09:51 PM

The Privacy Lawyer: Patriotism, Compliance, And Confidentiality

Is it unpatriotic to demand a court order before turning over information under the Patriot Act, Parry Aftab asks?

Thought you understood privacy and data-sharing laws? Think again. The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the law known under the acronym Patriot Act) has changed most other privacy laws and what businesses must do when the government comes calling. Some laws were expressly amended and others practically superseded. But it's very confusing either way. And if you make a mistake, the consequences can be serious.

Section 215 of the Patriot Act amends the Foreign Intelligence Surveillance Act of 1978 which authorizes the federal government to request (and obtain) any "tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities."

As we've learned since Sept. 11, 2001, flight-school rosters, records from educational institutions, vehicle-rental applications, and travel documentation are fertile ground for information about potential terrorists. So, arguably, are search-engine requests, surfing activities, E-mail and instant messaging communications, Web-hosting information, employment records, health-care treatment records, credit-history documentation, library-borrowing records, videotape rentals, telecommunications, and online purchases.

So, how does the Patriot Act affect our privacy and data-management compliance activities? Let me count the ways ...

Significant privacy laws provide for disclosure of personally identifiable information only pursuant to a court order or subpoena. These include the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 (HIPAA); the Cable Communications Policy Act, 47 U.S.C. 551 (CCPA); the Children's Online Privacy Protection Act (COPPA); and the Telecommunications Act of 1996, 47 U.S.C. 222.

So what's the problem?
There are a few. While the Patriot Act has made it easier to obtain a court order, federal agents often seek a quick and voluntary disclosure of the information being sought. And, understandably, they often get it. But given the strict limits on what kind of personal information can be shared with law enforcement absent a warrant or court order, can and should a company comply with a voluntary request? As tempting as it may be to voluntarily cooperate, the company may face legal liability if it does.

Secondly, even if the company insists on receiving a court order, warrant, or subpoena before providing the requested information, businesses may face civil liability for violating their own privacy policies. The privacy policies may be posted at their Web sites, included in customer disclosures, or contained in the employee handbooks. They may be mandated by law (in the case of financial institutions under Title V of the Gramm-Leach-Bliley Act, 15 U.S.C. 6801 et seq.), or voluntarily created. Once in place, however, they become a contract between those relying on the policy and the company. Yet, too often, they are merely copied from another Web site, or from another company's form and rarely, if ever, looked at again. That's when things go seriously wrong.

These privacy policies often omit any explanation of how the company will handle your data if a law-enforcement agency requests it, or shows up with a warrant or court order. Even though the company may have no choice but to comply, absent a policy provision to the contrary, the beneficiary of the privacy policy may be able to sue the company for failing to comply with the policy. This applies to relationships between employer and employee, business and consumer, and business to business.

In addition to violating your privacy policies, compliance with the Patriot Act may also violate your non-disclosure and confidentiality agreements, especially if your non-disclosure and confidentiality agreements require that you notify the other party before turning over information covered by the agreement, since the Patriot Act prohibits notification to the person being investigated.

What can you do about it?
If a law-enforcement agent arrives asking for your voluntary cooperation in turning over personally identifiable information in your possession, as much as you may want to help, you need to be sure you aren't risking legal liability for doing so. Let them know right away that you may not be able to comply voluntarily, even if you would have liked to. Obtaining a court order isn't very difficult under new, lower thresholds and one can usually be obtained in a few hours. You can use the time during which the order is being obtained to gather the information together and see if any non-disclosure agreements of privacy policies are affected by the turnover. But the best time to check and see which privacy laws, agreements, and policies apply to your company is long before the federal agent knocks. It should begin long before your company is even a twinkle in a federal agency's eye.

Privacy regulation is tricky, and your in-house or outside counsel may need to consult with an experienced privacy lawyer to spot issues early on. Conducting a privacy audit also is a good idea. Many privacy counsel and consulting companies can do a thorough preventive audit and advise you in advance of the risks you face and how to better manage those risks. The cost of these audits is more than made up by reduced legal exposure. If the laws that apply to your company require a court order before personally identifiable information can be disclosed, you need to know that as early as possible. If the laws that apply to your company permit disclosure pursuant to legal process, you need to know that, too. Then make sure you have a procedure if anyone comes looking for personally identifiable information. This isn't something that should be left to your risk manager or security director to handle. It should be bumped up to legal counsel right away. And the lawyers should be expected to advise the company's decision-makers on the spot. That requires substantial preparation and planning.

Forewarned is forearmed when it comes to privacy compliance, especially when law-enforcement agents are involved.

Parry Aftab is a security, privacy, and cyberspace lawyer, as well as an author and child advocate. She advises some of the leading corporations in the world on privacy and online security matters, including cybercrime, abuse prevention, and risk management. A substantial portion of her time is devoted to Internet issues involving children, from equitable access to privacy, safety, and helping develop quality and reliable content for children. She also donates her time to running the world’s largest online safety and help group,, which is comprised of thousands of volunteers from around the world.

To discuss this column with other readers, please visit the Talk Shop.

To find out more about Parry Aftab, please visit her page on the Listening Post.

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