To more accurately assess this inquiry, I looked outside of associations based solely on one’s education and looked for associations based on one’s role or job and I found several examples of codes of ethics for professionals. There are members of IAPP who are also members of some of these other professional associations: HCCA, ISC2, SCCE, just to name a few. Additionally, many members of IAPP are licensed attorneys and bound by the ethics of their license; such is also true for medical professionals, accountants, social workers, teachers, and many other fields. Alex Fowler addressed this same issue.
Having experience in the medical, educational and legal environments, I am acquainted with the potential for conflict between professional obligations. For example, I occasionally faced conflicts between my obligations as a nurse and my obligations as an attorney. While there is always an eventual decision made after careful analysis, this decision is not always concrete and is subject to context and opinion.
In some ways, I see potential for a similar conflict in privacy. As in-house counsel, the client is the employer. Yet privacy professionals are the voice of the public. Whether privacy professionals serve as this voice because the law may require certain consumer protections or because the privacy professionals see their roles as advocates may be immaterial if the resulting actions are the same.
As such, in-house privacy attorneys understand that by protecting the interests of the individuals, they are also protecting the interests of the company. The potential for conflict is reduced when the law speaks clearly to the issue, but becomes muddy when the “right thing” is not statutorily driven. Does one’s duty to the company carry more weight than one’s duty to a data subject? Does one have a duty to a data subject if the law is silent?
If taking a conservative approach to individual data conflicts with product innovation, business process efficiency, competitive advantage or corporate position, an in-house privacy counsel may face conflicting duties. This is where in-house counsels of any specialty must know how to separate their legal duty from their business consulting duties. One carries a legal privilege, one does not. Privacy counsels who have a corresponding non-attorney privacy officer colleague may function in a manner that avoids such a conflict.
We may see this conflict in action on a practical level with something as simple as an online privacy statement. Companies are starting to face criticism for having privacy statements that are too legalistic and complicated for members of the public to understand and make meaningful choices about their data. California has been active in this regard, especially with mobile privacy statements. It is possible to imagine a scenario where a privacy counsel may have negotiated the language in an online privacy statement with his/her colleagues in IP, contracts, litigation, marketing, sales, IT and business operations, word-smithing the text until no one less than a doctoral level could read it and then only after a detective mapped out the mysterious elements.
My example speaks to challenges that privacy professionals face and is not specific to privacy counsels. Yet when a privacy counsel must decide between wording that would better protect the company and wording that is more consumer-friendly, we glimpse the stage on which privacy counsels dance. Sometimes this dance is a gentle waltz and sometimes it is paso doble. And sometimes, privacy counsels may feel a conflict between internal and external customers.
This discussion is certainly not intended as an in-depth analysis of an in-house attorney’s duty. It is offered only to illustrate that where privacy professionals in general face challenges between what he/she may like to see from a privacy perspective and what the business wants, an in-house privacy counsel may face a few additional challenges.
I started this entry with the question of whether privacy professionals should have a code of ethics. I think we should. But I hope that the drafting takes into account the codes that many of us must already abide by and avoids creating conflicts. Additionally, I hope that all privacy professionals take the concept of a code of ethics seriously—and if the idea moves forward, get involved with the drafting and adoption of the code. Privacy professionals come from many varied backgrounds and any code we adopt needs to reflect the demands we face on the job as well as the diverse nature of our IAPP membership.
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