Tag: Big Data

Episode 2: The Importance of Data in Legal Business and Legal Marketing with Laura Leopard of Leopard Solutions [PODCAST]

Rachel and Jessica speak with Laura Leopard, the Founder and CEO of Leopard Solutions: a service that provides law firms with data to improve hiring and marketing for the business of law.

Be sure to take the Women Leaving Law Survey HERE and sign-up for the Women Leaving Law webinar on June 2, 2022 to hear the results of their survey.

We’ve included a transcript of our conversation below, transcribed by artificial intelligence. The transcript has been lightly edited for style, clarity, and readability.

INTRO  00:00

Well, hello, and welcome to Legal News Reach the official podcast for the National Law Review. Stay tuned for a discussion on the latest trends, illegal marketing, SEO, law firm best practices, and more.

Rachel  00:15

My name is Rachel,

Jessica  00:16

And my name is Jessica.

Rachel  00:18

And we’re the co-hosts for the podcast. Today we’re speaking with Laura Leopard Founder and CEO of Leopard Solutions. Laura, would you like to tell our listeners a little bit about yourself and your organization?

Laura Leopard  00:28

Of course, of course, we are a legal intelligence company that monitors law firms and attorneys. And we have been doing it for nearly 20 years. And we have grown from a simple attorney list to a detailed current and historical account of attorneys and their movements. And of course, we now offer competitive and business intelligence for law firms and the market in general. And I have been at the helm for nearly 20 years.

Rachel  01:02

We’re excited to get your insight into some of those more data-driven trends here in the industry. So the first thing that we want to focus on is the importance of data and legal marketing and legal business. One of the things that I hear pretty often is that law firms are data-rich and information poor. So can you explain a little bit about why that is and how law firms can solve for that problem?

Laura Leopard  01:26

Well, I think that was more generally true in the past. But today, many law firms are correcting that issue, because they’re hiring intelligence professionals to come in and help them mind and understand their own data. The other side of the coin is gathering external data on their competitors so that they can benchmark their own shortcomings and successes properly. And that’s where we come in. We measure law firms across the board, and we deliver those benchmarks that they need. Well, several years ago now, we had prepared a detailed report on a law firm and the top 200, about their ROI on lateral hiring and entry-level hiring. And we showed it to you know, prospective law firm. And we offered to write one for their firm, and then also a list of their competitors, you know, of their choice. And their response was, “this is very interesting, but I’m not sure what we could do with it.” And it just proved to me at that time that firms and leopard both needed to do a better job of explaining the value of the data, and how it could be used. So we developed firm scape, which is our competitive intelligence platform. And it’s filled with great data. And people were very excited to see it. But then again, only people who could readily understand what it offered, really benefited from it in really meaningful ways. So when we wrote our Business Intelligence platform, we wanted to just carefully lay out what everything meant, in clear, concise terms, so that meaningful measurement would be readily understood. You know, everyone gets very excited about data. You know, “big data, big data, data-data-data.” But not everybody understands the application of that data, what that data could mean. And that’s where we have hoped to sort of democratize data in a sense of laying it out in a way that anybody can understand it, not just data people.

Rachel  03:36

Yeah, I think just being empowered to look at it is also really great. Because I think some people can get a little intimidated by data like, “Oh, it’s just a lot of numbers,” like what the numbers mean. So one of the trends that we’ve seen, and that we’ve talked about recently is women leaving the legal industry and what that means for the profession. We published a Q&A that you did with Stefanie Marrone, about this topic. We’ve had her on the podcast before; I was curious if you could dive into this trend and talk about why this is happening and how law firms can respond to it?

Laura Leopard  04:07

So we did a survey, and it’s still in progress. We’ve had about 170 responses so far. And I have to tell you, it was incredibly depressing to read the comments and the answers that they had about why they left their top 200 law firm. And a lot of it was much of what you might suspect, you know, lack of opportunity, lack of mentorship, a feeling of not being included, you know, in the group and just really lack of opportunity stood out, you know, a great deal. So we decided, well, we can’t just we can’t just, you know, do a report. We’re gonna do a presentation in May about this at the Art conference. We really wanted to dig in deeper. So we’ve been doing interviews with women who have succeeded in the top 200 Who are partners at their firm, and they’re leading women’s initiatives, and they’re doing some really great things. And we’re learning a lot in the whole process, I didn’t want to just say, here’s a big problem, you should fix it. It’s like, Here are ideas about how you can fix it. And here are examples of where those ideas are actually succeeding in top 200 law firms. But I think the really important thing that we took away after reading a lot of this was these same problems exist for attorneys who are also underrepresented, and from who are ethnically diverse. And there are also, you know, white men at the firms that have issues because they have a family members who is ill, and they have to step away. And there’s lots of there’s, there’s lots of problems here. But there are ways to fix them. And that’s what we’re working on. Right now. We are doing some great interviews, we’re coming away with some really positive ideas. And we have some firms that are really doing some great work. And we want to share that with everyone. This is not a problem that cannot be fixed. This is a problem that can be fixed, if one wishes to fix it, and everyone is determined to see it through. And for us, it’s really important to talk about this topic, we are a woman-owned business. I’m a woman entrepreneur, we have all experienced, you know, sexism, we have all experienced some lack of opportunity in our lives. And this is really important for us to start this conversation again, or remind people this conversation needs to be ongoing and continuing. So after our presentation, we’re going to we’re going to do a webinar at leopard, we’re going to invite some great folks to speak at that webinar, we’re also going to do a full white paper. But this is one of one of something that’s really, really important to us. And I really hope it can open a lot of eyes and help move the needle to helping women succeed in those top 200 firms and in law in general.

Rachel  07:13

We talked on the show before about how COVID has sort of given people the opportunity to make change that their law firm their ongoing, I think, you know, we did speak in the past year about how COVID did push women out of the workplace. But like, I think moving forward past that and not using that as like an excuse to go back to the way things were and to make long-lasting change, I think is really important. So I was curious if you could share maybe some of the solutions that you know, law firms could implement to help remedy this problem, or if that’s something that will come later with with your white paper and after your presentation?

Laura Leopard  07:48

You know, having a strong mentorship program is really important. And you can have assigned mentors, but you also have those sort of like those volunteer mentors on the side. And not just not just women mentoring women, but men also being mentors to women. The same problem exists for those who are ethnically diverse, if you have a program in place, or everyone is assigned a mentor, then you’re you’re going to help them overcome that hurdle, flex time paternity and maternity leave and not just saying we offer maternity leave, but by saying we encourage you to take maternity leave, right? If as many men took maternity leave, as women take maternity leave, it sort of removes that stigma from a woman having to take that time off, there are some really concrete things that can be done that can make a huge difference. And, you know, the women did not just leave these firms due to COVID. They left because it became untenable to stay for many different reasons. And a lot of it had to do with flexibility on the job, right? Yes, they were. Some of them were home with children. But a lot of people that answered this survey didn’t have children at home. But this entire pandemic caused people to think differently about their lives and their situations. Women are not alone in feeling this way. Right. So there are lots of young people now that are coming, you know, coming into law firms that are saying, I don’t I don’t want to work 80 hours a week. I like being home. I like having time to myself, that’s important to me. And the pandemic showed a lot of people how important that other part of your life is, right? It’s it’s a big bargain to make when you say I’m gonna work this hard for this long and I’m gonna make partner but some of the people that responded to our survey says, here’s here’s a here’s a newsflash when you make partner, that doesn’t get any better. If anything, it gets worse. worse, there are more responsibilities on top of you, you have to continue to work those crazy hours. And you have to do business development and you have administrative duties. And and and so if you are questioning, you know if this is the lifestyle for you. And I actually did have someone say that. So if you really care about having a lifestyle with your family and friends that may be this, this choice isn’t for you, I’m gonna flip it back on its head and say, Do you really want well rounded, happy, well adjusted people working for you, somebody that’s working 80 hours a week is not going to fit that bill, right? Because that’s all they do. That’s their single focus. And they’re going to burn out, and they’re going to leave you just when you need them. So taking a more holistic view, and saying, you know, and this was this was a quote, I had a partner say, I was told when I, you know asked for flex time, my partner said, I would rather have you at 50% of your normal time than many of the people that work for me at 100%. Because you do the job that I need you to do. It’s it’s time that law firms start thinking about the future, things never stay exactly the same, right? The whole hierarchy of law firms that we know now was created, what 100 years ago, when men were the only people that were lawyers, and they had wives and housekeepers and stuff at all. Right? That’s not the world we live in anymore. And we’re also beginning to question, you know, all the young people coming up are questioning everything. They’re questioning authority, they’re questioning why they have to do this and why they have to do that. And when they say, this isn’t a life, that’s for me, I don’t want to be partner. What does it do to that old model? You know, you’re there, there’s going to have to be an inflection point where they start to think about what is going to happen at their firm five years from now 10 years from now, when this generational divide, you know, really takes place. And here’s another newsflash. According to our data for the last three years ago, I think entry level hiring coming out of law school was about 5050 men and women, then the women edged out the minute, then the women rose again, there are far more women in college and far more women in law school than there are men, and they are outnumbering men being hired on that entry level position. But if those women don’t stay, and if those women leave, because you are asking, you’re creating an untenable situation for them, what’s going to happen to your partner track, then what is going to happen to that wealth of knowledge that that person brought to your firm, and she’s gonna walk away with, there’s, there’s going to be a reckoning in the industry, because times have changed, and people have changed. And it’s going to be interesting to see how it plays out. But we can see by looking in the data that they’re, they’re going to be, there’s going to be some shockwaves. And as we start, at the Women’s seminar, we’re going to be, you know, measuring all kinds of exit data and comparing it, you know, one against the other. But it’s time that firms really start to have more of a forward view about what kind of law firm they’re going to be 10 years from now, because that’s really going to impact one thing they care about most. And that’s their bottom line.

Rachel  13:46

What has been the impact that you’ve seen, like this, this lack of information?

Laura Leopard  13:54

I think we all can say, you know, pretty clearly, if you are not using data to make decisions, you’re gonna pay a price for it. You know, data improves decision making, and it can help you predict, you know, competition stresses, and then by tracking industry trends, you can begin to predict future moves a little more successfully. Of course, you have to be, you have to have really, really good data, right? If you’re using bad or incomplete data to make decisions, you might as well not use it at all. So, data quality has been very central to our business. Our data is checked and rechecked and continually updated in order to offer the best possible dataset. But I think data itself should be demystified you know, to a certain extent, by making it clear why a particular dataset matters, right? firms should care about employee turnover because it costs their bottom line and I’m not just talking about a few dollars here and there. I’m talking about Millions of dollars. And firms should care about where their competitors are opening new offices because it shows possible opportunity that they didn’t see, firms should care about who their competitors hire, to see where their next focus will be. And perhaps they should look there as well. Are, is there a competitor building up a practice that competes directly with them in their city? Are they looking at your people to possibly, you know, recruit out of them? Lack of data and insight just leaves a firm operating blindly, just by their instincts and granted, instincts are great, but they can go horribly wrong. If you look in our growth decline report now, which kind of shows that winners and losers by you know, headcount, you will see firms in the bottom of that tear that you never would have guessed would be there just a few years ago, those other firms saw an opportunity that the others didn’t, and they seized it. So data can really make or break, you know, your company, relying on your gut and anecdotal data that people bring you. It’s just not effective. I, you know, law firms love to call around and ask a recruiter. So what’s hot right now? Or what’s what’s going on right now, this was one of my favorite stories. They they talked to a recruiter, the recruiter said, Oh, the Chicago market is so hot right now. It is so hot. It’s just on fire. And I look back and I looked at our data and and like, it’s, no, it’s not, there isn’t more movement, there isn’t more job openings, that one recruiter happened to be a lot busier in Chicago than anybody else. So all of that anecdotal data like that is meaningless when you can compare that against really hard, true facts. And that’s what they really need to start doing.

Jessica  17:00

Without giving away the “secret sauce” if you will, the metrics that these firms are using for hiring specifically is that, you know, the number of job openings, like you said. I mean, what are what would you say are maybe 1-2-3 of the big numbers they’re paying attention to with hiring specifically?

Laura Leopard  17:16

Well, you know, on our platform, one of one of everyone’s favorite, you know, reports is, is that growth decline report so they can see who is who is growing quickly, and adding a lot of people to their firm. You also can see firms who who are in churn, right, they lost 100 people, they hired 100, people, and firms will use that report to find firms that it might be easier to pry people away from, right. So if you have a firm, that’s negative 15, in headcount, and people are exiting that firm like crazy, well, you have an opportunity to go pick up those people there. You also can look at our lateral reports. And you can see where the hot markets are, you can slice and dice it by practice area by specialty, you know, by far by all different kinds of metrics. You even can look at, you know, gender movement, and those who are ethnically diverse, there’s lots of different ways to look at it, but it gives you a good market view. And of course, we do have, we have a job program where we are looking at over 1000 law firms every day in real time. And I’ll tell you, you know, when the pandemic happened, we normally had like six to 7000 jobs and our job program. During the pandemic, I think in like July of 2020, that number went down to about 3000. And most of them, I don’t think were really real openings. Anyway, there were openings, they just sort of left on their website. And now we have over 12,000, approaching 13,000 openings in a program. So that will just tell you the velocity, they also can. And our job program is great for CIA too, because you can go in and see how what your competitors are looking for how they’re framing that position, like right now, we know everyone’s looking for corporate m&a people, right? How are they framing that job? How can you make yours look more attractive? What can you do to you know, sort of get an edge in that market. And there’s lots of other reports that we have that can help them gain advantage. But those are probably, you know, the top the top three, just seeing what’s going on in the market.

Jessica  19:31

With all the changes in the legal industry, I think there’s a huge focus right now, not only in just data and the services you guys offer, but also diversity in the workplace. So I would love to know–I know you mentioned a little bit of it, but being able to see you said gender maybe changes are hiring, how to make it attractive to certain diverse populations of people so that you know, the law firms represent their communities, if you will. Could you explain a little bit more of that? I would love to definitely learn more.

Laura Leopard  20:00

For years, we had been asked to have diversity information in our database. But we just thought it would be incredibly hard, we weren’t sure how we wanted to do it, it was it’s it, you know, having that kind of information in the database is a little risky. To a certain extent, you have to be really careful and really think things through. Then the summer of George Floyd happened, we were in the middle of a pandemic, things were kind of crazy. But when that happened, we all you know, on our, our, you know, our little community of folks at leopard said, we have to do something, we have to do something. So we put all of our heads together. And we said, well, here’s how we might do it. And we knew about the Mansfield rule and, you know, diversity lab who are great folks. And we knew how they handled their data. And they really, were asking for data, they really wanted law firms to be able to go in and find people that were diverse in order to bring them into the hiring game. So we took a page out of their playbook, and we said, Okay, if we put diversity in our database, we’re only going to show it to people who we think are going to use it correctly. So if a law firm is a member of the Mansfield rule, they get the diversity data, we don’t charge an extra penny for any of this, we spent months doing research on every single person in the US in our database, to see if they might be ethnically diverse. And what we did was we, we went on a probability score. So if we look at where they’re from languages, they speak committees that they belong to, like we sort of look at all of their data points, then we can come back and say, Okay, we think there was a high probability, this person could be ethnically diverse. If you are a member of the Mansfield rule, you can access and you can view those attorneys. If you’re not, then you can sign the leper diversity pledge. And with that, you are promising to use that data in the correct way, which is to include not exclude, and to really look at these people, you know, in order to bring them in front of the hiring committee of a law firm, in order to move that needle. We also put safeguards in the database in place, so that those people could never be excluded from a search, they could only be included, you can only see them when you want to find them. And we did the same thing for gender. So we moved because there were other gender issues that we wanted to recognize and acknowledge. So you have a high probability of being gender diverse or low probability of being gender diverse. So now, because because we took those steps, we are also able to report on diversity, and every single law firm in our system. And that means if you are a diverse candidate, you’re going to you’re going to be able to know, you know, or a recruiter can show you or the law firm can show you what their diversity score is, in comparison to the other law firms that they may be considering. Everyone. Everyone gets a score, everyone sees you know, how well they’re doing or how poor they’re doing. And law firms can use this in their conversations with people that they want to bring in. And let them know that they are growing diversity within their firm, you can see it in the growth decline report, you can see who’s growing in ethnic diversity numbers, who’s growing in women numbers, it’s all right there for the world to see. And we use the same scoring across the board for every firm. So it’s so it’s all equal. But that was an incredibly important thing for us to do. We spent months with, you know, all hands on deck, getting this data in, and it’s something that we continue to work on all the time. You know, there are people that we have as, as we consider sort of, we don’t have enough information to go either way. Well, we continually go back to see if there’s more information that’s available about that attorney, so we can label them properly, high or low. But being able to do that also led us fold in diversity into our leopard law firm index. So we decided that the normal way that firms are assigned, you know, a grade of excellence, where those scores coming from a once a year list, you know, are really not helpful in today’s fast paced world. We have always seen firms go out of business in the top 200 of emerging they, you know, they go away, they go under, and we wanted something that was real time that would go up as the firm was improving and if the firm Um, you know, hit a bad patch than their score would also show that we have firms in the leopard top 250 that are not in the top 200. We have, we also have firms that are in the top 200 that are not in the leopard top 250 Because our scoring scoring methods are very different. And they’re really database and one of those data points is a diversity number, how well are they doing with diversity. So it is become a part of everything that we do in almost every single report. And in our last leopard law firm index, how well a firm is doing on ethnic diversity is incredibly important. And we wanted to show that by using it as many as many different ways as possible.

Jessica  25:49

I think it’s great to have so many different options of metrics, because I think casting that wide net, as far as what you’re able to keep track of for your firm, allows you to pick up any alarm bells of things that maybe aren’t going as well, like you said of, you know, growth, maybe it’s going down in this area or what have you. So I’m curious to know what some of those alarm bells would be or like red flags in the data that maybe law firms should pay attention to or could affect their business model and moving forward for their growth?

Laura Leopard  26:22

Well, I think all those items that are in that, you know, law firm index, and the score that we give because of it. So we look at metrics that really don’t change over time in the in the sense that we do look at only one little tiny piece of the financial puzzle, which is the revenue per lawyer, but it’s scored over a five year period, because that is really there just to show Oh, it’s going up, oh, it’s going down. So that is available there, and part of that index, but we also use items, the growth decline and attorney headcount, we use the average attorney tenure increases or decreases in that RPL, as I just mentioned, and the ROI, the success and lateral recruitment, and the success and entry-level recruitment. And for the index, we only look at it in the prior 12 months. Because if you are having problems retaining people, the first year they join that firm, we see that we think that is a red flag of something going on at the firm, which is why it’s in the index, we also look at promotions to partner and we look at ethnic diversity within the firm. And one reason that we do that is that companies have said over and over again, they care about ethnic diversity, and they want to work with firms that have a good ethnic diversity number, if that’s true, and if they hold their feet to the fire, then that really must be in the index. And there are other items that we’re looking to fold into that index. But those are the ones that help give that score. There are so many other things, that ROI that I talked about, like in the index, we look at the past 12 months, but you can go back and look, look three years ago, how well did you do in your hiring three years ago? How well did you do that the year before that, because we’re talking about millions of dollars that these firms are losing because they only have a 70% retention of people that they just hired two years ago. And and that is a huge red flag that they really must pay attention to. So then the question is, you know, where’s my problem? Right? So we wrote a report in the in the BI Suite, that really helps you break it down? Is it a practice area issue? Is it a particular office that has an issue, and you can benchmark your firm against your competing firms? I think sometimes when people say, Oh, we have a 80 80% retention rate, that’s pretty good. Well, it’s good until you compare it against some of your competitors who have a much higher number. And it’s also good until you realize exactly how much that attrition is costing your firm, millions and millions of dollars. You know, I’ve also I once had a recruiter and a law firm say, they really didn’t mind the attrition because it was sort of job security for them. Because they kept busy. But really, job security for them is not just it’s making sure you have a successful hire. It’s making sure that those people are happy and they’re getting what they need, is looking to see, you know who might be on the cusp of leaving. We have something in our attorney database called the probability The move, right? So we’re looking at people that have moved in the past and similar circumstances and JD, your range, practice area and all that good stuff. So you can run it on your own firm. And you can see who has a very high probability at your firm that allows you to play defense with those people and help to see if they’re getting what they need, are they happy? Do they need to look at some new kind of schedule? Are they unhappy in their practice area, and they’re not getting an opportunity to change it, there’s a lot, a lot of things that firms can do, if they start to use that data to help see where they might have a problem. And we’ve written many reports that could help them do that, again, again, even with the law firm index, it’s not about calling out oh, this is the big winner, this is the big loser, it’s like, you might have a problem. And we’re gonna help you find where your problem is, because this report will show you where you are, you know, far beneath your competitors, this is an area that you have to look at. And that’s what it’s there for is to really help them do better. And we can show them the metrics that say, this is where you should begin looking.

Rachel  31:15

We’d spoke a little bit about at the beginning of our conversation, how law firms are starting to really start to adopt this technology to integrate more data and things like that into their business. I was curious to get your thoughts on how the legal industry has changed over the course of your career in terms of how this technology has been adopted? Have you seen like a paradigm shift in the past couple of years? Or how has that been?

Laura Leopard  31:37

They certainly have changed, but it hasn’t been a change overnight, you know, law firms, both now. And then they use several different kinds of technology for several different purposes. And, you know, data was housed in silos, you know, with multiple programs used by multiple people. And today, you see firms hiring technology teams, to better integrate and manage that data. So that’s a step in the right direction. You know, I have seen firms that have very little data about their own firm, and about, you know, their own alumni. And they’re beginning to recognize that, that puts them at a disadvantage, right. So that recognition is a huge step, and getting the task of just getting all the data in a proper form, and then the right system, that’s a really big undertaking, and only the largest firms can really, you know, kind of take those steps and hiring that technology department, you know, lucky for others, we can kind of step in and provide that market data that CEI intelligence for them. And even for the firms that have, you know, their own CI department, they still need data on their competing firms to use to create that proper analysis and benchmarking. And that’s where we step in to fill that bill. But technology has been getting much, much better in in many law firms, but not all law firms, there will always be some that are sort of lagging behind.

Rachel  33:11

I wonder, you know, when is going to be the point where these people who are lagging behind will start to realize that, you know, if if you don’t change, then you die, essentially, you know, it’s because eventually just not going to be able to keep up with everyone else around you. So I think one of the technologies that in addition to data that we’ve been hearing about is the use of artificial intelligence in you know, recruiting and and other operations. I was wondering if you could speak a little bit about like your experience in using artificial intelligence and recruiting and things like that, and how it can improve those processes.

Laura Leopard  33:46

We have a product that uses AI, that sort of analyzes a possible merger, right, so it can produce possible candidates. And then when you select one, we use all of the data from all the past mergers that we’ve seen in our database, to really say, Well, this is how we think this merger would go based on attrition rates. And then we highlight all the risks points, you know, of that particular acquisition or merger. And that’s, that’s in the BI Suite. An AI for hiring is kind of tricky. So while it sounds like you know, oh, we’re going to use AI and it’s going to eliminate bias. The problem is there will be inherent bias baked in, depending upon the data set that AI is based on. And the legal industry has historically been predominantly white and male for decades. So an AI hiring system based on that data set is going to have bias unless you work to overcome it. If you’re parsing resumes and cover letters is going to need to be trained on you know, being neutral on titles and verbiage. And you know, was key words. Now we like to look at data patterns, which can prove to be, you know, maybe even more helpful than that kind of AI. You know, there’s different processes that firms do almost without thinking, you know, firms do a lot of institutional hiring. And we can show that in data and tell that story. And these are the types of data patterns that you know, I would like to see kind of shake up that hiring model, the one that, you know, may not be serving the firm as well as they thought. But an AI for hiring has always been tricky. And we’ve, we’ve explored some of this ourselves. And then at the same time, we said, Well, wait a minute, it could very well be that the best person at the firm, the one that succeeds the most is always going to be that white male partner that came on 30 years ago. So this is something that we’re working on. And we’re working to see how we could eliminate bias in that kind of report. But it’s, it’s a tricky thing. And it’s I know, a lot of companies outside of law firms have used it. And there have been a lot of issues with using AI in that process. So it’s something you have to watch very closely.

Rachel  36:17

Yeah, I think there’s this misconception that AI is just like, you know, it’s not a person. So how can it you know, make these questionable decisions. But the problem is that, like a person has to build the AI. And it has to be based off of, you know, it has to learn these things from something else. So I can see how that would be a slippery slope. So with that in mind, like do you see…Or I guess, like what technologies do you see changing these processes moving forward? What do you expect the role of technology will be like, in the future?

Laura Leopard  36:49

There are many, there are many hiring issues. And we are working now on a really cool piece of technology. To help with one of those, you know, I talked to I talked to a lot of law firm people who have to do a lot of work, before the hiring partner sits down with the candidate. Because so often that hire can be blown if that hiring partner doesn’t know what to say that I care. So much about lateral hiring is about convincing that person to join your firm. And competition right now is at an all-time high. So what sets your firm apart? You know, why would this top-notch corporate m&a attorney, choose your firm over the five others that he’s looking at, you really have to tell them and you can’t just say, Oh, we’re a great firm with great people and a great culture, you really have to say, how your firm has, you know, grown over your competitors. Let’s say you’re interviewing a woman who’s an IP associate and wants to make partner, well let her know how many women IP partners you have in your firm in relation to her current firm. And if that number isn’t as great, maybe the percentage of growth is great, right? Just convince them that your firm is the best choice by using data to confirm that back. There are always good stories that can be told with data. And we are trying to help firms uncover those and help that hiring partner convey those really positive things. And right now, you can do that. But you’d have to run several reports. And then you’d have to write the analysis and then hand it to the to the hiring partner. So we are developing a tool called the Coach’s Corner, that’s going to do just that. And it’s going to analyze the firm that seeking to hire against the firm with the attorney currently works. And it’s going to map out all the positives that we have in the data for your firm. And that is a really important part of the conversation. Right now the competition is so tight, and it’s so everything is moving so quickly, that they all need, you know, as as much help as they can to paint their firm in the right light if they’re gonna get that higher. So there’s a lot of power on the job seeker right now, especially in certain practice areas and in certain areas of the country. And they want to make sure that they’re making the right choice. All that there’s a lot of strange decisions going on out there. There’s, there’s a race for, you know, who’s getting paid the most. But if you’re all paying the most, how do you decide between one and the other, you have to look at all of that other data to say overall, our firm would be the better choice for you because of a B, C, D, and E. And that’s what we’re trying to do is give them the data for all of those points. So you may see people making decisions based on all of those metrics, and all of those things that that firm offers, as opposed to just monetary decisions, right? Am I going to be happy where I go? Am I going to be able to live the kind of life that I want to leave, all of that’s going to happen and that those firms that are doing that are going to change the dynamic of the rest. So it’s not all about starting salary, and it’s not all about the PPP. There’s a lot more in the mix now. And there may be a reshuffling of firms, as some firms begin to realize they need to change how they do business in order to have, you know, people that stay with them and people who want to join them.

Rachel  40:48

There will be an interesting thing to watch here in the coming years, especially as your company continues to roll out these new tools.

Laura Leopard  40:54

As a group as a women working in law firms, as men working in law firms, we have to look and demand and ask for that change to happen.

Rachel  41:04

Excellent. Well, that’s why we’re so excited to have you on as a guest today to get these ideas and these topics out there! So special. Thanks to you, Laura, for joining us today. We really appreciate it.

OUTRO  41:19

Thank you for listening to The National Law Review’s Legal News Reach podcast. Be sure to follow us on Apple podcasts, Spotify, wherever you get your podcasts for more episodes for the latest legal news. interested in publishing and advertising with us visit WWW dot NAT law review.com. We’ll be back soon with our next episode.

Copyright ©2022 National Law Forum, LLC
For more episodes of Legal News Reach, please visit the podcast page.

The Return of Balance and Proportionality

Oscar Wilde was known for saying “Everything in moderation, including moderation.” For a period of time, we were only confronted with the scary aspects of “Big Data.” Think The Great Hack and the testy congressional hearings that we watched.

But the viral pandemic has thrown privacy absolutism into deeper question, as we are suddenly faced with a problem that in order to be solved must involve finding and tracking people for extended periods of time. We need to decide how to balance the societal need for virus control with the societal good of personal privacy.

Contact tracing is often used as an epidemic control measure. Lawmakers have discussed using the tool in the U.S. as Apple and Google work together to develop an effective contract tracing system. It has been deployed against illnesses such as measles, SARs, typhoid, meningococcal disease, and Ebola. It is currently being implemented in South Korea and China to combat COVID-19.

The Israeli government approved tracking cell phone data of people suspected of having coronavirus, to make sure they self-isolated. This emergency power lasted for 30 days. Israel’s Supreme Court, concerned with the privacy implications of using a military technology to track its own citizens’ daily movements, decided that the government would be required to halt this surveillance technology until or unless the government can pass an extension of that use. Then an oversight group in Israel’s parliament blocked an attempt to extend the emergency measures beyond this week, also due to privacy concerns. A committee member said the harm done to privacy outweighed the benefits.

As I recently wrote, this crisis may be testing sensibilities about privacy. Perhaps I was wrong. Sentiments do not seem to be moving aggressively towards greater data collection, or a sacrifice of consumer rights. Instead there appears to be a return towards measuring the weight of data against the potential for abuse, or grand commodification of personal information. In Israel more than 200 people, some identified through phone location information, had been arrested for violating quarantine. Thirty days of these extreme measures were tolerable. Then the Israelis had second thoughts.

Ulrich Kelber, Germany’s federal data protection commissioner, who recently claimed that the lack of GDPR enforcement was a result of enforcement agencies not receiving enough resources, backed a plan for Germany’s disease prevention agency to use Deutsche Telekom metadata. Considering just a week earlier he deemed tracking individual smartphones to monitor quarantine “totally inappropriate and encroaching measure,” it is apparent that Germany is balancing the harsh reality of the crisis and the immediate need for certain information with this encroachment.

Canada’s Privacy Commissioner released a “Framework for the Government of Canada to Assess Privacy-Impactful Initiatives in Response to COVID-19.” The Commissioner’s Office acknowledged that COVID-19 raised “exceptionally difficult challenges to both privacy and public health.” However, the framework reiterated that “the principles of necessity and proportionality, whether in applying existing measures or in deciding on new actions to address the current crisis,” will govern. Canada too is weighing the need of the information collected against the nature and sensitivity of the information collected.

The European Data Protection Board (EDPB) provided multiple guidance documents regarding COVID-19. Much like its Canadian counterpart, guidance provides that the “general principles of effectiveness, necessity, and proportionality must guide any measures adopted by Member States or EU institutions that involve processing of personal data to fight COVID-19.” These guidelines clarify the conditions and principles for the proportionate use of location data and contact tracing tools. But the EDPB also stressed that the “data protection legal framework was designed to be flexible and as such, is able to achieve both an efficient response in limiting the pandemic and protecting fundamental human rights and freedoms.”

Here in the United States, all eyes have been on the California Attorney General regarding enforcement of the California Consumer Privacy Act, which is set to begin on July 1, 2020. Unlike our neighbors to the North and Europe, there is no significant sentiment of the need for balance or proportionality. Just a reminder that as “the health emergency leads more people to look online to work, shop, connect with family and friends, and be entertained, it is more important than ever for consumers to know their rights under the California Consumer Privacy Act.”

For many sovereigns, this crisis has led enforcement agencies and legislatures to return to the roots of data privacy, which is balance and proportionality. Many privacy laws require a balancing test for entities collecting data. COVID-19 has made these principles re-emerge into the limelight.

Copyright © 2020 Womble Bond Dickinson (US) LLP All Rights Reserved.

ACA Notice Requirements, Big Data Analytics, OSHA Retaliation Final Rule: Employment Law This Week – October 24, 2016 [VIDEO]

ACA Notice RequirementACA Section 1557 Notice Requirements Take Effect

Our top story: The Section 1557 ACA Notice Requirements have taken effect. Section 1557 prohibits providers and insurers from denying health care for discriminatory reasons, including on the basis of gender identity or pregnancy. Beginning last week, covered entities are required to notify the public of their compliance by posting nondiscrimination notices and taglines in multiple languages.

Final Rule on ACA Issued by OSHA

The Occupational Safety and Health Administration (OSHA) has issued a final rule for handling retaliation under the Affordable Care Act (ACA). The ACA prohibits employers from retaliating against employees for receiving Marketplace financial assistance when purchasing health insurance through an Exchange. The ACA also protects employees from retaliation for raising concerns regarding conduct that they believe violates the consumer protections and health insurance reforms in the ACA. OSHA’s new final rule establishes procedures and timelines for handling these complaints. The ACA’s whistleblower provision provides for a private right of action in a U.S. district court if agencies like OSHA do not issue a final decision within certain time limits.

EEOC Discusses Concerns Over Big Data Analytics

The Equal Employment Opportunity Commission (EEOC) is fact-finding on “big data.” The EEOC recently held a meeting at which it heard testimony on big data trends and technologies, the benefits and risks of big data analytics, current and potential uses of big data in employment, and how the use of big data may implicate equal employment opportunity laws. Commissioner Charlotte A. Burrows suggested that big data analytics may include errors in the data sets or flawed assumptions causing discriminatory effects. Employers should implement safeguards, such as ensuring that the variables correspond to the representative population and informing candidates when big data analytics will be used in hiring.

Seventh Circuit Vacates Panel Ruling on Sexual Orientation

The U.S. Court of Appeals for the Seventh Circuit may consider ruling that Title VII of the Civil Rights Act of 1964 (Title VII) protects sexual orientation. On its face, Title VII prohibits discrimination only on the basis of race, color, religion, sex, or national origin, and courts have been unwilling to go further. In this case, the Seventh Circuit has granted a college professor’s petition for an en banc rehearing and vacated a panel ruling that sexual orientation isn’t covered. Also, an advertising executive who is suing his former agency has asked the Second Circuit to reverse its own precedent holding that Title VII does not cover sexual orientation discrimination. We’re likely to see more precedent-shifting cases like these as courts grapple with changing attitudes towards sexual orientation discrimination.

Tip of the Week

October is Global Diversity Awareness Month, and we’re celebrating by focusing on diversity in our tips this month. Kenneth G. Standard, General Counsel Emeritus and Chair Emeritus of the Diversity & Professional Development Committee, shares some best practices for creating an inclusive environment.

ARTICLE BY George Carroll Whipple, III of Epstein Becker & Green, P.C.

©2016 Epstein Becker & Green, P.C. All rights reserved.

European Commission Discusses Big Data

Morgan Lewis logo

The European Commission (the Commission) recently issued a press release recognizing the potential of data collection and exploitation (or “big data”) and urging governments to embrace the positive aspects of big data.

The Commission summarized four main problems that have been identified in public consultations on big data:

  • Lack of cross-border coordination
  • Insufficient infrastructure and funding opportunities
  • A shortage of data experts and related skills
  • A fragmented and overly complex legal environment

To address these issues, the Commission proposed the following:

  • A public-private partnership to fund big data initiatives
  • An open big data incubator program
  • New rules on data ownership and liability for data provision
  • Mapping of data standards
  • A series of educational programs to increase the number of skilled data workers
  • A network of data processing facilities in different member states

The Commission stated that, in order to help EU citizens and businesses more quickly reap the full potential of data, it will work with the European Parliament and the European Council to successfully complete the reform of the EU’s data protection rules. The Commission will also work toward the final adoption of the directive on network and information security to ensure the high level of trust that is fundamental for a thriving data-driven economy.

Article By:

Barbara Murphy Melby
Doneld G. Shelkey
Of:
Morgan, Lewis & Bockius LLP

 

The White House Big Data Report & Apple’s iOS 8: Shining the Light on an Alternative Approach to Privacy and Biomedical Research

DrinkerBiddle

Big data derives from “the growing technological ability to capture, aggregate, and process an ever-greater volume, velocity, and variety of data.”[i] Apple’s just-releasediOS 8 software development kit (“iOS 8 SDK”) highlights this growth.[ii] The iOS 8 SDK touts over 4,000 application programming interface calls including “greater extensibility” and “new frameworks.”iii For example, HomeKit and HealthKit, two of these new frameworks, serve as hubs for data generated by other applications and provide user interfaces to manage that data and related functionality.[iv] HealthKit’s APIs “provide the ability for health and fitness apps to communicate with each other … to provide a more comprehensive way to manage your health and fitness.”[v] HomeKit integrates home automation functions in a central location within the iOS device, allowing users to lock/unlock doors, turn on/off cameras, change or view thermostat settings, turn lights on/off, open garage doors and more – all from a single app.[vi] The iOS 8 SDK will inevitably lead to the development of countless apps and other technologies that “capture, aggregate, and process an ever-greater volume, velocity, and variety of data,” contributing immense volumes of data to the already-gargantuan big data ecosystem.

In the context of our health and wellbeing, big data – which includes, but is definitely not limited to, data generated by future iOS 8-related technologies – has boundless potential and can have a momentous impact on biomedical research, leading to new therapies and improved health outcomes. The big data reports recently issued by the White House and the President’s Council of Advisors on Science and Technology (“PCAST”) echo this fact. However, these reports also emphasize the challenges posed by applying the current approach to privacy to big data, including the focus on notice and consent.

After providing some background, this article examines the impact of big data on medical research. It then explores the privacy challenges posed by focusing on notice and consent with respect to big data. Finally, this article describes an alternative approach to privacy suggested by the big data reports and its application to biomedical research.

Background

On May 1, 2014, the White House released its report on big data, “Big Data: Seizing Opportunities, Preserving Values” (“WH Report”). The WH Report was supported by a separate effort and report produced by PCAST, “Big Data and Privacy: A Technological Perspective” (“PCAST Report”).[vii] The privacy implications of the eports on biomedical research – an area where big data can arguably have the greatest impact – are significant.

Notice and consent provide the foundation upon which privacy laws are built. Accordingly, it can be difficult to envision a situation where these conceptual underpinnings, while still important, begin to yield to a new approach. However, that is exactly what the reports suggest in the context of big data. As HealthKit and iOS 8 SDK demonstrate, we live in a world where health data is generated in numerous ways, both inside and outside of the traditional patient-doctor relationship. If given access to all this data, researchers can better analyze the effectiveness of existing therapies, develop new therapies faster, and more accurately predict and suggest measures to avoid the onset of disease, all leading to improved health outcomes. However, existing privacy laws often restrict researchers’ access to such data without first soliciting and obtaining proof of appropriate notice and consent.[viii] Focusing on individual notice and consent in some instances can be unnecessarily restrictive and can stall the discovery and development of new therapies. This is exacerbated by the fact that de-identification (or pseudonymization) – a process typically relied upon to alleviate some of these obstacles – is losing its effectiveness or would require stripping data of much meaningful value. Recognizing these flaws, the WH Report suggests a new approach where the focus is taken off of the collection of data and turned to the ways in which parties, including biomedical researchers, use data – an approach that allows researchers to maximize the possibilities of big data, while protecting individual privacy and ensuring that data is processed in a reasonable way.

The Benefits of Big Data to Biomedical Research

Before discussing why a new approach to privacy in the context of big data and biomedical research may be necessary, it is first important to understand the role of big data in research. As noted, the concept of big data encompasses “the growing technological ability to capture, aggregate, and process an ever-greater volume, velocity, and variety of data.”[ix] The word “growing” is essential here, as the sources of data contributing to the big data ecosystem are extensive and will continue to expand, especially as Internet-enabled devices such as those contemplated by HomeKit continue to develop.[x] These sources include not only the traditional doctor-patient relationship, but also consumer-generated and other non-traditional sources of health data such as those contemplated by HealthKit, including wearable technologies (e.g., Fitbit), patient-support sites (e.g., PatientsLikeMe.com), wellness programs, electronic/personal health records, etc. These sources expand even further when non-health data is combined with lifestyle and financial data.[xi]

The WH Report recognizes that these new abilities to collect and process information have the potential to bring about “unexpected … advancements in our quality of life.”[xii] The ability of researchers to analyze this vast amount of data can help “identify clinical treatments, prescription drugs, and public health interventions that may not appear to be effective in smaller samples, across broad populations, or using traditional research methods.”[xiii] In some instances, big data can in fact be the necessary component of a life-changing discovery.[xiv]

Further, the WH Report finds that big data holds the key to fully realizing the promise of predictive medicine, whereby doctors and researchers can fully analyze an individual’s health status and genetic information to better predict the onset of disease and/or how an individual might respond to specific therapies.[xv] These findings have the ability to affect not only particular patients but also family members and others with a similar genetic makeup.[xvi] It is worth noting that the WH Report highlights bio-banks and their role in “confronting important questions about personal privacy in the context of health research and treatment.”[xvii]

In summary, big data has a profound impact on biomedical research and, as a necessary result, on those that benefit from the fruits of researchers’ labor. The key to its realization is a privacy regime that can unlock for researchers vast amounts of different types of data obtained from diverse sources.

Problems With the Current Approach

Where the use of information is not directly regulated by the existing privacy framework, providing consumers with notice and choice regarding the processing of their personal information has become the de facto rule. Where the collection and use of information is specifically regulated (e.g., HIPAA, FCRA, etc.), notice and consent is required whenever information is used or shared in a way not permitted under the relevant statute. For example, under HIPAA, a doctor can disclose a patient’s personal health information for treatment purposes (permissible use) but would need to provide the patient with notice and obtain consent before disclosing the same information for marketing purposes (impermissible use). To avoid this obligation, entities seeking to share data in a way not described in the privacy notice and/or permitted under applicable law can de-identify the data, to purportedly make the data anonymous (for example, John Smith drives a white Honda and makes $55,000/year (identified) v. Person X drives a white Honda and makes $55,000/year (de-identified)).[xviii] Except under very limited circumstances (e.g., HIPAA limited data sets), the requirements regarding notice and consent apply equally to biomedical research as to more commercial uses.

In the context of big data, the first problem with notice and consent is that it places an enormous burden on the individual to manage all of the relevant privacy notices applicable to the processing of that individual’s data. In other words, it requires individuals to analyze each and every privacy notice applicable to them (which could be hundreds, if not more), determine whether those data collectors share information and with whom, and then attempt to track that information down as necessary. As the PCAST Report not-so-delicately states, “[i]n some fantasy world, users actually read these notices, understand their legal implications (consulting their attorneys if necessary), negotiate with other providers of similar services to get better privacy treatment, and only then click to indicate their consent. Reality is different.”[xix] This is aggravated by the fact that relevant privacy terms are often buried in privacy notices using legalese and provided on a take-it-or-leave-it basis.[xx] Although notice and consent may still play an important role where there is a direct connection between data collectors and individuals, it is evident why such a model loses its meaning when information is collected from a number of varied sources and those analyzing the data have no direct relationship with individuals.

Second, even where specific privacy regulations apply to the collection and use of personal information, such rules rarely consider or routinely allow for the disclosure of that information to researchers for biomedical research purposes, thus requiring researchers to independently provide notice and obtain consent. As the WH Report points out, “[t]he privacy frameworks that currently cover information now used in health may not be well suited to … facilitate the research that drives them.”[xxi] And as previously noted, often times biomedical researchers require non-health information, including lifestyle and financial data, if they want to maximize the benefits of big data. “These types of data are subjected to different and sometimes conflicting federal and state regulation,” if any regulation at all.[xxii]

Lastly, the ability to overcome de-identification is becoming easier due to “effective techniques … to pull the pieces back together through ‘re-identification’.”[xxiii] In fact, the very techniques used to analyze big data for legitimate purposes are the same advanced algorithms and technologies that allow re-identification of otherwise anonymous data.[xxiv] Moreover, “meaningful de-identification may strip the data of both its usefulness and the ability to ensure its provenance and accountability.”[xxv] In other words, de-identification is not as useful as it once was and further stripping data in an effort to overcome this fact could well extinguish any value the data may have (using the example above, car type and salary may still provide marketers with meaningful information (e.g., individuals with a similar salary may be interested in that car type), but the information “white Honda” alone is worthless). [xxvi]

The consequences of all this are either 1) biomedical researchers are deprived of valuable data or provided meaningless de-identified data, or 2) individuals have no idea that their information is being processed for research purposes. Both the benefits and obstacles relating to big data and biomedical research led to the WH Report’s recognition that we may need “to look closely at the notice and consent framework” because “focusing on controlling the collection and retention of personal data, while important, may no longer be sufficient to protect personal privacy.”xxvii] Further, as the PCAST Report points out, and as reflected in the WH Report, “notice and consent is defeated by exactly the positive benefits that big data enables: new, non-obvious, unexpectedly powerful uses of data.”xxviii So what does this new approach look like?

Alternative Approach to Big Data: Focus on Use, Not Collection[xxix]

The WH Report does not provide specific proposals. Rather, it suggests a framework for a new approach to big data that focuses on the type of use of such data and associated security controls, as opposed to whether notice was provided and consent obtained at the point of its collection. Re-focusing attention to the context and ways big data is used (including the ways in which results generated from big data analysis are used) could have many advantages for individuals and biomedical researchers. For example, as noted above, the notice and consent model places the burden on the individual to manage all of the relevant privacy notices applicable to the processing of that individual’s data and provides no backstop when those efforts fail or no attempt to manage notice provisions is made. Where the attention focuses on the context and uses of data, it shifts the burden of managing privacy expectations to the data collector and it holds entities that utilize big data (e.g., researchers) accountable for how data is used and any negative consequences it yields.[xxx]

The following are some specific considerations drawn from the reports regarding how a potential use framework might work:

  • Provide that all information used by researchers, regardless of the source, is subject to reasonable privacy protections similar to those prescribed under HIPAA.[xxxi] For example, any data relied upon by researchers can only be used and shared for biomedical research purposes.
  • Create special authorities or bodies to determine reasonable uses for big data utilized by researchers so as to realize the potential of big data while preserving individual privacy expectations.[xxxii] This would include recognizing and controlling harmful uses of data, including any actions that would lead to an adverse consequence to an individual.[xxxiii]
  • Develop a central research database for big data accessible to all biomedical researchers, with universal standards and architecture to facilitate controlled access to the data contained therein.[xxxiv]
  • Provide individuals with notice and choice whenever big data is used to make a decision regarding a particular individual.[xxxv]
  • Where individuals may not want certain data to enter the big data ecosystem, allow them to create standardized data use profiles that must be honored by data collectors. Such profiles could prohibit the data collector from sharing any information associated with such individuals or their devices.
  • Require reasonable security measures to protect data and any findings derived from big data, including encryption requirements.[xxxvi] 
  • Regulate inappropriate uses or disclosures of research information, and make parties liable for any adverse consequences of privacy violations.[xxxvii]

By offering these suggestions for public debate, the WH and PCAST reports have only initiated the discussion of a new approach to privacy, big data and biomedical research. Plainly, these proposals bring with them numerous questions and issues that must be answered and resolved before any transition can be contemplated (notably, what are appropriate uses and who determines this?).

Conclusion

Technologies utilizing the iOS 8 SDK, including HealthKit and HomeKit, illustrate the technological growth contributing to the big data environment. The WH and PCAST reports exemplify the endless possibilities that can be derived from this environment, as well as some of the important privacy issues affecting our ability to harness these possibilities. The reports constitute their authors’ consensus view that the existing approach to big data and biomedical research restricts the true potential big data can have on research, while providing individuals with little-to-no meaningful privacy protections. Whether the suggestions contained in the WH and PCAST reports will be – or should be – further developed is an open question that will undoubtedly lead to a healthy debate. Yet, in the case of the PCAST Report, the sheer diversity of players recognizing big data’s potential and associated privacy implications – including, but not limited to, leading representatives and academics from the Broad Institute of Harvard and MIT, UC-Berkeley, Microsoft, Google, National Academy of Engineering, University of Texas at Austin, University of Michigan, Princeton University, Zetta Venture Partners, National Quality Forum and others – provides hope that this potential will one day be realized – in a way that appropriately protects our privacy.[xxxviii]

WH Report Summary: click here.

PCAST Report Summary: click here.

Article By:

Jeremiah Posedel
Of:
Drinker Biddle & Reath LLP

[i] WH Report, p. 2.

[ii] See Apple’s June 2, 2014, press release, Apple Releases iOS 8 SDK With Over 4,000 New APIs, last found at http://www.apple.com/pr/library/2014/06/02Apple-Releases-iOS-8-SDK-With-Over-4-000-New-APIs.html.

[iii] Id.

[iv] Id.

[v] Id.

[vi] Id.

[vii] The White House and PCAST issued summaries of their respective reports, including their policy recommendations, which can be easily found at the links following this article.

[viii] WH Report, p. 7.

[ix] WH Report, p. 2.

[x] WH Report, p. 5.

[xi] WH Report, p. 23.

[xii] WH Report, p. 3.

[xiii] WH Report, p. 23.

[xiv] WH Report, p. 6 (the WH Report includes two research-related examples of the impact of big data on research, including a study whereby the large number of data sets made “the critical difference in identifying the meaningful genetic variant for a disease.”).

[xv] WH Report, p. 23.

[xvi] WH Report, p. 23.

[xvii] WH Report, p. 23.

[xviii] In privacy law, “anonymous” data is often considered a subset of “de-identified” data. “Anonymized” data means the data has been de-identified and is incapable of being re-identified by anyone. “Pseudonymized” data, the other primary subset of “de-identified” data, replaces identifying data elements with a pseudonym (e.g., random id number), but can be re-identified by anyone holding the key. If the key was destroyed, “pseudonymized” data would become “anonymized” data.

[xix] PCAST Report, p. 38.

[xx] PCAST Report, p. 38.

[xxi] WH Report, p. 23.

[xxii] WH Report, p. 23.

[xxiii] WH Report, p. 8.

[xxiv] WH Report, p. 54; PCAST Report, pp. 38-39.

[xxv] WH Report, p. 8.

[xxvi] The PCAST Report does recognize that de-identification can be “useful as an added safeguard.” See PCAST Report, p. 39. Further, other leading regulators and academics consider de-identification a key part of protecting privacy, as it “drastically reduces the risk that personal information will be used or disclosed for unauthorized or malicious purposes.“ Dispelling the Myths Surrounding De-identification: Anonymization Remains a Strong Tool for Protecting Privacy, Ann Cavoukian, Ph.D. and Khaled El Emam, Ph.D. (2011), last found at http://www.ipc.on.ca/images/Resources/anonymization.pdf. Drs. Cavourkian and El Emam argue that “[w]hile it is clearly not foolproof, it remains a valuable and important mechanism in protecting personal data, and must not be abandoned.” Id.

[xxvii] WH Report, p. 54.

[xxviii] PCAST Report, p. 38; WH Report, p. 54.

[xxix] This approach is not one of the official policy recommendations contained in the WH Report. However, as discussed above, the WH Report discusses the impact of big data on biomedical research, as well as this new approach, extensively. Further, to the extent order has any meaning, the first recommendation made in the PCAST Report is that “[p]olicy attention should focus more on the actual uses of big data and less on its collection and analysis.” PCAST Report, pp. 49-50.

[xxx] WH Report, p. 56.

[xxxi] WH Report, p. 24.

[xxxii] WH Report, p. 23.

[xxxiii] PCAST Report, p. 44.

[xxxiv] WH Report, p. 24.

[xxxv] PCAST Report, pp. 48-49.

[xxxvi] PCAST Report, p. 49.

[xxxvii] PCAST Report, pp. 49-50.

[xxxviii] It must be noted that many leading regulators and academics have a different view on the importance and role of notice and consent, and argue that these principles in fact deserve more focus. See, e.g., The Unintended Consequences of Privacy Paternalism, Ann Cavoukian, Ph.D., Dr. Alexander Dix, LLM, and Khaled El Emam, Ph.D. (2014), last found at http://www.privacybydesign.ca/content/uploads/2014/03/pbd-privacy_paternalism.pdf.