Category Archives: Data Protection

Guidance and Un-Legislated Law

In 2016 and 2017, the Article 29 Data Protection Working Party (WP29) adopted Action Plans which set forth its global implementation strategy related to the General Data Protection Regulation (GDPR).  Pursuant to these Action Plans, the WP29 has produced seven Guidelines and has indicated it will produce at least eight more.  As the data protection community digests the massive amount of guidance coming from both the WP 29 and the individual data protection authorities, the impact of this guidance is not new; for better than thirty years, regulator guidance has changed markets. What has changed is the velocity, descriptiveness and volume of this guidance and by extension its impact on markets.

One of the most consequential privacy decisions made was by the U.S. Federal Trade Commission in the 1980’s when it issued an unofficial staff opinion that credit prescreening was permissible because the minimal invasion of privacy was counter-balanced by the consumer benefit of competition in credit card markets.  That decision, pursuant to the federal Fair Credit Reporting Act, while specific to pre-approved credit offers, unleashed the power of data driven advertising in the United States by creating an example about how data driven marketing can be effective.  The broad and deep credit files of Americans were used to granularly segment markets.  By 2001, one bank executive told me that his 60-terabyte prospecting file made it possible to pick the right credit product, out of the 6,000 he offered, for each consumer in the United States.

The key concepts in credit marketing were soon expanded to other markets as well.  With the introduction of a consumer Internet in 1993, digital marketing soon had the rich overlay of highly granular data to segment markets in a fraction of a second.  However, the whole movement began with that FTC opinion issued back in the 1980’s that balanced minimal privacy invasion against much more competitive credit markets.

Today, as we rush towards GDPR implementation, there is more and more guidance, and we should be cognizant of the impact of that guidance on how organisations will operationalize data protection law requirements.  Moreover, regulatory guidance is not just a European issue.  The FTC has been holding workshops and issuing reports since the late 1990’s.  Those reports have had real impact on data use.  The recent Canadian Office of the Privacy Commissioner report on its consent consultation has business guidance that will impact privacy practices well before recommendations are or are not enacted into law.  Recent guidance on data transfers from the Superintendent of Industry and Commerce in Colombia has caused a vigorous debate among all stakeholders.

The IAF as a research organisation focused on the future finds some guidance very helpful and finds other guidance backward focused.  Our views on the WP 29 draft guidance on profiling and automated decision-making can be found here.

To date, the IAF, as an organisation, has not stepped back to actually ask hard questions about the role of guidance in shaping the legal, fair and just use of data at a time where technology continually changes the way data is created, collected, and used.  In January that focus will change.  The IAF will hold a policy call with its stakeholders to begin exploring the role of guidance and the role of policy centers in responding to that guidance.  That call will be followed by a brainstorming session in the Spring of 2018.

As always, your comments are welcome.

Accountability Does Work

143,000,000 people were the victims of a recent data breach when their data was stolen from Equifax, a company that has an obligation to keep their data safe. Data security is tough. The bad guys only need to be successful once, while companies need to win every time. However, from the perspective of many consumers,… Continue Reading

IAF Releases Ethical Guidance for Artificial Intelligence at Commissioners’ Conference

The terms ethics and ethical data processing are in vogue. With the rapid growth of innovative data-driven technologies and the application of these innovations to areas that can have a material impact on people’s daily lives, enhanced corporate governance focused on ethical objectives is needed. Particularly where data enabled decisions are made without the intervention… Continue Reading

A Data Protection Risk Assessment Is About Ethics – Join IAF Webinar

A Data Protection Risk Assessment Is About Ethics —- Join IAF Webinar Webinar September 6, 2017 We have never read a privacy or data protection law that requires controllers be ethical. Yet implicitly new laws are driving expectations that organizations using data robustly do so in an ethical fashion. What does that mean? The European… Continue Reading

The Colombia Congress Matters

There seems to be a privacy conference every week in the United States or Europe. However, privacy training and policy development in Latin America is not nearly as well developed as that in the United States and Europe. Latin America has one annual conference that is clearly considered the conference of conferences. It is organized… Continue Reading

IAF Policy Call

The ePrivacy Regulation may swallow any flexibility built into the GDPR.  What does mean for effective data protection governance and the ability for companies to build value by thinking with data?  Does the adequacy drive from Latin America cause additional disruption?  Will the International conference in Hong Kong bring balance back to global discussions?  Join… Continue Reading

The Need for An Ethical Framework

The vast amount of data made possible and accessible through today’s information technologies, and the ever-increasing analytical capabilities of this data, are unlocking tremendous insights that are enabling new solutions to health challenges, business models, personalization and benefits to individuals and society. At the same time, new risks to individuals can be created. Against this… Continue Reading

Big Data Ecosystem, Fairness and Enforcement

Big data has become an increasingly scary phrase for all stakeholders in data protection. For privacy advocates, it often means loss of control, asymmetrical power and hidden discrimination. For regulators, it often means regulatory round pegs in operational holes of different sizes, in constantly moving locations, with mismatches that begin with vocabulary. For companies, it… Continue Reading

Abrams Moderates Panel at ICDPPC Open Session – 19 October 2016

Adequacy, Localization and Cultural Determinism Open Session Panel Discussion DATE: 19 October 2016 TIME: 11.30 to 13.00 LOCATION: Atlas Room, Conference Center of the Palmeraie Golf Palace EVENT: 38th International Data Protection & Privacy Commissioners Conference ADMISSION: The discussion is open to all conference attendees. Are adequacy, localization and cultural determinism efficient measures to strengthen/adapt… Continue Reading

Accountability in an Observational, Analytics-Driven Digital Economy

Since a multi-stakeholder group first defined them in 2009, the essential elements of accountability have become well established in the field of data protection. These elements are reflected in guidance from data protection and privacy authorities in Canada, Hong Kong, Australia, Colombia and France. They have been adopted as key elements in the European General… Continue Reading