GDPR

In this episode of the I Can't Sleep Podcast, fall asleep learning about GDPR. What is GDPR? Funny you should ask. It's... wait, you'll have to listen to the episode to get that answer. Just know that it's super boring and you won't have long to learn about it because you'll be asleep.

Good luck with this one. Happy sleeping!

Transcript

Welcome to the I Can't Sleep podcast,

Where I read random articles from across the web to bore you to sleep with my soothing voice.

I'm your host,

Benjamin Boster.

Today's episode is from a Wikipedia article titled,

General Data Protection Regulation.

The General Data Protection Regulation,

Regulation EU 2016 slash 679,

Abbreviated GDPR,

Is a European Union regulation on information privacy in the European Union,

EU,

And the European Economic Area,

EEA.

The GDPR is an important component of EU privacy law and human rights law,

In particular Article 8.

1 of the Charter of Fundamental Rights of the European Union.

It also governs the transfer of personal data outside the EU and the EEA.

The GDPR's goals are to enhance individuals' control and rights over their personal information,

And to simplify the regulations for international business.

It supersedes the Data Protection Directives 95 slash 46 slash EC,

And among other things,

Simplifies the terminology.

The European Parliament and Council of the European Union adopted the GDPR on the 14th of April 2016,

And became effective on the 25th of March 2018.

The regulation became a model for many other laws around the world,

Including Turkey,

Mauritius,

Chile,

Japan,

Brazil,

South Korea,

South Africa,

Argentina,

And Kenya.

As of the 6th of October 2022,

The United Kingdom enacted its own law identical to the GDPR,

Despite no longer being an EU member state.

The California Consumer Privacy Act,

CCPA,

Adopted on 28th of June 2018,

Has many similarities with the GDPR.

The GDPR 2016 has 11 chapters concerning general provisions,

Principles,

Rights,

And the data subject,

Duties of data controllers or processors,

Transfers of personal data to third countries,

Supervisory authorities,

Cooperation among member states,

Remedies,

Liability or penalties for breach of rights,

And miscellaneous final provisions.

Recital 4 proclaims that processing of personal data should be designed to serve mankind.

The regulation applies if the data controller,

An organization that collects information about living people,

Whether they are in the EU or not,

Or processor,

An organization that processes data on behalf of a data controller,

Like cloud service providers,

Or the data subject,

Person,

Is based in the EU.

Under certain circumstances,

The regulation also applies to organizations based outside the EU if they collect or process personal data of individuals located inside the EU.

The regulation does not apply to the processing of data by a person for a purely personal or household activity,

And thus with no connection to a professional or commercial activity.

Recital 18.

According to the European Commission,

Personal data is information that relates to an individual or identifiable individual.

If you cannot directly identify an individual from that information,

Then you need to consider whether the individual is still identifiable.

You should take into account the information you are processing together with all the means reasonably likely to be used by either you or any other person to identify that individual.

The precise definitions of terms such as personal data,

Processing,

Data subject,

Controller,

And processor are stated in Article 4 of the regulation.

The regulation does not purport to apply to the processing of personal data for national security activities or law enforcement of the EU.

However,

Industry groups concerned about facing a potential conflict of laws have questioned whether Article 48 of the GDPR could be invoked to seek to prevent a data controller subject to a third country's laws from complying with a legal order from that country's law enforcement,

Judicial,

Or national security authorities to disclose to such authorities the personal data of an EU person,

Regardless of whether the data resides in or out of the EU.

Article 48 states that any judgment of a court or tribunal and any decision of an administrative authority of a third country requiring a controller or processor to transfer or disclose personal data may not be recognized or enforceable in any manner unless based on an international agreement,

Like a mutual legal assistance treaty enforced between the requesting third non-EU country and the EU or a member state.

The data protection reform package also includes a separate data protection directive for the police and criminal justice sector that provides rules on personal data exchanges at state level,

Union level,

And international levels.

A single set of rules applies to all EU member states.

Each member state establishes an independent supervisory authority,

SA,

To hear and investigate complaints,

Sanction administrative offenses,

Etc.

SA's in each member state cooperate with other SA's,

Providing mutual assistance and organizing joint operations.

If a business has multiple establishments in the EU,

It must have a single SA as its lead authority based on the location of its main establishment,

Where the main processing activities take place.

The lead authority thus acts as a one-stop shop to supervise all the processing activities of that business throughout the EU.

Articles 46 to 55 of the GDPR.

A European Data Protection Board,

EDPB,

Coordinates the SA's.

EDPB thus replaces the Article 29 Data Protection Working Party.

There are exceptions for data processed in an employment context or a national security that still might be subject to individual country regulations.

Articles 2,

2a,

And 88 of the GDPR.

Personal data may not be processed unless there is at least one legal basis to do so.

Article 6 states that the lawful purposes are,

A.

If the data subject has given consent to the processing of his or her personal data,

B.

To fulfill contractual obligations with the data subject or for tasks at the request of a data subject who is in the process of entering into a contract,

C.

To comply with the data controller's legal obligations,

D.

To protect the vital interests of a data subject or another individual,

E.

To perform a task in the public interest or in official authority,

F.

For the legitimate interests of a data controller or a third party,

Unless these interests are overridden by interest of the data subject or her or his rights according to the Charter of Fundamental Rights,

Especially in the case of children.

If informed consent is used as the lawful basis for processing,

Consent must have been explicit for data collected and each purpose data is used for.

Article 7,

Defined in Article 4.

Consent must be a specific,

Freely given,

Plainly worded,

And unambiguous affirmation given by the data subject.

An online form which has consent options structured as an opt-out selected by default is a violation of the GDPR,

As the consent is not unambiguously affirmed by the user.

In addition,

Multiple types of processing may not be bundled together into a single affirmation prompt,

As this is not specific to each use of data and the individual permissions are not freely given.

Data subjects must be allowed to withdraw this consent at any time,

And the process of doing so must not be harder than it was to opt in.

A data controller may not refuse service to users who decline consent to processing that is not strictly necessary in order to use the service.

Article 8,

Consent for children,

Defined in the regulation as being less than 16 years old,

Although with the option for member states to individually make it as low as 13 years old,

Must be given by the child's parent or custodian and verifiable.

If consent to processing was already provided under the Data Protection Directive,

A data controller does not have to re-obtain consent if the processing is documented and obtained in compliance with the GDPR's requirements.

Article 12 requires the data controller to provide information to the data subject in a concise,

Transparent,

Intelligible,

And easily accessible form,

Using clear and plain language,

In particular for any information addressed specifically to a child.

The right to access,

Article 15,

Is a data subject right.

It gives people the right to access their personal data and information about how this personal data is being processed.

A data controller must provide,

Upon request,

An overview of the categories of data that are being processed,

Article 15.

1b,

As well as a copy of the actual data,

Article 15.

3.

Furthermore,

The data controller has to inform the data subject on details about the processing,

Such as the purposes of the processing,

With whom the data is shared,

And how it acquired the data.

A data subject must be able to transfer personal data from one electronic processing system and into another,

Without being prevented from doing so by the data controller.

Data that has been sufficiently anonymized is excluded,

But data that has been only de-identified,

But remains possible to link to the individual in question,

Such as providing the relevant identifier,

Is not.

In practice,

However,

Providing such identifiers can be challenging,

Such as in the case of Apple's Siri,

Where voice and transcript data is stored with a personal identifier that the manufacturer restricts access to,

Or in online behavioral targeting,

Which relies heavily on device fingerprints that can be challenging to capture,

Send,

And verify.

Both data being provided by the data subject and data being observed,

Such as about behavior,

Are included.

In addition,

The data must be provided by the controller in a structured and commonly used standard electronic format.

The right to data portability is provided by Article 20 of the GDPR.

A right to be forgotten was replaced by a more limited right of erasure in the version of the GDPR that was adopted by the European Parliament in March 2014.

Article 17 provides that the data subject has the right to request erasure of personal data related to them on any one of a number of grounds,

Including non- compliance with Article 6.

1 lawfulness,

That includes a case if the legitimate interests of the controller are overridden by the interests or fundamental rights and freedoms of the data subject,

Which require protection of personal data.

Article 21 of the GDPR allows an individual to object to processing personal information for marketing or non-service related purposes.

This means the data controller must allow an individual the right to stop or prevent controller from processing their personal data.

There are some instances where this objection does not apply.

For example,

If one,

Legal or official authority is being carried out,

Two,

Legitimate interest where the organization needs to process data in order to provide the data subject with a service they signed up for,

And three,

A task being carried out for public interest.

GDPR is also clear that the data controller must inform individuals of their right to object from the first communication the controller has with them.

This should be clear and separate from any other information the controller is providing,

And give them their options for how best to object to the processing of their data.

There are instances the controller can refuse a request in the circumstances that the objection request is manifestly unfounded or excessive,

So each case of objection must be looked at individually.

Other countries,

Such as Canada,

Are also following the GDPR,

Considering legislation to regulate automated decision-making under privacy laws,

Even though there are policy questions as to whether this is the best way to regulate AI.

Data controllers must clearly disclose any data collection,

Declare the lawful basis and purpose for data processing,

And state how long data is being retained,

And if it is being shared with any third parties or outside of the EEA.

Firms have the obligation to protect data of employees and consumers to the degree where only the necessary data is extracted from minimum interference with data privacy from employees,

Consumers,

Or third parties.

Firms should have internal controls and regulations for various departments,

Such as audit,

Internal controls,

And operations.

Data subjects have the right to request a portable copy of the data collected by a controller in a common format,

As well as the right to have their data erased under certain circumstances.

Public authorities and businesses whose core activities consist of regular or systematic processing of personal data are required to employ a Data Protection Officer,

DPO,

Who is responsible for managing compliance with the GDPR.

Businesses must report data breaches to national supervisory authorities within 72 hours if they have an adverse effect on user privacy.

In some cases,

Violators of the GDPR may be fined up to 20 million euros or up to 4% of the annual worldwide turnover of the preceding financial year in case of an enterprise,

Whichever is greater.

To be able to demonstrate compliance with the GDPR,

The data controller must implement measures that meet the principles of data protection by design and by default.

Article 25 requires data protection measures to be designed into the development of business processes for products and services.

Such measures include pseudonymizing personal data by the controller as soon as possible.

It is a responsibility and the liability of the data controller to implement effective measures and be able to demonstrate the compliance of processing activities,

Even if the processing is carried out by a data processor on behalf of the controller.

When data is collected,

Data subjects must be clearly informed about the extent of data collection,

A legal basis for the processing of personal data,

How long data is retained,

If data is being transferred to a third party and or outside the EU,

And any automated decision-making that is made on a solely algorithmic basis.

Data subjects must be informed of their privacy rights under the GDPR,

Including their right to revoke consent to data processing at any time,

Their right to view their personal data and access an overview of how it is being processed,

Their right to obtain a portable copy of the stored data,

Their right to erasure of their data under certain circumstances,

Their right to contest any automated decision-making that was made on a solely algorithmic basis,

And their right to file complaints with the data protection authority.

As such,

The data subject must also be provided with contact details for the data controller and their designated data protection officer where applicable.

Data protection impact assessments,

Article 35,

Have to be conducted when specific risks occur to the rights and freedoms of data subjects.

Risk assessment and mitigation is required and prior approval of the data protection authorities is required for high risks.

Article 25 requires data protection to be designed into the development of business processes for products and services.

Privacy settings must therefore be set at a high level by default and technical and procedural measures shall be taken by the controller to make sure that the processing throughout the whole processing life cycle complies with the regulation.

Controllers shall also implement mechanisms to ensure that personal data is not processed unless necessary for each specific purpose.

This is known as data minimization.

A report by the European Union Agency for Network and Information Security elaborates on what needs to be done to achieve privacy and data protection by default.

It specifies that encryption and decryption operations must be carried out locally,

Not by remote service,

Because both keys and data must remain in the power of the data owner if any privacy is to be achieved.

The report specifies that outsourced data storage on remote clouds is practical and relatively safe if only the data owner,

Not the cloud service,

Holds the decryption keys.

According to the GDPR,

Pseudonymization is a required process for stored data that transforms personal data in such a way that the resulting data cannot be attributed to a specific data subject without the use of additional information,

As an alternative to the other option of complete data anonymization.

An example is encryption,

Which renders the original data unintelligible in a process that cannot be reversed without access to the correct decryption key.

The GDPR requires for the additional information,

Such as the decryption key,

To be kept separately from the pseudonymized data.

Another example of pseudonymization is tokenization,

Which is a non-mathematical approach to protecting data at rest that replaces sensitive data with non-sensitive substitutes,

Referred to as tokens.

While the tokens have no extrinsic or exploitable meaning or value,

They allow for specific data to be fully or partially visible for processing and analytics,

While sensitive information is kept hidden.

Tokenization does not alter the type of length of data,

Which means it can be processed by legacy systems,

Such as databases that may be sensitive to data length and type.

This also requires much fewer computational resources to process and less storage space in databases that traditionally encrypted data.

Pseudonymization is a privacy-enhancing technology and is recommended to reduce the risks to the concerned data subjects and also to help controllers and processors to meet their data protection obligations.

According to Article 30,

Records of processing activities have to be maintained by each organization matching one of the following criteria.

Employing more than 250 people,

The processing it carries out is likely to result in a risk to the rights and freedoms of data subjects.

The processing is not occasional.

Processing includes special categories of data,

As referred to in Article 9.

1,

Or personal data relating to criminal convictions and offenses referred to in Article 10.

Such requirements may be modified by each EU country.

The records shall be in electronic form and the controller or the processor,

And where applicable the controllers or the processor's representative,

Shall make the record available to the supervisory authority on request.

Records of controller shall contain all of the following information.

The name and contact details of the controller,

And where applicable the joint controller,

The controller's representative,

And the data protection officer.

The purposes of the processing.

A description of the categories of data subjects and of the categories of personal data.

The categories of recipients to whom the personal data have been or will be disclosed,

Including recipients and third countries or international organizations.

Where applicable,

Transfers of personal data to a third country or an international organization,

Including the identification of that third country or international organization,

And in the case of transfers referred to in the second subparagraph of Article 49.

1,

The documentation of suitable safeguards.

Where possible,

The envisaged time limits for erasure of the different categories of data.

Where possible,

A general description of the technical and organizational security measures,

Referred to in Article 32.

1.

Records of processors shall contain all of the following information.

The name and contact details of the processor or processors,

And of each controller on behalf of which the processor is acting,

And where applicable,

Of the controllers or the processors representative,

And the data protection officer.

The categories of processing carried out on behalf of each controller.

Where applicable,

Transfers of personal data to a third country or an international organization,

Including the identification of that third country or international organization,

And in the case of transfers referred to in the second subparagraph of Article 49.

1,

The documentation of suitable safeguards.

Where possible,

A general description of the technical and organizational security measures,

Referred to in Article 32.

1.

Controllers and processors of personal data must put in place appropriate technical and organizational measures to implement the data protection principles.

Business processes that handle personal data must be designed and built with consideration of the principles and provide safeguards to protect data.

For example,

The pseudonymization or full anonymization,

Where appropriate.

Data controllers must design information systems with privacy in mind.

For instance,

Using the highest possible privacy settings by default,

So that the data sets are not publicly available by default and cannot be used to identify a subject.

No personal data may be processed unless this processing is done under one of the six lawful bases specified by the regulation.

Consent,

Contract,

Public task,

Vital interest,

Legitimate interest,

Or legal requirement.

When the processing is based on consent,

The data subject has the right to revoke it at any time.

Article 33 states the data controller is under a legal obligation to notify the supervisory authority without undue delay unless the breach is unlikely to result in a risk to the rights and freedoms of the individuals.

There is a maximum of 72 hours after becoming aware of the data breach to make the report.

Individuals have to be notified if a high risk of an adverse impact is determined.

In addition,

The data processor will have to notify the controller without undue delay after becoming aware of a personal data breach.

However,

The noticed data subjects is not required if the data controller has implemented appropriate technical and organizational protection measures that render the personal data unintelligible to any person who is not authorized to access it,

Such as encryption.

Article 37 requires appointment of a data protection officer.

If processing is carried out by a public authority except for courts or independent judicial authorities when acting in their judicial capacity,

Or if processing operations involve regular and systematic monitoring of data subjects on a large scale,

Or if processing on a large scale of special categories of data and personal data relating to criminal convictions and offenses,

A data protection officer,

DPO,

A person with expert knowledge of data protection law and practices,

Must be designated to assist the controller or processor in monitoring their internal compliance with the regulation.

A designated DPO can be a current member of staff of a controller or processor,

Or the role can be outsourced to an external person or agency through a service contract.

In any case,

The processing body must make sure that there is no conflict of interest in other roles or interests that a DPO may hold.

The contact details for the DPO must be published by the processing organization,

For example in a privacy notice,

And registered with the supervisory authority.

The DPO is similar to a compliance officer and is also expected to be proficient at managing IT processes,

Data security,

Including dealing with cyber attacks and other critical business continuity issues associated with the holding and processing of personal and sensitive data.

The skill set required stretches beyond understanding legal compliance with data protection laws and regulations.

The DPO must maintain a living data inventory of all data collected and stored on behalf of the organization.

More details on the function and the role of data protection officer were given on the 13th of December 2016 in a guideline document.

Organizations based outside the EU must also appoint an EU-based person as a representative and point of contact for their GDPR obligations.

This is a distinct role from a DPO,

Although there is overlap in responsibilities that suggests that this role can also be held by the designated DPO.

Besides the definitions as a criminal offense according to national law following Article 83 GDPR,

The following sanctions can be imposed.

A warning in writing in cases of first and non-intentional non-compliance.

Regular periodic data protection audits.

A fine up to 10 million euros or up to 2% of the annual worldwide turnover of the preceding financial year in case of an enterprise,

Whichever is greater,

If there has been an infringement of the following provisions.

The obligations of the controller and the processor pursuant to Articles 8,

11,

25 to 39 and 42 and 43.

The obligations of the certification body pursuant to Articles 42 and 43.

The obligations of the monitoring body pursuant to Article 41,

4.

A fine up to 20 million euros or up to 4% of the annual worldwide turnover of the preceding financial year in case of an enterprise,

Whichever is greater,

If there has been an infringement of the following provisions.

The basic principles for processing including conditions for consent pursuant to Articles 5,

6,

7 and 9.

The data subjects rights pursuant to Articles 12 and 22.

The transfers of personal data to a recipient in a third country or an international organization pursuant to Articles 44 to 49.

Any obligations pursuant to member state law adopted under Chapter 9.

Non-compliance with an order or a temporary or definitive limitation on processing or the suspension of data flows by the supervisory authority pursuant to Article 58.

2 or failure to provide access in violation of Article 58.

1.

These are some cases which are not addressed in the GDPR specifically,

Thus are treated as exemptions.

Personal or household activities.

Law enforcement.

National security.

When the GDPR was being created it was strictly created for the regulation of personal data which goes into the hands of companies.

What is not covered by the GDPR is non-commercial information or household activities.

An example of these household activities may be emails between two high school friends.

Conversely,

An entity or more precisely an enterprise has to be engaged in economic activity to be covered by the GDPR.

Economic activity is defined broadly under European Union Competition Law.

The GDPR also applies to data controllers and processors outside of the European Economic Area,

EEA,

If they are engaged in the offering of goods or services,

Regardless of whether a payment is required,

To data subjects within the EEA or are monitoring the behavior of data subjects within the EEA.

The regulation applies regardless of where the processing takes place.

This has been interpreted as intentionally giving GDPR extra-territorial jurisdiction for non-EU establishments,

If they are doing business with people located in the EU.

Under Article 27,

Non-EU establishments subject to GDPR are obliged to have a designee within the European Union,

An EU representative,

To serve as a point of contact for their obligations under the regulation.

The EU representative is the controller's or processor's contact person vis-a-vis the European Privacy Supervisors and data subjects,

In all matters relating to processing,

To ensure compliance with this GDPR.

A natural,

Individual or moral corporation person can play the role of an EU representative.

The non-EU establishment must issue a duly signed document,

Letter of accreditation,

Designating a given individual or company as its EU representative.

The said designation can only be given in writing.

An establishment's failure to designate an EU representative is considered ignorance of the regulation and relevant obligations,

Which itself is a violation of the GDPR,

Subject to fines of up to 10 million euros,

Or up to 2% of the annual worldwide turnover of the preceding financial year in case of an enterprise,

Whichever is greater.

The intentional or negligent willful blindness character of the infringement,

Failure to designate an EU representative,

May rather constitute aggravating factors.

An establishment does not need to name an EU representative if they only engage in occasional processing that does not include,

On a large scale,

Processing of special categories of data as referred to in Article 9.

1 of GDPR,

Or processing of personal data relating to criminal convictions and offenses referred to in Article 10.

And such processing is unlikely to result in a risk to the rights and freedoms of natural persons,

Taking into account the nature,

Context,

Scope and purposes of the processing.

Non-EU public authorities and bodies are equally exempted.

Chapter 5 of the GDPR forbids the transfer of the personal data of EU data subjects to countries outside the EEA,

Known as third countries,

Unless appropriate safeguards are imposed,

Or the third countries' data protection regulations are formally considered adequate by the European Commission.

Binding corporate rules,

Standard contractual clauses for data protection issued by a Data Processing Agreement,

DPA,

Or a scheme of binding and enforceable commitments by the data controller or processor situated in a third country,

Are among examples.

The applicability of GDPR in the United Kingdom is affected by Brexit.

Although the United Kingdom formally withdrew from the European Union on 31 January 2020,

It remained subject to EU law,

Including GDPR,

Until the end of the transition period on 31 December 2020.

The United Kingdom granted royal assent to the Data Protection Act 2018 on 23 May 2018,

Which augmented the GDPR,

Including aspects of the regulation that are to be determined by national law,

And criminal offences for knowing or recklessly obtaining,

Redistributing,

Or retaining personal data without the consent of the data controller.

Under the European Union Withdrawal Act 2018,

Existing and relevant EU law was transposed into local law upon completion of the transition,

And the GDPR was amended by a statutory instrument to remove certain provisions no longer needed,

Due to the UK's non-membership in the EU.

Thereafter,

The regulation will be referred to as UK GDPR.

The UK will not restrict the transfer of personal data to countries within the EEA under UK GDPR.

However,

The UK will become a third country under the EU GDPR,

Meaning that personal data may not be transferred to the country unless appropriate safeguards are imposed,

Or the European Commission performs an adequacy decision on the suitability of British data protection legislation.

As part of the withdrawal agreement,

The European Commission committed to perform an adequacy assessment.

In April 2019,

The UK Information Commissioner's Office,

ICO,

Issued a Children's Code of Practice for social networking services when used by minors,

Enforceable under GDPR,

Which also includes restrictions on like and streak mechanisms,

In order to discourage social media addiction and on the use of this data for processing interests.

In March of 2021,

Secretary of State for Digital,

Culture,

Media and Sport,

Oliver Dowden,

Stated that the UK was exploring divergence from the EU GDPR,

In order to focus more on the outcomes that we want to have,

And less on the burdens of the rules imposed on individual businesses.

As per a study conducted by Deloitte in 2018,

92% of companies believe they are able to comply with GDPR in their business practices in the long run.

Companies operating outside of the EU have invested heavily to align their business practices with GDPR.

The area of GDPR consent has a number of implications for businesses who record calls as a matter of practice.

A typical disclaimer is not considered sufficient to gain assumed consent to record calls.

Additionally,

When recording has commenced,

Should the caller withdraw their consent,

Then the agent receiving the call must be able to stop a previously started recording and ensure the recording does not get stored.

IT professionals expect that compliance with the GDPR will require additional investment overall.

Over 80% of those surveyed expected GDPR-related spending to be at least US$100,

000.

The concerns were echoed in a report commissioned by the law firm Baker & McKenzie that found that around 70% of respondents believe that organizations will need to invest additional budget or effort to comply with the consent,

Data mapping,

And cross-border data transfer requirements under the GDPR.

The total cost for EU companies is estimated at around 200 billion euros,

While for US companies the estimate is for 41.

7 billion.

It has been argued that smaller businesses and startup companies might not have the financial resources to adequately comply with the GDPR,

Unlike the larger international technology firms such as Facebook and Google,

That the regulation is ostensibly meant to target first and foremost.

A lack of knowledge and understanding of the regulations has also been a concern in the lead-up to its adoption.

A counter-argument to this has been that companies were made aware of these changes two years prior to them coming into effect and should have had enough time to prepare.

Reviews

Still no clue what those letters are about, but I did fall asleep pretty fast! Thanks!

I actually knew about this act because of work! 😂😂 I think I lasted about 5 minutes. 😁 😉🤗