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security implications in this new paradigm, now that more people
are working and living at home (not necessarily by choice).
Practitioners in the specific areas of data privacy, technology, and
cyber security are commonplace in mainstream cities across the
globe; however, given the ubiquitous nature of these topics and their
effect on other areas of law not traditionally seen as related to these
areas, it is now more necessary than ever before, for all attorneys
and non-attorneys alike to understand how things have and will
continue to change. What do all these technology issues mean for
the client who may own and operate a small business, struggling
to pay its bills? To a divorcing parent who has kids that have been
raised on technology and who will begin to communicate with
their parents through online channels? What does that mean for
a recent college graduate, interviewing with potential employers
via recorded video conference, in which those companies log and
analyze that candidates' facial and other biometric features? What
about a defendant, accused of a hit and run, based on information
collected via insurance add ons that use GPS tracking to log and
store data about a driver’s performance on the road?
And what does all this mean for us as attorneys, to whom the average
person or business looks to for advice when she takes steps in life that
typically are unfamiliar and uncomfortable? We need to prepare
and take the steps to understand not just how technology affects
today’s world, but tomorrow’s and beyond. And when, a nightmare
scenario occurs such as a global pandemic that accelerates these
changes, we must adapt out of necessity. What do we tell our clients
then? We don’t know what we don’t know. But we do know where to
start, so let’s start with the basics.
WHAT IS PRIVACY?
Data Privacy refers to the protection of personal information from
the intrusion and interception of that information by private actors.
Though there is no actual federal law currently in place to protect
privacy via an overarching mechanism, various subsections of
privacy protection exist through legislation. Examples of this are the
Health Insurance Portability and Accountability Act ("HIPAA"), or
the Children’s Online Privacy Protection Act ("COPPA"), both of
which are indications of the specificity and breadth of the concept of
privacy, and demonstrate how such concerns can touch every aspect
of individual's lives.
In addition to these acts of Congress, there is also the General
Data Protection Regulation ("GDPR"), which is a European-centric
regulation, and the California Consumer Privacy Act ("CCPA"),
both of which are focused on the general protection of data privacy
through similar, yet vastly differing means. Both of these regulations
are relatively new, but offer wide-ranging mechanisms through
which the general public can retain and protect personal data from
the databases of those companies and organizations to which these
regulations apply.
As we increasingly move our lives into an online arena, the intimate
details of those portions of our lives will continue to be recorded
and analyzed by corporations and governments alike, which, in a
best-case scenario will be used only to advertise to us in a targeted
manner, and in a less optimistic scenario, have the potential to
be used against us. Examples of these details are the times when
a person calls a family member and where that family member
is located, when a person searches the internet for mental health
therapy and the details of such afflictions, the details of business
records being shared between partners, texts between lovers, bank
account information, the details of a person’s physical appearance,
etc. There are no limits to how this information could be used, for
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