Tag Archives: article 29 working party

CNIL publishes GDPR compliance toolkit

CNIL published this week a useful guide for all organisations thinking to start getting ready for GDPR compliance, but asking themselves “where to start?”. The French DPA created a dedicated page for the new “toolkit“, while detailing each of the six proposed steps towards compliance by also referring to available templates (such as a template for the Register of processing operations and a template for data breach notifications – both in FR).

According to the French DPA, “the new ‘accountability’ logic under the GDPR must be translated into a change of organisational culture and should put in motion internal and external competences”.

The six steps proposed are:

  1. Appointing a “pilot”/”orchestra conductor” [n. – metaphors used in the toolkit], famously known as “DPO”, even if the controller is not under the obligation to do so. Having a DPO will make things easier.
  2. Mapping all processing activities (the proposed step goes far beyond data mapping, as it refers to processing operations themselves, not only to the data being processed, it also refers to cataloging the purposes of the processing operations and identifying all sub-contractors relevant for the processing operations);
  3. Prioritising the compliance actions to be taken, using as starting point the Register and structuring the actions on the basis of the risks the processing operations pose to the rights and freedoms of individuals whose data are processed. Such actions could be, for instance, making sure that they process only the personal data necessary to achieve the purposes envisaged or revising/updating the Notice given to individuals whose data are processed (Articles 12, 13 and 14 of the Regulation);
  4. Managing the risks, which means conducting DPIAs for all processing operations envisaged that may potentially result in a high risk for the rights of individuals. CNIL mentions that the DPIA should be done before collecting personal data and before putting in place the processing operation and that it should contain a description of the processing operation and its purposes; an assessment of the necessity and the proportionality of the proposed processing operation; an estimation of the risks posed to the rights and freedoms of the data subjects and the measures proposed to address these risks in order to ensure compliance with the GDPR.
  5. Organising internal procedures that ensure continuous data protection compliance, taking into account all possible scenarios that could intervene in the lifecycle of a processing operation. The procedures could refer to handling complaints, ensuring data protection by design, preparing for possible data breaches and creating a training program for employees.
  6. Finally, and quite importantly, Documenting compliance. “The actions taken and documents drafted for each step should be reviewed and updated periodically in order to ensure continuous data protection”, according to the CNIL. The French DPA  provides a list with documents that should be part of the “GDPR compliance file”, such as the Register of processing operations and the contracts with processors.

While this guidance is certainly helpful, it should be taken into account that the only EU-wide official guidance is the one adopted by the Article 29 Working Party. For the moment, the Working Party published three Guidelines for the application of the GDPR – on the role of the DPO, on the right to data portability and on identifying the lead supervisory authority. The Group is expected to adopt during the next plenary guidance for Data Protection Impact Assessments.

If you are interested in other guidance issued by individual DPAs, here are some links:

NOTE: The guidance issued by CNIL was translated and summarised from French – do not use the translation as an official source. 

***

Find what you’re reading useful? Please consider supporting pdpecho.

Advertisements

WP29 published its 2017 priorities for GDPR guidance

The Article 29 Working Party published in mid January the new set of priorities for providing GDPR guidance for 2017. This happened after WP29 published in December three sets of much awaited Guidelines on the application of the GDPR: on Data Protection Officers, on the right to data portability and on identifying the lead supervisory authority (pdpEcho intends to provide a closer look to all of them in following weeks). So what are the new priorities?

First of all, WP29 committed to finalise what was started in 2016 and was not adopted/finalised by the end of the year:

  • Guidelines on the certification mechanism;
  • Guidelines on processing likely to result in a high risk and Data Protection Impact Assessments;
  • Guidance on administrative fines;
  • Setting up admin details of the European Data Protection Board (e.g. IT, human resources, service level agreements and budget);
  • Preparing the one-stop-shop and the EDPB consistency mechanism

Secondly, WP29 engaged to start assessments and provide guidance for.

  • Consent;
  • Profiling;
  • Transparency.

Lastly, in order to take into account the changes brought by the GDPR, WP29 intends to update the already existing guidance on:

  • International data transfers;
  • Data breach notifications.

If you want to be a part of the process, there are good news. WP29 wants to organise another FabLab on April 5 and 6 on the new priorities for 2017, where “interested stakeholders will be invited to present their views and comments”. For more details, regularly check this link.

It seems we’re going to have a busy year.

 

CNIL just published the results of their GDPR public consultation: what’s in store for DPOs and data portability? (Part I)

Gabriela Zanfir Fortuna

The French Data Protection Authority, CNIL, made public this week the report of the public consultation it held between 16 and 19 July 2016 among professionals about the General Data Protection Regulation (GDPR). The public consultation gathered 540 replies from 225 contributors.

The main issues the CNIL focused on in the consultation were four:

  • the data protection officer;
  • the right to data portability;
  • the data protection impact assessments;
  • the certification mechanism.

These are also the four themes in the action plan of the Article 29 Working Party for 2016.

This post (Part I) will summarise the results and action plan for the first two themes, while the last two will be dealt with in a second post (Part II). [Disclaimer: all quotations are translated from French].

1) On the data protection officer

According to Article 37 GDPR, both the controller and the processor must designate a data protection officer where the processing is carried out by a public authority (1)(a), where their core activities consist of processing operations which require regular and systematic monitoring of data subjects on a large scale (1)(b) and where their core activities consist of processing sensitive data on a large scale (1)(c).

The report reveals that there are many more questions than answers or opinions about how Article 37 should be applied in practice. In fact, most of the contributions are questions from the contributors (see pages 2 to 4). They raise interesting points, such as:

  • What is considered to be a conflict of interest – who will not be able to be appointed?
  • Should the DPO be appointed before May 2018 (when GDPR becomes applicable)?
  • Will the CNIL validate the mandatory or the optional designation of a DPO?
  • Which will exactly be the role of the DPO in the initiative for and in the drafting of the data protection impact assessments?
  • Which are the internal consequences if the recommendations of the DPO are not respected?
  • Is it possible that the DPO becomes liable under Criminal law for how he/she monitors compliance with the GDPR?
  • Should the DPO be in charge of keeping the register of processing operations and Should the register be communicated to the public?
  • Should only the contact details of the DPO be published, or also his/her identity?
  • Must the obligations in the GDPR be applied also for the appointment of the DPO that is made voluntarily (outside the three scenarios in Article37(1))?
  • Can a DPO be, in fact, a team? Can a DPO be a legal person?
  • Are there any special conditions with regard to the DPO for small and medium enterprises?

The CNIL underlines that for this topic an important contribution was brought by large professional associations during discussions, in addition to the large number of replies received online.

In fact, according to the report, the CNIL acknowledges “the big expectations of professional associations  and federations to receive clarifications with regard to the function of the DPO, as they want to prepare as soon as possible and in a sustainable way for the new obligations” (p. 5).

As for future steps, the CNIL recalls that the Article 29 Working Party will publish Guidelines to help controllers in a practical manner, according to the 2016 action plan. (There’s not much left of 2016, so hopefully we’ll see the Guidelines soon!). The CNIL announces they will also launch some national communication campaigns and they will intensify the training sessions and workshops with the current CILs (Correspondants Informatique et Libertés – a role similar to that of a DPO).

2) On the right to data portability

new-note-2

Article 20 GDPR provides that the data subject has the right to receive a copy of their data in a structured, commonly used and machine-readable format and has the right to transmit those data to another controller only if the processing is based on consent or on a contract.

First, the CNIL notes that there was “a very strong participation of the private sector submitting opinions or queries regarding the right to data portability, being interesting especially about the field of application of the new right, the expenses its application will require and about its consequences on competition” (p. 6).

According to the report, the right to data portability it’s perceived as an instrument that allows regaining the trust of persons about processing of their personal data, bringing more transparency and more control over the processing operation (p. 6).

On another hand, the organisations that replied to the public consultation are concerned about the additional investments they will need to make to implement this right. They are also concerned about (p. 6):

  • “the risk of creating an imbalance in competition between European and American companies, as European companies are directly under the obligation to comply with this right, whereas American companies may try to circumvent the rules”. My comment here would be that they should not be concerned about that, because if they target the same European public to offer services, American companies will also be under a direct obligation to comply with this right.
  • “the immediate cost of implementing this right (for instance, the development of automatic means to extract data from databases), which cannot be charged to the individuals, but which will be a part of the management costs and will increase the costs for the services”.
  • “the level of responsibility if the data are mishandled or if the data handed over to the person are not up to date”.

The respondents to the public consultation seem to be a good resource for technical options to use in terms of the format needed to transfer data. Respondents argued in favor of open source formats, which will make reusing the data easier and which will be cheaper compared to proprietary solutions. Another suggested solution is the development of Application Program Interfaces (APIs) based on open standards, without a specific licence key. This way the persons will be able to use the tools of their choice.

One of the needs that emerged from the consultation was to clarify whether the data that are subject to the right to portability must be raw data, or whether transferring a “summary” of the data would suffice. Another question was whether the data could be asked for by a competing company, with a mandate from the data subject. There were also questions regarding the interplay of the right to data portability and the right of access, or asking how could data security be ensured for the transfer of the “ported” data.

In the concluding part, the CNIL acknowledges that two trends could already be seen within the replies: on the one hand, companies tend to want to limit as much as possible the applicability of the right to data portability, while on the other hand, the representatives of the civil society are looking to encourage persons to take their data in their own hands and to reinvent their use (p. 10).

According to the report, the Technology Subgroup of the Article 29 Working Party is currently drafting guidelines with regard to the right to data portability. “They will clarify the field of application of this right, taking into account all the questions raised by the participants to the consultation, and they will also details ways to reply to portability requests”, according to the report (p. 10).

***

Find what you’re reading useful? Consider supporting pdpecho.

Click HERE for Part II of this post.

Analysis of the AG Opinion in the “PNR Canada” Case: unlocking an “unprecedented and delicate” matter

AG Mengozzi delivered his Opinion in the EU-Canada PNR case (Opinion 1/15) on 8 September 2016. While his conclusions clearly indicate that, in part, the current form of the agreement between Canada and the EU “on the transfer and processing of Passenger Name Record data” is not compliant with EU primary law – and in particular with Articles 7, 8 and 52(1) of the Charter[1] and Article 16(2) TFEU[2], the AG seems to accept that PNR schemes in general (involving indiscriminate targeting, profiling, preemptive policing) are compatible with fundamental rights in the EU.

In summary, it seems to me that the AG’s message is: “if you do it unambiguously and transparently, under independent supervision, and without sensitive data, you can process PNR data of all travellers, creating profiles and targeting persons matching patterns of suspicious behaviour”.

This is problematic for the effectiveness of the right to the protection of personal data and the right to respect for private life. Even though the AG agrees that the scrutiny of an international agreement such as the EU-Canada PNR Agreement should not be looser than that of an ordinary adequacy decision or that of an EU Directive, and considers that both Schrems and Digital Rights Ireland should apply in this case, he doesn’t apply in all instances the rigorous scrutiny the Court uses in those two landmark judgments. One significant way in which he is doing this is by enriching the ‘strict necessity test’ so that it comprises a “fair balance” criterion and an “equivalent effectiveness” threshold (See Section 5).

On another hand, AG Mengozzi is quite strict with the safeguards he sees as essential in order to make PNR agreements such as the one in this case compatible with fundamental rights in the EU.

Data protection authorities have warned time and again that PNR schemes are not strictly necessary to fight terrorism, serious and transnational crimes – they are too invasive and their effectiveness has not yet been proven. The European Data Protection Supervisor – the independent advisor of the EU institutions on all legislation concerning processing of personal data, has issued a long series of Opinions on PNR schemes – be it in the form of international agreements on data transfers, adequacy decisions or EU legislation, always questioning their necessity and proportionality[3]. In the latest Opinion from this series, on the EU PNR Directive, the EDPS clearly states that the non-targeted and bulk collection and processing of data of the PNR scheme amount to a measure of general surveillance” (§63) and in the lack of appropriate and unambiguous evidence that such a scheme is necessary, the PNR scheme is not compliant with Articles 7, 8 and 52 of the Charter, Article 16 TFEU and Article 8 ECHR (§64).

The Article 29 Working Party also has a long tradition in questioning the idea itself of a PNR system. A good reflection of this is Opinion 7/2010, where the WP states that “the usefulness of large-scale profiling on the basis of passenger data must be questioned thoroughly, based on both scientific elements and recent studies” (p. 4) and declares that it is not satisfied with the evidence for the necessity of such systems.

The European Parliament suspended the procedure to conclude the Agreement and decided to use one of its new powers granted by the Treaty of Lisbon and asked the CJEU to issue an Opinion on the compliance of the Agreement with EU primary law (TFEU and the Charter).

Having the CJEU finally look at PNR schemes is a matter of great interest for all EU travellers, and not only them. Especially at a time like this, when it feels like surveillance is served to the people by states all over the world – from liberal democracies to authoritarian states, as an acceptable social norm.

General remarks: first-timers and wide implications

The AG acknowledges in the introductory part of the Opinion that the questions this case brought before the Court are “unprecedented and delicate” (§5). In fact, the AG observes later on in the Opinion that the “methods” applied to PNR data, once transferred, in order to identify individuals on the basis of patterns of behavior of concern are not at all provided for in the agreement and “seem to be entirely at the discretion of the Canadian authorities” (§164). This is why the AG states that one of the greatest difficulties of this case is that it “entails ascertaining … not merely what the agreement envisaged makes provision for, but also, and above all, what it has failed to make provision for” (§164).

The AG also makes it clear in the beginning of the Opinion that the outcome of this case has implications on the other “PNR” international agreements the EU concluded with Australia and the US and on the EU PNR Directive (§4). A straightforward example of a possible impact on these other international agreements, beyond analyzing their content, is the finding that the legal basis on which they were adopted is incomplete (they must be also based on Article 16 TFEU) and wrong (Article 82(1)(d) TFEU on judicial cooperation is incompatible as legal basis with PNR agreements).

The implications are even wider than the AG acknowledged. For instance, a legal instrument that could be impacted is the EU-US Umbrella Agreement – another international agreement on transfers of personal data from the EU to the US in the law enforcement area, which has both similarities and differences compared to the PNR agreements. In addition, an immediately affected legal process will be the negotiations that the European Commission is currently undertaking with Mexico for a PNR Agreement.

Even if it is not an international agreement, the adequacy decision based on the EU-US Privacy Shield deal could be impacted as well, especially with regard to the findings on the independence of the supervisory authority in the third country where data are transferred (See Section 6 for more on this topic).

Finally, the AG also mentions that this case allows the Court to “break the ice” in two matters:

  • It will examine for the first time the scope of Article 16(2) TFEU (§6) and
  • rule for the first time on the compatibility of a draft international agreement with the fundamental rights enshrined in the Charter, and more particularly with those in Article 7 and Article 8 (§7).

Therefore, the complexity and novelty of this case are considerable. And they are also a good opportunity for the CJEU to create solid precedents in such delicate matters.

I structured this post around the main ideas I found notable to look at and summarize, after reading the 328-paragraphs long Opinion. In order to make it easier to read, I’ve split it into 6 Sections, which you can find following the links below.

  1. De-mystifying Article 16 TFEU: yes, it is an appropriate legal basis for international agreements on transfers of personal data
  2. A look at the surface: it is not an adequacy decision, but it establishes adequacy
  3. An interference of “a not insignificant gravity”: systematic, transforming all passengers into potential suspects and amounting to preemptive policing
  4. Innovative thinking: Article 8(2) + Article 52(1) = conditions for justification of interference with Article 8(1)
  5. The awkward two level necessity test that convinced the AG the PNR scheme is acceptable
  6. The list of reasons why the Agreement is incompatible with the Charter and the Treaty

……………………………………………………….

[1] Article 7 – the right to respect for private life, Article 8 – the right to the protection of personal data, Article 52(1) – limitations of the exercise of fundamental rights.

[2] With regard to the obligation to have independent supervision of processing of personal data.

[3] See the latest one, Opinion 5/2015 on the EU PNR Directive and see the Opinion on the EU-Canada draft agreement.

***

Find what you’re reading useful? Consider supporting pdpecho.

Why (I think) the WP29 Statement on the Privacy Shield is not really a ‘carte blanche’ for one year

The Plenary of the Article 29 Working Party (composed of national Data Protection Authorities – DPAs – in Europe and the European Data Protection Supervisor) met on 26 July to discuss, among other topics, the adopted text of the EU-US Privacy Shield and its accompanying adequacy decision issued by the European Commission  on 12 July.

The Group adopted a Statement concerning its assessment of the adopted version of the Privacy Shield. To make a long story short, WP29 issued an Opinion on the Privacy Shield  on 13 April, containing concerns, some of which outstanding, about the level of protection afforded by the Privacy Shield to personal data transferred from the EU to the U.S.. This, together with a later Opinion issued by the European Data Protection Supervisor, prompted the Commission to go back to the negotiation table with representatives of the U.S. government in order to alleviate these concerns. On 12 July, after passing through the vote of the Article 31 Committee, the final text of the Privacy Shield was adopted by the Commission.

The Statement issued by WP29 is meant to address the changes brought to the text of the Privacy Shield after the last rounds of negotiations. Have the two negotiating parties addressed the concerns raised by DPAs? Have they provided the requested clarifications?

WP29 stated that:

‘a number of these concerns remain regarding both the commercial aspects and the access by U.S. public authorities to data transferred from the EU.’

The WP29 statement is very brief – so the Group preferred not to launch in an extensive legal analysis of the changes brought to the text. This would have required more time and the benefits of a detailed analysis at this stage, after the text has just been adopted, are few. However, the messages are very clear in the one-pager statement and they are quite critical.

The DPAs highlight three key issues that were not solved regarding transfers in the commercial area (and they mention these three as an example, suggesting thus that there are more ‘concerns’ which have not been dealt with):

  • the lack of specific rules on automated decisions (profiling)
  • the lack of a general right to object
  • the fact that it remains unclear how the Privacy Shield Principles apply to processors

WP29 also refers to two issues that are not entirely solved regarding access by law enforcement to the transferred data:

  • the guarantees concerning the independence and the powers of the Ombudsperson mechanism are not strict enough
  • the lack of concrete assurances that such practice does not take place (while, at the same time, noting ‘the commitment of the ODNI not to conduct mass and indiscriminate collection of personal data’ – yes, collection and not use)

At least the two last points stand right at the essence of the right to personal data protection and, respectively, the right to respect for private life. The first one has the ability to trigger a breach of Article 8(3) of the Charter of EU (independence of supervisory authorities) and the second one could amount to ‘legislation permitting the public authorities to have access on a generalised basis to the content of electronic communications’. And, as the CJEU found, such legislation ‘must be regarded as compromising the essence of the fundamental right to respect for private life, as guaranteed by Article 7 of the Charter’ (para 94 of the Schrems judgement).

Moreover, even the former three identified points of concern could be understood as lacking to implement the general obligation to protect personal data from Article 8(1) of the Charter, were they to be analysed by a Court. (For a similar reasoning, but concerning the rules on international data transfers, see para 72 of the Schrems judgment.)

So, why do I think WP29 did not give a ‘carte blanche’ or a ‘green light’ for the application of the Privacy Shield?

First, because it is not in its competence to do so. According to Article 29(1) of Directive 95/46, the WP29 ‘shall have advisory status’. Article 30 of the Directive enumerates all the competences and powers of the Working Party – giving opinions, informing the Commission, issuing recommendations, advising the Commission. WP29 is not a Court. It is not even an administrative body that can deal with complaints and issue enforceable decisions to solve them. It cannot simply decide that a legal act issued by the European Commission (such as an adequacy decision) will be disapplied. Or, even more so, annulled.

The CJEU was more than clear in Schrems when stating that ‘the Court (of Justice of the EU – my addition) alone has jurisdiction to declare that an EU act, such as a Commission decision adopted pursuant to Article 25(6) of Directive 95/46, is invalid, the exclusivity of that jurisdiction having the purpose of guaranteeing legal certainty by ensuring that EU law is applied uniformly’ (para 61 of the judgment).

WP29 could not challenge the Privacy Shield in Court, either. It does not have this competence.

The ones that could indeed challenge the validity of the adequacy decision are the individual members of the Article 29 Working Party, the national DPAs – and only those whose national law gives them the legal standing to go to their national Courts (the others could also initiate such proceedings, if they would know how to directly invoke in front of the national courts the provisions of Directive 95/46 granting them this competence – third indent of Article 28(3); but this is another EU law discussion).

However, just as the CJEU points out in the Schrems judgment, court proceedings initiated by the DPAs are most likely to be possible only in situations where a complaint was made by an individual  (this also depends on national procedural laws of EU Member States) and the DPA happens to agree with the complainant.

‘where the national supervisory authority considers that the objections advanced by the person who has lodged with it a claim concerning the protection of his rights and freedoms in regard to the processing of his personal data are well founded, that authority must, in accordance with the third indent of the first subparagraph of Article 28(3) of Directive 95/46, read in the light in particular of Article 8(3) of the Charter, be able to engage in legal proceedings‘. (CJEU, para. 65 of Schrems)

Perhaps it is not a coincidence that the only concrete immediate step mentioned by the WP29 in its Statement is the commitment of its members to ‘proactively and independently assist the data subjects with exercising their rights under the Privacy Shield mechanism, in particular when dealing with complaints‘.

Another concrete step the WP29 can do about the level of protection of the safeguards contained in the Privacy Shield is, indeed, focusing on the first Joint Annual Review. The Review will probably be done at the beginning of Summer in 2017, close to the 1 year anniversary of its adoption – and it is the quickest way to have the adequacy decision of the Privacy Shield to be suspended or repealed (see paragraphs 150 and 151 of the adequacy decision), if it indeed does not provide for an adequate level of protection.

In the meantime, the members of the WP29 can very well use as guidance the complex analysis in the 58 pages of the Opinion on the draft Privacy Shield issued on 13 April when they will be dealing with complaints.

This is why I think that yesterday’s Statement is not the ‘carte blanche’ or ‘the green light’ almost everyone thought it was.

***

If you want to read more on the topic:

EU privacy watchdogs keep open mind on new U.S. data privacy pact (Reuters)

EU watchdogs permit Privacy Shield to run for one year (BBC)

EU Privacy Regulators Give Green Light to Data-Transfer Pact with U.S. (WSJ)

EU privacy watchdogs vow to thoroughly frisk Privacy Shield next year (Arstechnica)

Les gendarmes européens de la vie privée critiquent l’accord Privacy Shield (Le Monde)

Article 29 WP issued its Opinion on the data protection reform package

Article 29 Working Party adopted on 23 March its Opinion on the proposed EU data protection reform package, criticizing the lack of ambition of the Directive regarding data protection in police and criminal justice matters and also finding some flaws in the proposed Regulation.

You can find the original text HERE.

I will only highlight here the notes of the WP29 regarding the  “Right to liability and compensation”.

“The Working Party welcomes the provisions introduced in Article 77(1) to ensure any person who has suffered damage as a result of an unlawful processing operation or an action incompatible with the Regulation has the right to receive compensation by the controller or processor for the damage suffered.

The Working Party also welcomes the fact that Article 77(2) ensures that the data subject does not bear the burden of addressing the responsible controller in case more than one controller or processor is involved in the processing.

The Working Party considers however that it is necessary to clarify (in a recital) that the word “damage” does not merely mean material harm but also includes distress (harm that is not material). 

If there is a decision taken by another DPA, (for example, the DPA of the main establishment) affecting or producing a prejudice to the data subject, the latter should be able to bring action against this decision before the administrative courts of her/his country of residence.

The solution as proposed by the European Commission, to have either the data subject or the DPA to bring action against the other DPA on the territory of this DPA is far from satisfactory. The Working Party calls for a system that allows data subjects to bring action against an administrative decision before the administrative court of their country of residence.”