The European Union (EU) will put the General Data Protection Directive (GDPR) into effect on May 25th, and with it some potentially difficult and onerous requirements. Here are a few potential issues with which companies worldwide will have to contend:
- Article 7(1) of the GDPR states, “Where processing is based on consent, the controller shall be able to demonstrate that the data subject has consented to processing of his or her personal data.” That means that anyone who signs up for a mailing list, a webinar, an email newsletter or any other type of communication from you will need to be fully informed of the “processing” that their data will undergo, and you will need to keep an accurate record of each instance of consent that has been granted. For example, someone who signs up to be on your corporate emailing list is granting consent for their information to be used strictly for the purpose of receiving email from you – you need to maintain a record of that consent. If they sign up for a webinar that you have announced to them in an email, they are granting consent to be contacted with regard to that specific webinar – you need to maintain a record of that, as well.
Our recommendation: excellent and up-to-date recordkeeping is going to be of paramount importance in order to remain compliant with the GDPR. That means good archiving of data subjects’ information, including the ability to search for and retrieve this information quickly and completely, and the ability to defensibly delete this information when needed.
- Article 22(1) requires that a “data subject shall have the right not to be subject to a decision based solely on automated processing, including profiling…” and that includes their “location or movements” (Recital 71). What that likely means is that there is a prohibition on determining whether or not someone is an EU “data subject” based on things like their IP address when completing a form on your web site, for example. So, if someone who lives in the United States is on your corporate mailing list, where their information is not subject to GDPR compliance, but later moves to an EU country, where their data is now subject to the GDPR, is the onus on you to know they’ve moved? According to a strict interpretation of Recital 71, you’re not allowed to collect their IP address when they interact with you, and so you may not be able to determine that they have moved.
Our recommendation: act as if everyone is subject to compliance with the GDPR and process information accordingly.
- Articles 12 through 23 of the GDPR are the “Rights of the data subject”, which include things like their right to access and have corrected any information that a data processor or controller has on them, and their right to have that information deleted – their “right to be forgotten” – albeit with certain limitations. There are some serious implications for data controllers and processors in these requirements:
You need to know where all of your data is located. Data subjects’ information that might be stored on a departmental file share to which IT or legal does not have ready access, information stored in employees’ personal Dropbox accounts, or information stored on ex-employees’ personal devices could make it difficult or impossible to respond adequately to a data subject’s request for information or their right to have this data corrected or expunged.
Even with access to all of your data, an organization with malicious intent could organize a group of a few thousand people to request their data simultaneously. Given that the GDPR gives data processors and controllers only one month to comply with these requests (up to three months in some situations), an organization with inadequate content management systems in place could easily run afoul of the GDPR.
Our recommendation: conduct a thorough data inventory to determine where all of your data is located, give IT access to it, and implement a robust and scalable archiving capability that will enable all corporate data to be searched and produced quickly and with a minimum of effort.
Many thanks to Anne P. Mitchell, an Internet law and policy attorney and legislative consultant, for her input to this post. Her firm is offering consulting on the legal aspects of the GDPR – you can contact her here.
For more information on the GDPR, you can download our most recent white paper here.
We just published a new white paper on the European Union’s (EU’s) General Data Protection Regulation (GDPR) and will soon be publishing the results of the two surveys we conducted for that white paper.
In the second of the two surveys we conducted, we asked the following question: “Will your organization increase or decrease use of cloud technology as a result of the GDPR?” We found that 50 percent of respondents indicated they would do so, 39 percent said there will be no change, six percent said they didn’t yet know, and only five percent said that use of the cloud will decrease. That tells us a few things:
- Many decision makers are still unsure about how they’ll deal with the GDPR. A thorough reading of the regulation, as with most government rules, leaves room for interpretation. For example, if data on an EU resident is subject to a litigation hold in the United States and the EU resident exercises his or her right to be forgotten, should the data controller violate its obligations to retain the data or violate the GDPR? That uncertainty will lead many to seek the assistance of third parties, many of which will be cloud providers that have more expertise in dealing with these kinds of issues.
- Many organizations will pass the buck to their cloud providers. Because many organizations are simply not sure about how to deal with the GDPR, particularly smaller ones that can’t afford a team of GDPR-focused legal and compliance experts, they will rely increasingly on cloud providers who they anticipate/expect/hope will navigate the intracacies of the GDPR on their behalf. We believe that will accelerate the replacement of on-premises solutions with those based in the cloud.
- Consequently, the choice of cloud providers will become extremely important. Since a cloud provider that inadvertently violates key provisions of the GDPR while working on behalf of their clients will not be a shield from prosecution, GDPR savvy will become a top priority when selecting new, or staying with existing, cloud providers.
- The new ePrivacy Regulation that will supplement or replace key provisions of the GDPR will impose significant usability restrictions on even simple activities like web surfing. For example, it is very likely that web site visitors will need to grant permission for each and every cookie dropped into their browser when visiting a web site, yet that web site operator will not be able simply to block content for those users who do not grant permission. This will make the choice of a web host extremely important in order to comply with both the GDPR and the ePrivacy Regulation.
In short, while the GDPR increases privacy protections for individual users in the EU, it is increasing the risk for those that wish to provide content to them. Many companies, particularly smaller ones, will seek to mitigate that risk by handing it off to cloud providers.
You can download our newest GDPR white paper here, and get more information on the ePrivacy Regulation here and here.
I will be participating in a webinar on the General Data Protection Regulation (GDPR) on November 9th along with ZL Technologies and Viewpointe (you can sign up for it here).
In one of our planning meetings for this event, the topic of Subject Access Requests (SARs) was discussed. One of the presenters wondered if SARs could somehow be used by anarchists or others to cause massive disruption to an organization. Given that data subjects in the European Union have the right to request any information about them that a data controller possesses, usually without a fee, and that requests must be processed within a month, what would happen if an organized group (are anarchists, by definition, organized?) flooded an organization with SARs in a very short period of time. There are situations in which data controllers are not obligated to provided data under an SAR, such as GDPR Article 23 which allows the Legal Professional Privilege (LPP) as an exemption to fulfillment of an SAR. However, this is a fairly limited exemption and would not prevent the type of planned disruption that might be made possible under the GDPR.
The potential for causing mass disruption using SARs is not as far-fetched as some might consider it to be. Given that it will take several hours to process a single request for a company that has not implemented an appropriate classification and archiving capability for all of the potentially relevant organization it has on data subjects, the potential for disruption is enormous. For example, if we very conservatively assume that just two person-hours would be required to process an SAR and someone wanted to “attack” an organization with 5,000 SARs in a single week, that would obligate a data controller to spend 10,000 person-hours — about five person-years — processing these requests in a very short period of time. While such a scenario against any single entity is unlikely, the likelihood that it will occur to some company is rather high, as is the risk: few organizations’ legal or IT teams have such an excess of labor available to them to deal with this type of occurrence.
This is just one of the topics we will be discussing at the webinar on November 9th. I hope you can join us.