Category: EU
29. August 2019
On Monday, August 26th, the Greek Parliament passed a bill that will incorporate the European Union’s General Data Protection Regulation (GDPR) into national law. Originally, the adaptation of the EU regulation was supposed to take place until May 06, 2018. Greece failed to comply with the deadline.
The, now, fast-paced implementation of the regulation may have come as a result of the referral of Greece and Spain by the European Commission (EC) to the European Court of Justice on July 25th. Since they had failed to adopt the GDPR into national law up until then, Greece could have faced a fine of €5,287.50 for every day passed since May 06, in addition to a stiff fine of €1.3 million. In its statement, the EC declared that “the lack of transposition by Spain and Greece creates a different level of protection of peoples’ rights and freedoms, and hampers data exchanges between Greece and Spain on one side and other Member States, who transposed the Directive, on the other side”.
The EU countries are allowed to adopt certain derogations, exeptions and specifications under the GDPR. Greece has done so, in the approved bill, with adjusted provisions in regards to the age of consent, the process of appointing a Data Protection Officer, sensitive data processing, data repurposing, data deletion, certifications and criminal sanctions.
The legislation was approved by New Democracy, the main opposition SYRIZA, the center-left Movement for Change and leftist MeRA25, with an overwhelming majority. The GDPR has already been in effect since May 25th, 2018, with its main aim being to offer more control to individuals over their personal data that they provide to companies and services.
18. July 2019
After a cyberattack on the Bulgarian’s tax agency (NRA) millions of taxpayers’ financial data has been stolen. In an estimate, it is said that most working adults in the 7 million country are affected by some of their data being compromised. The stolen data included names, adresses, income and social security information.
The attack happened in June, but an E-mail from the self-proclaimed perpetrator was sent to Bulgarian media on Monday. It stated that more than 110 databases of the agency had been compromised, the hacker calling the NRA’s cybersecurity a parody. The Bulgarian media were further offered access to the stolen data. One stolen file, e-mailed to the newspaper 24 Chasa, contained up to 1,1 million personal identification numbers with income, social security and healthcare figures.
The country’s finance minister Vladislav Goranov has appologized in parliament and to the Bulgarian citizens, adding that about 3% of the tax agency’s database had been affected. He made clear that whoever attempted to exploit the stolen data would fall under the impact of Bulgarian law.
In result to this hacking attack, the Bulgarian tax agency now faces a fine of up to 20 million euros by the Commission of Personal Data Protection (CPDP). In addition, the issue has reignited an old debate about the lax cybersecurity standards in Bulgaria, and its adjustement to the modern times.
Google may face further investigations under the General Data Protection Regulation(GDPR), after unauthorized audio recordings have been forwarded to subcontractors. The Irish Data Protection Commission (IDPC) has confirmed through a spokesperson that they have received a data breach notification concerning the issue last week.
The recordings were exposed by the Belgian broadcast VRT, said to affect 1000 clips of conversations in the region of Belgium and the Netherlands. Being logged by Google Assistant, the recordings were then sent to Google’s subcontractors for review. At least 153 of those recordings were not authorized by Google’s wake phrase “Ok/Hey, Google,” and were never meant to be recorded in the first place. They contained personal data reaching from family conversations over bedroom chatter to business calls with confidential information.
Google has addressed this violation of their data security policies in a blog post. It said that the audio recordings were sent to experts, who understand nuances and accents, in order to refine Home’s linguistic abilities, which is a critical part in the process of building speech technology. Google stresses that the storing of recorded data on its services is turned off by default, and only sends audio data to Google once its wake phrase is said. The recordings in question were most likely initiated by the users saying a phrase that sounded similar to “Ok/Hey, Google,” therefore confusing Google Assistant and turning it on.
According to Google’s statement, Security and Privacy teams are working on the issue and will fully review its safeguards to prevent this sort of misconduct from happening again. If, however, following investigations by the IDPC discover a GDPR violation on the matter, it could result in significant financial penalty for the tech giant.
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 transfers 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.
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-mail addresses, 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.
3. July 2019
Privacy Shield, established between the European Union (EU) and the United States of America (US) as a replacement of the fallen Safe Harbor agreement, has been under scrutiny from the moment it entered into effect. Based on the original claims by Max Schrems in regards to Safe Harbor (C-362/14), the EU-US data transfer agreement has been challenged in two cases, one of which will be heard by the Court of Justice of the European Union (CJEU) in early July.
In this case, as in 2015, Mr. Schrems bases his claims elementally on the same principles. The contention is the unrestricted access of US agencies to European’s personal data. Succeeding hearings in 2017, the Irish High Court found and raised 11 questions in regards to the adequacy of the level of protection to the CJEU. The hearing before the CJEU is scheduled for July 9th. The second case, originally planned to be heard on July 1st and 2nd, has been brought to the General Court of the European Union by the French digital rights group La Quadrature du Net in conjunction with the French Data Net and Fédération FDN. Their concerns revolve around the inadequacy of the level of protection given by the Privacy Shield and its mechanisms.
This hearing, however, has been cancelled by the General Court of the EU only days prior to its date, which was announced by La Quadrature du Net through tweet.
Despite the criticism of the agreement, the European Commission has noted improvements to the level of security of the Privacy Shield in their second review of the agreement dating from December 2018. The US Senate confirmed Keith Krach as Under Secretary for Economic Growth, Energy and Environment, with his duties to include being the permanent ombudsman in regards to the Privacy Shield and the EU data protection, on June 20th 2019.
As it is, both cases are apt to worry companies that rely on being certified by the Privacy Shield or the use of SCCs. With the uncertainty that comes with these questions, DPOs will be looking for new ways to ensure the data flow between Europe and the US. The European Commission stated that it wants to make it easier for companies in the future to comply with data transfers under the GDPR. It plans to update the SCCs to the requirements of the GDPR, providing a contractual mechanism for international transfers. Nonetheless, it is unclear when those updates are happening, and they may be subject to legal challenge based on the future Schrems ruling.
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.
13. June 2019
The Spanish data protection authority Agencia Española de Protección de Datos (AEPD) has imposed a fine of 250.000 EUR on the organisers of the two Spanish professional football leagues for data protection infringements.
The organisers, Liga Nacional de Fútbol Profesional (LFP), operate an app called “La Liga”, which aims to uncover unlicensed performances of games broadcasted on pay-TV. For this purpose, the app has recorded a sample of the ambient sounds during the game times to detect any live game transmissions and combined this with the location data. Privacy-ticker already reported.
AEPD criticized that the intended purpose of the collected data had not been made transparent enough, as it is necessary according to Art. 5 paragraph 1 GDPR. Users must approve the use explicitly and the authorization for the microphone access can also be revoked in the Android settings. However, AEPD is of the opinion that La Liga has to warn the user of each data processing by microphone again. In the resolution, the AEPD points out that the nature of the mobile devices makes it impossible for the user to remember what he agreed to each time he used the La Liga application and what he did not agree to.
Furthermore, AEPD is of the opinion that La Liga has violated Art. 7 paragraph 3 GDPR, according to which the user has the possibility to revoke his consent to the use of his personal data at any time.
La Liga rejects the sanction because of injustice and will proceed against it. It argues that the AEPD has not made the necessary efforts to understand how the technology works. They explain that the technology used is designed to produce only one particular acoustic fingerprint. This fingerprint contains only 0.75% of the information. The remaining 99.25% is discarded, making it technically impossible to interpret human voices or conversations. This fingerprint is also converted into an alphanumeric code (hash) that is not reversible to the original sound. Nevertheless, the operators of the app have announced that they will remove the controversial feature as of June 30.
10. April 2019
The European Data Protection Supervisor (EDPS) is the supervisory authority for all EU institutions and therefore responsible for their compliance with data protection laws. It is currently investigating the compliance of contractual agreements between EU institutions and Microsoft as the different institutions use Microsoft products and services to conduct their day-to-day businesses including the processing of huge amounts of personal data.
The EDPS refers to a Data Processing Impact Assessment carried out last November by the Dutch Ministry of Justice and Security (we reported) in which they concluded that Microsoft collects and stores personal data of Office users on a large scale without informing them.
Wojciech Wiewiórowski, Assistant EDPS, said: “New data protection rules for the EU institutions and bodies came into force on 11 December 2018. Regulation 2018/1725 introduced significant changes to the rules governing outsourcing. Contractors now have direct responsibilities when it comes to ensuring compliance. However, when relying on third parties to provide services, the EU institutions remain accountable for any data processing carried out on their behalf. They also have a duty to ensure that any contractual arrangements respect the new rules and to identify and mitigate any risks. It is with this in mind that the contractual relationship between the EU institutions and Microsoft is now under EDPS scrutiny.”
The investigation should reveal which products and systems are used right now and whether the existing contractual agreements are compliant with current Data Protection Laws, especially the GDPR.
9. April 2019
The French data protection authority CNIL has published a model regulation which regulates under which conditions devices for access control through biometric authentication may be introduced at the workplace.
Pursuant to Article 4 paragraph 14 of the General Data Protection Regulation (GDPR), biometric data are personal data relating to the physical, physiological or behavioural characteristics of a natural person, obtained by means of specific technical processes, which enable or confirm the unambiguous identification of that natural person. According to Article 9 paragraph 4 GDPR, the member states of the European Union may introduce or maintain additional conditions, including restrictions, as far as the processing of biometric data is concerned.
The basic requirement under the model regulation is that the controller proves that biometric data processing is necessary. To this end, the controller must explain why the use of other means of identification or organisational and technical safeguards is not appropriate to achieve the required level of security.
Moreover, the choice of biometric types must be specifically explained and documented by the employer. This also includes the justification for the choice of one biometric feature over another. Processing must be carried out for the purpose of controlling access to premises classified by the company as restricted or of controlling access to computer devices and applications.
Furthermore, the model regulation of the CNIL describes which types of personal data may be collected, which storage periods and conditions apply and which specific technical and organisational measures must be taken to guarantee the security of personal data. In addition, CNIL states that before implementing data processing, the controller must always carry out an impact assessment and a risk assessment of the rights and freedoms of the individual. This risk assessment must be repeated every three years for updating purposes.
The data protection authority also points out that the model regulation does not exempt from compliance with the regulations of the GDPR, since it is not intended to replace its regulations, but to supplement or specify them.
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