7. May 2021
On May 7th, 2021, Brad Smith, Microsoft’s President and Chief Legal Officer, announced in a blogpost that Microsoft will enable its EU commercial and public sector customers to store all their data in the EU. Microsoft calls this policy “EU Data Boundary” and it will apply across all of Microsoft’s core business cloud services, such as Azure, Microsoft 365 and Dynamics 365. Microsoft is the first big cloud provider to take such a step. The transition is intended to be done by the end of 2022.
This move can be seen as a reaction to the Court of Justice of the European Union’s (CJEU) “Shrems II” ruling in June 2020 (please see our blogpost), in which the CJEU ruled that the “EU-US-Privacy Shield” does not provide sufficient protection and therefore invalidating the agreement. The “Privacy Shield” was a framework for regulating the transatlantic exchange of personal data for commercial purposes between the EU and the USA.
However, the CJEU has clarified that server location and standard contractual clauses alone are not sufficient to meet the requirements of the General Data Protection Regulation (GDPR). This is because under U.S. law such as the “CLOUD Act”, U.S. law enforcement agencies have the power to compel U.S.-based technology companies to hand over requested data stored on servers, regardless of whether the data is stored in the U.S. or on foreign soil. So even with Microsoft’s proposed changes, U.S. authorities would still be able to access EU citizens’ personal data stored in the EU.
Microsoft believes it has found a way around the U.S. intelligence agencies: The U.S. intelligence agencies’ right of access could be technically worked around if customers effectively protected their data in the cloud themselves. To do this, customers would have to encrypt the data with a cryptographic key. In such a case, it would not be Microsoft that would manage the keys, but the customer themselves, and it would not be possible for Microsoft to hand over the keys to the US intelligence agencies. Microsoft also states that they are going above and beyond with their “Defending your Data” (please see our blogpost) measures to protect their customers’ data.
These measures by Microsoft are a step in the direction of a GDPR-compliant use of cloud applications, but whether they are sufficient to meet the high requirements of the GDPR may be doubted given the far-reaching powers of the US intelligence agencies. The reference to the possibility that users can encrypt their data themselves and keep the keys should help to comply with EU data protection standards, but must also be implemented in practice. Microsoft will have to educate its customers accordingly.
The GDPR-compliant transfer of personal data of EU citizens to the US remains uncertain territory, although further positive signals can be observed. For example, the new U.S. administration under President Joe Biden recently showed itself open to concluding a new comprehensive data protection agreement with the EU.
29. April 2021
On April 27, 2021, the Portuguese Data Protection Authority “Comissão Nacional de Proteção de Dados” (CNPD) ordered the National Institute of Statistics (INE) to suspend any international data transfers of personal data to the U.S., as well as other countries without an adequate level of protection, within 12 hours.
The INE collects different kinds of data from Portuguese residents from 2021 Census surveys and transfers it to Cloudfare, Inc. (Cloudfare), a service provider in the U.S. that assists the surveys’ operation. EU Standard Contractual Clauses (SCCs) are in place with the U.S. service provider to legitimize the data transfers.
Due to receiving a lot of complaints, the CNPD started an investigation into the INE’s data transfers to third countries outside of the EU. In the course of the investigation, the CNDP concluded that Cloudfare is directly subject to U.S. surveillance laws, such as FISA 702, for national security purposes. These kinds of U.S. surveillance laws impose a legal obligation on companies like Cloudfare to give unrestricted access to personal data of its customers and users to U.S. public authorities without informing the data subjects.
In its decision to suspend any international data transfers of the INE, the CNPD referred to the Schrems II ruling of the Court of Justice of the European Union. Accordingly, the CNPD is if the opinion that personal data transferred to the U.S. by the INE was not afforded a level of data protection essentially equivalent to that guaranteed under EU law, as further safeguards have to be put in place to guarantee requirements that are essentially equivalent to those required under EU law by the principle of proportionality. Due to the lack of further safeguards, the surveillance by the U.S. authorities are not limited to what is strictly necessary, and therefore the SCCs alone do not offer adequate protection.
The CNPD also highlighted that, according to the Schrems II ruling, data protection authorities are obliged to suspend or prohibit data transfers, even when those transfers are based on the European Commission’s SCCs, if there are no guarantees that these can be complied with in the recipient country. As Cloudfare is also receiving a fair amount of sensitive data n relation to its services for the INE, it influenced the CNDP’s decision to suspend the transfers.
28. April 2021
Reuters reports that Mexico’s data protection authority is planning to take legal action against a controversial new law that requires telecommunication companies to collect biometric data from users. The data protection authority wants to argue that the privacy of the people concerned is being violated before the Supreme Court.
The law was already passed in April 2021. On paper, it aims to combat crimes such as extortion and kidnapping. The data collection is meant to make it harder for criminals to remain anonymous when buying new mobile phones.
The lawsuit is filed by the National Institute of Transparency, Access to Information and Protection of Personal Data (INAI). Adrian Alcala, a commissioner of the INAI commented: “The prosecution of crimes is an issue that should concern us all and the state is responsible for ensuring the safety of the inhabitants, but this cannot and should not be a sufficient reason to restrict freedoms and human rights”.
Specifically, the amendment requires telecommunication companies to collect fingerprints or eye data from customers. The information collected will then be entered into databases managed by the Mexican Telecommunication Authority. The information will then be available for use in criminal investigations.
Last week, a Mexican judge stopped part of the law from coming into force. The argument was that it would put customers at risk, as they would have to fear that their contracts would be terminated if they did not disclose their data. However, the regulations on data collection and creation of the database are not affected by the judge’s decision.
26. April 2021
On April 14th, 2021, Ireland’s Data Protection Commission (DPC) announced it launched an investigation into Facebook’s data leak reported earlier this month (please see our blog post here). The inquiry was initiated on the Irish DPC’s own volition according to section 110 of the Irish Data Protection Act. It comes after a dataset of 533 million Facebook users worldwide was made available on the internet.
The Irish DPC indicated in a statement that, “having considered the information provided by Facebook Ireland regarding this matter to date, the DPC is of the opinion that one or more provisions of the GDPR and/or the Data Protection Act 2018 may have been, and/or are being, infringed in relation to Facebook Users’ personal data”. The Irish DPC further stated that they had engaged with Facebook Ireland in relation to this reported issue, raising queries in relation to GDPR compliance, to which Facebook Ireland furnished a number of responses.
The launch of an investigation by the Irish authorities is significant due to the fact that Ireland remains home to Facebook’s European headquarters. This means the Irish DPC would act as the lead regulator within the European Union on all matters related to it. However, Ireland’s data watchdog has faced criticism from privacy advocates for being too slow with its GDPR investigations into large tech companies. In fact, the inquiry comes after the European Commission intervened to apply pressure on Ireland’s data protection commissioner.
Facebook’s statement on the inquiry has been shared through multiple media, and it has announced that Facebook is “cooperating fully with the DPC in its enquiry, which relates to features that make it easier for people to find and connect with friends on our services. These features are common to many apps and we look forward to explaining them and the protections we have put in place.”
20. April 2021
On April 9th, 2021, the European Parliamentary Research Service (EPRS) published a report on data transfers in the private sector between the EU and the U.K. following Brexit.
The report reviews and assesses trade dealings, adequacy challenges and transfer instruments under the General Data Protection Regulation (GDPR). The report is intended to help take regulatory and business decisions, and in the Press Release the European Parliament stated that “a clear understanding of the state of play and future prospects for EU-UK transfers of personal data is indispensable”.
The report provides in-depth analysis of an adequacy decision for the UK as a viable long-term solution for data flows between the U.K. and the EU, also considering possible mechanisms for data transfer in the potential absence of an adequacy decision, such as Standard Contractual Clauses, Binding Corporate Rules, codes of conduct, and certification mechanism.
In this analysis the EPRS also sheds light on adequacy concerns such as U.K. surveillance laws and practices, shortcomings of the implementation of the GDPR, weak enforcement of data protection laws, and wavering commitment to EU data protection standards.
As part of its conclusion, the EPRS stated that the European Data Protection Board’s (‘EDPB’) opinion on the draft decision, which has just been published (please see our blogpost here), will likely scrutinise the Commission’s approach and provide recommendations on next steps.
16. April 2021
In accordance with its obligation under Article 70 (1) (s) of the General Data Protection Regulation (GDPR), on April 13th, 2021, the European Data Protection Board (“EDPB”) adopted its opinions on the EU Commissions (“EC”) draft UK adequacy decision (please see our blog post). “Opinion 14/2021” is based on the GDPR and assesses both general data protection aspects and the public authority access to personal data transferred from the EEA for law enforcement and national security purposes contained in the draft adequacy decision, a topic the EC also discussed in detail. At the same time, the EDPB also issued “Opinion 15/2021” on the transfer of personal data under the Law Enforcement Directive (LED).
The EDPB notes that there is a strong alignment between the EU and the UK data protection regimes, especially in the principles relating to the processing of personal data. It expressly praises the fact that the adequacy decision is to apply for a limited period, as the EDPB also sees the danger that the UK could change its data protection laws. Andrea Jelinek, EDPB Chair, is quoted:
“The UK data protection framework is largely based on the EU data protection framework. The UK Data Protection Act 2018 further specifies the application of the GDPR in UK law, in addition to transposing the LED, as well as granting powers and imposing duties on the national data protection supervisory authority, the ICO. Therefore, the EDPB recognises that the UK has mirrored, for the most part, the GDPR and LED in its data protection framework and when analysing its law and practice, the EDPB identified many aspects to be essentially equivalent. However, whilst laws can evolve, this alignment should be maintained. So we welcome the Commission’s decision to limit the granted adequacy in time and the intention to closely monitor developments in the UK.”
But the EDPB also highlights areas of concern that need to be further monitored by the EC:
1. The immigration exemption, which restricts the rights of those data subjects affected.
2. How the transfer of personal data from the EEA to the UK could undermine EU data protection rules, for example on basis of future UK adequacy decisions.
3. Access to personal data by public authorities is given a lot of space in the opinion. For example, the Opinion analyses in detail the Investigatory Powers Act 2016 and related case law. The EDPB welcomes the numerous oversight and redress mechanisms in the UK but identifies a number of issues that need “further clarification and/or oversight”, namely bulk searches, independent assessment and oversight of the use of automated processing tools, and the safeguards provided under UK law when it comes to disclosure abroad, particularly with regard to the application of national security exemptions.
In summary, this EDPB opinion does not put any obstacles in the way of an adequacy decision and recognises that there are many areas where the UK and EU regimes converge. Nevertheless, it highlights very clearly that there are deficiencies, particularly in the UK’s system for monitoring national security, which need to be reviewed and kept under observation.
As for the next steps, the draft UK adequacy decisions will now be assessed by representatives of the EU Member States under the “comitology procedure“. The Commission can then adopt the draft UK adequacy decisions. A bridging period during which free data transfer to the UK is permitted even without an adequacy decision ends in June 2021 (please see our blog post).
9. April 2021
On May 28th, 2019, the Personal Data Protection Act (“PDPA”) became law in Thailand. It is the country’s very first legislation governing data protection. Originally, a one-year grace period was determined for implementation of the requirements so that companies could prepare for the prospective liabilities in order to become compliant with the PDPA. However, on May 21st, 2020, a Royal Decree extended the implementation of the PDPA’s key provisions for another year, until June 1st, 2021 (we reported). Currently, a further postponement of the PDPA’s enforcement date is being considered.
According to new Digital Economy and Society (“DES”) Minister, consideration may be given to deferring or amending the PDPA, if the public has negative views about it. The aim is to support small and medium-sized businesses affected by the legislation since most of them are still unprepared for the new obligations and have not adjusted their internal processes yet. In addition, there is an unfortunate lack of willingness among companies concerned, as deputy permanent secretary at the DES Ministry stated. These shortcomings are reflected by the fact that some associations, including the travel and automotive industries, have already requested the deferral of the PDPA’s enforcement.
Contrary to what was initially planned, the appointment of members to the Personal Data Protection Committee is also expected to be delayed further. The Committee plays a decisive role in the approval of subsidiary legislation. The drafts for this concern consent procedures, complaint reception and expert panels.
According to the current status, the PDPA needs further adjustments and necessary regulations still need to be drafted, as many issues have been raised for consultation with regard to the PDPA since it came into effect. The main priorities on which the government intends to focus are as follows:
- Supporting people’s access to innovation and technology,
- Creating an ecosystem conducive to a digital economy,
- Gearing up for digital infrastructure development, particularly 5G and smart city projects,
- Legal development and enforcement to create a trusted digital ecosystem, especially for the PDPA and issues related to electronic transactions and cybersecurity,
- Protecting the public from abuse on social media and the internet.
The DES Ministry expects that full enforcement of the PDPA will likely be delayed until the end of this year.
7. April 2021
Confidential data of 533 million Facebook users has surfaced in a forum for cybercriminals. A Facebook spokesperson told Business Insider that the data came from a leak in 2019.
The leaked data includes Facebook usernames and full name, date of birth, phone number, location and biographical information, and in some cases, the email address of the affected users. Business Insider has verified the leaked data through random sampling. Even though some of the data may be outdated, the leak poses risks if, for example, email addresses or phone numbers are used for hacking. The leak was made public by the IT security firm Hudson Rock. Their employees noticed that the data sets were offered by a bot for money in a hacking forum. The data set was then offered publicly for free and thus made accessible to everyone.
The US magazine Wired points out that Facebook is doing more to confuse than to help clarify. First, Facebook referred to an earlier security vulnerability in 2019, which we already reported. This vulnerability was patched in August last year. Later, a blog post from a Facebook product manager confirmed that it was a major security breach. However, the data had not been accessed through hacking, but rather the exploitation of a legitimate Facebook feature. In addition, the affected data was so old that GDPR and U.S. privacy laws did not apply, he said. In the summer of 2019, Facebook reached an agreement with the U.S. Federal Trade Commission (FTC) to pay a $5 billion fine for all data breaches before June 12, 2019. According to Wired, the current database is not congruent with the one at issue at the time, as the most recent Facebook ID in it is from late May 2019.
Users can check whether they are affected by the data leak via the website HaveIBeenPwned.
Ikea’s French subsidiary and several of its former executives stood trial on Monday, March 22nd, 2021, after being sued by former employees on charges of violating privacy rights by surveilling the plaintiffs, job applicants and customers.
Trade unions reported the furniture and household goods company to French authorities in 2012, accusing it of fraudulently collecting personal data and disclosing it without authorization. The subsequent criminal investigation uncovered an extensive espionage system. According to French prosecutors, the company hired a surveillance company, private investigators and even a former military operative to illegally obtain confidential information about its existing and prospective employees as well as customers. The files received contained, inter alia, criminal records and bank statements. The system has been used for years, possibly even over a decade, to identify individuals who were particularly suspicious or working against the company.
After the case caused outrage in 2012, Ikea’s main parent company fired several executives at the French branch, including the former general manager. But the extensive activity in France has again raised questions about data breaches by the company.
At Monday’s trial an employee accused the company of abuse since it had wrongly suspected him of being a bank robber because its investigative system had found prior convictions of a bank robber with the same name. Others claimed the retailer had browsed through employees’ criminal records and used unauthorized data to reveal those driving expensive cars despite low incomes or unemployment benefits. Even an assistant director who had taken a year of medical leave to recover from hepatitis C was monitored to investigate whether she had faked the severity of her illness. Illicit background checks on hundreds of job applicants were also conducted. Moreover, the system was used to track down customers seeking refunds for mismanaged orders.
One of the defendants, the former head of Ikea France’s risk management department, has testified at the hearing that EUR 530.000 to 630.000 a year had been earmarked for such investigations. The former CEOs and Chief Financial Officer as well as store managers are also on trial. In addition, four police officers are accused of handing over confidential information from police files.
Ikea France said in a statement that it takes the protection of its employees’ and customers’ data very seriously. The company added that it adopted compliance and training procedures to prevent illegal activity and changed internal policies after the criminal investigation had been initiated. But at Monday’s hearing, Ikea France’s lawyers denied a system-wide surveillance. The case was also called “a fairy tale” invented by trade union activists.
The deputy prosecutor claimed, Ikea France had illegally monitored at least 400 people and used the information to its advantage. She is asking for a fine of EUR 2.000.000 against the company, prison sentences of at least one year for two former CEOs and a private investigator, as well as fines for some store managers and police officers. A total of 15 people have been charged. The company also faces potential claims for damages from civil lawsuits filed by unions and several employees.
The trial ended on April 2nd. A verdict by a panel of judges is scheduled for June 15th.
Starting from April 1st, 2021, the French supervisory authority the Commission Nationale de l’Informatique et des Libertés (CNIL) is planning on starting its enforcement of Ad Tracker usage across the internet.
Following its Ad Tracker Guideline, the CNIL gave companies a time frame to adjust ad tracker usage and ensure compliance with the Guideline as well as the GDPR. This chance for the companies to adjust their ad tracker usage has ended on March 31st, 2021.
The new rules on cookies and ad trackers mainly revolve around the chance for the user to give active, free and informed consent. User consent for advertising cookies must be granted by a “clear and positive act”. This encompasses actions such as clicking an “I accept” button and no longer can be agreed to by simply continuing to use the website.
In addition, cookie banners must not only give the option to accept, they also have to give the option to reject. The act to reject cookie has to be as simple and easy as the act to accept cookies. Referring to “Cookie Options” is no longer a valid form of rejection, as it makes the user have to go through an extra step which may dissuade them from rejecting cookies. A valid option remains rejecting cookies by closing the Cookie Banner, but it has to be ensured that unless the cookies are indeed accepted, none but the essential cookies are activated.
Lastly, the Cookie Banner has to give a short information on the usage of the cookies. The CNIL’s Guideline allows for a more detailed information to be linked in the Cookie Banner, however companies should also give a short information in the Cookie Banner in order to be able to obtain “informed” consent.
At the beginning of March, the CNIL announced that “compliance with the rules applicable to cookies and other trackers” would be one of its three priorities for 2021, along with cybersecurity and the protection of health data. In a first act to follow that goal, the CNIL will now begin to conduct checks to ensure websites are in compliance with advertising tracker guidelines.
It is expected that companies that did not adjust their cookie and ad tracker usages will face fines according to the level of lacking compliance.
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