Managing Data and Privacy in Commercial Transactions

Historically, privacy and data security were not significant items in commercial transactions. A standard confidentiality clause would typically do the trick. However, as the commercial Internet began to take off in the 1990s, privacy became a major issue. Increased activity by the FTC under its Section 5 authority led to allegations of deceptive and then unfair trade practices. Most companies singled out by the FTC signed settlement agreements, thereby subjecting themselves to 20 years of scrutiny. For many companies, this was a wakeup call to pay attention to privacy issues. Randy Sabett of Cooley LLP covers the various privacy issues that exist today and how those issues evolved from the early days of privacy awareness.

Fast forward almost two decades, and we face another related (but slightly different) set of issues. In the early part of this millennium, data security began its ascent into the consciousness of the corporate world. We now have data breaches happening with more regularity, regulators becoming more involved with these kinds of issues (including significant involvement at the state level), and a greater level of enterprise awareness (including, in part, due to such industry efforts as PCI-DSS).

This seminar examines these trends and focuses on the present-day compliance needs and liability exposure of organizations resulting from the increased attention on protecting sensitive information. Mr. Sabett analyzes a number of different topics, both technical and legal, that can impact an organization. He focuses on how at least some of those issues can be covered in agreements between parties involved in commercial transactions. In addition, an assessment of corporate and board-level awareness identifies who should be involved in these issues and at what level.

Learning Objectives:

I.    Become aware of regulatory drivers behind today’s hypersensitivity to privacy and security

II.   Appreciate the policy underpinnings for various international, federal, and state approaches to data security

III.  Understand the impact of the above issues on commercial transactions

IV.  Offer examples of situations where litigation arises from these situations

V.   Identify ways to lower the risk of litigation and/or regulatory action