Category: EU

Swiss Data Protection Commissioner: “Swiss-U.S. Privacy Shield not providing adequate level of Data Protection”

28. September 2020

Following the recent ruling by the Court of Justice of the European Union (“CJEU”) the Swiss Data Protection Commissioner (“EDÖB”) published a statement concerning the level of Data Protection of Data Transfers under the Swiss-U.S. Privacy Shield. The “Schrems II” decision by the CJEU is not legally binding in the Switzerland because Switzerland is neither a EU nor a EEA country. But as the EDÖB and the Joint European Data Protection Authorities work closely together, the decision has first implications for Swiss data exporters.

In accordance with Swiss Data Protection law (Art. 7 VDSG), the Swiss Data Protection Commissioner maintains a publicly accessible list of countries assessing the level of Data Protection guaranteed by these countries. This list shall serve Swiss data exporters as a guidance for their data exporting activities and acts as a rebuttable presumption. EU and EEA countries have continuously been listed in the first column of the list because they are regarded to provide an adequate level of Data Protection. The U.S. has been listed in the second column as a country providing “adequate protection under certain conditions”, which meant a certification of U.S. data importers under the Swiss-U.S. Privacy Shield.

Subsequent to the CJEU ruling, the EDÖB decided to list the U.S. in the third column as a country providing “inadequate protection”, thereby also acting on his past annual reviews of the Swiss-U.S. Privacy Shield. In his reviews, the EDÖB already criticised that data subjects in Switzerland lack access to the courts in the U.S. on account of Data Protection violations and that the Ombudsman-mechanism is ineffective in this regard.

Lastly, the EDÖB pointed out that the Swiss-U.S. Privacy Shield remains in effect since there has not been a decision by Swiss courts comparable to the CJEU decision and that his assessment has the status of a recommendation. However, the EDÖB advises Swiss data exporters to always make a risk assessment when transferring Personal Data to countries with “inadequate protection” and possibly to apply technical measures (e.g. BYOK encryption) in order to protect the data from access by foreign intelligence services.

EU looking to increase Enforcement Powers over Tech Giants

24. September 2020

In an interview with The Financial Times on Sunday, EU-Commissioner Thierry Breton stated that the European Union is considering plans to increase its enforcement powers regarding tech giants.

This empowerment is supposed to include punitive measures such as forcing tech firms to break off and sell their EU operations if the dominance on the market becomes too large. It is further considered to enable the EU to be able to boot tech companies from the EU single market entirely. Breton stated these measures would of course only be used in extreme circumstances, but did not elaborate on what would qualify as extreme.

“There is a feeling from end-users of these platforms that they are too big to care,” Thierry Breton told The Financial Times. In the interview, he compared tech giants’ market power to the big banks before the financial crisis. “We need better supervision for these big platforms, as we had again in the banking system,” he stated.

In addition, the European Union is considering a rating system, in which companies would be given scores in different categories such as tax compliance, taking action against illegal content, etc. However, Breton said that it is not the intend to make companies liable for their users’ content.

Breton further said that the first drafts of the new law will be ready by the end of the year.

Once the final draft is in place, it will require approval both by the European Parliament as well as the European Council, before it can be enacted.

Privacy Activist Schrems unleashes 101 Complaints

21. September 2020

Lawyer and privacy activist Maximilian Schrems has become known for his legal actions leading to the invalidation of “Safe Harbor” in 2015 and of the “EU-U.S. Privacy Shield” this year (we reported). Following the landmark court decision on the “EU-U.S. Privacy Shield”, Schrems recently announced on the website of his NGO “noyb” (non-of-your-business) that he has filed 101 complaints against 101 European companies in 30 different EU and EEA countries with the responsible Data Protection Authorities. Schrems exercised the right to lodge a complaint with the supervisory authority that every data subject has if he or she considers that the processing of personal data relating to him or her infringes the Regulation, pursuant to Art. 77 GDPR.

The complaints concern the companies’ continued use of Google Analytics and Facebook Connect that transfer personal data about each website visitor (at least IP-address and Cookie data) to Google and Facebook which reside in the United States and fall under U.S. surveillance laws, such as FISA 702. Schrems also published a list of the 101 companies which include Sky Deutschland, the University of Luxembourg and the Cyprus Football Association. With his symbolic action against 101 companies, Schrems wanted to point to the widespread inactivity among many companies that still do not take the data protection rights of individuals seriously despite the recent ruling by the Court of Justice of the European Union.

In response, the European Data Protection Board (“EDPB”) has set up a “task force” to handle complaints against European companies using Google Analytics and Facebook services. The taskforce shall analyse the matter and ensure a close cooperation among the members of the Board which consists of all European supervisory authorities as well as the European Data Protection Supervisor.

Apple to delay iOS 14 Ad Tracking Changes

9. September 2020

In an update from Apple on Thursday, 3rd of September 2020, it was announced that some of the plans that were supposed to be launched in the new iOS 14 update are being delayed. The new feature of iOS developers having to request permission from app users before collecting their data for ad tracking is being pushed back to the beginning of 2021.

This and other features are seen as a big step towards users’ privacy, which you can read up on in our previous blogpost, but they have been criticised by app developers and big tech giants alike.

The permission feature was supposed to change the way users’ privacy is being accessed, from the current opt-out method to an opt-in one. “When enabled, a system prompt will give users the ability to allow or reject that tracking on an app-by-app basis,” stated Apple.

However, this will be delayed until early next year, due to the fact that the changes would affect a large amount of the platforms’ publishers, which rely strongly on ad tracking revenue. Facebook criticized the changes and announced that some of their tools may lose efficiency, and hence cause problems for smaller app developers. To combat this issue, Apple said: “We want to give developers the time they need to make the necessary changes, and as a result, the requirement to use this tracking permission will go into effect early next year.”

In recent years, Apple has taken its users’ privacy more seriously, launching new adjustments to ensure their right to privacy is being integrated in their devices.

„We believe technology should protect users’ fundamental right to privacy, and that means giving users tools to understand which apps and websites may be sharing their data with other companies for advertising or advertising measurement purposes, as well as the tools to revoke permission for this tracking,” Apple emphasized.

Category: EU · GDPR · General
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EDPB releases new official register of Art. 60 GDPR decisions

29. June 2020

On 25 June 2020, the European Data Protection Board (“EDPB”) released a new register of final decisions by national European Data Protection Authorities (Supervisory Authorities) cooperating with one another pursuant to Art. 60 GDPR. The register provides access to the decisions themselves, summaries of the decisions in English, and information on the identity of the cooperating Lead Supervisory Authority and Concerned Supervisory Authorities.

The GDPR postulates that Supervisory Authorities have to cooperate in potential cases of GDPR violations that include cross-border data processing activities. During this cooperation, the Lead Supervisory Authority will be in charge of preparing the draft decision and involving the Concerned Supervisory Authorities, and will act as the sole interlocutor of the Controller or Processor (“One-Stop-Shop”-Principle), Art. 56 and Art. 60 GDPR.

To date, the new EDPB register contains 110 final decisions. The EDPB states in its announcement that ‘the register will be valuable to data protection practitioners who will gain access to information showcasing how SAs work together to enforce the GDPR in practice.’

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.

Thailand postpones Enforcement of new Personal Data Protection Act

22. June 2020

In response to the European General Data Protection Regulation (“GDPR”) becoming applicable in 2018, Thailand adopted its first-ever Personal Data Protection Act (“PDPA”) into law on 28 May 2019. As it is fashioned after the GDPR, the PDPA is built around principles that vastly align with the GDPR, especially in the areas of data protection principles, legal bases, and data subject rights. Originally, it was determined that the PDPA would start its applicability one year after its adoption, on 27 May 2020.

Now, the Thai Government has approved of a draft decree by the Ministry of Digital Economy and Society (“MDES”) to postpone the enforcement of most sections of the PDPA to 31 May 2021. The MDES explained that the reasons for delay are the current Corona pandemic and its strain on businesses, as well as many businesses not being prepared for PDPA compliance. Notably, Brasil also postponed the enforcement of its new Data Protecion Law (“LGPD”) for similar reasons (we reported).

The only sections of the PDPA that will be enforced as originally planned include the appointment of the Personal Data Protection Committee members and the establishment of the Office of the Personal Data Protection Committee. Whilst the delay allows companys more time to become PDPA compliant, the lack of enforcement regarding data subject rights in the meantime are a big concern of critics, especially in light of the recent adoption of Thailand’s controversial new cybersecurity law.

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.

Hungary Update: EDPB publishes Statement on Art. 23 GDPR

17. June 2020

Since March 2020, Hungary has been in a “state of emergency” following the COVID-19 pandemic. The country’s COVID-19 related emergency laws and state of emergency received worldwide criticism from constitutional experts, politicians and civil rights groups, because it allows the Prime Minister to rule by decree during the state of emergency and does not provide a predefined end date. During the state of emergency, Prime Minister Victor Orbán made extensive use of his newly gained powers by passing more than a hundred decrees, including Decree No. 179/2020, which suspended the GDPR data subject rights in Art. 15-22 GDPR with respect to personal data processing for the purpose of preventing, understanding, detecting the coronavirus disease and impeding its further spread (we reported).

In response to this suspension of GDPR rights, the European Data Protection Board (“EDPB”) has recently published a Statement on restrictions on data subject rights pursuant to Art. 23 GDPR, which is the provision that Hungary’s measure was based on. This article allows the member states to restrict, by way of a legislative measure, the scope of the obligations and rights provided for in Articles 12 to 22 and Article 34, when such a restriction respects the essence of the fundamental rights and freedoms and is a necessary and proportionate measure in a democratic society to safeguard, inter alia, important objectives of general public interest of the Union or of a Member State such as public health.

In its Statement, the EDPB points out that any restriction must respect the essence of the right that is being restricted. If the essence of the right is compromised, the restriction must be considered unlawful. Since the data subject’s right of access and the right to rectification are fundamental rights according to Art. 8 para. 2 of the Charter of Fundamental Rights of the European Union, any restriction of those rights must be carefully weighed up by the member states, in order respect the essence of the rights. The EDPB considers that restrictions adopted in the context of a state of emergency suspending or postponing the application of data subject rights, without any clear limitation in time, equate to a de facto blanket suspension and denial of those rights and are not be compatible with the essence of the fundamental rights and freedoms.

The EDPB also recalls that the restrictions under Art. 23 GDPR must be necessary and proportionate. It argues that restrictions that are imposed for a duration not precisely limited in time or which apply retroactively or are subject to undefined conditions, are not foreseeable to data subjects and thus disproportionate.

Furthermore, the EDPB takes the view that in order to safeguard important objectives of general public interest such as public health (Art. 23 para. 1 lit. e GDPR), there must be a clearly established and demonstrated link between the foreseen restrictions and the objective pursued. The mere existence of a pandemic or any other emergency situation alone does not justify a restriction of data subject rights, especially if it is not clearly established, how the restrictions can help dealing with the emergency.

Following the international public backlash, the Parliament of Hungary passed legislation on 16 June 2020 to revoke the emergency laws as soons as the current state of emergency will be terminated by the Government. Hungary’s Government announced in May that it intends to lift the state of emergency on 20 June 2020. After that, the restrictions on the GDPR rights shall be lifted as well, so that data subject may exercise their Art. 15-22 GDPR rights again.

Germany’s Constitutional Court curbs Federal Intelligence Service’s competence

16. June 2020

In a court ruling from May 19th 2020 with regards to the German Federal Intelligence Service (BND) and their manner of operation, the German Constitutional Court has proclaimed that the BND is bound by fundamental rights in cases of surveillance of foreigners, even outside of Germany’ federal territory.

 Background

The case, which was brought to the court in the manner of a constitutional complaint by a collective of foreign journalists, found its origin initially through the disclosures made by Edward Snowden back in 2013, where some of the BND’s practices in relation to strategic foreign surveillance came to light. In 2016, German legislators passed a new law with the purpose to regulate surveillance done by the BND. However, that new law mainly restricted surveillance of German citizens, as well as foreigner living in Germany. It has been criticized that the new law did nothing to restrict and regulate the BND’s actions abroad by not having to abide by any legal provisions. The constitutional complaint brought to the German Constitutional Court deals with strategic surveillance from foreign reporters and journalists with regards to their highly confidential data necessary to perform their work through the BND, which risks to be exchanged with their own country’s intelligence agencies and in the process put them at risk of federal measures taken against them.

The key points

Territorial Scope. One of the biggest points of the court ruling has been the definition of the territorial scope of the fundamental rights at risk in this case. Since the complainants are journalists from outside the German territory, the Constitutional Court had to specify if the constitutional rights that would shield them from surveillance by the BND would find application in the matter. In this instance, the court has ruled that the fundamental rights are not limited to the German territory, but rather apply wherever the German state authority is acting. This is derived from Art. 1 III of the German Constitution (GG), which binds the German state authority to conformity with the Constitution. In such, as the fundamental rights from Art. 10 I, Art. 5 I GG are not simply applicable to Germans, the Constitutional Court has extended the range of application to foreigners in foreign countries, and given them international importance.

Current legislation is unconstitutional. In effect, the Constitutional Court has further analysed the new intelligence law from 2016, and ruled it unconstitutional in the current state. The main reason is that, due to the fact that the legislators assumed that the fundamental rights did not apply, they did not conform with the requirements set out in the Constitution for such law. In such, the new law violates the privacy of telecommunications and its requirements from Art. 10 I GG, and in addition does not meet the key requirements deriving from other fundamental rights, such as Art. 19 I GG. However, the Constitutional Court has stated that the law can be amended to follow fundamental rights and comply with the constitution. The court declared several points which are necessary to implement in the amended law, some of which we will present further below.

Independent oversight. The Constitutional Court stated that in order to ensure conformity with the Constitution and regulate the BND in a way that would ensure the protection of fundamental rights of the people under surveillance, it would be necessary to establish a new, independent oversight regime that would act to judge and regulate strategic surveillance. Its main purposes would be the legal oversight of the BND and protection of the surveillance subjects, as well as the control of the surveillance process, from the analysing of data to the transfer of information between agencies, etc.

Legislative suggestions. In the ruling of the case, the Constitutional Court also made a few suggestions in regards to potential statutory regulation in order to regulate the BND and its area of action better than it was in the past. Part of those suggestions were the necessity of defining the purpose of surveillance measures with precision and clarity, in order to ensure transparency, as well as the necessity for the legislator to set out essential framework for the analysis of the collected data, like a cease in analysis as soon as it becomes clear that the surveillance has touched the core of private life. The court also suggested that special requirements have to apply to the protection of professional groups with communications of increased confidentiality, and that the surveillance in these cases must be tied to qualified thresholds. The court also mentioned the storage and deletion of surveillance data, stating that the traffic data obtained should not be stored for longer than six months, while a systematic deletion policy needs to be established. In the terms of the transfer of information to other (foreign) intelligence agencies, the Constitutional Court made it clear that such transfers will need an official statutory basis in order to be lawful.

The court has given the German government until the end of 2021 to amend the law and make statutory changes to comply with the ruling and the decision of the international scope of the fundamental rights. While this may seem like a big set back for the BND, it is a chance to show that intelligence agencies can work on a high constitutional standard while also being successful in their purpose.

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