Published: November 2016Contents
i) What are the hot topics?
Transatlantic data protection tensions continue to characterise the privacy world. However, there have been more than enough actual substantive developments in the US, EU and the rest of the world to provide much to talk about beyond the EU’s persistent concerns regarding the US government and private sector. Information law and digital policy privacy is currently so dynamic that it is difficult to predict future trends and key focal points for next year’s global regulators and enforcers. The disparate policy developments around the world could benefit from international coordination at the ministerial level, as well as efforts to ameliorate tensions and promote greater understanding.
ii) Tell us about any key legal developments – recent or pending – and their international impact.
It is telling that 2016 is ending without any legislative requirement that technology or telecom companies must decrypt their customer’s communication for government investigations of terrorism cases or serious crimes in the United States. In fact, the upshot of the FBI’s effort to compel Apple to write code to grant the government decrypted access to iPhones, including the device owned by the gunman in the 2015 San Bernardino terror attack, was a court order narrowing the government’s ability to buttress search warrants by invoking open-ended judicial powers under the All Writs Act.
On Big Data, the EU appears poised to allow data analytics that use information in a manner ‘compatible with’ the original disclosures and consents, even if not precisely contemplated at the time of collection. To be sure, however, the EU has also indicated that it intends to scrutinise data-intensive companies and transactions from a competitive perspective. The European Data Protection Supervisor, Mr Buttarelli, continues to provide sophisticated thought leadership, acknowledging that there must be a balance between companies’ legitimate interests in monetising their information, and individual’s rights to fair treatment – he notes that the ethical dimension of big data is unavoidable.
iii) What are the biggest opportunities and challenges for practitioners and clients?
Given the extent of policy development around the world, and the fact that many objectives for protecting the privacy and security of personal data are shared by most democratic countries, the world could benefit from greater international discussion and coordination at the ministerial level. Currently, privacy regulators and data protection authorities have relatively narrow mandates, and do not necessarily hold institutional competence to address broad questions of social welfare, economic growth and technological innovation; they also do not hold responsibility for national security or law enforcement matters.
As more and more devices are connected to the international, and as sensors, data analytics, and complex algorithms about human behaviour become even more ubiquitous than they are today, a global digital dialogue could be increasingly imperative, or at least valuable.