Category: Personal Data

Data protection soon to become constitutional right in Brazil

24. September 2021

Last month Brazil’s Chamber of Deputies approved the Federal Senate’s proposal to amend the Constitution making the protection of personal data, including in digital media, a fundamental right for all citizens. According to the proposal, the Federal Government would have exclusive competence to legislate and supervise matters in this area.

The country already has a General Law for the Protection of Personal Data (LGPD) and the National Data Protection Authority (ANPD) as a supervisory body. The deputy Orlando Silva pointed out that the proposal consolidates the regulations for the protection of personal data and justified the need to include data protection as a constitutional right as follows:

All of us here systematically use internet applications, and the management of these applications is based on the provision of personal data, which is often manipulated without each of us knowing the risks to our privacy.

The deputy Isnaldo Bulhões added:

Without a doubt the proposal is a step forward, because we have seen major scandals, major violations, and fraud that have advanced a lot in recent times with technological development in Brazil and in the world.

A peculiarity of the amendment adopted by the Plenum is the deletion of the provision to make the ANPD an independent body, which would be part of the indirect federal public administration and subject to a special autonomous regulation. It was argued that the autonomy of the ANPD is not in question, but a constitutional regulation in this regard has never been adopted for any other agency.

For final approval the deputies’ adjustments require the proposal to return to the Federal Senate.

Names of unvaccinated employees revealed in Canada

23. September 2021

The Ottawa Hospital’s human resources office admitted a data breach caused by a mass email revealing the identities of unvaccinated staff members, CTV News Ottawa reported. The system-generated email was sent on September 8th to employees who had declined the COVID-19 vaccination, making their email addresses inadvertently visible in the recipient section.

The reason for sending the email was the hospital’s expectation that every member would get vaccinated to ensure the safety of the community. To achieve this, education was also to be provided to unvaccinated employees. They were to be invited via email to attend a respective education session.

The hospital already apologized to the affected employees and made efforts to resolve the issue. The contacted IT services immediately recalled the emails, removed it from all inboxes and deleted the copies. Moreover, all those who forwarded the email to personal accounts were asked to delete it. Following an investigation by the hospital’s privacy office, a report to the Information and Privacy Commissioner of Ontario has been made as well.

Allegedly, this data breach involved 391 employees whose names were disclosed. However, the number was not officially confirmed by the hospital.

Conclusively, the hospital said in a statement explaining the case:

Health-care workers have worked tirelessly to protect our communities throughout the pandemic, and they deserve protection and support to enable them to do their jobs safely, and to the best of their abilities.

UK Ministry of Defence Data Breaches put more than 300 Afghans in Danger

On Monday, 20 September 2021 the UK Ministry of Defence launched an investigation into a recent data breach. The breach has affected more than 250 Afghan interpreters who have cooperated with Western forces in Afghanistan and who have applied for relocation to the UK. The Ministry sent an e-mail to these Afghan individuals who are still in Afghanistan and are reportedly eligible for relocation. The e-mail included all e-mail addresses, names, and some associated profile pictures in copy (“cc”) instead of blind copy (“bcc”), thus exposing the personal information to all recipients. It was reported that some Afghans have sent reply e-mails to all recipients in the mailing list, even sharing details about their current personal situation.

The following Tuesday, Britain’s Defence Minister Ben Wallace apologised for the data breach publicly in Parliament. He explained that he is aware of the compromise of safety of the Afghan interpreters and has suspended an official as a result of the breach. Upon discovery, the Ministry sent out another e-mail advising the affected individuals to delete the previous e-mail and to change their e-mail addresses. Additionally, the Ministry of Defence will offer extra support to those affected by the incident. The Minister also stated that correspondence processes have already been changed.

In the meantime, a second data breach by the Ministry of Defence was uncovered on Wednesday. This time, an e-mail was sent to 55 people requesting them to update their details after the UK officials were unable to contact them. At least one of the recipients is a member of the Afghan National Army. Again, the e-mail was sent with all recipients in “cc” and not in “bcc”.

Military experts and politicians have criticised the Ministry for the data breaches which unnecessarily endanger the safety of Afghans, many of whom are hiding from the Taliban. The investigation into data handling by the “Afghan Relocation and Assistance Policy” team within the Ministry of Defence is still ongoing, a spokesperson of the Ministry has said.

New Mexico Attorney General files suit against “angry birds” developer

30. August 2021

The developer of the popular app “Angry Birds” is currently under investigation by the New Mexican Attorney General.

On August 25, 2021, New Mexico Attorney General Hector Balderas filed charges against Rovio Entertainment. The company is alleged to have violated the federal Children’s Online Privacy Protection Act (COPPA) and to have intentionally collected the data of players under the age of 13. One of the accusations is that the data was processed for commercial purposes.

COPPA requires app developers to inform parents of children of the appropriate age about their data collection practices. Further, it is required to obtain parental consent for the collection of personal data from children under 13 and to properly record that consent.

The Attorney General’s complaint alleges that children’s data was disclosed to third parties for the purpose of targeted advertising. The data is analyzed, vermacred to third parties, and from then on is also available to an even wider circle of interests. The Angry Bird developer is also said to have failed to obtain parental consent and to have proclaimed it. The privacy policy was also said to be misleading. The company however stated that the Angry Birds app was not for children. Nevertheless, according to the authorities the developers are aware that the application is downloaded and played by a young audience in particular. Even in the event that the privacy policy is not specifically marketed to minors, however, the company must take measures under COPPA to minimize the risk to children.

The procedure may entail civil penalties, restitution, and other relief.

Children’s data also receive special protection within the EU. According to Art. 8 of the GDPR, this protection even applies up to the age of 16. However, the state legislators are free to set this limit at the age of 13.

Discussions on Mongolian data protection bill

27. August 2021

The Mongolian legislation on the protection of personal data is currently limited to two laws: the Law on Personal Secrets and the Law on Organisational Secrets, both enacted in 1995. The provisions are considered vague, ambiguous and insufficient, which makes them rarely used in practice. This leads to the lack of interpretation and application. Therefore, the not well developed data protection legislation requires systematic and consistent reforms in order to meet the various societal challenges and to comply with international standards.

Within the framework of the “Action Plan of the Government of Mongolia for 2020-2021” a draft law on the protection of personal data is in the process of being approved. In this regard, the parliament of Mongolia, the State Great Khural, has recently announced discussions on several draft laws. They include the Law on Public Information, the Law on Protection of Personal Data, the Law on Cyber ​​Security, and the Law on Electronic Signatures.

The discussions were jointly held by the Standing Committee on Innovation and e-Policy and the Standing Committee on Legal Affairs on August 10th, 2021. Now, the Mongolian government is responsible for preparing the revised drafts.

The draft Law on Protection of Personal Data aims to regulate relations with regard to the collection, processing, and use of personal data as well as to ensure their security. It outlines rights and obligations of data processors and controllers, contains data subject rights and includes provisions for international data transfers.

The bill is an important step towards alignment with international data protection standards. If passed, the law will come into force on November 1st, 2021.

Google Play Store apps soon obliged to provide privacy notices

20. August 2021

On the Android Developers Blog, Google has announced further details for the upcoming new safety section in its Play Store. It aims at presenting the security of the offered apps in a simple way to give users a deeper insight into privacy and security practices of the developers. This should allow users to see what data the app may be collecting and why, even before the installation. In order to achieve this, apps in the Google Play Store will be required to publish the corresponding information in the safety section.

The new summary will be displayed to users on an app’s store listing page. It is intended to highlight details such as:

  • What type of data is collected and shared, e.g. location, contacts, name, email address, financial information,
  • How the data will be used, e.g. for app functionality or personalization,
  • Whether the data collection is optional or mandatory for the use of an app,
  • Security practices, e.g. data encryption,
  • Compliance with the family policy,
  • Validation from an independent source against a global security standard.

To support the safety section, policy changes are being made which should lead to more transparency to users. Thus, all developers will be required to provide a privacy notice. Previously, only apps that collected personal and sensitive user data had to do so. The innovation applies to all apps published on Google Play, including Google’s own apps.

Developers will be able to submit information to the Google Play Console for review in October. However, by April 2022 at the latest, the safety section must be approved for their apps. The reason for this is that the new section is scheduled to be rolled out and visible to users in Q1 2022.

Aside from sharing additional information for developers on how to get prepared, Google has also assured that more guidance will be released over the next few months.

CNIL fines Monsanto 400,000 € for GDPR violations

29. July 2021

France’s data protection authority, the Commission Nationale de l’Informatique et des Libertés (CNIL), imposed a fine of 400,000 € on the U.S.-based biotechnology corporation Monsanto Company for contravention of Article 14 GDPR regarding the information of data subjects about the collection of their personal data and Article 28 GDPR concerning contractual guarantees which lay down relations with a data processor.

In May 2019, several media outlets revealed that Monsanto was in possession of a file containing personal data of more than 200 political figures or members of civil society (e.g. journalists, environmental activists, scientists or farmers). The investigations carried out by the CNIL disclosed that the information had been collected for lobbying purposes. The individuals named on this “watch list” were Monsanto’s opponents and critics from several European countries, meant to be “educated” or “monitored”. This strategy should have influenced the debate and public opinion on the renewal of the authorization of glyphosate in Europe, a controversial active substance contained in Monsanto’s best-known product for weed control. The reason for the still current scientific controversy is the causation of diseases by glyphosate, most notably cancer.

The file included, for each of the individuals, personal data such as organization, position, business address, business phone number, cell phone number, business email address, and in some cases Twitter accounts. In addition, each person was given a score from 1 to 5 to evaluate their influence, credibility, and support for Monsanto on various issues such as pesticides or genetically modified organisms.

It should be noted that the creation of contact files by stakeholders for lobbying purposes is not illegal per se. While it is not necessary to obtain the consent of the data subjects, the data have to be lawfully collected and the individuals have to be informed of the processing.

In imposing the penalty, the CNIL considered that Monsanto had failed to comply with the provisions of the GDPR by not informing the data subjects about the storage of their data, as required by Article 14 GDPR. In addition, none of the exceptions provided in Article 14 para. 5 GDPR were applicable in this case. The data protection authority stressed that the aforementioned obligation is a key measure under the GDPR insofar as it allows the data subjects to exercise their other rights, in particular the right to object.

Furthermore, Monsanto violated its obligations under Article 28 GDPR. As a controller, the company was required to establish a legal framework for the processing carried out on its behalf by its processor, in particular to provide data security guarantees. However, in the CNIL’s opinion, none of the contracts concluded between the two companies complied with the requirements of Article 28 para. 4 GDPR.

Colorado Privacy Act officially enacted into Law

14. July 2021

On July 8, 2021, the state of Colorado officially enacted the Colorado Privacy Act (CPA), which makes it the third state to have a comprehensive data privacy law, following California and Virginia. The Act will go into effect on July 1, 2023, with some specific provisions going into effect at later dates.

The CPA shares many similarities with the California Consumer Privacy Act (CCPA) and the Virgina Consumer Data Protection Act (CDPA), not having developed any brand-new ideas in its laws. However, there are also differences. For example, the CPA applies to controllers that conduct business in Colorado or target residents of Colorado with their business, and controls or processes the data of more than 100 000 consumers in a calendar year or receive revenue by processing data of more than 25 000 consumers. Therefore, it is broader than the CDPA, and does not include revenue thresholds like the CCPA.

Similar to the CDPA, the CPA defines a consumer as “a Colorado resident acting only in an individual or household context” and explicitly omits individuals acting in “a commercial or employment context, as a job applicant, or as a beneficiary of someone acting in an employment context”. As a result, controllers do not need to consider the employee personal data they collect and process in the application of the CPA.

The CPA further defines “the sale of personal information” as “the exchange of personal data for monetary or other valuable consideration by a controller to a third party”. Importantly, the definition of “sale” explicitly excludes certain types of disclosures, as is the case in the CDPA, such as:

  • Disclosures to a processor that processes the personal data on behalf of a controller;
  • Disclosures of personal data to a third party for purposes of providing a product or service requested by consumer;
  • Disclosures or transfer or personal data to an affiliate of the controller’s;
  • Disclosure or transfer to a third party of personal data as an asset that is part of a proposed or actual merger, acquisition, bankruptcy, or other transaction in which the third party assumes control of all or part of the controller’s assets;
  • Disclosure of personal data that a consumer directs the controller to disclose or intentionally discloses by using the controller to interact with a third party; or intentionally made available by a consumer to the general public via a channel of mass media.

The CPA provides five main consumer rights, such as the right of access, right of correction, right of deletion, right to data portability and right to opt out. In case of the latter, the procedure is different from the other laws. The CPA mandates a controller provide consumers with the right to opt out and a universal opt-out option so a consumer can click one button to exercise all opt-out rights.

In addition, the CPA also provides the consumer with a right to appeal a business’ denial to take action within a reasonable time period.

The CPA differentiates between controller and processor in a similar way that the European General Data Protection Regulation (GDPR) does and follows, to an extent, similar basic principles such as duty of transparency, duty of purpose specification, duty of data minimization, duty of care and duty to avoid secondary use. In addition, it follows the principle of duty to avoid unlawful discrimination, which prohibits controllers from processing personal data in violation of state or federal laws that prohibit discrimination.

No obligation to disclose vaccination certificates at events in Poland

7. July 2021

According to recent announcements, the Polish Personal Data Protection Office (UODO) has indicated that vaccinated individuals participating in certain events cannot be required to disclose evidence of vaccination against COVID-19.

In Poland, one of the regulations governing the procedures related to the prevention of the spread of coronavirus is the Decree of the Council of Ministers of May 6th, 2021 on the establishment of certain restrictions, orders and prohibitions in connection with the occurrence of an epidemic state. Among other things, it sets limits on the number of people who can attend various events which are defined by Sec. 26 para. 14 point 2, para. 15 points 2, 3. The aforementioned provisions concern events and meetings for up to 25 people that take place outdoors or in the premises/building indicated as the host’s place of residence or stay as well as events and meetings for up to 50 people that take place outdoors or in the premises/separate food court of a salesroom. Pursuant to Sec. 26 para. 16, the stated number of people does not include those vaccinated against COVID-19.

In this context the question has arisen how the information about the vaccination can be obtained. As this detail is considered health data which constitutes a special category of personal data referred to in Art. 9 para. 1 GDPR, its processing is subject to stricter protection and permissible if at least one of the conditions specified in para. 2 is met. This is, according to Art. 9 para. 2 lit. i GDPR, especially the case if the processing is necessary for reasons of public interest in the area of public health, such as protecting against serious cross-border threats to health or ensuring high standards of quality and safety of health care and of medicinal products or medical devices, on the basis of Union or Member State law which provides for suitable and specific measures to safeguard the rights and freedoms of the data subject, in particular professional secrecy.

The provisions of the Decree do not regulate the opportunity of requiring the participants in the mentioned events to provide information on their vaccination against COVID-19. Hence, it is not specified who may verify the evidence of vaccination, under what conditions and in what manner. Moreover, “specific measures to safeguard” as referred to in Art. 9 para. 2 lit. i GDPR, cited above, are not provided as well. Therefore, the regulations of the Decree cannot be seen as a legal basis authorizing entities obliged to comply with this limit of persons to obtain such data. Consequently, the data subjects are not obliged to provide it.

Because of this, collection of vaccination information can only be seen as legitimate if the data subject consents to the data submission, as the requirement of Art. 9 para. 2 lit. a GDPR will be fulfilled. Notably, the conditions for obtaining consent set out in Art. 4 para. 11 and Art. 7 GDPR must be met. Thus, the consent must be voluntary, informed, specific, expressed in the form of an unambiguous manifestation of will and capable of being revoked at any time.

The rising threat of Ransomware

28. June 2021

Ransomware attacks are on a steep rise as the global pandemic continues. According to the cybersecurity firm SonicWall, there were more than 304 million attempted ransomware attacks tracked by them in 2020, which was a 62 percent increase over 2019. During the first five months of 2021, the firm detected another 116 percent increase in ransomware attempts compared to the same period in 2020. Another cybersecurity firm called Cybereason found in a recent study interviewing nearly 1,300 security professionals from all around the world that more than half of organisations have been the victim of a ransomware attack, and that 80 percent of businesses that decided to pay a ransom fee suffered a second ransomware attack, often times by the same cybercriminals.

Ransomware is a type of malicious software, which encrypts files, databases, or applications on a computer or network and perpetually holds them hostage or even threatens to publish data until the owner pays the attacker the requested fee. Captivated data may include Personal Data, business data and intellectual property. While Phishing attacks are the most common gateway for ransomware, there are also highly targeted attacks on financially strong companies and institutions (“Big game hunting”).

Alluding to the industry term Software-as-a-Service (SaaS), a new unlawful industry sub-branch has emerged in recent years, which according to security experts lowered the entrance barriers to this industry immensely: Ransomware-as-a-Service (RaaS). With RaaS, a typical monthly subscription could cost around 50 US-Dollars and the purchaser receives the ransomware code and decryption key. Sophisticated RaaS offerings even include customer service and dashboards that allow hackers to track the status of infections and the status of ransomware payments. Thus, cybercriminals do not necessarily have to have the technical skills themselves to create corresponding malware.

Experts point to various factors that are contributing to the recent increase in Ransomeware attacks. One factor is a consequence of the pandemic: the worldwide trend to work from home. Many companies and institutions were abruptly forced to introduce remote working and let employees use their own private equipment. Furthermore, many companies were not prepared to face the rising threats with respect to their cybersecurity management. Another reported factor has been the latest increase in value of the cryptocurrency Bitcoin which is the preferred currency by criminals for ransom payments.

Successful Ransomware attacks can lead to personal data breaches pursuant to Art. 4 No. 12 GDPR and can also lead to the subsequent obligation to report the data breach to the supervisory authorities (Art. 33 GDPR) and to the data subjects (Art. 34 GDPR) for the affected company. Businesses are called to implement appropriate technical and organisational measures based on the risk-based approach, Art. 32 GDPR.

Earlier this month, the Danish Data Protection Authority provided companies with practical guidance on how to mitigate the risk of ransomware attacks. Measures to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems when faced with ransomware may include providing regular trainings for employees, having a high level of technical protection of systems and networks in place, patching programs in a timely manner, and storing backups in an environment other than the normal network.

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