In his last week in the Office, President Obama issued a report on data privacy and cybersecurity, “Privacy in Our Digital Lives: Protecting Individuals and Promoting Innovation” (January 2017). The report serves as a high-level overview on how people’s interaction with technology has changed in the last several years and what the government has done to protect individual privacy while advancing economy and national security. The report also highlighted the path forward. Many of the initiatives currently in the works or yet to come will require strong cooperation between the government and the private sector.
Some of the data-privacy highlights pointed out in the report are:
- Financial Privacy. The BuySecure Initiative announced by President Obama in 2014, which encouraged the deployment of new security technology (e.g., chip-and-PIN cards) for payments made in the United States.
- Broadband Privacy. New rules approved by the Federal Communications Commission (FCC) that give consumers more control over how Internet Service Providers (ISPs) use their data, requiring ISPs to obtain user consent before sharing sensitive information they collect with advertisers and other third parties.
- Drone Privacy. Six Federal entities that use government-operated drones – the Departments of Defense, Homeland Security, the Interior, Justice and Transportation, and the National Aeronautics and Space Administration – have put in place privacy policies for their use of drones pursuant to President Obama’s 2015 Presidential Memorandum on safeguarding privacy in domestic use of unmanned aircraft systems.
- Children’s Privacy. The Children’s Online Privacy Protection Act (COPPA), enacted in 1998, was modernized in 2012 to address changes in technology and better protect online privacy of children under the age of 13.
- Student Privacy. President Obama’s Student Privacy Pledge has been signed by over 250 companies, including some of the Nation’s largest, that have agreed to limit collection and sharing of student data.
- International Commercial Privacy. The Obama Administration has undertaken a big task of putting in place the EU-U.S. Privacy Shield framework, which involved months of drafting and negotiations with the EU authorities. The Privacy Shield’s provision of comprehensive privacy protections, backed by FTC enforcement, was key to ensure that cross-border commercial data transfers continued after the invalidation of Safe Harbor.
- Legislative Reforms. In 2015, President Obama signed into law the USA Freedom Act, which ended the U.S. Intelligence Community’s collection of bulk telephony metadata under the USA Patriot Act. The USA Freedom Act creates a more targeted approach whereby the government would generally require judicial permission to access call records held by telecommunications providers.
The Report also included “Areas for Further Attention,” which the Obama Administration hoped the new Administration would focus upon. These Areas are as follows:
- Technology will pose new consumer privacy and security challenges. The Report calls for companies to begin “baking in” privacy into their products (what the Europeans call “privacy by design”).
- The digital economy is making privacy a global value. The Report calls for free and open global Internet where privacy rights are protected and commercial interests are advanced, rather than met with a host of barriers to information flows in the international marketplace, such as localization requirements, market access limitations, and censorship.
- Consumers’ voices are being heard – and must continue to be heard – in the regulatory process. Privacy will continue being an increasing concern for law and policymakers, U.S. companies, and American citizens, who have been actively petitioning the government to protect consumer rights.
- The Federal Government benefits from hiring more privacy professionals. The Report recognizes that technology will continue impacting all sectors of our economy and the government will need to have staff familiar with privacy issues in order to properly deploy the full benefits of technological innovation while ensuring that the government continues to respect the privacy of the citizens.
- Transparency is vital for earning and retaining public trust. Increased public trust that personal information is being used appropriately and responsibly will help our economy to continue to grow. In the coming years, the government also will need to continue developing the balance between ensuring national security while protecting the right to privacy.
- Privacy is a bipartisan issue. Both major political parties will need to work together to create strong privacy policies for increased individual security.
The Report succinctly summarized the main recent advancements in data privacy and provided important foresight for the areas that will need continued attention and work in the coming years. It will be interesting to see which of these areas the Trump Administration, including Thomas Bossert, the new Assistant to the President for Homeland Security and Counterterrorism, and cybersecurity adviser Rudi Giuliani, will focus on at the beginning of President Trump’s term.