Tag: USA

Safe Harbour 2.0 – Not really safe nor sound

Round 2!

Round 2!

So, back in 2013, the revelations of the massive and indiscriminate surveillance conducted by the US authorities have prompted EU demands regarding the strengthening of the Safe Harbour mechanism.

As you may well be aware by now, the conclusion of the very lengthy negotiations between the EU and the U.S. for the new EU-US Safe Harbour – christened “EU-US Privacy Shield” and intended to replace the former Safe Harbour Agreement – has apparently come to an end.

Which seem to be quite good news, considering how intricate those negotiations were.

Certainly, the approval of the Cybersecurity Information Sharing Act (CISA), according to which, upon ‘cyber threat’ indicators, companies are encouraged to share threat intelligence information with the US government by being absolved of liability for data security, did not help the case. Indeed, this undoubtedly poses a problem for the EU when such information includes some European citizens’ personal data.

Similarly, the delays on the proposed Judicial Redress Act, which would allow European citizens to seek redress against the US if law enforcement agencies misused their personal data, only added up to the existing complication.

The fact that negotiators were running against the clock was another stressful point.

Time was pressing for companies which rely on the Safe Harbour framework to freely transfer data between the United States and the European Union. Indeed, last October, the Court of Justice of the EU ruled that the Safe Harbour decision was invalid (case C-362/14). Consequently, companies had to rely on other legal basis to justify the transfers of personal data to the US.

Moreover, the Article 29 Working Party established the end of January as the turning point date where it would all necessary and appropriate action if no alternative was provided.

The end of January indeed passed and at the beginning of February the conclusion of the negotiations was finally announced.

However no bilateral agreement was really reached, as the new framework is based on “an exchange of letters” with written binding assurances.

The US have indeed offered to address the concerns regarding the access of its authorities to personal data transferred under the Safe Harbour scheme by creating an entity aiming to control that such activity is not excessive. Moreover, access to information by public authorities will be subject to clear limitations, safeguards, and oversight mechanisms.

Thus said, the conclusion of these negotiations represent good news. At least in theory. Certainly, in the EU Commission own words, the new framework “will protect the fundamental rights of Europeans where their data is transferred to the United States and ensure legal certainty for businesses“.

The EU Commission further stated that the new mechanism reflects the requirements set out by the European Court of Justice in its Schrems ruling, namely by providing “stronger obligations on companies in the U.S. to protect the personal data of Europeans and stronger monitoring and enforcement by the U.S. Department of Commerce and Federal Trade Commission (FTC), including through increased cooperation with European Data Protection Authorities.”

Moreover, it said that the new mechanism “includes commitments by the U.S. that possibilities under U.S. law for public authorities to access personal data transferred under the new arrangement will be subject to clear conditions, limitations and oversight, preventing generalised access.”

It appears that mass and indiscriminate surveillance would constitute a violation of the agreement. However, it would still be permissible if a targeted access would not be possible.

Furthermore, “Europeans will have the possibility to raise any enquiry or complaint in this context with a dedicated new Ombudsperson.” This independent entity is yet to be appointed.

The cornerstones of the arrangement therefore seem to be the obligations impending on companies handling personal data of EU data subjects, the restriction on the US government access and the judicial redress possibilities.

A joint annual review is intended to be put in place in order to monitor the functioning of the agreement

Nevertheless, in spite of what is optimistically expected and what one is lead to believe by the EU Commission’s own press release, one must wonder… What has really been achieved in practice?

To begin with, it seems that we are supposed to rely on a declaration by the US authorities on their interpretation regarding surveillance.

Unsurprisingly, many fail to see in what way this new framework is fundamentally different from the Safe Harbour, let alone that it complies with the requirements set out by the CJEU in the Schrems ruling. Hence, it is perhaps expectable that the CJEU will invalidate it on the same grounds it invalidated the Safe Harbour framework.

While US access to EU citizen’s data is expected to be limited to what is necessary and proportionate, as the devil is generally in the details, one must legitimately ask what is to be deemed necessary and proportionate in regards of such surveillance.

It is indeed unavoidable to think that such a framework does not ensure the proper protection of the fundamental rights of Europeans where their data is transferred to the US, nor provide sEU citizens with adequate legal means to redress violations, namely in regards of possible interception by US security agencies.

Anyway, at the moment, the ‘Ombudsperson’ has not yet been set up by the US nor any adequacy decision has been drafted by the EU Commission.

What does this mean in practice?

Well, as transfers to the United States cannot take place on the basis of the invalidated Safe Harbour decision, transfers of data to the USA still lack any legal basis and companies will have to rely upon on alternative legal basis, such as Binding Corporate Rules, Model Contract Clauses or the derogations in Article 26(1).

However, the EU data protection authorities (DPAs) did not exclude the possibility, in particular cases, of preventing companies to adopt new binding corporate rules (BCRs) or install model contract clauses regarding new data transfer agreements. It will be assessed if personal data transfers to the United States can occur under these transfer mechanisms. However, the fact that the data transferred under these methods are subject to surveillance by U.S. national security agencies mechanism is the same issue which lead the CJEU to rule the Safe Harbour Framework as invalid.

In the meantime, the Art.29WP expects to receive, by the end of February, the relevant documents in order to assess its content and if it properly answers the concerns raised by the Schrems judgement.

It further outlined that framework for intelligence activities should be orientated by four ‘essential guarantees’:

A. Processing should be based on clear, precise and accessible rules: this means that anyone who is reasonably informed should be able to foresee what might happen with her/his data where they are transferred;
B. Necessity and proportionality with regard to the legitimate objectives pursued need to be demonstrated: a balance needs to be found between the objective for which the data are collected and accessed (generally national security) and the rights of the individual;
C. An independent oversight mechanism should exist, that is both effective and impartial: this can either be a judge or another independent body, as long as it has sufficient ability to carry out the necessary checks;
D. Effective remedies need to be available to the individual: anyone should have the right to defend her/his rights before an independent body.

Thus said, an ‘adequacy decision’ still has to be drafted and, after consultation of the Art.29WP, approved by the College of Commissioners. In parallel, the U.S. Department of Commerce is expected to implement the agreed-upon mechanisms.

So, let’s wait and see how it goes from here…

The ‘Safe Harbor’ Decision ruled invalid by the CJEU

Safe harbor?!? Not anymore.

Safe harbor?!? Not anymore.

Unfortunately, I hadn’t had the time to address the ruling of the CJEU issue last October, by which the ‘Safe Harbour’ scheme, enabling transatlantic transfers of data from the EU to the US, was deemed invalid.

However, due to its importance, and because this blog is primarily intended to be about privacy and data protection, it would be shameful to finish the year without addressing the issue.

As you may be well aware, article 25(1) of Directive 95/46 establishes that the transfer of personal data from an EU Member State to a third country may occur provided that the latter ensures an adequate level of protection. According to article 25(6) of the abovementioned Directive, the EU Commission may find that a third country ensures an adequate level of protection (i.e., a level of protection of fundamental rights essentially equivalent to that guaranteed within the EU under the directive read in the light of the Charter of Fundamental Rights) by reason of its domestic law or of its international commitments.

Thus said, the EU Commission adopted its Decision 2000/520, by which it concluded that the “Safe Harbour Principles” issued by the US Department of Commerce ensure an adequate level of protection for personal data transferred from the EU to companies established in the US.

Accordingly, under this framework, Facebook has been transferring the data provided by its users residing in the EU from its subsidiary in Ireland to its servers located in the US, for further processing.

These transfers and, unavoidably, the Decision had been challenged by the reference to the CJEU (judgment in Case C-362/14) following the complaint filed by Max Schrems, a Facebook user, before the Irish DPA and subsequently before the Irish High Court. The main argument was that, considering the access electronic communications conducted by its public authorities, the US did not ensure adequate protection of the thus transferred personal data.

According to the AG’s opinion, “the access enjoyed by the United States intelligence services to the transferred data constitutes an interference with the right to respect for private life and the right to protection of personal data”.

Despite considering that a third country cannot be required to ensure a level of protection identical to that guaranteed in the EU, the CJEU considered that the decision fails to comply with the requirements established in Article 25(6) of Directive and that the Commission did not make a proper finding of adequacy but merely examined the safe harbour scheme.

The facts that the scheme’s ambit is restricted to adhering US companies, thus excluding public authorities, and that national security, public interest and law enforcement requirements, to which US companies are also bound, prevail over the safe harbour principles, were deemed particularly decisive in the assessment of the scheme’s validity.

In practice, this would amount to enable the US authorities to access the personal data transferred from the EU to the US and process it in a way incompatible with the purposes for which it was transferred, beyond what was strictly necessary and proportionate to the protection of national security.

As a result, the Court concluded that enabling public authorities to have access on a generalised basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life.

The Court stated that the decision disregards the existence of such negative interference on fundamental rights, and that the lack of provision of limitations and effective legal protections violates the fundamental right to effective judicial protection.

Upon issuance of this ruling, the Art29WP met and concluded that data transfers from the EU to the US could no longer be legitimized by the ‘Safe Harbor’ decision and, if occurring, would be unlawful.
While its practical implications remain unclear, the ruling undoubtedly means that companies relying on the ‘Safe Harbor’ framework for the transfer of personal data from the EU to the US need to rely, instead, on another basis.

In this regard, considering that not all Member States accept the consent of the data subject or an adequacy self-assessment as a legitimizing legal ground for such cross-border transfers, Model Contractual Clauses incorporated into contracts and Binding Corporate Rules (BCR) for intragroup transfers seem to be the most reliable alternatives in certain cases.

Restrictions on data transfers are obviously also foreseen in the GDPR, which, besides BCRs, Standard Contracts and adequacy decisions, includes new data transfer mechanisms such as certification schemes.

You can find the complete version of the ruling here.

The ‘Dick-Pic Programme’

How unfortunate it is that people are not generally very concerned about government mass surveillance… except when pictures of their private parts are involved.

The good news is that there is no such ‘dick-pic programme’. The bad one is that, well, the intelligence services do collect those kind of pictures and they are only a small part of the information which has been collected – and depending on each individual’s exhibitionist tendencies – not the most privacy-infringing one.

Monitoring of employees in the workplace: the very private parts of a job in the EU private sector

Let us all see what you are doing.

Let us all see what you are doing.1)Copyright by MrChrome under the CC-BY-3.0

Whilst not all employers in the U.S.A. monitor their employees’ communications and activities, the majority do so, namely to evaluate their professional performance, to protect trade secrets, to prevent information security breaches or to avoid or reduce their liability in lawsuits.

So, incoming and outgoing email correspondence, telephone calls, websites visited and documents saved on the computer may be only some of the data accessed in this context.

This surveillance of employees’ electronic communications and activities over employer-provided facilities are generally deemed unlawful under the European Union law. Member States legal systems usually include constitutional laws, telecommunications laws, labour laws and criminal laws which are intended to be dissuasive.

Currently, there is no specific EU legislation regarding the privacy and protection of workers’ personal data at work.

Nevertheless, Article 31(1) of the Charter of Fundamental Rights of the European Union, whose application is mandatory whenever Member States apply EU law, states: “Every worker has the right to working conditions which respect his or her (…) dignity”.

In parallel, there are two EU Directives which can be applicable in these professional contexts. Although they do not specifically deal with any aspect of employment relationships nor address employee monitoring, they establish some privacy principles which are applicable regarding surveillance at workplace. These provisions are then furthered by Member States through their national legislation.

Firstly, we have the 95/46/EC Directive which relates to the protection of individuals with regard to the processing of personal data. Under this framework, data subjects are provided control over the collection, transmission, and use of their personal information. In fact, this instrument foresees that data subjects have the right to be notified of collection of personal information.

In this context, employers have to ensure that their surveillance is legitimate and restricted and must be transparent regarding any surveillance conducted. Any monitoring of the employees communications and activities, namely regarding the use of e-mail, the internet or phones, without their employee’s knowledge or consent, is unlawful.

Secondly, the 2002/58/EC Directive relates to the processing of personal data and the protection of privacy in the electronic communications sector. The interception of  communications over private networks, including e-mails, instant messengers, and phone calls, and generally private communications, are not covered as the instrument only refers to publicly available electronic communications services in public communication networks.

The European Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter ‘ECHR’), in its article 8, reads as follows: “Everyone has the right to respect for his private and family life, his home, and his correspondence”.

Whilst the right to privacy at work has not yet be considered by the Court of Justice of the European Union, the European Court of Human Rights (hereafter ‘ECtHR’) has already ruled that the right to privacy right is not restricted to the household and extends to the workplace environment.

In fact, in Köpke v Germany, the Court stated as follows: “(…) that the concept of private life…may include activities of a professional or business nature and may be concerned in measures effected outside a person’s home or private premises(…)”.

In the Niemietz v. Germany case, the ECtHR included business relations, e-mails, and any other form of electronic communication in the concept of ‘private life and correspondence’, no distinction being made between private or professional correspondence.

In Halford v. UK Gov., the ECtHR held that the employer’s surveillance of the employee’s calls at work unjustifiably interfered with the employee’s right to privacy and correspondence. Communications via e-mail, fax, wireless, and any technological means is covered by the concept of correspondence.

Moreover, in the ruling Copland v United Kingdom, the ECtHR concluded that the fact that the calls or the e-mail usage occur in the office and, at least in theory, are business related, was irrelevant. Business correspondence and telephone calls may contain personal information, which is protected by human rights and by data protection law.

It also found that, even if the telephone monitoring was limited to “the date and length of telephone conversations” and “the numbers dialled,” and do not involve the content of the communications, it still violates article 8 of the ECHR.

The Court stated as well that article 8 is infringed where the monitoring is not previously communicated to the employees, as they have, in consequence, a “reasonable expectation” that they will not be.

However, a worker’s right to privacy at work is not absolute.

In Benediktsdóttir v. Iceland, the ECtHR concluded that the right to privacy and to correspondence has to be balanced with the other rights, namely those of the employer.

In this context, although not legally binding, the Article 29 Working Party (hereafter WP29) opinions provide important guidance. In fact, national data protection authorities take them into account when applying and enforcing national laws.

The WP29 issued an opinion on the processing of personal data in the employment context in 2001, concluding that “[t]here should no longer be any doubt that data protection requirements apply to the monitoring and surveillance of workers whether in terms of email use, internet access, video cameras or location data.” Therefore, monitoring must be proportionate, not excessive for the intended purposes, and carried out in the least intrusive way possible. Furthermore, it stated that, under the Data Protection Directive, employers may process data concerning their employees only with “unambiguous consent” or if the processing is “necessary.”

In 2002, the WP29 issue a Working Document on the surveillance of electronic communications in the workplace, in which was argued that the employee’s right to privacy should be balanced with the legitimate rights and interests of the employer, such specific and important business need, as efficiency or the right to protect the employer from harm caused by employees’ actions. Therefore, the monitoring activities should be necessary, proportionate and transparent.

In the WP29’s viewpoint, any monitoring of electronic communications should be exceptional, namely when necessary to obtain to obtain proof of certain actions of the worker; detect unlawful activity; detect viruses; or guarantee the security of its systems. Therefore, concealed or intrusive monitoring is generally unlawful.

In 2005, in its annual report, the WP29 has affirmed that “[i]t is not disputed that an e-mail address assigned by a company to its employees constitutes personal data if it enables an individual to be identified.

The WP29 stressed, in another Opinion, in 2006, that all online communications in the workplace are subjected to confidentiality protection, including those sent from workplace equipment for private as well as professional purposes. It suggested seven principles to ensure a proper monitoring: necessity regarding a specified purpose; a specified, explicit and legitimate purpose; prior notice to employees about the monitoring; the monitoring should be aimed to safeguard employer’s legitimate interests; personal data processed in connection with any monitoring must be adequate, relevant, and not excessive with regard to the purpose for which they are processed; data must be accurate and not retained for longer than necessary; and appropriate technical and organisational measures shall be implement regarding security.

The requirements at stake may vary according to the monitoring technologies used as some will require stricter standards according to the extent of interference with private life. For instance, in Uzun v. Germany, the ECtHR concluded that the monitoring via GPS is not as intrusive telephone tapping.

Considering that the data collected by the employer may constitute sensitive data, it can only be processed in the cases foreseen in Article 7 of the Directive 95/46. In this context, considering the disparity in the contractual positions at stake the employee’s consent may not deemed to legitimize the processing.

In this context, it is quite advisable for private employers established in the EU to set up clear and acknowledged internal policies or guidelines regarding the use of Internet and electronic equipment in the workplace, for instance as part of the work contract.

This legal and jurisdictional context highlights the challenge that companies and other organizations face when doing business in the European Union, especially those which also operate under U.S.A. law.

References   [ + ]

1. Copyright by MrChrome under the CC-BY-3.0

Microsoft or the rider on a white horse of modern times

My hero!

My hero!

Microsoft has been challenging a USA search warrant, issued within an ongoing narcotics trafficking related investigation, seeking to access the content information of the electronic communications of one of its customers, which are stored exclusively outside the jurisdiction of the USA authorities, more specifically hosted in a data centre in Dublin, Ireland.

The abovementioned warrant would require an extraterritorial search and seizure of data stored in Microsoft’s Dublin datacenter. The very particular question at stake is if and to what extent a USA warrant compels a USA communications service provider to provide data stored abroad. What is to determine territoriality for a USA based provider with data stored abroad: the location where the data is stored or where the company is headquartered?

As any other service provider company, Microsoft stores the e-mail messages sent and received by its users and related information in datacenters, both in the USA and abroad, according to the users own location and proximity, given at registration, in order to increase the quality of the communications and decrease the network latency1)The concept refers to the time it takes for data to get from one designated point to another..

In this specific case, considering that the content is hosted outside the EUA, it is quite possible that the customer at stake is a non-US citizen. And this makes this issue all the worse in the post-Snowden age.

In fact, this situation is not so vaguely reminiscent of the statements of Robert Hannigan, the head of the GCHQ, which qualified tech companies as ‘the command and control networks of choice’, precisely because they do not agree to cooperate on some very dubious terms. Or those of James Comey, the FBI director, a strong opponent of the growing market for secure private telecommunications, namely through data encryption technologies that companies such as Apple and Google have inserted to their Smartphone operating systems.

Needless to say that a “trapdoor” access to the tech companies networks by intelligence agencies and law enforcement authorities, in order to collect information about its users, is not a good idea. With such a free access door, there is no guarantee about who else would be able to gain access to these networks.

And it is quite hard to accept the need of such doubtful mechanisms when existing legal mechanisms do exist and allow achieving the same result. They are called warrants.

But it seems that when even when using the proper legal mechanisms, some governments fail to understand its territorial limitations in regards of competence and jurisdiction. That is certainly why a USA court assumes to have the authority to issue warrants for the search and seizure of property outside the territorial limits of the United States.

According to the Court which issued the warrant, the specific nature of an SCA2)The Stored Communications Act, which authorizes the Government to seek the contents of information stored through a warrant, a subpoena or a court order. warrant differs from a normal warrant, compelling the service provider to gather and produce the data itself, rather than authorizing the entrance into the physical premises in order to conduct a search and seizure. In this context, it is not bound by the geographical restrictions of a search warrant and therefore no elements of extraterritoriality are at stake as Microsoft is merely required to produce information in its possession or control, regardless the location of that information.

The Court further considered that otherwise it would be sufficient for an individual intending to engage in criminal activities to give false residence information or to establish its residence abroad in order to have his account assigned to a server outside the USA and, thus, evade an SCA warrant.

There are, for what I managed to gather, substantial theoretical ambiguities regarding the interpretation and the historical drafting of the SCA. Nevertheless, there are others which are quite straightforward.

For instance, at an international level, such a unilateral initiative risks of negatively interfering with the sovereignty and jurisdiction of another country and may even damage diplomatic relations and foreign policies. The German Government has already stated that it will cease the storage of data in USA cloud providers.

There are indeed proper specific procedures established in bilateral agreements aimed at obtaining criminal evidence located in another country. Take for instance the Mutual Legal Assistance Treaty (MLAT), which is an international instrument designed to facilitate cross-border criminal investigations, concluded between Ireland and the USA. This is precisely because a USA Court Order is no more binding in Ireland as an Irish Court Order would be in the US. For this very reason, the data shouldn’t be transferred from Ireland to the USA other than through such a formal and official channel of co-operation.

However, this mechanism was deemed “slow and laborious” by the USA Court, which also outlined the possibility for one of the parties to decline the request for assistance as a negative feature. Apparently, the main issue is that the requested party may oppose “the exercise of jurisdiction which is in its view extraterritorial and objectionable”. The same Court considered that the fact that some MLAT require the execution of a search warrant to be operated in accordance with the laws of the requested party to be an issue.

Humm, quite self-explanatory, isn’t it? The intention is to access private emails of any customer of a USA based service provider disregarding where the data is located, and without the knowledge or consent of the subscriber or the relevant foreign government where the data is stored.

The interpretation according to which the search of digital data occurs where the data is remotely accessed is just a not so smart and very unfortunate attempt of bypassing the proper existing mechanisms. And it opens the door for legal uncertainty.

The search of digital data undoubtedly occurs where the data is stored when the company at stake is required to copy the data from the server. The location should dictate the competent jurisdiction. If the court has no competence to obtain through a court warrant some evidence, it cannot circumvent that limitation by compelling Microsoft to do what it has no authority to do itself.

Considering that USA-based companies can be constricted to produce documents stored anywhere worldwide – just because they are based in the USA – fails to acknowledge that different laws apply depending on the jurisdictions where the user is located. For instance, Microsoft would be compelled to breach EU data protection laws, namely the Data Protection Directive3)Directive 95/46/EC and the Framework Decision which regulates data transfers to non-EU Member States4)The Council Framework Decision 2008/977/JHA.

In this context, in a statement issued last November, the Article 29 WP stated as follows:

a public authority in a non-EU country should not have unrestricted direct access to the data of individuals processed under EU jurisdiction, whatever the conditions of this access and the location of the data. Conflicts of jurisdiction shall be resolved only under certain conditions–e.g. through prior authorisation by a public authority in the EU or through a mutual legal assistance treaty, respectively covering access by foreign law enforcement authorities to data transferred from the EU or to data stored in the EU. Foreign requests must not be served directly to companies under EU jurisdiction.

Moreover, allowing for the USA government such an access would create a dangerous precedent, potentially leading other countries to disregard the existing legal mechanisms to seek data stored abroad. Such an anarchy is certainly not a desirable outcome to be achieved!

Anyway, considering the company’s previous relation with the National Security Agency (NSA), I must admit this came as a surprise. After all, among the several very inconvenient and ugly truths, namely regarding the PRISM program, the documents provided by Edward Snowden revealed that Microsoft has collaborated closely with USA intelligence services in order to allow users’ communications to be intercepted, including enabling the NSA to circumvent the company’s own encryption.

This can really be the first time that a company challenges the USA government over a domestic warrant for data held overseas. In the meantime, the Irish government has already manifested its support, along with several other tech companies and consumer privacy advocates.

While this situation outlines the increasing role of private companies as the ultimate defendants our rights, it brings to the spotlight that the right of protection against illegal access, search and seizure of physical property needs to clearly apply also to the digital world. I mean, if governments are not entitled to freely conduct searches in a building located in another country, I cannot fathom any reason for considering that this power of search would be bestowed to them in regard of the content of an email stored overseas. The information located in the cloud should be covered by an equally high standard of protection and any exchange should be covered by a strict framework. Otherwise, it is the very cloud model that is put at risk and we all know that the trust of customers has been quite challenged already.

References   [ + ]

1. The concept refers to the time it takes for data to get from one designated point to another.
2. The Stored Communications Act, which authorizes the Government to seek the contents of information stored through a warrant, a subpoena or a court order.
3. Directive 95/46/EC
4. The Council Framework Decision 2008/977/JHA

The Sony data breach: when
fiction meets reality?

You better believe SONY. You have been HACKED!

You better believe SONY. You have been HACKED!

It is not the first time that Sony suffers a massive cyber attack. Back in 2011, due to some vulnerabilities found in its data servers, a hacking of its Play Station online network service enabled the theft of names, addresses and credit card data belonging to 77 million user accounts.

A few days ago, Sony Pictures computer systems were hacked again allegedly by a group of hackers calling themselves Guardians of Peace. As a consequence, a humongous amount of data, including confidential details, such as medical information, salaries, home addresses, social security numbers, regarding 47 thousands of Sony employees and former employees, namely Hollywood stars, as well as contracts, budgets, layoffs strategies, scripts for movies not yet in production, full length unreleased movies and thousands of passwords were leaked to the Internet.

The reason remains unclear. Despite the denial of a North Korea representative regarding a possible involvement of that country, it is being speculated that this attack is a retaliation from the North Korea government as a response to an upcoming Sony comedy, ‘The Interview’, starring actors Seth Rogen and James Franco, which depicts an assassination attempt against the North Korea’s leader Kim Jong-un. If Hollywood comedies are now deemed a sufficient reason to conduct cyber-attacks on real life, fiction and reality are meeting in a very wrong way.

Anyway, considering the volume and the sensitive nature of the information disclosed, this can actually be one of the largest corporate cyber attacks which has ever been known of.

It is a sharp reminder that hacking attacks can be directed to any company and can take all forms, equally damaging. This attack demonstrates once again that not only critical infrastructure is at risk. Sony Pictures Entertainment is one of the largest studios in Hollywood. It is really not the expected victim of a cyber-attack. However, it was an easy prey as its business decisions regarding information security have been publicly stated in previous occasions. Despite their ludicrous nature, I guess someone took those comments seriously.

Considerations regarding the absurdity of having a file directory named ‘Passwords’ aside, this attack outlines that data breach is one of the major threats that companies face nowadays. Cyber attacks are conducted against companies of all sizes. Large companies do eventually recover from these breaches. Small businesses generally hardly pull through after suffering a cyber-attack. It is therefore essential that businesses implement a solid cyber-security programme, namely conducting regular self-hacking exercises to assess the vulnerabilities of their security systems in order to prevent a potential breach.

What about Sony? Well, the value of the damages regarding its employees is incalculable considering that their identities may be stolen, their bank accounts may be compromised and their houses may be robbed. Only time will tell if and how it will recover.

Uncle Sam is watching EU

I know what you're doing!

I know what you’re doing!

Surveillance is commonly defined as the, often surreptitious and illegal, monitoring of behaviours and activities of people for the most diversified ends, which normally include the purposes of supervision, influence or manipulation, control or protection.

Therefore, mass surveillance means to watch over an entire or substantial fraction of a population and is usually conducted by governments or by corporations on their behalf in order to, allegedly, fight terrorism, national security or child pornography, just to mention some of the justifications.

I still remember the worldwide chilling feeling that followed Edward’s Snowden’s revelations, published by The Guardian, back in summer 2013, regarding the extent and the scope of the surveillance programme known as PRISM conducted by the NSA (National Security Agency).

That feeling still remains and the worldwide debates that followed concerning the illegality of the measures taken and the violation of privacy rights and civil liberties are not about to end any time soon.

The news according to which some technology and telecommunications companies granted the NSA direct access to their servers or handed over detailed reports about their customer’s databases most certainly didn’t help.

Despite the denials from the companies concerned that ensued, mass surveillance has become, since then, a concern of the EU.

First, the surveillance measures undertaken affected the fundamental rights of European citizens, namely their right to privacy and to protection of personal data.

Moreover, the surveillance programmes conducted by the USA outlined the connection between the state or government surveillance and the processing of data by private companies.

In addition, the disclosure of large-scale intelligence data collection programmes affected negatively the trust in the transatlantic relationship.

And, in this regard, there is quite a lot at stake.

Indeed, both parties have concluded several agreements regarding the exchange of personal data for the purposes of law enforcement, including the prevention and combating of terrorism and other forms of serious crimes. These are the Mutual Legal Assistance Agreement, the Agreement on the use and transfer of Passenger Name Records (PNR), the Agreement between Europol and the US and the Agreement on the processing and transfer of Financial Messaging Data for the purpose of the Terrorist Finance Tracking Program (TFTP).

In addition, the legal basis for the exchanges for commercial purposes between the EU and the USA is provided by the Safe Harbour Decision, which concerns transfers of personal data from the EU to companies established in the U.S. which have adhered to the Safe Harbour Principles. Efforts to negotiate amendments to the program have been ongoing since the fall of 2013.

Besides, the EU and the USA are currently negotiating the ‘umbrella agreement’, a framework agreement on data protection regarding the transfer and processing of data in the field of police and judicial cooperation.

Last, but not the least, it should be also mentioned the ongoing negotiations for the controversial Transatlantic Trade and Investment Partnership (TTIP), the world biggest trade agreement.

While it is supposed to increase trade and investment, there is a noteworthy apprehension around its potential negative impact on privacy. But, as it is being negotiated behind closed doors, it is yet to be known how much these concerns are justified in the light of the ACTA (Anti-Counterfeiting Trade Agreement), which would have allowed to carry out intrusive surveillance on all of our Internet usage, regardless of whether we had actually infringed anyone’s copyright. This lead the European Parliament to reject it in 2012. All things considered, the EU Ombudsman recommendations are therefore much welcomed.

In this context, the documents very inconveniently released by Edward Snowden revealed that the USA accessed the SWIFT database, the biggest storage of financial transactions in the world, thus accessing millions of personal financial records, in the margin of the Terrorist Financing Tracking Programme (TFTP).1)The TFTP agreement allows the U.S. Treasury to access some data stored in Europe by international bank transfer company Swift (Society for Worldwide Interbank Financial Telecommunication) for the prevention, investigation, detection, and prosecution of conduct pertaining to terrorism or terrorist financing.

Last November, the European Commission released a communication in which it shared its concerns regarding the protection of personal data within the existing instruments.

The European Parliament has already called for the ‘immediate suspension’ of the Safe Harbour as it considered that the principles do not provide adequate protection for EU citizens and for the immediate suspension of the TFTP agreement until a “thorough investigation has been concluded”.

Meanwhile, leaders from the EU and the USA reiterated their commitment in a joint statement.

Although Jean-Claude Juncker has pressed the “conclusion of negotiations on the reform of Europe’s data protection rules, as well as the review of the Safe Harbour arrangement with the U.S.”, Andrus Ansip, who is slated to become the European Commission’s Vice-President for the Digital Single Market, affirmed, during a European Parliament confirmation hearing, that, unless the differences are resolved, the USA – EU Safe Harbour could be suspended. Ansip said that “we have to be absolutely sure that the national security exception will be used as an exception, not on a regular basis.”

It is beyond any doubt that the plea of terrorism or national security concerns can only fall down when facing revelations according to which NSA collects data related to international trade and monitors the telecommunications of leaders from Brazil and Germany. It is evident that those are mere excuses to conduct this kind of surveillance in the name of less honourable goals.

As if this wasn’t enough, documents delivered by Edward Snowden, and recently released by The Intercept, show that the agency has “under cover” agents embedded in foreign companies for the purpose of extending its surveillance reach.

Thus said, transparency reports, while presenting statistics of government’s requests for data, could be a useful tool to disclose the scope and scale of surveillance. However, governments are obviously not that keen in reporting on their surveillance activity and they will make sure to exempt from the report requested information related to ‘national security’.

It doesn’t come as a surprise that technology companies such as Facebook, Yahoo, Google, Microsoft, are now investing in barriers, mainly through the refusal of access requests and encryption of internal traffic, to make it harder for governmental intelligence agencies to ‘snoop around’. Even though some concerns regarding the impact on police investigations, namely of paedophilia suspects, have been raised, it is questionable if they are completely justified, mainly because there are several other ways to access the information stored. For instance, the information stored in the Cloud will still be ‘easily’ accessible.

Nevertheless, these and similar companies are businesses and shouldn’t be assigned with the role of guardian’s of individuals’ rights. It is all very wrong, and very totalitarian regimes look alike, when the governments themselves are attacking the most private parts of our lives.

Encryption measures have lead some to the conclusion that governments should be entitled to have a golden key – a back door access – in order to unlock and access individuals’ communications. The main viewpoint is that, by allowing so, personal safety and national security could be properly ensured…

Thus said, it might not come as the most surprising event that Russia is requiring social network companies, as Facebook and Twitter, to store the personal data of national citizens in servers based within the country’s borders or face being blocked without a previous court ruling. Conveniently, the initiative – which represents an open door to enforce censorship – is even presented as a necessary remedy to protect against foreign threats and USA spying.

It is difficult not to wonder – and worry – if this is the first step for the blocking of all websites with user generated contents, as an already proved effective mean to control the right to information and freedom of expression and any democratic expressions.

In this context, the hypothesis according to which the European Commission (DG Home) has been collaborating with the USA administration regarding the EU data protection reform raises some deep and justified concerns. Mainly if we consider that the former EU Home Affairs Commissioner, Cecilia Malmström, is very likely soon to be confirmed by the European Parliament as the EU’s new trade commissioner, conducting the negotiations over the TTIP, from the EU side. But then, again, if it is true that the European Commission knew about PRISM all along… Conspiracy theories apart, Cecilia Malmström has denied the allegations at the hearing with the Members of the European Parliament.

Of course, according to the principle of conferral or attributed powers, the EU may only exercise competences conferred on it by the Treaties to attain the objectives set out therein.2)See article 5[2] TEU This means that competences not conferred upon the Union in the treaties remain within the Member States.3)See article 4 TEU National security is deemed an essential State function and the sole responsibility of each Member State.

Considering that matters related to national security are usually exempted from surveillance activity reports, I guess that it all comes full circle, after all…

And while one can be glad that the UN issued a report stating that Mass Surveillance Violates Human Rights, one is also entitled to be sceptical regarding its effects on the government programs.

 

References   [ + ]

1. The TFTP agreement allows the U.S. Treasury to access some data stored in Europe by international bank transfer company Swift (Society for Worldwide Interbank Financial Telecommunication) for the prevention, investigation, detection, and prosecution of conduct pertaining to terrorism or terrorist financing.
2. See article 5[2] TEU
3. See article 4 TEU

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