Weekly digest February 7 – 13, 2022: France latest EU member to put pressure on Google Analytics

The use of Google Analytics, (GA), is illegal as it threatens the privacy of French website users, concludes the French data protection regulator CNIL. In its latest decision relating to an unnamed French website manager, the CNIL decided that the analytics service developed by Google risks giving US intelligence services access to the website users’ data. GA provides statistics on website traffic. In this context, a unique identifier is assigned to each visitor. This identifier (which constitutes personal data) and the data associated with it is transferred by Google to the US. The CNIL, in cooperation with its EU counterparts, concludes that in the absence of an adequacy decision following the “Schrems II” CJEU ruling such transfer can only take place if appropriate guarantees are provided. Although Google has adopted additional measures to regulate data transfers in the context of the GA functionality, these are not sufficient to exclude the accessibility of this data for US intelligence services. The CNIL ordered an unnamed website manager to bring this processing into compliance with the GDPR, if necessary:

  • by ceasing to use the GA functionality under the current conditions, or 
  • by using a tool that does not involve a transfer outside the EU, (and only uses anonymous statistical data). 

To go deeper on this topic you can also read the recent unfavorable decision on GA by the Austrian data protection regulator. In its defense, Google also recently posted a statement stressing that the GA tool does not track people or profile people across the internet.

Britain’s competition regulator CMA to keep a close eye on Google as it secures final Privacy Sandbox commitments. The CMA has accepted a revised offer from Google of legally binding commitments relating to its proposed removal of third-party cookies from the Chrome browser known as the Privacy Sandbox proposals. The CMA competition investigation was launched in January 2021 over concerns that the proposals would cause online advertising spending to become even more concentrated on Google, weakening competition and so harming consumers. Google has pledged not to remove third-party cookies until the CMA is satisfied.

The CMA is currently working closely with the UK Information Commissioner’s Office, ICO, to oversee the development of the proposals so that they protect privacy without unduly restricting competition and harming consumers. In one of the examples, Google commits to restricting the sharing of data within its ecosystem to ensure that it doesn’t gain an advantage over competitors when third-party cookies are removed. Google will also engage in a more transparent process than initially proposed, including engagement with third parties and publishing test results, with the option for the CMA to require Google to address issues raised by the CMA or third parties. Read more on the Privacy Sandbox initiative here and the ICO’s latest opinion on Data protection and privacy expectations from the advertising technology sector. 

Official guidance: configuration errors, payment services, EU data flows analysis

The French regulator CNIL published a guide, (in French), on security incidents related to configuration errors within public cloud storage spaces, DataGuidance reports. Malicious scenarios may be caused by a) publicly accessible ‘bucket”; b) overly permissive access rights for users, c) inadequate user authentication mechanisms. To detect unauthorized access, CNIL recommended that available logs should be analyzed, and the Data Protection Officer should be updated in a timely manner in the course of the investigation. If the incident was classified as a personal data breach, CNIL must be notified within 72 hours of discovery. Some essential steps to prevent configuration errors include: 

  • knowing your infrastructure, (eg, configure security options: do not rely on default settings, in particular public and private access to containers);
  • taking inventory of your cloud resources, (eg, separating the storage of personal and sensitive data from other data);
  • limiting access, (eg, strong two-factor authentication for sensitive actions);
  • encrypting data and performing regular backups;
  • tracing, monitoring, and auditing containers and their security configurations;
  • educating users on how to handle data stored in the cloud.

The EU Commission presented a new study estimating the volume of data flowing to main cloud infrastructures across the EU Member States, Iceland, Norway, Switzerland, and the UK. In 2020, the largest data flows came from the health sector, and Germany registered the largest volume of data inflow. Reportedly, by 2030, the flow of data stemming from European enterprises will be 15 times higher than in 2020. Furthermore, a follow-up study has just been started to assess the economic values of data flows within the EU, as well as with third countries such as the US and China. Both studies will complement the upcoming Data Act. It will also feed into the evaluation of EU Regulation of the Free Flow of Non-Personal Data, as well as the Digital Decade policy program. Read the full study and the interactive map here. 

A growing number of  EU payment industry associations co-signed a letter addressed to the EDPB, the European Commission, and the European Banking Authority about the final EDPB Guidelines on the interplay of PSD2, (Payment Services Directive), and the GDPR. Although it clarifies certain aspects of the interplay, other elements remain more worrying and raise new uncertainties, notably:

  • the provisions on data minimisation;
  • the processing of special categories of personal data;
  • a lack of coherence with the Regulatory Technical Standards on Strong Customer Authentication and Common and Secure Communication;
  • the risk that national data protection authorities could start taking a differentiated approach to the interpretation of the provisions, resulting in fragmentation across the EU.

Investigations and enforcement actions: IAB Europe/APD row, extensive health data collection, unprotected visa order forms, unsolicited marketing email

The Interactive Advertising Bureau (IAB) Europe has published an FAQ on the Belgian data protection authority, (APD), decision about the Transparency and Consent Framework, and its compliance with the GDPR. The IAB Europe states that:

  • There is nothing in the APD’s decision that even remotely suggests that consent pop-ups are illegal or that they should not be employed by the digital advertising ecosystem to comply with the EU data protection rules. 
  • The APD only requires IAB Europe to ensure the deletion of personal data collected through TC Strings in the context of a specific mechanism called the “global scope”.
  • The APD does not consider the TC String itself to be personal data, as the TC string does not allow for direct identification of the user due to the limited metadata value.
  • However, the APD holds that the possibility of CMPs being able to combine TC Strings and the IP address means it is ultimately information about an identifiable user and therefore personal data. 
  • The APD’s decision only concerns IAB Europe, not any vendor, publishers, or CMPs, but it does hint at the possibility of an order for a given party to delete TC Strings if they contain personal data collected in breach of Art. 5 and 6 of the GDPR.
  • It is unclear if reliance on legitimate interests as a legal ground for the processing of personal data by TCF participants is viable for all TCF purposes or solely for personalized advertising and profiling, etc.

The EDPB published an analysis of the recent decision by the Finnish Data Protection Ombudsman. An administrative fine with reprimand was imposed on the Finnish Motor Insurers’ Centre for the collection of unnecessary patient information. The Data Protection Ombudsman stated that the actions of the data controller violated the principle of data minimization provided for in the GDPR. Namely, the data controller requested unredacted patient records from health care providers in order to settle claims. The controller also collected information on the patients’ health care appointments to determine whether the health care provider charged for visits not related to the examination or treatment of injuries sustained in the claim. Information was also requested in cases where the health care recipient may have omitted information essential for claims handling. The decision by the data protection authority is not final as it is under appeal in the administrative court.

Another fine by the Finnish data protection regulator was imposed on a travel agency for multiple violations of the GDPR. In the given case, a customer suspected the travel agency was not processing the data on the electronic visa order form in compliance with data protection regulations. The customer had also requested the travel agency erase their data from the system, but the company had not fulfilled the customer’s request. The investigation showed that: 

  • The travel agency used an unencrypted network connection for its visa application forms, and
  • Stored personal data on a public web server. 
  • The information entered on the form was saved as a PDF file in the web server’s files folder that was open to access from the internet.
  • The information entered on the forms included the customer’s name, contact details, and passport number, which in particular poses a privacy risk. 

The regulator also imposed a fine on the small travel industry group that the travel agency is considered a part of.

Meanwhile, the Spanish data protection authority AEPD fined SegurCaixa Adeslas, (health insurance), 300,000  euros for sending marketing emails to the plaintiff, despite their request for deletion of their data, Data Guidance reports. This happened despite the fact that the given email address was registered in an opt-out list of people not willing to receive marketing communications. SegurCaixa Adeslas however indicated that the marketing emails were sent to insurance agents with which it maintained a commercial relationship, claiming that these insurance agents should be responsible for the activity of promoting and attracting clients. The AEPD found SegurCaixa Adeslas in breach of Art. 6, (unlawful processing), 17, (failed requests of data deletion), and 28, (no formalized data processing agreement with the contracted insurance agents), of the GDPR. 

Data security: IoT products

The US National Institute of Standards and Technology published its latest Recommended Criteria for Cybersecurity Labeling for Consumer Internet of Things (IoT) products. An IoT product and its components must protect data stored and transmitted, (both between IoT product components and outside the IoT product), from unauthorized access, disclosure, and modification. Thus, maintaining confidentiality, integrity, and availability of data is foundational to cybersecurity for IoT products. Customers will expect that data is protected and that protection of data helps to ensure the safe and intended functionality of the IoT product. The document provides some real-world IoT product vulnerabilities and related proposed baseline criteria. Here are some examples:

  • Weak data protection in storage and transit creates vulnerabilities within home security cameras allowing adversaries to exfiltrate data. 
  • Unencrypted sensitive data is available through a baby monitor, leaving the data vulnerable to access, modification, exfiltration, and misuse.
  • Using weak de-identification methods leaves data vulnerable to being reidentified allowing unauthorized access to sensitive data, etc.

Big Tech: Meta annual report, TikTok promises minors privacy, AirTag dilemma, surveillance marketing by YouTube, TikTok & Co

Negotiations between the EU and US over transatlantic data transfers and their associated privacy issues need to succeed said Meta this week in its annual report to the SEC and in press releases. Failure to agree on a new transatlantic data transfer framework that complies with the EU’s GDPR could lead to Facebook and Instagram quitting Europe. Meta added and claimed 70 other companies are concerned about the impact on their business. The SEC report noted other data protection requirements at the federal, state, and international level, along with legislation restricting the collection and use of data from minors could impose limitations on Meta’s business. You can investigate Meta’s annual report here.

A TikTok news briefing revealed the company is conducting twin tests to crack down on adult content arriving on minors’ devices, Reuters reports. The company said one small test would look at how users themselves or their parents or guardians could restrict access, while a ratings approach is being trialled for app creators who want to specify adult content, similar to the film and games industries.

Apple has responded to reports its AirTag device is being used by criminals, especially stalkers, updating software and beefing up online support, according to The Guardian. Any initial user of the device will now be warned tracking people without consent is a crime in many places around the world. Guidance on what to do if you find an unwanted AirTag near you and how to disable it is being added to the website, along with links to two US helplines. Apple says additional measures, like precision detection of stalking AirTags, are on the way.

TikTok and YouTube are by far the biggest collectors of personal data among social media apps according to a report by URL Genius. While YouTube mostly collects data for its own business purposes and sells little to third-party trackers, TikTok sells nearly all its user’s data to third parties, more than three times as much, trailed by Twitter and Telegram. The report says that for users this means it is unclear where all this data goes, how it is used, and whether or not, for example, other online activity or location is being tracked, logged in to TikTok or not. The study added TikTok allowed third-party tracking even when users did not use the opt-in feature. Find many other findings on surveillance marketing in the original study report

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