By: Monique Altheim
I recently attended the International Association of Privacy Professionals’ (IAPP) very first Europe Data Protection Congress in Paris on November 29 and 30.
The attendee list was impressive:
- Privacy professionals, employed by Fortune 500 companies from a wide variety of industries, like Hewlett-Packard, Lockheed Martin, Citigroup, Oracle, Western Union, Microsoft, IBM, Dell, Google, Yahoo, Estee Lauder, Pfizer, Johnson & Johnson, Eli Lilly, Merck, Mc Donald’s, Procter & Gamble and Disney. Even Facebook was represented.
- Vendors, like Lexis Nexis, Nymity, Iron Mountain and ADP.
- Partners of the international law firms Bird & Bird, Covington & Burling, Hogan Lovells, Morrisen & Foerster, Sidley Austin, Osborne Clarke, Field Fisher Waterhouse and Pearl Cohen Zedek Latzer.
- Partners of the national law firms Cabinet Gelly (France), Van Bael & Bellis (Belgium), Bristows (UK), Panetta & Associati (Italy), Houthoff Buruma (Netherlands), Coelho Ribeiro E Associados (Portugal and Spain), Baker & Daniels (USA), and Hunton & Williams (USA).
- Privacy Consultants like Brian Tretick of Athena (USA) and Anne Wilkes of ACW Privacy Consulting Ltd. (UK).
- Representatives of the European Data Protection Supervisor, of the French Data Protection Authority (DPA) (the CNIL), of the Spanish DPA, of the British DPA (the ICO) and of the European Commission.
- The IAPP staff, headed by executive director Trevor Hughes.
- One lone privacy advocate, Tara Taubman of Open Rights Group (UK).
The timing of this conference could not have been more opportune, as it took place in the wake of a ground breaking Communication by the European Commission on November 4, announcing a global overhaul of the current EU Data Protection framework.
In this communication, the European Commission announced that fifteen years after the original 1995 Data Protection Directive was enacted, the original twofold objective of protecting the fundamental right to data protection as well as of achieving the free flow of data in the internal European market is still valid.
However, two factors have caused the 1995 Directive to have become too outdated to guarantee these two objectives : The rapid technological advances and the globalisation in the ways information is collected, stored and transferred.
These dramatic changes were reflected in some of the topics debated during the breakout sessions:
- Cloud Computing: Peter Fleisher of Google pointed out that the current Directive is totally inadequate for cloud computing, since many of the Directive’s legal concepts rely on data being located in one particular place. However, Google has servers in the US, in Ireland, in Belgium and is building new ones in Finland and Austria. Google’s data are always duplicated in multiple locations and are constantly moving around from one location to another. Concepts for dealing with trans-border transfers of data, like Safe Harbor, BCR, and Model Contracts all rely on knowing the location of the data and were not created with the “cloud” in mind. Fleisher suggested that in the long run only the adoption of global standards would provide a solution for the “location” conondrum.
- Cross-Border Discovery and Investigations: Seth Berman of Stroz Friedberg pointed to the same problems concerning the difficulties of dealing with a location-based concept as a basis for determing the applicability of the Directive. If the data are located in the European Union, then the Directive is applicable and cross-border discovery of these data has to conform to its legal requirements.But where are the data located when they are in the “cloud”? Is the Directive applicable for discovery of updates on Facebook posted by a Europen Citizen? But are these data “located” in the EU? The Directive was not drafted with social media in mind, and new concepts need to replace the old, pre-cloud/pre-social media notions of data location.
- Data Breach Notification: In the context of strengthening the individual’s rights, the Commission has declared in its communication: “It is also important for individuals to be informed when their data are accidentally or unlawfully destroyed, lost, altered, accessed by or disclosed to unauthorised persons. The recent revision of the e-Privacy Directive introduced a mandatory personal data breach notification covering, however, only the telecommunications sector. Given that risks of data breaches also exist in other sectors (e.g. the financial sector), the Commission will examine the modalities for extending the obligation to notify personal data breaches to other sectors in line with the Commission declaration on data breach notification made before the European Parliament in 2009 in the context of the reform of the Regulatory Framework for Electronic Communications. This examination will not affect the provisions of the e-Privacy Directive, which must be transposed into national laws by 25 May 2011. A consistent and coherent approach on this matter will have to be ensured. The Commission will examine the modalities for the introduction in the general legal framework of a general personal data breach notification, including the addressees of such notifications and the criteria for triggering the obligation to notify.”
This panel, presided over by Ruth Boardman, partner at Bird & Bird, stressed the fact, that for once the European Union had been inspired by the US initiatives in Breach Notification Legislation.
Again, it is the exponential growth in personal data holdings and the increased outsourcing of data to third countries and to the “cloud” that have caused increased data breach scandals and have required changes in the Directive. Some EU member states, like Germany, already have enacted a national general data breach law (Section 42 a FDPA- September 2009), but most others will have to implement their national laws once the new legal framework is in place.
Other important suggestions for consideration in reframing the Directive by the Commission are : The right to be forgotten, Privacy by Design, greater transparancy in internet related data collections, data portability rights, achieving more harmonization among the vastly different implementaions into national laws by the member states, the requirement of mandatory privacy officers in companies and organizations, the requirement of privacy impact assessments upon introducing new systems and technologies in companies and organizations, and strengthening as well as harmonizing enforcement of the Directive.
Concluding the panel on the revision of the 1995 Directive, Henriette Tielemans of Covington & Burling asked the European Commission representative Thomas Zerdeck: “Will the new baby be a directive or a regulation?” to which Thomas, in his usual style, replied: “This is way too complex. You will find out in 2011.”
The European Commission has opened a public consultation period (from November 4, 2010, to January 15,2011) to obtain views on its ideas for addressing new challenges to personal data protection in order to ensure an effective and comprehensive protection to individuals’ personal data within the EU.
They welcome contributions from citizens, organisations (i.e., Non-Governmental Organisations, businesses) and public authorities.
Thus all stake holders have a chance to be part of this sweeping overhaul of the European Union Data Protection framework.