10 Privacy Issues to Watch in 2014

by Goodwin

In 2013, privacy issues became top of mind for policy-makers, businesses and the public alike.  The Edward Snowden disclosures about NSA data-gathering propelled a host of privacy questions to the forefront of public debate.  The year also saw an increase in privacy-related litigation, as well as numerous legislative proposals and regulatory enforcement efforts.

Notably, few of the privacy issues raised over the past year were resolved.  The following is a list of privacy issues that are likely to receive significant attention in 2014:

  1. Legal challenges to NSA data collection will continue.  The issue of NSA bulk collection of metadata continues to promise headlines and further legal action.  During the past few months, two federal district courts – in the Klayman and ACLU cases – have reached diametrically opposite results over the legality of the NSA’s practices.  News stories have suggested that further revelations about government surveillance efforts are yet to come.  Last month a presidential review panel offered additional recommendations about reforms of data collection for national security purposes.  Caught in the middle are private telecom providers and other tech companies, which the presidential review panel proposed should hold consumer metadata until required to disclose it by court order.  Expect the NSA story to continue to percolate throughout 2014.
  2. EU data protection measures will raise challenges for U.S. businesses.  U.S. businesses will need to carefully monitor EU privacy developments in the coming year, because those developments may well impact businesses that provide services to EU citizens.  In recent years, Safe Harbor protections have provided U.S. businesses with a reliable means of privacy clearance for handling European personal data.  The Safe Harbor procedures are now under sharp scrutiny, and there is serious concern that the Safe Harbor will be substantially narrowed.  European privacy regulators have also stepped up enforcement against U.S. businesses operating in Europe.
  3. FTC’s authority over privacy issues will be addressed.  The Wyndham and LabMD cases raise a fundamental challenge to the FTC’s authority to establish data security standards under Section 5 of the FTC Act.  The Wyndham case is pending in a New Jersey federal district court, where Wyndham’s position is backed by several notable amici, including the National Chamber Litigation Center; the LabMD case is an administrative action currently before the FTC.  With the FTC showing heightened attention to privacy issues (including planned seminars on mobile device tracking, consumer-generated health information and predictive behavioral “scoring”), the results of these cases will be closely watched.  Relatedly, FTC Chairwoman Edith Ramirez recently stated that she favored additional federal legislation requiring companies to notify consumers of data breaches, and providing the authority to impose civil penalties.
  4. Commercial applications of geolocation, biometrics, and the Internet of Things will raise further privacy issues.  Technology that enables geolocation tracking, and the use of facial recognition or other biometrics continues to emerge, with new uses increasingly appearing in stores and mobile apps.  The FTC also appears to be keenly interested in the privacy implications of the interconnectivity of personal devices (also known as the Internet of Things), such as wearable health and fitness devices, home appliances and the like.  Expect these issues to receive increased attention from federal and state legislators, regulators and the plaintiff’s bar. 
  5. Is there privacy in social media?  Businesses, educational institutions and others will continue to be challenged by the privacy implications of social media.  When, for example, should an employer be forbidden from scrutinizing its employees’ use of social media?  On the other hand, when should an employer be held liable for potentially tortious conduct that is manifested in some way by an employee’s use of social media (for example, an employee stalking or harassing a fellow employee or customer)?  Similar questions of balancing privacy and security face educational institutions, which may seek to screen applicants and current students for a variety of reasons, including character checks and campus safety. 
  6. Will drones be cleared for takeoff?  Privacy issues relating to the use of drones gained increased attention with Jeffrey Bezos’ revelation on 60 Minutes that commercial package delivery might be accomplished via drones.  While this particular use of drones remains experimental, the story showed how drone technology has become increasingly accessible, as it is currently used for research, environmental monitoring, aerial photography and the like.  In November, the Federal Aviation Administration released a “road map” for the use of domestic drones.  This road map, however, did not impose specific privacy protections, leaving those issues for site operators and legislators to resolve.  Several members of Congress, as well as state legislators, have already shown an intent to more rigorously address privacy issues relating to the use of commercial drones in the coming year.
  7. State AGs are not expected to go away soon.  It is clear that state attorneys general have become active players in policing privacy issues, particularly those involving data collection and use by businesses.  Because of the national scope of services offered by many businesses, it is increasingly common for a business to find its activities subject to a patchwork of privacy requirements imposed by numerous states, particularly California.  Expect this trend to continue in 2014.
  8. Big Data poses big questions in public and private sectors alike.  What, exactly, is being done with all the data gathered by government and commercial entities, is the question many have asked over the past year.  The extent of the data collected, the responsible and ethical use of the data, and the security of the data, are issues that lie at the core of the public debate over privacy regulation.  In 2014, watch for more questions to be raised regarding the use of data gathered by non-profits, particularly political parties. 
  9. Cybersecurity regulation still in the starting blocks, for now.  In 2013, negotiations over federal legislation to establish formal cybersecurity standards failed to result in an agreement, largely due to disputes over liability protections for businesses compliant with proposed standards, and the proper balance between security and privacy.  Although Congress is expected to continue to consider this issue, it is more likely that voluntary cybersecurity guidelines will emerge through the work of the National Institute of Standards and Technology.  While these voluntary standards will receive considerable attention, expect them to be given time to work before Congress is able to reach agreement on mandatory standards.
  10. Data breach litigation will continue to influence best practices in cloud computing and data security.  The privacy class action bar continues to aggressively pursue data breach cases, often facilitated by a changing landscape of state law.  Of particular interest as businesses move to cloud technology will be questions regarding the parties’ respective duties when personal data is stored and shared through the cloud.  Standing and damages issues are also likely to be prominent in data breach litigation.

IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. tax advice contained in this informational piece (including any attachments) is not intended or written to be used, and may not be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

Written by:


Goodwin on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.