The Sedona Conference Working Group 11 Midyear Meeting 2019

A panel of WG11 brainstorming group members will lead a dialogue with all WG11 members in attendance on their outline on the topic. In light of the ever-increasing number of privacy and data security laws being enacted and updated, including data localization laws, the brainstorming group has been exploring the complex decisions global companies face regarding privacy and data security compliance and considering approaches to global compliance, and whether work product on this topic – and in what form – would be useful to practitioners.

A panel of WG11 brainstorming group members will lead a dialogue on their outline which addresses two discrete issues in the CCPA that also arise in other privacy and data security laws: (1) whether a consumer must show actual harm in addition to a mere technical violation of the statute before the state Attorney General or consumer can sue under the statute, and (2) how a “violation” of a privacy or security regulation should be calculated. The dialogue will address these issues within the context of the CCPA and other privacy and security regulations.

The panel will lead a dialogue on some of the most important cases thus far in 2019 in the privacy and data security arena. The panel will cover recent actions and rulings from both the private litigation realm and the regulatory enforcement area, with the goal being to bring WG11 members up to the minute on where the case law currently is at, and more importantly, where it could be heading in the future.

The dialogue leaders will address a range of topics, including recent enforcement regulations and actions, the current focus of agencies, inter-agency coordination, and proposed regulations. The dialogue will also address the interaction between government agencies and corporations regarding current data security and privacy best practices, as well as how companies may permissibly collect, use, share, and dispose of personal and sensitive data.

The dialogue leaders will examine Canada's newly released Digital Charter and related reform proposals under The Personal Information Protection and Electronic Documents Act (PIPEDA) as they relate to companies' ability to transfer data out of Canada. The panel will discuss the reasons for Canada's reevaluation of its data transfer scheme and how companies may handle different mechanisms for transfer, including consent. Dialogue leaders will evaluate whether consent and other suggestions for transfer adequately address the privacy concerns meant to be addressed by reform proposals, and the possible effect of the proposals on day-to-day law firm and legal service provider operations, with reference to the current WG7 (Sedona Canada) member comment draft on law firm privacy and security.

A panel of WG11 drafting team members will lead a dialogue on their draft Commentary regarding what it means to have an “explainable” AI system in the context of data privacy and security issues. The draft Commentary includes foundational design principles that should be incorporated into legal standards governing AI transparency. A few questions, among others, that are of focus: How can one understand and explain the decisions reached by an AI system and its algorithms? How is personal data processed during the decision-making process? How should regulators and private litigants examine perceived issues with personal data processing?

A panel of WG11 drafting team members will lead a dialogue with all members in attendance on a draft Commentary with principles that is being developed to guide the development of data breach notification laws. Drawing upon best practices in data privacy and incident response, the Commentary and principles will describe how data breach notification laws should address different aspects of data breach notification, including what constitutes a notifiable breach, what methods of notification should be permissible, and whether there should be timelines for notification.

WG11 Steering Committee members will lead a dialogue amongst the WG11 members in attendance on progress made on the work product of the Working Group, and by the Working Group as a whole. WG11 member input will be sought regarding the future direction of WG11, including ideas for existing and new commentaries and projects.