Ed McNicholas is a co-leader of the Ropes & Gray LLP data, privacy, and cybersecurity practice. He has experience advising on a federal, state, and international level and currently represents clients such as technology groups, insurance companies, healthcare providers, and more on data and privacy litigation issues. He is also the author of the data law blog RopesDataPhiles.
Ed discusses his career background, focusing particularly on his work in the Clinton administration. He then explains the massive potential that data has to make a difference in the law and people’s everyday lives. Ed talks about the role that his blog plays in its author’s and firm’s personal growth and how it provides a global perspective for its audience. After reflecting on why he feels called to blog and how 2020 has been a particularly important year in data issues, Ed gives his personal assessment of blogging’s value and some additional final thoughts.
Here’s the full episode and, down below, we have a selection of the best exchanges:
Before we start talking about your blog, maybe you can just tell us a bit about yourself and your practice. What do you do?
So not surprisingly, I work in privacy and cybersecurity, which I think will be referred to as “data law” ten years from now. We’re trying to move the term that way. Some people think that it might be “information law”, but I think “data law” is catchier. It’s an area that’s evolving. But I grew up as a litigator. I got out of law school in 1996, and so internet law was not really a big thing at that point. I started out writing appellate briefs and litigating cases. I worked in the Clinton White House; I worked on the White House Counsel’s defense team in an investigation involving an intern that got some media…It really got me into privacy and data, and then I worked on many of the largest data breaches out there. Along the way, I really went deep into data, and I had a transformative moment. I said, “You know, people in the legal industry are thinking about data, as a liability. All we think about is the privacy regulators and the cybersecurity regulators and what can be taken and all the things that can happen and the need to minimize data. And then I was listening to the people on the other side saying to clients saying, “No, data is new oil; it’s a source of value. It’s an asset, not a liability”…
Why did you start the blog in the first place? And what were you hoping to do with it?
I’m mainly hoping to bring this love of data and trying to move some of the dialogue. Data is saving lives in areas like the healthcare market…It’s making fortunes, and it is creating new areas of value for companies and consumers. We have people who are using data to develop vaccines and other good things like that. And we want to make sure that that positive voice is not shut down…Sometimes issues come up because we cannot get data used in a responsible way for social good. There have been concerns about this year on contact tracing, a topic that I was never familiar with before this year. But now we have a whole bunch of people who are very concerned about it…Data is used in the advertising space. And it’s available in data markets, but people weren’t using it for contact tracing. People were afraid to use it because they’re afraid of privacy regulations. People come to us and say “Hey, we want to use this type of information for contract tracing,” and we say “Well, there could be some liability about that.” And we needed to clarify some things in various laws to make that possible. Now, luckily, there’s been some movement and the regulators have been willing to provide people with more latitude. But there’s a lot of other research that could happen if there were better protections for the use of data in medical research or even in the development of consumer products if it’s done in a privacy-respectful way.
How has the data privacy scene changed this year? How has it affected your practice and blog recently?
Well, we actually didn’t post as much in this blog because we have a separate COVID Resource Center. We did a lot of posting over there, it’s cross-linked. But we did some posting over there on privacy issues. There were things that no employer had ever asked me, like Can I take my employee’s temperature as I walk into the office every day?” No one seemed to care about that, right? But then you find out that temperature tells you not only if you have a fever but also indications of certain medical conditions that might raise or lower your temperature, for instance, being pregnant. And so then you have the question of if a woman walks in and has an elevated temperature; do you pull her aside? Well, you might have COVID. No, actually just pregnant. That’s what my temperature is elevated. Does she need to give the security guard a not? Do we have to make a notation of who’s pregnant? And who’s not. All of a sudden the privacy issues start leaping off the page, right?
How would you assess blogging? How has it impacted your practice? How has it impacted your career? How has it impacted the firm in the time you’ve been at it?
I think it’s helpful for visibility. I also think it’s helpful for clients as a place where they can come in and learn about issues. A lot of the cases that we work on are very large, complex matters. The blog is one of the things that gives clients the comfort of knowing that we know what we’re doing, and it’s a way of providing information to clients. And we also noticed that other law firms read our blog. And, that’s fine. It’s part of the discussion of legal developments with other lawyers. Although we’re supposed to be sharp-elbowed sharks, there is in fact a good amount of this about that sharing information and sharing perspectives on legal developments. At the end of the day, we’re all interested in the long-run development of the law in the preservation of our liberties.
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