As the dust settles after one of the most contentious and surprising elections in recent memory, many in the privacy world are looking ahead to what a Trump presidency will mean for privacy, cybersecurity, and surveillance. Though it is not yet clear how a President Trump will come down on privacy issues specifically, based on past comments and insights from thought leaders in the space, there are several trends that could emerge.
Trump has consistently referred to himself as the "law-and-order" candidate and was outspoken about giving law enforcement tools for accessing digital communications. Some worry that means a greater potential for a government-supported mandate for backdoors into encrypted communications. Together with the re-election of Sen. Richard Burr, R-N.C, who led efforts in the past year to draft legislation mandating law enforcement access to encrypted communications, a Trump presidency, at the very least, offers some uncertainty here.
"I imagine (Trump) is going to be a guy who is probably going to mandate back doors," Strategic Cyber Ventures Chief Operating Officer Hank Thomas told NBC News. A former National Security Agency official, Thomas added, "I don't think he's ultimately going to be a friend to privacy, and the fearful side of me says he will get intelligence agencies more involved in domestic law enforcement."
Another former NSA official has also expressed concerns about what the new administration will do to the U.S. intelligence apparatus. In a post for Lawfare, former Office of General Counsel of the National Security Agency attorney Susan Hennessey wrote, "No, Trump could not use NSA to violate statute and the Constitution in the United States. Yes, he could roll back protections of Executive Orders, but it is far more complex than a pen stroke to undo the many DOD regulations and Attorney General procedures, and indeed the structure of the IC itself, which rest on the foundation of those orders. And yes, the NSA can in theory be abused, but not without the courts and Congress and many elements of the executive branch being aware of the abuse and empowered to stop it."
However, she went on to add: "But I still believe that an empowered intelligence community makes the world safer for people and ideas. Certainly, I am more suspicious of the powers of Section 702 in the hands of President Trump than in the hands of President Obama. I am now more inclined to favor limitations I might not have previously deemed or even imagined necessary."
Though it is not yet known who Trump will appoint to head up the Office of the Director of National Intelligence, former Defense Intelligence Agency Director Michael Flynn and former Rep. Mike Rogers have been involved with Trump's transition team.
Silicon Valley has also expressed some concern over the incoming administration. WhatsApp co-founder Jan Koum told Reuters the company will be "extremely vocal" against efforts to mandate backdoors as it "would damage the reputation of American companies in the global arena."
Microsoft President and Chief Legal Officer Brad Smith wrote a blog post urging the nation to come together while congratulating Trump on his victory. Smith said, "it will remain important for those in government and the tech sector to continue to work together to strike a balance that protects privacy and public safety in what remains a dangerous time. As this election demonstrated, technology now plays a ubiquitous role in our daily lives. But people will not use technology they do not trust."
Many in the health care industry think a Trump presidency will not force many changes in HIPAA enforcement, according to Gov Info Security. Though Trump has not yet spoken publicly on health care IT or health information privacy, CynergisTeck VP of Compliance David Holzman said HIPAA enforcement "will be unaffected by the change in administration."
But Wiley Rein Partner Kirk Nahra, CIPP/US, said uncertainty remains on critical data security issues. In addition to a greater focus on cybersecurity issues, Nahra said he expects "the balance to tilt strongly toward the government's efforts to monitor citizen activity." About HIPAA enforcement, he said, "I would not expect new resources here, and there could easily be cuts, which might mean less enforcement."
The Wall Street Journal has reported on what the new administration will mean for the ad industry. Under the current Obama presidency, the ad industry has faced "an onslaught of new rules, such as data privacy protections" as digital advertising depends more heavily on personalized messaging. And though a Republican administration may have a more "hands-off" approach, Association of National Advertisers Executive VP Dan Jaffe said, "All of us are trying to look into a cloudy crystal ball," adding, "You have Donald Trump, who has a history as a business man. That may relate (him) to some of our issues, but on many of the issues affecting advertising, he hasn't had to take a position."
Yesterday, during a panel discussion among regulators at the IAPP Europe Data Protection Congress, Federal Trade Commission Chairwoman Edith Ramirez said she does not foresee the deconstruction of progress made between the U.S. and EU regarding the Privacy Shield agreement. Article 29 Working Party Chairwoman Isabelle Falque-Pierrotin said she hopes to continue a strong relationship with U.S. agencies.
Significantly, a Trump administration will likely appoint three Republican-leaning commissioners on the Federal Communications Commission. If so, there's a chance the recently approved consumer broadband privacy rules could face a rocky future. Jaffe said Trump "will be able to get the majority of the commission. He'll have three seats. The question will be, will they look at that issue again?"
The same hands-off approach will likely affect the Federal Trade Commission as well. Pivotal Research Senior Analyst Brian Wieser said, "Privacy issues may become non-issues as it seemed likely that Democratic control of the FTC and FCC would have lead to more aggressive regulation."
He added, "Owners of data will benefit from this election."
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