United Kingdom become a third country after Brexit

29. January 2018

Withdrawal of the United Kingdom from the Union and EU leads to United Kingdom become a third country.

The European Commission annouced, that on 30.03.2019, 00:00h (CET) the United Kingdom will no longer be member of the Union and EU, all Union and secondary law will cease to apply.

That means, tat all stakeholders processing personal data need to consider the legal repercussions of Brexit, beacuse as of the withdrawal date, the EU rules for transfer personal data to third countries apply. GDPR allows a transfer if the controller or processor provides appropriate safeguards.

Safeguards may be provided by:

  • Sandarad data protection clauses (SCC)
  • Binding corporate rules (BCR)
    • legally binding data protection rules approved by the competent data protection authority which apply within a corporate group
  • Condes of Conduct
    • Approved Codes of Conduct together with binding and enforceable commitments of the controller or processor in the third country
  • Certification mechanisms
    • Approved certification mechanisms together with binding and enforceable commitments of the controller or processor in the third country

Besides a transfer may take place based on consent, for the performance of a contract, for exercise of legal claims or for important reasons of public interest.

These procedures are already well-known to business operators beacuse they are uses today for the transfer of personal data to non EU-countries like the USA, Russia or China.

The decision is disappointing for everyone who were hoping for an adequate level of data protection in the United Kingdom.

Stakeholders should prepare for the requirements associated with recognition as a third country.

Category: EU Commission · European Union · GDPR · UK
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WP29 Guidelines on the notion of consent according to the GDPR – Part 1

26. January 2018

According to the GDPR, consent is one of the six lawful bases mentioned in Art. 6. In order for consent to be valid and compliant with the GDPR it needs to reflect the data subjects real choice and control.

The Working Party 29 (WP 29) clarifies and specifies the “requirements for obtaining and demonstrating” such a valid consent in its Guidelines released in December 2017.

The guidelines start off with an analysis of Article 4 (11) of the GDPR and then discusses the elements of valid consent. Referring to the Opinion 15/2011 on the definition of consent, “obtaining consent also does not negate or in any way diminish the controller’s obligations to observe the principles of processing enshrined in the GDPR, especially Article 5 of the GDPR with regard to fairness, necessity and proportionality, as well as data quality.”

The WP29 illustrates the elements of valid consent, such as the consent being freely given, specific, informed and unambiguous. For example, a consent is not considered as freely given if a mobile app for photo editing requires the users to have their GPS location activated simply in order to collect behavioural data aside from the photo editing. The WP29 emphasizes that consent to processing of unnecessary personal data “cannot be seen as a mandatory consideration in exchange for performance.”

Another important aspect taken into consideration is the imbalance of powers, e.g. in the matter of public authorities or in the context of employment. “Consent can only be valid if the data subject is able to exercise a real choice, and there is no risk of deception, intimidation, coercion or significant negative consequences (e.g. substantial extra costs) if he/she does not consent. Consent will not be free in cases where there is any element of compulsion, pressure or inability to exercise free will. “

Art. 7(4) GDPR emphasizes that the performance of a contract is not supposed to be conditional on consent to the processing of personal data that is not necessary for the performance of the contract. The WP 29 states that “compulsion to agree with the use of personal data additional to what is strictly necessary limits data subject’s choices and stands in the way of free consent.” Depending on the scope of the contract or service, the term “necessary for the performance of a contract… …needs to be interpreted strictly”. The WP29 lays down examples of cases where the bundling of situations is acceptable.

If a service involves multiple processing operations or multiple purposes, the data subject should have the freedom to choose which purpose they accept. This concept of granularity requires the purposes to be separated and consent to be obtained for each purpose.

Withdrawal of consent has to be possible without any detriment, e.g. in terms of additional costs or downgrade of services. Any other negative consequence such as deception, intimidation or coercion is also considered to be invalidating. The WP29 therefore suggests controllers to ensure proof that consent has been given accordingly.

(will be soon continued in Part 2)

Will Visa Applicants for the USA have to reveal their Social Media Identities in future?

11. January 2018

The U.S. Department of State is aiming for Visa applicants to answer supplemental questions, including information about social media. A 30-Day notice has been published in November in order to gather opinions from all interested individuals and organizations. The goal is to establish a legal basis for the “proper collection of all information necessary to rigorously evaluate all grounds of inadmissibility or deportability, or grounds for the denial of other immigration benefits”.

In concrete terms, applicants are supposed to reveal their social media identifiers used during the last five years. The State Department stresses the fact that “the collection of social media platforms and identifiers will not be used to deny visas based on applicants’ race, religion, ethnicity, national origin, political views, gender, or sexual orientation.”

Meanwhile, the Electronic Privacy Information Center (EPIC) has submitted its comments asking for withdrawal of the proposal to collect social media identifiers and for review of the appropriateness of using social media to make visa determinations.

EPIC not only critizes the lack of transparency as it is “not clear how the State Department intends to use the social media identifiers” and further continues that “the benefits for national security” don’t seem precise. The organization also expresses concerns because the collection of these data enable enhanced profiling and tracking of individuals as well as large scale surveillance of innocent people, maybe even leading to secret profiles.

It remains to be seen how the situation develops and how the public opinion influences the outcome.

Risk of identity theft for a billion people in India

5. January 2018

A billion people in India may be victims of identity theft. The Tribune newspaper uncovered a security breach in the country’s vast biometric database. The database contains personal data of almost every citizen in India. The biometric ID program called Aadhaar is a flagship policy of Prime Minister Narendra Modi against corruption.
The reporters of the newspaper were able to access names, email addresses, phone numbers and postal codes by typing in 12-digit unique identification numbers of people in the government’s database, after paying about 6,50 € ($8, 500 rupees).
The seller also sold software to print out unique identification cards, called Aadhaar cards that can be used to access various government services.
The seller had gained access to the database through former workers who were initially tasked with making the Aadhaar cards.
India’s Unique Identification Authority said in an official statement “Claims of bypassing or duping the Aadhaar enrollment system are totally unfounded. Aadhaar data is fully safe and secure and has robust, uncompromised security.” The governing Party officially tweeted that the report was fake news.

Happy New Year!

1. January 2018

Dear readers,

the team of the blog privacy-ticker.com wish you a happy new year and all the best for 2018.

Once again this year we will keep you up to date on the subject of data protection.

Best regards,

privacy-ticker.com

Category: General

Indian government urges people to sign up to Aadhaar – the world’s largest biometric ID system – while the Supreme Court still needs to determine its legality

28. December 2017

As reported in August of this year, the Indian Supreme Court (SC) acknowledged that the right to privacy is “intrinsic to life and liberty” and is “inherently protected under the various fundamental freedoms enshrined under Part III of the Indian Constitution.”

In the same context, the SC had announced it will be hearing petitions on Aadhaar related matters (the term – meaning “foundation” – stands for a 12 digit unique-identity number supposedly issued to all Indian residents based on their biometric and demographic data) in November.

According to a Bloomberg report, India’a Prime Minister Narendra Modi is calling for an expansion of Aadhaar, even though its constitutionality is still to be debated. The SC has set January 10th as the beginning of the final hearings.

While officials say Aadhaar is saving the government billions of dollars by better targeting beneficiaries of subsidized food and cash transfers, critics point to unfair exclusions and data leaks. The latter on the one hand also fear that the database might lead India into becoming a state of surveillance. On the other hand, they are concerned about the high risk of major leaks, such as the ones reported by a news agency in India, the PTI (Press Trust of India): “Personal details of several Aadhaar users were made public on over 200 central and state government websites.”

Meanwhile, Medianama, a source of information and analysis on Digital and Telecom businesses in India, has launched a list of already compromised leaks and encourages people to point out any similar incidents.

Category: Data breach · General · India · Personal Data
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Cancer Care Organization settles for 2.3 Mio $ after Data Breach

22. December 2017

In 2015, a data breach occurred at 21st Century Oncology  (21stCO), one of the leading providers of cancer care services in the USA, potentially affecting names, social security numbers, medical diagnoses and health insurance information of at least 2.2 million patients.

On its website, the provider had announced in 2016 that one of its databases was inappropriately accessed by an unauthorized third party, though an FBI investigation had already detected an attack as early as October 2015. The FBI, however, requested 21stCO to delay the notification because of ongoing federal investigations.

21stCO had then stated that ““we continue to work closely with the FBI on its investigation of the intrusion into our system” and “in addition to security measures already in place, we have also taken additional steps to enhance internal security protocols to help prevent a similar incident in the future.” To make amends for the security gap patients had been offered one year of free credit monitoring services.

Nevertheless, the provider now has to pay a fine worth 2.3 million dollars as settled with the Office for Civil Rights (OCR; part of the U.S. Department of Health and Human Services).

It has been accused of not implementing appropriate security measures and procedures to regularly review information system activity such as access or security incident reports, despite the disclosure by the FBI.

The OCR further stated that “the organization also disclosed protected health information to its business associates without having a proper business associate agreement in place”.

The settlement additionally requires 21stCO to set up a corrective action plan including the appointment of a compliance representative, completion of risk analysis and management, revision of cybersecurity policies, an internal breach reporting plan and overall in-depth IT-security. The organization will, in addition, need to maintain all relevant documents and records for six years, so the OCR can inspect and copy the documents if necessary.

Following the settlement, District Attorney Stephen Muldrow stated “we appreciate that 21st Century Oncology self-reported a major fraud affecting Medicare, and we are also pleased that the company has agreed to accept financial responsibility for past compliance failures.”

WP 29 adopts guidelines on transparency under the GDPR

21. December 2017

The Article 29 Working Party (WP 29) has adopted guidelines on transparency under the General Data Protection Regulation (GDPR). The guideline intends to bring clearance into the transparency requirement regarding the processing of personal data and gives practical advice.

Transparency as such is not defined in the GDPR. However, Recital 39 describes what the transparency obligation requires when personal data is processed. Providing information to a data subject about the processing of personal data is one major aspect of transparency.

In order to explain transparency and its requirements, the WP 29 points out “elements of transparency under the GDPR” and explains their understanding of these. The following elements are named and described:

– “Concise, transparent, intelligible and easily accessible”
– “Clear and plain language”
– “Providing information to children”
– “In writing or by other means”
– “..the information may be provided orally”
– “Free of charge”

In a schedule, the WP 29 lists which information under Art. 13 and Art. 14 GDPR shall be provided to a data subject and which information is not required.

New and surprising password guidelines released by NIST

The National Institute of Standards and Technology (NIST), a non-regulatory federal agency within the U.S. Department of Commerce that promotes innovation and industrial competitiveness often by recommending best practices in matters of security, has released its Digital Identity Guidelines uttering advice for user password management.

Considering that Bill Burr, the pioneer of password management, has admitted regretting his recommendations in a publication back in 2003, the NIST is taking appropriate action by revising wide-spread practices.

For over a decade, people were encouraged to create complex passwords with capital letters, numbers and „obscure“ characters – along with frequent changes.

Research has now shown that these requirements don’t necessarily improve the level of security, but instead might even make it easier for hackers to crack the code as people tend to make minor changes when they have to change their already complex password – usually pressed for time.

This is why the NIST is now recommending to let go of periodic password change requirements alongside of algorithmic complexity.

Rather than holding on to these practices, the experts emphasize the importance of password length. The NIST states, that „password length has been found to be a primary factor in characterizing password strength. Passwords that are too short yield to brute force attacks as well as to dictionary attacks using words and commonly chosen passwords.“

It takes years for computers to figure out passwords with 20 or more characters as long as the password is not commonly used.

The NIST advises to screen new passwords against specific lists: „For example, the list may include, but is not limited to passwords obtained from previous breach corpuses, dictionary words, repetitive or sequential characters (e.g. ‘aaaaaa’, ‚1234abcd’), context-specific words, such as the name of the service, the username, and derivatives thereof.“

Subsequently, the NIST completely abandons its own suggestions and causes great relief for industries all over:

„Length and complexity requirements beyond those recommended here significantly increase the difficulty of memorized secrets and increase user frustration. As a result, users often work around these restrictions in a way that is counterproductive. Furthermore, other mitigations such as blacklists, secure hashed storage, and rate limiting are more effective at preventing modern brute-force attacks. Therefore, no additional complexity requirements are imposed.“

French Data Protection Commission threatens WhatsApp with sanctions

The French National Data Protection Commission (CNIL) has found violations of the French Data Protection Act in the course of an investigation conducted in order to verify compliance of WhatsApps data Transfer to Facebook with legal requirements.

In 2016, WhatsApp had announced to transfer data to Facebook for the purpose of targeted advertising, security and business intelligence (technology-driven process for analyzing data and presenting actionable information to help executives, managers and other corporate end users make informed business decisions).

Immediately after the announcement, the Working Party 29 (an independent European advisory body on data protection and privacy, set up under Article 29 of Directive 95/46/EC; hereinafter referred to as „WP29“) asked the company to stop the data transfer for targeted advertising as French law doesn’t provide an adequate legal basis.

„While the security purpose seems to be essential to the efficient functioning of the application, it is not the case for the “business intelligence” purpose which aims at improving performances and optimizing the use of the application through the analysis of its users’ behavior.“

In the wake of the request, WhatsApp had assured the CNIL that it does not process the data of French users for such purposes.

However, the CNIL currently not only came to the result that the users’ consent was not validly collected as it lacked two essential aspects of data protection law: specific function and free choice. But it also denies a legitimate interest when it comes to preserving fundamental rights of users based on the fact that the application cannot be used if the data subjects refuse to allow the processing.

WhatsApp has been asked to provide a sample of the French users’ data transferred to Facebook, but refused to do so because being located in die United States, „it considers that it is only subject to the legislation of this country.“

The inspecting CNIL thus has issued a formal notice to WhatsApp and again requested to comply with the requirements within one month and states:

„Should WhatsApp fail to comply with the formal notice within the specified timescale, the Chair may appoint an internal investigator, who may draw up a report proposing that the CNIL’s restricted committee responsible for examining breaches of the Data Protection Act issue a sanction against the company.“

 

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