Category Archives: EDPB

July 20, 2024 · 9:11 pm

Crowdstrike and personal data breaches: loss vs unavailability

I ran a poll on LinkedIn in recent days which asked “If a controller temporarily can’t access personal data on its systems because of the Crowdstrike/MSFT incident is it a personal data breach?”

I worded the question carefully.

50% of the 100-odd people who voted said “no” and 50% said “yes”. The latter group are wrong. I say this with some trepidation because there are people in that group whose opinion I greatly respect.

But here’s why they, and, indeed, the Information Commissioner’s Office and the European Data Protection Board, are wrong.

Article 4(12) of the GDPR/UK GDPR defines a “personal data breach”. This means that it is a thing in itself. And that is why I try always to use the full term, or abbreviate it, as I will here, to “PDB”.

This is about the law, and in law, words are important. To refer to a PDB as the single word “breach” is a potential cause of confusion, and both the ICO and the EDPB guidance are infected by and diminished by sloppy conflation of the terms “personal data breach” and “breach”. In English, at least, and in English law, the word “breach” will often be used to refer to a contravention of a legal obligation: a “breach of the law”. (And in information security terminology, a “breach” is generally used to refer to any sort of security breach.) But a “breach” is not coterminous with a “personal data breach”.

And a PDB is not a breach of the law: it is a neutral thing. It is also crucial to note that nowhere do the GDPR/UK GDPR say that there is an obligation on a person (whether controller or processor) not to experience a PDB, and nowhere do GDPR/UK GDPR create liability for failing to prevent one occurring. This does not mean that where a PDB has occurred because of an infringement of other provisions which do create obligations and do confer liability (primarily Article 5(1)(f) and Article 32) there is no potential liability. But not every PDB arises from an infringement of those provisions.

The Article 4(12) definition is “a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed”. Let us break that down:

A breach of security…
leading to [one or more of]
accidental or unlawful…
1. destruction of…
2. loss of…
3. alteration of…
4. unauthorised disclosure of…
5. unauthorised access to…
personal data processed.

If an incident is not a breach of security, then it’s not a PDB. And if it is a breach of security but doesn’t involve personal data, it’s not a PDB. But even if it is a breach of security, and involves personal data, it’s only a PDB if one of the eventualities I’ve numbered 1 to 5 occurs.

Note that nowhere in 1 to 5 is there “unavailability of…” or “loss of access to…”.

Now, both the ICO, and the EDPB, read into the words “loss of…personal data…” the meaning, or potential meaning “loss of availability of personal data”. But in both cases they appear to do so in the context of saying, in terms, “loss of availability is Article 4(12) ‘loss’ because it can cause harm to data subjects”. I don’t dispute, and nor will many millions of people affected by the Crowdstrike incident, that unavailability of personal data can cause harm. But to me, “loss” means loss: I had something, and I no longer have it. I believe that that is how a judge in the England and Wales courts would read the plain words of Article 4(12), and decide that if the legislator had intended “loss” to mean something more than the plain meaning of “loss” – so that it included a meaning of “temporary lack of access to” – then the legislator would have said so.

Quite frankly, I believe the ICO and EDPB guidance are reading into the plain wording of the law a meaning which they would like to see, and they are straining that plain wording beyond what is permissible.

The reason, of course, that this has some importance is that Article 33 of the GDPR/UK GDPR provides that “in the case of” (note the neutral, “passive” language) a PDB, a controller must in general make a notification to the supervisory authority (which, in the UK, is the ICO), and Article 34 provides that where a PDB is likely to result in a high risk to the rights and freedoms of natural persons, those persons should be notified. If a PDB has not occurred, no obligation to make such notifications arises. That does not mean of course, that notifications cannot be made, through an exercise of discretion (let’s forget for the time being – because they silently resiled from the point – that the ICO once bizarrely and cruelly suggested that unnecessary Article 33 notifications might be a contravention of the GDPR accountability principle.)

It might well be that the actions or omissions leading to a PDB would constitute an infringement of Articles 5(1)(f) and 32, but if an incident does not meet the definition in Article 4(12), then it’s not a PDB, and no notification obligation arises. (Note that this is an analysis of the position under the GDPR/UK GDPR – I am not dealing with whether notification obligations to any other regulator arise.)

I can’t pretend I’m wholly comfortable saying to 50% of the data protection community, and to the ICO and EDPB, that they’re wrong on this point, but I’m comfortable that I have a good arguable position, and that it’s one that a judge would, on balance agree with.

If I’m right, maybe the legislator of the GDPR/UK GDPR missed something, and maybe availability issues should be contained within the Article 4(12) definition. If so, there’s nothing to stop both the UK and the EU legislators amending Article 4(12) accordingly. And if I’m wrong, there’s nothing to stop them amending it to make it more clear. In the UK, in particular, with a new, energised government, a new Minister for Data Protection, and a legislative agenda that will include bills dealing with data issues, this would be relatively straightforward. Let’s see.

And I would not criticise any controller which decided it was appropriate to make an Article 33 notification. It might, on balance, be the prudent thing for some affected controllers to do so. The 50/50 split on my poll indicates the level of uncertainty on the part of the profession. One also suspects that the ICO and the EU supervisory authorities might get a lot of precautionary notifications.

Heck, I’ll say it – if anyone wants to instruct me and my firm to advise, both on law and on legal strategy – we would of course be delighted to do so.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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Filed under Data Protection, EDPB, GDPR, Information Commissioner, Let's Blame Data Protection, LinkedIn Post, personal data breach, UK GDPR

Tagged as data protection, GDPR, UK GDPR

June 4, 2021 · 6:38 pm

New Model Clauses – a Mishcon podcast

My colleagues, partners Adam Rose and Ashley Winton, discuss the new European Commission Standard Contractual Clauses announced on 4 June 2021. I honestly can’t think of two better people to discuss what they mean.

Initial Reactions: New Standard Contractual Clauses (mishcon.com)

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Filed under adequacy, Brexit, consistency, Data Protection, data sharing, EDPB, Europe, GDPR, international transfers, Schrems II

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June 1, 2021 · 9:33 am

ICO not compliant with post-Schrems II data protection law?

In which I finally receive a reply to my complaint about ICO’s Facebook page.

The issue of the transfer of personal data to the US has been the subject of much debate and much litigation. In 2015 the Court of Justice of the European Union (CJEU) struck down one of the then key legal mechanisms (“Safe Harbor”) for doing so. And in 2020 the CJEU did so with its successor, “Privacy Shield”. Both cases were initiated by complaints by lawyer and activist Max Schrems, and focused on the transfer of data from the EU to the US by Facebook.

Put simply, European data protection law, in the form of the GDPR and (as we must now talk about the UK in separate terms) UK data protection law, in the form of UKGDPR, outlaw the transfer of personal data to the US (or any other third country), unless the level of protection the data would receive in the EU, or the UK, is “not undermined” (see Chapter V of and recital 101 of GDPR/UKGDPR).

In “Schrems II” – the 2020 case – the CJEU not only struck down Privacy Shield – it effectively also laid down rules which needed to be followed if the alternative mechanisms, for instance using “standard contractual clauses” were to be used for transfers of personal data. Following the judgment, the European Data Protection Board (EDPB) issued guidance in the form of FAQs, which recommended an “assessment, taking into account the circumstances of the transfers, and supplementary measures you could put in place”. The EDPB guidance was subsequently endorsed by the UK’s own Information Commissioner’s Office (ICO)

The EDPB has recommended that you must conduct a risk assessment as to whether SCCs provide enough protection within the local legal framework, whether the transfer is to the US or elsewhere

What struck me as odd in all this is that the ICO themselves have a Facebook page. Given that Facebook’s own data governance arrangements involve the transfer of EU and UK users’ data to the US, and given that ICO don’t just operate their page as a newsletter, but actively encourage users to comment and interact on their page, it seemed to me that ICO were enabling the transfer of personal data by Facebook to the US. But even further than that, another CJEU judgment has previously made clear that operators of corporate Facebook pages may well function as a controller under the GDPR/UKGDPR, where they set parameters on the page. The Wirtschaftsakademie case held that – in the case of someone operating a “fan page”

While the mere fact of making use of a social network such as Facebook does not make a Facebook user a controller jointly responsible for the processing of personal data by that network, it must be stated, on the other hand, that the administrator of a fan page hosted on Facebook, by creating such a page, gives Facebook the opportunity to place cookies on the computer or other device of a person visiting its fan page, whether or not that person has a Facebook account.

By extension, it seemed to me, the ICO were in this position with their page.

So I put the point to them. After four months, and some chasing, I received a reply which not only confirmed my understanding that they are, and accept that they are, a controller, but that, nearly a year on from the Schrems II decision, they have not finished reviewing their position and have not updated their privacy notice to reflect their controller status in respect of their Facebook processing. (They also say that their legal basis for processing is “Article 6 (1) (e) of UK GDPR, public task” because “as a regulator we have a responsibility to promote good practice and engage with the public at large about data protection issues via commonly used platforms”, but I’d observe that they fail to give any attention to the proportionality test that reliance on this condition requires, and fail to point to the justification in domestic law, as required by Article 6.)

What the ICO response doesn’t do is actually respond to me as a data subject in respect of my complaint nor explain how they are complying with the international data transfer provisions of Chapter V of the GDPR/UKGDPR, and whether they have conducted any sort of transfer impact assessment (one presumes not).

As I said in my original complaint to ICO, I am aware that I might be seen as being mischievous, and I’m also aware I might be seen as having walked ICO into a trap. Maybe I am, and maybe I have, but there’s also a very serious point to be made. The cost to UK business of the Schrems II decision has been enormous, in terms of the legal advice sought, the internal governance reviews and risk assessments undertaken, and the negotiating or novation of contracts. At the same time the business and legal uncertainty is significant, with many wondering about their exposure to legal claims but also (and especially) to regulatory enforcement. If, though, the regulator is not complying with the relevant law, ten months on from the judgment (and five months on from my raising it with them as a concern) then what are controllers meant to do? And where do they turn to for guidance on the regulatory approach?

THE ICO RESPONSE
Firstly, it may be helpful to explain that following the findings of the CJEU in Wirtschaftsakademie, we started a review of the transparency information we provide to visitors of the page. The review was delayed when Schrems11 decision was issued as we needed to consider the impact of the judgement on any transfer element to the US.
We agree that as the Facebook page administrator, we are processing personal data of the visitors of our page and therefore we are controllers for this information. We process the names of the users as they appear on their Facebook profiles and any personal data they may share through their comments on our posts or via messages to us. We process this information in reliance on Article 6 (1) (e) of UK GDPR, public task. We consider that, as a regulator we have a responsibility to promote good practice and engage with the public at large about data protection issues via commonly used platforms.
For the cookies and similar technologies, Facebook is responsible for setting the cookies, when you visit our Facebook page.
We also receive anonymous information from Facebook in the form of aggregate statistics of all those who visit our page, regardless of whether they have a Facebook account or not. In line with the findings of the CJEU in Wirtschaftsakademie we are joint controllers with Facebook for this information. We process this information under Article 6 (1) (e) as well. The Insights include information on page viewings, likes, sharing of posts, age range, the device used and how it was accessed and breakdown of demographics. All Insights are received from Facebook by the ICO in aggregate format. Our PN will updated shortly to reflect the above information.
Like other regulators, the ICO is currently reviewing its position on international transfers following the judgment in Schrems II. As part of that review, it will, amongst other things, consider the questions that you have raised about the ICO’s use of Facebook. The ICO intends to publish its guidance on how UK organisations should address the question of international transfers, in due course, and will act in accordance with its guidance. That work is still in progress, and it will be published in due course.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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Filed under adequacy, data sharing, EDPB, facebook, GDPR, Information Commissioner, international transfers, privacy notice, privacy shield, safe harbor, Schrems II, UK GDPR

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February 14, 2021 · 12:53 pm

ICO and Article 27 representative liability

The ever-entertaining (but more importantly, ever-illuminating) Tim Turner has made available a recording of a webinar he did recently on the subject of representatives under Article 27 of the EU GDPR and the UK GDPR. Such representatives are required to be designated by controllers or processors who are outside the relevant jurisdiction, but who are subject to the extra-territorial provisions of Article 3(2) of EU GDPR or UK GDPR (thus, under Article 27 EU GDPR, a company outside the EU but offering goods or service to, or monitoring the behaviour of, data subjects in the EU, must appoint a representative in the EU, and under Article 27 UK GDPR, a company outside the UK but offering goods or service to, or monitoring the behaviour of, data subjects in the UK, must appoint a representative in the UK).

Tim’s webinar deals, in part, with what is expected of representatives, but also touches on their potential liability, and he points to – but doesn’t actually address – a remarkable assertion on the website of the Information Commissioner’s Office (ICO)

The EDPB’s view is that supervisory authorities are able to initiate enforcement action (including fines) against a representative in the same way as they could against the controller or processor that appointed them.

I describe this as remarkable, because it seems to completely misrepresent the guidance (of the European Data Protection Board) to which it refers (and links).

The issue of representative liability is an important one – many companies offer a contracted service under which they will act as a representative, and a commercial evaluation of such a service will inevitably need to consider whether being a representative exposes oneself to the possibility of regulatory action. Recital 80 of the EU GDPR and the UK GDPR says “The designated representative should be subject to enforcement proceedings in the event of non-compliance by the controller or processor” and much debate is there to be had on what it means. But the EDPB’s view is pretty clear, and it’s nothing like the view attributed to it by the ICO

The GDPR does not establish a substitutive liability of the representative in place of the controller or processor it represents in the Union. It should however be noted that the concept of the representative was introduced precisely with the aim of facilitating the liaison with and ensuring effective enforcement of the GDPR against controllers or processors that fall under Article 3(2) of the GDPR. To this end, it was the intention to enable supervisory authorities to initiate enforcement proceedings through the representative designated by the controllers or processors not established in the Union. This includes the possibility for supervisory authorities to address corrective measures or administrative fines and penalties imposed on the controller or processor not established in the Union to the representative… [emphasis added]

(It goes on to say that a representative will be directly liable only to the extent that it is infringing its direct obligations – namely to provide information to a supervisory authority under Article 58(1)(a) of GDPR, and to maintain a record of processing activities under Article 30.)

Whether the ICO’s assertion represents what it thinks a proper reading of the UK GDPR (including recital 80) should be, is an interesting question. The EDPB is, of course, no part of the UK GDPR regulatory and legal scheme, so ICO is free to disregard its views. What it shouldn’t be free to do though, really, is to attribute to the EDPB a position totally at odds with what the EDPB actually says.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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August 21, 2020 · 8:37 pm

One-stop shop starts to get interesting

The disagreement between the EU supervisory authorities over an Irish DPC draft decision could mark the start of a line of cases which the EDPB will need to resolve – and maybe resolve to the consternation of the DPC, and Big Tech

As the UK hurtles backwards, blindfolded and with both arms tied behind its back, towards the precipice that is the end of the Brexit implementation period (31 December), and with no sign that the government is particularly pushing for an adequacy decision for the UK, it hardly seems worth it (the ICO is, for instance, already no longer a member) to analyse the implications of the news that the European Data Protection Board (EDPB) is being required to take its first binding decision pursuant to Article 65 of GDPR.

But I’m going to.

The Article 65 process has been triggered because an unspecified number of other supervisory authorities have raised objections (as they are entitled to) to the draft decision of the Irish Data Protection Commissioner (DPC) – the lead supervisory authority – in its investigation of of whether Twitter (more correctly “Twitter International Company”) complied with its personal data breach obligations under Article 33 of GDPR, in relation to a notification it made to the DPC in November 2018. In line with Articles 56 and 60, the DPC submitted its draft decision in May of this year. As this was a case involving cross-border processing, the DPC was required to cooperate with the other supervisory authorities concerned. One assumes, given the controller involved, that this meant the supervisory authorities of all member states. One also assumes that most complaints involving Big Tech (many of whom tend to base their European operations in Ireland, thus making the DPC the default lead supervisory authority) will similarly engage the supervisory authorities of all member states. The DPC already has many such complaint investigations, and, courtesy of civil society groups like “NOYB“, it is likely to continue to get many more.

Article 65 provides that where another supervisory authority “has raised a relevant and reasoned objection” to a draft decision of the lead supervisory authority, and the latter then doesn’t agree, then the EDPB must step in to consider the objection. The EDPB then has one month (two if the subject matter is complex) to reach a two-thirds majority decision, or, failing that, within a further two weeks, to reach a simple majority decision. The decision is binding on all the supervisory authorities.

And here’s where it gets interesting.

Because it must mean that, in circumstances where the EDPB agrees with an objection, then the lead supervisory authority will be bound to accept a decision it probably still does not agree with, and determine the substantive matter accordingly. In the context of the DPC, and its jurisdiction over the European processing of the world’s largest technology companies, this sounds like it might be a lot of fun. There are many supervisory authorities on the EDPB who take a substantially harder line than the DPC – if they end up being part of a simple majority which results in a “robust” binding decision, fur might well fly.

The controller being investigated appears to be able to challenge the EDPB’s decision by way of judicial review under Article 263 of the Treaty of the Functioning of the European Union. There is no direct route of appeal under the GDPR. But presumably an aggrieved controller may also potentially challenge the lead supervisory authority’s decision (which, remember, the latter might essentially disagree with) through the domestic courts, perhaps to the point where a referral to the CJEU could then also be made.

No doubt some of this may become clearer over the next few months. And, though it pains me to say it, and though it would be a development fraught with complexity and political shenanigans, maybe the UK will start to look like a more attractive place for Big Tech to base its European operations.

[This piece was updated on 24.08.20 to correct/clarify a point about the availability of judicial review of the EDPB].

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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Tagged as data protection, Europe, GDPR

August 16, 2020 · 2:11 pm

Ofqual and the International Baccalaureate – more woes?

UPDATE: 23.08.20 One week on from this original post below, and it is clear (and unsurprising, when one reads the details) that many IB students are still deeply unhappy about the process, and now, with the u-turn on the A-Level awards, are arguably feeling even further aggrieved that their results are still tied to the outcome of what they see as a flawed an unfair algorithmic process. Also one week on, there seems to have been no word from the ICO about the decision of the Norwegian DPA, and what it means for UK IB students. END UPDATE.

UPDATE: 17.08.20 It appears that the IBO has responded to concerns (and possibly to the Norwegian DPA’s investigation, by reviewing the results, and making an adjustment to awarded results, with the emphasis that “no student will receive a lower grade than what was received previously”) END UPDATE.

In a piece for the Mishcon de Reya website last week, I noted, in the context of the recent A-Level awards fiasco, that the Norwegian Data Protection Authority had sent the International Baccalaureate Association (IBO) an advance notification that it was going to order the latter to rectify grades it had awarded based on “so-called ‘school context’ and ‘historical data'”. The IBO has until 21 August to “contradict” the Norwegian DPA’s draft decision.

What I had not fully appreciated were two things:

The effect of the Norwegian DPA’s draft decision, should it be formalised, may be that all IBO grades based on such data would have to be re-done, not just those of Norwegian children.
In a move now saturated with irony, the IBO’s grading process is, apparently, already being scrutinised by…erm…Ofqual, to whom the IBO’s awarding model was submitted , both prior to its actual use and to the issue of results.

The second point raises the rather remarkable possibility that Ofqual was a controller, in GDPR terms, for the International Baccalaureate model, as well as for the English A-Levels. This will only add to its already significant woes.

The first point turns on this: the IBO is based in Switzerland. Although Norway is not in the EU, it is in the European Economic Area (EEA), and by a joint agreement of July 2018 GDPR was incorporated into the EEA Agreement. To the extent that the IBO is offering (which it clearly is) goods or services to data subjects in the European Union, it is subject to GDPR’s extra-territorial provisions at Article 3(2). So, although in theory, the Norwegian DPA’s decision would only apply in respect of the processing of personal data in respect of Norwegian data subjects, in practice it is very difficult to see how the IBO could comply with an order only applying to Norwegians, when the effect of the order would be that IB candidates across everywhere would have had their data impermissibly processed in the same way. If it decided not to redo all awards, and just Norwegian ones, then presumably supervisory authorities across Europe, including the Information Commissioner in the UK, would need to investigate.

[This post was edited to reflect the blindingly obvious point that Norway is not in the EU, but is in the EEA. I’m embarrassed to admit that I’m only human]

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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