It’s no secret that soon-to-be-ex FTC Commissioner Julie Brill is a friend of the International Association of Privacy Professionals and its members. She has made herself available whenever we’ve asked her to speak at our conferences, whenever we’ve needed an interview, and she’s been a clear and vocal proponent of privacy professionals at nearly every turn.
She would probably tell you publicly that she’s just doing her job as a privacy regulator concerned with the interests of the American consumer, but that doesn’t mean her efforts aren’t appreciated.
Once again, on the day of her resignation announcement, after five-plus years on the job, she took the time to speak at length with the IAPP about her time at the FTC – and to answer the tough questions.
Like, what would make anyone want to go into private practice, and the world of business development and billable hours, after 26 years in public service?
Brill chuckled. “When I was at the Vermont Attorney General’s office,” she recounted, “I always kept track of my time to the tenth of an hour, because I felt it was important to be accountable for what I did.” The sorts of Fortune 500 clients that come to Hogan Lovells? That kind of pressure is nothing compared to the good people of Vermont.
In all seriousness, though, Brill said she is excited at the prospect of helping to build a business. “I’ve loved every minute of my 26 years,” she said, “but I think the new opportunities will be really exciting and help me grow in important ways.”
Still, those 26 years, and the time at the FTC, have produced results of which she’s proud. She spoke specifically, for example, of the attention she’s been able to focus on the data-broker industry. “I have long been concerned about the ways in which third-party entities that are not in a first-party relationship with consumers are putting consumer information behind the scenes into profiles,” she said. With the Reclaim Your Name campaign and the FTC’s data broker report, she feels the agency made real progress in highlighting potential issues and working toward addressing them.
Similarly, the discussion that’s been generated around Big Data and discrimination is important to Brill. “It wasn’t a hard sell around the agency,” she said, “but [my concerns] were embraced by staff and my fellow commissioners, and I’m grateful for that.”
Perhaps her top accomplishment, however, is the progress she’s made in “helping to improve the dialogue between the United States and Europe with respect to how we do privacy here in the U.S.,” Brill said, “how it can be improved, but how good it already is – and how we can set up systems that will allow consumers to enjoy all the online tools and apps that they love.”
So, why leave now, with the EU-U.S. Privacy Shield so close to completion? Does she feel like she’s abandoning her baby?
“I have worked very hard for the past two or three years with respect to transatlantic data-flow issues,” she said, “to help them understand how U.S. privacy law works, and help them understand my perspective on Safe Harbor as well as Privacy Shield. I’ve given it my all and continue to be deeply supportive of it.”
But, “the ball is no longer in our court,” she said. “It’s now in the Article 31 Party’s court, as well as with the EU DPAs, and I will continue to have conversations with folks about my views and, I hope, assist them in understanding the U.S. regulatory scheme.”
In fact, she said, “I think that my role will probably be as significant on Privacy Shield and other data transfer issues now as it was as a commissioner, going forward.”
“I’ll be in a position to advise companies about the process and what they will need to do to comply with the new enhanced requirements,” she reasoned, “and that will be something that’s very important to know, that there are people like me, and others, who do have an understanding of what will be required and will work with companies to help them comply.”
Is she concerned about the perception from Europe, that a commissioner that was in charge of protecting consumer privacy rights will now be on the other side of the table, working with businesses? Is she abdicating her role as advocate?
“My view is that it’s quite the opposite,” she said. “I have spent years of my career, not just as an FTC commissioner, trying to develop sound policies around privacy and data security that are workable and improve practices for consumers. Now, I will take all of that learning and all of that skill and help companies navigate an increasingly complicated privacy ecosystem.
“I can help them on the ground,” she said, “to do the things that they need to do legally and help them understand what they can do in terms of best practices.”
Further, perhaps she can help bridge those disconnects that do arise between regulators and the business world.
“I certainly have a good understanding of what works in communicating with policymakers and regulators and what is potentially less effective,” she said, being slightly diplomatic, “depending on the individual you’re talking to.”
It is certainly not uncommon for former regulators to join a private practice. U.K. Information Commissioner Richard Thomas is now with Hunton & Williams. Interim Commissioner in Canada Chantal Bernier is now at Dentons. Former FTC Chair Jon Leibowitz is now at Davis Polk, after leaving his post in 2013.
However, Brill noted that she is bound by the “Obama Pledge,” which says via executive order from U.S. President Barack Obama that political appointees will not “be permitted to work on regulations or contracts directly and substantially related to their prior employer for two years.”
Of course, there are issues that Brill wishes she had had more time to address. How data is used in the debt collection space, for example, is something that could use a hard look. “It just comes down to fraud,” she said, “and this agency is very focused on that.” There are also a few areas around credit reporting that could be improved, she said. “Same with the security of credit cards and data security in general. I think there are more steps that we need to take, with respect to chips, end-to-end encryption, and I hope to continue to have conversations about those issues. … I hope to still be engaged in privacy issues like these, and maybe even more engaged on some of these issues."
Luckily, she said, “I feel like I’m leaving the FTC in very good hands with my fellow commissioners who will still be here. Edith and Terrell and Maureen are all stars. They’re deeply committed to the issues. I think we’ve had a big impact, and they’ll be able to carry on and continue to do a lot of great work.”
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