Category: UK

EU-UK Trade Deal in light of Data Protection

4. January 2021

Almost fit to be called a Christmas miracle, the European Union (EU) and the United Kingdom (UK) came to an agreement on December 24th, 2020. The Trade Agreement, called in full length “EU-UK Trade and Cooperation Agreement“, is set out to define new rules from the date of the UK Exit from the EU, January 1st, 2021.

President of the European Commission, Ursula von der Leyen, claimed it was a deal worth fighting for, “because we now have a fair and balanced agreement with the UK, which will protect our European interests, ensure fair competition, and provide much needed predictability for our fishing communities. Finally, we can leave Brexit behind us and look to the future. Europe is now moving on.

In light of Data Protection however, the new Trade Deal has not given much certainty of what is to come next.

Both sides are aware that an adequacy decision by the EU Commission is very important with regard to data protection and cross-border data flows. Accordingly, the EU has agreed to allow a period of four months, extendable by a further two months, during which data can be transferred between EU Member States and the UK without additional safeguards. This period was granted to give the Commission enough time to make an adequacy decision. Accordingly, data transfers can continue as before until possibly mid-2021. However, this arrangement is only valid if the UK does not change its data protection laws in the meantime.

With regard to direct marketing, the situation has not changed either: for individuals, active consent must be given unless there was a prior contractual relationship and the advertising relates to similar products as the prior contract. Furthermore, the advertising must also be precisely recognisable as such, and the possibility of revoking consent must be given in every advertising mail.

However, much else has yet to be clarified. Questions such as the competence of the UK Data Protection Authority, the Information Commissioner’s Office (ICO), as well as the fate of its ongoing investigations, have not yet been answered. As of now, companies with their original EU Headquarters in the UK will have to designate a new Lead Supervisory Authority (Art. 56 GDPR) for their business in the EU.

The upcoming months will determine if questions with high relevance to businesses’ day to day practice will be able to be answered reassuringly.

The Controversy around the Council of the European Union’s Declaration on End-to-End Encryption

27. November 2020

In the course of November 2020, the Council of the European Union issued several draft versions of a joint declaration with the working title “Security through encryption and security despite encryption”. The drafts were initially intended only for internal purposes, but leaked and first published by the Austrian brodcasting network “Österreichischer Rundfunk” (“ORF”) in an article by journalist Erich Möchel. Since then, the matter has sparked widespread public interest and media attention.

The controversy around the declaration arose when the ORF commentator Möchel presented further information from unknown sources that “compentent authorities” shall be given “exceptional access” to the end-to-end encryption of communications. This would mean that communications service providers like WhatsApp, Signal etc. would be obliged to allow a backdoor and create a general key to encrypted communications which they would deposit with public authorities. From comparing the version of the declaration from 6 November 2020 with the previous version from 21 October 2020, he highlighted that in the previous version it states that additional practical powers shall be given to “law enforcement and judicial authorities”, whereas in the more recent version, the powers shall be given to “competent authorities in the area of security and criminal justice”. He adds that the new broader wording would include European intelligence agencies as well and allow them to undermine end-to-end encryption. Furthermore, he also indicated that plans to restrict end-to-end encyption in Western countries are not new, but originally proposed by the “Five Eyes” intelligence alliance of the United States, Canada, United Kingdom, Australia and New Zealand.

As a result of the ORF article, the supposed plans to restrict or ban end-to-end encryption have been widely criticised by Politicians, Journalists, and NGOs stating that any backdoors to end-to-end encryption would render any secure encryption impossible.

However, while it can be verified that the “Five Eyes” propose the creation of general keys to access end-to-end encrypted communications, similar plans for the EU cannot be clearly deduced from the EU Council’s declaration at hand. The declaration itself recognises end-to-end encryption as highly beneficial to protect governments, critical infrastructures, civil society, citizens and industry by ensuring privacy, confidentiality and data integrity of communications and personal data. Moreover, it mentions that EU data protection authorities have identified it as an important tool in light of the Schrems II decision of the CJEU. At the same time, the Council’s declaration illustrates that end-to-end encryption poses large challenges for criminal investigations when gathering evidencein cases of cyber crime, making it at times “practically impossible”. Lastly, the Council calls for an open, unbiased and active discussion with the tech industry, research and academia in order to achieve a better balance between “security through encryption and security despite encryption”.

Möchel’s sources for EU plans to ban end-to-end encryption through general keys remain unknown and unverifiable. Despite general concerns for overarching surveillance powers of governments, the public can only approach the controversy around the EU Council’s declaration with due objectivity and remain observant on whether or how the EU will regulate end-to-end encryption and find the right balance between the privacy rights of European citizens and the public security and criminal justice interests of governments.

ICO fines Marriott International

9. November 2020

The Information Commissioner’s Office (ICO) fines Marriott International Inc. (Marriott) £18.400.00  (€20.397.504).

The fine refers to a data breach which occurred in 2018. Back then the world’s largest hotel company based in the USA suffered a massive data breach affecting up to 383 million customers. For Marriott it is still not possible to state the exact number of people affected.

The ICO considers it proven that Marriott failed keeping customers’ personal data secure. In context of the breach confidential data like name, address and contact data as well as unencrypted passport and credit card data has been unauthorized accessed.

In a previous statement in 2019 the ICO announced, that it intends to fine Marriott with a fine of £99.200.396 (€109.969.591) this fine has now been reduced.

The reduction is based on the following reasons: the ICO considered the presentations from Marriott as well as the taken steps by Marriott as well as the consequences of the COVID-19 pandemic.

In October, the fine previously issued by the ICO against British Airways was also reduced, again partly because of the consequences of the COVID-19 pandemic.

Since the data breach occurred before the UK left the EU, the ICO investigated on behalf of all European Data Protection Authorities as lead Supervisory Authority and the fine has been approved by all other Authorities.

Experian to appeal ICO’s decision regarding handling of personal data

29. October 2020

On October 27th, 2020 the Information Commissioner’s Office (ICO) issued an enforcement notice against the credit reference agency Experian Limited, ordering it to make fundamental changes to how it handles personal data related to its direct marketing services in the United Kingdom.

An ICO investigation found that at the three largest credit reference agencies (CRAs) in the UK significant ‘invisible’ processing took place, likely affecting millions of adults in the UK. Experian, Equifax and TransUnion, were ‘trading, enriching and enhancing’ people’s personal data without their knowledge to provide direct marketing services. The data was used by commercial organisations, political parties for political campaigning, or charities for their fundraising campaigns. Some of the CRAs were also using profiling to generate new or previously unknown information about people.

While Equifax and TransUnion made adequate improvements to their marketing practices, the ICO found Experian’s efforts to be insufficient and the processing of personal data to remain non-compliant with the data protection law. As a result, Experian has been given an enforcement notice compelling it to make changes within nine months or it will face financial penalties under the GDPR.

Experian is going to appeal the decision by the ICO regarding the notice over data protection failures. In a statement, the Chief Executive Officer Brian Cassin said:

We disagree with the ICO’s decision today and we intend to appeal. At heart this is about the interpretation of GDPR and we believe the ICO’s view goes beyond the legal requirements. This interpretation also risks damaging the services that help consumers, thousands of small businesses and charities, particularly as they try to recover from the COVID-19 crisis.

We share the ICO’s goals on the need to provide transparency, maintain privacy and ensure consumers are in control of their data. The Experian Consumer Information Portal makes it very easy for consumers to fully understand the ways we work with data and to opt out of having their data processed if they wish.

 

 

British Airways: Fine reduced

20. October 2020

In 2018 British Airways (BA) had to announce that they suffered a massive data breach. The data breach referred to the online booking tool. Login data and credit card data as well as travel data and address data were accessed illegaly. Affected were more than 400.000 customers.

Back in 2019 the UK’s Information Commissioners Office (ICO) evaluated the breach and stated that weak security precautions enabled the hakers to access the data. Thus, the ICO fined BA as a consequence of the breach a record fine of £183.000.000 (€ 205.000.000).

BA appealed against the fine and now – in 2020 – the ICO announced a reduced fine.

On October 16th, 2020, the ICO announced the final sanction for BA. The initial fine of £183.000.000 (€ 205.000.000) has been reduced to a total fine of £20.000.000 (€ 22.000.000). Reason for the reduction is inter alia the current COVID-19 situation and it’s consequences for the Aviation industry.

The notification from the authority states in this context:

As part of the regulatory process the ICO considered both representations from BA and the economic impact of COVID-19 on their business before setting a final penalty.

ICO passed Children’s Code

8. September 2020

The UK Information Commissioner’s Office (ICO) passed the Age Appropriate Design Code, also called Children’s Code, which applies especially to social media and online services likely to be used by minors under the age of 18 in the UK.

The Children’s Code contains 15 standards for designers of online services and products. The aim is to ensure a minimum level of data protection. Therefore, the Code requires that apps, games, websites etc. are built up in a way which provides already a baseline of data protection. The following default settings should be mentioned here:

  • Glocalization disabled by default,
  • Profiling disabled by default,
  • Newly created profiles private and not public by default.

Base for the Children’s Code is the UK Data Protection Act of 2018 – local implementation law of the GDPR. Thus, the standards also include the GDPR Data Protection principles Transparency and Data Minimisation.

The requirements also and especially apply to the major social media and online services used by minors in the UK, e.g. TikTok, Instagram and Facebook.

The Code is designed to be risk-based. This means that not all organizations have to fulfil the same obligations. The more companies use, analyse and profile data from minors, the more they must undertake to comply with the Code.

Contact Tracing Apps: U.K. Update and EDPB Interoperability Statement

23. June 2020

In another update about contact tracing apps, we are going to talk about the new path of contact tracing in the United Kingdom (UK), as well as the European Data Protection Board’s (EDPB) statement in regards to the cross-border interoperability of the contact tracing apps being deployed in the European Union.

UK Contact Tracing App Update

Since starting the field tests on the NHS COVID-19 App on the Isle of Wight, the UK government has decided to change their approach towards the contact tracing model. It has been decided to abandon the centralized app model in favour of the decentralized Google/Apple alternative.

The change was brought on by technical issues and privacy challenges which surfaced during the trial period on the Isle of Wight, and in the end were direct consequences of the centralized model and important enough to motivate the change of approach.

The technical problems included issues with the background Bluetooth access, as well as operation problems in the light of cross-border interoperability. Further, the data protection risks of mission creep and a lack of transparency only urged on the of the app.

The new model is widely used throughout the European Union, and provides more data protection as well as better technical support. The only deficit in comparison with the centralized model is the lesser access to data by epidemiologists, which seems to be a trade off that the UK government is willing to take for the increase in data protection and technical compatibility.

EDPB statement on cross-border interoperability

On June 17th, 2020, the EDPB has released a statement with regards to the cross-border interoperability of contact tracing apps. The statement builds on the EDPB Guideline from 04/2020 with regards to data protection aspects of contact tracing apps, emphasising the importance of the issues presented.

The statement stems from an agreement between EU-Member states and the European Commission formed in May 2020 with regards to the basic guidelines for cross-border interoperability of contact tracing apps, as well as the newly settled technical specs for the achievement of such an interoperability.

The EDPB states key aspects that have to be kept in mind during the entirety of the project, namely transparency, legal basis, controllership, data subject’s rights, as well as data retention and minimisation rules.

Further, the statement emphasises that the sharing of data about individuals which have been diagnosed or tested positively should only be triggered by a voluntary action of the users themselves. In the end, the goal of interoperability should not be used as an argument to extend the collection of personal data further than necessary.

Overall, this type of sharing of personal data can pose an increased data protection risk to the personal data of the users, which is why it needs to be made sure that the principles set down by the GDPR are being upheld, and made sure that there is no less intrusive method to be used in the matter.

EDPB shares concerns over UK-US data deal in light of future UK adequacy decision

18. June 2020

On June 17th, 2020, the European Data Protection Board (EDPB) has written an open letter to the Members of the European Parliament over its concerns regarding the Agreement between the United Kingdom (UK) and the USA on Access to Electronic Data for the Purpose of Countering Serious Crime in relation to a future UK adequacy decision after the country’s exit out of the European Union.

In its letter, the EDPB states that it is concerned with the applicability of the safeguards in the Brexit withdrawal agreement with the EU once the UK leaves the Union at the beginning of 2021. The Agreement between the UK and the US allows for easy data access in the case of the prosecution of serious crimes, and facilitates an access request to be made to UK authorities and businesses under the US Cloud Act, for which it is unsure if the safeguards agreed upon between the EU and the UK apply.

The EDPB also stresses that, in the light of a potential data sharing agreement between the EU and the US, it is mandatory that the European safeguards in such an agreement “must prevail over US domestic laws” in order to be “fully compatible with European laws”.

Furthermore, the letter also states that “it is also essential that the safeguards include a mandatory prior judicial authorisation as an essential guarantee for access to metadata and content data”. In its preliminary assessment, the EDPB could not distinguish such a provision in the UK-US Agreement.

While right now the EDPB can only make a preliminary assessment of the situation based on the current elements at its disposal, it states clearly that the Agreement between the UK and the US will have to be considered in any relevant adequacy decision in the future. This is especially important as there is a “requirement to ensure continuity of protection in cases of onwards transfers from the UK to another third country”.

In any case, the EDPB intends to release its own opinion on the matter if the European Commission should release a draft of the adequacy decision for the UK.

easyJet Data Breach: 9 million customers affected

22. May 2020

The British airline ‘easyJet’ has been hacked. The hackers have been able to access personal data of approximately 9 million customers.

easyJet published a statement on the hacker attack and announced that e-mail addresses and travel details were among the concerned personal data of customers. Which personal data in detail belong to ‘travel data’ was not disclosed. In some cases, the hackers could also access credit card data. easyJet stated that there is no proof, that the accessed personal data was abused. easyjet now warns about fake mails in his name as well as in the name of ‘easyJet Holidays’.

The hack was noticed by easyJet in January, but was only made public this week. With becoming aware of the attack, easyJet took several measures and has blocked the unauthorized access in the meantime. easyJet is also in contact with the British Data Protection Authority ‘ICO’ and the National Security Center.

At this time, easyJet has not yet been able to evaluate how the attack could have occurred, but easyJet explained, that the hacker attack was no ‘general’ hacker attack, since the attack was very sophisticated compared to other hacker attacks. It is suspected that the attack originated from a group that has already hacked other airlines, such as British Airways in 2018.

easyJet announced that they will get in contact with concerned data subjects until May 26th to inform those about the breach and to explain further measures which should be taken in order to decrease the risk. easyJet customers who will not receive a statement until then are not concerned by the breach.

In connection with hacker attacks like these the risk for phishing attacks is the highest. In phishing attacks, criminals use fake e-mails, for example on behalf of well-known companies or authorities, to try to persuade users to pass on personal data or to click on prepared e-mail attachments containing malware.

EDPS publishes opinion on future EU-UK partnership

3. March 2020

On 24 February 2020, the European Data Protection Supervisor (EDPS) published an opinion on the opening of negotiations for the future partnership between the EU and the UK with regards to personal data protection.

In his opinion, the EDPS points out the importance of commitments to fully respect fundamental rights in the future envisaged comprehensive partnership. Especially with regards to the protection of personal data, the partnership shall uphold the high protection level of the EU’s personal data rules.

With respect to the transfer of personal data, the EDPS further expresses support for the EU Commission’s recommendation to work towards the adoption of adequacy decisions for the UK if the relevant conditions are met. However, the Commission must ensure that the UK is not lowering its data protection standard below the EU standard after the Brexit transition period. Lastly, the EDPS recommends the EU Institutions to also prepare for a potential scenario in which no adequacy decisions exist by the end of the transition period on 31 December 2020.

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