Gary Audin
Gary Audin is the President of Delphi, Inc. He has more than 40 years of computer, communications and security...
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Gary Audin | August 07, 2014 |


Big Data at Odds with Privacy?

Big Data at Odds with Privacy? Should big data collection be limited or should it be allowed to grow but be regulated?

Should big data collection be limited or should it be allowed to grow but be regulated?

Most organizations are or will be encountering big data, its collection, storage, processing, analysis, and dissemination. There are few rules and regulations covering big data in the U.S. A major question is, "Should big data collection be limited or should it be allowed to grow but be regulated?" The Federal government's position at this time appears to be regulation to protect individuals and society at large, not suppression of big data collection and processing.

Federal Government Reports
The White House released two reports in May 2014 addressing the public policy implications of big data's proliferation. The first report was issued by the President's Council of Advisors on Science and Technology (PCAST) and is titled, "Big Data and Privacy: A Technological Perspective." The second report, also issued in May 2014, is from the Executive Office of the President and is titled, "Big Data: Seizing Opportunities, Preserving Values."

Big Data - The Potential Problem
The PCAST report summary defines the problem as, "Big data is big in two different senses. It is big in the quantity and variety of data that are available to be processed. And, it is big in the scale of analysis (termed 'analytics') that can be applied to those data, ultimately to make inferences and draw conclusions. By data mining and other kinds of analytics, nonobvious and sometimes private information can be derived from data that, at the time of their collection, seemed to raise no, or only manageable, privacy issues."

Innocent big data collection and analysis can lead to harmful and intrusive conditions that should be prevented from occurring. The collectors and analyzers may not even imagine the harmful results of their work until too late.

Four Potential Privacy Harms
William Prosser in "Privacy," California Law Review 48:383, 389, 1960 outlines four harms that can befall an individual when their privacy is invaded:

Intrusion upon seclusion is where a person or organization intentionally intrudes upon the solitude or seclusion of another person or private affairs or concerns. The intrusion can be subject to liability as an invasion of privacy, but only if the intrusion would be highly offensive to a reasonable person.

Public disclosure of private facts is where a person or organization can be sued for publishing private facts about another person, whether true or not. Private facts are those about a person's life that have not previously been made public. These facts are not of legitimate public concern, and their disclosure would be offensive to a reasonable person.

"False light" or publicity - This is related to defamation. This action results when incorrect or false facts are widely published about an individual, for example through the Internet. Some states have determined that false light includes untrue implications, not just facts that are untrue.

Misappropriation of name or likeness - Individuals have a "right of publicity" to control the use of their name or likeness in commercial settings. Just because a photo passes over the public Internet does not mean it is available free for anyone to use. If it is publically displayed with no reservations, only then is it open for public use.

Recommendations from the PCAST Report
1. Those who will be considering policy creation should be less concerned with the collection and analysis of big data, but should focus on the uses of big data. The PCAST report defines use where an adverse situation occurs or harm is caused to an individual of group/class of individuals.

2. The creation of policies should avoid dealing with technical issues, as these will evolve over time. New technologies will arise and old technologies will become obsolete. By avoiding a focus on specific technologies, the policies and regulations will have a longer life and will have to be re-interpreted less frequently as technology changes. The policies should address what to do with the big data, not how to technically implement analysis and dissemination.

3. Research should be expanded to cover privacy-related technologies with the coordination with the White House Office of Technology Policy (OSTP) and the Networking and Information Technology Research and Development (NITRD) program.

4. The White House Office of Technology Policy should work with professional societies and educational institutions to increase the education and training opportunities that deal with the protection of privacy. The report recommends that there should be ways to validate a privacy professional's credentials as there are for security professionals today. The reports anticipate that there will be privacy professional and software developer career paths.

5. The U.S. should lead, not follow, other counties by adopting policies that foster the development of privacy protecting technologies. The development of standards is one area that the U. S. can demonstrate its leadership. This, however, will be a problem when the European Union (EU) gets involved. The EU already has some policies and regulations that are not likely to be implemented soon in the U.S., like the "right to be forgotten."

A Chief Security Officer (CSO) is an organization's primary executive responsible for the security of the organization's staff and visitors, the physical assets of the organization and information in physical and digital form. Sometimes the security responsibility is further divided with the appointment of a Chief Information Security Officer (CISO). In either case, the job is protection of the organization, not individual privacy concerns.

It is very possible that some organizations will expand the CSO/CISO responsibilities to include privacy concerns. However, this is a new function and may be better assigned to a Chief Privacy Officer (CPO) since many of the issues are legal, not technical, in scope. I can imagine the CPO position held by a person with a more legal rather than IT background. The CPO will have to evaluate the liabilities of big data collection and analysis and how to technically implement internal policies and procedures.

The CPO job description will be fluid for a number of years as policies, regulations, and court cases solidify the big data privacy responsibilities of the organization.

The CSO/CPO will have to contend with privacy regulations that are promulgated by states. With the Congress we now have in office, it is unlikely that any swift action creating laws and regulations about privacy will be enacted soon. Some states, like California, have enacted privacy legislation because the federal government has not taken action.

This means that the CSO/CPO will have to contend with differing regulations and liabilities. Even if the organization does not do business or have a location in a particular state, the big data collected and analyzed may include information about individuals who reside in the state, and the organization will have to comply with those state regulations.

The two reports start the process to create policies and regulations and may eventually specify penalties for those who do not follow the regulations. Someone in the organization must be made responsible for compliance. Some organizations, probably smaller ones, will depend on cloud service companies to implement their big data collection and analysis with an eye toward depending on the cloud provider to ensure privacy compliance has been achieved.

Additional Resources for the Legal Minded
Digital Media Law Project, "Publishing Personal and Private Information" and the "Elements of an Intrusion Claim"


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