Commentary Addressing Risks and Opportunities Through the Lifecycle of Data, Technology, Advertising and Innovation

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2014 has been perhaps the biggest year Information Governance (“IG”) has seen. A relatively small and, if not unknown, at least undefined field only a few years ago has grown into an area of interest—and concern—to many organizations. The continued growth of data, the escalating threat of data breaches, the amazing ability to collect and analyze immense databases of personal information (the “Big Data” effect), the rising costs of electronic discovery, and new laws and regulations addressing privacy and security have all combined to underscore the importance of proper IG practices to organizations’ well-running—and the need to address related risks as well.
<h4>The Continued Debate over “What Is IG?”</h4>
Despite a continued dialogue regarding IG, the definitions still vary, and what IG is and what IG truly encompasses still generate lively debate. For example, the <a href="http://iginitiative.com/wp-content/uploads/2014-IGI-Annual-Report.pdf">Information Governance Initiative</a> (“IGI”) defines IG as “the activities and technologies that organizations employ to maximize the value of their information while minimizing associated risks and costs.” The <a href="http://www.armasv.org/ARMA_Presentation_-_Tactics_v__Strategy_-_RIM_to_IG_-_2013-03-14.pdf">Association of Records Managers and Administrators</a> (“ARMA”) provides more detail when defining IG as “a strategic framework composed of standards, processes, roles, and metrics that hold organizations and individuals accountable to create, organize, secure, maintain, use, and dispose of information in ways that align with and contribute to the organization’s goals.” And <a href="http://www.gartner.com/it-glossary/information-governance">Gartner</a>, a premier information advisory company in its own right, suggests that IG is the “specification of decision rights and an accountability framework to ensure appropriate behavior in the valuation, creation, storage, use, archiving and deletion of information. It includes the processes, roles and policies, standards and metrics that ensure the effective and efficient use of information in enabling an organization to achieve its goals.” These definitions all encompass the same basic ideas concerning the management of information but seem to emphasize different principles or aspects of IG.

Many of these differences may stem from the nature of IG and how it operates within complex organizations. Robert F. Smallwood incorporates this phenomenon in his description of IG as “a super discipline” where, because so many different parts of an organization have a stake in IG, those stakeholders incorporate their own interests in and expertise with particular facets or approaches into the IG discussion. Some stakeholders see IG as a risk mitigation tool, while others focus on the value of information and therefore see IG as a tool to help make strategic decisions. Still others think of IG as an automatic service maintained by the “other”—perhaps the information technology department—without an appreciation for just how difficult proper IG practices can be. Which leads to the inevitable question …
<h4>Who Manages IG?</h4>
Who is—and perhaps, who should be—in charge of IG? Last year, we discussed that responsibility and argued that IG should be directed by a C- or near C-suite-level position. Some organizations have now done just that, creating IG steering committees or the roles of the Chief Data Officer (“CDO”), Chief Information Officer (“CIO”), and (most recently) the Chief Information Governance Officer (“CIGO”). Both the Information Governance Initiative and the Sedona Conference argue for the creation and use of a CIGO whose only responsibility is IG, who will remain independent of organizational whims (while still being responsive to their operation). But while the role of the CIGO is seen as essential by many, there are still only a <a href="http://iginitiative.com/wp-content/uploads/2014-IGI-Annual-Report.pdf">small number</a> of organizations that currently delegate the overall accountability for IG to a specific person. And even when defined, <a href="http://iginitiative.com/wp-content/uploads/2014-IGI-Annual-Report.pdf">the CIO’s or CDO’s</a> responsibilities and concerns don’t always mesh well with other divisional responsibilities. This disconnect may also lead to a difficulty for the IG group’s consideration of other nominally important—but un-invested—stakeholders in IG. These growing pains will eventually work themselves out, and in the meantime it is becoming clear that the preferred IG strategy is an enterprise-wide approach, which considers active and involved input from various stakeholders within the organization.
<h4>Privacy, Security, and eDiscovery Considerations</h4>
Big 2014 concerns for all organizational stakeholders have been privacy, security, and related regulatory concerns. In January, President Obama requested his advisors conduct a review of Big Data and privacy. In May, those advisors returned with suggestions: a consumer privacy bill of rights; a national data breach notification statute; and a call to amend the Electronic Communications Privacy Act. While Congress has yet to act on these suggestions, data breaches continue to make front page news while spawning litigation. Understandably, this has made many organizations nervous.

These are inevitable concerns, as litigation follows many data breaches. In addition to consumer class actions, a new trend in data breach litigation is <a href="http://cyberinquirer.com/2014/11/19/cyber-security-indeed-derivative-action-dismissed-board-proactively-addressed-cyber-risks-exposures/">shareholder derivative lawsuits</a> against directors and officers. Courts have found that a <a href="http://dataprivacymonitor.bakerhostetlerblogs.com/wp-content/uploads/sites/5/2014/12/https-ecf-njd-uscourts-gov-doc1-11919270817.pdf">proactive approach</a> to IG is a valid defense against these actions. Likewise, various regulators (including the SEC, FTC, and FCC) have all started to take larger roles in privacy and security concerns. In this rapidly evolving regulatory and legal landscape, organizations need an adaptable IG program.

The rise in Bring-Your-Own-Device (“BYOD”) issues is a reality that many IG programs needed to consider, if not adapt to, this year. When employees remained tethered to desktop computers, an organization had relatively consistent and straightforward tools to manage the information within and across its network. As employees bring their own devices, with their own information, and comingle this personal information with the enterprise information, the calculus changes dramatically. Added to this mix are employee concerns about privacy, where their text messages, social media posts, and even private photos are a finger swipe away from their work email and spreadsheets (and just as close for the employer). Likewise, the security implications associated with managing a suite of devices in a variety of locations exponentially tax the security assets of a given organization as it tries to match employee demand with appropriate access. Litigation and eDiscovery further complicate BYOD when organizations have to consider the preservation and production requirements for responsive information on employee devices. In sum, an organization needs at least the beginning of a clear IG strategy and structure to responsibly consider these issues, and to prepare for the possibility of litigation.

IG and eDiscovery have always been bedfellows, but that cooperation and those intertwined effects have only increased. The year 2014 marked the introduction of IG into the <a href="http://www.edrm.net/archives/23174">Electronic Discovery Reference Model</a> (“EDRM”), and respondents in a recent survey by <a href="http://www.ediscovery.com/cms/pdf/ediscoverytrends_krollontrack2014.pdf">KrollOntrack</a> found that an increased focus on IG will be the top “hot topic” in eDiscovery in 2015. New IG tools and approaches may help prepare organizations for eDiscovery long before any cases are filed. Monitored and documented information mediation of legacy documents and proper steps to close legacy systems and monitor information transfer help reduce the costs and headaches that eDiscovery can create, and ensure that eDiscovery practitioners (often at high billable rates) are not the first to consider the implications of internal practices. This makes sense: good IG can aid in a consistent and defensible eDiscovery process, while poor IG can add to the costs and risks in eDiscovery—and may even be implicated in <a href="http://www.jdsupra.com/legalnews/past-information-governance-may-haunt-th-84191/">judicial decisions</a>.
<h4>The Internet of Things</h4>
Organizations have increased their awareness of the Internet of Things (“IoT”) and its implications for IG and related eDiscovery, privacy, and security considerations. According to <a href="http://betanews.com/2014/11/17/gartner-how-internet-of-things-will-disrupt-the-world/">Gartner</a>, the IoT will expand to encompass 4.9 billion devices by 2015—and an astounding 25 billion by 2020. In sum, far more things will be connected to the Internet than present-day phones, tablets, and computers combined. Securing the IoT will be a very complex endeavor and will require innovation and various strategies while mitigating risks that arrive when businesses adopt new technologies. While garage door openers at the facility that are operable over the Internet may increase efficiencies, another door may have opened, with an additional risk of hacking. Affectionately called “ghost machines,” still other devices come with connectivity already built in, just waiting for software or a command to enable the connection. Connected without thought or consideration, ghost machines may call home through the Internet without IT, security, legal, or even the operator knowing it. Today’s <a href="http://www.technologyslegaledge.com/2014/11/21/global-internet-of-things-top-ten-data-protection-concerns/">USB fan</a> or <a href="http://www.amazon.com/dp/B00D6GCP58/ref=cm_sw_r_tw_dp_82JFub0AXTYPV">coffee warmer</a> might just be tomorrow’s pathway to a compromised network.
<h4>Conclusion</h4>
IG is gaining respect and prestige within many organizations, and should continue to grow in importance as organizations begin to move away from a risk mitigation and cost control paradigm to a focus on maximizing the value of information. The growth of Big Data, privacy and security concerns, the intersection of eDiscovery, and the expansion of the IoT will also continue to drive interest in IG as it matures as a practice. Future technologies will likely create new challenges for IG, but should also create new opportunities for implementing effective IG, even as the world of IG becomes more varied, more complex, more diffuse, and more integrated into every aspect of employees’ professional—and personal—lives.

2014 Information Governance Year in Review