Tag: EDPB

EDPB extends consultation period for suplementary measures drafts in 42nd Plenary Session

26. November 2020

On November 19th, the European Data Protection Board (EDPB) met for its 42nd plenary session. During the session, the EDPB presented two new Standard Contractual Clauses (SCCs) drafts, which have been developed after the Schrems II decision to give more legal certainty to data transfers, as well as extended the public consultation period on transfer mechanisms until the 21st of December 2020.

The drafts presented by the EDPB include one set of SCCs for contracts between controllers and processors, and another one for data transfers outside the EU.

The first are completely new, and have been developed by the Commission in accordance with Art. 28 (7) GDPR and Art. 29 (7) of Regulation 2018/1725. This set of SCCs is intended for EU-wide application, and the Commission drafted them with the aim to ensure full harmonisation and legal certainty across the EU for contracts between controllers and processors.

The second set of drafts is a new take on the SCCs as transfer mechanisms according to Art. 46 (2) (c) GDPR. These SCCs will replace the existing SCCs for international transfers that were adopted on the basis of Directive 95/46 and needed to be updated to bring them in line with GDPR requirements, as well as with the CJEU’s ‘Schrems II’ ruling, and to better reflect the widespread use of new and more complex processing operations often involving multiple data importers and exporters.

The Commission requested a joint opinion from the EDPB and the EDPS on the implementation on both sets of SCCs.

During the plenary, the Members of the Board also decided to extend the deadline for the public consultation on the recommendations on measures that supplement transfer tools to ensure compliance with EU level of protection of personal data from, originally, 30th November 2020 until 21st December 2020.

The EDPB further adopted a statement on the future ePrivacy Regulation and the future role of supervisory authorities and the EDPB in this context during the plenary. The EDPB underlines that many of the provisions of the future ePrivacy Regulation relate to the processing of personal data and that many provisions of the GDPR and the ePrivacy Regulation are closely intertwined. The most efficient way to have consistent interpretation and enforcement of both sets of rules would therefore be fulfilled if the enforcement of those parts of the ePrivacy Regulation and the GDPR would be entrusted to the same authority. The EDPB further underlined the necessity to adopt the new Regulation as soon as possible.

Microsoft reacts on EDPB’s data transfer recommendations

24. November 2020

Microsoft (“MS”) is among the first companies to react to the European Data Protection Board’s data transfer recommendations (please see our article), as the tech giant announced in a blog post on November 19th. MS calls these additional safeguards “Defending Your Data” and will immediately start implementing them in contracts with public sector and enterprise customers.

In light of the Schrems II ruling by the Court of Justice of the European Union (“CJEU”) on June 16th, the EDPB issued recommendations on how to transfer data into non-EEA countries in accordance with the GDPR on November 17th (please see our article). The recommendations lay out a six-step plan on how to assess whether a data transfer is up to GDPR standards or not. These steps include mapping all data transfer, assessing a third countries legislation, assessing the tool used for transferring data and adding supplementary measures to that tool. Among the latter is a list of technical, organizational, and contractual measures to be implemented to ensure the effectiveness of the tool.

Julie Brill, Corporate Vice President for Global Privacy and Regulatory Affairs and Chief Privacy Officer at Microsoft, issued the statement in which she declares MS to be the first company responding to the EDPB’s guidance. These safeguards include an obligation for MS to challenge all government requests for public sector or enterprise customer data, where it has a lawful basis for doing so; to try and redirect data requests; and to notify the customer promptly if legally allowed, about any data request by an authority, concerning that customer. This was one of the main ETDB recommendations and also included in a draft for new Standard Contractual Clauses published by the European Commission on November 12th. MS announces to monetary compensate customers, whose personal data has to be disclosed in response to government requests.  These changes are additions to the SCC’s MS is using ever since Schrems II. Which include (as MS states) data encrypted to a high standard during transition and storage, transparency regarding government access requests to data (“U.S. National Security Orders Report” dating back to 2011; “Law Enforcement Requests Report“) .

Recently European authorities have been criticizing MS and especially its Microsoft 365 (“MS 365”) (formerly Office 365) tools for not being GDPR compliant. In July 2019 the Ministry of Justice in the Netherlands issued a Data Protection Impact Assessment (DPIA), warning authorities not to use Office 365 ProPlus, Windows 10 Enterprise, as well as Office Online and Mobile, since they do not comply with GDPR standards. The European Data Protection Supervisor issued a warning in July 2020 stating that the use of MS 365 by EU authorities and contracts between EU institutions and MS do not comply with the GDPR. Also, the German Data Security Congress (“GDSC”) issued a statement in October, in which it declared MS 365 as not being compliant with the GDPR. The GDSC is a board made up of the regional data security authorities of all 16 german states and the national data security authority. This declaration was reached by a narrow vote of 9 to 8. Some of the 8 regional authorities later even issued a press release explaining why they voted against the declaration. They criticized a missing involvement and hearing of MS during the process, the GDSC’s use of MS’ Online Service Terms and Data Processing Addendum dating back to January 2020 and the declaration for being too undifferentiated.

Some of the German data protection authorities opposing the GDSC’s statement were quick in welcoming the new developments in a joint press release. Although, they stress that the main issues in data transfer from the EU to the U.S. still were not solved. Especially the CJEU main reserves regarding the mass monitoring of data streams by U.S. intelligence agencies (such as the NSA) are hard to prevent and make up for. Still, they announced the GDSC would resume its talks with MS before the end of 2020.

This quick reaction to the EDPB recommendations should bring some ease into the discussion surrounding MS’ GDPR compliance. It will most likely help MS case, especially with the German authorities, and might even lead to a prompt resolution in a conflict regarding tools that are omnipresent at workplaces all over the globe.

EDPB adopts first decision under Art. 65 GDPR

20. November 2020

During its 41st plenary session, the European Data Protection Board (EDPB) adopted by a two-thirds majority of its members its first dispute resolution decision under Art. 65 GDPR regarding Twitter International Company. The binding decision aims to resolve a dispute arisen from a draft decision by the Irish supervisory authority, being the lead supervisory authority in that case, and subsequent relevant and reasoned objections raised by several authorities concerned.

The Irish supervisory authority prepared a draft decision following an own-initiative investigation into Twitter International Company, after the company had notified the Irish supervisory authority of a personal data breach on January 8th, 2019. According to Art. 60 (3) GDPR, the Irish supervisory authority submitted its draft decision to the other authorities concerned in May 2020, which had the opportunity to express their objections within a period of four weeks afterwards. They referred to, inter alia, violations of the GDPR identified by the lead supervisory authority, the role of Twitter International Company as the sole data controller, and the quantification of the proposed fine.

Due to the fact that the lead supervisory authority rejected the objections and/or considered them not to be “relevant and reasoned”, it submitted the matter to the EDPB pursuant to Art. 60 (4) GDPR, thus initiating the dispute resolution procedure.

Thereupon, the completeness of the file was evaluated, that led to the institution of legal proceedings stated in Art. 65 GDPR on September 8th, 2020. In accordance with Art. 65 (3) GDPR and in conjunction with Art. 11.4 of the EDPB Rules of Procedure, the default time period of one month was extended by a further month on account of the complexity of the subject-matter.

On November 9th, 2020, the EDPB adopted its binding decision and will shortly notify it to the Irish supervisory authority, which, on the other hand, will issue a final decision. It will be addressed to the data controller without undue delay and at the latest by one month after the EDPB has notified its decision. In compliance with the requirements of Art. 65 (6) GDPR, the lead supervisory authority shall inform the EDPB of the date when its final decision is notified respectively to the controller. After that, the EDPB decision will be published on its website.

EDPB addresses Privacy by Design and Default in 40th Plenary Session

26. October 2020

Following public consultation, the Europan Data Protection Board (EDPB) adopted a final version of the Guidelines on Data Protection by Design & Default during its 40th plenary session on October 20th, 2020.

The Guidelines’ focal point is the obligation of Data Protection by Design and by Default as set forth in Article 25 GDPR. At its core is the effective implementation of the data protection principles and data subjects’ rights and freedoms by design and by default, which means that controllers are obliged to implement appropriate technical and organisational measures as well as the necessary safeguards, designed to establish data protection principles in practice and to protect the rights and freedoms of data subjects while processing their personal data.

The Guidelines further contain guidance on how to effectively implement the data protection principles in Article 5 GDPR, listing key design and default points, as well as giving examples through practical cases. They also provide recommendations for controllers on how to achieve Privacy by Design and Default.

However, this is not the only decision made by the EDPB during the plenary. The EDPB decided to set up a Coordinated Enforcement Framework (CEF), which provides a structure for coordinating recurring annual activities by EDPB Supervisory Authorities. The objective is to coordinate joint activities, which may range from joint awareness raising and information gathering to enforcement sweeps and joint investigations.

The EDPB hopes that this raises awareness, as well as give data subjects more confidence to excercise their rights under the GDPR.

Privacy Activist Schrems unleashes 101 Complaints

21. September 2020

Lawyer and privacy activist Maximilian Schrems has become known for his legal actions leading to the invalidation of “Safe Harbor” in 2015 and of the “EU-U.S. Privacy Shield” this year (we reported). Following the landmark court decision on the “EU-U.S. Privacy Shield”, Schrems recently announced on the website of his NGO “noyb” (non-of-your-business) that he has filed 101 complaints against 101 European companies in 30 different EU and EEA countries with the responsible Data Protection Authorities. Schrems exercised the right to lodge a complaint with the supervisory authority that every data subject has if he or she considers that the processing of personal data relating to him or her infringes the Regulation, pursuant to Art. 77 GDPR.

The complaints concern the companies’ continued use of Google Analytics and Facebook Connect that transfer personal data about each website visitor (at least IP-address and Cookie data) to Google and Facebook which reside in the United States and fall under U.S. surveillance laws, such as FISA 702. Schrems also published a list of the 101 companies which include Sky Deutschland, the University of Luxembourg and the Cyprus Football Association. With his symbolic action against 101 companies, Schrems wanted to point to the widespread inactivity among many companies that still do not take the data protection rights of individuals seriously despite the recent ruling by the Court of Justice of the European Union.

In response, the European Data Protection Board (“EDPB”) has set up a “task force” to handle complaints against European companies using Google Analytics and Facebook services. The taskforce shall analyse the matter and ensure a close cooperation among the members of the Board which consists of all European supervisory authorities as well as the European Data Protection Supervisor.

EDPB releases new official register of Art. 60 GDPR decisions

29. June 2020

On 25 June 2020, the European Data Protection Board (“EDPB”) released a new register of final decisions by national European Data Protection Authorities (Supervisory Authorities) cooperating with one another pursuant to Art. 60 GDPR. The register provides access to the decisions themselves, summaries of the decisions in English, and information on the identity of the cooperating Lead Supervisory Authority and Concerned Supervisory Authorities.

The GDPR postulates that Supervisory Authorities have to cooperate in potential cases of GDPR violations that include cross-border data processing activities. During this cooperation, the Lead Supervisory Authority will be in charge of preparing the draft decision and involving the Concerned Supervisory Authorities, and will act as the sole interlocutor of the Controller or Processor (“One-Stop-Shop”-Principle), Art. 56 and Art. 60 GDPR.

To date, the new EDPB register contains 110 final decisions. The EDPB states in its announcement that ‘the register will be valuable to data protection practitioners who will gain access to information showcasing how SAs work together to enforce the GDPR in practice.’

Contact Tracing Apps: U.K. Update and EDPB Interoperability Statement

23. June 2020

In another update about contact tracing apps, we are going to talk about the new path of contact tracing in the United Kingdom (UK), as well as the European Data Protection Board’s (EDPB) statement in regards to the cross-border interoperability of the contact tracing apps being deployed in the European Union.

UK Contact Tracing App Update

Since starting the field tests on the NHS COVID-19 App on the Isle of Wight, the UK government has decided to change their approach towards the contact tracing model. It has been decided to abandon the centralized app model in favour of the decentralized Google/Apple alternative.

The change was brought on by technical issues and privacy challenges which surfaced during the trial period on the Isle of Wight, and in the end were direct consequences of the centralized model and important enough to motivate the change of approach.

The technical problems included issues with the background Bluetooth access, as well as operation problems in the light of cross-border interoperability. Further, the data protection risks of mission creep and a lack of transparency only urged on the of the app.

The new model is widely used throughout the European Union, and provides more data protection as well as better technical support. The only deficit in comparison with the centralized model is the lesser access to data by epidemiologists, which seems to be a trade off that the UK government is willing to take for the increase in data protection and technical compatibility.

EDPB statement on cross-border interoperability

On June 17th, 2020, the EDPB has released a statement with regards to the cross-border interoperability of contact tracing apps. The statement builds on the EDPB Guideline from 04/2020 with regards to data protection aspects of contact tracing apps, emphasising the importance of the issues presented.

The statement stems from an agreement between EU-Member states and the European Commission formed in May 2020 with regards to the basic guidelines for cross-border interoperability of contact tracing apps, as well as the newly settled technical specs for the achievement of such an interoperability.

The EDPB states key aspects that have to be kept in mind during the entirety of the project, namely transparency, legal basis, controllership, data subject’s rights, as well as data retention and minimisation rules.

Further, the statement emphasises that the sharing of data about individuals which have been diagnosed or tested positively should only be triggered by a voluntary action of the users themselves. In the end, the goal of interoperability should not be used as an argument to extend the collection of personal data further than necessary.

Overall, this type of sharing of personal data can pose an increased data protection risk to the personal data of the users, which is why it needs to be made sure that the principles set down by the GDPR are being upheld, and made sure that there is no less intrusive method to be used in the matter.

EDPB shares concerns over UK-US data deal in light of future UK adequacy decision

18. June 2020

On June 17th, 2020, the European Data Protection Board (EDPB) has written an open letter to the Members of the European Parliament over its concerns regarding the Agreement between the United Kingdom (UK) and the USA on Access to Electronic Data for the Purpose of Countering Serious Crime in relation to a future UK adequacy decision after the country’s exit out of the European Union.

In its letter, the EDPB states that it is concerned with the applicability of the safeguards in the Brexit withdrawal agreement with the EU once the UK leaves the Union at the beginning of 2021. The Agreement between the UK and the US allows for easy data access in the case of the prosecution of serious crimes, and facilitates an access request to be made to UK authorities and businesses under the US Cloud Act, for which it is unsure if the safeguards agreed upon between the EU and the UK apply.

The EDPB also stresses that, in the light of a potential data sharing agreement between the EU and the US, it is mandatory that the European safeguards in such an agreement “must prevail over US domestic laws” in order to be “fully compatible with European laws”.

Furthermore, the letter also states that “it is also essential that the safeguards include a mandatory prior judicial authorisation as an essential guarantee for access to metadata and content data”. In its preliminary assessment, the EDPB could not distinguish such a provision in the UK-US Agreement.

While right now the EDPB can only make a preliminary assessment of the situation based on the current elements at its disposal, it states clearly that the Agreement between the UK and the US will have to be considered in any relevant adequacy decision in the future. This is especially important as there is a “requirement to ensure continuity of protection in cases of onwards transfers from the UK to another third country”.

In any case, the EDPB intends to release its own opinion on the matter if the European Commission should release a draft of the adequacy decision for the UK.

Hungary Update: EDPB publishes Statement on Art. 23 GDPR

17. June 2020

Since March 2020, Hungary has been in a “state of emergency” following the COVID-19 pandemic. The country’s COVID-19 related emergency laws and state of emergency received worldwide criticism from constitutional experts, politicians and civil rights groups, because it allows the Prime Minister to rule by decree during the state of emergency and does not provide a predefined end date. During the state of emergency, Prime Minister Victor Orbán made extensive use of his newly gained powers by passing more than a hundred decrees, including Decree No. 179/2020, which suspended the GDPR data subject rights in Art. 15-22 GDPR with respect to personal data processing for the purpose of preventing, understanding, detecting the coronavirus disease and impeding its further spread (we reported).

In response to this suspension of GDPR rights, the European Data Protection Board (“EDPB”) has recently published a Statement on restrictions on data subject rights pursuant to Art. 23 GDPR, which is the provision that Hungary’s measure was based on. This article allows the member states to restrict, by way of a legislative measure, the scope of the obligations and rights provided for in Articles 12 to 22 and Article 34, when such a restriction respects the essence of the fundamental rights and freedoms and is a necessary and proportionate measure in a democratic society to safeguard, inter alia, important objectives of general public interest of the Union or of a Member State such as public health.

In its Statement, the EDPB points out that any restriction must respect the essence of the right that is being restricted. If the essence of the right is compromised, the restriction must be considered unlawful. Since the data subject’s right of access and the right to rectification are fundamental rights according to Art. 8 para. 2 of the Charter of Fundamental Rights of the European Union, any restriction of those rights must be carefully weighed up by the member states, in order respect the essence of the rights. The EDPB considers that restrictions adopted in the context of a state of emergency suspending or postponing the application of data subject rights, without any clear limitation in time, equate to a de facto blanket suspension and denial of those rights and are not be compatible with the essence of the fundamental rights and freedoms.

The EDPB also recalls that the restrictions under Art. 23 GDPR must be necessary and proportionate. It argues that restrictions that are imposed for a duration not precisely limited in time or which apply retroactively or are subject to undefined conditions, are not foreseeable to data subjects and thus disproportionate.

Furthermore, the EDPB takes the view that in order to safeguard important objectives of general public interest such as public health (Art. 23 para. 1 lit. e GDPR), there must be a clearly established and demonstrated link between the foreseen restrictions and the objective pursued. The mere existence of a pandemic or any other emergency situation alone does not justify a restriction of data subject rights, especially if it is not clearly established, how the restrictions can help dealing with the emergency.

Following the international public backlash, the Parliament of Hungary passed legislation on 16 June 2020 to revoke the emergency laws as soons as the current state of emergency will be terminated by the Government. Hungary’s Government announced in May that it intends to lift the state of emergency on 20 June 2020. After that, the restrictions on the GDPR rights shall be lifted as well, so that data subject may exercise their Art. 15-22 GDPR rights again.

Series on COVID-19 Contact Tracing Apps Part 2: The EDPB Guideline on the Use of Contact Tracing Tools

25. May 2020

Today we are continuing our miniseries on contact tracing apps and data protection with Part 2 of the series: The EDPB Guideline on the Use of Contact Tracing Tools. As mentioned in Part 1 of our miniseries, many Member States of the European Union have started to discuss using modern technologies to combat the spread of the Coronavirus. Now, the European Data Protection Board (“EDPB”) has issued a new guideline on the use of contact tracing tools in order to give European policy makers guidance on Data Protection concerns before implementing these tools.

The Legal Basis for Processing

In its guideline, the EDPB proposes that the most relevant legal basis for the processing of personal data using contact tracing apps will probably be the necessity for the performance of a task in the public interest, i.e. Art. 6 para. 1 lit. e) GDPR. In this context, Art. 6 para. 3 GDPR clarifies that the basis for the processing referred to in Art. 6 para. 1 lit. e) GDPR shall be laid down by Union or Members State law.

Another possible legal basis for processing could be consent pursuant to Art. 6 para. 1 lit. a) GDPR. However, the controller will have to ensure that the strict requirements for consent to be valid are met.

If the contact tracing application is specifically processing sensitive data, like health data, processing could be based on Art. 9 para. 2 lit. i) GDPR for reasons of public interest in the area of public health or on Art. 9 para. 2 lit. h) GDPR for health care purposes. Otherwise, processing may also be based on explicit consent pursuant to Art. 9 para. 2 lit. a) GDPR.

Compliance with General Data Protection Principles

The guideline is a prime example of the EDPB upholding that any data processing technology must comply with the general data protection principles which are stipulated in Art. 5 GDPR. Contact tracing technology will not be an exeption to this general rule. Thus, the guideline contains recommendations on what national governments and health agencies will need to be aware of in order to observe the data protection principles.

Principle of Lawfulness, fairness and transparency, Art. 5 para. 1 lit. a) GDPR: First and foremost, the EDPB points out that the contact tracing technology must ensure compliance with GDPR and Directive 2002/58/EC (the “ePrivacy Directive”). Also, the application’s algorithms must be auditable and should be regularly reviewed by independent experts. The application’s source code should be made publicly available.

Principle of Purpose limitation, Art. 5 para. 1 lit. b) GDPR: The national authorities’ purposes of processing personal data must be specific enough to exclude further processing for purposes unrelated to the management of the COVID-19 health crisis.

Principles of Data minimisation and Data Protection by Design and by Default, Art. 5 para. 1 lit. c) and Art. 25 GDPR:

  • Data processed should be reduced to the strict minimum. The application should not collect unrelated or unnecessary information, which may include civil status, communication identifiers, equipment directory items, messages, call logs, location data, device identifiers, etc.;
  • Contact tracing apps do not require tracking the location of individual users. Instead, proximity data should be used;
  • Appropriate measures should be put in place to prevent re-identification;
  • The collected information should reside on the terminal equipment of the user and only the relevant information should be collected when absolutely necessary.

Principle of Accuracy, Art. 5 para. 1 lit. d) GDPR: The EDPB advises that procedures and processes including respective algorithms implemented by the contact tracing apps should work under the strict supervision of qualified personnel in order to limit the occurrence of any false positives and negatives. Moreover, the applications should include the ability to correct data and subsequent analysis results.

Principle of Storage limitation, Art. 5 para. 1 lit. e) GDPR: With regards to data retention mandates, personal data should be kept only for the duration of the COVID-19 crisis. The EDPB also recommends including, as soon as practicable, the criteria to determine when the application shall be dismantled and which entity shall be responsible and accountable for making that determination.

Principle of Integrity and confidentiality, Art. 5 para. 1 lit. f) GDPR: Contact tracing apps should incorporate appropriate technical and organisational measures to ensure the security of processing. The EDPB places special emphasis on state-of-the-art cryptographic techniques which should be implemented to secure the data stored in servers and applications.

Principle of Accountability, Art. 5 para. 2 GDPR: To ensure accountability, the controller of any contact tracing application should be clearly defined. The EDPB suggests that national health authorities could be the controllers. Because contact tracing technology involves different actors in order to work effectively, their roles and responsibilities must be clearly established from the outset and be explained to the users.

Functional Requirements and Implementation

The EDPB also makes mention of the fact that the implementations for contact tracing apps may follow a centralised or a decentralised approach. Generally, both systems use Bluetooth signals to log when smartphone owners are close to each other.  If one owner was confirmed to have contracted COVID-19, an alert can be sent to other owners they may have infected. Under the centralised version, the anonymised data gathered by the app will be uploaded to a remote server where matches are made with other contacts. Under the decentralised version, the data is kept on the mobile device of the user, giving users more control over their data. The EDPB does not give a recommendation for using either approach. Instead, national authorities may consider both concepts and carefully weigh up the respective effects on privacy and the possible impacts on individuals rights.

Before implementing contact tracing apps, the EDPB also suggests that a Data Protection Impact Assessment (DPIA) must be carried out as the processing is considered likely high risk (health data, anticipated large-scale adoption, systematic monitoring, use of new technological solution). Furthermore, they strongly recommend the publication of DPIAs to ensure transparency.

Lastly, the EDPB proposes that the use of contact tracing applications should be voluntary and reiterates that it should not rely on tracing individual movements but rather on proximity information regarding users.

Outlook

The EDPB acknowledges that the systematic and large scale monitoring of contacts between natural persons is a grave intrusion into their privacy. Therefore, Data Protection is indispensable to build trust, create the conditions for social acceptability of any solution, and thereby guarantee the effectiveness of these measures. It further underlines that public authorities should not have to choose between an efficient response to the current pandemic and the protection of fundamental rights, but that both can be achieved at the same time.

In the third part of the series regarding COVID-19 contact tracing apps, we will take a closer look into the privacy issues that countries are facing when implementing contact tracing technologies.

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