Protecting digital identity in the cloud: Regulating cross border data disclosure

Widespread use of cloud computing and other off-shore hosting and processing arrangements make regulation of cross border data one of the most significant issues for regulators around the world. Cloud computing has made data storage and access cost effective but it has changed the nature of cross border data. Now data does not have to be stored or processed in another country or transferred across a national border in the traditional sense, to be what we consider to be cross border data. Nevertheless, the notion of physical borders and transfers still pervades thinking on this subject. The European Commission (“EC”) is proposing a new global standard for data transfer to ensure a level of protection for data transferred out of the EU similar to that within the EU. This paper examines the two major international schemes regulating cross-border data, the EU approach and the US approach, and the new EC and US proposals for a global standard. These approaches which are all based on data transfer are contrasted with the new Australian approach which regulates disclosure. The relative merits of the EU, US and Australian approaches are examined in the context of digital identity, rather than just data privacy which is the usual focus, because of the growing significance of digital identity, especially to an individual's ability to be recognized and to transact. The set of information required for transactions which invariably consists of full name, date of birth, gender and a piece of what is referred to as identifying information, has specific functions which transform it from mere information. As is explained in this article, as a set, it literally enables the system to transact. For this reason, it is the most important, and most vulnerable, part of digital identity. Yet while it is deserving of most protection, its significance has been largely under-appreciated. This article considers the issues posed by cross border data regulation in the context of cloud computing, with a focus on transaction identity and the other personal information which make up an individual's digital identity. The author argues that the growing commercial and legal importance of digital identity and its inherent vulnerabilities mandate the need for its more effective protection which is provided by regulation of disclosure, not just transfer.     

The proposed data protection Regulation replacing Directive 95/46/EC: A sound system for the protection of individuals

The recent release by the European Commission of the first drafts for the amendment of the EU data protection regulatory framework is the culmination of a consulting and preparation process that lasted more than two years. At the same time, it opens up a law-making process that is intended to take at least as much time. The Commission has undertaken the herculean task to amend the whole EU data protection edifice, through the introduction of a General Data Protection Regulation, intended to replace the EU Data Protection Directive 95/46/EC, and a Police and Criminal Justice Data Protection Directive, intended to replace the Framework Decision 2008/977/JHA. This paper shall focus at the replacement of the EU Data Protection Directive by the draft General Data Protection Regulation. Due to the fact that the draft Regulation is a long (and ambitious) text, a selection has been made, with the aim of highlighting its treatment of basic data protection principles and elements, in order to identify merits and shortcomings for the general data protection purposes.     

EU GDPR or APEC CBPR? A comparative analysis of the approach of the EU and APEC to cross border data transfers and protection of personal data in the IoT era

This article examines the two major international data transfer schemes in existence today – the European Union (EU) model which at present is effectively the General Data Protection Regulation (GDPR), and the Asia-Pacific Economic Cooperation (APEC) Cross Border Privacy Rules system (CBPR), in the context of the Internet of Things (IoT).While IoT data ostensibly relates to things i.e. products and services, it impacts individuals and their data protection and privacy rights, and raises compliance issues for corporations especially in relation to international data flows. The GDPR regulates the processing of personal data of individuals who are EU data subjects including cross border data transfers. As an EU Regulation, the GDPR applies directly as law to EU member nations. The GDPR also has extensive extraterritorial provisions that apply to processing of personal data outside the EU regardless of place of incorporation and geographical area of operation of the data controller/ processor. There are a number of ways that the GDPR enables lawful international transfer of personal data including schemes that are broadly similar to APEC CBPR.APEC CBPR is the other major regional framework regulating transfer of personal data between APEC member nations. It is essentially a voluntary accountability scheme that initially requires acceptance at country level, followed by independent certification by an accountability agent of the organization wishing to join the scheme. APEC CBPR is viewed by many in the United States of America (US) as preferable to the EU approach because CBPR is considered more conducive to business than its counterpart schemes under the GDPR, and therefore is regarded as the scheme most likely to prevail.While there are broad areas of similarity between the EU and APEC approaches to data protection in the context of cross border data transfer, there are also substantial differences. This paper considers the similarities and major differences, and the overall suitability of the two models for the era of the Internet of Things (IoT) in which large amounts of personal data are processed on an on-going basis from connected devices around the world. This is the first time the APEC and GDPR cross-border data schemes have been compared in this way. The paper concludes with the author expressing a view as to which scheme is likely to set the global standard.     

The future of privacy certification in Europe: an exploration of options under article 42 of the GDPR

The EU faces substantive legislative reform in data protection, specifically in the form of the General Data Protection Regulation (GDPR). One of the new elements in the GDPR is its call to establish data protection certification mechanisms, data protection seals and marks to help enhance transparency and compliance with the Regulation and allow data subjects to quickly assess the level of data protection of relevant products and services. To this effect, it is necessary to review privacy and data protection seals afresh and determine how data protection certification mechanisms, seals or marks might work given the role they will be called to play, particularly in Europe, in facilitating data protection. This article reviews the current state of play of privacy seals, the EU policy and regulatory thrusts for privacy and data protection certification, and the GDPR provisions on certification of the processing of personal data. The GDPR leaves substantial room for various options on data protection certification, which might play out in various ways, some of which are explored in this article.     

EU General Data Protection Regulation: Changes and implications for personal data collecting companies

The General Data Protection Regulation (GDPR) will come into force in the European Union (EU) in May 2018 to meet current challenges related to personal data protection and to harmonise data protection across the EU. Although the GDPR is anticipated to benefit companies by offering consistency in data protection activities and liabilities across the EU countries and by enabling more integrated EU-wide data protection policies, it poses new challenges to companies. They are not necessarily prepared for the changes and may lack awareness of the upcoming requirements and the GDPR's coercive measures. The implementation of the GDPR requirements demands substantial financial and human resources, as well as training of employees; hence, companies need guidance to support them in this transition. The purposes of this study were to compare the current Data Protection Directive 95/46/EC with the GDPR by systematically analysing their differences and to identify the GDPR's practical implications, specifically for companies that provide services based on personal data. This study aimed to identify and discuss the changes introduced by the GDPR that would have the most practical relevance to these companies and possibly affect their data management and usage practices. Therefore, a review and a thematic analysis and synthesis of the article-level changes were carried out. Through the analysis, the key practical implications of the changes were identified and classified. As a synthesis of the results, a framework was developed, presenting 12 aspects of these implications and the corresponding guidance on how to prepare for the new requirements. These aspects cover business strategies and practices, as well as organisational and technical measures.     

The Patients’ Rights Directive (2011/24/EU) – Providing (some) rights to EU residents seeking healthcare in other Member States

This article presents the main elements of Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare, commonly known as the Patient’s Rights Directive. It is the latest EU initiative with regard to European Health Care and the Single Market. The main elements of the Directive contain provisions related to the prior authorisation of health care in another Member State, the reimbursement of such health care and the removal of unjustified obstacles to achieving these aims.These provisions largely reflect the recent case law of the European Court of the Justice (ECJ). Amongst these are provisions involving the use of personal data. Such provisions will engage data protection issues and will have to be carried out according to the data protection directives. Alongside this primary aim of codifying ECJ case law the Patient’s Rights Directive also introduces novel initiatives aimed at fostering cross border cooperation between various elements of national healthcare systems.Part 1 of this contribution will describe the legal basis and the aims of the PRD, Part 2 will describe the principle obligations placed on the Member States with regard to reimbursement, Parts 3 and 4 will describe other informational and procedural requirements placed upon the Member States of Treatment and Affiliation. Finally Part 5 will outline some of the novel initiatives that have been included in the PRD.The increases in the frequency of cross border-treatment that this directive attempts to facilitate are likely to see a concurrent increase in cross-border patient information flows. Such data flows will be subject to the Union’s provisions on Data Protection. It remains uncertain whether the EU’s Data Protection regime will act as inhibitor to cross-border medical treatment or rather represent a gold standard that allows patients to engage in such activities with peace of mind. The Patient’s Rights Directive will form part of the EU’s future e-Health strategy which envisages a large increase in the fluidity of patient data. A discussion of this directive is therefore merited in this journal.     

The thin red line: Refocusing data protection law on ADM,a global perspective with lessons from case-law

This article explores existing data protection law provisions in the EU and in six other jurisdictions from around the world - with a focus on Latin America - that apply to at least some forms of the processing of data typically part of an Artificial Intelligence (AI) system. In particular, the article analyzes how data protection law applies to “automated decision-making” (ADM), starting from the relevant provisions of EU's General Data Protection Regulation (GDPR). Rather than being a conceptual exploration of what constitutes ADM and how “AI systems” are defined by current legislative initiatives, the article proposes a targeted approach that focuses strictly on ADM and how data protection law already applies to it in real life cases. First, the article will show how GDPR provisions have been enforced in Courts and by Data Protection Authorities (DPAs) in the EU, in numerous cases where ADM is at the core of the facts of the case considered. After showing that the safeguards in the GDPR already apply to ADM in real life cases, even where ADM does not meet the high threshold in its specialized provision in Article 22 (“solely” ADM which results in “legal or similarly significant effects” on individuals), the article includes a brief comparative law analysis of six jurisdictions that have adopted general data protection laws (Brazil, Mexico, Argentina, Colombia, China and South Africa) and that are visibly inspired by GDPR provisions or its predecessor, Directive 95/46/EC, including those that are relevant for ADM. The ultimate goal of this study is to support researchers, policymakers and lawmakers to understand how existing data protection law applies to ADM and profiling.¹     

“In the public interest”: The privacy implications of international business-to-business sharing of cyber-threat intelligence

This article reports on preliminary findings and recommendations of a cross-discipline project to accelerate international business-to-business automated sharing of cyber-threat intelligence, particularly IP addresses. The article outlines the project and its objectives and the importance of determining whether IP addresses can be lawfully shared as cyber threat intelligence.The goal of the project is to enhance cyber-threat intelligence sharing throughout the cyber ecosystem. The findings and recommendations from this project enable businesses to navigate the international legal environment and develop their policy and procedures to enable timely, effective and legal sharing of cyber-threat information. The project is the first of its kind in the world. It is unique in both focus and scope. Unlike the cyber-threat information sharing reviews and initiatives being developed at country and regional levels, the focus of this project and this article is on business-to-business sharing. The scope of this project in terms of the 34 jurisdictions reviewed as to their data protection requirements is more comprehensive than any similar study to date.This article focuses on the sharing of IP addresses as cyber threat intelligence in the context of the new European Union (EU) data protection initiatives agreed in December 2015 and formally adopted by the European Council and Parliament in April 2016. The new EU General Data Protection Regulation (GDPR) applies to EU member countries, a major focus of the international cyber threat sharing project. The research also reveals that EU data protection requirements, particularly the currently applicable law of the Data Protection Directive 95/46/EC (1995 Directive) (the rules of which the GDPR will replace in practice in 2018), generally form the basis of current data protection requirements in countries outside Europe. It is expected that this influence will continue and that the GDPR will shape the development of data protection internationally.In this article, the authors examine whether static and dynamic IP addresses are “personal data” as defined in the GDPR and its predecessor the 1995 Directive that is currently the model for data protection in many jurisdictions outside Europe. The authors then consider whether sharing of that data by a business without the consent of the data subject, can be justified in the public interest so as to override individual rights under Articles 7 and 8(1) of the Charter of Fundamental Rights of the European Union, which underpin EU data protection. The analysis shows that the sharing of cyber threat intelligence is in the public interest so as to override the rights of a data subject, as long as it is carried out in ways that are strictly necessary in order to achieve security objectives. The article concludes by summarizing the project findings to date, and how they inform international sharing of cyber-threat intelligence within the private sector.     

Data processing by police and criminal justice authorities in Europe – The influence of the Commission's draft on the national police laws and laws of criminal procedure

The proposal for a fundamental reform of the European data protection law, published by the EU Commission on 25 January 2012 is composed of two elements. Apart from a General Data Protection Regulation, the Commission proposes a second regulatory instrument, namely a Directive with regard to data processing by police and criminal justice authorities that shall supersede the Council Framework Decision 2008/977/JHA. This paper seeks to analyse the draft Directive in the context of the entire reform approach and scrutinizes a number of specific issues in regard to the scope, the requirements of data processing, notification duties and data transfer to third countries.     

The GDPR: A game changer for electronic identification schemes? The case study of Gov.UK Verify

This article offers an interdisciplinary analysis of the General Data Protection Regulation (GDPR) in the context of electronic identification schemes. Gov.UK Verify, the UK Government's electronic identification scheme, and its compatibility with some important aspects of EU data protection law are reviewed. An in-depth examination of Gov.UK Verify's architecture and the most significant constituent elements of both the Data Protection Directive and the imminent GDPR – notably the legitimising grounds for the processing of personal data and the doctrine of joint controllership – highlight several flaws inherent in the Gov.UK Verify's development and mode of operation. This article advances the argument that Gov.UK Verify is incompatible with some major substantive provisions of the EU Data Protection Framework. It also provides some general insight as to how to interpret the requirement of a legitimate legal basis and the doctrine of joint controllership. It ultimately suggests that the choice of the appropriate legal basis should depend upon a holistic approach to the relationship between the actors involved in the processing activities.     

Having yes,using no? About the new legal regime for biometric data

The rise of biometric data use in personal consumer objects and governmental (surveillance) applications is irreversible. This article analyses the latest attempt by the General Data Protection Regulation (EU) 2016/679 and the Directive (EU) 2016/680 to regulate biometric data use in the European Union. We argue that the new Regulation fails to provide clear rules and protection which is much needed out of respect of fundamental rights and freedoms by making an artificial distinction between various categories of biometric data. This distinction neglects the case law of the European Court of Human Rights and serves the interests of large (governmental) databases. While we support regulating the use and the general prohibition in the GDPR of using biometric data for identification, we regret this limited subjective and use based approach. We argue that the collection, storage and retention of biometric images in databases should be tackled (objective approach). We further argue that based on the distinctions made in the GDPR, several categories of personal data relating to physical, physiological or behavioural characteristics are made to which different regimes apply. Member States are left to adopt or modify their more specific national rules which are eagerly awaited. We contend that the complex legal framework risks posing headaches to bona fide companies deploying biometric data for multifactor authentication and that the new legal regime is not reaching its goal of finding a balance between the free movement of such data and protecting citizens. Law enforcement authorities also need clear guidance. It is questioned whether Directive (EU) 2016/680 provides this.     

‘Look to yourselves,that we lose not those things which we have wrought.’ What do the proposed changes to the purpose limitation principle mean for public bodies' rights to access third-party data?

This article analyses the proposed changes to the purpose limitation principles contained in the draft Data Protection Regulation adopted by the European Commission in January 2012. It examines the historical motives for the introduction of the principle as part of the 1995 Data Protection Directive, and looks at the constitutional framework under which it operates both at EU and member state level. It considers the risks and long-term consequences that EU citizens may face if the principle is eroded or substantially abandoned.     

Privacy and social networks

This article discusses the complex relationship between social networks and the EU Data Protection Directive (95/46/EC). After a concise introduction to the general privacy impact of social networks, it discusses how the Directive applies to users and operators of social networks and social network applications. Particular attention is drawn to the scope of the Directive (including the “household” exception), the obligations imposed on data controllers, the interpretation of the Directive by Working Party 29, as well as the difficulties that are encountered when applying the aging Directive to the technological reality of today’s social networks.     

‘Modernising’ data protection Convention 108: A safe basis for a global privacy treaty?

Proposals for the reform or ‘modernisation’ of Council of Europe Data Protection Convention 108 have now been forwarded from the Convention's Consultative Committee for consideration by the Council of Ministers. This article assesses the changes proposed, which strengthen the obligations of Parties to implement the Convention as a matter of effective practice, not just as a law on paper. It tightens most of the existing data protection principles, and adds new ones which better align the Convention with the EU Directive (and proposed Regulation). The Convention Committee will have explicit new functions including assessing candidates for accession, and periodically reviewing implementation by existing parties. However, the proposals concerning the required standard for data export limitations are in some respects ill-defined and dangerous for data subjects. The existing standard that personal data can only be exported if the recipient provides ‘adequate’ protection has been abandoned for an undefined requirement of ‘appropriate’ protection. The article situates the risk of abandoning meaningful data export restrictions in the context of the USA's push for ‘interoperability’ of very different data protection standards.     

A walk in to the cloud and cloudy it remains: The challenges and prospects of ‘processing’ and ‘transferring’ personal data

Cloud computing is an information technology technique that promises greater efficiency and reduced-cost to consumers, businesses and public institutions. However, to the extent it has brought better efficiency and minimal cost, the emergence of cloud computing has posed a significant regulatory challenge on the application of data protection rules particularly on the regime regulating cross-border data flow. The Data Protection Directive (DPD), which dates back to 1995, is at odds with some of the basic technological and business-related features of the cloud. As a result, it is claimed that the Directive hardly offers any help in using the legal bases to ‘process’ and ‘transfer’ data as well as to determine when a transfer to a third country occurs in cloud computing. Despite such assertions, the paper argues that the ECJ's Bodil Lindqvist decision can to a certain extent help to delineate circumstances where transfer should and should not occur in the cloud. Concomitantly, the paper demonstrates that controllers can still make the most of the available possibilities in justifying their ‘processing’ as well as ‘transferring’ of data to a third country in cloud arrangements. In doing so, the paper also portrays the challenges that arise down the road. All legal perspectives are largely drawn from EU level though examples are given from member states and other jurisdictions when relevant.     

Investigating the legal protection of data,information and knowledge under the EU data protection regime

Information science distinguishes between the semantic forms/intangibles of data, information and knowledge. Data (e.g. an attribute of a data record in a relational database) does not have any meaning by itself. Information is data brought into context (e.g. data related to its primary key), and knowledge is the collection of information for useful intent (e.g. a database). This paper investigates the mapping of semantic forms in information science (i.e. data, information, knowledge) to correlative concepts in information law (primarily data protection legislation) with a view to investigating how such semantic forms are legally protected. The paper first proposes a data, information, knowledge, rules (DIKR) hierarchy in the context of relational database theory, and interprets this hierarchy with respect to data protection concepts. The paper then gives an in-depth discussion of the elements of the DIKR hierarchy (data, information, knowledge, deduced knowledge, induced knowledge) and how they relate to the EU Data Protection Directive 95/46/EC. These relationships are summarized in the form of a two dimensional correlation matrix. Finally the paper discusses how the semantic forms identified are protected under the EU Data Protection Directive, and gives insightful observations about the connection between information law and information science.     

Enter the quagmire – the complicated relationship between data protection law and consumer protection law

This article examines the complex relationship between consumer protection law and data protection law, particularly within the EU's online environment, and highlights the problems that stem from this complexity. It suggests that, while there are significant similarities between their respective sources, tools and purposes, there are also arguable differences between consumer protection law and data protection law. One such arguable difference is found in that, while consumer protection law can be seen to merely set a floor in its pursuit of a sufficiently high level of consumer protection, data protection law – due to its clearly articulated dual purposes of (a) protecting individuals with regard to the processing of personal data and (b) providing for the free movement of such data – sets both a floor and a ceiling.Having discussed the relationship between consumer protection law and data protection law in more detail, the argument is made that it seems possible to conclude that the balance struck in the Data Protection Directive, and soon in the General Data Protection Regulation, places limitations on consumer protection law. The implications of this conclusion are then examined briefly in the context of some matters currently coming before the CJEU and the contours of a framework are presented, addressing situations where a data protection-based liability claim is pursued against a third-party non-controller under consumer protection law.     

Genetic Data and the Data Protection Regulation: Anonymity,multiple subjects,sensitivity and a prohibitionary logic regarding genetic data?

Owing to the unique qualities of genetic data, there have been numerous criticisms of the current data protection framework's ability to protect genetic data. It has been suggested that the Directive did not recognise the sensitivity of genetic data and that it ignored a number of legitimate interests in this data (in particular interests which multiple data subjects may have and those which may remain in anonymous data). In 2012, the first results of a reform process of EU data protection law were released. These results included a draft Regulation (to replace the Directive) which introduced a new framework for the protection of genetic data. This Article considers whether the innovative approach to genetic data in the Regulation will provide a more adequate framework for the protection of genetic data. It concludes that the Regulation has rectified the lack of recognition of sensitivity, but still stutters in recognising a number of legitimate interests.     

The necessity of the implementation of Privacy by Design in sectors where data protection concerns arise

This article examines the extent to which Privacy by Design can safeguard privacy and personal data within a rapidly evolving society. This paper will first briefly explain the theoretical concept and the general principles of Privacy by Design, as laid down in the General Data Protection Regulation. Then, by indicating specific examples of the implementation of the Privacy by Design approach, it will be demonstrated why the implementation of Privacy by Design is a necessity in a number of sectors where specific data protection concerns arise (biometrics, e-health and video-surveillance) and how it can be implemented.     

Privacy and the regulation of 2012

This paper explores the European Commission’s proposal for a new Regulation to update and reform data protection law in Europe. As regards the Regulation itself, without presenting an exhaustive analysis of all the provisions, this paper aims to highlight some significant changes proposed to the data protection regime by comparison between Directive 95/46 and the proposed Regulation. It takes particularly into account legislative innovation concerning data protection principles, data subjects’ rights, data controllers and data processors obligations, and the regulation of technologies. Before analyzing these innovations, it introduces some considerations about the Commission’s choice to use a Regulation instead of a Directive to harmonize national data protection regime.