“The mantra of the Privacy Project is “Empowering Individuals to Protect Their Data with Implementable Solutions.”

By Alexandra Ross (Senior Counsel, Paragon Legal)

I recently attended the Future of Privacy and Innovation conference in San Francisco, sponsored by the UC Hastings Privacy and Technology Project.  Initially targeted to app developers, the conference drew about 150 attorneys, academics and technology executives. The conference took place at the hip co-working space on Market Street, Runway SF – a fitting venue to spark productive conversations about innovation.

Charles Belle, Executive Director of the Privacy Project, invited the conference attendees to use this safe place to convene as an opportunity to move the discourse forward on privacy and innovation. As I listened to the panelists’ engaging discussions regarding how to balance consumer privacy and innovation, I was inspired to consider how to put this collaborative approach into practice.

How can two seemingly diametrically opposed camps – attorneys and regulators on one side and app developers on the other, put aside their differences and engage in productive discussions? Can’t we all just get along? The image that kept coming to mind was that of couples counseling – so here are some practical suggestions on how to collaborate based on modalities of psychotherapy.

1. Acknowledge our differences. The first step is to accept that we are different and that we have certain opinions about one another. There may be some truth to the expectations. For example, lawyers and regulators are analytical and like rules whereas app developers are loners and a bit anarchistic. These prejudices become problematic when taken to the extreme – when attorneys think that app developers are immature renegades or app developers think that attorneys and regulators are power hungry and innovation killers. Adopting a tone of defensiveness or complete avoidance isn’t helpful either. What is needed is empathy and respect for the others’ personality and perspective.

2. Have a common goal. For attorneys and engineers working for the same company, a common goal could be the successful launch of a new product or service and enhanced revenue. Or it could be positive press coverage and widespread user adoption. Regulators such as Kamala Harris, the California Attorney General who spoke at the conference, understand the greater common goal of encouraging and applauding innovation while protecting personal privacy. Ms. Harris spoke of working together to provide users more information on how technology works, allowing users to make an informed choice, and providing tools for them to effectuate that choice (such as privacy settings).

3. Understand each others’ language. Instead of thinking -“Mobile app technology is too complicated!” or “Privacy rules are scary!”, we can put aside our fear of the unknown, step beyond our resistance and put some effort towards understanding a new terminology. This doesn’t necessarily mean becoming fluent or even proficient in the other side’s language, but simply taking the time to learn the fundamental concepts. For attorneys and regulators this means understanding the app’s intended functionality, its general use of technology and basic data flows. For app developers this means grasping the fundamental concepts of privacy by design and the relevant best practice guidance provided by the Federal Trade Commission and various states Attorney Generals. More productive conversations can occur when the players can more fully and actively communicate.

4. Know when to compromise. Privacy compliance is as much an art as it is a science. Maintaining a balance between privacy and innovation will require some compromises and accommodation of the other side’s perspective. Attorneys should be able to identify what is a legal or regulatory requirement as opposed to a best practice guideline and present a risk position to their clients. It’s also helpful to look at the ways competitors have incorporated privacy compliance (eg. availability of privacy settings and opt outs). App developers can clarify “must have’s” versus “nice to haves” in an app’s functionality. For example, app developers may be able to make concessions regarding the breadth of collection of user information or the length of the retention period.

The mantra of the Privacy Project is “Empowering Individuals to Protect Their Data with Implementable Solutions.” The recent conference was a step toward their stated goal of “advocating a technical and paradigmatic shift to forge collaboration between those who develop the technology and those who craft the legal regimes that incentivize and shape those developments.”

I look forward to their next event.

Women 2.0 readers: How do you strike a balance between innovation and protecting privacy?

About the guest blogger: Alexandra Ross is Senior Counsel at Paragon Legal, working onsite at Autodesk, Inc. Previously, she managed privacy law and compliance as Associate General Counsel for Wal-Mart Stores, Inc.  She is a certified information privacy professional and practices ecommerce and privacy law. 

Photo credit: RelaxingMusic via Flickr