Category: USA
8. February 2017
Background
The Court of Justice of the European Union has invalidated the U.S.-EU Safe Harbor framework (October 2015), which was replaced by the Privacy Shield on 12 July 2016.
“Enhancing Public Safety in the Interior of the United States” (Executive Order) was issued by the US President Donald Trump on 25th January 2017. This act’s main aim was the immigration laws enforcement in the U.S.
In its Section 14 we may read: “Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.”
The so-called “Umbrella Agreement” (signed on 2nd December 2016) between the U.S. and EU, ensured the personal data transfers for law enforcement purposes. This agreement applies also to the pre-existing agreements between the U.S. and EU along with the various Mutual Legal Assistance Treaties (“MLATs”), Passenger Name Records Agreement, and Safe Harbor framework.
Part 19 of the Umbrella Agreement enables every European citizen to seek judicial review in case of an unlawfully disclosure individual’s personal data or denial of the right to access or amend the personal data in agency’s possession.
Before the Umbrella Agreement, there was no such legal possibility, although the Privacy Act of 1974 extended those rights to permanent residents of the U.S. and its citizens. EU would only agree with the Umbrella Agreement once U.S. extends protections to the European citizens under the Privacy Act, so that the U.S. is expected to comply with the Umbrellas Agreement Art. 19.
Moreover, in February 2016 the Judicial Redress Act was passed as the U.S. and EU got along with each other, which extended protections of the Privacy Act (disclosure, access, amendment) to citizens of “covered countries’’ (as named in the Judicial Redress Act).
On 17th of January 2017 Loretta Lynch (new former U.S. Attorney General) designated “covered jurisdictions’’ (as named in the Judicial Redress act) to include in the Judicial Redress Act all the EU Members apart from Denmark and the UK, which has become effective on 1st February.
The Attorneys General designation however, is not subject to administrative or judicial review (within the Judicial Redress Act).
Conclusion
Donald Trump’s Executive Order is believed not to affect the Judicial Redress Act (which is applicable law in the context of data transfers for law enforcement purposes) in terms of the Privacy Act rights to the European citizens extension, so as to say that the Executive Order should not impact Privacy Shield Framework’s legal viability.
Unresolved is still an aspect of “covered countries’’ designation, as the Judicial Redress Act includes a “covered countries’’ designations removal process, which is still subject of a dispute.
18. January 2017
The United States breach notification law is not an uniformed one. There exist separate laws in each 47 states plus District Columbia.
Nowadays, this conglomerate makes law enforcement in the U.S. somewhat complicated, as it has led to tokenization among the White House, consumer groups, retailers and others („Tokenization – when applied to data security, is the process of substituting a sensitive data element with a non-sensitive equivalent, referred to as a token, that has no extrinsic or exploitable meaning or value“ – source: Wikipedia).
This way card data is being protected while transmitted from one place to another – by storage in point-to-point encryption, retailers´ computer anti-hacking systems and tokanization.
Due to the fact that any business affected by a data breach suffers reputational and financial losses, the idea of obliging every business to publicly report data breaches has raised.
For instance, to diminish the stealing of card data by thieves, retailers have called on banks to replace the U.S. antiquated magnetic stripe credit card system with chip-and-PIN cards commonly used in other parts of the world. It is believed that such a chip is difficult to counterfeit.
Even though so far there have already been taken some steps in favour of solving the data breach problem, there was still no radical step on the legal level taken.
Having it lately noticed, Mallory Duncan – general counsel of the National Retail Federation – states: „Our nation badly needs a federal data breach notification law requiring everyone to disclose their own breaches“ (…) „But a national law needs to be uniform and comprehensive, covering not just retail but telecom companies, banks, credit card companies, card processors and all other entities that handle sensitive consumer data“.
Therefore there is a thorough need for the U.S. of enacting a federal law, which would notify consumers about data breach and help to keep data from being used improperly in order to keep it unbreached. The solution is now being worked on.
8. December 2016
What happened?
As Bloomberg Law Privacy & Data Security just reported, officials of the European Union stated that they will watch carefully for any signs of U.S. President-elect Donald Trump turning around the EU-U.S. Privacy Shield agreement.
Vera Jourova, EU Justice Commissioner, can be quoted that the European Union would “closely monitor the respect of protection standards and the correct implementation” of the EU-U.S. Privacy Shield “under the new U.S. leadership”.
Why are the concerns raised?
The questions are asked is due to the fact that under the EU-U.S. Privacy Shield data transfers are based on respect for European privacy rights in case European personal data is transferred to the USA for commercial purposes. However, as Trump made comments that can be interpreted so that such privacy rights might be disregarded, during the U.S. presidential campaig, concerns are raised.
Adina-Ioana Valean, Member of the European Parliament, gave a speech at the European Data Protection and Privacy Conference in Brussels and explained that “a lot of things were said” during the U.S. presidential campaign. Therefore, she concluded that “we should sit and wait for the next move and then we can judge”.
6. December 2016
BuzzFeed News reported, that after electing Donald Trump the App called Signal has been faced with a 400 percent rise in daily downloads.
This App is a secure communications tool and therefore well-known in terms of technology, journalism and politics. When using this App people are able to text and speak with one another by encrypting end-to-end, so that only the sender and the intended recipient can read or hear the respective message.
The founder of the App called Signal, Moxie Marlinspike, released a statement saying that “There has never been a single event that has resulted in this kind of sustained, day-over-day increase.” Marlinspike explained that “Trump is about to be put in control of the most pervasive, largest, and least accountable surveillance infrastructure in the world (…) People are maybe a bit uncomfortable with him.”
29. November 2016
This week, Reuters reported that the European Parliament lawmakers supported a data-sharing agreement with the USA, which aims at safeguarding the data exchange between national authorities, in order to improve security and simplify investigations in terms of terrorism.
Basically, the agreement supports personal data such as names, addresses and criminal records in case an exchange by law enforcement agencies in both Europe and the USA takes place.
Axel Voss explained that “EU citizens will have the same rights as U.S. citizens when they seek judicial redress before U.S. courts. This is a major step for the enforcement of fundamental rights for EU citizens.”
What triggered the implementation of such an agreement?
After the mass spying in 2013 by the USA, which caused privacy concerns over the question “What do enforcement agencies with the gained data after colleting it?” the need to find a regulation concerning the gathering, sharing and storing of personal data became more important than ever.
What is the following process?
It is expected that the entire Parliament approves this agreement on the 1st of Dezember 2016. From then on, the respective ministers for justice and home affairs of the 28 European Member States have to sign off the agreement in the coming weeks.
15. November 2016
Motherboard online just published numbers that were disclosed by the FBI concerning whether the FBI is able to unlock most devices they need to get into.
According to General Counsel Jim Baker the FBI is able to unlock or/and access data stored on both smartphones and computers. This statement is supported by the numbers that were released.
In 2016 the FBI
- has encountered passwords or passcodes in 2,095 out of 6,814 – 31%,
- with regard to the 2,095 devices that were locked, the investigators were able to get access in 1,210 cases and
- couldn’t unlock around 880 devices.
- In conclusion, in the vast majority of cases, namely 87%, the FBI was able to access the data that was needed.
Concidering that the FBI and Apple fought in court earlier this year regarding the FBI’s request to help breaking into the iPhone of an alleged terrorist who killed 14 people in a shooting and that this case led to a battle on encryption in which the FBI argued that encryption, which cannot be broken, supports criminal investigations rather than making them harder due to the fact that access to the data can sometimes lead to important evidence on a suspect or on a victim’s phone or computer.
However, the mentioned numbers, that have so far never been published, “demonstrate that even with encryption turned on by default on all newer iPhones and some Android phones, it is posing a problem in a relatively small number of cases – while that same encryption is presumably preventing a wide range of crimes”, according to Kevin Bankston, the director of the New America.
8. November 2016
As the IAPP just published online, 10 of the 16 German Data Protection Authorities, have begun to assess firms’ transfer of personal data to cloud services based outside of the EU.
According to a joint statement of the respective Data Protection Authorities this is due to the fact that cross-border personal data transfers are growing massively, because of globalization and the rise of software-as-a-service.
Therefore, a mass audit is conducted, which takes about 500 randomly selected companies of various sizes into account. This audit is based on questionnaires asking about their transfers of employee and customer personal data to third countries, in particular to the U.S. while using services such as:
- office apps,
- cloud storage,
- email and other communications platforms,
- customer service ticketing,
- support systems and
- risk management and compliance systems.
In case a company transfers personal data to third countries, it has to show the legal grounds they are using, for example Standard Contractual Clauses or the EU-U.S. Privacy Shield.
2. November 2016
The Article 29 Working Party published a statement on the EU-U.S. Umbrella agreement at the end of October.
On one side, the statement shows signs of support for the EU-U.S. Umbrella Agreement. However on the other side, it delivers recommendations in order to make sure that the agreement is compliant with European data protection law.
In general, the Article 29 Working Party supports the creaction of a general data protection framework in order for international data transfers to be compliant with national, European and international data protection laws. Therefore, the Article 29 Working Party elaborates that the respective agreement “considerably strengthens the safeguards in existing law enforcement bilateral treaties with the U.S., some of which were concluded before the development of the EU data protection framework”.
However, it is also mentioned that clarification is needed in terms of definitions, for example how to define personal data and data processing, due to the fact that European and U.S law have different opinions on what is meant by these terms.
31. October 2016
The IAPP reported, that the Article 29 Working Party issued a warning concerning possible violations of European data protection regulations in form of a letter to both Yahoo and Whatsapp.
Both companies have been topic of public debate due to the way they handle the personal data of users. The concerns of the Article 29 Working Party regarding WhatsApp are that the company shares data with Facebook. Whereas, the objections towards Yahoo are raised due to both data breaches in 2014 and due to the allegation that the company scans incoming user emails for U.S. law enforcement agencies.
Therefore, the Article 29 Working Party requests that both companies provide more information on the problems. It can not be ruled out that investigations are launched and fines are imposed.
28. October 2016
As the website of the European Court of Justice just released, is the EU-U.S. Privacy Shield being challenged by Digital Rights Ireland, an Irish privacy advocacy group.
The facts of this case (Digital Rights Ireland v Commission; Case T-670/16) are as follows:
- Digital Rights Ireland has filed an action for annulment against the European Commission’s adequacy decision on the EU-U.S. Privacy Shield.
- There has been no comment from Digital Rights Ireland yet.
- No documents have been published with regard to the case so far.
- However, as HuntonPrivacyBlog reported “(…) media sources quote a spokesperson for the European Commission acknowledging the case and stressing the European Commission’s conviction that the Privacy Shield meets all legal requirements.”
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