Privacy - GDPR for the US

You do not have the right to Privacy, at least not guaranteed by your constitution or by law. Years and years of application of the 4th amendment (unreasonable search and seizure) create a world of “reasonable expectation of privacy”. To give you an idea of how narrowly this is defined, in Smith v Maryland (1979) Supreme Court case, the dialing of digits on your telephone constituted consent to the telephone company to release your privacy. This decision is being applied over and over again in the digital age, but technology companies who use your data and information to enormous profit ($24 bil in Q2 2017 for Google alone). Recently the Amici Curiae, brief was prepared by 42 legal scholars to suggest that the times have changed and continued use of the Smith decision is problematic. I agree times 10. I have argued that we need to rebuild our right to privacy from the ground up with a constitutional amendment protecting privacy. The problem is two-fold, one that’s a hard thing to do. 2) James Comey speaking at a Boston Security conference on March 7th 2017 said “There is no such thing as privacy anymore in America”. Which indicates that the authorities (and the largest companies in the world) like their very long reach into your lives and your data.

Recently Europe has actually lead the way on privacy with GDPR (General Data Protection Regulation) which goes into effect in Europe on 25 May 2018. This new law effects any company around the world looking to do business with a European person. It is an excellent start to the rights of individuals in the digital age. I would advocate for something similar here in the US, but I expect the resistance to be substantial from the largest companies in the big data business, Amazon, Facebook, Google and now the ISPs. They have zero interest in your privacy, in fact if everyone went dark on these businesses, they would be hard pressed to exist. Here’s a summary of the key points that GDPR provides for the citizens of Europe:

The conditions for consent have been strengthened, and companies will no longer be able to use long illegible terms and conditions full of legalese, as the request for consent must be given in an intelligible and easily accessible form, with the purpose for data processing attached to that consent. Consent must be clear and distinguishable from other matters and provided in an intelligible and easily accessible form, using clear and plain language. It must be as easy to withdraw consent as it is to give it.

Data Subject Rights

Breach Notification

Under the GDPR, breach notification will become mandatory in all member states where a data breach is likely to “result in a risk for the rights and freedoms of individuals”. This must be done within 72 hours of first having become aware of the breach. Data processors will also be required to notify their customers, the controllers, “without undue delay” after first becoming aware of a data breach.

Right to Access
Part of the expanded rights of data subjects outlined by the GDPR is the right for data subjects to obtain from the data controller confirmation as to whether or not personal data concerning them is being processed, where and for what purpose. Further, the controller shall provide a copy of the personal data, free of charge, in an electronic fromat. This change is a dramatic shift to data transparency and empowerment of data subjects.

Right to be Forgotten
Also known as Data Erasure, the right to be forgotten entitles the data subject to have the data controller erase his/her personal data, cease further dissemination of the data, and potentially have third parties halt processing of the data. It should also be noted that this right requires controllers to compare the subjects’ rights to “the public interest in the availability of the data” when considering such requests. *personally I think this remains a weakness of the law as there is too much subjectivity

Data Portability
GDPR introduces data portability — the right for a data subject to receive the personal data concerning them, which they have previously provided in a ‘commonly use and machine readable format’ and have the right to transmit that data to another controller.

Privacy by Design
Privacy by design as a concept has existed for years now, but it is only just becoming part of a legal requirement with the GDPR. At it’s core, privacy by design calls for the inclusion of data protection from the onset of the designing of systems, rather than an addition. More specifically — ‘The controller shall..implement appropriate technical and organisational an effective way.. in order to meet the requirements of this Regulation and protect the rights of data subjects’. Article 23 calls for controllers to hold and process only the data absolutely necessary for the completion of its duties (data minimisation), as well as limiting the access to personal data to those needing to act out the processing.

Data Protection Officers
Currently, controllers are required to notify their data processing activities with local DPAs, which, for multinationals, can be a bureaucratic nightmare with most Member States having different notification requirements. Under GDPR it will not be necessary to submit notifications / registrations to each local DPA of data processing activities, nor will it be a requirement to notify / obtain approval for transfers based on the Model Contract Clauses (MCCs). Instead, there will be internal record keeping requirements, as further explained below, and DPO appointment will be mandatory only for those controllers and processors whose core activities consist of processing operations which require regular and systematic monitoring of data subjects on a large scale or of special categories of data or data relating to criminal convictions and offences. Importantly, the DPO:

  • Must be appointed on the basis of professional qualities and, in particular, expert knowledge on data protection law and practices
  • May be a staff member or an external service provider
  • Contact details must be provided to the relevant DPA
  • Must be provided with appropriate resources to carry out their tasks and maintain their expert knowledge
  • Must report directly to the highest level of management
  • Must not carry out any other tasks that could results in a conflict of interest.

As you can see this is a game changer as it relates to your existing privacy relationships in the United States and many other countries. Since privacy is not explicitly guaranteed by the Constitution, the people, have fought to claw back that privacy time and again. The proverbial slippery slope has been tilted against the individual from the outset. Which is why I suggest we change the slope completely and ask for the constitutional amendment. Failing that, I would like to see law makers begin to implement the features above from GDPR with the added increase that it would be law enforcement and not controllers who could consider the public record versus the appropriate right to be forgotten.

Lastly, I call on the technology world to build a series of privacy tool.

  1. Privacy App — designed to track your own data, who has it, what is it, where it goes. This app ought to plug into any aspect of your life and immediately change the privacy settings in an instant.
  2. Right to be Forgotten tool kit. An internet eraser that allows the individual to quickly and completely clean up their online life and their data footprint.

I suspect the both apps would be wildly successful, and thus are already in development. Personally I can’t wait to use them.