24. September 2019
The French data protection authority “CNIL” updated its existing catalogue of questions and answers (“FAQs”) to inform about the impact of a no-deal brexit and how controllers should prepare for the transfer of data from the EU to the UK.
As things stand, the United Kingdom will leave the European Union on 1st of November 2019. The UK will then be considered a third country for the purposes of the European General Data Protection Regulation (“GDPR”). For this reason, after the exit, data transfer mechanisms become necessary to transfer personal data from the EU to the UK.
The FAQs recommend five steps that entities should take when transferring data to a controller or processor in the UK to ensure compliance with GDPR:
1. Identify processing activities that involve the transfer of personal data to the United Kingdom.
2. Determine the most appropriate transfer mechanism to implement for these processing activities.
3. Implement the chosen transfer mechanism so that it is applicable and effective as of November 1, 2019.
4. Update your internal documents to include transfers to the United Kingdom as of November 1, 2019.
5. If necessary, update relevant privacy notices to indicate the existence of transfers of data outside the EU and EEA where the United Kingdom is concerned.
CNIL also discusses the GDPR-compliant data transfer mechanisms (e.g., standard contractual clauses, binding corporate rules, codes of conduct) and points out that, whichever one is chosen, it must take effect on 1st of November. If controllers should choose a derogation admissible according to GDPR, CNIL stresses that this must strictly comply with the requirements of Art. 49 GDPR.
20. September 2019
As reported by the US investment platform ProPublica and the German broadcaster Bayerischer Rundfunk, millions of highly sensitive patient data were discovered freely accessible on the Internet.
Among the data sets are high-resolution X-ray images, breast cancer screenings, CT scans and other medical images. Most of them are provided with personal data such as birth dates, names and information about their doctor and their medical treatment. The data could be found for years on unprotected servers.
In Germany, around 13,000 data records are affected, and more than 16 million worldwide, including more than 5 million patients in the USA.
When X-ray or MRI images of patients are taken, they are stored on “Picture Archiving Communication System” (PACS) servers. If these servers are not sufficiently secured, it is easy to access the data. In 2016, Oleg Pianykh, Professor of Radiology at Harvard Medical School, published a study on unsecured PACS servers. He was able to locate more than 2700 open systems, but the study did not prompt anyone in the industry to act.
The German Federal Ministry for Information Security has now informed authorities in 46 countries. Now it remains to be seen how they will react to the incident.
19. September 2019
On Monday, 16th of September, it has been revealed that the detailed information of potencially every citizen of Ecuador has been freely available online as part of a massive data breach resulting from an incorrectly configured database. The leak, detected by security researchers of vpnMentor during a routine large-scale web mapping project, exposed more than 20 million individuals, inclusing close to 7 million children, giving access to 18 GB of data.
In effect Ecuador counts close to 17 million citizens, making it possible that almost every citizen has had some data compromised. This also includes government officials, high profile persons like Julian Assange, and the Ecuadorian President.
In their report, vpnMentor designates that it was able to track the server back to its owner, an ecuadorian company named Novaestrat, which is a consulting company providing services in data analytics, strategic marketing and software development.
It also mentioned several examples of the entries it had found in the database, including the types of data that were leaked. Those came down to full names, gender and birth information, home and e-mail adresses, telephone numbers, financial information, family members and employment information.
Access to the data has been cut off by the ecuadorian Computer Emergency Response Team, but the highly private and sensitive nature of the leaked information could create long lasting privacy issues for the citizens of the country.
In a twitter post, Telecommunications Minister Andres Michelena announced that the data protection bill, which had been in the works for months, will be submitted to the National Assembly within 72 hours. On top of that, an investigation into the possibility of a violation of personal privacy by Novaestrat has been opened.
12. September 2019
On 4 September, the High Court of England and Wales dismissed a challenge to the police’s use of Automated Facial Recognition Technology (“AFR”). The court ruled that the use of AFR was proportionate and necessary to meet the legal obligations of the police.
The pilot project AFR Locate was used for certain events and public places when the commission of crimes was likely. Up to 50 faces per second can be detected. The faces are then compared by biometric data analysis with wanted persons registered in police databases. If no match is found the images are deleted immediately and automatically.
An individual has initiated a judicial review process after he has not been identified as a wanted person, but is likely to have been captured by AFR Locate. He considered this to be illegal, in particular due to a violation of the right to respect for private and family life under Article 8 of the European Convention on Human Rights (“ECHR”) and data protection law in the United Kingdom. In his view, the police did not respect the data protection principles. In particular, that approach would violate the principle of Article 35 of the Data Protection Act 2018 (“DPA 2018”), which requires the processing of personal data for law enforcement purposes to be lawful and fair. He also pointed out that the police had failed to carry out an adequate data protection impact assessment (“DPIA”).
The Court stated that the use of AFR has affected a person’s rights under Article 8 of the ECHR and that this type of biometric data has a private character in itself. Despite the fact that the images were erased immediately, this procedure constituted an interference with Article 8 of the ECHR, since it suffices that the data is temporarily stored.
Nevertheless, the Court found that the police’s action was in accordance with the law, as it falls within the police’s public law powers to prevent and detect criminal offences. The Court also found that the use of the AFR system is proportionate and that the technology can be used openly, transparently and with considerable public commitment, thus fulfilling all existing criteria. It was only used for a limited period, for a specific purpose and published before it was used (e.g. on Facebook and Twitter).
With regard to data protection law, the Court considers that the images of individuals captured constitute personal data, even if they do not correspond to the lists of persons sought, because the technology has singled them out and distinguished them from others. Nevertheless, the Court held that there was no violation of data protection principles, for the same reasons on which it denied a violation of Art. 8 ECHR. The Court found that the processing fulfilled the conditions of legality and fairness and was necessary for the legitimate interest of the police in the prevention and detection of criminal offences, as required by their public service obligations. The requirement of Sec. 35 (5) DPA 2018 that the processing is absolutely necessary was fulfilled, as was the requirement that the processing is necessary for the exercise of the functions of the police.
The last requirement under Sec. 35 (5) of the DPA 2018 is that a suitable policy document is available to regulate the processing. The Court considered the relevant policy document in this case to be short and incomplete. Nevertheless, it refused to give a judgment as to whether the document was adequate and stated that it would leave that judgment to the Information Commissioner Office (“ICO”), as it would publish more detailed guidelines.
Finally, the Court found that the impact assessment carried out by the police was sufficient to meet the requirements of Sec. 64 of DPA 2018.
The ICO stated that it would take into account the High Court ruling when finalising its recommendations and guidelines for the use of live face recognition systems.
11. September 2019
Initially reported by the Financial Times, London’s King’s Cross station is under crossfire for making use of a live face-scanning system across its 67 acres large site. Developed by Argent, it was confirmed that the system has been used to ensure public safety, being part of a number of detection and tracking methods used in terms of surveillance at the famous train station. While the site is privately owned, it is widely used by the public and houses various shops, cafes, restaurants, as well as office spaces with tenants like, for example, Google.
The controversy behind the technology and its legality stems from the fact that it records everyone in its parameters without their consent, analyzing their faces and compairing them to a database of wanted criminals, suspects and persons of interest. While Developer Argent defended the technology, it has not yet explained what the system is, how it is used and how long it has been in place.
A day before the ICO launched its investigation, a letter from King’s Cross Chief Executive Robert Evans reached Mayor of London Sadiq Khan, explaining the matching of the technology against a watchlist of flagged individuals. In effect, if footage is unmatched, it is blurred out and deleted. In case of a match, it is only shared with law enforcement. The Metropolitan Police Service has stated that they have supplied images for a database to carry out facial scans to system, though it claims to not have done so since March, 2018.
Despite the explanation and the distinct statements that the software is abiding by England’s data protection laws, the Information Commissioner’s Office (ICO) has launched an investigation into the technology and its use in the private sector. Businesses would need to explicitly demonstrate that the use of such surveillance technology is strictly necessary and proportionate for their legitimate interests and public safety. In her statement, Information Commissioner Elizabeth Denham further said that she is deeply concerned, since “scanning people’s faces as they lawfully go about their daily lives, in order to identify them, is a potential threat to privacy that should concern us all,” especially if its being done without their knowledge.
The controversy has sparked a demand for a law about facial recognition, igniting a dialogue about new technologies and future-proofing against the yet unknown privacy issues they may cause.
5. September 2019
A database with more than 400 million phone numbers of Facebook users was publicly accessible online. Most of the records belong to American Facebook users (133 million), 50 million to users from Vietnam and 18 million to users from the UK. In each case the phone number was connected with the user’s Facebook ID, a long, unique and public number associated with the account.
As a result of the publicly accessible data the concerned users are put at risk for spam calls and SIM-swapping attacks. Furthermore, the passwords of the accounts can be changed so that the user cannot access his own Facebook profile.
IT-expert Sanyam Jain found the database and contacted TechCrunch after being unable to find the owner. TechCrunch verified the authenticity of the found data and then tried to determine the owner – without success. So they contacted the web host who turned the site down.
The database is not accessible at the moment, but it is still unknown how the data was collected and who uploaded the information. It is possible, that the ability to find friends by phone number on Facebook was misused to create the database. This feature was disabled by Facebook in April 2018. In connection to this new infringement, Facebook just announced that there is no evidence for a hacking attack.
Update: on Friday September 6th 2019 a copy of the database appeared on the internet, so that the data is currently publicly accessible again.
3. September 2019
Portugal’s new data protection law “Lei de Execução do Regulamento Geral sobre a Proteção de Dados” was finally published and entered into force last month, following its approval in June. This makes Portugal one of the last EU states to implement the GDPR regulations in national law. The new law regulates among other things the following points:
Consent:
Persons aged 13 and over can give effective consent. In an employment relationship, an employee’s consent is considered a legitimate legal basis only if it leads to a legal or economic advantage for the employee or if it is necessary to fulfil a contract.
Data Protection Officer:
In addition to the tasks defined in the GDPR, the Data Protection Officer in Portugal must ensure that audits are carried out, that Controllers are aware of the importance of early detection of data protection incidents and the relations with the Data Subjects regarding data protection.
Video surveillance:
The law stipulates that in some areas, such as bathrooms or changing rooms, video surveillance is prohibited. ATMs may also only be filmed in such a way that the customer’s keyboard and the associated PIN entry cannot be seen.
Retention periods:
If no retention period is specified, the duration necessary to achieve the purpose shall be decisive. However, the right to be forgotten can only be exercised at the end of the retention period. In contrast to the GDPR the Portuguese data protection law permits a storage of certain dates for always. This applies only to data about the social security amounts for the retirement if suitable technical and organizational measures are taken.
30. August 2019
The entry into force of the General Data Protection Regulation (GDPR) was a milestone in data protection law and attracted worldwide attention. In the daily business, interpretation issues continue to determine the work of all responsible persons for data protection. Since 8 years datenschutzticker.de, the blog of KINAST Attorneys at Law, has been reporting on practical questions regarding data protection. After approximately 2.000 blog posts and countless feedback from the readership, datenschutzticker.de is now going live.
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datenschutzticker.live offers a platform for exchange between authorities and companies. We are pleased to have the Federal Commissioner for Data Protection and Freedom of Information, Prof. Ulrich Kelber, as well as the State Data Protection Commissioner for Hesse, Prof. Michael Ronellenfitsch and Saxony-Anhalt, Dr. Harald von Bose, as speakers for our event. Top-class speakers from the corporate side will also give lectures on data protection issues from their corporate practice.
Register today for datenschutzticker.live. The event will be in German language and take place all day on Wednesday, 30th October 2019 in the Wolkenburg in Cologne (city centre, near the main railway station). datenschutzticker.live is open to everyone and the participation is free of charge and including catering.
Due to the limitation of capacities we ask you to register by email at veranstaltung@datenschutzticker.live , stating your name and, if you are not coming as a private participant, your organisation. We look forward to meeting you live!
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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.
27. August 2019
While other browser developers are critical of tracking, Google wants to introduce new standards to continue enabling personalized advertising. With the implementation of the “Privacy Sandbox” and the introduction of a new identity management system, the developer of the Chrome browser wants to bring browsers to an uniform level in processing of user data and protect the privacy of users more effectively.
The suggestions are the first steps of the privacy initiative announced by Google in May. Google has published five ideas. For example, browsers are to manage a “Privacy Budget” that gives websites limited access to user data so that users can be sorted into an advertising target group without being personally identified. Google also plans to set up central identity service providers that offer limited access to user data via an application programming interface (API) and inform users about the information they have passed on.
Measures like Apple’s, which have introduced Intelligent Tracking Protection, are not in Google’s interest, as Google generates much of its revenue from personalized advertising. In a blog post, Google also said that blocking cookies promotes non-transparent techniques such as fingerprinting. Moreover, without the ability to display personalized advertising, the future of publishers would be jeopardized. Their costs are covered by advertising. Recent studies have shown, that the financing of publishers decreases by an average of 52% if advertising loses relevance due to the removal of cookies.
Based on these ideas, the discussion among developers about the future of web browsers and how to deal with users’ privacy should now begin. Google’s long-term goal is a standardization process to which all major browser developers should adhere. So far, Google has had only limited success with similar initiatives.
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