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Impact of Frameworks on the Privacy Engineer

Privacy engineers must understand the OECD Guidelines, GAPP, and the other frameworks, as well as their organization's own privacy policies, standards, and guidelines sufficiently to understand their purpose and limitations. In doing so, any creative innovation should have a tie into a rationalized set of existing requirements.

This will, in turn, make it easier to implement such an innovation or manage change effectively as a logical leap forward in achieving the ultimate goal of efficiently, effectively, and ethically protecting information about people.

If data is processed in a way that honors or adheres to the OECD Guidelines or GAPP, or one of the other frameworks, then chances are, under most data privacy regimes, it will likely be considered to be fair and legitimate processing as most privacy laws are based on the FIPPs in some fashion (and these other frameworks essentially follow the FIPPs). However, as noted later, each specific case or legal regime can and often does interpret the FIPPS, adherence, and individual level of competency differently.

In Part 2 of this book, we will discuss how privacy rules are developed based on privacy policies, processes, procedures, standards, guidelines, and best practices that are derived in part from these frameworks. These privacy rules will be used to implement mechanisms that are used within systems satisfying privacy requirements.

Frameworks Are Not the Same as Laws

How each enterprise addresses privacy requirements at a deeper more granular level is a decision that is based on many factors such as size, jurisdiction, risk profile, internal policies and public positions, and, most important, what kind of personal information is involved (i.e., how much and how sensitive) and whose data it is.

To get to this level of granularity in understanding requirements, you should work with legal resources with privacy domain expertise and look at the specific laws and regulations that govern the space in which you are working, as well as applicable internal policies and requirements.

For this reason, the techniques for privacy engineering that will be discussed in this book and the issues that they will address are going to be characterized at a framework level, not based on a specific statute or regulation level.

By Francoise Gilbert, Founder and Managing Director of iT Law Group and author and editor of Global Privacy and Security Laws

As citizens, we might feel allegiance to a particular region where our ancestors were born and our family roots were formed, but these boundaries are artificial. When looking at the earth from the 10,000-foot level, states merge into one another seamlessly. Clouds that fly over country borders ignore the passport control booths.

Like their geophysical cousins, the clouds in which our electronic files are stored and processed know no borders. our smartphones, tablets, laptop computers, smart watches or glasses and the underlying technology into which we plug our equipment allow us to be connected at all times, from anywhere to, to anyone.

Data, like the genie, have jumped out of their bottle. They are taking a path of their own that does not stop at the edge of the device that was used to collect them or at the political border of the country in which that device is operated. With

interconnectivity and ubiquitous computing available to us, we can, while seated on a bench in the middle of Golden Gate Park in san Francisco, access or modify files that are processed in Argentina by a payroll service established in France. These files may be simultaneously backed-up in singapore and replicated for disaster recovery purposes in new Zealand. They may pertain to the employees of an Australian company who telecommute to work from south Africa.

This might look like a law school exam hypothetical. it happens increasingly in the 21st-century world of virtual companies or virtual employees where intangible intellectual property is frequently the most valuable asset of a business. Which privacy or data protection law applies to this hypothetical? Which state or country has jurisdiction over a particular dataset?

Ask five different judges, and you are likely to receive five different answers. The laws of several countries might apply, and more than one court could assert jurisdiction: That of the country where the data controller is located; that of the

countries where the servers that process or store the data are located; that of the country where the data subject is physically located, or where his employer is established to do business, or where his payroll is generated.

Countries are very protective of their citizens and want to apply their laws—or are asked by plaintiff to apply their laws—to matters that may take place within their boundaries or affect their citizens. see, for instance, the current Article 3—Territorial scope-of the draft EU Data Protection Regulation, which is expected to supersede the 1995 EU Data Protection Directive. This provision might allow the application

of the EU Data Protection laws to the hypothetical above, due to the fact that the payroll company is established in the EU, even though the data subjects are located in south Africa and their employer in Australia. Article 3 provides in part (emphasis added):

This Regulation applies to the processing of personal data in the context of the activities of an establishment of a controller or a processor in the Union, whether the processing takes place in the Union or not.

This Regulation applies to the processing of personal data of data subjects residing in the [European] Union by a controller or processor not established in the Union, where the processing activities are related to:

(a) the offering of goods or services, irrespective of whether a payment of

the data subject is required, to such data subjects in the Union; or (b) the monitoring of such data subjects.

This Regulation applies to the processing of personal data by a controller not established in the Union, but in a place where the national law of a Member state applies by virtue of public international law.

We cannot rely on the law of a single country as the framework in which to develop policies, practices, and procedures or evaluate the risk to which data might be exposed. Ubiquitous computing, business process outsourcing, and cloud computing are available to all companies. size no longer matters. The proverbial flower shop around the corner may have its accounting or payroll data processed or stored on another continent, in the same manner as a Fortune 10 company can.

Privacy professionals must be aware, and keep abreast of, the legal developments regarding information privacy or security laws in all the countries in which the personal data in their clients' custody are or might be located. it is only with this global knowledge and legal awareness that they will be able to properly evaluate and anticipate the legal constraints to which these data might be subject.

Although most of the world's data protection laws take an approach to the protection of personal information, personal space, and intimacy that is loosely based on similar fair information privacy principles (whether they are expressed in the oECD Guidelines, the APEC Privacy Framework, or other document), the devil is in the detail. Each country's legal framework is different. When these principles are implemented, each country has its own view and its own sensitivity to a particular topic.

Keeping abreast of these developments is difficult and time consuming. it is not that simple to know and appreciate a country's vision of privacy and what is necessary to achieve compliance in that particular country. it is a major mistake to take a one-size-fits-all approach or ignore the legal and cultural nuances among countries, even neighboring ones, or the historical foundation that have resulted in a certain legal system or certain local customs or behaviors. A formality that does not exist here may be required there and may be attached to prison terms elsewhere in cases of delinquency.

Privacy is a cross-functional and complex concept. Unlike tax, real property, or corporate law, privacy laws do not have hundreds of years of history in the making. nevertheless, all over the world, there is more to privacy than what judges or legal scholars have designed. The social aspects and the individual, cultural, or ethnic sensitivities are also part of the foundation. Before becoming regulated, privacy has evolved in great parts outside courts, being shaped slowly by reactions to significant or traumatic events.

Privacy concepts and privacy laws may result from societal pressures, changes in mores and habits, reaction to government abuses, or may respond to technology advances. in each country, they are a reflection of the country's culture, history, and sensitivity. At times, the religious and philosophical beliefs of its citizens may have also influenced the way in which a country designed and implemented (or not) data protection principles and protected (or not) the privacy rights of its citizens.

Developing a global privacy program requires an appreciation and understanding of these nuances and sensitivities.

The world of privacy and data protection is uniquely complex. As the field evolves, and, concurrently ubiquitous computing is becoming the norm, it is indispensible to take a global approach to privacy and data protection while remaining aware of the significant discrepancies between the laws, regulations, guidelines, and sensitivities that exist and will remain at the micro level in each country or state.

 
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