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.
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.
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.
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.”
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.
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.
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.
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.
7. April 2016
The Council of the European Union announced that the process for adopting the GDPR will be accelerated. This is due to the the fact that the General Secretariat of the Council sent a Note requesting the Permanent Representatives Committee to use the so called “written procedure” in order to adopt the Council’s position. Initially a vote on the Council’s position was planned on 21st April 2016, when the next Justice and Home Affairs Council takes place. However, the Council has decided to accelerate the process for adoption by using the “written procedure”. Proceding this way is an exemption as it does not include public deliberation.
The mentioned Note states that the “need to send the Council’s position at first reading to the European Parliament during its April I plenary, will only be possible to adopt the Council’s position at first reading within this very short deadline via the written procedure, which would be launched on Thursday 7th April 2016 and would end on Friday 8th April 2016, at midday. Delegations’ attention is drawn to the exceptionally short duration of this written procedure.”
When looking on the next steps it is to say that once the Council’s position is adopted, it will then be sent to the European Parliament. The European Parliament will go on by acknowledging the receipt during the next plenary session taking place on 11-13 April 2016. Afterwards, the Parliament’s Civil Liberties Committee will vote on a recommendation to Parliament regarding the Council’s position. These recommendation will then be used as a foundation for the Parliament’s adoption of the GDPR in one of the following plenary meetings.
6. April 2016
WhatsApp is an online messaging service, that has grown into one of the most used applications, owned by Facebook. Messages, phone calls and photos are exchanged via WhatsApp by more than a billion people. Therefore, only Facebook itself operates a larger communications network.
This week was revealed that the company has added end-to-end encryption to every form of communication developed by a team of 15 of out of 50 overall employees for any person using the latest version of WhatsApp, so that all messages, phone calls and photos are encrypted. This regards any smartphone, from iPhones to Android phones to Windows phones. By encrypting end-to-end not even WhatsApp’s employees have access to the data sent through this communication network. This means that WhatsApp will not be able to comply with a court order demanding the disclosure of the content of messages, phone calls and photos sent by using its service.
This way of encryption has generally led to a public discussion between technology companies and governments. For example, in the UK, politicians have proposed banning this encryption so that companies should be forced to install “backdoors” in order to be able to disclose the content only to law enforcement.
