Privacy and data protection

Updates

26 Oct 2017 | Facebook, WhatsApp to face taskforce over data sharing

The pan-European data regulator, the Article 29 Working Party (WP29), has set up a taskforce to tackle concerns over user data sharing by Facebook and WhatsApp. Last year, the regulator issued a warning to WhatsApp over its sharing of data with Facebook, and asked it to pause the transfer of data. Earlier this year, the European Commission fined Facebook €110 million for giving misleading or incorrect information during the Commission’s 2014 vetting of its deal to acquire WhatsApp.

23 Oct 2017 | Dutch gTLDs decide not to provide public access to Whois data

The registries for .amsterdam and .frl, two Netherlands-based geographic generic top-level domains (gTLDs), have decided not to provide public access to Whois records (containing data about registrants of domain names). According to the standard ICANN Registry Agreement, all new gTLDs are required to provide public Whois access. But the two registries do not offer links to Whois search on their websites, and instead note that Dutch law ‘forbids that names, addresses, telephone numbers or e-mail addresses of Dutch private persons can be accessed and used freely over the internet by any person or organization’. According to DomainIncite, the two registries have already received a notification from ICANN about breaching the Registry Agreement, and it remains to be seen how the matter will develop. The decision come in the context of ICANN trying to determine whether and how the new EU data protection regulation (to enter into force in May 2018) will affect its Whois policy.

20 Oct 2017 | UK businesses suggest governmental actions in AI and IoT

UK business organisation CBI has published a report titled ‘Disrupting the Future’, which looks at how businesses can embrace artificial intelligence (AI), blockchain, and the Internet of things. The report notes that companies have the potential to benefit from these technologies, as ‘the [IoT] unlocks big data, AI solves problems, [and] blockchain changes how businesses exchange value’. But the benefits can be slow, due to ‘limited adoption, regulatory hurdles, and a lack of business understanding’. In the field of AI, the UK government is invited to set up a joint commission, involving businesses, academics, and employee representatives, ‘to examine the impact of AI on people and jobs’, and make recommendations for action and policy. Other recommendations include governmental funding for tackling societal issues through the use of AI, availability of open public data, development of a set of terms and conditions of data sharing related to AI development. When it comes to IoT, it is recommended that the government supports the development of a voluntary Code of Practice with security and privacy principles. Local authorities are invited to explore the potential for IoT to ‘solve local challenges and lower costs’.

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Privacy and data protection are two interrelated Internet governance issues. Data protection is a legal mechanism that ensures privacy. Privacy is usually defined as the right of any citizen to control their own personal information and to decide about it (to disclose information or not). Privacy is a fundamental human right. It is recognised in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and in many other international and regional human rights conventions. The July 2015 appointment of the first UN Special Rapporteur on the Right to Privacy in the Digital Age reflects the rising importance of privacy in global digital policy, and the recognition of the need to address privacy rights issues the the global, as well as national levels.

 

Frameworks for safeguarding the right to privacy and data protection

The International Covenant on Civil and Political Rights (ICCPR) is the main global legal instrument for the protection of privacy. At a regional level, the main instruments on privacy and data protection in Europe is the Council of Europe (CoE) Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of 1981. Although it was adopted by a regional organisation (CoE), it is open for accession by non-European states. Since the Convention is technology neutral, it has withstood the test of time. The EU Data Protection Directive (Directive 95/46/EC) has also formed an important legislative framework for the processing of personal data in the EU and has had a vast impact on the development of national legislation not only in Europe but also globally. This regulation has also entered a reform process in order to cope with the new developments and to ensure an effective privacy protection in the current technological environment.

Another key international – non-binding – document on privacy and data protection is the OECD Guidelines on Protection of Privacy and Transborder Flows of Personal Data from 1980. These guidelines and the OECD’s subsequent work have inspired many international, regional, and national regulations on privacy and data protection. Today, virtually all OECD countries have enacted privacy laws and empowered authorities to enforce those laws.

While the principles of the OECD guidelines have been widely accepted, the main difference is in the way they are implemented, notably between the European and US approaches. In Europe there is comprehensive data protection legislation, while in the USA the privacy regulation is developed for each sector of the economy including financial privacy (the Graham-Leach-Bliley Act), children’s privacy (the Children’s Online Privacy Protection Act) and medical privacy (under the Health Insurance Portability and Accountability Act).

Another major difference is that, in Europe, privacy legislation is enforced by public authorities, while in the USA enforcement principally rests on the private sector and self-regulation. Businesses set privacy policies. It is up to companies and individuals to decide about privacy policies themselves. The main criticism of the US approach is that individuals are placed in a comparatively weak position as they are seldom aware of the importance of options offered by privacy policies and commonly agree to them without informing themselves.

These two approaches – US and EU – to privacy protection have generated conflict. The main problem stems from the use of personal data by business companies. How can the EU ensure that data about its citizens is protected according to the rules specified in its Directive on Data Protection? According to whose rules (the EU’s or the USA’s) is data transferred through a company’s network from the EU to the USA handled?

A working solution was found in 2000 when the European Commission decided that EU regulations could be applied to US companies inside a legal ‘safe harbour’. US companies handling EU citizens’ data could voluntarily sign up to observe the EU’s privacy protection requirements. Having signed, companies were required to observe the formal enforcement mechanisms agreed upon between the EU and the USA.

The so-called Safe Harbor Agreement was received with a great hope as the legal tool that could solve similar problems with other countries. However, it was criticised by the European Parliament for not sufficiently protecting the privacy of EU citizens.

In a turning point for data transfers between the EU and the USA, in October 2015, the Court of the Justice of the European Union (CJEU) struck down this long-standing agreement and declared the Safe Harbour Agreement to be invalid. The Court found that the European Commission had failed to examine whether the USA afforded an adequate level of protection equivalent to that guaranteed in EU, but simply examined the safe harbor scheme. It found that in the US, the scheme is applicable only to undertakings that adhere to it, whereas public authorities are not subject to it, and national security, public interest and law enforcement requirements prevail over scheme. The US scheme therefore enables interference by public authorities, whereas no such limitations exist under EU law.The Court also found that the powers of national supervisory authorities could not be diminished other than by the Court.

Given the high importance of privacy and data protection in the relations between the USA and the EU after the Snowden revelations, it is likely to expect higher pressure to find a post-Safe Harbour Agreement solution.

Events

Actors

(ISO)

More and more standards and guidelines developed by ISO cover issues related to data and information security,

...

More and more standards and guidelines developed by ISO cover issues related to data and information security, and cybersecurity. One example is the 27000 family of standards, which cover aspects related to information security management systems and are used by organisations to keep information assets (e.g. financial data, intellectual property, employees’ information) secure. Standards 27031 and 27035, for example, are specifically designed to help organisations to effectively respond, diffuse and recover from cyber-attacks. Cybersecurity is also tackled in the framework of standards on technologies such as the Internet of Things, smart community infrastructures, medical devices, localisation and tracking systems, and future networks.

(UN OHCHR)

Challenges to the right to privacy in the digital age (such as surveillance and interception) are among the is

...

Challenges to the right to privacy in the digital age (such as surveillance and interception) are among the issues covered by activities of the High Commissioner for Human Rights. At the request of the UN General Assembly, the Commissioner prepared a report of the right to privacy in the digital age, which was presented to the Assembly in December 2014. The office of the Commissioner also organises discussions and seminars on the promotion and protection of the right to privacy in the online space, and collaborates on such issues with the UN Special Rapporteur on the right to privacy.

(UNHRC)

Privacy and data protection online has been the subject of many UNHRC resolutions.

...

Privacy and data protection online has been the subject of many UNHRC resolutions. General resolutions on the promotion and protection of human rights on the Internet have underlined the need for states ensure a balance between cybersecurity measures and the protection of privacy online. The Council has also adopted specific resolutions on the right to privacy in the digital age, emphasising the fact that individuals should not be subjected to arbitrary of unlawful interference with their privacy, either online or offline. The UNHRC has also mandated the Special Rapporteur on the right to privacy to address the issue of online privacy in his reports.

(ECHR)

The European Court of Human Rights deals with privacy through the prism of Article 8 of the

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The European Court of Human Rights deals with privacy through the prism of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. It adjudicates on cases brought on against Council of Europe member states accused of being in violation of one or more articles of the Convention. The ECHR has a broad view of what it deems to be protected as ‘personal data’ as any information related to a person (identified or identifiable), which falls under the ‘private life’ part of Article 8. Its most recent high-profile case on the issue found the Hungarian government in breach of Article 8, due to its broad surveillance law.

(CoE)

The Council of Europe has been actively involved in policy discussions on the issue of net neutrality.

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The Council of Europe has been actively involved in policy discussions on the issue of net neutrality. In 2010, the Committee of Ministers adopted a Declaration on network neutrality declaring its commitment to the principle of net neutrality. Later on, and in line with the Council’s Internet Governance Strategy, the Committee adopted a Recommendation on protecting and promoting the right to freedom of expression and the right to private life with regard to network neutrality, calling on member states to safeguard net neutrality in legal frameworks. Issues related to net neutrality and its connections with human rights are also tackled in events organised and studies conducted by the Council.

(PI)

Privacy International’s work is varied, in terms of both subject matter and actions.

...

Privacy International’s work is varied, in terms of both subject matter and actions. Their three main areas are ‘Building a Global Privacy Movement’, ‘Challenging Data Exploitation’ and ‘Contesting Surveillance’, while their actions include research (Privacy 101 explainers and broad-ranging reports) and legal action. A majority of its most recent work has skewed towards issues of surveillance around the world, with a specific focus on Kenya, which relies heavily on its Privacy International Network.

G7
(G7)

World Bank
(World Bank)

G20
(G20 )

Hivos
(Hivos)

US Congress
(US Congress)

Freedom House
(Freedom House)

Access Now
(Access)

Pew Research Center
(Pew Research)

Instruments

Conventions

Link to: Convention on Cybercrime (Budapest Convention)-482 (2001)

Judgements

Case of Barbulescu v Romania - European Court of Human Rights (2016)
Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González Case - Court of Justice of the European Union (2014)

Resolutions & Declarations

IPU Resolution: 'Democracy in the Digital Era and the Threat to Privacy and Individual Freedoms' (2015)
Universal Declaration of Human Rights (1948)

Standards

Request for Comments (RFC) dealing with Privacy and Data Protection (2015)

Recommendations

Other Instruments

Suplementary act on personal data protection within ECOWAS (2010)
Patriot Act (2001)

Resources

Articles

Apple vs FBI: A Socratic Dialogue on Privacy and Security (2016)
2016 Data Threat Report (2016)
Trends in Transition from Classical Censorship to Internet Censorship: Selected Country Overviews (2012)
Policy and Regulatory Issues in the Mobile Internet (2011)

Publications

Internet Governance Acronym Glossary (2015)
Securing Safe Spaces - Online Encryption, online anonymity, and human rights (2015)
An Introduction to Internet Governance (2014)

Papers

Expert and Non-Expert Attitudes towards (Secure) Instant Messaging (2016)
Personal Data Storage in Russia (2015)

Reports

Technology, Media and Telecommunications Predictions 2017 (2017)
Drones and Privacy by Design: Embedding Privacy Enhancing Technology in Unmanned Aircraft (2016)
Enabling Growth and Innovation in the Digital Economy (2016)
One Internet (2016)
Encryption: A Matter of Human Rights (2016)
A New Regulatory Framework for the Digital Ecosystem (2016)
The Impact of Digital Content: Opportunities and Risks of Creating and Sharing Information Online (2016)
NI Trend Watch 2016 (2015)
Freedom on the Net 2015 (2015)
OECD Digital Economy Outlook 2015 (2015)
Global Internet Report 2015 (2015)
Government Request Report (2015)
Taxation and the Digital Economy: A Survey of Theoretical Models (2015)

GIP event reports

Where and How to Protect Legal Interests in the Digital Era (2017)
Addressing Access to Remedy in the Digital Age: Corporate Misconduct in Sharing and Processing Personal Data (2017)
Big Data and Conflict Prevention: Balancing Opportunities with Challenges (2017)
Recent Cyber Incidents - Patterns, Vulnerabilities and Concerns (2017)
Artificial Intelligence, Justice and Human Rights (2017)
Realizing Rights Online: From Human Rights Discourses to Enforceable Stakeholder Responsibilities (2017)
Key-note Speeches on the Future of the Internet (2017)
Digital citizenship, Integration, and Participation (2017)
GAC Meeting with the ICANN Board (2017)
Cross-Community Discussion on Next-Generation gTLD Registration Directory Services (RDS) Policy Requirements (2017)
At-Large Advisory Committee (ALAC) and Regional Leaders Wrap Up – Part 2 (2017)
GDPR and Its Potential Impact: Looking for Practical Solutions (2017)
International Trade Agreements and Internet Governance (2017)
EuroDIG 2017 Welcoming Address (2017)
Domain Names Innovation and Competition (2017)
Data Protection, Digital Trade and Development (2017)
Report for EBU Big Data Conference 2017 (2017)
ICANN58: GNSO Registration Directory Services (RDS) Policy Development Process Working Group Meeting (2017)
ICANN58: Public Forum 1 & 2 (2017)
Report for Symposium on The Future Networked Car (2017)
Report for ITU CWG-Internet - 4th Physical Open Consultation Meeting (2017)

Other resources

Internet Legislation Atlas (2016)
Security and Privacy Handbook: 100 Best Practices in Big Data Security and Privacy (2016)
Security for All: An Open Letter to the Leaders of the World's Governments (2016)
The Twitter Rules (2016)
Privacy Level Agreement [v2]: A Compliance Tool for Providing Cloud Services in the European Union (2015)

Processes

Sessions at WSIS Forum 2016

Sessions at IGF 2015

IGF 2016 Report

 

Continuing a trend to keep human rights at the forefront, a main session at the IGF 2016 was dedicated to the topic (Human Rights: Broadening the Conversation). This demonstrates that the IGF has matured to a point where human rights (Dynamic Coalition on Internet Rights and Principles) are now accepted as an underlying unifying force (Mapping Digital Rights in the Middle East and North Africa: A New Visual Tool for Comparative Analysis). 

The broader implications that the right to privacy (Surveillance and International Human Rights Law - WS267) and data protection (Is Personal Data ‘Mine’ or There to be ‘Mined’? - WS114) have for the Internet and society were discussed in the context of global balance, with overarching links to states’ governance models. These topics are being increasingly merged with issues of security (a right in itself), jurisdiction, and other complexities. The interconnections between privacy, on one side, and access and net neutrality issues, on the other side, were also discussed (Dynamic Coalition on Net Neutrality).

WSIS Forum 2016 Report

 

Privacy and data protection in the online space was discussed from various perspectives. Internet Governance, Security, Privacy and the Ethical Dimension of ICTs in 2030 (session 150) looked at issues related to online privacy in different contexts: the evolution of Internet of Things technologies, state surveillance programmes, and cybersecurity.

In session 169 on Internet Fragmentation one interesting scenario was exposed: one in which governments had one IP address fixed for each citizen, and used it as a passport. In this scenario, the individual would have to renew their passport every year. The government would know exactly which content they had accessed and could deny renewal.

IGF 2015 Report

 

At this year’s IGF, the discussion on privacy and data protection revisited a typical dilemma: How do we ensure both privacy and security or - at least - strike a right balance between two?

This ‘balancing question’ was echoed in many discussions. In the debate on encryption (WS 141 on Law Enforcement in a World of Pervasive Encryption, and WS 53 on The Politics of Encryption), human rights and security communities presented two different views. Human rights activists argued for pervasive encryption aimed at protecting privacy, while security officials believe that strong encryption hinders investigations and poses a problem to gathering data and preventing crime and terrorism.

In the debate between Privacy and Transparency (WS 124), it was argued that the treatment of personal data needs to be transparent, with transparency being also closely associated with accountability. Yet, a recently negotiated trade agreement, which will impact users’ privacy,was not negotiated in such a transparent way.

In discussing these dichotomies, a few new proposals and ideas emerged. For example, in Implementing Core Principles in the Digital Age (WS 114), the two UN Special Rapporteurs on freedom of expression and on privacy argued that both rights could be protected in an integrated way, where encryption and transparency of policy should play an important role. The link between privacy, freedom of expression, and anonymity was discussed in depth in Special Rapporteur David Kaye’s report on the promotion and protection of the right to freedom of opinion and expression (May 2015).

Another question was whether privacy should be protected on a national or international level. The prevailing view is that it needs to be afforded international protection. In the same workshop, Special Rapporteur Joseph Cannataci said that people needed ‘safeguards without borders’ and ‘remedies across borders’, neither of which he believe is possible at the moment. He also referred to the ‘further development of international law’ during the Open Forum on the Right to Privacy in the Digital Age, a view which was picked up by a Brazilian Foreign Ministry official: the right to privacy is already enshrined in international law through the International Covenant on Civil and Political Rights, which has been ratified by 168 countries. His comment: ‘And we might ask ourselves what about the remaining countries? Well, all remaining countries recognise the universal Human Rights, which also [include] the right to privacy. So we have the norm. We have a foundation. A basis to work on.’

 

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