Defense Counsel Journal

Editor's Page - Volume 84, Number 4

Volume 84, No. 4

February 07, 2020

Smith_Michael_F_2016_sized Michael Franklin Smith

Michael Franklin Smith

Michael Franklin Smith is the current Editor and Chair of the Board of Editors for the Defense Counsel Journal. He is a shareholder at McAfee & Taft and a member of the IADC.

Time marches on and I have the wrinkles to prove it. And with every passing day, technology advances at an exponential rate that can make your head spin. Technology can provide tools to help us maintain privacy if we are diligent. That same technology, however, makes it practically impossible for anyone to actually have complete privacy. The smartphone was, and still is, an amazing technological advancement that has changed our everyday lives in ways we never could have imagined. But we have moved far beyond smartphones in ways that I failed to truly appreciate until recently.

Did you know, for example, that modern vehicles can communicate with smartphones and other devices connected to the internet-of-things to share personal information? It is true. There is more information about you out there readily available to others than you probably realize. To make matters more concerning, corporations and individuals, criminals or otherwise, can access and exploit that information through the connections made possible through the internet-of-things.

Some of that exploitation is harmless. Through the swirl of information that is out there, retailers create targeted advertising based on consumers’ shopping habits. For example, I can use my debit card to purchase my favorite mouthwash one month at my local drugstore. Upon my subsequent return, at checkout after using the same debit card, the cashier will give me a receipt for my purchase with a coupon for my favorite mouthwash. That retailer knows, based on data connected to my debit card, that out of the thousands of products available for purchase at that drugstore, I have previously purchased, and therefore am likely to purchase again, a specific product. That is just one example of targeted marketing brought to you through the personal data that is available.

My 2016 model year pickup truck now communicates with my smartphone Monday through Friday, shortly after starting my pickup, a message flashes on my smartphone advising me of the best route for me to drive to the office based on the current traffic. I did not ask my truck and phone to communicate, memorize my routine driving habits, and advise me on traffic patterns. The first time it happened, I was a little freaked out. Now, as soon as I start my truck, I check my phone to see what kind of traffic I am likely to experience on my drive to the office. But wait, it gets better. If I put an event with an address on my office calendar, which is synced with my smartphone, and I later start up my truck to drive to that event, my smartphone advises me about the traffic I can anticipate on the drive to that event. It is amazing and scary at the same time.

In this issue of the Defense Counsel Journal, we bring you our second installment of Privacy Project V. These articles examine the impact technological advancements have had in our lives, our privacy, and various privacy laws. For example, and in no particular order, Basil A. DiSipio, a shareholder at Lavin, O’Neil, Cedrone & DiSipio in Pennsylvania, highlights the friction created by advances in global positioning systems in vehicles, smartphones, and other devices and social media on one side and privacy laws on the other. Noriko Higashizawa, a partner at City-Yuwa Partners, and Yuri Aihara, a corporate counsel at Fujifilm Corporation in Japan, look at the clash between data privacy protection of personal information and the use of big data – like analyzing purchase history to identify purchase trends. Amy Sherry Fischer, a shareholder, Jordyn Eckert Cartmell, an associate, and Liam Frank, an intern, at Foliart Huff Ottaway & Bottom in Oklahoma, walk us through the fight between government interests and privacy caused by the proliferation of unmanned aerial vehicles, or drones. Junior Sirivar and Shana Wolch, Partners at McCarthy Tétrault in Canada, look at Canadian privacy and anti-spam laws in Canada. Finally, and for those of you not concerned about privacy in this information age, Kathy J. Maus, John V. Garaffa, and Julius F. “Rick” Parker III, Partners at Butler Weihmuller Katz Craig, LLP, in Florida, provide a comprehensive analysis of issues surrounding, and limiting, discovery of an insurer’s claims file.

The pace of technology is amazing and overwhelming at the same time. Without the help of people younger than I, I can barely keep up with the nonstop updates on the apps on my smartphone, much less the technological advances made possible through the connectivity of the internet-of-things. Hopefully this issue of the Defense Counsel Journal gives you a little more insight to help you navigate your and your clients’ privacy in this rapidly changing world we live in today.

Michael Franklin Smith
Editor and Chair of the Board of Editors, Defense Counsel Journal
Shareholder, McAfee & Taft, A Professional Corporation