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HL Chronicle of Data Protection Privacy & Information Security News & Trends

Winston Maxwell

Posts by Winston Maxwell
Posted in International/EU Privacy

French Data Protection Authority’s Latest Newsletter Includes Assessment of First Four Months of GDPR & Several Guidelines

The French Data Protection Authority (the CNIL) published its assessment of the first four months of GDPR and several guidelines, including one on how to make a GDPR compliant blockchain. Since the Data Protection Act’s implementation, the CNIL has been very active in guiding French citizens on how to comply with the new legal framework and warning them about threats from new technologies.

Posted in International/EU Privacy

Top Human Rights Court Denies Right to be Forgotten in Old Murder Case

On June 28, 2018 the European Court of Human Rights decided that the German Supreme Court had correctly denied two individuals their “right to be forgotten” requests in connection with press archives relating to a 1991 murder. The German Supreme court reasoned that the interests of the public in having access to the information outweighed the interference with the plaintiff’s privacy rights. Upon hearing the case, the ECtHR agreed and found that Germany had correctly applied the balancing test relating to right to be forgotten claims.

Posted in International/EU Privacy

GDPR Is In Effect: The French Bill Has Been Adopted…But Referred to the French Constitutional Council

The General Data Protection Regulation entered into force on 25 May 2018. In light of the urgency to adapt Law no. 78-17 dated 6 January 1978 to the new European Union law, the French Government has initiated an accelerated procedure. This procedure led to the adoption in final reading by the French National Assembly of the bill on personal data protection on 14 May 2018. However, some French Senators lodged a constitutional complaint against the said law on 16 May 2018.

Posted in Consumer Privacy

Straight Talks Podcast: Data Privacy and Cybersecurity in the Age of Rolling Smart Devices

The European Union’s General Data Protection Regulation is driving a regulatory wave to safeguard data against cyber attacks and privacy breaches, and the automobile industry will feel the impact. Autonomous and connected vehicles are essentially “rolling smart devices,” and as they enter the mainstream in the EU and United States, automakers are increasingly reliant on data for safe, efficient vehicle operations. But security and privacy concerns and penalties for regulatory noncompliance demand that manufacturers review their policies — and perspectives — on data storage and use. In this podcast, we will discuss how cybersecurity, data privacy, and ownership concerns are influencing the development of connected and autonomous vehicles.

Posted in International/EU Privacy

European Commission and Article 29 Working Party Urge Respect for International Law in Data Cases

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.

Posted in International/EU Privacy

Council e-Privacy Regulation Negotiations Critical for the Future of IoT and AdTech

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.

Posted in International/EU Privacy

DSM Watch: European Commission’s Data Package Explores Data Ownership, Localization, Liability and Portability, Highlighting Tensions with GDPR

On January 10, 2017, the European Commission released a Communication, a fact sheet, a working document and a public consultation relating to Europe’s “data economy”. The fact sheet states that “data is a new type of economic asset”, which is essential for innovation and growth. The Commission’s objective is to remove “unjustified restrictions” and “legal uncertainties” in order to facilitate data sharing and innovation.

Posted in International/EU Privacy

European Commission Outlines Data Sharing Strategy for Connected Vehicles

Connected vehicles today are rolling computers able to exchange information wirelessly with manufacturers, other vehicles, and third party service providers to significantly improve safety, efficiency, and comfort for drivers. Many entities are interested in the data these connected vehicles generate and transmit. These entities include dealers and repair shops, vehicle fleet service providers, end-users, infrastructure operators, diagnostics providers, researchers, financial services companies and insurance companies. The European Commission and industry actors in Europe, while recognizing the challenges of wide-spread deployment of these technologies, have taken further steps to develop a regime that facilitates information sharing for vehicle to vehicle, vehicle to infrastructure and other communications by delineating specific actions to take in the near future.

Posted in International/EU Privacy

ENISA Jumpstarts Connected Car Cybersecurity Study for EU

With attention to connected car cybersecuity issues increasing globally, the European Union Agency for Network and Information Security is leading the EU’s first bloc-wide initiative to identify cybersecurity rules of the road for connected cars. On July 13, ENISA announced a study aimed at creating a comprehensive list of cybersecurity policies, tools, standards, and measures to enhance security in next-generation automobiles.

Posted in International/EU Privacy

A Brief Analysis of the European Parliament and the Article 29 Working Party’s Criticisms of Privacy Shield

Unveiled February 29, 2016, the new EU-U.S. Privacy Shield attempts to address the shortcomings of the Safe Harbor arrangement identified originally by the European Commission and later by the Court of Justice of the European Union in its Schrems decision. The Privacy Shield proposes improved data protection principles, better enforcement by the US Department of Commerce and the Federal Trade Commission, redress mechanisms for EU citizens, and safeguards surrounding law enforcement and intelligence activities. The European Parliament adopted a resolution on May 26, 2016 praising the progress made, but highlighting shortcomings in the Privacy Shield as presented in February 2016. Now that the Irish Data Protection Controller has referred another data transfer mechanism known as Standard Contractual Clauses to the courts for review of their adequacy, greater focus will be placed on whether the criticisms of Privacy Shield are well founded.

Posted in International/EU Privacy

CNIL’s New Role: Overseeing Website Blocking

In an April 15, 2016 report, the French Data Protection Authority, the CNIL, provided details about its little-known responsibility as overseer of the French police’s website-blocking powers. The French legislature gave the CNIL this new role in a November 13, 2014 law designed to enhance French police powers against terrorism. The 2014 law increased French police and intelligence agencies’ powers to collect data without a court order. A lesser-known aspect of the November 2014 law is the provision that allows the French police to order ISPs to block websites that either provoke terrorist acts or support (provide an “apologia” or defense for) terrorism. When the French police identify online content that violates these rules, they may order ISPs to block access. The police also have this power with regard to child pornography. Search engines can also be ordered to delist content from search results.

Posted in International/EU Privacy

European Multi-Stakeholder Group Releases Connected Vehicles Report

Connected cars can generate large volumes of data, including data on engine performance, location, and driver behaviour. The European Commission has convened multi-stakeholder groups to figure out how to organize access to that data in a safe, competitively neutral, and privacy-friendly way. Two recent reports shed light on the principles under consideration for data sharing infrastructures in the EU. And legislative and regulatory developments in the EU will likely have a substantial impact on connected car deployments.

Posted in International/EU Privacy

Why the U.S. Is Held to a Higher Data Protection Standard Than France

In a recent column for The New York Times, Nils Muiznieks, the top human rights official for the Council of Europe, warned that recent surveillance laws in Europe undermine fundamental rights for European citizens. Plus, an October 29, 2015, resolution of the European Parliament complains of an “obvious downward spiral” resulting from mass surveillance laws in the U.S. and Europe. That certain European countries have laws permitting mass surveillance is not news to lawyers who follow the matter. In a 2012 whitepaper, we highlighted the broad and sometimes unsupervised powers of intelligence agencies of certain European governments. As Muiznieks’s column states, intelligence agencies are getting more surveillance power, not less. France’s July 2015 surveillance law permits intelligence agencies to scan metadata of all citizens in order to detect suspicious patterns. Other European countries are also broadening surveillance powers to protect against terrorism.

Posted in International/EU Privacy

EU Data Transfers: Considering Your Options After Today’s Article 29 Working Party Statement

The EU’s Article 29 Working Party issued a statement today on the recent Schrems decision invalidating the adequacy of the EU-U.S. Safe Harbor framework, emphasizing that affected businesses should start to put in place legal and technical solutions in a timely manner to meet EU data protection standards. The statement gave a January 2016 deadline for companies to come into compliance with the ruling, at which point EU data protection authorities would be “committed to take all necessary and appropriate actions, which may include coordinated enforcement actions.” In response, we publish here a high-level analysis of the possible options available for companies—including the EU Standard Contractual Clauses, Intra-Group Agreements and other ad-hoc contracts, Binding Corporate Rules, Safe Harbor 2.0, and consent—and the pros and cons of choosing each one.

Posted in International/EU Privacy

Safe Harbor Invalidated – What Next?

On 6 October 2015, the Court of Justice of the European Union declared the EU-US Safe Harbor framework invalid as a mechanism to legitimize transfers of personal data from the EU to the US. This decision effectively leaves any organisation that relied on Safe Harbor exposed to claims that such data transfers are unlawful. In this post, we outline the effects of the decision and a suggested plan of action, and include details for a webinar we will be hosting on Wednesday, 7 October to discuss the next steps that organisations should take.

Posted in International/EU Privacy

French Surveillance Law Permits Data Mining, Drawing Criticism from Privacy Advocates

Adopted by Parliament in June 2015, France’s new surveillance law was ratified by the President on July 24, 2015 and published in France’s Official Journal on July 26, 2015. France’s Constitutional Court Court reviewed the law prior to its ratification and issued an opinion on July 23, 2015 requiring deletion of certain measures that the Court felt were incompatible with constitutional principles. However a number of observers were surprised that the Court validated a provision of the law allowing intelligence agencies to deploy algorithms to analyze traffic and log data to detect potential terrorist threats. To some lawyers, analyzing the traffic and log data of the entire population of France violates the proportionality principle set forth in the European Court of Justice’s Digital Rights Ireland decision.

Posted in International/EU Privacy

CNIL Releases BYOD Guidelines

Security concerns and the need to increase cyber security measures have recently boosted the use of Bring Your Own Device policies in France. Recent events have exacerbated fears of data breaches and hacking for IT managers who were not overly concerned before. As a consequence, IT security teams are seeking to apply the same security and device management systems that apply to their own company’s equipment to employees’ devices when employees use their devices for work purposes. The expansion of an employer’s control over its employees’ devices raises concerns for the privacy and protection of employees’ personal data. The CNIL has published new guidelines on BYOD. An unofficial English translation of the guidelines appear in this post.

Posted in International/EU Privacy

French Consumer Protection Panel Flags Unfair Privacy Practices

Like the United States, France has a broadly-worded consumer protection statute prohibiting unfair clauses in consumer contracts (the French term is “clauses abusives”). What constitutes an “unfair” clause is in some cases fixed by regulation. But in many cases, the term is left to the interpretation of the courts and France’s consumer protection agency, the DGCCRF. France created an advisory panel to issue guidance on what constitutes an unfair clause in various circumstances. On December 3, 2014, the panel published a lengthy opinion identifying 46 clauses in social media terms of use and privacy policies that the panel considers unfair.

Posted in International/EU Privacy

New CNIL Accountability Standard May Become European Model

The chairwoman of the French data protection authority (the CNIL), Isabelle Falque-Pierrotin, has long been an outspoken proponent that companies should have internal accountability mechanisms for data protection compliance. On January 13, 2015 the CNIL published a standard defining what accountability means in practice. Companies that demonstrate that they comply with the new standard will be able to obtain an “accountability seal” from the CNIL.

Posted in International/EU Privacy

CNIL International Chief Discusses Safe Harbor and Onward Transfer

Following on the heels of the IAPP Congress in Brussels, the CNIL’s (the French data protection authority) international chief, Florence Raynal, engaged in a dialogue with the members of the American Chamber of Commerce’s Digital Economy Committee in France. Raynal engaged with AmCham members on questions relating to the EU-US Safe Harbor framework, focusing on the practicalities of onward transfers. The discussion involved two kinds of transfers.

Posted in International/EU Privacy

EU Regulation: Article 29 Chief Criticizes Risk-Based Approach

Addressing the French Parliamentary Commission on Digital Rights, CNIL and Article 29 Working Party Chair Isabelle Falque-Pierrotin commented on the current state of negotiations of the proposed European General Data Protection Regulation, warning that excessive reliance on a risk-based approach could undermine fundamental rights. A risk analysis is useful as a guide to allocate resources, but should not affect the underlying rights of the data subject, she said. To illustrate her point, Falque-Pierrotin used the analogy of a home owner who lives in a part of the city where burglaries are frequent. The risk-based approach means that the home owner will buy more locks for doors, and that police authorities may devote more resources to patrolling. It does not mean, however, that home owners have different rights depending on where they live. Falque-Pierrotin is concerned that the current negotiations on the risk-based approach may confuse these two concepts, leading to a situation where individuals’ rights are reduced or ignored for low-risk processing.

Posted in International/EU Privacy

French Official Recommends Increased Supervision Over Government Data-Gathering

During a November 13, 2014 hearing before the Digital Rights Commission of the French National Assembly, Jean-Marie Delarue, the head of France’s oversight Commission for National Security Interceptions said that France’s 1991 law on national security wiretaps needed to be updated to better protect individuals. Currently, the CNCIS is consulted by the Prime Minister’s office before the implementation of national security wiretaps. According to Mr. Delarue, this system works well for wiretaps. But the collection of metadata falls largely outside this procedure. According to Delarue, a major overhaul of the 1991 law on national security wiretaps is needed to catch up with modern intelligence gathering techniques and to better reflect the case law of the European Court of Human Rights. According to Delarue, justifications for government invasion of privacy need to be narrowly defined by law. Broad justifications such as “fundamental interests of the nation” are too vague to withstand scrutiny under European constitutional principles.