Territoriality will continue to be one of the most vexing problems for data regulation in 2018. One aspect of this debate relates to whether a U.S. judge can compel the disclosure of personal data located in Europe without using international treaty mechanisms. This issue is currently being considered by the United States Supreme Court in the case United States v. Microsoft. The case involves the question of whether a U.S. statute relating to search warrants can be interpreted as extending to a search for data located outside the United States; in this case, the data is located in Ireland. The U.S. Court of Appeals found that, in the absence of express wording in the statute relating to extraterritorial application, the statute should be interpreted as being limited to searches conducted within the territory of the United States. The Supreme Court is currently reviewing the case. In December, 2017, the European Commission filed an amicus brief urging the Supreme Court to give due consideration to the principles of international comity and territoriality when interpreting the U.S. statute.
It is finally here. This is the year of the GDPR. A journey that started with an ambitious policy paper about modernising data protection almost a decade ago – a decade! – is about to reach flying altitude. No more ‘in May next year this, in May next year that’. Our time has come. Given the amount of attention that the GDPR has received in recent times, data protection professionals are in high demand but we are ready. We knew this was coming and we have had years to prepare. However, even the most seasoned practitioners are at risk of being engulfed by the frantic fire-fighting mood out there. The hamster wheel of GDPR compliance is spinning faster and faster, but it is precisely now when we must look up, see the bigger picture and focus on getting the important things right.
To date, the main legacy of the Brexit referendum of 2016 appears to be a country split in half: some badly wish the UK would continue to be a member of the EU and some are equally keen on making a move. Yet, there seems to be at least one thing on which Remainers and Leavers will agree: nobody knows exactly what is going to happen. The same is true of the effect of Brexit on UK data protection. However, as Brexit day approaches, it is becoming imperative for those with responsibility for data protection compliance to make some crucial strategic decisions. To help with that process, here are some pointers about what we know and what we don’t know.
Following the European Commission and European Parliament’s proposed versions of the EU Regulation on Privacy and Electronic Communications, we are now waiting for the Council of the European Union to agree their position before discussions between the three bodies can begin. A discussion paper from the Bulgarian Presidency of the Council dated 11 January 2018 shows that the Council is still considering multiple options in relation to several critical issues.
According to the Constitution of Mexico, the protection of personal data is a fundamental right of all Mexican citizens. Under federal law, individuals also have a right to access, change, oppose, or suppress their personal data. Although all private companies process data, some are not sufficiently familiar with Mexico’s data privacy principles and regulations, and many may not have an up-to-date assessment of their own risk of a data breach. In addition, they may not be aware that the Mexican Supreme Court’s recent shift in perspective regarding personal injury cases may herald a change in the way data privacy breaches are handled in the future. This interview explores the impact of Mexico’s data privacy regulations on private companies, discusses the unique approach of Mexican regulators to data privacy enforcement, and offers advice as to how companies can stay compliant.
Making predictions for the year ahead is possibly as desirable as unreliable. In a world of unlimited data and advanced science, it would be tempting to think that the future is already written. Algorithms and artificial intelligence will show us what lies ahead with immaculate accuracy. Or perhaps not. At least not yet. To say that the world is in turmoil is an understatement and the same is true of the world of privacy and data protection, which makes predicting the future particularly tricky. But since the urge to plan, budget and prepare for what is likely to happen next is so real, now is a good time to pause, reflect about what’s going on, and make some predictions for 2018.
Hot on the heels of the European Commission’s official review of the functioning of the EU-U.S. Privacy Shield framework, the Article 29 Working Party of EU data protection regulators has issued its own report on the matter. The summary of findings by the Working Party, which draws from both written submissions and oral contributions, begins by commending U.S. authorities for their efforts in establishing a procedural framework to support the operation of Privacy Shield but quickly shifts to the Working Party’s concerns. Should the concerns not be addressed by the time of the second joint review, the Working Party notes that its members will “take appropriate action,” including bringing a Privacy Shield adequacy decision to national courts for reference to the Court of Justice of the European Union for a preliminary ruling.
Two weeks ago, certain territorial divisions of the Russian Data Protection Authority, Roskomnadzor, published their 2018 plans for conducting inspections of local companies’ compliance with Russian data privacy requirements, including with Russia’s data localization requirement. The inspection plans contain a number of prominent multi-national and Russian companies.
The complexity of the EU General Data Protection Regulation is often alleviated by the guidance of regulatory authorities who contribute their practical interpretation of the black letter of the law and provide welcome certainty. However, the latest draft guidelines issued by the Article 29 Working Party on automated decision-making has thrown up a particular curve ball which bears further investigation. It relates to whether Article 22(1) of the GDPR should be read as a right available to data subjects or as a straightforward prohibition for controllers.
On 6 October, the German Federal Cartel Office launched its new series of papers on “Competition and Consumer Protection in the Digital Economy.” The first paper deals with “Big Data and Competition.” The same day, a “real-life example” of competition enforcement in Big Data became public. The EU Commission confirmed unannounced inspections in “a few Member States” concerning online access to bank customer’s account data by competing service providers.
On September 13, the U.K. government introduced in Parliament the Data Protection Bill. The main aim of the bill is to implement the General Data Protection Regulation (EU) 2016/679 into U.K. domestic law. However, as perhaps reflected in the length and complexity of the bill, it is also intended to do several other things. This post outlines key observations on the structure and content of the bill.
The Information Commissioner’s Officer ruled, on 3 July 2017, that the Royal Free NHS Foundation Trust had failed to comply with the Data Protection Act 1998 when it provided 1.6 million patient details to Google DeepMind as part of a trial diagnosis and detection system for acute kidney injury, and required the Trust to sign an undertaking. The investigation brings together some of the most potent and controversial issues in data privacy today; sensitive health information and its use by the public sector to develop solutions combined with innovative technology driven by a sophisticated global digital company. This analysis provides insight on the investigation into Google DeepMind with focus on how the General Data Protection Regulation may impact the use of patient data going forward.
On September 5, the European Court of Human Rights issued a ruling in the case of Bărbulescu v. Romania that affirms employees’ right to privacy in the use of communications tools in the workplace. Although the ruling is strict, it aligns with the positions taken by the national courts of certain European Union Member States (e.g., Germany) and guidance issued by data protection authorities. And the criteria that the ECHR adopts for assessing the lawfulness of monitoring generally aligns with the requirements under the General Data Protection Regulation, which takes full effect on May 25, 2018. In our post, we summarize the ruling and identify key takeaways for companies that monitor workforce use of information systems and tools in the EU.
The European Court of Human Rights decided on June 22, 2017 that France’s DNA database for convicted criminals disproportionately interferes with individuals’ privacy rights because of its one-size-fits-all retention period and the failure to include a procedure to request erasure.
You may not have noticed it, but despite all of the distractions caused by Brexit and the General Data Protection Regulation (Regulation (EU) 2016/679), the UK Information Commissioner’s Office has been extremely active on the enforcement front in recent times. One of the features of this activity has been the variety of infringements targeted and, in particular, the focus on e-mail marketing. More specifically, the ICO has taken enforcement action by way of monetary penalties against well-known consumer brands such as Flybe, Honda, Morrisons and Moneysupermarket, for practices that might not have been seen as so out of order in the past. However, given the current tough stance taken by the ICO in connection with direct marketing practices, it would not be surprising to see future enforcement actions in this area.
The German Ministry of Interior affairs has published an English translation of the new Federal Data Protection Act (Bundesdatenschutzgesetz – BDSG). On 27 April 2017 the German Parliament passed the BDSG in order to make use of the opening clause provided for in the EU General Data Protection Regulation (GDPR). This bill has been controversial; see here for an interview with Jan Albrecht, Stefan Brink and Tim Wybitul.
The new BDSG replaces its national predecessor, which has been in force for the last 40 years. The new BDSG is the first step toward adapting national German member State law to the provisions of the GDPR. With an effective date of 25 May 2018, the new BDSG will also form the basis for the adaption of further German data privacy acts to the GDPR. We note that several ministries have already indicated that they are preparing specific data privacy provisions concerning special processing situations like social security data protection, and we expect these provisions to follow the implementation of the BDSG.
This overview summarizes the major implications of the BDSG for companies operating in Germany.
According to the German Federal Labor Court, Germany’s highest court for employment disputes, German employers are not allowed to monitor employees in the workplace without a concrete suspicion of a criminal violation or, in some cases, a serious breach of duty. This means that employer monitoring of an employee’s computer usage without a concrete suspicion, including the use of keylogging software that records all keyboard entries made at a desktop computer does not comply with German data privacy laws. Courts may exclude evidence obtained under violation of German data privacy laws from their proceedings.
On 7 August 2017, the UK Department for Culture, Media and Sport published its Statement of Intent on a proposed Data Protection Bill, which will replace the current UK Data Protection Act 1998. The Bill is designed to fully implement the two new laws emanating from the EU – the General Data Protection Regulation and the Data Protection Law Enforcement Directive – in an effort to make the UK’s transition out of the EU as smooth as possible from a data protection perspective and to ensure that both commercial and law enforcement data flows ‘remain uninterrupted after the UK’s exit from the EU’.
On Monday, June 12, South Korea became the latest country approved to officially join the Asia-Pacific Economic Cooperation’s Cross-Border Privacy Rules system. It is the fifth APEC economy to participate in the system, joining the United States, Canada, Japan, and Mexico. To date, twenty companies—including Apple, Cisco, HP, IBM, Rackspace, and Workday—have been certified under CBPR.
“A new law will ensure that the United Kingdom retains its world-class regime protecting personal data”. This is today’s strong statement by Her Majesty The Queen reflecting the level of priority given by the UK government to privacy and data protection. Aside from the political controversies surrounding the recent general Election and the prospect of Brexit, the Queen has confirmed that during this Parliament the government intends to pass a new Data Protection Act replacing the existing one.
The European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs commissioned a study to assess the European Commission’s draft e-Privacy Regulation, which was published in January 2017. The e-Privacy Regulation aims to harmonise privacy rules across the EU in the area of electronic communications, but the study has found that the draft e-Privacy Regulation does not as far as the GDPR in some respects. This contrasts with many other views expressed publicly, which regarded the Commission’s draft as a tightening of the GDPR regime. A central theme of the study, which was carried out by academics of the IViR Institute for Information Law, University of Amsterdam, is the need to protect privacy of correspondence regardless of medium or any other factor. The EU legislative institutions are urged to pay extra attention to four areas in which it is felt that there is insufficient protection of the right to privacy and confidentiality of communications. We explore these issues in the following post.
On 19 May 2017, the Cyberspace Administration of China released a revised draft of its Security Assessment for Personal Information and Important Data Transmitted Outside of the People’s Republic of China Measures. The draft emerged just over a week after public comments closed on the first draft of the measures. the Second Draft Export Review Measures do, to an extent, relax some of the more stringent requirements stated in the First Draft Export Review Measures and originally due to become law on 1 June, 2017 when China’s Cyber Security Law takes effect. However, the revised draft measures as set out in the Second Draft Export Review Measures still leave a significant compliance challenge for multi-national businesses operating in China . We explore the Second Draft Export Review Measures below.
The Hong Kong Securities and Futures Commission has issued a paper containing proposals to introduce cyber security guidelines under the Securities and Futures Ordinance applicable to internet brokers. Comments are open through 7 July 2017.