The Privacy Partnership Podcast with Robert Bateman

• The Accidental Americans v FATCA: Like the Schrems cases, but for tax

  The CJEU will soon hear the Belgian DPA's case against FATCA, the tax treaty that results in the systematic bulk transfer of data about thousands of "Accidental Americans" to the IRS.FATCA is a US law intended to prevent US citizens from hiding assets in foreign banks.But it also hits "Accidental Americans"—people who might have been born in the US and acquired a US passport, but have very little connection to the country.Under an intergovernmental agreement (IGA), the Belgian state regularly transfers personal data to the Inland Revenue. In May 2023, the DPA ordered these transfers to stop, saying that they were unlawful under the GDPR. Belgium argues that the 2014 IGS predated the GDPR and is thus valid under Article 96, which says that older international agreements remain valid as long as they were lawful at the time. Among 13 questions to the CJEU:— Article 96: Does the "grandfather clause" offer indefinite protection to pre-GDPR international agreements, even if they violate fundamental rights?— Are Member States obliged to renegotiate or revoke old treaties that clash with the GDPR?— Can Article 49(1)(d) (important public interest) justify systematic, bulk, annual transfers? (The EDPB generally says "no").— Does the EU-US Data Privacy Framework (DPF) imply that the US public sector bodies offer adequate protection in the context of data transfers?If the CJEU rules that Article 96 is not a blank cheque and that public interest derogations cannot support bulk surveillance, the legal mechanism for FATCA across the entire EU could collapse.Could be a pretty big deal!

  --------  

  5:22

  --------

  5:22
• Did the CJEU just junk the EU's intermediary liability AND general monitoring rules? X v Russmedia

  Did the CJEU just use the GDPR to junk the intermediary liability exemption and impose a general monitoring obligation? Here's a look at yesterday's Russmedia judgment.The facts are pretty grim: "X" saw an ad on an Russmedia's online marketplace falsely promoting her as a sex worker. She reported it, Russmedia took it down, but the ad had already been scraped and copied on other sites.X sued Russmedia, which predictably said it was just an intermediary service and not liable for the contents of users' posts.But the court said that Russmedia was a controller, and required a legal basis to post the content.Because the ad included special category data, Russmedia was required to obtain the data subject's consent.--EU laws, like the eCommerce Directive and the Digital Services Act, say that platforms do not have a "general monitoring obligation". Platforms have some moderation obligations (including some limited monitoring obligations in some cases), and they have to respond to takedown requests, but there is no blanket requirement to check every post for illegal content. As such, the CJEU says that Russmedia doesn't HAVE TO "generally monitor" content; it has a specific obligation to avoid posting *this specific type of content* without consent.But how can a platform know whether an ad contains special category data without checking every post? You know... *generally monitoring* them all?

  --------  

  5:36

  --------

  5:36
• The 'final straw': Open letter calls for inquiry into the ICO

  A coalition of organisations and experts sent an open letter calling for a Parliamentary inquiry into the performance of the UK ICO. What's the problem, and will this work?Full disclosure: I was asked to sign this letter, but I decided against it. Many people I know and respect are on the list of signatories, and while there's some stuff in here I'm not 100% behind, I think it makes some decent points. But I generally just don't sign open letters.This document makes some pretty scathing allegations about the ICO's current enforcement strategy, specifically regarding the "Public Sector Approach", and suggests that a change in direction is needed.The letter appears to have been triggered by the ICO’s recent decision regarding the Ministry of Defence.As many of you will know, the MoD was involved in a serious data breach where a spreadsheet containing the details of over 19,000 Afghan nationals eligible for relocation was leaked. The ICO decided not to formally investigate the MoD for this incident. a decision the signatories describe as "extraordinary." The central policy point here is the ICO’s "public sector approach", where the ICO generally prioritises engagement and reprimands over fines for public bodies, the logic being that fining public bodies simply moves taxpayer money around.The open letter challenges the effectiveness of this policy. The signatories cite figures from the ICO’s own post-implementation review, which they say indicate that the average number of reported breaches in the public sector increased by 11% following the adoption of the PSA.They also point to an 8% increase in complaints against public sector organisations. The signatories are asking the Science, Innovation and Technology Committee to open an inquiry to examine whether the current enforcement priorities are delivering the best results for the UK.I'm interested to see how the Committee responds...

  --------  

  5:18

  --------

  5:18
• It's here! Major proposed GDPR changes under the Digital Omnibus Regulation

  In this episode of the Privacy Partnership Podcast, Rob walks you through the most important aspects of the proposed Digital Omnibus Regulation. • A new Article 88c states that processing of personal data for the development and operation of AI systems may be pursued for legitimate interests (p85).• A new condition under Article 9 allows the processing of special category data for AI training if state-of-the-art security is used and the data is subsequently removed or anonymised (p79).• Article 4 is amended to clarify that information is not personal data for a given person if they do not have the means "reasonably likely to be used" to identify an individual (p78-79).• The threshold for notifying a DPA about a data breach would be raised to "high risk," the deadline would be extended to 96 hours, and there would be a new Single Entry Point for breach reporting (p81).• Article 12 is amended to allow controllers to refuse a data subject rights request where the data subject "abuses the rights conferred by (the GDPR) for purposes other than the protection of their data" (p80).• ePrivacy rules are absorbed into new GDPR Articles 88a and 88b, introducing a 6-month "cookie fatigue" period and mandating respect for automated browser signals (p83-84).• There are new rules about automated browser signals with a specific exemption for "media service providers" (p84).• A new Article 9 derogation permits processing biometric data for verification (authentication) purposes if the data remains under the sole control of the data subject (p79). 

  --------  

  5:44

  --------

  5:44
• GDPR's "death by 1000 cuts"? A look at the leaked Digital Omnibus draft

  "Death by a thousand cuts?" That's what the leaked Digital Omnibus proposals represent to the GDPR, according to noyb.eu. Here's a look at some of the most significant ideas, from the new definition of "personal data" to the narrowing of Article 9.--Note: This is an unconfirmed internal draft from the Commission’s DG CONNECT and not an official proposal. It may change substantially before it’s formally presented, and we’re expecting that to happen on 19 November. Some say this document has been leaked for nefarious purposes, and that no one should so much as glance at it until the details are confirmed. But of course, us data protection dorks can hardly be expected to keep our eyes off this juicy bundle of reforms for long.--The very definition of "personal data" would change under this draft to reflect an interpretation of the recent CJEU judgment in SRB v EDPS.Noyb argues this is a very expansive reading of the SRB case, and that it goes against other CJEU precedents and the Charter of Fundamental Rights. The practical effect could be that companies processing pseudonymous data, like online advertising IDs, might argue they are outside the GDPR's scope altogether.--The draft proposes a new Article 88c, which would establish "legitimate interest" as a legal basis for processing personal data for the "development and operation of an AI system."This could give AI developers a much broader license to use personal data for training models, shifting the default in favour of data collection.--The proposals would also narrow the scope of "special category data" under Article 9. The draft suggests narrowing the definition to data that "directly reveals" sensitive information.Noyb argues, not unreasonably in my opinion, that this is a direct attempt to overturn CJEU rulings that have established a broad interpretation of what it means to "reveal" sensitive data.--Beyond these three ideas, the draft proposes some new restrictions on data subject rights and the absorption of the ePrivacy Directive's "cookie rules" into the GDPR itself. The threshold for notifying regulators of a data breach would also be raised from the current "risk" threshold to a 'high risk' standard, and the deadline would be extended from 72 to 96 hours. We’ve also got some proposed revisions of other digital laws, like the AI Act and the Data Act.--Some ideas look tenuous and unfinished; others might be worth considering. Noyb is doing its job by jumping on this leak, but perhaps most of us should wait until the official proposal before getting too excited.

  --------  

  4:24

  --------

  4:24

More Technology podcasts

Trending Technology podcasts

About The Privacy Partnership Podcast with Robert Bateman