New WG11 Brainstorming Groups on Strict Liability for Data Breaches & Impact of Pandemic Response on Global Privacy


Brainstorming Groups - Overview

(1) Advisability of Adopting a Strict Liability Regime for Data Breaches Involving Personal Information

The brainstorming group will evaluate whether WG11 should create a drafting team to prepare a commentary on the advisability of adopting a strict liability regime for data breaches. In carrying out this task, the brainstorming group will consider the following questions, as well as any other considerations that they would want to add:

  • What are the obvious pros and cons of adopting a strict liability regime?
  • Who else has suggested such an approach – have there been law review articles, opinion pieces, etc.?
  • Has any government adopted a strict liability approach to data security, or incorporated strict liability concepts?
  • Are there strict liability-incorporating legal regimes in other fields of law that might inform this analysis?
  • What might a strict liability regime look like?
  • Would a strict liability regime only apply to certain types of data?
  • Would a strict liability regime only apply to claims for monetary relief for tangible injury suffered from a data breach, as opposed to claims for (i) monetary relief for intangible injury; (ii) statutory damages; (iii) regulatory fines or penalties; and/or (iv) injunctive relief?
  • Would a drafting team be expected to reach consensus on the topic?
  • How would a Commentary on this topic bring value to the legal community?

(2) Impact of Pandemic Response on Global Privacy

In response to the COVID-19 pandemic, governments and private companies around the globe collected significant amounts of personal information including health and tracing information in the name of public health. The response has engendered significant controversy, with some asserting that privacy protections and personal freedoms have been unduly and too quickly sacrificed in support of public health initiatives, and others arguing that privacy laws in some case unduly hampered commonsense solutions. This conflict has led to a disjointed public policy response with, for instance, laws enacted both requiring (in some jurisdictions) and forbidding (in others) the use of so-called vaccine passports for certain purposes. The brainstorming group will explore these issues and evaluate whether a drafting team could prepare a Commentary that would provide value to practitioners and policymakers in addressing this conflict. Issues for consideration include: (1) whether current privacy and public health laws provide an adequate framework for resolving conflicts between public health aims and privacy concerns; (2) what steps should be taken to mitigate the long-term impact of any undue sacrifices to privacy protections during the pandemic response, (3) what steps should be taken to mitigate privacy risks in the context of public-private partnerships to promote use of technology in response to a global health crisis. The brainstorming group will also consider whether the challenges and conflicts stated above, while critically important, represent a point-in-time challenge that is unlikely to benefit from a Commentary that aims to provide guidance for the future. If so, the brainstorming group may explore whether expanding a potential Commentary to explore broader themes of the conflict between privacy and public interest in the event of a crisis/emergency, drawing on lessons from the pandemic, would help mitigate any such concerns. The brainstorming group will also consider the proper geographic scope for a Commentary, including potentially limiting it to the United States or other specific countries. Finally, and critically, the brainstorming group will evaluate whether a Commentary in the selected areas can be grounded in specific legal principles and frameworks as opposed to simply addressing technical, public policy, ethical, or philosophical questions. Given The Sedona Conference’s focus and purpose, such legal grounding is essential to developing a paper that will move the law forward and that is therefore likely to be appropriate for a Commentary by WG11.

Brainstorming Groups - Member Expectations

Brainstorming group members will be expected to actively participate in regularly scheduled phone conferences to brainstorm on work product ideas. Members will also be expected to participate in the drafting of a detailed outline that allows a subsequent drafting team to prepare work product consistent with standards of The Sedona Conference.

Brainstorming Groups - Selection

In order to apply for the brainstorming group(s), you must be a member of WG11. If you are interested in applying for the brainstorming group(s), but are not yet a member of WG11, please become a member by signing up for a Working Group Series (WGS) membership. Once a WGS member, one is eligible to take part in the activities of all Working Groups, including WG11. If you have any questions about how to sign up for a membership or encounter any difficulties while doing so, please contact our office at [email protected] or +1(602) 258-4910.

In order to be considered for the brainstorming group(s), please provide separate answers to each of the questions below, and submit to Michael Pomarico at [email protected] no later than COB EST on Thursday, August 12, 2021. Please be brief when answering the questions – no more than 50 words per answer to a question. When applying, please note which brainstorming group(s) you are applying for. If you are applying for both brainstorming groups, please be sure to answer the fourth question for each brainstorming group.

  • (1) What is your profession and expertise?
  • (2) How many years of experience do you have?
  • (3) What organization do you work for?
  • (4) What qualifications or experiences make you particularly qualified to serve on this brainstorming group, and why?
Announcement Date: 
Wednesday, July 7, 2021