UK Information Commissioner gives opinion on EU-U.S. Privacy Shield

25. April 2016

The UK Information Commissioner, Christopher Graham, issued last week his opinion about the EU-U.S. Privacy Shield. He criticized the reluctance of the U.S. authorities to make amendments on the agreement. On the 13th April, the Article 29WP also called American negotiators for clarification of some aspects of the Privacy Shield such as data transfers, the institution of the ombudsman or the justification for the collection of personal data, etc. Graham also remarked that the ECJ will also ask for clarification regarding these points and invited both American and European authorities to provide the required clarification.

On the other side, Stefan Selig, U.S. undersecretary of commerce for international trade, affirmed that the opinion issued by the EU Data Protection Authorities will be revised carefully. However, he believes that the current draft of the EU-U.S. Privacy Shield achieves a balance of interests for both parties.

Graham also remarks the importance of reaching an agreement regarding international data transfers, so that the English DPA (ICO) can focus on providing support to organizations regarding the implementation of the GDPR that will be effective on the first half of 2018.

EU Parliament approved on Passenger Name Record

22. April 2016

Due to the fact that security specialists and the EU member states have pushed for European rules on Passenger Name Record (PNR) for years, the latest acts of terror in Europe just increased these requestes. These demands have been met by EU Parliament as it approved the bill concerning a more systematic collection, use and retention of data on international airline passengers on 14 April 2016.

However, a first attempt on implementing rules on the use of PNR was rejected in 2013 due to concerns about the necessity and scope of the proposal and its compliance with fundamental rights. The civil liberties committee then discussed a new draft text on PNR on 26 February 2015 and on 15 July 2015 this text was adopted. Safeguards were included ensuring the lawfulness of any use of the data, so that the data should only be used in order to fight terrorism and serious international crime. After negotianting EU Parliament and the Council reached a provisional deal on 4 December 2015. During a plenary session on 14 April 2016 the text was then approved by 461 votes to 179, with nine absentions.

Tech coalitions write open letter over US bill banning encryption

21. April 2016

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

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

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

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

 

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About 28,000 data protection officers are requiered to be appointed under the GDPR

20. April 2016

Article 37 of the GDPR states that data controllers and processors of personal information are required to appoint a data protection officer in cace:

(a)  The processing is carried out by a public authority or body (except courts); or

(b)  The controller’s or processor’s “core activities” require “regular and systematic monitoring of data subjects on a large scale” or consist of “processing on a large scale of special categories of data.”

A data protection officer is able to be appointed by a group, public authorities or individual legal entity. Article 39 of the GDPR requires that a data protection officer is “designated on the basis of professional qualities and, in particular, expert knowledge of data protection law and practices”. Compliance, trainings on how to process data according to the law and the communication with the national authorities are part of the task area of a data protection officer.

Therefore, due to the GDPR organizations worldwide have to prepare for a number of new requirements in terms of data collection and processing. One particular requirement is that certain organizations will now have to appoint a data protection officer according to Arcticle 37 of the GDPR, as mentioned above. Research indicates the number of data protection officers required to be appointed under the GDPR will be about 28,000. This is an estimate based on official statistics regarding both public and private sector data controllers in the EU and taking further assumptions into account such assuming that US companies obliged to comply with the GDPR would also require a data protection officer, and of those companies who self-certified under Safe Harbor are likely included in that number.

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

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

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

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Parliament finally approves of GDPR

15. April 2016

The European Union will have a new data protection regulation. After four years of ups and downs, the European Parliament came to an agreement on thursday in a plenary vote of support for the GDPR and the companion Data Protection Directive for policing and the judiciary.

The German MEP Jan Philipp Albrecht commented that “the General Data Protection Regulation makes a high, uniform level of data protection throughout the EU a reality,” and added that, “the regulation will also create clarity for businesses by establishing a single law across the EU. The new law creates confidence, legal certainty, and fairer competition.”

In order to give businesses and organizations time to adjust their compliance and data protection issues, the new GDPR will officially become effective in two years. The GDPR includes provisions such as the impositions of a clear and affirmative consent for processing personal data and a clear privacy notice. Further, there will be obligations concerning the breach of notification and the implementation of potential fines up to 4 percent of a company’s global annual turnover.

European Commission First Vice-President Frans Timmermans, Vice-President of the Digital Single Market Andrus Ansip, and Commissioner for Justice, Consumers and Gender Equality Vera Jourova welcomed the new regulation as it will “help stimulate the Digital Single Market in the EU by fostering trust in online services by consumers and legal certainty for businesses based on clear and uniform rules.” They went on commenting the Data Protection Directive for police and the judiciary, saying that it “ensures a high level of data protection while improving cooperation in the fight against terrorism and other serious crime across Europe.”

Therefore, in order to build public awareness of the reforms “the EU will launch public awareness-raising campaigns about the new data protection rules” Albrecht and Jourova, along with MEP Marju Lauristin commented and added that “the European Commission will work closely with member states, the national data protection authorities, and stakeholders to ensure the rules will be applied uniformly across the EU.”

Article 29 WP releases its opinion on the EU-U.S. Privacy Shield

14. April 2016

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

Background

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

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

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

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

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

What next?

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

Council of Ministers votes on latest draft of GDPR

12. April 2016

In the past week, the EU national governments endorsed the latest draft of the European Union’s General Data Protection Regulation (GDPR) in a vote held by the Council of Ministers. It is now expected that the European Parliament will approve the GDPR within this week, along with a new Data Protection Directive for police and criminal justice authorities.

According to a press release of the Council of Ministers, which was published shortly after the vote last week, one of the main benefits of the Regulation is the fact that it provides for a single set of rules, which are valid across the EU and applicable both to European and non-European companies offering online services in the EU. Thus, the regulation provides the framework for increased cooperation between EU member states to ensure coherent application of the data protection rules.

The regulation follows a risk-based approach, which means that data controllers will be able to implement measures according to the risk involved in the data processing operations they perform. This will likely reduce administrative costs, as companies will not be forced to implement a “one-size-fits all“ solution.

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

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

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

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

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

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

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

Settlement in lawsuit against Sony Pictures Entertainment

11. April 2016

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

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

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

 

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