“Engineers and Lawyersin Privacy Protection”

Peter SwireProfessor, Moritz College of Law

Visiting Professor, Georgia Institute of Technology

IAPP SummitPanel: “Re-engineering Privacy Law”

March 8, 2013

Overview

• How lawyers make simple things complicated

• How engineers make simple things complicated

• Why it is reasonable to use the term “reasonable” in privacy rules

• How to achieve happiness when both lawyers and engineers are in the room

How Lawyers Make Simple Things Complicated

First Year Torts

• Law: did defendant show “reasonable care”?• Is defendant liable?

• What counts as an answer?• Statute• Custom• Jury’s view of a “reasonable person” in the

community

Palsgraf Case

• Exam answer for the famous Palsgraf case• Man climbs on a train pulling out of the

station• Railroad conductor assists man • Man drops package tucked under arm• Oops, firecrackers• Knocks over scales at other end of

platform• Scales hit woman, causing injury

• Is the railroad liable?

Good Law Student Answer

• Exam answer for the famous Palsgraf case• Man climbs on a train pulling out of the

station (man negligent, moving train)• Railroad conductor assists man

(employee violates law)• Man drops package tucked under arm• Oops, firecrackers (foreseeable?)• Knocks over scales at other end of

platform (proximate cause)• Scales hit woman, causing injury

• Is the railroad liable? (Close call)

Slightly Exaggerated Engineer Answer

• Exam answer for the famous Palsgraf case• Man climbs on a train pulling out of the

station• Railroad conductor assists man • Man drops package tucked under arm• Oops, firecrackers• Knocks over scales at other end of

platform• Scales hit woman, causing injury

• Is the railroad liable? (No)

What I Say to the Engineer (I)

• It’s the journey, not the destination• I can’t give you credit unless you write it

down• Show your reasoning• Persuade me, don’t tell me the answer

What I Say to the Engineer (II)

• Your job is on the line• You are the lawyer for the railroad• Will cost railroad $$$ if liable• You have to find every scenario or fact

where we may be able to make an argument

• Spot every issue• Delay if it helps our case – more discovery• Argue for the client, not the “right” answer• Did I say your job is on the line?

“Right Answer” & The Adversary System

• “Beyond a reasonable doubt” for criminal cases

• Defense lawyer just needs one gap in prosecutor’s argument

• The jury decides, so lawyer can try many arguments to make the weaker case appear the stronger

• The defendant wins if prosecutor is only probably correct

How Engineers Make Simple Things Complicated

With Thanks to Stuart Shapiro

• Assignment: our company has to comply with new privacy rule

• Lawyers: • We will apply the Fair Information Privacy

Principles• We know the rules: notice, choice,

access, security, accountability• Engineers:

• How do you write that in C++?

From Legal Rule to Getting it Built

• Privacy principles (legal rules)• General privacy requirements• Contextual privacy requirements

• Business process• System development• Operations• System

• Detailed system requirements• System tests

Data Minimization Example

• FIPP: “data minimization”• “Data minimization” is in Do Not Track for

how long keep data for a permitted use• Security• Anti-fraud• Debugging• Financial auditing

Data Minimization

• Lawyer: “data minimization”• Shapiro as engineer:

• System requirements:• 50 requirements• 100 associated tests

• Input to our system is permitted only for pre-determined data elements

• When query an external database, only queries to the approved data fields

• Executable test – apply to test data and confirm under various scenarios

Why it is reasonable to use the term “reasonable” in privacy

rules

“Reasonable” HIPAA Measures

• Security: “reasonable and appropriate security measures”

• Documentation: “reasonable and appropriate polices and procedures”

• Minimum necessary: “reasonable efforts to limit … to the minimum necessary”

• Domestic violence: “reasonable belief” and can disclose

• Business associate: “reasonable steps to cure the breach”

• And 30 more

The Lawyer & the Engineer

• Software engineer: how write in C++?• Lawyer:

• The HIPAA rule lasts decade or more• Hard to update and amend

• Technology neutrality• Many use cases & business models• FAQs and guidance over time• If are more specific, then will be wrong, a

lot• No better alternative to saying

“reasonable”

How to achieve happiness when both lawyers and

engineers are in the room

How to achieve happiness when both lawyers and

engineers are in the room

What do lawyers know about how to achieve happiness?

Lawyers and Engineers

• Similarities of lawyers & engineers• Very analytic• Can drill down and get very detailed

• (And each is glad when the other gets to do those details)

Lawyers & Engineers

• Differences in output• Engineers build things

• Systems that work and can be tested• The right answer• Testable• It works if it runs

• Lawyers build arguments• A lot of words: “brief”• Adversary system• It “works” if it meets the client’s goals

Conclusion

• In practice:• Need a team• To comply, need lawyers AND engineers• Become aware of how create answers

that count for both• An optimistic note

• In privacy, legal and engineering systems come together

• Your own work improves if you become bilingual

• A challenge and reward if you can work together