Hello from Portsmouth, New Hampshire.
Legal discussions illuminated the media landscape this week, which was marked by two U.S. Supreme Court decisions that surprised many observers. In a “landmark” decision coming from a 6-3 majority opinion, the Court ruled that protections in the Title VII of the Civil Rights Act of 1964 against employment discrimination based on sex also apply to sexual orientation and transgender status. In another decision, the Court ruled that the Trump administration could not end the Deferred Action for Childhood Arrivals program, which provides protection against deportation for about 700,000 young immigrants, collectively referred to as “Dreamers.” I was happy to see my alma mater, Indiana University, as well as other universities and institutions, applaud this decision.
At a time when issues of social justice, discrimination, and bias are at the forefront of the national agenda, it is important for privacy pros to consider how these issues intersect with privacy and data protection issues. Compliance Officer Amanda Ruff, CIPP/US, has gotten the ball rolling, with a timely and critical piece about how privacy impact assessments can be used to limit institutional discrimination and bias.
This week, privacy concerns also stayed at the forefront of discussions regarding how to mitigate the spread and limit further outbreaks of the coronavirus. IAPP Research Director Caitlin Fennessy, CIPP/US, examined the privacy rules governing manual contact-tracing efforts. With estimates of more than 100,000 contact tracers being needed in the U.S. alone, Fennessy explains the importance of trust and confidentiality within such a massive enterprise, and the problems faced by privacy protections being diffused across a “patchwork” of state rules and regulations that are “complex, varied and opaque.”
The importance of these protections, and the emphasis placed on securing patient trust, however, cannot be overstated, considering the scale of the data collection that is currently underway. In Florida alone, potentially the new epicenter for the virus, nearly 1,000 private labs are reported to be processing COVID-19 test data. Yet, many of these labs have no prior experience processing health data, and the state lacks a process for vetting people who handle COVID-19 data, given the rapid expansion that occurred.
Arguing that privacy regulation is continuing to miss “the big picture,” Alan Charles Raul, partner at Sidley Austin LLP and former vice chairman of the White House Privacy and Civil Liberties Oversight Board, pointed out in an op-ed for The Hill that “we have no policy makers who are responsible for weighing both tangible and intangible privacy risks against the promise of innovative technology,” which means that “we will almost certainly get [the privacy balance] wrong.” He advocates for establishing a digital privacy bureau within the Executive Office of the President that would “play a role in using data wisely to combat the coronavirus pandemic.”
In the meantime, U.S. legislators continue to work toward passing a coronavirus privacy law at the federal level, though roadblocks still exist. My personal view is that the chances of forging a bipartisan consensus on federal privacy seem to decrease with each passing day, but the year 2020 has taught us to be prepared for anything.
Another top story this week dug into how the CCPA’s private right of action is playing out in California’s courts. IAPP Legal Research Fellow Cathy Cosgrove provided an overview of CCPA lawsuits brought by plaintiffs against companies such as Salesforce, Marriot, and Zoom. She analyzes the types of claims appearing before judges thus far—from those concerning data breaches, to failure to comply with notice and opt-out provisions, to unfair competition—and considers various questions the courts will likely address, including whether the CCPA applies retroactively and what the term “sensitive information” means in practice.
Lastly, I wish everyone a proud Juneteenth! Whether you do it with festivities or with education and self-improvement, I hope you are celebrating this important day.