Category: Countries

European Commission releases third annual Privacy Shield Review report

25. October 2019

The European Commission has released a report on the E.U.-U.S. Privacy Shield, which represents the third annual report on the performance of the supranational Agreement, after it came into effect in July 2016. The discussions on the review were launched on 12 September 2019 by Commissioner for Justice, Consumers and Gender Equality Věra Jourová, with the U.S. Secretary of Commerce Wilbur Ross in Washington, DC.

The Privacy Shield protects the fundamental rights of anyone in the European Union whose personal data is transferred to certified companies in the United States for commercial purposes and brings legal clarity for businesses relying on transatlantic data transfer. The European Commission is commited to review the Agreement on an annual basis to ensure that the level of protection certified under the Privacy Shield continues to be at an adequate level.

This year’s report validates the continuous adequacy of the protection for personal data transferred to certified companies in the U.S. from the Europan Union under the Privacy Shield. Since the Framework was implemented, about 5000 companies have registered with the Privacy Shield. The EU Commissioner for Justice, Consumers and Gender Equality stated that “the Privacy Shield has become a success story. The annual review is an important health check for its functioning“.

The improvements compared to the last annual review in 2018 include the U.S. Department of Commerce’s efforts to ensure necessary oversight in a systematic manner. This is done by monthly checks with samply companies that are certified unter the Privacy Shield. Furthermore, an increasing number of European Citizens are making use of their rights under the Framework, and the resulting response mechanisms are functioning well.

The biggest criticism the European Commission has stated came in the form of the recommendation of firm steps to ensure a better process in the (re)certification process under the Privacy Shield. The time of the (re)certification process allows companies to get recertified within three months after their certification has run out, which can lead to a lack of transparency and confusion, since those companies will still be listed in the registry. A shorter time frame has been proposed by the European Commission to guarantee a higher level of security.

Overall, the third annual review has been seen as a success in the cooperation between the two sides, and both the U.S. and the European officials agree that there is a need for strong and credible enforcement of privacy rules to protect the respective citizens and ensure trust in the digital economy.

USA and UK sign Cross Border Data Access Agreement for Criminal Electronic Data

10. October 2019

The United States and the United Kingdom have entered into the first of its kind CLOUD Act Data Access Agreement, which will allow both countries’ law enforcement authorities to demand authorized access to electronic data relating to serious crime. In both cases, the respective authorities are permitted to ask the tech companies based in the other country, for electronic data directly and without legal barriers.

At the base of this bilateral Agreement stands the U.S.A.’s Clarifying Lawful Overseas Use of Data Act (CLOUD Act), which came into effect in March 2018. It aims to improve procedures for U.S. and foreign investigators for obtaining electronic information held by service providers in the other country. In light of the growing number of mutual legal assistance requests for electronic data from U.S. service providers, the current process for access may take up to two years. The Data Access Agreement can reduce that time considerably by allowing for a more efficient and effective access to data needed, while protecting the privacy and civil liberties of the data subjects.

The Cloud Act focuses on updating legal frameworks to respond to the growing technology in electronic communications and service systems. It further enables the U.S. and other countries to enter into a mutual executive Agreement in order to use own legal authorities to access electronic evidence in the other respective country. An Agreement of this form can only be signed by rights-respecting countries, after it has been certified by the U.S. Attorney General to the U.S. Congress that their laws have robust substansive and procedural protections for privacy and civil liberties.

The Agreement between the U.K. and the U.S.A. further assures providers that the requested disclosures are compatible with data protection laws in both respective countries.

In addition to the Agreement with the United Kingdom, there have been talks between the United States and Australia on Monday, reporting negotiations for such an Agreement between the two countries. Other negotiations have also been held between the U.S. and the European Commission, representing the European Union, in regards to a Data Access Agreement.

Category: General · UK · USA
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CJEU rules that Right To Be Forgotten is only applicable in Europe

27. September 2019

In a landmark case on Tuesday the Court of Justice of the European Union (CJEU) ruled that Google will not have to apply the General Data Privacy Regulation’s (GDPR) “Right to be Forgotten” to its search engines outside of the European Union. The ruling is a victory for Google in a case against a fine imposed by the french Commission nationale de l’informatique et des libertés (CNIL) in 2015 in an effort to force the company and other search engines to take down links globally.

Seeing as the internet has grown into a worldwide media net with no borders, this case is viewed as a test of wether people can demand a blanket removal of information about themselves from searches without overbearing on the principles of free speech and public interest. Around the world, it has also been perceived as a trial to see if the European Union can extend its laws beyond its own borders.

“The balance between right to privacy and protection of personal data, on the one hand, and the freedom of information of internet users, on the other, is likely to vary significantly around the world,” the court stated in its decision.The Court also expressed in the judgement that the protection of personal data is not an absolute right.

While this leads to companies not being forced to delete sensitive information on their search engines outside of the EU upon request, they must take precautions to seriously discourage internet users from going onto non-EU versions of their pages. Furthermore, companies with search engines within the EU will have to closely weigh freedom of speech against the protection of privacy, keeping the currently common case to case basis for deletion requests.

In effect, since the Right to be Forgotten had been first determined by the CJEU in 2014, Google has since received over 3,3 million deletion requests. In 45% of the cases it has complied with the delisting of links from its search engine. As it stands, even while complying with deletion requests, the delisted links within the EU search engines can still be accessed by using VPN and gaining access to non-EU search engines, circumventing the geoblocking. This is an issue to which a solution has not yet been found.

CNIL updates its FAQs for case of a No-Deal Brexit

24. September 2019

The French data protection authority “CNIL” updated its existing catalogue of questions and answers (“FAQs”) to inform about the impact of a no-deal brexit and how controllers should prepare for the transfer of data from the EU to the UK.

As things stand, the United Kingdom will leave the European Union on 1st of November 2019. The UK will then be considered a third country for the purposes of the European General Data Protection Regulation (“GDPR”). For this reason, after the exit, data transfer mechanisms become necessary to transfer personal data from the EU to the UK.

The FAQs recommend five steps that entities should take when transferring data to a controller or processor in the UK to ensure compliance with GDPR:

1. Identify processing activities that involve the transfer of personal data to the United Kingdom.
2. Determine the most appropriate transfer mechanism to implement for these processing activities.
3. Implement the chosen transfer mechanism so that it is applicable and effective as of November 1, 2019.
4. Update your internal documents to include transfers to the United Kingdom as of November 1, 2019.
5. If necessary, update relevant privacy notices to indicate the existence of transfers of data outside the EU and EEA where the United Kingdom is concerned.

CNIL also discusses the GDPR-compliant data transfer mechanisms (e.g., standard contractual clauses, binding corporate rules, codes of conduct) and points out that, whichever one is chosen, it must take effect on 1st of November. If controllers should choose a derogation admissible according to GDPR, CNIL stresses that this must strictly comply with the requirements of Art. 49 GDPR.

High Court dismisses challenge regarding Automated Facial Recognition

12. September 2019

On 4 September, the High Court of England and Wales dismissed a challenge to the police’s use of Automated Facial Recognition Technology (“AFR”). The court ruled that the use of AFR was proportionate and necessary to meet the legal obligations of the police.

The pilot project AFR Locate was used for certain events and public places when the commission of crimes was likely. Up to 50 faces per second can be detected. The faces are then compared by biometric data analysis with wanted persons registered in police databases. If no match is found the images are deleted immediately and automatically.

An individual has initiated a judicial review process after he has not been identified as a wanted person, but is likely to have been captured by AFR Locate. He considered this to be illegal, in particular due to a violation of the right to respect for private and family life under Article 8 of the European Convention on Human Rights (“ECHR”) and data protection law in the United Kingdom. In his view, the police did not respect the data protection principles. In particular, that approach would violate the principle of Article 35 of the Data Protection Act 2018 (“DPA 2018”), which requires the processing of personal data for law enforcement purposes to be lawful and fair. He also pointed out that the police had failed to carry out an adequate data protection impact assessment (“DPIA”).

The Court stated that the use of AFR has affected a person’s rights under Article 8 of the ECHR and that this type of biometric data has a private character in itself. Despite the fact that the images were erased immediately, this procedure constituted an interference with Article 8 of the ECHR, since it suffices that the data is temporarily stored.

Nevertheless, the Court found that the police’s action was in accordance with the law, as it falls within the police’s public law powers to prevent and detect criminal offences. The Court also found that the use of the AFR system is proportionate and that the technology can be used openly, transparently and with considerable public commitment, thus fulfilling all existing criteria. It was only used for a limited period, for a specific purpose and published before it was used (e.g. on Facebook and Twitter).

With regard to data protection law, the Court considers that the images of individuals captured constitute personal data, even if they do not correspond to the lists of persons sought, because the technology has singled them out and distinguished them from others. Nevertheless, the Court held that there was no violation of data protection principles, for the same reasons on which it denied a violation of Art. 8 ECHR. The Court found that the processing fulfilled the conditions of legality and fairness and was necessary for the legitimate interest of the police in the prevention and detection of criminal offences, as required by their public service obligations. The requirement of Sec. 35 (5) DPA 2018 that the processing is absolutely necessary was fulfilled, as was the requirement that the processing is necessary for the exercise of the functions of the police.

The last requirement under Sec. 35 (5) of the DPA 2018 is that a suitable policy document is available to regulate the processing. The Court considered the relevant policy document in this case to be short and incomplete. Nevertheless, it refused to give a judgment as to whether the document was adequate and stated that it would leave that judgment to the Information Commissioner Office (“ICO”), as it would publish more detailed guidelines.

Finally, the Court found that the impact assessment carried out by the police was sufficient to meet the requirements of Sec. 64 of DPA 2018.

The ICO stated that it would take into account the High Court ruling when finalising its recommendations and guidelines for the use of live face recognition systems.

London’s King’s Cross station facial recognition technology under investigation by the ICO

11. September 2019

Initially reported by the Financial Times, London’s King’s Cross station is under crossfire for making use of a live face-scanning system across its 67 acres large site. Developed by Argent, it was confirmed that the system has been used to ensure public safety, being part of a number of detection and tracking methods used in terms of surveillance at the famous train station. While the site is privately owned, it is widely used by the public and houses various shops, cafes, restaurants, as well as office spaces with tenants like, for example, Google.

The controversy behind the technology and its legality stems from the fact that it records everyone in its parameters without their consent, analyzing their faces and compairing them to a database of wanted criminals, suspects and persons of interest. While Developer Argent defended the technology, it has not yet explained what the system is, how it is used and how long it has been in place.

A day before the ICO launched its investigation, a letter from King’s Cross Chief Executive Robert Evans reached Mayor of London Sadiq Khan, explaining the matching of the technology against a watchlist of flagged individuals. In effect, if footage is unmatched, it is blurred out and deleted. In case of a match, it is only shared with law enforcement. The Metropolitan Police Service has stated that they have supplied images for a database to carry out facial scans to system, though it claims to not have done so since March, 2018.

Despite the explanation and the distinct statements that the software is abiding by England’s data protection laws, the Information Commissioner’s Office (ICO) has launched an investigation into the technology and its use in the private sector. Businesses would need to explicitly demonstrate that the use of such surveillance technology is strictly necessary and proportionate for their legitimate interests and public safety. In her statement, Information Commissioner Elizabeth Denham further said that she is deeply concerned, since “scanning people’s faces as they lawfully go about their daily lives, in order to identify them, is a potential threat to privacy that should concern us all,” especially if its being done without their knowledge.

The controversy has sparked a demand for a law about facial recognition, igniting a dialogue about new technologies and future-proofing against the yet unknown privacy issues they may cause.

Category: GDPR · General · UK
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Google strives to reconcile advertising and privacy

27. August 2019

While other browser developers are critical of tracking, Google wants to introduce new standards to continue enabling personalized advertising. With the implementation of the “Privacy Sandbox” and the introduction of a new identity management system, the developer of the Chrome browser wants to bring browsers to an uniform level in processing of user data and protect the privacy of users more effectively.

The suggestions are the first steps of the privacy initiative announced by Google in May. Google has published five ideas. For example, browsers are to manage a “Privacy Budget” that gives websites limited access to user data so that users can be sorted into an advertising target group without being personally identified. Google also plans to set up central identity service providers that offer limited access to user data via an application programming interface (API) and inform users about the information they have passed on.

Measures like Apple’s, which have introduced Intelligent Tracking Protection, are not in Google’s interest, as Google generates much of its revenue from personalized advertising. In a blog post, Google also said that blocking cookies promotes non-transparent techniques such as fingerprinting. Moreover, without the ability to display personalized advertising, the future of publishers would be jeopardized. Their costs are covered by advertising. Recent studies have shown, that the financing of publishers decreases by an average of 52% if advertising loses relevance due to the removal of cookies.

Based on these ideas, the discussion among developers about the future of web browsers and how to deal with users’ privacy should now begin. Google’s long-term goal is a standardization process to which all major browser developers should adhere. So far, Google has had only limited success with similar initiatives.

ICO releases a draft Code of Practice to consult on the Use of Personal Data in Political Campaigning

14. August 2019

The United Kingdom’s Information Commissioner’s Office (ICO) plans to give consultations on a new framework code of practice regarding the use of personal data in relation to politcal campaigns.

ICO states that in any democratic society it is vital for political parties,  candidates and campaigners to be able to communicate effectively with voters. Equally vital, though, is that all organisations involved in political campaigning use personal data in a transparent, lawful way that is understood by the people.

Along with the internet, politcal campaigning has become increasingly sophisticated and innovative. Using new technologies and techniques to understand their voters and target them, political campaigning has changed, using social media, the electoral register or screening names for ethnicity and age. In a statement from June, ICO has adressed the risk that comes with innovation, which, intended or not, can undermine the democratic process by hidden manipulation through the processing of personal data that the people do not understand.

In this light, ICO expresses that their current guidance is outdated, since it has not been updated since the introduction of the General Data Protection Regulation (GDPR). It does not reflect modern campainging practices. However, the framework does not establish new requirements for campaigners, instead aims at explaining and clarifying data protection and electronic marketing laws as they already stand.

Before drafting the framework, the Information Commissioner launched a call for views in October 2018 in hopes of input from various people and organisations. The framework is hoped to have taken into account the responses the ICO had received in the process.

In hopes of being the basis of a statutory code of practice if the relevant legislation is introduced, the draft of the framework code of practice is now out for public consultation, and will remain open for public access until Ocotber 4th.

CNIL and ICO publish revised cookie guidelines

6. August 2019

The French data protection authority CNIL as well as the British data protection authority ICO have revised and published their guidelines on cookies.

The guidelines contain several similarities, but also differ in some respects.

Both France and the UK consider rules that apply to cookies to be also applicable to any device that stores or accesses information. In addition, both authorities stress that users must give specific, free and unambiguous consent before cookies are placed. Further scrolling of the website cannot be considered as consent. Likewise, obtaining consent from T&Cs is not lawful. This procedure violates Art. 7 (2) of the General Data Protection Regulation (GDPR), according to which the request for consent shall be presented in a manner which is clearly distinguishable from the other matters, in an intelligible and easily accessible form, using clear and plain language. In addition, all parties who place cookies must be named so that informed consent can be obtained. Finally, both authorities point out that browser settings alone are not a sufficient basis for valid consent.

With regard to the territorial scope, CNIL clarifies that the cookie rules apply only to the processing of cookies within the activities of an establishment of a controller or processor in France, regardless of whether the processing takes place in France. The English guideline does not comment on this.

Cookie walls are considered non-compliant with GDPR by the French data protection authority due to the negative consequences for the user in case of refusal. ICO, on the other hand, is of the opinion that a consent forced on the basis of a cookie wall is probably not valid. Nevertheless GDPR must be balanced with other rights. Insofar ICO has not yet delivered a clear position.

Regarding analytic cookies, CNIL explains that a consent is not always necessary, namely not if they correspond to a list of cumulative requirements created by CNIL. ICO, on the other hand, does not exempt cookies from the consent requirement even in the case of analytic cookies.

Finally, CNIL notes that companies have six months to comply with the rules. However, this period will only be set in motion by the publication of a statement by the CNIL, which is still pending. CNIL expects this statement to be finalised during the first quarter of 2020. The ICO does not foresee such a time limit.

Settlement of $13 Million for Google in Street View Privacy Case

30. July 2019

In an attempt to settle a long-running litigation of a class-action case started in 2010, Google agrees to pay $13 million over claims that it violated U.S. wire-tapping laws. The issue came from vehicles used for its Street View mapping Project that captured and collected personal data from private wifi networks along the way.

Street View is a feature that lets users interact with panoramic and detailed images of locations all around the world. The legal action began when several people whose data was collected sued Google after it admitted the cars photographing neighborhoods for Street View had also gathered emails, passwords and other private information from wifi networks in more than 30 countries.

While the company was quick to call this collection of data a mistake,  investigators found out that the capture of personal data was built and embedded by Google engineers in the software of the vehicles to intentionally collect personal data from accessed networks.

The new agreement would make Google to be required to destroy any collected data via Street View, agree not to use Street View to collect personal data from wifi networks without consent, and to create webpages and instructions to explain to people how to secure their wireless content.

Google had been asked to refrain from using and collecting personal data from wifi networks in an earlier settlement in 2013, which raises questions as to why it was necessary to include it in the current settlement as well.

Category: Cyber security · General · USA
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