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Privacy by Design

Privacy by Design (PbD) is a concept popularized by Ann Cavoukian, the commissioner for information and privacy for the province of Ontario, Canada. It was developed to ensure that privacy was protected and that people gained control over their information and the information of their enterprises. In 2011, at their 32nd annual conference, the international Data Protection and Privacy Commissioners recognized PbD as an “essential component of fundamental privacy protection.”[1]

It teaches the following seven “Foundational Principles”:[2]

1. Proactive not Reactive; Preventative not Remedial

2. Privacy as the Default Setting

3. Privacy Embedded into Design

4. Full functionality—Positive-sum, not Zero-sum

5. End-to-End Security—Full Lifecycle Protection

6. Visibility and Transparency—Keep it Open

7. Respect for User Privacy—Keep it User-Centric

By Ann Cavoukian, PhD, information and Privacy Commissioner, ontario, Canada

in october 2010, a landmark resolution was unanimously passed by the international Privacy Commissioners and Data Protection Authorities at their annual conference, recognizing Privacy by Design (PbD) as an “essential component of fundamental privacy protection.” The Resolution also:

Encouraged the adoption of the principles of Privacy by Design as part of an organization's default mode of operation; and

invited Data Protection and Privacy Commissioners to promote Privacy by Design, foster the incorporation of its Foundational Principles in privacy policy and legislation in their respective jurisdictions, and encourage research into Privacy by Design.

since then, PbD has become a global operation, having been translated into 35 languages. Public policymakers in the United states, Europe, and Australia have issued proposals to express PbD in reformed information privacy governance and oversight regimes. More than a concept, PbD has become a legal and regulatory requirement in major jurisdictions around the world. With the world evolving so rapidly, privacy protections must also evolve in equal measure.

Evolving Privacy Contexts

Privacy is often said to be in “crisis” today as a result of numerous developments:

Leapfrogging information and communications technology developments;

The advent of social, cloud, mobile, and ambient computing; Evolving cultural norms; and

A global patchwork of outdated privacy laws.

The information privacy solution requires a combination of data minimization techniques, credible safeguards, meaningful individual participation, and robust accountability measures, informed by an enhanced and enforceable set of universal privacy principles adapted to modern realities.

PbD evolved from early efforts to express Fair information Practice principles directly in the design and operation of information and communications technologies, resulting in Privacy Enhancing Technologies (PETs). over time, the broader systems and processes in which PETs were embedded and operated were also considered. These include organizational practices and networked information ecosystems. PbD principles emphasize proactive leadership, systematic methods, and demonstrable results.

Proactive Not Reactive; Preventative Not Remedial

PbD principles have changed the global privacy conversation by shifting emphasis away from reactively detecting and punishing privacy offenses after they occur to minimizing risks and preventing harms before they occur. “Build it in early” is now a common message from data protection authorities around the world.

PbD principles aspire to the highest global standards of practical privacy possible—to go beyond compliance and achieve visible evidence of leadership, regardless of jurisdiction. Good privacy doesn't happen by itself; it requires proactive leadership and continuous goal setting at the earliest stages.

Global leadership begins with explicit recognition of the benefits and value of adopting strong privacy practices, early and consistently (e.g., preventing data breaches and harms from arising). This implies:

A clear commitment, at the highest levels, to prescribe and enforce high standards of privacy, generally higher than the standards set out by global laws and regulation;

A demonstrable privacy commitment that is shared by organization members, user communities, and stakeholders in a culture of continuous improvement;

Establishing methods to recognize poor privacy designs, to anticipate poor practices and outcomes, and to correct any unintended or negative impacts, well before they occur, in proactive, systematic, and innovative ways; and

Continuous commitment and iterative processes to identify and mitigate privacy risks.

The preventative and systematic approach to engineering privacy is often associated with privacy-enhancing technologies, particularly in Europe. Although PbD is often best illustrated through specific technologies (the more user-centric the better), it is the organization that has become a more central and effective focus for applying PbD Principles, especially in view of the requirement to comply with privacy and data protection laws.

Being proactive and preventative requires a clear understanding of the strategic risks, challenges, and rewards of applying strong privacy throughout an organization and across information systems, in a comprehensive manner.

Privacy Embedded into Design

Privacy promises are not enough—they must be implemented in systematic and verifiable ways. information and communications technologies, systems, and networks are highly complex and dynamic in nature. Data processing is interdependent and tends to be opaque in nature, requiring more trust than ever from stakeholders and users for sustainability. These are not ideal conditions for ensuring that accountability, data protection, and individual privacy will thrive.

Privacy commitments and controls must be embedded into technologies, operations, and information architectures in holistic, integrative, and creative ways:

Holistic, because broader contexts must be considered to properly assess privacy risks and remedies;

integrative, because all stakeholders should be consulted in the development dialogue; and

Creative, because embedding privacy rights and controls, at times means reinventing the choices offered because existing alternatives are unacceptable.

A systematic, principled approach to operationalizing privacy should be adopted, one that relies on accepted standards and process frameworks, amenable to external reviews and audits. All fair information practices should be applied with equal rigor, at every design step.

Wherever possible, detailed privacy impact and risk assessments should be carried out, documenting the privacy risks and measures taken to mitigate those risks, including consideration of alternatives and the selection of metrics.

The privacy impacts of the resulting technologies, processes, and information architectures should be demonstrably minimized and not easily degraded through use, misconfiguration, or error.

in the United states, the Federal Trade Commission (FTC) has begun to require some organizations to put in place comprehensive, auditable privacy programs. in the European Union, “prior checking” and other due diligence requirements are becoming mandatory for organizations to demonstrate compliance with privacy laws.

Full Functionality: Positive-Sum Not Zero-Sum

Privacy is not an absolute value. To design practical, yet effective, privacy controls into information technologies, organizational processes, or networked architectures, privacy architects need to acknowledge many legitimate (and, yes, sometimes competing) goals, requirements, and interests and accommodate them in optimized, innovative ways.

The PbD Principle of Full Functionality requires going beyond privacy declarations and best efforts to demonstrate how data processing and other objectives have been, and are being, satisfied in a doubly-enabling, win-win model. External accountability and leadership are enhanced by applying this principle, which emphasizes transparency and measurable outcomes of multiple functionalities:

When embedding privacy into a given information technology, process, system, or architecture, it should be done in such a way that full functionality is not impaired, and that all legitimate interests are accommodated and requirements optimized;

Privacy is often positioned in a zero-sum manner; that is, having to compete with other legitimate interests, design objectives, and technical capabilities in a given domain. PbD rejects this approach; it embraces legitimate non-privacy objectives and accommodates them in an innovative, positive-sum manner; and

All interests and objectives must be clearly documented, desired functions articulated, metrics agreed upon and applied, and unnecessary trade-offs rejected, in favor of finding a solution that enables multifunctionality.

Additional recognition is deserved for creativity and innovation in achieving all objectives and functionalities in an integrative, positive-sum manner. organizations that succeed in overcoming outmoded zero-sum choices demonstrate global privacy leadership.

This principle challenges policymakers, technologists, and designers, among others, to find ways to achieve better privacy in a given technology, system, or domain than is currently the case and to document and demonstrate achievements that become best practices.

There are many examples of positive-sum “transformative” technologies that achieve multiple objectives in tandem in a privacy-enhancing manner. For example, Biometric Encryption (BE) achieves positive identification without the need for centrally stored templates. BE has been successfully deployed across ontario gaming facilities to identify gamblers requesting to be barred from entering the premises. The positive-sum PbD principle has also been successfully applied in a wide range of areas: road toll pricing, smart meters, whole-body image scanners, RFiD-enabled systems, geolocation-enabled services, and many other technologies and services.

The creation, recognition, and adoption of PETs as a means to achieve PbD operational goals is being actively promoted by the European Commission, not only as a major ongoing research funding initiative under the Framework Programme, but notably in the context of the EU review of, and proposed amendments to, the Data Protection Regulation.

Current work by international data protection authorities to define accountability is also establishing common definitions and best practices that help advance organizational PbD practices. similar work is also under way in international standards groups to define privacy implementation, assessment, and documentation methods. The preparation, use, and publication, whether mandatory, contractual, or voluntary, of privacy impact assessments and privacy management frameworks are also on the rise. We are seeing the growth of standardized privacy evaluation, audit, and assurance systems, innovative co-regulatory initiatives, certification seals and trust marks, and other criteria. Enhanced diligence and accountability measures

are consistent with the PbD emphasis on demonstrating results. The publication of successful case studies adds illustrative and educational value for others to emulate. Perhaps the most exciting chapters on achieving PbD results have yet to be written, as public policymakers on both sides of the Atlantic ocean actively propose weaving the PbD framework and principles into the fabric of revised privacy laws, and in strengthened systems of regulatory oversight—the best is yet to come.

Like privacy engineering, PbD teaches that privacy is also a business issue. The building of consumer trust will provide a competitive advantage. Just one data breach interferes with this trust. PbD, like privacy engineering, recognizes that both physical design and information technology design are crucial to develop an effective privacy program. The privacy designer needs to carefully construct physical security to protect the privacy of both data facilities and paper records. Information technology design can enhance privacy by the use of PETs (discussed in detail in Chapter 6) like a uniqueness identifier with no specific meaning and by utilizing encryption correctly. Security and privacy work together and do not work at cross purposes. It is important that privacy be embedded into the IT system as part of the design process, baked in so it will not interfere with the business purpose of the system but will actually enhance the business objectives.

How Privacy Engineering and Privacy by Design work Together

Privacy engineering is a concept for which PbD is a facilitator. PbD provides valuable design guidelines that privacy engineers should follow. In turn, privacy engineering adds to and extends PbD. It provides a methodology and technical tools based on industry guidelines and best practices, including the Unified Modeling Language.

In the rest of this book, we will discuss the methodologies and the various modeling processes to develop privacy mechanisms that can be used independently or can be plugged into new and existing enterprise systems to enhance their ability to implement enterprise privacy policies.

Conclusion

This chapter explained how privacy and other data management frameworks overlap and can be leveraged as an overall governance framework for personal information.

Data management teams and privacy functions have common goals: the health, hygiene, and well-being of the data under their respective custodianship. While there may be different approaches to data management and different privacy frameworks, there are strong points of similarity that can be harmonized to arrive at a functional set of policies and requirements for an enterpise. Chapter 4 will discuss how these Privacy Policies are developed and how an organization's privacy policy can be coordinated as the “meta” document for use case requirements.

  • [1] Resolution on Privacy by Design, 32nd International Conference of Data Protection and Privacy Commissioners, Jerusalem, Israel. justice.gov.il/NR/rdonlyres/F8A79347-170C-4EEF- A0AD-155554558A5F/26502/ResolutiononPrivacybyDesign.pdf
  • [2] Foundational Principles, Privacy by Design. privacybydesign.ca/index.php/ about-pbd/7-foundational-principles/
 
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