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The Supreme Court Is Scared of Technology. This Is How Privacy Pros Can Help

This was a big week for emerging technology—particularly the Internet of Things (IoT)—as was showcased during the annual Consumer Electronics Show in Las Vegas, NV. Cisco’s CEO made headlines after saying the IoT has the potential to become a $19 trillion market and much of mainstream media reported on all the emerging technology: smart cars, wearable sensors and digestible computers—stuff we’ve been reporting on pretty regularly in the past year.

So it seemed fitting—and concerning—that the Associated Press reported on the wariness felt by Supreme Court justices on judges weighing in on technology and privacy issues. As Justice Elena Kagan said last summer, “The justices are not necessarily the most technologically sophisticated people.”  And the court may face it’s biggest challenge yet, if, as many suspect, it eventually weighs in on the NSA’s metadata collection programs. Justice Antonin Scalia told a group of technology experts last July that elected branches of government are better equipped to grapple with security requirements and privacy protections.

True, Justice Sonia Sotomayor wrote quite eloquently about rethinking the third-party doctrine in her concurring opinion in U.S. v. Jones, but her thinking, right now at least, may be the exception and not the rule.

Here’s a humorously absurd exchange between Chief Justice John Roberts, a lawyer and Justice Scalia during a 2010 hearing involving a police pager as reported in the above AP story:

Roberts was questioning the lawyer for the officer whose messages were searched. He asked whether it was reasonable for the officer and others to assume that a third party, the pager service, was actually routing the messages from sender to recipient, much the way a phone company does with calls.

"I wouldn't think that. I thought, you know, you push a button, it goes right to the other thing," Roberts said.

Sitting to Roberts' right, Scalia chimed in, "You mean it doesn't go right to the other thing?"

They may have been playing for laughs, but the justices left the impression that day that they did not fully grasp what a pager is and how the process works, said Orin Kerr, a George Washington University law professor and expert on privacy and technology.

"It was embarrassing," said Kerr, who has urged courts to go slow and defer to elected officials in applying constitutional protections to privacy issues raised by new technologies.

But, leaving such applications to lawmakers isn’t necessarily balm to a concerned soul. Last March, I wrote a post, in part, on an exchange between Rep. Louis Gohmert (R-TX) and Google Law Enforcement and Information Security Director Richard P. Selgado. Golmert clearly had difficulty understanding Google’s system of selecting keywords from user’s e-mails (and if you watch the video carefully, you can sense he’s hinting at the government’s ability to access user data—months before we ever heard of Edward Snowden).

Clearly, the privacy implications brought on by technology are outpacing, not only the understanding of our judges and lawmakers, but the average consumer as well. Just look at the Internet of Things in the context of two of the Fair Information Privacy Principles: notice and consent. This blog has featured two opposing sides, one making the argument that consent is dead and that we have to regulate use; while another argues they’re very much alive, they just need to be adapted.

Getting private industry to bake privacy protections into products from the start is a laudable movement. But just listen to this NPR report on startups.

Technology and the digital environment are allowing for startups to pop up all over—companies such as Instagram or Snapchat or [insert business here]—are examples of a fertile ecosystem. But threats to cybersecurity (see Target) and personal privacy (see these comments by Ford executive Jim Farley) are ubiquitous. Even one of the startups in the NPR piece exclaimed that getting hacked meant they were worthy! This reminds me of Steve Martin in The Jerk when he finds out he's in the phone book.

If you're familiar with the movie, you know the "things" that start happening to Navin aren't good ones.

Insert the privacy professional.

Dierdre Mulligan and Kenneth Bamberger have made a compelling argument that privacy officers “on the ground” are the sheperds of privacy protection. The more privacy pros can work with information security pros, the better, and the more privacy pros can learn about technology the better. I’m reminded of a conversation I had last year with Acxiom CPO Jennifer Barrett Glasgow. She said the privacy pro is becoming a hybrid of policy know-how and technological savvy. Here’s a bit more:

Acxiom’s workforce is growing and is made up of young tech specialists. Glasgow says a growing percent of the organization is made up of “young, smart kids” who specialize in technology. “They come from the pure tech side of the equation, so they’ve never thought about technology that involves data” with privacy in mind. During their orientations the new tech specialists often say things like, “I didn’t have any idea.”

Recent scrutiny by the media and the Federal Trade Commission has reinforced the privacy principles Glasgow and her team have been preaching for a long time. She said she’s less worried about the scrutiny and more concerned about ensuring that employees and clients are aware of the privacy risks and concerns of consumers.

And last year, privacy engineer R. Jason Cronk submitted that 2013 may very well have been the year of the privacy engineer. He wrote:

It is no longer sufficient in the privacy profession to mitigate for organizational and compliance risks. Personnel must be in place to identify user-centric risks and help design solutions that mitigate those risks and provide the organization the information it needs to operate. The privacy engineer is that person.

Privacy engineer, or not, what’s clear is that businesses that recognize the value of having privacy pros on board and are willing to bake privacy into their business plan and products from the start will be at a distinct advantage. And that’s whether the Supreme Court or our elected officials are scared or ignorant of technology or not.

photo credit: zacklur via photopin cc

Written By

Jedidiah Bracy, CIPP/E, CIPP/US

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