will impact your company and prepare accordingly.
- EU Data Transfers, Privacy Shield, and Data Localization. Movement of data – whether across borders or oceans – continued to be an important topic of conversation, as it has been in many past years. Attendees and speakers focused on the details of the proposed Privacy Shield, which has been proposed to replace the invalidated EU-U.S. Safe Harbor Framework for transfers of personal information from the EU to the U.S. In a joint session with FTC Chairwoman Edith Ramirez and Chairwoman Isabelle Falque-Pierrotin of Europe’s Article 29 Working Party and President of CNIL (France’s data protection authority), the key question was whether U.S. company compliance with the Privacy Shield would be a long term solution for EU-U.S. data transfers? Not necessarily in Ms. Falque-Pierrotin’s view. Privacy Shield may not be sufficient under the GDPR, nor will it be a magic bullet for all types of data-transfers. Under this view, U.S. companies may have to continually reassess data transfers and change business practices in order to stay on top of evolving European regulator views of what is required for “adequate” protection of personal data.Other sessions explored growing data localization trends (such as in Russia and China) that restrict the removal of data. These rules pose some challenges to scaling businesses globally, companies that do business internationally should understand how existing and emerging restrictions on data transfers impact business models and processes so that they can develop appropriate data storage and transfer strategies. In Russia, for example, there are exceptions that would allow onward transfer of data outside of Russia.
- FCC Rulemaking. As with years past, the FCC was often at center stage, particularly in its prominence as a privacy and data protection regulator, particularly given the recently-issued Notice of Proposed Rulemaking (NPRM) that seeks to impose robust privacy and data protection obligations on broadband providers like cable companies and wireless carriers. In a highly-anticipated session, Travis LeBlanc, head of the FCC’s Enforcement Bureau, provided important insight into FCC objectives with the rulemaking, as well as motivations behind the increase in Bureau scrutiny of privacy practices in the communications sector. LeBlanc addressed the pros and cons of the Bureau addressing perceived privacy violations through enforcement actions vs. rulemaking procedures to clearly specify privacy obligations. He also shared that before bringing an enforcement action, the FCC always considers whether the conduct is “egregious” and considers the responsibility for vendor conduct (which is addressed in the NPRM). LeBlanc identified an increased focus on cable and satellite operator practices and Open Internet Order enforcement as top priorities for 2016. All internet service providers and those that do business with them may want to take the time to understand the broad and detailed proposed privacy regulations.
- Tracking and Digital Advertising. Interest based advertising, online tracking, and cross-device tracking were all topics of discussion at this year’s Summit. As the interest based advertising ecosystem remains complex with companies performing a variety of targeted-advertising roles, advertisers and website and application operators have to keep track of what information they use and share, and what the privacy considerations are, when working with service providers in these spaces. As tracking and targeting techniques innovate, both they and actors in the ecosystem have to evaluate how to address regulator guidance and interest, as well as industry codes and guidelines, which address topics like transparency of practices and individual choice and opt-out rights. For example, just last fall the FTC held a workshop on cross-device tracking and related privacy concerns, and an FTC attorney shared at the Summit that following the workshop, the FTC will continue to closely monitor cross-device tracking, work with the industry on developing best practices, and bring enforcement actions when it views practices to be unfair or deceptive. This area is expected to remain as a top privacy concern (and continued regulatory focus) for companies that track and advertise to customers and prospects online, and it is important to stay on top of the laws, industry codes, and company privacy commitments that apply to these practices.