Inside Privacy - Updates on Developments in Global Privacy & Data Security

Yesterday the Department of Transportation issued its final rule on "Enhancing Airline Passenger Protections."  The proposed rule had been published in December 2009 and received over 2,000 comments.  One of the most controversial aspects of the original proposed rule was a requirement that airlines must provide all their fare and product information to Global Distribution Systems (GDSs) to enable full disclosure of product and price information to consumers.  Most airlines and a number of commentators pointed out that this proposal would have a number of unintended consequences which would be detremental to consumers, including impacting the privacy and security of passenger information.  The GDSs and travel agency groups disagreed and welcomed the requirement.  In Monday's final rule the DOT states that it needs more time to consider this issue in relation to the GDSs and thus has deferred its decision on this requirement.  Thus the debate on this topic will continue.

I attended the ABA's Antitrust Law Spring Meeting the last two days.  What struck me the most was the increased prominence of data and privacy as factors in analysis of markets and competition in antitrust law.  This was the topic in the Chairman's Showcase session on Thursday.  Julie Brill, the FTC Commissioner, perhaps made the point the best.  She explained that if privacy is becoming a competitive differentiator (e.g., consumers are persuaded to use one service over another because the chosen service has better privacy practices), then privacy is clearly a non-price factor in competition law analysis.  Commissioner Brill provided an overview of the FTC's report on consumer privacy and emphasized three parts of the report: privacy by design, transparency and choice.  She also emphasized that the FTC was focused on the fact that technical approaches to privacy solutions could impact competition in the market.  However, her view was that standards bodies would mitigate against this concern.  Ken Anderson, Assistant Commissioner for Privacy in Ontario provided an explanation of privacy by design.  Much of the information from his presentation is readily available in a useful video presentation at  www.privacybydesign.ca. 

HP demonstrated an automated tool that it is testing as part of its privacy by design implementation which looked impressive. The HP "Accountablity Model Tool" sends records and reports to the HP privacy office as products are developed.  Google introduced the audience to the "data liberation front" which enables users to extract their data from Google products - see www.dataliberation.org.

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