Category: Countries

Hearing on the legal challenge of SCC and US-EU Privacy Shield before CJEU

17. July 2019

On Tuesday last week, the European Court of Justice (CJEU) held the hearing on case 311/18, commonly known as “Schrems II”, following a complaint to the Irish Data Protection Commission (DPC) by Maximilian Schrems about the transfer of his personal data from Facebook Ireland to Facebook in the U.S. The case deals with two consecutive questions. The initial question refers to whether U.S. law, the Foreign Intelligence Service Act (FISA), that consists a legal ground for national security agencies to access the personal data of citizens of the European Union (EU) violates EU data protection laws. If confirmed, this would raise the second question namely whether current legal data transfer mechanisms could be invalid (we already reported on the backgrounds).

If both, the US-EU Privacy Shield and the EU Standard Contractual Clauses (SCCs) as currently primeraly used transfer mechanisms, were ruled invalid, businesses would probably have to deal with a complex and diffucult scenario. As Gabriela Zanfir-Fortuna, senior counsel at Future of Privacy Forum said, the hearing would have had a particularly higher impact than the first Schrems/EU-US Safe Harbor case, because this time it could affect not only data transfers from the EU to the U.S., but from the EU to all countries around the world where international data trensfers are based on the SCCs.

This is what also Facebook lawyer, Paul Gallagher, argued. He told the CJEU that if SCCs were hold invalid, “the effect on trade would be immense.” He added that not all U.S. companies would be covered by FISA – that would allow them to provide the law enforcement agencies with EU personal data. In particular, Facebook could not be hold responsible for unduly handing personal data over to national security agencies, as there was no evidence of that.

Eileen Barrington, lawyer of the US government assured, of course, by referring to a “hypothetical scenario” in which the US would tap data streams from a cable in the Atlantic, it was not about “undirected” mass surveillance. But about “targeted” collection of data – a lesson that would have been learned from the Snowden revelations according to which the US wanted to regain the trust of Europeans. Only suspicious material would be filtered out using particular selectors. She also had a message for the European feeling of security: “It has been proven that there is an essential benefit to the signal intelligence of the USA – for the security of American as well as EU citizens”.

The crucial factor for the outcome of the proceedings is likely to be how valid the CJEU considers the availability of legal remedies to EU data subjects. Throughout the hearing, there were serious doubts about this. The monitoring of non-US citizens data is essentially based on a presidential directive and an executive order, i.e. government orders and not on formal laws. However, EU citizens will be none the wiser, as particularly, referring to many critisists’ conlusion, they do not know whether they will be actually surveilled or not. It remains the issue regarding the independence of the ombudsperson which the US has committed itself to establish in the Privacy Shield Agreement. Of course, he or she may be independent in terms of the intelligence agencies, but most likely not of the government.

However, Henrik Saugmandsgaard Øe, the Advocate General responsible for the case, intends to present his proposal, which is not binding on the Judges, on December 12th. The court’s decision is then expected in early 2020. Referring to CJEU judge and judge-rapporteur in the case, Thomas von Danwitz, the digital services and networking would be considerably compromised, anyways, if the CJEU would declare the current content of the SCC ineffective.

 

 

Privacy incidents cost Facebook 5 billion dollar

15. July 2019

According to a report of the Washington Post the Federal Trade Commission (FTC) has approved a $ 5 billion (approx. € 4,4 billion) settlement with Facebook. The settlement was reached between the FTC and Facebook due to various Data Protection incidents, in particular the Cambridge Analytica scandal.

The settlement relies on a three to two vote – the FTC’s three republicans supported the fine the two democrats were against ist – and terminates the procedure for investigating Facebook’s privacy violations against users’ personal information. The fine of $ 5 billion is the highest fine ever assessed against a tech company, but even if it sounds like a very high fine, it only corresponds to the amount of the monthly turnover and is therefore not very high in relative terms. So far, the highest fine was $ 22,5 million for Google in 2012.

The decision of the FTC needs to be approved by the Justice Department. As a rule, however, this is a formality.

This is not the first fine Facebook has to accept in connection with various data protection incidents and certainly not the last. Investigations against Facebook are still ongoing in Spain as well as in Germany. In addition, Facebook has been criticized for quit some time for privacy incidents.

Record fine by ICO for British Airways data breach

11. July 2019

After a data breach in 2018, which affected 500 000 customers, British Airways (BA) has now been fined a record £183m by the UK’s Information Commissioners Office (ICO). According to the BBC, Alex Cruz, chairman and CEO of British Airways, said he was “surprised and disappointed” by the ICO’s initial findings.

The breach happened by a hacking attack that managed to get a script on to the BA website. Unsuspecting users trying to access the BA website had been diverted to a false website, which collected their information. This information included e-mailaddresses, names and credit card information. While BA had stated that they would reimburse every customer that had been affected, its owner IAG declared through its chief executive that they would take “all appropriate steps to defend the airline’s position”.

The ICO said that it was the biggest penalty that they had ever handed out and made public under the new rules of the GDPR. “When an organization fails to protect personal data from loss, damage or theft, it is more than an inconvenience,” ICO Commissioner Elizabeth Dunham said to the press.

In fact, the GDPR allows companies to be fined up to 4% of their annual turnover over data protection infringements. In relation, the fine of £183m British Airways received equals to 1,5% of its worldwide turnover for the year 2017, which lies under the possible maximum of 4%.

BA can still put forth an appeal in regards to the findings and the scale of the fine, before the ICO’s final decision is made.

Texas amends Data Breach Notification Law

2. July 2019

The Governor of Texas, Greg Abbott, recently signed the House Bill 4390 (HB 4390), which modifies the state’s current Data Breach Notification law and introduces an advisory council (“Texas Privacy Privacy Protection Advisory Council”) charged with studying data privacy laws in Texas, other states and relevant other jurisdictions.

Prior to the new amendment, businesses had to disclose Data Breaches to the Data Subjects “as quickly as possible”. Now, a concrete time period for notifying individuals whose sensitive personal information was acquired by an unauthorized person is determined by the bill. Individual notice must now be provided within 60 days after discovering the breach.

If more than 250 residents of Texas are subject to a Data Breach the Texas Attorney General must also be notified within 60 days. Such a notification must include:
– A detailed description of the nature and circumstances of the data breach;
– The number of the affected residents at that time;
– The measures taken regarding the breach and any measures the responsible person intends to take after the notification;
– Information on whether the law enforcement is engaged in investigating the breach.

The amendments take effect on January, 1 2020.

Category: General · USA
Tags: , ,

Consumers should know how much their data is worth

27. June 2019

US Senators Mark R. Warner (Democrats) and Josh Hawley (Republicans) want to know from Facebook, Google and Co. exactly how much the data of their users, measured in dollars and cents, is worth to them.

Last Sunday, the two senators announced their intention for the first time in a US talk show: Every three months, each user is to receive an overview of which data has been collected and stored and how the respective provider rates it. In addition, the aggregated value of all user data is to be reported annually to the US Securities and Exchange Commission. In this report, the companies are to disclose how they store, process and protect data and how and with which partner companies they generate sales with the data. All companies with more than 100 million users per month will be affected.

The value of user data has risen enormously in recent years; so far, companies have protected their internal calculations as company secrets. In addition, there is no recognized method for quantifying the value of user data; only when a company is sold or valued by means of an initial public offering (IPO) does it become obvious. In the case of the WhatsApp takeover it was  $ 55 per user, in the case of Skype it was $ 200.

But one can doubt the significance of these figures. A further indication can be the advertising revenues, which are disclosed by companies per quarter. At the end of 2018, Facebook earned around $6 per user worldwide, while Amazon earned $752 per user. These figures are likely to rise in the future.  “For years, social media companies have told consumers that their products are free to the user. But that’s not true – you are paying with your data instead of your wallet,” said Senator Warner. “But the overall lack of transparency and disclosure in this market have made it impossible for users to know what they’re giving up, who else their data is being shared with, or what it’s worth to the platform. […]” Experts believe it is important for consumers to know the value of their data, because only when you know the value of a good you are able to value it.

On Monday, Warner and Rawley plan to introduce the  Designing Accounting Safeguards to Help Broaden Oversight And Regulations on Data (DASHBOARD) Act to the parliament for its first reading. It remains to be seen whether their plans will meet with the approval of the other senators.

FTC takes action against companies claiming to participate in EU-U.S. Privacy Shield and other international privacy agreements

24. June 2019

The Federal Trade Commission (FTC) announced that it had taken action against several companies that pretended to be compliant with the EU-U.S. Privacy Shield and other international privacy agreements.

According to the FTC, SecureTest, Inc., a background screening company, has falsely claimed on its website to have participated in the EU-U.S. Privacy Shield and Swiss-U.S. Privacy Shield. These framework agreements allow companies to transfer consumer data from member states of the European Union and Switzerland to the United States in accordance with EU or Swiss law.

In September 2017, the company applied to the U.S. Department of Commerce for Privacy Shield certification. However, it did not take the necessary steps to be certified as compliant with the framework agreements.

Following the FTC’s complaint, the FTC and SecureTest, Inc. have proposed a settlement agreement. This proposal includes a prohibition for SecureTest to misrepresent its participation in any privacy or security program sponsored by any government or self-regulatory or standardization organization. The proposed agreement will be published in the Federal Register and subject to public comment for 30 days. Afterwards the FTC will make a determination regarding whether to make the proposed consent order final.

The FTC has also sent warning letters to 13 companies that falsely claimed to participate in the U.S.-EU Safe Harbor and the U.S.-Swiss Safe Harbor frameworks, which were replaced in 2016 by the EU-U.S. Privacy Shield and Swiss-U.S. Privacy Shield frameworks. The FTC asked companies to remove from their websites, privacy policies or other public documents any statements claiming to participate in a safe harbor agreement. If the companies fail to take action within 30 days, the FTC warned that it would take appropriate legal action.

The FTC also sent warning letters with the same request to two companies that falsely claimed in their privacy policies that they were participants in the Asia-Pacific Economic Cooperation (APEC) Cross-Border Privacy Rules (CBPR) system. The APEC CBPR system is an initiative to improve the protection of consumer data moving between APEC member countries through a voluntary but enforceable code of conduct implemented by participating companies. To become a certified participant, a designated third party, known as an APEC-approved Accountability Agent, must verify and confirm that the company meets the requirements of the CBPR program.

US Border Control – traveler photos and license plate images stolen in a data breach

11. June 2019

U.S. Customs and Border Control (CBP) announced on Monday, 10th June 2019, that photos of travelers, their cars and their license plate images were stolen during a data breach.

The network of CBP itself was not affected by the breach, but the photos were transferred to a subcontractor and stolen by a hack at the subcontractor. The name of the subcontractor was not mentioned. According to US media reports, the subcontractor is Perceptics which was hacked in May 2019.

CBP announced: “CBP learned that a subcontractor, in violation of CBP policies and without CBP’s authorization or knowledge, had transferred copies of license plate images and traveler images collected by CBP to the subcontractor’s company network.”  CBP has not terminated its cooperation with the hacked subcontractor despite breaches of data protection and security regulations.

CBP was informed about the breach on 31st May 2019. The breach affects nearly 100.000 people who travelled the USA. Besides the photos of travelers, their cars and license plates neither passport or other travel documents nor images of airline passengers were involved. The photos show travellers crossing either the US border to Canada or Mexico.

Until now, the hacked data could neither be found on the Internet nor in the Dark net.

Royal family uses GDPR to protect their privacy

22. May 2019

Last week Prince Harry and Meghan Markle could claim another victory in the royal family’s never ending struggle with paparazzi photographers, securing “a substantial sum” in damages from an agency that released intimate photos of the Oxfordshire home the Duke and Duchess of Sussex rented to the media. In a statement, Splash News apologized for and acknowledged that this situation would represent “an error of judgement”.

The paparazzi agency “Splash News” took photos and footage of the couple’s former Cotswolds home — including their living room, dining area, and bedroom — using a helicopter and promptly sold to different news outlets. The lawyers of Prince Harry argued that this situation caused a breach of his right to privacy according to Art. 7 and 8 ECHR as well as a breach of the General Data Protection Regulation (GDPR) and Data Protection Act 2018 (DPA).

Considering the strategy of the Duke’s lawyers, it looks like the royal family have found a potentially attractive alternative to claims of defamation of invasion of privacy. Since in contrast to such a claim, a claimant relying on data protection law neither needs to prove that a statement is at least defamatory and met the threshold for serious harm to reputation nor that the information is private.

However, the (new) European data protection legislation grants all data subjects, regardless of their position and/or fame, a right of respect for their privacy and family lives and protection of their personal data. In particular, the GDPR requires organisations, according to its Article 5, to handle personal data (such as names, pictures and stories relating to them) fairly and in a transparent manner while also using it for a legitimate purpose.

Moreover, when obtaining pictures and footage of an individual’s private or even the intimite sphere, the organization using such materials need a specific reason like some kind of contract, the individual’s consent or be able to argue that using this photos and footage was “in the public interest” or for a “legitimate interest”. As a contract and a consent can be excluded here, the only basis that might be considerd could be a public interest or a legitimate interest of the organization itself. Taking into account the means and the way how these photos and footage of the Duke and Dutchess were created, both of these interest cannot withstand the interest  in protecting the rights and freedom of individuals’ private and intimite sphere.

Referring to this case, it seems pretty likely that the European data protection regime changed the way in how celebrities and the courts enforce the heavy-contested threshold of whether the public is allowed to see and be informed about certain parts and aspects of famous people’s lives or not.

 

 

New Jersey changes data breach law to extend it to online account information

20. May 2019

On May 10, 2019, Phil Murphy, Governor of New Jersey, signed a bill amending the law regarding notification of data breaches in New Jersey. The purpose of the amendment is to extend the definition of personal data to include online account information.

The amendment requires companies subject to the law to notify New Jersey residents of security breaches concerning the user name, e-mail address or other account holder identifying information.

The amendment states that companies should notify their customers affected by violations of such information electronically or otherwise and instruct them to promptly change any password and security questions or answers or take other appropriate measures to protect their online account with the company. The same shall be done for all other online accounts for which the customer uses the same username or e-mail address and password or the same security question and answer.

In addition, the amended law prohibits the company from sending notifications to the e-mail account of a person affected by a security breach. Instead, notifications must be sent in another legally required manner or by a clear and unambiguous notification sent online when the customer’s account is connected to an IP address and the company knows that the customer regularly accesses their account from that online location.

The amendment will take effect on 1 September 2019.

Data of millions of US-citizens available in the internet

2. May 2019

Sensitive data of 80 million US households are unprotected available in the internet. The data are stored on an openly accessible database whose owner is unknown.

Affected are 65 % of all US households, in numbers, 80 million households. The database includes detailed information regarding the number of persons living in a household, their names, marital status, age, date of birth, residential address including GPS data for localization and household income.

The number of affected US-citizens cannot be named due to the fact, that in one household can live a different amount of people. Because of this it is possible that over 100 million people are affected.

On the basis of the accessible data an identification of individuals is easily possible because hackers or thefts of identity can find out the mailaddresses and connect this information with free accessible information from e.g. social media.

Regarding the owner of the database no information is known. It is presumed that it is a company from the health or insurance sector.

The owner need to be find, otherwise the leak cannot be closed.

Category: Cyber security · Data breach · USA
Pages: 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
1 2 3 13