Category: USA

Tech coalitions write open letter over US bill banning encryption

21. April 2016

A Tech group just wrote an open letter to US Senators Richard Burr and Dianne Feinstein, concerning their bill requiring all encryption to be breakable on command.

The mentioned letter starts by saying “We write to express our deep concerns about well-intentioned but ultimately unworkable policies around encryption that would weaken the very defenses we need to protect us from people who want to cause economic and physical harm.” and goes on by pointing out “unintended consequences”.

Reform Government Surveillance, the Computer and Communications Industry Association, the Internet Infrastructure Coalition, and the Entertainment Software Association have signed the letter. Those four represent most of the major internet and tech companies such as Microsoft, Google, Amazon, eBay, Facebook, Netflix and Verisign.

At the same time an US survey from ACT concludes that 93 percent of peole being asked answered it is important that their data is secured and that 92 percent of people being asked support strong encryption on their devices.

 

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Criticism at Google’s ‘right to be forgotten’ position

20. April 2016

The New York Times reports that crisicism is raised among European data protection regulators and politicians on Google’s secretive process for deciding whose “right to be forgotten” cases end with a stricken link and whose do not. The lack of the company’s transparency is not the only concern regarding how a private organization has autonomy in these cases instead of the government. Furthermore, Google has ruled on double the amount of national authorities’ privacy judgments. “If Europe really wanted to regain control over personal data, giving Google this type of power is an odd outcome,” concluded Oxford University’s Luciano Floridi.

The criticism is also raised as a result of a general growing discontent from both European regulators and politicians due to the fact that national data protection agencies sometimes lack the financial, technical and human resources to handle the substantial increase of “right to be forgotten” requests, according to regulatory officials and legal experts.

Category: EU · USA
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Article 29 WP releases its opinion on the EU-U.S. Privacy Shield

14. April 2016

The Article 29 WP, represented by the DPAs from the EU Member States, issued yesterday its opinion on the proposed draft of the EU-U.S. Privacy Shield.

Background

Under the Safe Harbor framework, personal data transfers from the EU to the U.S. have been carried out since the year 2000. In October 6th, 2015, the ECJ declared this framework invalid, as it considered that it did not ensure enough safeguards regarding the protection of personal data from EU citizens. In February 2016, the EU Commission and several American Authorities drafted the new framework that shall replace the Safe Harbor Agreement. The draft has been now analyzed by the EU DPAs, who remark the necessity to clear and define some concepts.

Critical aspects of the EU-U.S. Privacy Shield identified by the Article 29 WP

The Article 29 WP does not believe that, in general terms, the current draft of the Privacy Shield ensures a level of data protection equivalent to that in the EU. The most relevant aspects of the published document could be summarized as follows:

  • Data retention periods are not defined in any of the principles of the framework. This means that companies could keep personal data even if they do not renew their Privacy Shield membership. This contravenes the principle of data retention limitation according to EU data protection legislation.
  • The scope and definition of the purpose limitation concept is described under the notice, the choice and the data integrity and purpose limitation principles. However, in each of these principles is the purpose limitation principle differently defined, what leads to an inconsistent definition of this concept.
  • Also the concept of onward transfers has been critically analyzed by the Article 29 WP. Under this principle, Privacy Shield members may legitimately carry out data transfers to third parties. This involves the risk that the recipient of the data does not ensure the same level of data protection as stipulated according to the EU data protection legislation.
  • The redress mechanism available for EU data subjects may be too complex for the data subjects themselves. The Article WP29 recommends that the local DPAs represent the data subjects or act as intermediaries so that they can exercise their rights in Europe.
  • Finally, the Privacy Shield includes certain guarantees regarding the surveillance activities by U.S. authorities. However, the massive collection of personal data from EU citizens is not fully excluded. Regarding this, the institution of the Ombudsman has been created. According to the Article 29 WP, its functions and legitimation are not sufficiently defined.

The Working Party has requested the EU Commission to clarify these aspects and adopt the corresponding solutions, so that the Privacy Shield ensures an equivalent level of data protection to that in the EU. Particularly, it has recommended to introduce a glossary of terms in the “Privacy Shield FAQ” and a review of the Privacy Shield draft after the GDPR becomes effective, in order to ensure that the Privacy Shield reflects the level of protection reached by the GDPR.

What next?

Since the opinion of the Article 29 WP is not binding, the EU Commission could proceed further with the approval of the EU-U.S. Privacy Shield. However, it will consult a Committee of representatives of the EU Member States before issuing its final decision. Until a final decision is reached, the mechanisms to carry out international data transfers are limited to Binding Corporate Rules and Standard Contractual Clauses.

Opinion of the Article 29WP on the EU-U.S. Privacy Shield “leaked” by the German DPAs

12. April 2016

After the details of the draft of the new adequacy decision to carry out international data transfers between the EU and the U.S. have been released (“EU-U.S. Privacy Shield”), the Article 29 WP is expected to express its opinion on the proposed text within this week.

On the 6th and 7th April the German DPAs meet to discuss current privacy topics, among others about the EU-U.S. Privacy Shield. A link to the resolution related to this topic was uploaded in the webpages of each federal DPA. The link to the resolution was deleted afterwards. However, a permanent link to the resolution (in German) can be found under https://www.delegedata.de/wp-content/uploads/2016/04/Beschluss_Mandat_Privacy_Shield.pdf.

The resolution of the German DPAs seems to refer to the current draft of the Article 29WP on the EU-U.S. Privacy Shield:

“Therefore, the WP29 is not yet in a position to confirm that the current draft adequacy decision does, indeed, ensure a level of protection that is essentially equivalent to that in the EU.”

This paragraph suggests that the European DPAs may not release a positive opinion on the EU-U.S. Privacy Shield.

Although the opinion of the Article 29 WP is not binding for the EU Commission, the Article 29 WP may initiate legal actions through the local DPAs against the adequacy decision if it is approved, as stated in paragraph 4 of the above mentioned resolution.

Settlement in lawsuit against Sony Pictures Entertainment

11. April 2016

A multimillion-dollar settlement in a class-action lawsuit against Sony Pictures Entertainment filed by former employees, whose personal data was stolen when a data bleach took place, was appoved by an US District Judge last week.

About 437,000 people were affected by the data breach from the time of the 2014 hack through 2017.  In terms of the settlement Sony agreed to provide theft protection and an optional service covering up to $1 million in losses and furthermore, create a fund to cover any additional losses. As the deadline for workers to sign up for credit protection and reimbursement has not yet passed,  the exact amount of money for setteling is not yet available. However, up until today Sony had to pay $7 million in order to notify the people beingt affected by the breach and to establish a fund to compensate them. Nevertheless, this amount does not take millions of dollars into account that Sony had to pay for credit monitoring services and for attorney fees. Until now, 18,000 people have signed up for the mentioned optional service retailing for $350.

During the data breach sensitive personal data concerning current and former Sony Pictures Entertainment employees was stolen and posted online. The data breach was due to hackers, who broke into the company computers and released thousands of emails, documents and sensitive personal information.

 

WhatsApp just added end-to-end encryption

6. April 2016

WhatsApp is an online messaging service, that has grown into one of the most used applications, owned by Facebook. Messages, phone calls and photos are exchanged via WhatsApp by more than a billion people. Therefore, only Facebook itself operates a larger communications network.

This week was revealed that the company has added end-to-end encryption to every form of communication developed by a team of 15 of out of 50 overall employees for any person using the latest version of WhatsApp, so that all messages, phone calls and photos are encrypted. This regards any smartphone, from iPhones to Android phones to Windows phones. By encrypting end-to-end not even WhatsApp’s employees have access to the data sent through this communication network. This means that WhatsApp will not be able to comply with a court order demanding the disclosure of the content of messages, phone calls and photos sent by using its service.

This way of encryption has generally led to a public discussion between technology companies and governments. For example, in the UK, politicians have proposed banning this encryption so that companies should be forced to install “backdoors” in order to be able to disclose the content only to law enforcement.

 

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EU-U.S. Privacy Shield expected to be effective in June 2016

16. March 2016

On the 14th March, the Digital Commissioner Günther Oettinger spoke out on the EU-U.S. Privacy Shield at the CeBIT fair (Center for Office Automation, Information Technology and Telecommunication), which will take place in Hannover (Germany) from the 14th until the 18th March.

Oettinger stated that the EU DPAs will evaluate the EU-U.S. Privacy Shield in the upcoming weeks, so that the new Framework can be effective in June 2016. He also remarked that without a legal regulation for international transfers of personal data, “the trust in cloud services will be low”.

The EU DPAs are expected to meet on the 12th-13th April in order to issue their opinion on the EU-U.S. Privacy Shield. However, this opinion will not be binding.

General overview of the EU-U.S. Privacy Shield

11. March 2016

After the details of the EU-U.S. Privacy Shield were released on February 29th, several institutions will examine its legal implications and validity in order to determine if the new Framework complies with the European Standards on Data Protection. One of these institutions is the Article 29 WP, which will reveal its opinion on the EU-U.S. Privacy Shield by the end of April.

Eduardo Ustaran, an expert in international Privacy and Data Protection, has analyzed the positive impact that the EU-U.S. Privacy Shield may have for the future development of global privacy:

  • This Framework may widespread the European Data Protection culture at an international level because multinationals will globally adopt this model, in order to comply with the European Standards.
  • Additionally, the U.S. government is adapting its legislation to the Data Protection requirements established by the EU Legislation in this field. For example, the U.S. Judicial Redress Act was approved on February 2016 in line with the new conflict resolution system proposed in the Privacy Shield. This way, EU Citizens will have the possibility to raise complaints to U.S. Authorities when their rights to Privacy and Data Protection have been violated by an organization.
  • Also the judiciary will play an important role as ultimate institution that mediates between the citizens and the state.
  • As mentioned above, the conflict resolution system proposed in the Privacy Shield includes the participation of several institutions at different levels, which provides the individuals many possibilities to exercise their rights as data subjects. Therefore, individuals will be able, for example, to raise a complaint towards the organization or to raise a complaint at the local DPA.
  • The Framework may foster the communication and collaboration between American and European Institutions. For instance, it is foreseen that an annual revision of the Framework takes place.

Fact Sheet of the European Commission about the EU-U.S. Privacy Shield

1. March 2016

On the 29th February 2016, the European Commission released a fact sheet about the Frequently Asked Questions related to the EU-U.S. Privacy Shield. The EU-U.S Privacy Shield aims at regulating international data transfers between the EU (including EEA countries Norway, Lichtenstein and Iceland) and the U.S. after the Safe Harbor Decision was declared invalid by the ECJ on October 2015.

The EU-U.S Privacy Shield is a new adequacy decision, under which the U.S. companies that comply with the described data protection principles and abide the obligations described in the framework, will be considered as ensuring an adequate level of data protection.

In contrast to the former Safe Harbor Decision, the EU-U.S. Privacy Shield imposes stronger obligations on companies related to monitoring and enforcement and prevents generalized access to EU personal data from U.S. public Authorities.

Under the Privacy Shield, U.S. companies will have to self-certify that they meet the requirements described in the Framework. The U.S. Department of Commerce will actively verify that the certifying company actually meets the requirements to certify, for example by reviewing the company´s privacy policy.

A key aspect of the Privacy Shield is the possibility for EU data subject to obtain redress in the US in case that their personal data is misused by commercial companies. The possibility to redress involves the following alternatives for the data subject:

  • to lodge a complaint with the company itself, or
  • to complaint towards their local DPA, or
  • to use the Alternative Dispute Resolution (ADR) mechanisms, or
  • through arbitration by having recourse to the Privacy Shield Panel, if the case is not resolved by any of the abovementioned alternatives.

The possibility to redress with regard to national security will be ensured by the institution of the Ombudsman.

All these aspects of the new EU-U.S. Privacy Shield have been reflected in the Judicial Redress Act, signed on February, 24th. This Act gives EU citizens the possibility to address privacy issues to U.S. Courts in relation to personal data transfers for law enforcement purposes. This Act aims at providing EU citizens with the same rights as U.S. citizens.

Also, the so called EU-U.S. “Umbrella-Agreement” covers relevant aspects of data protection regarding EU-U.S. law enforcement cooperation for the purposes of crime and terrorism prevention. This agreement is not a legal basis for data transfers itself, but it will provide safeguards for data transfers made under other existing agreements.

The EU – U.S. Privacy Shield: next steps

19. February 2016

The EU Commission and the U.S. Government agreed recently on the EU- U.S. privacy Shield as a possible mechanism to carry out international data transfers on a valid basis and providing an adequate level of data protection. The agreement shall be adopted by a decision.

The process until both, the proposed agreement and the corresponding decision, are adopted is complex and requires the opinion of several EU institutions

  • The EU Commission should make the proposal for the decision of adopting the agreement. The decision is expected by thy end of February.
  • The WP29, made up of the DPAs from the EU Member States and the European Data Protection Supervisor (EDPS) will have to give its opinion on the proposed agreement. This opinion will not be binding for the EU Commission.
  • Also the Article 31 Committee, established pursuant to art. 31 of the EU Data Protection Directive, will we asked to give an opinion.
  • Finally, the College of the EU Commission will decide about the adoption of the decision.

Additionally, also the ECJ will be requested to examine the proposal in order to determine if it provides an adequate level of protection of the fundamental rights of EU citizens. Also, the DPAs from the Member States may refer to the ECJ for clarification about the agreement.

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