Constangy Cyber Advisor 

As we’ve said, privacy compliance has long since evolved beyond check-the-box expectations. Today, organizations can no longer afford to be passive about privacy, and instead must be actively engaged in managing all aspects their compliance posture.

In Part One of this series, we examined how plaintiffs’ lawyers are weaponizing privacy policies to frame claims. In Part Two, we looked at how U.S. regulators are intensifying scrutiny, creating a “double jeopardy” effect where one misstep can result in both litigation and regulatory penalties.

In Part Three, we will focus on solutions and what companies can do to strengthen policies, align practices, and reduce the potential for legal exposure.

Be mindful of your “public persona”

More than ever, individuals interact and do business in digital spaces. Accordingly, websites and apps are now the primary embodiment of who a company “is.” Consumers are more likely to ignore branding and slick ad copy, and instead scrutinize the details of legal notices and disclaimers to determine whether to entrust their personal information to a company. Because websites are accessible to anyone—including opportunistic plaintiffs or ambitious regulators—organizations must ensure that details and disclosures remain as accurate and up-to-date as possible. If they don’t, litigation and investigations might ensue, as we’ve already discussed.

The first line of defense is often a robust privacy policy. We recommend these five strategies:

• Ensure that your day-to-day operations match the commitments you made in your privacy policy.
• Revise your policy whenever products, laws, or risks change. In other words, don’t wait for annual reviews.
• Maintain records of training, audits, risk assessments, and any other documentation that will support what the policy states.
• Provide training to your employees about the policy.
• Test and audit regularly. Conduct spot-checks of policy disclosures to ensure that they are consistent with your actual practices.

Building a risk-based compliance program

Adherence to data privacy and security obligations is a strong first step, but failing to put those commitments into action compromises the organization’s credibility and also puts the company at risk for harsh penalties. Compliance programs should be founded on a risk-based approach that enables companies to focus their resources where they matter most, align their teams, and stay ahead of shifting regulations. This enables organizations to remain adaptable so that any changes in legal requirements, business operations, or corporate risk-tolerance/strategy can be managed proactively.

Here are four aspects of compliance programs that should be reflected in policies:

1. Conduct a gap analysis:

• Compare policy disclosures with actual practices, including data collection, sharing, storage, and deletion.
• Identify inconsistencies that could be flagged in litigation or in a regulatory review.

1. Prioritize risks:

• Give extra attention to high-risk areas, including third-party sharing, cookies and tracking tools, use of artificial intelligence or machine learning, and sensitive data (such as health, financial, and children’s information).
• Even in the absence of direct legal requirements or risks, consider industry best practices (meet or exceed competitors) and reputational risks (loss of consumer trust).

1. Enable cross-functional collaboration:

• Involve legal, compliance, IT, marketing, product, and operations teams in drafting and reviewing policies.
• Take the time to ensure public commitments accurately reflect how systems are designed and products actually function (for example, cookies and consent preference management).

1. Develop a framework:

• Develop a compliance framework to more efficiently identify and analyze new regulations or enforcement actions, and update policies in response to developments.
• Ensure that your framework is embedded across all facets of the organization .

“Future-proofing” privacy policies

Flexibility is essential. Privacy policies must adapt to evolving legal requirements, including state cybersecurity laws, rules regarding the handling and use of sensitive data, and regulatory disclosure obligations.

Compliance tools such as privacy statements and cookie banners are now central evidence in litigation and in regulatory enforcement. The most successful policies are living documents, reinforced through activities such as audits and training. Companies that treat their privacy policies as assets rather than burdens are better positioned to build trust and resilience.

With the right compliance strategies, organizations can move from reactive risk management to proactive trust-building. Privacy policies may be just one facet of an organization’s compliance considerations and needs, but as the old saying goes, “You never get a second chance to make a first impression.” In other words, an effective privacy policy that is put into practice is arguably one of a company’s most important investments.

The Constangy Cyber Team assists businesses of all sizes and industries with compliance needs. If you would like additional information about state or federal data privacy laws, please contact us at cyber@constangy.com.