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
Up to 40% off UK GDPR fines! The ICO's draft enforcement guidance
The ICO is offering up to 40% off UK GDPR fines under its new draft Data Protection Enforcement Procedural Guidance. Here's how to take advantage of this special deal!The draft guidance updates the ICO's Regulatory Action Plan, which has been in place since 2018.There are two particularly interesting bits:- New teeth available to the ICO under the Data (Use and Access) Act (DUAA), should it choose to bite with them- A formal proposed settlement processNow the ICO has settled cases before—recently with Capita and Advanced Computer Software Group, for example, and we’ve also seen many fines fall off a cliff edge after the Notice of Intent has gone public. British Airways and Marriott managed to have their proposed fines reduced by around 90% and 81%, respectively. But this is the first time the ICO has proposed a formal, structured settlement process.The idea is to create a streamlined administrative procedure for cases where a penalty notice is likely. The core of the deal is this: in exchange for an early admission of the infringement and an agreement not to appeal the final decision, the ICO will offer a discount on the fine.The draft guidance sets out a tiered discount structure, which provides a clear incentive for early resolution. • A case settled before the ICO issues a "notice of intent" could receive up to a 40% discount. • If it’s settled after the notice of intent but before the organisation submits its written representations, the discount is up to 30%. • Settle after that, and the discount drops to a maximum of 20%.Now I expect some of you might disapprove of a measure that formalises the ICO’s tendency to whittle away at fines until they end up as a small fraction of the controller or processor’s turnover.But it’s worth noting that a formal settlements process like this is already available to other regulators, like the Competition and Markets Authority (CMA), the Financial Conduct Authority (FCA) and Ofcom.
--------
4:28
--------
4:28
The TikTok China decision: A de facto ban on international data transfers?
The DPC's TikTok decision is not that surprising if you understand the law, but it's actually a pretty huge deal to see this play out in reality. Are most international data transfers de facto illegal?TikTok enabled remote access to EEA users' personal data in China, purportedly for purposes like maintenance and user support.The DPC said: Remote access is a transfer. Not really surprising based on the post-Schrems II EDPB recommendations.TikTok encrypted the data in transit and at rest and put various other technical and contractual safeguards in place.The DPC said: These measures mean nothing if the Chinese government can undo them. Also not surprising; that was the whole point of Schrems II.TikTok admitted that Chinese law was not "essentially equivalent" to the EU's, but argued that because the data was STORED on EEA servers, the Chinese government could not touch it.The DPC said: Wrong. When the data is accessed on a Chinese employee's laptop, it's *in China*. The Chinese government can access it. That seems like common sense.TikTok said the Chinese government had never requested access to the EEA user data and was very unlikely to ever do so.The DPC said: Irrelevant. There is no "risk-based approach". Just because you say you've never received a request, that doesn't mean you actually haven't, or won't in future.—So from the DPC's perspective, each part of its decision makes sense based on previous EDPB recommendations and case law.But let's put TikTok to one side. What's the cumulative, logical-consequence effect of these findings?If there's no way any employee in China can even *look at* EEA-originating personal data, then transfers to China are effectively illegal.And whose rule-of-law standards *are* "essentially equivalent" to the EU's? If there's no risk-based approach, is the threshold actually impossibly high?India? Singapore? Australia? *Any* country without an adequacy decision?If we flip a switch and automatically applied this decision universally—FULL compliance with the EDPB's interpretation of Schrems II overnight—what happens to the global economy?Whatever your view on TikTok and the Chinese Communist Party, it's worth thinking this one through.
--------
4:42
--------
4:42
The EDPB's long list of problems with UK data protection standards
The EDPB just published its opinion on the UK's adequacy decision and it's pretty critical of the country's post-Brexit direction on data protection. But does the EDPB's opinion matter?Probably not—directly, at least.The Commission's draft adequacy decision now goes to a vote at the Comitology Committee and is very unlikely to be voted down, despite the EDPB's reservations.But the opinion might provide some ammunition in potential future political or legal challenges to the UK's "adequate" status.Here's a look at some of the long list of UK-related stuff that the EDPB wants the Commission to "monitor", including:• Extensive new executive powers over data protection regulation• The controversial Technical Capability Notices (TCNs)• The UK's new "data protection test" for international data transfers
About The Privacy Partnership Podcast with Robert Bateman
Robert Bateman provides the latest on data protection and privacy, with regular solo news updates and short-form interviews. Brought to you by Privacy Partnership: www.privacypartnership.com
Listen to The Privacy Partnership Podcast with Robert Bateman, All-In with Chamath, Jason, Sacks & Friedberg and many other podcasts from around the world with the radio.net app
Ireland