Fernando M. Pinguelo is the new chair of the New Jersey State Bar Association’s Privacy Law Committee. Pinguelo, 41, is a partner at Scarinci Hollenbeck and head of the firm’s cyber security and data protection practice group. He began writing and lecturing widely on electronic discovery after New Jersey amended its rules for discovery of electronically stored information in 2006, and created a course in e-discovery at Seton Hall University School of Law in 2009. As an outgrowth of his teaching he also founded two blogs, eLessons Learned and eWhite House Watch. Pinguelo, a New Jersey native, graduated from Boston College and Boston College Law School. He clerked for former Appellate Division Judge Edwin H. Stern.
Q. Recent revelations about the National Security Agency’s domestic phone tracking system have raised concerns that the government illegally invaded the privacy of countless Americans. Are those concerns valid?
A. It’s hard to say without knowing all the facts. NSA programs are approved and overseen by the secret Foreign Intelligence Surveillance Court and NSA is required to destroy information on Americans that doesn’t fall under exceptions to the rule, including information that is relevant to foreign intelligence, encrypted, or evidence of a crime. These revelations have sparked a needed debate on the competing interests at stake – and that’s a good thing.
Q. In July the New Jersey Supreme Court imposed a warrant requirement for police tracking cell phone locations. What’s the significant of that ruling?
A. The court held that the New Jersey Constitution protects individuals’ privacy interest in the location of their cell phones. The court recognized that using a cell phone to determine the location of its owner can be as intrusive as having a tracking device placed on oneself. New Jersey continues its tradition to protect privacy in the face of technological advances.
Q. How has our state stood historically when it comes to safeguarding citizens’ privacy?
A. New Jersey has been at the forefront of privacy issues, compared to how the feds have dealt with them. For example, our courts have found that you don’t relinquish privacy when it comes to garbage and bank records. There was one case concerning attorney-client communications conducted in the workplace where the court held that even though you agree not to use your employer-provided computer for personal purposes, email sent through your personal account should remain private.
Q. How tech-savvy are our judges?
A. It runs the gamut. I’ve seen very tech-savvy judges on both the state and federal level, and met them on panels, but there are not many.
Q. Can people who use social media have any expectation of privacy with regard to their communications?
A. Yes, but the expectation has limits. Even though users make disclosures to providers to use their services, they are not advancing the release of personal information to others and can reasonably expect that such information will remain private – at least in New Jersey. That said, if users broadcast information about themselves publically, then all bets are off.
Q. Maintaining cyber security seems to be a huge problem. How can organizations fend off hackers?
A. By being ready for it. I recently spoke at an international conference of the American Bar Association in Brazil, which will host the 2016 Summer Olympics. One statistic I mentioned was that in Beijing (during the 2008 Olympics) there were more than 12 million hacking attempts per day to infiltrate the systems and wreak havoc. For many the object was financial gain. But global events provide a great opportunity for activists to promote their agenda. The term for them is hacktivists.
Q. What are your plans for the NJSBA Privacy Law Committee?
A. I’d like to create a forum where people like me – lawyers practicing in this area – can exchange ideas and become actively engaged in the dialogue about privacy and security. In Washington and in Trenton, legislation is being considered and drafted in these areas. We can help draft an agenda that’s workable.