Tag: data protection

China issued new Draft for Personal Information Protection Law

23. November 2020

At the end of October 2020, China issued a draft for a new „Personal Information Protection Law” (PIPL). This new draft is the introduction of a comprehensive system in terms of data protection, which seems to have taken inspiration from the European General Data Protection Regulation (GDPR).

With the new draft, China’s regulations regarding data protection will be consisting of China’s Cybersecurity Law, Data Security Law (draft) and Draft PIPL. The new draft legislation contains provisions relating to issues presented by new technology and applications, all of this in around 70 articles. The fines written in the draft for non-compliance are quite high, and will bring significant impact to companies with operations in China or targeting China as a market.

The data protection principles drawn out in the draft PIPL include transparency, fairness, purpose limitation, data minimization, limited retention, data accuracy and accountability. The topics that are covered include personal information processing, the cross-border transfer of personal information, the rights of data subjects in relation to data processing, obligations of data processors, the authority in charge of personal information as well as legal liabilities.

Unlike China’s Cybersecurity Law, which provides limited extraterritorial application, the draft PIPL proposes clear and specific extraterritorial application to overseas entities and individuals that process the personal data of data subjects in China.

Further, the definition of “personal data” and “processing” under the draft PIPL are very similar to its equivalent term under the GDPR. Organizations or individuals outside China that fall into the scope of the draft PIPL are also required to set up a dedicated organization or appoint a representative in China, in addition to also report relevant information of their domestic organization or representative to Chinese regulators.

In comparison to the GDPR, the draft PIPL extends the term of “sensitive data” to also include nationality, financial accounts, as well as personal whereabouts. However, sensitive personal information is defined as information that once leaked or abused may cause damage to personal reputation or seriously endanger personal and property safety, which opens the potential for further interpretation.

The draft legislation also regulates cross-border transfers of personal information, which shall be possible if it is certified by recognized institutions, or the data processor executes a cross-border transfer agreement with the recipient located outside of China, to ensure that the processing meets the protection standard provided under the draft PIPL. Where the data processor is categorized as a critical information infrastructure operator or the volume of data processed by the data processor exceeds the level stipulated by the Cyberspace Administration of China (CAC), the cross-border transfer of personal information must pass a security assessment conducted by the CAC.

It further to keep in mind that the draft PIPL enlarges the range of penalties beyond those provided in the Cybersecurity Law, which will put a much higher pressure on liabilities for Controllers operating in China.

Currently, the period established to receive open comments on the draft legislation has ended, but the next steps have not yet been reported, and it not yet sure when the draft legislation will come into full effect.

EDPB issues guidance on data transfers following Schrems II

17. November 2020

Following the recent judgment C-311/18 (Schrems II) by the Court of Justice of the European Union (CJEU), on November 11th the European Data Protection Board (EDPB) published “Recommendations on measures that supplement transfer tools to ensure compliance with the EU level of protection of personal data”. These measures are to be considered when assessing the transfer of personal data to countries outside of the European Economic Area (EEA)(so-called third countries). These recommendations are subject to public consultation until the end of November. Complementing these recommendations, the EDPB published “Recommendations on the European Essential Guarantees for surveillance measures”. Added together both recommendations are guidelines to assess sufficient measures to meet standards of the General Data Protection Regulation (GDPR), even if data is transferred to a country lacking protection comparable to that of the GDPR.

The EDPB highlights a six steps plan to follow when checking whether a data transfer to a third country meets the standards set forth by the GDPR.

The first step is to map all transfers of personal data undertaken. Especially transfers into a third country. The transferred data must be adequate, relevant and limited to what is necessary in relation to the purpose. A major factor to consider is the storage of data in clouds. Furthermore, onwards transfer made by processors should be included. In a second step, the transfer tool used needs to be verified and matched to those is listed in Chapter V GDPR. The next step is assessing if anything in the law or practice of the third country can impinge on the effectiveness of the safeguards of the transfer tool. The before mentioned Recommendations on European Essential Guarantees are supposed to help to evaluate a third countries laws, regarding the access of data by public authorities for the purpose of surveillance.

If the conclusion is, that the third countries legislation impinges on the effectiveness of the Article 46 GDPR tool the next step is, identifying supplementary measures that are necessary to bring the level of protection of the data transfer up to EU Standards (or at least equivalence) and adopting these. Recommendations for such measures are listed in annex 2 of the EDPB Schrems II Recommendations. They may be of contractual, technical, or organizational nature. In Annex 2 the EDPB mentions seven technical cases they found and evaluates them. Five were deemed to be scenarios for which effective measures could be found. These are

1. Data storage in a third country, that does not require access to the data in the clear.
2. Transfer of pseudonymized data.
3. Encrypted data merely transiting third countries.
4. Transfer of data to by law specially protected recipients.
5. Split or multi-party processing.

Maybe even more relevant are the two scenarios the EDPB found no effective measures for and therefore deemed to not be compliant with GDPR standards.:

6. Transfer of data in the clear (to cloud services or other processors)
7. Remote access (from third countries) to data in the clear, for business purposes. Such as HR.

These two scenarios are frequently used in practice. Still, the EDPB recommends not to execute these transfers anymore.
Examples of contractual measures are the obligation to implement necessary technical measures, measures regarding transparency (requested) access by government authorities and measures to be taken against such requests. Accompanying this the European Commission published a draft regarding standard contractual clauses for transferring personal data to non-EU countries. Organizational measures such as internal policies and responsibilities regarding government interventions.

The last two steps are undertaking the formal procedural steps to adapt supplementary measures required and re-evaluating the former steps in appropriate intervals.

Even though these recommendations are not (yet) binding, companies should take a further look at these recommendations and check if their data transfers comply.

 

 

EU looking to increase Enforcement Powers over Tech Giants

24. September 2020

In an interview with The Financial Times on Sunday, EU-Commissioner Thierry Breton stated that the European Union is considering plans to increase its enforcement powers regarding tech giants.

This empowerment is supposed to include punitive measures such as forcing tech firms to break off and sell their EU operations if the dominance on the market becomes too large. It is further considered to enable the EU to be able to boot tech companies from the EU single market entirely. Breton stated these measures would of course only be used in extreme circumstances, but did not elaborate on what would qualify as extreme.

“There is a feeling from end-users of these platforms that they are too big to care,” Thierry Breton told The Financial Times. In the interview, he compared tech giants’ market power to the big banks before the financial crisis. “We need better supervision for these big platforms, as we had again in the banking system,” he stated.

In addition, the European Union is considering a rating system, in which companies would be given scores in different categories such as tax compliance, taking action against illegal content, etc. However, Breton said that it is not the intend to make companies liable for their users’ content.

Breton further said that the first drafts of the new law will be ready by the end of the year.

Once the final draft is in place, it will require approval both by the European Parliament as well as the European Council, before it can be enacted.

Apple to delay iOS 14 Ad Tracking Changes

9. September 2020

In an update from Apple on Thursday, 3rd of September 2020, it was announced that some of the plans that were supposed to be launched in the new iOS 14 update are being delayed. The new feature of iOS developers having to request permission from app users before collecting their data for ad tracking is being pushed back to the beginning of 2021.

This and other features are seen as a big step towards users’ privacy, which you can read up on in our previous blogpost, but they have been criticised by app developers and big tech giants alike.

The permission feature was supposed to change the way users’ privacy is being accessed, from the current opt-out method to an opt-in one. “When enabled, a system prompt will give users the ability to allow or reject that tracking on an app-by-app basis,” stated Apple.

However, this will be delayed until early next year, due to the fact that the changes would affect a large amount of the platforms’ publishers, which rely strongly on ad tracking revenue. Facebook criticized the changes and announced that some of their tools may lose efficiency, and hence cause problems for smaller app developers. To combat this issue, Apple said: “We want to give developers the time they need to make the necessary changes, and as a result, the requirement to use this tracking permission will go into effect early next year.”

In recent years, Apple has taken its users’ privacy more seriously, launching new adjustments to ensure their right to privacy is being integrated in their devices.

„We believe technology should protect users’ fundamental right to privacy, and that means giving users tools to understand which apps and websites may be sharing their data with other companies for advertising or advertising measurement purposes, as well as the tools to revoke permission for this tracking,” Apple emphasized.

Category: EU · GDPR · General
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Apple’s new iOS Update will enhance Privacy Features

31. August 2020

At its Worldwide Developers Conference 2020 back in June, Apple announced new privacy features coming in a future iOS 14 update for its devices. These updates, coming in the fall, are supposed to include more control of sharing location data and indicators when an app is using the microphone or camera.

The updates mean that it will be further possible to limit how much location information is shared with apps, only allowing it to share approximate data rather than the devices precise location. Apple also introduced labels for app permissions to inform people how much data an app requests, before they even download them. The feature will show people those labels in two categories, on “Data Linked To You” and “Data Used to Track You“. However, this will have to be provided by the app developers themselves, leaving grey areas open.

“For food, you have nutrition labels,” said Erik Neuenschwander, Apple’s user privacy manager. “So we thought it would be great to have something similar for apps. We’re going to require each developer to self-report their practices.”

Further, the privacy updates also incorporate the Safari browser, allowing for a report on privacy while surfing the internet through the use of a “privacy report” button. It will allow the overview of all third-party trackers through one click, and allow the user to block them directly.

Apple also moved from the opt-out standard for apps using the user’s personal data to an opt-in scheme, requiring the active consent of the users in order to allow the use of their data.

While this is a positive development for all Apple users, Facebook states that it sees issues for small developers having to face these new privacy settings.

In a blog post, Facebook said it was making a change to its own apps, which in addition to its flagship app also include WhatsApp and Instagram, that would likely spare them from having to ask iPhone users for data-tracking permissions that many advertising industry insiders believe users will refuse. Facebook also stated it was making changes due to Apple’s new privacy rules that could hurt smaller developers that use a Facebook tool for serving apps in third-party apps.

Overall, Apple’s new privacy rules are a welcomed changes for its users, handing them further control over their own personal data.

South Africa’s Data Protection Act comes into force

9. July 2020

On July 1, 2020, South Africa’s Protection of Personal Information Act 2013 finally came into effect. The Act had been in planning for the last seven years, with parts of it already published in 2014, and will fully come into effect with oversight provisions in June 2021, allowing for a 12 months period to enable companies to become compliant with the new regulations.

Due to its long planning period, most companies already have organised compliancy. On the other side, a lot of businesses haven’t taken the necessary steps yet, as they have been waiting for the final push to see if the Act would even come into effect. Full enforcement will be enacted on July 1, 2021, giving those companies a countdown to become compliant.

The initial draft made in 2013 was mainly based on the EU Data Protection Directive 95/46/EC, with some changes for stricter provisions. The partial enforcement in 2014 allowed for the establishment of an Information Regulator in 2016, which has released Guidances in light of the future enforcement of the Act.

The right to privacy has been a fundamental right since 1996, and the act aims to promote the protection of personal data for any business processing personal information in South Africa. However, different from a lot of other Data protection Regulations around the world, the South African Protection of Personal Information Act also includes protection of the juristic person, such as companies, banks, trusts, etc.

One of the bigger changes in regards to South Africa’s previous handling of protection of personal data represents the obligation to notify a data breach to the authorities and, in some cases, to the data subjects. It also includes further requirements for international data transfers, as well as finally detailing data subjects’ rights.

Zoom agrees on security and privacy measures with NY Attorney General

13. May 2020

Due to the COVID-19 pandemic, Zoom has seen an exponential surge in new users over the past two months. As we have mentioned in a previous blog post, this increase in activity highlighted a range of different issues and concerns both on the security and on the privacy side of the teleconference platform.

In light of these issues, which induced a wave of caution around the use of Zoom by a lot of companies, schools, religious institutions and governmental departments, urging to stop the use of the platform, Zoom has agreed to enhance security measures and privacy standards.

In the Agreement struck on May 7th with the New York Attorney General Laetitia James, Zoom has come to terms over several new measures it will enforce over the course of the next weeks. However, most of these enhancements have already been planned in the CEO Yang’s “90-day plan” published on April 1st, and have been slowly put into effect.

These measures include:

  • a new data security program,
  • conduction of risk assessment reviews,
  • enhancement of encryption protocols,
  • a default password for every meeting,
  • halt to sharing user data with Facebook.

In response to the Agreement being struck, Attorney General James stated: “Our lives have inexorably changed over the past two months, and while Zoom has provided an invaluable service, it unacceptably did so without critical security protections. This agreement puts protections in place so that Zoom users have control over their privacy and security, and so that workplaces, schools, religious institutions, and consumers don’t have to worry while participating in a video call.“

A day prior, Zoom was also reinstated for the use of online classes by the New York City Department of Education. In order to ensure the privacy of the students and counteract “Zoombombing”, Zoom has agreed to enhanced privacy controls for free accounts, as well as kindergarten through 12th grade education accounts. Hosts, even those with free accounts, will, by default, be able to control access to their video conferences by requiring a password or the placement of users in a digital waiting room before a meeting can be accessed.

This is not the only new addition to the controls that hosts will be able to access: they will also be able to control access to private messages in a Zoom chat, control access to email domains in a Zoom directory, decide who can share screens, and more.

Overall, Zoom stated that it was happy to have been able to reach a resolution with the Attorney General quickly. It remains to see how the measures in is implementing will hold up to the still growing audience, and how fast they can be implemented for worldwide use.

Enforcement of Brazil’s new Data Protection Law postponed due to COVID-19

8. May 2020

The Coronavirus is affecting South America, like the rest of the world, and it is spreading rapidly in its largest country: Brazil. Brazil’s Government and Legislators try to handle both the public health crisis and the economic crisis that the country is facing. Now both branches have adopted emergency measures to alleviate the effects of the virus, even impacting the enforcement of the country’s new national Data Protection Law (“Lei Geral de Proteção de Dados Pessoais” or “LGPD”).

The National Congress of Brazil only passed the LGPD in August 2018. It was originally scheduled to come into effect on 15 August 2020 (we reported). As the effects of the Coronavirus began to impact Brazilian businesses, many companies called for the postponement of the LGPD’s effective date due to the difficult economic environment and due to the fact that Brazil’s national Data Protection Authority (“ANPD”) is still not fully functional.

On 3 April 2020, the Senate of Brazil unanimously approved of the Law Bill “PL 1179/2020” which includes a provision to delay the effective date of the LGPD until 1 January 2021. Furthermore, the Bill sets forth that non-compliance with the LGPD shall not be sanctioned by the Data Protection Authorities until 1 August 2021.

The second chamber of Brazil’s National Congress, the House of Representatives, debated “PL 1179/2020” all throughout April 2020 and considered the implications of the LGPD’s postponement for the privacy rights of individuals, especially with many emergency measures on the way that were increasingly restrictive on privacy rights. A vote on “PL 1179/2020” by the House of Representatives was still pending by the end of the month.

On 29 April 2020, the President of Brazil took matters into his own hands when he issued Provisional Measure #959/2020. The measure postponed the effective date of the LGPD to 3 May 2021, without segmenting the postponement into two stages like the Senate’s Law Bill “PL 1179/2020” stipulated.

Provisional Measures issued by the President of Brazil serve as temporary law and are valid for a period of 60 days which the President may extend for another 60 days. During this time period, both chambers of the National Congress must approve of the Provisional Measure in order to become permanent law. If Congress disapproves, the measure will be invalidated.

CNIL publishes new Guidance on Teleworking

14. April 2020

The French Data Protection Authority (CNIL) has released a guidance on teleworking on April 1st, which is intended to help employers master the new working situation. In particular, it is supposed to bring clarity on the IT requirements in order to ensure a safe and well-functioning remote working environment.

In particular, the guidance touches on these following points to form a basis for coping with teleworking from an employer’s perspective:

  • It is recommended that employers formulate an IT Charter or internal regulation on how to use the teleworking systems which are to be followed by the employees,
  • Necessary measures have to be taken in case the systems have to be changed or adapted to the new situation,
  • It should be ensured that employee work stations have the minimum requirements of a firewall, anti-virus software and a tool blocking access to malicious websites,
  • To keep from being exposed on the internet and ensure security, a VPN is recommended to be put in use.

Furthermore, the CNIL has also given guidance on the cases where an organization’s services are mainly performed over the internet. In such cases, it recommended to follow a few necessary requirements in order to make sure the services can be delivered safely and smoothly:

  • Web protocols that guarantee confidentiality and authentication of the processes (such as https and sftp), and keeping them up to date,
  • Double factor authentication,
  • No access to interfaces of non-secure servers,
  • Reviewing logs of access to remotely accessible services to detect suspicious behaviors,
  • Ensuring that the used equipment follows latest security patches.

The CNIL also offered some best practices for employees to follow in cases of working remotely, to give both sides pointers on how to deal with the changing situation.

Specifically, employees are being recommended to ensure their WIFI is secure by using encryption such as WPA 2 or WPA 3, along with a secure password. In addition, the CNIL recommends work equipment given by the employer, as well as using a VPN provided by the company. In the case of using own devices, a firewall and an anti-virus software are the necessary requirements to ensure security of the equipment, as well as updating the operating system and software to the newest patches.

Lastly, the CNIL warns of increased phishing attempts in relation to the COVID-19 outbreak.

Overall, the guidance and best practices the CNIL has published indicate a need for continuous and active vigilance in regards to teleworking, as well as the sharing of personal data in the process.

This guidance is in line with our past assessment of the remote working situation, which you are welcome to check out in the respective blogpost in our Series on Data Protection and Corona.

CNIL announces focus for Control Procedures in 2020

16. March 2020

The french Commission Nationale de l’Informatique et des Libertés (CNIL) has announced their focus in regards to the Control Procedures they intend to take in 2020.

Out of 300 Control Procedures done in one year, in 2020 at least 50 of those are going to be focused on three prioritized themes: health data security, geolocation and cookies compliance. The CNIL decided on prioritizing these areas because of the high relevance all of them have on the daily life of the french citizens.

Especially in regards to health data because of the sensitive nature of the data collected, as well as geological data, due to the never ending new solutions to transportation or enhancements to daily life, it is important to keep an eye on the scope of the data processing and the private sphere which is affected.

Regarding cookies and other tracers, CNIL continues to underline the importance in regards to profiled advertisement. On top of the planned Control Procedures, the CNIL intends to publish a recommendation in the spring of 2020 with regards to cookies. It will keep an eye on the implementation of the recommendation, and give companies a 6 months period to adjust and implement them.

The CNIL also stated that in addition they will continue to work together with other national Data Protection Authorities, in order to ensure the regulation of transnational data processing.

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