“Engineers and Lawyers
in Privacy Protection”
Peter Swire
Professor, Moritz College of Law
Visiting Professor, Georgia Institute of Technology
IAPP Summit
Panel: “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