Behind the Lens: Ethics of Surveillance and FTC Proposed Regulation

Overview of Behind the Lens: Ethics of Surveillance and FTC Proposed Regulation

This program brings together four practitioners working in privacy, cybersecurity, and law enforcement to discuss how surveillance is defined and carried out today. The panel reviews the basic elements of surveillance and electronic surveillance, including the role of consent, the distinction between corporate and government monitoring, and the blurring of that line when government entities purchase commercially collected data. The discussion covers the range of surveillance types in use, including covert, asymmetric, participatory, and detection-from-a-distance methods such as drone and audio-based monitoring, and considers how internet-connected devices expand what can be collected. The panel then turns to the ethics of data collection, contrasting the U.S. approach to personal information with the consent-based framework under Article 6 of the GDPR, and discussing FTC Chair Lina Khan's public position that online tracking of sensitive data should require explicit consent. Speakers debate whether government purchase of commercial data changes the ethical analysis, and examine how certain categories of data, including reproductive health information, sexual orientation, health records, and ethnic origin, have been treated differently under emerging state laws such as Washington's My Health My Data Act. The program closes with a discussion of the FTC's Advance Notice of Proposed Rulemaking on Commercial Surveillance and Data Security, the agency's reliance on its unfair and deceptive trade practices authority, and the practical difficulties of drawing workable lines around permissible data use. Panelists also discuss the prospects for a federal data security and privacy law, including the unresolved debates over a private right of action, preemption of state law, and the scope of FTC rulemaking authority, and note the effect of the repeal of Chevron deference on that debate.

What you’ll learn in Behind the Lens: Ethics of Surveillance and FTC Proposed Regulation

• Identify the elements commonly used to define surveillance and electronic surveillance, including the role of consent and awareness.
• Distinguish between commercial surveillance, government surveillance, and government purchase of commercially collected data.
• Describe categories of sensitive data that have received distinct treatment under state privacy laws, such as health, reproductive, and ethnic origin data.
• Compare the U.S. consent framework for personal data with the consent-based approach under Article 6 of the GDPR.
• Explain the basis and current status of the FTC's Advance Notice of Proposed Rulemaking on Commercial Surveillance and Data Security.
• Discuss the unresolved issues affecting prospects for a federal data security and privacy law, including private right of action, preemption, and FTC rulemaking authority.

Curriculum

1. 1. What counts as surveillance today

   Watch What counts as surveillance today

2. 2. Consent, data ownership and the ethics of collection

   Watch Consent, data ownership and the ethics of collection

3. 3. Commercial and government surveillance of sensitive data

   Watch Commercial and government surveillance of sensitive data

4. 4. FTC rulemaking and the case for a federal privacy law

   Watch FTC rulemaking and the case for a federal privacy law

Your instructors

Daniel B. Garrie

Founder, Law & Forensics; Neutral at JAMS; Faculty at Harvard

Daniel B. Garrie is the founder and executive managing partner of Law & Forensics LLC, a boutique cybersecurity and forensic engineering firm he co-founded in 2008. He serves as a neutral, arbitrator, and forensic special master at JAMS, focusing on cybersecurity, cryptocurrency, and complex technology disputes, and holds faculty appointments at Harvard and Rutgers Law School. A patented software inventor and prolific author, he is editor-in-chief of the Journal of Law & Cyber Warfare and a widely cited authority on computer forensics, eDiscovery, and cyber litigation.

Wayne Matus

Co-Founder, SafeGuard Privacy

Wayne Matus is a co-founder of SafeGuard Privacy, a privacy compliance software company he started with Richy Glassberg, and has served as its executive vice president and general counsel. His work covers data protection compliance and vendor privacy diligence for the digital advertising and media industries, including the company's Vendor Compliance Hub platform. He previously served as managing director of compliance globally at UBS, where he took on the bank's GDPR obligations; earlier he was a partner in a global law firm in the 1990s and co-founded the privacy practice at the oldest law firm in California. At Legal Cyber Academy he teaches on GDPR liability.

Aaron Tantleff

Partner, Foley & Lardner LLP

Aaron K. Tantleff is a partner at Foley & Lardner LLP in Chicago, in the firm's Technology Transactions, Cybersecurity, and Privacy practice. He advises companies on privacy, data security and information management, including compliance policies and programs, cybersecurity breach preparation and incident response, technology licensing and outsourcing transactions. Before joining Foley he was global director of intellectual property at a NASDAQ-listed information technology and software company and acting associate general counsel at an NYSE-listed global information technology and management consulting company; he also teaches transactional intellectual property law as an adjunct professor at Loyola University Chicago School of Law. He holds a J.D. from Chicago-Kent College of Law and the CIPP/E certification. At Legal Cyber Academy, Aaron Tantleff teaches on the FTC, privacy, and data surveillance.

Cory Simpson

Founder and CEO, Gray Space Strategies, Inc.

Cory Simpson is the founder and CEO of Gray Space Strategies, Inc., a professional services and strategic advisory firm based in Washington, D.C. He has over twenty years of experience across government, the military and the private sector, assisting clients in navigating the U.S. government, emerging technology markets, the cybersecurity ecosystem and national security. Before founding Gray Space Strategies he was a managing director at Ankura and an executive vice president at Resolute Strategic Services. He served on active duty in the Army Judge Advocate General's Corps from 2004 to 2016, spending most of that career as a general counsel in the special operations and airborne communities, a prosecutor and a national security law advisor, and he continues to serve in the Army Reserve as a legal advisor to the U.S. Army Cyber Command. He is a senior advisor to the Cyberspace Solarium Commission (CSC 2.0) and an adjunct senior fellow with the Technology and National Security Program at the Center for a New American Security. At Legal Cyber Academy, Cory Simpson teaches on cybersecurity executive orders and ransomware risk.