Jay: 00:00

There's no little thing in the AI brain that says, oh, maybe I should stop at this point in time, because this is someone's personal, private information. Privacy isn't necessarily the right to keep information about you, yourself and what you're doing secret to yourself. It's about control of your information. It's about your freedom to choose what information about you is shared with whom and when and under what circumstances. And it's not so much that Google or Meta and these companies are surveilling people. It's that people don't have a choice.

Intro: 00:49

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Intro: 00:55

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Intro: 01:05

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Jamal: 01:46

ittee on Oversight, formed in: 2018

Jay: 02:50

Hi. Thanks, Jamal. Thanks for having me.

Jamal: 02:53

My pleasure. Jay, if you could travel back in time and attend any historical event, which one would you pick?

Jay: 03:00

Wow, that is a great question. After watching Indiana Jones this weekend. Maybe the Battle of Circus. No, I don't think it would be the Battle of Circus. I think I might go back in time to sometime during the Declaration, or actually the time of Christ, I think is where I would travel back in time to. It has to be a historical event, right? It can't be a personal event. I think I would travel back to the life of Christ, something in the moment of the life of Christ, perhaps, when he turned the water into wine.

Jamal: 03:33

That would be quite a miraculous thing to witness. Yeah, that's very interesting. Okay, so let's get into your career a little bit more. Can you tell us a little bit more about your career journey and how you actually ended up in data privacy litigation?

Jay: 03:47

litigated in this area was in: 2011

Jamal: 05:29

And what made you so passionate that you decided, you know what, I'm going to do something about this. I'm going to be the person that brings this matter to the courts.

Jay: 05:38

There are lots of reasons. The first is the justice of the situation. No one signed up for any of this surveillance. And related to that, I think these companies, Facebook and Google, and the power that they have amassed is a real danger to society and to our economy. No company should have the power that they have based on the data that they've accumulated about people, and how they can use that data to manipulate people, and how the data can be used by others to manipulate people. Look, in the United States, we've seen deep polarization. I don't think you can completely place the blame on Google and Facebook, but you can place a lot of the blame on Google and Facebook and social media companies. That sends people down an echo chamber rat hole of hearing all of these different conspiracy theories and then having a feedback loop based on their browsing history that continues to feed them via the algorithm These conspiracy theories that leads to something like January 6 in the United States. And I know that seems like quite a stretch, but the power these companies have to surveil and the surveillance that they're engaged in, that is the ultimate consequence of allowing companies like this to have this power, and it needs to be stopped. I think it's dangerous for American democracy. I think it's dangerous for countries in Europe as well. And that's why I'm involved in the cases I'm involved in. And then the third thing, so that's the societal impact. The third thing is, no one signed up for this. I don't talk to anyone who says, you know, I want Google and Facebook to track everything that I do online. That's what I really love about Google and Facebook. I agreed to this. No one agreed to this. It is a form of theft of personal data that should not exist in the world.

Jamal: 08:00

I agree with you 150%, Jay. In fact, I don't think I could agree with you anymore. No one actually signed up for this. What gives big tech the audacity just to think they can do whatever they like. They're above any laws, they're above any human rights. They have no regard. All they have to think about is profitability, and they can do whatever they like with people's information. And what you said about polarization there really resonates with me, because we saw that here with Brexit as well. There was deep polarization with people either being in one side or the other, depending on what article they led, which politician they'd followed, what they'd like, and it just takes them further and further down the rabbit hole. And people's understanding and perceptions of reality and having that balanced focus and balanced information completely disappears. So if you give somebody a light and they can only point it at one wall, they would be mistaken for thinking that the whole reality is everything that exists on that wall. They don't have a look at the other three walls, the ceiling and the floor, because they can't see it. It doesn't exist. That's all that exists to them. And they would walk away from that room with a very polarized view of what's going on there. And sometimes that can be really dangerous. And you mentioned there, January the 6th, am I right in believing when you talk about January 6, you're talking about some of the Trump supporters who went and stormed some of those government buildings?

Jay: 09:13

Absolutely. That is what I'm talking about. Obviously, that's an extreme example. Brexit is an example you gave. I like the way you put it, that if you only show somebody a light that only points at one wall, they're only going to see that wall. That's what these companies' algorithms do. These algorithms are built on the surveillance that they do of people, and it's a broad surveillance to show them and tell them, for Facebook and Google's purposes, exactly what the people want to hear, to make profit for Facebook and Google and to surveil everything that they do.

Jamal: 09:48

Here in Europe, we've had some really sad examples of individuals who have been exposed to some material, and they've ended up taking their own lives because of the way the algorithm fed them content. In fact, there was a child that was impacted. So what you're talking about isn't just a matter of political opinion. It can be a matter of life and death in situations that we're talking about here. So it's super important, the work that you do. And before I finish the podcast and forget, I want to thank you for everything that you're doing to stand up for privacy rights, showing these big tech, hey, there is somebody here in the name of Jay Barnes who is going to stand up for people, who is going to stand up for us, right? And who is going going to show you principles matter more than profits. On that note, Jay, can you share any memorable experiences or even lessons that you've learned from litigating these consumer privacy cases?

Jay: 10:35

One memorable experience is the first case I had against Google and federal court. I showed up in the Third Circuit Court of Appeals, and it was a rather large case, and I introduced myself, for the record, Jay Barnes. At that time, it was Barnes and Associates on behalf of the plaintiffs, and one of the judges on the panel said, who? What firm? I've never heard of you before. Never heard of that firm before. That was a memorable experience. Things have changed. I think that I'm in a different firm now. We're a more prominent firm. I've been involved in enough cases, and judges typically don't ask that question. I think some things I've learned that were surprising to me is how unavoidable the behavior is from Google and Meta. A lot of times, these companies will try to offer a defense that, well, the plaintiff can just avoid this. And as we've talked to experts, there's really no way to avoid it. “If you want to live a modern life and not participate in the modern economy, there's no way to avoid Google or Meta's surveillance of you completely, which, of course, goes to the idea that no one actually consents to this. If you don't have a choice, there is no consent.” And then the third thing is the extent to which these companies believe that they are above the ordinary rules of civil litigation. I've seen things happen in cases that I'd like to say that I'm a real lawyer. I've represented people in personal injury cases, criminal defense and divorces, and small businesses and contract disputes, small businesses and licensing disputes. So the full gamut of the American legal system. I have represented people in those situations, and I've seen things in these cases with Google and Meta where the defendants engage in conduct that would cause real lawyers and their clients to get disbarred and to lose the case. And I don't want to go into too many details, but there's been sanctions levied against Facebook in certain cases, and it's really just shocking to me the extent to which some of these silicon valley companies think that they are above the law. Not just in respect to their surveillance of people, but with respect to how they engage with the American legal system.

Jamal: 13:17

Where do you think that arrogance comes from?

Jay: 13:20

I think it comes from the engineering background of the leaders of the companies. I think it comes from the success that they have had, and I think it comes from a genuine belief from people in these companies that they are connecting the world and making the world a better place. I think these companies are bad for society, but I don't think the people who lead these companies think that they are bad for society. I think that they think they're great drivers of profit who are doing great work for society to connect people and help companies find the right consumers at the right times and who drink their own kool aid. Look, the fact is, commerce existed before google, and if google disappeared, commerce would still exist, and the world would be okay.

Jamal: 14:17

True. Yeah, I completely agree with you. And I think sometimes they've convinced themselves for so long that they're doing a great thing, that they're completely blind, and they might be willfully sometimes to the cost of it, and sometimes they convince themselves, we're doing something great, so we need to do this great thing. And if it comes at the cost of that, then that's okay, because people are finding the right adverts at the right time, and we're giving them what they want. So it's okay to abuse them. It's okay to take away their choice. It's okay to take away their power that they have over their privacy. And that's where the privacy pros come in. And one of our vision at the privacy pros academy is really to create a world where every woman, every man, and every child enjoys freedom over their personal information. And so we're empowering world class privacy professionals to go and make sure that their organizations and businesses are actually doing the right thing. And the great thing is, if that goes wrong, then we know we've always got jay to call her who can get those things put back right, and people can be compensated for those arms on those injuries that they've suffered to their privacy. JV, one thing you mentioned earlier, there was in your first case, the judge actually turned around to you and said, who, I've never heard of you, kind of thing. I had similar things happen earlier in my career where people are like, who are you? Why should we even listen to you? How did that make you feel? And how has that impacted you where you are right now?

Jay: 15:44

I was bemused by it because I was there to do a job. And I knew I had heard from others who knew him personally who's a really nice guy. And so at that point, I was bemused. And frankly, I would prefer the situation where I am underestimated as opposed to people knowing who I am when I walk in the door. I would much rather be underestimated and overperformed than overestimated and underperformed.

Jamal: 16:16

See, one of the things a lot of people in our industry suffer with is self doubt and impostor syndrome. And someone who might be less resilient than you and you might even be listening right now might have taken that and perceived it as, oh my God, the judge doesn't even know who I am. He's making me feel belittled. And that could have fed their impostor syndrome more. I remember when it happened to me, instead of giving in and feeling the impostor syndrome, I made a mental note and I highlighted it in my mind that this person will know who I am one day, whether it's today or tomorrow or next year. And I did everything I could thereafter to work on being the best version of myself I could be, being excellent, getting on television, becoming the media, go to expert, getting on international conferences. So now my reputation precedes me. When I go to clients now, they don't ask me, oh, who are you? We've never heard of you. They already know who we are. That's the reason they've actually come to us. It's a very fine line between somebody who decides to take that and use it to motivate them and spur them on and somebody who actually takes something like that and retreats and goes back into themselves and starts letting that negativity and that impostor syndrome and the self doubt really creep into their mind. What advice do you have for the privacy professionals who are looking now, who might not be feeling as confident, who might not be getting the buy in from their stakeholders, who might not be getting the respect they need from some of the third parties that they're working with in those situations to deal with?

Jay: 17:35

Well, I think how you just stated was really well where you said I need to be the best version of myself that I can be. And I think that's what you do. And be confident in who you are and what you know. Don't overstate what you know or who you are and don't undersell yourself either. Focus on the facts and why you need your company or the company you're working with, why you think it's a good idea for them to take the path of action that you're proposing as a privacy professional. Sometimes they're going to listen and sometimes they're not. But all you can do is the best that you can do and leave it at that.

Jamal: 18:20

Yes, I love how you've put that there. All you can do is the best you can do. So worry about the things that you can control. And you can control your thoughts, you can control your words, you can control your action. And you can control whether you choose to find a mentor to invest in yourself and become the best version of yourself, or whether you want to stay where you are. One of the things my mentor said to me is, your best thinking has got you to where you are right now. So that means I'm going to be limited with my best thinking unless I go outside of myself, somebody who is a few steps ahead of me and try and get some lessons and some guidance from them so I can move beyond my best thinking and onto the next stage. And I think sometimes people forget that they're limited by their own selves. A lot of people are very smart academics, lawyers, they've been to law school, they've done LLMs LLM, whatever you call it, three, four law degrees. And they can just teach themselves everything. And I think that's one of the challenges we see a lot in our industry is people are convinced that they can teach themselves everything. Is it possible to teach yourself everything, Jay?

Jay: 19:20

No, not even close. Not even close. One of the great things I love about being a lawyer is the ability to learn new things. And not just that I teach myself, but working with experts that we have. And I think that sometimes, because I do this in the American legal system, you take depositions and a deposition is just basically an interview of someone else. So we get to take interviews of people who work for the defendant or experts on the other side. And a lot of times I will tell. And we have cases against more than just Facebook and Google and I've litigated medical malpractice cases as well. And sometimes I've mentioned to a witness for the other know, one of the things I love about being an attorney is I get to learn from people like you. And that has elicited some eye rolls in some cases. But it is so true, the ability to it's one great thing about being a lawyer, I think it's a great thing when you can embrace it in any other industry, is the ability to learn something new in your job, to be a lifelong learner, so to speak. It's one thing that I love to do, and obviously with your company, it's something that people do with their company and they should be willing to reach out and talk to other people, learn from other people who've done things before, just trying to learn it on their own.

Jamal: 20:45

Thank you, Jay. Very powerful. Now, AI artificial intelligence is becoming increasingly prevalent across all industries. How do you see AI impacting user privacy? And what are the legal implications that privacy professionals should be aware of?

Jay: 21:00

I think that's a great question and it's going to be sorted out. I've enjoyed playing around with the AI tools. I don't know if you saw the story in the new york times about the lawyer who used AI to write.

Jamal: 21:14

A case with the non existent case. Fictional cases. Yeah.

Jay: 21:20

So before that used, I asked some basic questions to chat GPT into google's version, which is barred, and I got the same thing. It makes up cases, and it's not good at legal analysis. I think from a privacy perspective, the implications on individual consumer privacy could come. If companies are knowingly feeding data to the AI systems, those systems will have that data available. There's no little thing in the AI brain that says, oh, maybe I should stop at this point in time, because this is someone's personal, private information. Unless that's built into the algorithm, that's going to be a problem. And the industry is so young. I don't think that's played itself out yet, but I think it will. You have to build limits into these algorithms, or there will be no limits. And that would include intrusions on people's privacy. And to go back to something you said earlier, privacy isn't necessarily the right to keep information about you yourself and what you're doing secret to yourself. It's about control of your information. It's about your freedom to choose what information about you is shared with whom, and when and under what circumstances. And it's not so much that google or meta and these companies are surveilling people. It's that people don't have a choice. And the little form contract that they fill out, that's not a real choice. And generally, these cases are about the freedom to determine who gets to learn information about you, when, and under what circumstances. And I really like the way that you put it earlier, because a lot of times that freedom to choose is ignored.

Jamal: 23:34

Absolutely. Thank you. With the emergence of new technologies and data collection practices, what are some potential gaps or even loopholes in currently privacy legislation that you believe need to be addressed?

Jay: 23:48

privacy act. It was passed in: 1986

Jamal: 25:30

That's super interesting. I think you're the first person from across the other side of the pond that's actually said we don't need any more regulations. What we actually need is people to understand what we already have in place and ****** will enforce it. That's all we need. We just need regulators in every state, or we need better regulators, or the introduction of regulators, because what we already have, if you look at it and you're a lawyer, so we take your word for it, is it's already there. All the protections that we need to have control and freedom over our information is there. It's just that there are no regulators to enforce it. So companies are doing what they want, and the judges might not be as familiar with them as they should be, or they're not understanding it, or they are choosing to interpret it in a way that is actually favoring the wrongdoers rather than actually respecting the right to privacy. And if all we did was just focus on the laws that we have right now and just focus on properly regulating them and enforcing them, then America would have, or all American citizens would have, the rights and freedoms that we see other people in Europe enjoy.

Jay: 26:35

I think that's right. I think that's right. And it's not just this federal law. In the United States, we have common law, which is ancient judge made law, and we have common law rights to privacy. So there's a tort in the United States, which is a legal claim that you can bring for intrusion upon seclusion, which is essentially if someone gains unauthorized access to you in a way that would be highly offensive to a reasonable person, you can bring a claim for damages against that person who did that. That tort is over a century old in the United States. It goes back centuries in Great Britain, and it's quoted by Blackstone in the 17 hundreds, the right to a case. And so these rights go back a long time, and we need a greater enforcement of those rights. Part of the problem, Jamal, is not a lot of people understand how this works, which is what your company is training people to be privacy pros, people need to understand how this new technology works.

Jamal: 27:50

I think that is one of the biggest challenges is lots of people don't take their time to get clarity. And so we have this methodology, we call it the C Five methodology at the privacy pros. And we say everything has to start with the first C which is for clarity. Without clarity, anything else that you do doesn't have any meaning because you can't do it with confidence, because you don't even understand what you're dealing with. So first you need clarity. Once you have clarity, you have the confidence, you understand what you're dealing with, then you can provide credible solutions to achieve compliance. And what's really going to help you is to have a community of experts, a community of people who understand what they're doing because we don't know everything. And when you get those five C's and you put them all in one place, that's the recipe for success. And if you take one of those away, then it's a little bit like an inflated tire. If the tire is fully inflated, then you have a smooth journey. The moment you lose air and one of the sides of the tire becomes flat, you're going nowhere fast.

Jay: 28:44

I like the way the first C is clarity. In a lot of cases, the first time I get in front of the judge, the first thing I will do is say, look, the technology may seem complicated at first blush, but let's talk about what's really happening here, and let's do it in a context that is understandable within your day to day life. And then I give an example of what's happening and why it's important in a way that's clear, without talking about cookies and servers and source code, breaking down the technical terms and just talking about it in language that ordinary people can understand.

Jamal: 29:28

Jay, we are two piece of the same pod. One of the things I identified was my clients. The businesses were struggling with actually understanding what the regulation required. And when they were speaking to lawyers or legal counsel, they would just regurgitate the articles to them, and they would just go, yeah, they'd go away and do the wrong thing or not do the right thing, because there was no clarity, so there wasn't confidence, so they did nothing. And so that's what led me to write this book, the Easy Peasy Guide to the GDPR. And what I've done is essentially what you've just said is taken away the complexity and just put it all in simple layman's terms so everyone can actually understand. And what I found is that's actually helping privacy pros as well as their clients, because now people understand. Oh, yeah, this is clear. Okay. I'm confident what I need to do oh, I understand what I need to do and what I can't do, and I know where the gray area is, and I know exactly where to walk safely kind of thing. So what you've said there is exactly the same thing I've been preaching. It's all about making things easy peasy. And Albert Einstein actually said, if you can't explain it simply enough, you haven't understood it well enough.

Jay: 30:27

I think that's right.

Jamal: 30:28

Okay, Jay, I have one more question for you. What advice would you give. To aspiring privacy professionals who are looking to break into the field or elevate their careers. They're already seasoned and they're looking to elevate their careers and make a meaningful impact the way you are.

Jay: 30:43

It's the same advice that I think you'd given in any field, which is learn as much as you can, work hard, stay true to your values, and do the best you can. It seems so. Such simple advice, but I think that no matter what the industry is, if you follow those paths, you're going to be successful.

Jamal: 31:07

I completely agree. And it might be simple words, but that's because you like to explain things in a way that everyone can understand and everyone can definitely understand that regardless of how simply and beautifully you've put it, it is profound. All you have to do is focus on growing, have the growth mindset, continue learning, continue evolving, and continue being the best you can be. And there will be things that come along. But remember what your values are, stay true, use that value compass to navigate your decisions, make the right choices, and then you can go to bed every night feeling that you've done a great job and be proud of the legacy you're leaving behind as well.

Jay: 31:41

I think it's really important let me make this pitch. It's really important for more people to understand how these technologies work and to explain them in a way to the companies they work in and the companies they're working with to do things in ways that respect consumers and there's ways to do that. But you've got to put in the work to learn how the technology works and then stay true to core values that you're not going to take actions that are against the will and the freedoms that other people have to choose what to do with their information.

Jamal: 32:21

It's great words. Thank you, Jay. So, Jay, before I let you go, we always let the guest ask me a question. So I'm going to extend that same courtesy to you so you can ask me whatever you like. What would you like to ask me?

Jay: 32:32

You started me with an off the wall question. Where would you go back? And if you had an Indiana Jones time machine, what historical event would you go back to?

Jamal: 32:44

Oh, it's a good question to ask, but it's a tricky one to answer. What historical event would I go back to? You know what? I'm quite in touch with my faith. I would also go back to the time of our prophet, peace be upon him, just to witness the way he was, just to witness the presence around him, just to listen to some of those words. Because I feel like if I'd actually seen and met him in real life myself, my faith would be a lot more stronger. It'd be a lot more concrete, because right now we're going on something that we've seen in books or something that we've heard, but we didn't actually see for ourselves. And when you see something for yourself and you can actually touch it with all of your senses because you're there, you can smell the air, you can speak, you can hear, it makes a complete difference. So I think I would take a page out of your leaf, and I would actually go back to the time of our prophet and just to be around there and just to absorb and soak that up. Really?

Jay: 33:40

Okay, that's cool. Do our time machines let us come back, or do we I'd be quite.

Jamal: 33:46

Happy to be stuck there.

Jay: 33:47

Yeah. How did they make coffee? I would need a coffee machine.

Jamal: 33:55

acy litigation all the way in: 2011

Jay: 35:42

I do not. Thanks for having me on. It was a pleasure.

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