Weekly digest December 27 – January 2, 2022: Intelligent transport, Oracle and Salesforce court victory, the death of Blackberry, fan tokens

TechGDPR’s review of international data-related stories from press and analytical reports.

Legal Processes and Redress: EU Intelligent transport, Oracle and Salesforce court victory, discriminating AI in DC, privacy in Ukraine

The EU Commission revised its Intelligent Transport Systems (ITS) Directive to advance smart mobility. The aim is to stimulate the faster deployment of new, intelligent services, by proposing that certain crucial road, travel and traffic data is made available in digital format. ITS applies information and communication technologies such as journey planners, eCall, and automated driving in transport. Since 2010, the ITS Directive has been the tool to ensure the coordinated deployment of such systems across the EU, based on European specifications and standards. The revision includes:

  •  an extension in the Directive’s scope to multimodal information (apps to find and book journeys that combine public transport, shared car, or bike services),
  • communication between vehicles and infrastructure to increase safety and mobility,
  • the collection of crucial data and the provision of essential services such as real-time information services informing the driver about accidents or obstacles on the road,
  • updated obligations under the GDPR, and in consultation with the EDPS, on the security of personal data and the need for controllers to comply with their obligations, 
  • using anonymisation as one of the techniques for enhancing individuals’ privacy. Read the full text of the proposal here, and the Annex here.

A Court in the Netherlands says a billion euro claim against Oracle and Salesforce is not admissible. The Privacy Collective, (TPC),  foundation filed a lawsuit against tech giants in 2020 for violations of the GDPR. The two US-based companies reportedly collected data from at least 10 million Dutch internet users for advertising purposes, and created a personal profile of each web surfer that they could trade. TPC claimed 500 and 600 euros respectively per victim from Salesforce and Oracle. The latter is also said to have leaked data.  On the internet, TPC appealed to the public in a case under the Mass Damages in Collective Action Settlement Act. By clicking on an icon with the text ‘support with 1 click’, internet users were able to support the claim. The initiative received 75,000 statements.

According to the court, however, it is not possible to determine with these ‘likes’ whether the foundation really stands up for enough injured parties. No contact details are registered for the internet users who ‘clicked’. In addition, TPC is unable to maintain contact with its supporters, which is an important condition of the law. TPC is considering an appeal.

The use of artificial intelligence to determine access to credit and other important life opportunities has been targeted by the District of Columbia, Venable LLP reports. DC’s Attorney has introduced the “Stop Discrimination by Algorithms Act of 2021, which may be considered through January 1, 2023. The proposed legislation add civil rights protections to protect communities from alleged harm caused by algorithmic bias by:

  • prohibiting using algorithms that produce biased and unfair results;
  • performing annual audits, reporting the results and needed corrective steps;
  • documenting how their algorithms are built, how the algorithms make determinations, and how all of the determinations are made;
  • disclosing to all consumers about their use of algorithms to reach decisions, what personal information they collect, and how their algorithms use it to reach decisions;
  • adverse action (if businesses make an unfavorable decision based on an algorithm, they must provide a more in-depth explanation);
  • dispute and corrections opportunity to prevent negative decisions based on inaccurate personal information.

The bill would apply to individuals, legal entities, service providers that make or rely on algorithmic eligibility determinations or algorithmic information availability determinations. Read more about the coverage, key definitions and the enforcement of the Algorithms Act in the original publication.

In 2021 almost 4000 people applied to the Ukrainian Parliament’s Commissioner for Human Rights to protect their right to privacy, which is twice as many as last year. Individuals, (mostly legal professionals, representatives of human rights and public organizations, people with disabilities, etc), asked for the protection of their personal data in connection with:

  •  activities of debt collection companies and macrofinancial institutions, and
  •  publication of personal data in messengers, social networks and on the official websites of public authorities and local governments.

During the implementation of measures to repay overdue debt, collectors resort to insults and psychological pressure against debtors, but also members of their families, friends or acquaintances. For that reason, the law on consumer protection in settlement of overdue debts which came into force last year. At the same time, the draft law “On Personal Data Protection” and the draft Law “On the National Commission for Personal Data Protection and Access to Public Information” were registered in the Ukrainian Parliament. The legislators aim to implement both drafts within the next few months to be able to launch the data privacy reform by 2023 as part of the integration to the EU Digital Single Market, implementation of the EU-Ukraine Association Agreement, and the wider government digital agenda.

Official Guidance: China’s automotive sector, employment data and asylum seekers fingerprints in the EU

China’s latest data protection implementation rules include new data guidance for the automotive industry, analyzed by Paul Hastings LLP. It became one of the first set of industry-focused implementation rules of the new Data Security Law, and the Personal Information Protection Law. The auto industry provisions elaborated on:

  • Automotive Data, which included personal information data and important data involved in the process of automobile design, production, sales, maintenance, etc. 
  • Automotive Data Processors – manufacturers, components and parts suppliers, software suppliers, dealers, maintenance organizations, and mobility service companies, ride-hailing and sharing services.
  • Personal Information and sensitive personal information (eg, vehicle trajectory, driving habits, audio, video, images, biometric identification).
  • Important Data (eg, geographical information, vehicle flow, personal information involving more than 100,000 subjects).

Key Principles in automotive data processing are:

  • all automotive data must be processed inside vehicles unless it is absolutely necessary to send it out;
  • unless a driver makes a specific selection otherwise, the default setting should be non-collection each time the driver drives the vehicle;
  • the coverage and resolution of cameras and radars, among others, should be determined according to the requirements for data accuracy of the functions and services provided;
  • principle of desensitization (data processors are required to apply anonymization and de-identification during processing, if possible).

The Gibraltar data protection authority published fresh guidance on data protection in the employment context, (in English). The document provides general guide on the legitimate expectations of employees with regards to the processing of their personal data by employers, as well as the legitimate interest of employers in deciding how best, within the boundaries of data protection law, to run their organisations:

  • The obligations of the employer of accountability and implementation of appropriate security measures to protect employee personal data.
  • Recruitment and selection recommendations in relation to personal data in areas such as ‘advertising and applications’, ‘interview notes’, ‘vetting’ and ‘retention’. 
  • Employment records and the responsibility of the employer to appropriately notify employees of the personal data processing activities. 
  • Monitoring in the workplace.
  • Remote working and the risks presented regarding the security of personal data. 
  • Compatible, administrative infrastructure that allows adequate data protection.

Asylum seekers and migrants arrested at the EU’s external borders are required to give their fingerprints. This data is kept in the Eurodac file. The EU Agency for Fundamental Rights publishes, in collaboration with multiple data protection authorities, a guide intended to better inform people about the use made of their fingerprints, (now available in all EU languages). EU law requires giving the following information:

  • it is an obligation to give fingerprints,
  • ten digital fingerprints, the gender, the country fingerprinting, the place and date of the asylum application (if applicable). No other personal data is stored,
  • in case more personal data is collected by the authorities, name or age, migrants should be informed about the importance of providing accurate data,
  • the fingerprints are kept for 10 years, (if an asylum seeker), or for 18 months, (if an irregular migrant). After that data is automatically deleted,
  • only competent asylum and immigration authorities can access the data,
  • Indicate that the police and the Europol can access the data under strict conditions,
  • communicate why fingerprints are collected and the person’s rights.

The information given must be concise, transparent, comprehensible and in an easily accessible format, written in clear and plain language, adapting to the needs of vulnerable persons, such as children. Where necessary the information should be provided orally in a language that the person understands. Also, a copy of the personal data collected is provided. This helps to exercise the right to access and the right to delete and correct the data.

Data Breaches, Investigations and Enforcement actions: Slimpay, JP Morgan Securities, BBVA

French regulator CNIL sanctioned Slimpay with a fine of 180,000 euros for having insufficiently protected users’ personal data and not having informed them of a data breach. Slimpay offers recurring payment solutions to its customers. During 2015, it carried out an internal research project, during which it used the personal data contained in its databases. When the research project ended in 2016, the data remained stored on a server, without special security measures and was freely accessible from the Internet. It was not until 2020 that Slimpay became aware of the data breach, which affected approximately 12 mln people. Persons affected by the data breach are located in several countries of the EU, so cooperation was needed between the supervisory authorities of four countries – Germany, Spain, Italy and the Netherlands.

The US Securities and Exchange Commission, (SEC), announced that JP Morgan Securities agreed to pay 125 mln dollars to resolve charges that it failed to safeguard written communications of its employees. Its employees, including supervisors and managing directors, regularly used non-company messaging tools such as Facebook’s WhatsApp, text messages and personal email accounts to discuss company business. The company admitted that none of these records were preserved by the firm as required by the federal securities laws. JPMS further admitted that these failures were firm-wide and that practices were not hidden within the firm. The fine is the largest the SEC has ever leveled against a firm for record-keeping violations, beating the previous record of 15 mln, imposed on Morgan Stanley in 2006.

The Spanish data protection authority, the AEPD, fined Banco Bilbao Vizcaya Argentaria, (BBVA), 60,000 euros for insufficient legal basis for data processing. The claimant was receiving constant messages on his mobile phone from BBVA about defaults, appointments, etc. The claimant demanded deletion of the number, however it was not spotted in the client database. The investigation found that the text messages were an error on the part of the team in charge of carrying out functional tests of the tool designed to send notifications from the Bank to its clients. The team believed wrongly that said number did not exist or was not operational and therefore no one was going to receive such fictitious notices.

Audit: Oxford Health NHS Foundation Trust

The UK Information Commissioner’s Office published the Oxford Health NHS Foundation Trust data protection audit report. A major NHS health trust provides physical & mental health and social care for people of all ages in the UK. Its services are delivered at community centres, hospitals, clinics and people’s homes. With an overall reasonable assurance level, the executive summary proposes some areas of improvement : 

  • The Trust’s Records of Processing Activity requires upgrading. The evidence provided was more of a data flow map and therefore is not fully in line with the requirements of Art. 30 of the UK GDPR. The requirements include having a record of the name and contact details of the data controller, description of the categories of individuals and recipients of personal data, retention schedules and a description of the technological and organisational security measures in place.
  • The Trust has a Data Protection Officer in place who also holds other positions and responsibilities. The Trust needs to consider if these additional roles and responsibilities pose a conflict of interests or a demand on their time, which could impact on their duties as DPO. 
  • There is no Information Sharing Agreement (ISA) log to record vital information pertaining to current ISAs.
  • There is a lack of specialised training for staff with data sharing roles and those that deal with children’s data.  
  • There is no dedicated Information Sharing policy or procedure to provide guidance on ad hoc disclosures as well as the assurances that all ISAs include effective incident management procedures.

Big Tech: China’s low-carbon data clusters, Arsenal fan tokens, the death of Blackberry, racial bias on Airbnb, Zoom latest acquisition

China has approved plans to build four mega clusters of data centres in the country’s north and west with the aim of supporting the data needs of Beijing and major coastal cities. The move comes as energy-hungry data centres located in China’s east have found it difficult to expand due to limits imposed by local governments on electricity consumption. The four new locations can use their energy and environmental advantages (wind and solar). However, their distant locations have meant the centres have struggled to provide the near-instantaneous retrieval demanded by coastal clients with little tolerance for delays. Meanwhile, a new marine economy development plan encouraged major coastal cities such as Guangzhou, Shenzhen and Zhuhai to relocate high energy-consuming data centres to underwater locations to save energy used for cooling.

Britain’s advertising watchdog, the ASA, warned Arsenal FC on Wednesday over ads for its “fan tokens,” a type of cryptocurrency embraced by soccer clubs as coronavirus pummelled their revenues. ASA said ads posted on Arsenal’s website and on Facebook were misleading as they did not make clear the risk of trading crypto, potential tax implications or that the tokens are not regulated in the UK: “The tokens, which can be traded on exchanges like other cryptocurrencies, are prone to wild swings in price and often have little connection to on-field performance.” Fan tokens allow supporters of soccer and other sports clubs to vote on minor decisions such as songs played at matches after a goal is scored, or images used on social media. Arsenal believes that fan tokens were designed to boost participation by supporters, and were “materially different” to other cryptocurrencies used as a means of payment. More than 40 clubs from Europe to South America have launched fan tokens. The largest one, launched by Paris Saint-Germain, reportedly has a total value of 49 mln dollars, versus bitcoin’s 929 bln.

Legacy BlackBerry devices loose text, call, and data functionality on January 4th, the Verge reports. Whether on Wi-Fi or cellular, there’ll be no guarantee you can make phone calls, send text messages, use data, establish an SMS connection, or even call 911. The company has experienced a slow decline since its dominant era in the late 2000s, when its QWERTY keyboards and reputation for security gave it a 50% market share in the US, but its parent company has pivoted to selling cybersecurity software.

Airbnb announced that it’s changing the way guest profiles are displayed in its app, for Oregon residents only, the Verge reports. Airbnb hosts who are based in Oregon will now see a potential guest’s initials, rather than their full name, until after they’ve confirmed the booking request. The change aims to prevent racial discrimination among hosts, by stopping them from gleaning a guest’s race from their name. The announcement follows a voluntary settlement agreement that Airbnb reached in 2019 with three Portland-area women. A 2016 study also found that Airbnb guests with names that sounded Black were 16% less likely to have bookings confirmed than guests with names that sounded white.

Zoom gets bigger on virtual events with its latest acquisition, the CNET website reports. The videoconferencing company announced the acquisition of event solutions assets from Liminal. Due to the pandemic, events have increasingly gone online, demanding more from video teleconferencing apps like Zoom. Those apps have needed to expand the features of their products or rely on third-party services like the ones Liminal provided. Liminal offered apps like ZoomISO and ZoomOSC individual video outputs and enhanced sound controls. Liminal’s products will remain available through its site. However, as Zoom expands on those tools and builds something similar into the platform, there will no longer be a need for them as separate add-ons.

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