In a Data-Obsessed World, Attorneys Welcome Privacy Law Specialization

California’s State Bar will offer the specialization in a state that revolutionized privacy law with the CCPA

News that the State Bar of California will offer a privacy law specialization has been welcomed by practitioners in the space. They say that as the scale and complexity of data use grows, so does the need for lawyers who understand the patchwork of regulations governing privacy and the latest technological advancements.

The State Bar voted to approve the specialization during its May 22-23 meeting. It’s the first new specialization to be established since 2008 and will join 11 others, including Family Law and Taxation Law, once launched.

According to the State Bar, the specialization “recognizes the growth and importance of privacy law in light of increasing legal challenges in data privacy, cybersecurity and emerging technologies.”

Attorneys who seek specialization will need to demonstrate knowledge of areas including data security, data sharing and technologies. Eventually, attorneys will need to pass an examination to fulfill the specialization requirements.

California is not the first state to offer a specialization, explained Sharon R. Klein, co-chair of Blank Rome LLP’s Privacy, Security & Data Protection practice. In the U.S., that honor belongs to North Carolina, which offers a certification based on the International Association of Privacy Professionals Certified Information Privacy Profession/United States certification (and which Klein has held for decades).

Klein said that privacy law was “definitely” an area requiring specialist knowledge, given “privacy is an area filled with complex and often conflicting regulations and one which is constantly evolving.” Regarding demand for the specialization, she noted that there were “1,200 active members of the California Lawyers Association’s privacy section.”

Attorney Don R. Dennis Jr., whose practice includes copyright and trademark infringement, internet law, defamation, trade secret misappropriation, data security breaches and privacy law, welcomed the news. He said that he would consider taking the specialization and that it would allow attorneys practicing privacy law to stand out from the pack.

“The fact that there are so many tenets to privacy law, whether we’re talking about education or finance or health, being that it touches so many different points, that specialization just allows you to really hone in, and it will really set you apart from other legal practitioners who may have read an article here or there, or maybe even experienced a data breach, but have not dealt in this area of law on a daily or weekly basis,” he said.

Daniel Goldberg, who chairs Frankfurt Kurnit Klein & Selz PC’s privacy practice, also welcomed the move. He said that while the precise details of the specialization were not yet clear, he would “definitely” consider taking it.

“Absolutely, it’s an area that has been exploding with growth. And California is one of the leading states with privacy regulation and has been for a number of years now. And so it is, I think, particularly important to have some type of specialization designating leaders in this field,” Goldberg said.

Like Dennis, Goldberg said that attorneys who wanted to effectively solve clients’ data privacy issues needed to stay on top of the latest legal and technological developments.

“The law is very complex. But on top of the law being complex, the specialization really requires a level of technical expertise. The law talks all about measures that companies need to take with respect to collection, use, disclosure of data and opting out. But if you don’t understand how the technology works or how the ecosystem works, then it’s an area that would be very, very difficult for you,” he said.

He added, “One thing about privacy law is that you also have to be an expert on what’s going on in the news, the latest changes and whether it has to do with ad-tech platforms or AI. If you’re not up with the latest changes, you’re going to fall behind very quickly.”

Both attorneys said that the specialization recognized that data privacy has become an increasingly pressing issue in recent years.

Dennis said that growing consumer reliance on data-rich consumer services, as well as the transition to online platforms in industries like education and health, and the resulting risk of data being misused or leaked had boosted the number of companies and consumers seeking legal advice on their legal remedies and responsibilities.

This would likely be magnified by the growth of artificial intelligence services, he said.

He said that privacy law was a complicated area of the law, involving a patchwork of state and international law. Much of his time was spent helping clients navigate through these laws.

“There’s no national data breach law. Each state has its own law and notification process,” he said.

Klein explained that data privacy, particularly the privacy policies and infrastructure a company had in place, had also become a key consideration during dealmaking.

“No commercial deal gets done today without an analysis of the data the target is/has collected and whether they have protected the data and avoided data breaches. This is true for ordinary deals as well as technology deals,” she said.

She agreed that AI would likely exacerbate this trend, stating, “The amount of regulation and legislation globally over the past 35 years of my practice is stunning and will increase exponentially with AI. Lawyers are needed to align expectations of the parties globally on privacy, security, and AI rights and data transfers.”

Goldberg said that it was fitting that California attorneys would soon have the option to earn a privacy specialization, given that the state has played a pioneering role in privacy regulation.

This included the passing of the first comprehensive privacy law (the California Consumer Privacy Act or CCPA) in 2018, which he said catalyzed the creation of similar laws across other states and established California as the national leader in privacy legislation.

He said the state had also been among the most active in enforcement, with both the Attorney General’s office and the California Privacy Protection Agency pursuing multiple enforcement actions of late, with more expected to follow.

Because data privacy stretches across such a broad cross section of industries, Goldberg said that it was becoming an increasingly lucrative area for law firms.

“It’s incredibly lucrative just because it’s such a broad area. It really is a subject matter expertise that goes in so many different subcategories of practices, and so almost every firm now has to have a privacy expert,” he said.

Klein predicted that the “privacy, security and AI areas for lawyers will continue to be robust for decades to come as companies need legal advice relating to the vast amounts of data to operate their businesses,” including trade secret and personal data.

“Needless to say – law firms see this as a lucrative area and are and will continue to invest in privacy, security and AI specialists,” she added.