India’s Supreme Court rules that privacy is a fundamental right

29. August 2017

In the past few years, India’s government aimed to build up the world’s largest biometric database, named Aadhaar. So far, more than a billion citizens have been registered to the identity programme, whereby eye scans and fingerprints are collected. In order to make sure that all citizens registered to the Aadhaar database, the government restricted access to government services for those who are not part of the database.

Critics expressed concerns about the implications of possible future data breaches, jeopardising the privacy of more than a billion Indians. It was also feared that the Indian government could use the database for surveillance purposes.

Last week, a nine-member panel of India’s Supreme Court ruled that a right to privacy is a part of article 21 of the Constitution of India. This historic ruling could result in the abrogation of the mandatory enrolment to the Aadhaar database. Furthermore, any future laws aiming at restricting privacy, will now “have to be tested on the touchstone of article 21”. It remains to be seen whether the ruling will also have lasting effects on the civil liberties and the daily life of Indians.

Cifas: Identity theft at epidemic level

24. August 2017

According to BBC.com, the fraud prevention group Cifas warns that cases of identity theft increase year by year in the UK. In the first six months of the year Cifas already recorded 89,000 cases, which is a 5% increase in relation to the same period of the last year and a new record.

BBC.com further reports that Simon Dukes, chief executive of Cifas, said: “We have seen identity fraud attempts increase year on year, now reaching epidemic levels, with identities being stolen at a rate of almost 500 a day.” It is further explained that “these frauds are taking place almost exclusively online. The vast amounts of personal data that is available either online or through data breaches is only making it easier for the fraudster.”

Fraudsters are targeting data such as the name, address, date of birth or bank account details. They gather these data by hacking computers, stealing mails or buying data through the “dark web”. Also, victims are tricked into giving away their personal data. However, most of the thefts, about 80%, are committed online and mostly without notice of the victims. The crimes often come to light, when for example the first random bill arrives.

The victims of impersonation were breaked down into categories of ages, showing that it is most likely that people in their 30s and 40s are victims of identity thefts, since about this group of people often a high amount of information was gathered online. It is further reported that according to Cifas, the amount of cases fell for the group of over-60s, while the group of 21 to 30 years old showed the biggest increase of cases.

Roskomnadzor publishes privacy guidelines for data operator

17. August 2017

The Russian data protection authority Roskomnadzor published guidelines for data operators on the drafting of privacy policies on July 31.

Russian data operators must adopt a privacy policy to comply with Russian data protection law. The policy must describe how they process of personal data. This policy shall be published online if personal data is collected online. In case of collecting personal data offline an unrestricted access to the policy has to be guaranteed.

The policy shall be detailed so that data subjects are aware of all potential actions.

According to the guidance the policy must contain in general the following information:

  • main purpose of the policy and definitions used in the policy
  • main rights and obligations of the data operator and data subjects,
  • purposes for personal data processing,
  • legal grounds for personal data processing
  • volume and categories of personal data processed. For each category of data subjects, Roskomnadzor recommends that a company list all the personal data it collects and processes tied to specific purposes and indicate all cases of processing special categories of personal data or biometric data,
  • procedures and conditions for personal data processing,
  • procedures for updating, correcting, deleting, or destroying personal data and
  • procedures for responding to data subjects’ requests.

In addition the guideline regulates the case of sharing personal data with third parties. The data operator has to explain the taken measures to protect personal data and beside the purpose of sharing, the volume of personal data to be transferred, the data use restrictions and security measures. Furthermore the name and the address of the the third party need to be published in the policy.

Finally it shall be mentioned that the guidance is recommendatory nature and non-binding. Nonetheless data operators should strongly take these recommendations into account if they develop new privacy policies to be compliant with the Personal Data Law.

TalkTalk fined by ICO

11. August 2017

According to a Press Release from the Information Commissioner’s Office (“ICO”), the TalkTalk Telecom Group (“TalkTalk”) was fined for violating the UK Data Protection Act. More than 21.000 customers could be the victims of scams and frauds.

As a result of an investigation in 2014, the ICO fined TalkTalk 100.000 GPB by failing to protect customer data. The breach was possible because of a lack of security of a portal holding a huge amount of customer data. One company with access to the portal was Wipro, an IT services company in India. 40 employees of Wipro had access to personal data of between 25.000 to 50.000 customers. During the investigation, three accounts were found that had unauthorized access to this portal. The ICO determined that TalkTalk did not ensure the security of the customer data held in this portal. There were different reasons:

  • The portal was accessible via any device. There was no restriction on which devices the portal can be accessed.
  • The search engine of the portal allowed wildcards searches (with * as a placeholder to get many results).
  • The search engine allowed up to 500 results per search.

The access rights were too wide-ranging regarding the high amount of customer data held by the portal. The ICO fined TalkTalk because it breached one of the principles of the UK Data Protection Act by not implementing enough technical and organizational measures.

Category: Personal Data · UK
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Nationwide: multistate data breach investigation settled by paying $ 5.5 million

According to Hunton & Williams, on the 9th of August, Nationwide Mutual Insurance Company (“Nationwide”), agreed to pay $ 5.5 million to settle a data breach investigation by attorneys general from 32 states concerning a data breach that exposed personal data of about 1.2 million individuals. They also published the settlement.

In October 2012, Nationwide and its wholly-owned subsidiary Allied Property & Cansualty Insurance Company (“Allied”) experienced a data breach that led to an unauthorized access to and exfiltration of certain personal data of their customers, as well as other consumers. Since Nationwide and Allied provide customers with insurance quotes, inter alia the following personal data are collected: full name, Social Security number, date of birth or credit-related score.

The attorneys general alleged that the data breach occurred when hackers exploited a vulnerability in the companies’ web application hosting software. Further, it is alleged that, after the data was exfiltrated, Nationwide and Allied applied a software patch, that was not previously applied, to address the vulnerability.

Besides the $ 5.5 million Nationwide and Allied agreed to implement a series of steps to update its security practices. Besides other measures that are listed in the settlement a technology officer shall be appointed that should manage and monitor security and software updates to ensure that future patches and other security updates are applied.

India: Is the “right to privacy” a fundamental human right?

4. August 2017

The Indian Supreme Court has to decide if the “right to privacy” should be considered a fundamental human right.

According to the Wire, a bench of nine justices was set up after several petitions that challenged the constitutional validity of India’s Aadhaar scheme, with some petitioners claiming that the biometric authentication system is a violation of the privacy of Indians. The bench examined over the last two weeks the nature of privacy as a right in context of two earlier judgements. Back in 1954 and 1962 these judgements came to the conclusion that the right to privacy was not a fundamental right. Legal experts expect the judgement in the last week of August.

Times of India reports that the Supreme Court outlined a three-tier graded approach to examine the question whether privacy can be considered as a fundamental right. The Bench therefore configures privacy into three zones. As stated by a justice of the Bench, the first zone could be the most intimate zone concerning for example marriage or sexuality. The state should only intrude this zone under “extraordinary circumstances provided it met stringent norms”.

The second zone would be the private zone. This zone could involve personal data like the use of credit card or the income tax declaration. In this zone, “sharing of personal data by an individual will be used only for the purpose for which it is shared by an individual”, it is further said.

The third zone would be the public zone. This zone should require only minimal regulation. However, that should not mean that the individual would lose the right of privacy, but “retain his privacy to body and mind”.

 

Facial recognition on the rise

At Australian airports new technology will be rolled out which will help processing passengers by means of facial recognition. Peter Dutton, Minister for Immigration and Border Protection, said that 105 smart gates will be provided for this purpose as part of a AU$22.5 million contract with Vision-Box Australia. Vision-Box has already implemented a facial recognition system at New York’s JFK airport.

Australian government’s goal is to automatize 90 % of air traveller processing by 2020. After the implementation, passengers will not have to show their passports, but will be processed by biometric recognition of their faces, irises and/or fingerprints.

Meanwhile, at Berlin’s Südkreuz station the testing of a facial recognition system began. The software can recognise known suspects and alert the police. Currently, the software is only scanning the faces of 250 volunteers. Thomas de Maizière, the German interior minister, aims at improving security in Germany after several terrorist attacks.

However, concerns were raised over this technology by privacy activists as well as by well-respected lawyers. They fear that Germany could head towards a surveillance state. Besides, it is stated there was no constitutional basis for the use of these methods.

Article 29 WP releases opinion on data processing at work

11. July 2017

The Article 29 Working Party (WP) has released their opinion on data processing at work on the 8th of June 2017. The Opinion is meant as an amendment to the previous released documents on the surveillance of electronic communications (WP 55) and processing personal data in employment context (WP 48). This update should face the fast-changing technologies, the new forms of processing and the fading boundaries between home and work. It not only covers the Data Protection Directive but also the new rules in the General Data Protection Regulation that goes into effect on 25th of May 2018.

Therefore they listed nine different scenarios in the employment context where data processing can lead to a lack in data protection. These scenarios are data processing in the recruitment process and in-employment screening (especially by using social media platforms), using monitoring tools for information and communication technologies (ICT), usage at home/remote, using monitoring for time and attendance, use of video monitoring, use of vehicles by employees, the disclosure of data to third parties and the international transfer of employee data.

The Article 29 WP also pointed out the main risk for the fundamental rights of the employees. New technologies allow the employer tracking over a long time and nearly everywhere in a less visible way. This can result into chilling effects on the rights of employees because they think of a constant supervision.

As a highlight the Article 29 WP gives the following recommendations for dealing with data processing in the employment context:

  • only collect the data legitimate for the purpose and only with processing taking place under appropriate conditions,
  • consent is highly unlike to be a legal base for data processing, because of the imbalance in power between the employer and the employee,
  • track the location of employees only where it is strictly necessary,
  • communicate every monitoring to your employees effectively,
  • do a proportionality check prior the deployment of any monitoring tool,
  • be more concerned with prevention than with detection,
  • keep in mind data minimization; only process the data you really need to,
  • create privacy spaces for users,
  • on cloud uses: Ensure an adequate level of protection on every international transfer of employee data.

Many companies have not started preparing for the GDPR

27. June 2017

The General Data Protection Regulation (GDPR) will be applicable to all EU Member States from May 25th 2018. The GDPR will not just apply to EU companies, but also to non-EU companies that have dealings with data subjects that are located in the EU (see also Art. 3 (2) GDPR).

Companies, in specific, that fall under the regulations of the GDPR should be prepared to fulfil the requirements that are stated by the GDPR, due to the risk of an imposition of a fine if they fail to comply with the GDPR. This is in particular relevant since the fines for infringements of the GDPR have increased significantly (see also Art. 83 GDPR).

The implementations that companies have to make to comply with the GDPR involve high expenses and probably will be more time consuming than expected in most cases, depending on the size and complexity of the company. Especially the time factor has to be considered since it is less than a year left until May 2018.

However, according to a report of TrustArc, 61 % of the asked companies have not yet started with the implementation of their GDPR compliance programs.

TrustArc interviewed 204 privacy professionals from companies of different industries that will fall under the GDPR. These companies were divided into three categories based on the count of their employees: 500-1000 employees, 1000-5000 employees and more than 5000 employees.

23 % stated that they have started with the necessary implementations, 11 % that the implementations are driven forward and just 4 % stated that they had finished all necessary implementations to reach GDPR compliance.

The Report also shows the cost that companies expect to be need to implement what will be necessary to comply with the GDPR. Overall, 83% expect that their expenses will be in the six figures.

European Commission: €110 million fine for Facebook

23. May 2017

According to an European Commission Press release from the 18 May 2017, Facebook was fined €110 million by the Commission for providing misleading information about the takeover of WhatsApp.

Facebook acquired WhatsApp in 2014. Back then Facebook informed the European Commission that it would not be able to establish reliable automated matching between the users of Facebook and WhatsApp. Two years later, in August 2016, Facebook announced an update to its terms of service and privacy policy. The update included the possibility to link phone numbers of WhatsApp users with their respective Facebook accounts.

According to the Press release and contrary to the statement given by Facebook during the merger process 2014, the Commission has found that the possibility of automated linking of Facebook and WhatsApp users already existed in 2014.

Commissioner Margrethe Vestager, who is in charge of the competition policy, said: “Today’s decision sends a clear signal to companies that they must comply with all aspects of EU merger rules, including the obligation to provide correct information.”

It is the first time that the European Commission has imposed a fine on a company for the provision of misleading information since the Merger Regulation came into force in 2004.

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