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Lawyers and Privacy

2012 February 24
by John Wallbillich

Personal data privacy is an interesting issue for lawyers. For some, it’s part of their corporate practice. For most, it’s a confusing technological jumble, something they want to trust to someone else.

In-house counsel are often on the side of drafting privacy policies for their employers that allow for the appropriate use of consumer and web site visitor data.

In-house and outside counsel also have a hand in drafting those terms of use that we all never read and click “accept,” denoting we have. It’s almost a charade, worse than old-school small print on the back of used-car dealer’s installment sales agreement.

In addition, there are many examples of companies saying they will protect personal data, and then not doing so. Is it an oversight, a technical glitch, a lone hacker, or something else? Who knows, and I don’t want to link to any of these reports to single anyone out. It happens almost weekly. Some companies don’t even know when it’s happening.

Yesterday the Obama administration announced the outline of a data privacy “bill of rights.” The official report is here; major companies are trying to get out ahead of the issue; some observers think that the proposal doesn’t go far enough.

I think most people would expect lawyers to be conversant with these issues, thinking that protecting people from privacy intrusions is like securing financial assets or real estate investments. Indeed, lawyers who work on this issue for clients probably view it much differently when the privacy being potentially invaded is that of their teenage daughter. The New York Times covered some of this recently, as did NPR on how companies are tracking you on the web, right now, and how little you can do about it.

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Since many of the most successful Internet-based businesses are based on collecting information and selling it, or using it as a basis for advertising, you can expect a real fight over federal data privacy initiatives.

In the coming years, I think many lawyers will have to follow this issue and understand what’s going on. That will help represent corporate clients, and it will be essential in understanding what’s going on with their own data, and that of family members. It may even be an added-value service offered to individual clients who want or need help in this area.

I honestly think if most lawyers knew what was going on with their own personal information, they would see data privacy in a different, and more immediate, light.

On the Internet, the saying goes like this: when something is free, you are the product.

Looking Up and Locking Down.

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