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On April 10, 2015, Paul Schiff Berman, professor of law at George Washington University Law School moderated a discussion on government surveillance and the right to privacy in the digital age. The discussion began with each panelist expressing their view as to how the law is adapting to protect privacy in the face of advanced surveillance technologies. Professor Berman then posed rapid response questions, fostering an interactive and lively discussion among the panelists.
Katherine Jo Strandburg, Professor of Law at New York University School of Law, set out the legal landscape regarding metadata collection, warrantless wiretapping of emails, and access to cloud data storage. She stated that the internet, cloud storage capabilities, and the globalization of surveillance have outpaced our privacy laws and theories. Notably, there is a breakdown of the concept of territoriality when data is online, raising difficult questions about the principles that underlie warrants and treaties when we are dealing with materials in cloud storage.
Nathan Sales, Associate Professor of Law at Syracuse University College of Law, posited that the privacy challenges we face today are not particularly novel as a doctrinal matter. What is new, according to Professor Sales, is the volume of information that can be collected and how technological advances change our understanding of privacy itself. Professor Sales provided interesting examples of the Supreme Court’s evolving notions of privacy depending on the historical context.
Even before Snowden came onto the international scene, there was a slow accumulation of international examination of privacy laws. Dinah PoKempner, General Counsel of Human Rights Watch discussed legal challenges to the EU’s Data Retention Directive and a report on communications surveillance by UN Special Rapporteur Frank La Rue. Ms. PoKempner noted that surveillance is a subject that is inherently evasive of judicial review and argued that we should push for more whistleblower protections in this arena.
On the subject of privacy law reforms, Professor Sales favors judicial modesty, preferring an institutional response that allows for changes in laws and social expectations. Professor Sales argued that the legislature better reflects the populations’ view of privacy and is more responsive to technological and social changes. His concern is that relying primarily on courts to regulate privacy risks freezing today’s conception of privacy and hindering technological progress. Katherine Strandburg disagreed with the view that responsibility for reform should be placed with the legislature. She argued that, while legislative reform may bring about positive changes, privacy raises questions of protecting groups not otherwise protected in the legislature and is, therefore, a role better suited for the courts.
The panel’s discussion was very informative, especially in identifying and evaluating the laws that apply to government surveillance and corporate conduct. The panelists revealed the difficulties facing privacy laws in a world of evolving technological capabilities and raised interesting questions as to which entities are best suited to take on this challenging reform.
Veronica Glick is an associate in the Washington D.C. office of Debevoise & Plimpton LLP.