1 Big Data & The Law Will Landecker & John Rake Portland Eugene Salem harrang.com Harrang Long Gary Rudnick P.C.
2 Introduction Clients need data to solve problems or predict results. Attorneys need to know how to advise clients about (1) obtaining data, (2) using data, and (3) protecting data
3 Objective Help attorneys better understand big data Discuss potential legal issues for clients who deal with data.
4 NOT Licensed from Creative Commons, Attribution Generic License, s/by/2.5/
7 Overview What is Big Data and how big is it? Why do clients care about Big Data? What are some societal concerns about Big Data? How to protect investments in Big Data? Current regulations of Big Data Best practices for addressing client s legal issues related to Big Data
8 What is Big Data? Traditional definition: Datasets whose size is beyond the ability of typical database software tools to capture, store, manage, and analyze. Source: McKinsey Global Institute Form of Big Data: 10% structured (in database tables), 90% unstructured ( s, videos, social media interaction, CCTV footage, mobile phone calls, website clicks).
9 What is Big Data? (cont d) Searches Recommendations Snail Mail Driving Transportation systems Using electricity Weather forecasts Smartphone apps World Cup models
10 Just How Big is Big Data? 1200 exabytes worth and counting Source: Cukier & Mayer-Schoenberger, The Rise of Big Data, Foreign Affairs (May/June 2013). Kenneth Neil Cukier and Viktor $114 billion spending on Big Data by 2018 $8 million in Big Data-related initiatives for average businesses/year Source: ATKearney, Beyond Big: The Analytically Powered Organization 6000 data centers
11 Big Data Bragging Datalogix data includes almost every U.S. household Acxiom has multi-sourced insight into approximately 700 million consumers worldwide.
12 Uses of Big Data Identifying Consumer Habits Identifying Patterns in Human Behavior Increasing Efficiency
13 Who are the Players
14 Societal Concerns about Big Data Re-identification of anonymized data Deduction of personally identifiable information Discrimination Increased risk of data breach Creep factor Big Brother & Big Data
15 Best Practices for Advising Clients Who Deal in Big Data What are your IP rights in and ownership of the data? What sector and what type of entity? From what source does the data derive, and do you need/have consent from that source? Is the data accurate, and who bears the responsibility for inaccurate data? Are you keeping abreast of changes in the law?
16 Big Data: IP / Ownership Issues Copyright for compilations 17 U.S.C. 102: subject matter 17 U.S.C. 103: compilations and preexisting works 17 U.S.C. 101: compilation defined Feist Publications v. Rural Telephone, 499 U.S. 340 (1991) (independent creation plus a modicum of creativity Copyright for computer software, not for data generated by it. Copyright for user generated content?
17 Big Data: IP / Ownership Issues (cont d) Database Rights? EU sui generis right for database producers, valid for 15 years, to protect time, money or effort, irrespective of whether database is innovative/original UK similar database rights.
18 Big Data: IP / Ownership Issues (cont d) Trade Secrets Independent economic value Not generally known/ascertainable Subject to reasonable efforts to maintain secrecy Contractual measures (NDA, etc.) Technological
19 Big Data: IP / Ownership Issues (cont d) Patents for algorithms that analyze Big Data Problems: Patentable subject matter? Patents pertain to specific algorithm, not updates or adaptations Easy to patent around
21 Regulation of Big Data: Constitutional Protections of Privacy 4 th Amendment and Reasonable Expectation of Privacy ( REP ) Katz (1967 phone booth) Riley (2014 cell phone) U.S. v. Jones, 565 U.S. (2012) (Gov t needs warrant for GPS tracking; Sotomayer concurrence has concerns re: sum of one s movements ) Third party doctrine - no REP in info turned over to third parties But see US v. Warshak, 631 F.3d 266 (6 th Cir. 2010) (Gov t must obtain warrant to compel ISP to turn over s)
22 Regulation of Big Data: Historic Context for Statutory Scheme Fair Information Practice Principles (1973) Privacy Act of 1974
23 Regulation of Big Data: Current Statutory Scheme Segmented approach, based on industry and data collector/handler E.g., FCRA, HIPAA, COPPA See appendix for list of applicable statutes
24 Current Regulation of Big Data: General Themes/Assumptions Regulate the point of collection Treat data differently based on private use versus public use Protect privacy via anonymization or aggregation of private information
25 Current Regulation of Big Data: FTC FTC enforces deceptive trade practices 15 USC 45 FTC offers guidance Privacy by Design initiative Transparency Simplify Choices
26 Current Regulation of Big Data: Industry Guidelines Direct Marketing Association - Guidelines for Ethical Business Practice. Digital Advertising Alliance Ad Choice
27 International EU Data Protection Directive & 2014 amendment See: US-EU safe harbor privacy framework 7 principles See: FTC website
28 International (cont d) Google Spain v. Gonzalez: Right to Be Forgotten Broad territoriality of EU rules Broad applicability to search engines Enforces directive s Article 12 Right to be forgotten
29 Future Regulation of Big Data Executive Continued regulation/guidance from FTC Legislative Federal protections of consumer privacy, particularly with regard to data on mobile devices, geolocation Data Broker Accountability and Transparency Act (referred to committee 2/2014) Updates to ECPA and CFAA State laws, e.g, California. Judiciary???
30 1 st Amendment: Constitutional Limitation on Regulation of Big Data? Sorrell v. IMS Health, 564 U.S. (2011) 6-3 majority strikes down Vermont law that sought to restrict data miners ability to use prescription data to market drugs to prescribers on free speech grounds. Ostergren v. Cuccinelli, 615 F.3d 263 (4th Cir. 2010) Strikes down Virginia law prohibiting intentional communication of unredacted SSNs
31 Data Disputes: Legal Theories Privacy torts (for individuals) IP theories Breach of contract Unjust enrichment Hot News Misappropriation Barclays Capital Inc. v. TheFlyontheWall.com, 2011 WL (2d Cir. June 20, 2011) Trespass to Chattels Ebay v. Bidder s Edge, 100 F.Supp.2d 1058 (N.D. Cal. 2000); Ticketmaster Corp v. Tickets.com, 2003 WL (C.D. Cal 2003) Computer Fraud & Abuse Act U.S. v. Nosal, 676 F.3d 854 (9 th Cir. 2012)
32 Best Practices for Advising Clients Who Deal in Big Data What are your IP rights in and ownership of the data? What sector and what type of entity? From what source does the data derive, and do you need/have consent from that source? Is the data accurate, and who bears the responsibility for inaccurate data? Are you keeping abreast of changes in the law?
33 Additional Reading/Resources White House Report, Big Data: Seizing Opportunities, Preserving Values, _may_1_2014.pdf. GAO Report on Information Resellers, Senate Staff Report on Data Broker Industry (2013), Future of Privacy Forum / Stanford Law School paper: Big Data and Privacy: Making Ends Meet, FTC Recommendations for Businesses & Policymakers
2011 CONSUMER U.S. INTELLECTUAL DATA PRIVACY PROPERTY ENFORCEMENT IN A NETWORKED COORDINATOR WORLD: COVER ANNUAL TITLE REPORT HERE ON A FRAMEWORK FOR PROTECTING PRIVACY INTELLECTUAL AND PROMOTING PROPERTY
March 31, 2014 Attn: Big Data Study Office of Science and Technology Policy Eisenhower Executive Office Building 1650 Pennsylvania Avenue NW Washington, D.C. 20502 Ladies and Gentlemen: Re: Big Data Request
March 31, 2014 Big Data Study Office of Science and Technology Policy Eisenhower Executive Office Building 1650 Pennsylvania Avenue, NW Washington, DC 20502 SUBJECT: Request for Information on Big Data
Mobile App Privacy: The Hidden Risks Christopher G. Cwalina, Richard Raysman and Steven B. Roosa, Holland & Knight LLP with PLC Intellectual Property & Technology This is just one example of the many online
International Working Group on Data Protection in Telecommunications 675.48.12 Working Paper on Big Data and Privacy Privacy principles under pressure in the age of Big Data analytics 55th Meeting, 5 6
June 2013 The Privacy Implications of Big Data Executive Summary Data is continuously generated, and it is being collected on everyone, in every walk of life and in every business sector. From financial
Navigating Big Data s Privacy and Security Challenges kpmg.com Navigating Big Data s Privacy and Security Challenges 1 About the authors Greg Bell is a principal in the Atlanta office of KPMG LLP s (KPMG)
Revised March 2014 Data Protection Principles for the 21 st Century Revising the 1980 OECD Guidelines Fred H. Cate Distinguished Professor and C. Ben Dutton Professor of Law, Maurer School of Law, Indiana
DATA BROKERS A Call for Transparency and Accountability Federal Trade Commission May 2014 Data Brokers A Call for Transparency and Accountability May 2014 Federal Trade Commission Edith Ramirez, Chairwoman
DRAFT VERSION Big Data privacy principles under pressure September 2013 2 Contents Summary... 6 1 Introduction... 8 1.1 Problems for discussion... 8 1.2 Definitions... 9 1.2.1 Big Data... 9 1.2.2 Personal
Big Data Understanding innovation & steeped in IT & anticipating change & cracking the code & advice you can trust & in it from the start & that s IT with Big Data The incredible and continuous production
hottopic ARMA International s MAKING THE JUMP TO THE CLOUD? How to Manage Information Governance Challenges www.arma.org Governance for Protecting Information in the Cloud Barclay T. Blair If your organization
PRIVACY AND CUSTOMER RELATIONSHIP MANAGEMENT: CAN THEY PEACEFULLY COEXIST? Christopher K. Sandberg I. INTRODUCTION...1147 II. CRM...1148 A. Background... 1148 B. Why Are Businesses Interested in CRM?...
Best Practices for Online Service Providers June 2008 eff.org Table of Contents Introduction...1 1. Are you an OSP?... 1 2. How OSPs Can Develop Sane Network Policies to Protect Themselves From Legal Liability
EASA Digital Marketing Communications Best Practice October 2008 EASA The European Advertising Standards Alliance (EASA) is the single authoritative voice of advertising self-regulation. Its mission is
MyData A Nordic Model for human-centered personal data management and processing Antti Poikola Kai Kuikkaniemi Harri Honko This white paper presents a framework, principles, and a model for a human-centric
EUROPEAN COMMISSION Brussels, 6.5.2015 COM(2015) 192 final COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE
Big Data in Private Sector and Public Sector Surveillance Recent years have seen an explosion in the popularity of big data. This popularity is attributable to a variety of reasons, including the easier
Using Privacy by Design to Achieve Big Data Innovation Without Compromising Privacy Ann Cavoukian, Ph.D. Information and Privacy Commissioner Ontario, Canada David Stewart National Advanced Analytics Leader
C O V E R S T O R I E S Antitrust, Vol. 26, No. 3, Summer 2012. 2012 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be
Contents Acknowledgments....................................... ix Chapter 1: Internet Law Fundamentals and How to Use this Book (Juliet Moringiello and Jonathan Rubens).... 1 I. What is Internet Law?...........................
PRIVACY IN THE CLOUD AND BIG DATA WHAT FRANCHISORS NEED TO KNOW! By Alec Christie, Partner, DLA Piper Franchisors will already be dealing with a number of day-to-day privacy issues arising from their implementation
The & Computer Internet Lawyer Volume 28 Number 1 JANUARY 2011 Ronald L. Johnston, Arnold & Porter, LLP Editor-in-Chief* Cloud Computing: Recent Cases and Anticipating New Types of Claims By Mark H. Wittow
Big Data and Analytics: Seeking Foundations for Effective Privacy Guidance A Discussion Document February 2013 Introduction Analytics 1 promises to revolutionize business, science, research and education.
Earning Consumer Trust in Big Data: A European Perspective Carol Umhoefer, Jonathan Rofé, Stéphane Lemarchand - DLA Piper Elias Baltassis, François Stragier, Nicolas Telle - The Boston Consulting Group