Tag: Privacy

Google fined €50M by the CNIL under the GDPR

This 21 January 2019, the French data protection supervisory authority (Commission Nationale de l’Informatique et des Libertés – the “CNIL“) fined Google LLC 50 million Euros for breach of the General Data Protection Regulation (the “GDPR“).

In today’s communication (in French), the French authority issued the highest fine against Google LLC since 25 May 2018 considering severe infringements of the GDPR by Google for failing to inform properly the users and collecting valid consent for targeted advertising services.

SCOPE OF THIS DECISION. It is worth noting that this decision is solely based on investigations of the CNIL related to configuration of new Android device for the first time by a user. This particular infringement of the GDPR only relates to the privacy notice displayed to users when they create an account and when logging into their new Android phone. However, the full complaint has not yet been examined by the CNIL and goes far beyond that. The complete case is much broader and related to targeted advertising on Youtube, Gmail and Google Search platforms. The CNIL will have to examine how Google may have or not “forced” users to consent to sharing their personal data via Google targeted ads services. So we can expect to hear more from the CNIL in the upcoming months in this case. This is probably only the beginning of a long series for 2019. The two organizations also filed (as explained below) similar complaints against other GAFAM in several jurisdictions.

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FINDINGS OF THE CNIL

The CNIL considered that Google did not comply with the GDPR for three main reasons: (1) lack of transparency (art. 5 GDPR); (2) insufficient information (art. 12 and 13 GDPR); and (3) invalid consent collection (art. 7 GDPR).  The two complaints were brought by Max Schrems’ non-profit organization called “None Of Your Business” (NOYB) and the association La Quadrature du Net, a French association that regrouped complaints from 9’974 individuals. Those two organizations claimed that Google’ services, including the targeted advertising services on Android OS, did not comply with its obligation to process personal data with the proper legal basis (art. 6 GDPR), forcing users to share massive amount of personal data and therefore compromising their privacy without their consent.

Those complaints have just been confirmed by the CNIL in today’s findings. After that, it is interesting to read on the blog of NOYB, that Google will move its EU headquarters to Ireland with effect to 22 January 2019, with the Irish DPA (Data Protection Authority) as the lead authority.

The French authority adds some interesting considerations to its findings. The CNIL explains that with Google current services, due to the way the data are collected, the volume that can be processed and the type of data collected through those services, it can result in revealing entire parts of someone’s life, which becomes very intrusive. The CNIL also considered the fact that Google’s business model is partially based on those intrusive services.

Finally, the CNIL explains that, essentially, despite Google’s efforts to change its processes, Google is still not compliant. This also means that as long as Google remains non compliant, it may face other complaints and, potentially other fines unless the way Google processes data about individuals changes drastically.

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HISTORY OF THE CASE

Two massive complaints on 25 and 28 May 2018 for € 7,6 bn

25 May 2018. Max Schrems – the Austrian privacy advocate who provoked the cancellation of the Safe Harbor framework by the European Court of Justice (see judgement here) – founded a not profit organization called “None Of Your Business” (NOYB) to support consumers and data subjects in filing complaints against companies and to authorities to enforce and protect their privacy. Just the day the GDPR became enforceable on 25 May 2018,  Max Schrems sued Instagram (Belgium), WhatsApp (Hamburg, Facebook (Austria) and Android (France) with a massive complaint amounting to € 7,6 bn via its NGO for infringement of the GDPR. Find more details on NOYB’s website here.

28 May 2018. The French Digital Rights Group “La Quadrature du Net” lodged a complaint on 28 May 2018 against Google, Apple, Facebook, Amazon and LinkedIn in front of the CNIL on the behalf of 12,000 individuals for illegal processing of personal data.

The CNIL’s sanction of € 50 millions issued today is only one sanction against one company – Google LLC – and in one juridiction. There is most likely other sanctions to come if other authorities follow the CNIL’s argumentations and considerations.

In terms of procedure, Google can appeal to this sanction and contest the fine (edit 24-janv-2019), which the company announced publicly. Even if the fine remains low compared to the €4bn it can incur in the event of a maximum fine, the amount is high for this case. In its public statement, Google said:

We´ve worked hard to create a GDPR consent process for personalised ads that is as transparent and straightforward as possible, based on regulatory guidance and user experience testing

By appealing against this decision, Google wants initiates the process of a precedent in interpreting the GDPR’s requirements on information, transparency and how to validly obtain consent, particularly in the area of targeted advertising.

Google’s appeal is therefore highly strategic. Not contesting this fine would create room for potential more severe sanctions, especially as the scope of the case is limited. In addition, it could be seen as an indirect acknowledgment of responsibility for using non-compliant practices.

Finally, Google defends itself by arguing that it has worked hard to set up data collection in order to respect transparency, but also said:

We´re also concerned about the impact of this ruling on publishers, original content creators and tech companies in Europe and beyond

We will see if his work has been sufficient or not and how strong this EU Regulation can effectively be in practice.

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THE CASE IN MORE DETAILS

To get into more details, the CNIL provides the following explanations to justify the sanction against Google:

  • Breach of transparency: the transparency principle refers to how you inform individuals about the processing activities. This usually takes the form of privacy notices. This information is supposed to remain concise, clear, accessible, unambiguous and intelligible by any person.

This was not really the case. Google spread all that information in many separate places through links and buttons which made it very difficult to access, understand and takes ages. At the end, all that information was only accessible after 5 or 6 actions, in any case after several steps to know what data are collected about the individual. The information was not clear enough, vague and described in a too generic way. That means that if nobody takes the time to read that information (why would Google collect your data for what purpose, for how long, what categories of data are used for the targeted advertising, etc.), the obligation of having a clear and easily accessible notice is not achieved. Also, Google failed to inform about the retention period of certain personal data (for how long will Google keep that data).

  • Invalid consent: Google requested the consent of the users to collect the personal data. However, the CNIL considered that this legal basis was not valid for the options of customized advertising for the two following main reasons:

The consent was not informed. This means that users do not understand the scope of use of the data. For example, in the “customized publicity” section, it is not possible to see how many services, sites and applications are related to the processing and there is no information about the volume of personal data that those services will process and combine.

The consent was not specific, nor unambiguous despite the fact that users may have the ability to select several parameters. According to article 7 of the GDPR:

request for consent shall be presented in a manner which is clearly distinguishable from the other matters, in an intelligible and easily accessible form, using clear and plain language

With Google targeted advertising services and options, the users could only access those parameters by clicking “more options”. Also, the option to use “targeted advertising” was already pre-ticked, which forces the user to turn it off. So the option will remain active, if the user does nothing, unless there is an active action from the user to disable the option. Therefore, using pre-ticked boxes is contrary to the principle of privacy by default (art. 25 GDPR), which requires to turn off any settings or parameters by default to apply a maximum protection of privacy to the user. It is only up to the user to decide whether he or she wishes to increase the level of intrusiveness to his or her privacy and agree to share any personal data. Finally, Google only provided one box for the users to click which appeared like this:

“I accept Google’s terms and conditions” and “I accept that my data are used as described above and as detailed in the privacy policy”

Such bundled consent, which is not specific and do not provide any details for each purpose is not compliant with the requirements as set out in the GDPR.  Where several purposes for processing personal data exist, users must have the ability to only consent to those purposes that they wish. Having all the purposes all-in-one, does not work under the GDPR.

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ARE THOSE REQUIREMENTS NEW UNDER THE GDPR?

Yes and no.

Yes, the requirements to collect a valid consent has been extensively strengthened. It not as easy as before to collect a valid consent and as this case demonstrates, there are individuals and authorities out there that can have a word and ultimately impose fines to your organization.

No,  the principles of consent, collecting personal data with a valid legal basis and informing the individuals via privacy notice, are not new from an EU data protection legislation. The obligation to process personal data with a lawful ground already existed under Directive 95/46/EC and also applies under the Swiss Federal Data Protection Act (DPA), as probably in most of the jurisdiction that have adopted comprehensive data protection framework. A company responsible for collecting and processing personal data has to justify a valid legal reason. As a reminder, the GDPR offers 6 different legal bases to justify the processing of personal data (article 6 GDPR), which are:

  • consent;
  • performance of a contract;
  • compliance with a legal obligation;
  • protect the vital interests of natural persons;
  • performance of a task carried out in the public interest or in the exercise of official authority; and
  • legitimate interest.

Each of those legal bases have their pros and cons, but where you use the consent, you should remain careful to collect it lawfully, unless the processing becomes illegal. With the GDPR, the consent has become much more difficult to obtain. In particular, you need to inform and explain who shall consent, what you will do with that data, for what reasons and based on what legal basis you process the data, with whom you will share them. And this shall apply for each purpose. If those conditions are not, the consent is not valid illicit and you cannot process the personal data.

And this is what happened to Google LLC in the case of targeted advertising, for this first part of the story.

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By Gabriel Avigdor | ICT.ch 

Digital Lawyer

GDPR: Portuguese hospital fined €400k for bad access controls to patient data | ICT

Portugal initiates fines under the GDPR in the EU. The data protection supervisory authority (Comissão Nacional de Proteção de Dados) issued a €400k fine against a hospital for three infringements of the GDPR. This article is the opportunity to analyse two elements:

  • looking back at a few important decisions and ruling that we have seen since 25 May 2018; and
  • understand what is the current situation with Swiss hospitals from a privacy perspective.

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BAD MANAGEMENT OF ACCESS CONTROLS TO PATIENT DATABASE 

According to the press, the “Hospitalar Barreiro-Montijo” in Portugal received a €400,000 fine from the Portuguese supervisory authority for three different violations of the EU General Data Protection Regulation:

  1. Infringement of integrity and confidentiality of the data: €150,000.- ;
  2. Infringement of access limitation (access rights management): €150,000 ; and
  3. Unable to ensure integrity of the data by the hospital (data controller): €100,000

After an investigation, the CNPD assessed that the hospital’s staff, as well as psychologists, dietitians and other professionals had access to patient data via false profiles. Those accesses included members of the administrative personnel of the hospital, which were normally to be used by physicians only. In the news, we can read that

while 985 doctors had clearance for accessing patient files although the hospital only hired 296 doctors, non healthcare professionals could also access patient data.

This case started after an association of doctors reported the facts to the CNPD in June 2018. The decision from the CNPD has not been made public yet, and references can be found in this local article and here (in Portuguese).

As detailed in my last article on GDPR readiness in EU countries, Portugal has not implemented the GDPR yet. However, the fine was calculated and assessed pursuant to Regulation (EU) 2016/679 that is now applicable and enforceable. The hospital has contested the decision.

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REMINDER: NOT EVERY DECISION ISSUED AFTER 25 MAY 2018 ARE ANALYZED UNDER THE GDPR

After 25 May 2018, we have already seen a few important decisions from supervisory authorities and courts. The vast majority of them related to facts that data controllers or processors did before Regulation (EU) 2016/679 (GDPR) became enforceable.

As a reminder, it is worth noting that the GDPR applies worldwide, but only as of 25 May 2018. It applies to processing by processors of personal data (private and public), wherever they are located, to the extent it relates to individuals that are located within the EU. Citizenship is not relevant to assess the extraterritorial reach of this EU Privacy law. The principle of non-retroactivity of the laws applies and facts that are older than 25 May 2018 would trigger the local data protection legislation for any investigation. The famous 2% -€10M / 4% – €20M shall therefore not apply. In Europe, Directive EU 95/46/CEE on the protection of individuals with regard to the processing of personal data and on the free movement of such data governed data protection as a framework, which the 28 EU countries have implemented into their local laws.

Beware, many articles on the Internet explain that fines were imposed in 2018 according to the GDPR, which is probably not exact. So verify when the facts are dated.

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TWO IMPORTANT DECISIONS AFTER 25 MAY 2018, BUT NOT PURSUANT TO THE GDPR

Two important decisions are worth noting in the context of the previous legal regime (Directive 95/46/CE) even though it was published after the GDPR:

The Equifax case

2017 was a bad year with 23 cyberattacks reported. But it became worse with the Equifax scandal.

In September 2017, the Equifax scandal became public with cybercriminals who stole Equifax Inc. credit card data. While the cyberattack happened in the USA, the case impacted over 145 millions customers’ credit card data, and around 15 millions citizens in the UK. The UK Information Commissioner’s Office (ICO) imposed the maximum fine of £500,00 to Equifax Ltd, for breach of the UK data protection legislation. While the ICO issued this decision in September 2018, the facts dated back 2017. The bad thing is that Equifax knew about the hack more than a month before they reported it.

In this case, Equifax failed to implement and maintain appropriate organizational and technical measures to prevent unauthorized access to the data (equivalent to article 32 of the GDPR). The ICO considered the infringement as particularly high due to the sensitive aspects of credit card data and the fact that it has impacted so many individuals. In this decision, the ICO considered that the retention period of the credit card data was too long.

Under the GDPR, failing to comply with article 32 (appropriate technical and organizational measures – ATOM) may lead to a 2% fine according to article 83 §4 (a) GDPR. This is the same for not complying with the privacy by design obligation, which includes the obligation to only keep the data for as long as necessary for the purpose of the processing (art. 25 and 83 §4 (a)). Therefore, and to the extent the sanction by the ICO may have been assessed under the same criteria as under the GDPR, the fine may have been around £20.87 millions, instead of £500,000.

Cambridge Analytica case

On 24 October 2018, Facebook Ireland Ltd was fined the highest possible fine under UK privacy law by the British Information Commissioner’s Office. This decision, although taken in October 2018, related to facts prior to 25 May 2018.

In this decision, Facebook was fined £500,000 for failing to ensure the security of its users’ data. In this scandal, Cambridge Analytica misled Facebook users by collecting survey data to analyze user behavior and influence their voting intentions, which may have been used for the US elections during the Donald Trump campaign. It is also likely that such methods have been used in previous campaigns in the United States, such as the election of Barack Obama.

Facebook had failed to protect its users by not putting in place appropriate security measures. Cambridge Analitica, through its surveys, had been able to obtain access to the user profiles, but also to the profiles of the “Facebook friends” of the people participating in the survey, although these people did not know this and could not consent to or be informed of this.

If the sanction had been imposed under the GDPR, and provided that the same application criteria had been used, the maximum fine of 4% would have been of a different magnitude. Indeed, if we take the Facebook group’s net annual turnover in 2017 (2018 not yet known), i.e. excluding taxes, and compare the exchange rate on 31 December 2017 between EUR and GBP, the fine could have amounted to some £471.64 million. This would represent an increase of +943% over the fine imposed by the ICO in the United Kingdom

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Uber data breach in 2016

One last case for those who still doubt that supervisory authorities will fine companies for breach of data protection or if data protection is not important at least for keeping a good reputation.

A press release dated 27 November 2018 from the Dutch supervisory authority showed that Uber was fined € 600k for breach of the Dutch data protection legislation after the famous cyber attack, in which Uber failed to report the breach within the deadline of 72 hours. The data breach affected 57 million Uber users worldwide, and concerned 174,000 Dutch citizens. Amongst the data were names, e-mail addresses and telephone numbers of customers and drivers.

Not only Uber failed to report the breach, but Uber also paid off hackers to hide the massive data breach for a period of one year. According to CNBC and the NY Times, Uber agreed to pay $158 million to settle claims related the data breach in the United States of America, but was also fined in the UK for £385,000.

Finally it is worth noting that, while there may be one authority issuing a fine in one country, each supervisory may be competent to issue a fine separately for each jurisdiction in which data subjects may be affected and suffered from the data breach. This may become a nightmare for companies that will have to deal with lawsuits in many jurisdictions and appealing in potentially all 28 (27?) EU countries.

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WHAT IS THE FIRST DECISION UNDER THE GDPR?


On 29 May 2018, an important German decision opposed ICANN vs EPAG. This case was about “Whois data”, i.e. the personal data of domain name holders, where such data was collected and made publicly available. The company “Registrar EPAG Domainservices GmbH”, a German company accredited by the ICANN for domain name registrations (Registrars) was in dispute against the ICANN. In this case, the question was about whether contact data – that were published online by the registrar when registering domain names (Admin-C and Technical-C) – should necessarily be collected.

Analyzing the situation under art. 5 (1) letter c) of the GDPR, the German court considered that it was not mandatory to collect that data. Therefore, the EPAG did not have any obligation to collect this data so that no one could force EPAG to do so.

The consequence of this decision is quite significant. For years, many online providers have asked clients to pay for not appearing as the owner of the website (such as “whois guard service“), in order to remain anonymous. Now that there is no obligation to collect this data, paid services would no longer be necessary, making them obsolete or even illegal. We now see agencies offering “free” anonymisation of contact data from the site owner to their customers. Some agencies even use this as a marketing argument, while there is no legal obligation to publish that data.

WHAT ABOUT SWISS HOSPITALS?

The vast majority of – if not all – Swiss public hospitals and private clinics are not subject to the GDPR.

Why?

The reason is that those healthcare institutions generally do not have any establishments in the EU or EU presence. In addition, they usually do not offer goods and services to patients located in the EU, nor do they monitor the behaviour of data subjects in the EU, where the processing is happening in the EU.

There is still a need to remain cautious. This is not because European fines under the GDPR cannot affect Swiss hospitals that the risks are low. On the contrary.

In my article where I analyzed the cyber attack and theft of data of 800,000 customers from Swisscom, the absence of serious data protection legislation (with sanctions that have a preventive and dissuasive effect) does not encourage data controllers to protect the data of Swiss citizens and patients. Many recent cases have shown that hospitals have become a prime target for cyber attacks, particularly due to the high value of health data which are highly sensitive and the fact that adequate security measures are expensive and time-consuming to implement.

This report show that medical data provides access to a wide range of information for various fraudulent uses:

  • American Hospital Association document on hospital attacks;
  • Anthem – historical record of data theft involving more than 80 million patients and employees.

Ransomware have become commonplace, and human errors are the biggest cause of security breaches. In an environment with so many transitions, staff changes, 24-hour activities, access to patient and confidential data, it requires strict control over access and constant training of employees at all hierarchical levels. It is not surprising that many hospitals are subject to investigations and sanctions by data protection authorities.

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WHAT ABOUT SWISS PRIVACY?

The draft revision of the Swiss Data Protection Act (DPA) is still pending in the federal Parliament. The law will sooner or later be finalized and will enter into force with very broad alignment with the GDPR.

Talking about the fines, the status of the draft bill still doesn’t address the same mechanism for the sanction regime as there is no plan to give the Commissioner with powers to impose administrative fines. The fines may be imposed through criminal proceedings, where an individual may be held liable instead of the company. As compared to the actual fines for violation of the Swiss DPA that are ridiculously low, the amount of criminal fines will still get higher than today with a maximum of CHF 250k.

In addition, incidents will have to be reported (which is not the case today), DPIA (data protection impact assessments) will become compulsory for processing that are at risk, in certain cases the controller shall record the processing and document it, consent requirements will become stronger, and so on.

With this in mind and the upcoming changes in the Swiss privacy framework, which will probably not become in force before 2021, it remains essential for Swiss healthcare professionals and institutions – as well as any Swiss companies, to prepare for the revision of the Swiss DPA. Swiss companies are highly advised to learn from what is happening with he European framework (GDPR) and prepare for the next years to come.

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By Gabriel Avigdor | NTIC.ch

If you are looking for legal advice relating to privacy whether related to the GDPR or the current or upcoming Swiss DPA, we offer services to support you towards compliance. You can contact me directly or visit our new online platform datalex.ch for more information.

30 days before the GDPR – not even Member States are ready

If, as an organization, you think you are alone in the dark 30 days ahead of the GDPR’s worldwide implication, don’t be afraid, you are not.

It is not surprising to read this article that reminds that not only organizations, but also a majority of Member States are not ready for the GDPR. Private and public organizations around the globe falling into the scope of the GDPR have invested many resources to prepare for compliance to Regulation 2016/679 (the ‘GDPR’), each with different approaches and priorities. The situation is similar with Member States. They have to organize their national implementation of the GDPR, decide what provisions may be a matter of national importance with regard to their specific culture and their national legal framework.

Nevertheless, not all countries are as good students as Germany, Austria, Belgium and Slovakia the only 4 countries that have passed a national law before 25 May 2018. In January 2018, Věra Jourová already pointed out that, except 2 countries (Germany and Austria), 26 countries were unprepared to the GDPR. According to the BakerMckenzie Survey 2018, dated January 2018, 20 countries have either published or planned a draft bill to their Parliament, while 5 countries (Bulgaria, Greece, Malta, Portugal and Romania) haven’t demonstrated a strong will to implement the GDPR.

[edit 20.05.2018:] On 18 may 2018, just one week before the GDPR applies, the  “EU Observer” mentioned ‘eight EU countries would not be ready for the deadline‘. According to this article, some countries are, or are expected to be, ready on time (Austria, Germany, France, Croatia, the Netherlands, Sweden and Slovakia), others will be between end of May and June (Spain, Italy, Portugal, Romania and Latvia),  while the following are not going to be:

  • Belgium;
  • Bulgaria;
  • Cyprus;
  • the Czech Republic;
  • Greece;
  • Hungary;
  • Lithuania; and
  • Slovenia.

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The GDPR: a fully harmonized
legal framework ?

The GDPR is a Regulation, which means that it has binding legal force throughout every EU Member State and enters into force on a set date in all the Member States. In the case of the GDPR, the text was approved by the European Parliament on 14 April 2016 and entered into force in 24 May 2016. The date for binding effect of this Regulation was set to 25 May 2018, two years afterwards, which is the date that a majority of people remembers.

Although the GDPR is a Regulation that applies without the need for Member States to transpose provisions locally, the content of the GDPR gives room for Member States to do some tailoring with respect to certain provisions. For a Regulation that aims to create a ‘one-stop-shop‘ mechanism for organizations active in more than one EU country, harmonize privacy in the European Union within a single market for data, creating identical rules in EU and beyond, the reality is a bit far from the goal and is not as clear as sought to be achieved, although it raises the bar of the privacy level in and outside EU.

In fact, the GDPR contains many provisions called “opening clauses“, (more than 70!!) imposing or allowing Member States to deviate from the Regulation (with stricter, less strict, or more detailed rules) and adopt exceptions. Some provisions of the GDPR impose Member States to have local provisions, such as personal data and freedom of expression or penalties, and other provisions give the opportunity to Member States to adopt or precise the text of the Regulation. These topics mainly relate to:

  • children consent;
  • employment data;
  • notification obligation relating to data breach;
  • designation of data protection officers (‘DPO’):
  • (non-) recognition of administrative fines;
  • professional secrecy;
  • scientific, historical or statistical purposes;
  • personal data of deceased persons;
  • special rules for special categories of data;
  • rules for genetic, biometric or health data;
  • national identification numbers/any other identifier of general application;
  • etc.

The opening clauses “run the risk of lowering the level of data protection“, said Christian Gemmin from the University Kassel in Germany. And it is worth noting that the famous sanction mechanism under the GDPR, that so many people are talking about, do not apply equally among Member States, both from an enforcement point of view, scope and amount.

For example, in Czech Republik, administrative fines for public authorities may be imposed only up to CZK 10 milion, (approx. EUR 358,000).  Same for Estonia, the Estonian law does not recognize the concept of administrative fines and thus such fines cannot be imposed in the way as set out in GDPR, but through its Data Protection Authority (‘DPA’). For Ireland, public authorities and public bodies will not be liable to administrative fines for breach of the GDPR, except where they are acting as an ‘undertaking’! In January, only Germany and Austria were fully in compliance with the GDPR.

On this website, you can find a very useful document, keeping up to date, compiling an overview of the topics that each EU Member State is implementing in its local law.

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What does it mean generally for countries that are not ready?

  1. everyone is late, including companies, a majority of Member States and data protection authorities (DPAs). And this is just a practical a reality.
  2. it creates legal uncertainty / insecurity for organizations processing personal data in those countries and or targeting consumers in these countries. These organizations cannot fully prepare to the GDPR until national laws are properly implemented into the national legal framework.
  3. it creates legal insecurity for data subjects. National proceedings may need adjustments to allow data subjects to exerce their rights and to enable enforcement under the GDPR. If not properly adjusted, data subjects would not be able to exerce their rights properly.
  4. this could “slow down the take-off of the harmonious application and the coherent application of the data protection rules throughout the EU” (as explained in this article).
  5. the EU Commission could file a lawsuit Member States that are unprepared (at this stage, all except Germany, Austria, Belgium and Slovakia) to pressure them on that topic, said Věra Jourová in January
  6. without synchronization of their readiness, member States may undermine the consistency mechanism (‘one-stop-shop’) as outlined in article 63 of the GDPR, as is requires cooperation between them to ensure proper application of the Regulation (see an opinion on this here).

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How to keep track of the changes for each Member States?

Some firms have performed the time consuming task to monitor and compile status of the GDPR implementation in the national laws of each EU Member States. Here are just a few, which I found useful and interesting:

  • Latham and Watkins: they put together a document and a free tracker available online here, which has the advantage to appears in one window. Honestly, this tool is just brilliant.
  • Bird&Bird: they have developed a GDPR tracking page relating to the developments and status of GDPR implementation in national laws country by country.
  • ReedSmith: in this article you can find a chart outlining current and pending changes within national laws and a list of legislative progress country by country.
  • Nymity Inc.: the well-known EU company that helps organizations with privacy tools, software, services and framework has developed and offers access to a tracking tool, which doesn’t appear to be free.
  • Nice Irish blog from Prof. Eoin O’Dell: updated on 25 April 2018, where you also find status of the countries and other links.

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Article by Gabriel Avigdor | Ntic.ch

GDPR compliance: what if you don’t comply as of 25 May 2018

GDPR COMPLIANCE has been the very hot topic of 2017 and will continue to grow in the next couple of months, as we are reaching 25 May 2018, the famous date where Regulation (EU) 2016/679 will apply to any controller and processor around the world falling into the scope of the Regulation. This topic will increase in importance with general awareness, the importance to “think privacy first” before any processing personal data occurs, and the increasing number privacy pros arising out around the globe advocating about privacy.

In this historic race for data protection compliance, the European Commission published a new website, with extensive guidance on that matter. This site is pretty intelligible, and designed in a simplified and easily accessible manner. It covers important areas of the GDPR indicating, among others:

including an infographic section with a summary of key areas that relate to the GDPR such as rights and duties, and consequences for non-compliance.

Now processors of personal data may have to demonstrate to the authorities that, and how, they comply with the Regulation (‘accountability’ principle).

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WHAT TO EXPECT IF YOU DON’T COMPLY WITH THE GDPR?

On its new website, the Commission reminds the 4 steps process before a supervisory authority may impose an administrative fine (art. 83 of the GDPR) on businesses or organizations for non-compliance. These steps are:

(1) WARNING ⇨ (2) REPRIMAND ⇨ (3) SUSPENSION OF DATA PROCESSING ⇨ (4) FINES

and according to the Regulation, sanctions shall “in each individual case be effective, proportionate and dissuasive ” (art. 83 § 1 GDPR). Therefore, the fine regime allows a supervisory authority to impose a fine in addition to other measures, being (among others):

  • warnings (art. 58 (2) (a) and recital 150 of the GDPR);
  • withdrawal of certifications (art. 58 (2) (h) of the GDPR); or
  • suspension of data flows (art. 58 (2) (j) and 83 (5) (e) of the GDPR).

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WHAT DOES ARTICLE 29 WP SAY ABOUT FINES UNDER THE GDPR?

The Article 29 Working Party (‘A29WP’) just updated its 253rd document called “Guidelines on the application and setting of administrative fines for the purposes of the Regulation 2016/679” (wp253). This document contains more details on the fine regime and how controller should behave to avoid fines.

The guidelines explains that warnings may already be given to controllers when processing operations are likely to infringe provisions of the Regulation. This means that warnings may be used as a preventive measure against a potential infringement (foot note, page 5 of wp253). Reprimand can, in some cases, replace a fine (page 9 of the guidelines), etc. In addition to this, the A29WP adds an interesting statement about the balance between imposing corrective measures with or without fines:

“Fines are an important tool that supervisory authorities should use in appropriate circumstances. The supervisory authorities are encouraged to use a considered and balanced approach in their use of corrective measures, in order to achieve both an effective and dissuasive as well as a proportionate reaction to the breach. The point is to not qualify the fines as last resort, nor to shy away from issuing fines, but on the other hand not to use them in such a way which would devalue their effectiveness as a tool“.

The message is pretty clear, the supervisory authority shall ensure effectiveness through finding the right balance between fines, or measures, or both. Still, fines should not be “devalued” meaning, that a too nice fine may encourage controllers and processors to continue doing business without ensuring compliance.

You can access the guidelines on administrative fines here.

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AUTHORITIES WILL NOT FINE EVERYONE AS OF 25 MAY 2018

It has become popular to hear and read from many people and consulting firms coming out of nowhere, shouting on social media and the internet, that the end of the world is going to happen in May 2018, should you be non-compliant. The reality is a bit more complex, and such statement isn’t true. It is true that after 25 May, there will be no more deadline for GDPR readiness, so sanctions may potentially be quite heavy when a controller is being audited, questionned by an authority or if an individual lodges a complaint against the controller. But this may only happen after the authority performs an assessment of the situation, starting with exchanges of communications, then maybe an audit if a data subject submitting a complaint for an infringement of their rights, or if one claims a the controller is breaching the law. You’d better be working on your GPDR readiness if you are subject to the Regulation and haven’t started yet. But it seems necessary to remind some basic considerations that are a bit less scaremongering on the sanction regime and compliance readiness, just to name a few:

  • Fines are not going to rain on data controllers as of 26 May 2018. This is a myth designed by hungry newly created consulting firms using fear as a marketing tool to sell their GDPR-related services. mid- to large organisations that are aware do not get trapped, but smaller may.
  • An authority will not issue a fine before having found evidence and probably warned the processor of personal data (controllers and to some extent processors) that there is, in their opinion, a breach of the law. It means that the process would require to conduct investigations , including audit of, or by, the controller, its retailers, suppliers or business partners, but also interpreting the GDPR, which is not easy.
  • According to UK ICO Steve Eckersley, “some investigations take 8-12 months to complete”. So it wil take some time. Taking the example of the UK, Steve Eckerley also mentions that “the ICO is now recruiting an additional 100-150 people to work on GDPR aspects and cyber security” predicting that the ICO will receive “30,000 breach notifications a year“. This is not a meaningless number.
  • Authorities are, and will remain, very busy to create their own team, support controllers in providing them guidance and support, help them interpreting the Regulation, implement exceptions to the GDPR into their own local laws (if they chose to do so), examine how to deal with breach notifications, work on DPIA submissions, etc. So the top priority is not to sanction everyone, but more to get ready for having the right staff to support this massive change in the regulatory landscape. GDPR may be a huge project not only for those who process personal data, but every stakeholders, including authorities pressured by the Commission for their own readiness. Being busy, does not mean that no sanction will occur. My sense is that there will be sanctions, but not immediately as everyone will be in a rush.
  • Regulation (UE) 2016/679 does not indicate fines as the first, nor the last measure if failing to comply with the law. In theory, a supervisory authority would warn the controller before a infringement of the law, where it is likely to occur. When a GDPR audit will occur in less clear cases, there will be room for dialogue and exchanges between authorities, legal counsels, appointed DPOs, outside counsels, data processors and other players of this privacy eco-system. It will also be interesting to see if the level of complaints issued by individuals will increase in the future, or if GDPR compliance will build more trust. Some people tend to forget that the GDPR is a formidable opportunity for organizations to advertise their good behavior and willingness to listen to the clients’ needs and respect their rights.
  • Compliance shall be maintained and monitored over time. GDPR compliance is not a one-shot project. It becomes a new behavior for companies vis-à-vis their clients and their business partners and it has to be included in the organisation’s processes. This will continue for as long as the Regulation remains in force, which means that a fine may occur much later. Your organization may be GDPR ready for 25 May 2018, but might not be any more if compliance is not maintained over time.
  • (edit) More than 70 provisions of the GDPR offer room for EU Member States to deviate from the Regulation. This means knowing the GDPR as a general law is not sufficient, and there will be different approaches depending on the countries. Germany being the first country to adopt its own adaptation of the GDPR in its local data protection law. You can access links on another article of this blog to track Member States’ readiness and deviations from the GDPR. As all the provisions of the Regulation are not self-explanatory and contain many provisons subject to interpretation, compliance with the GDPR remains a case-by-case assessment and will be subject to interpretation. As mentioned in this article, it could take around 10 years “before the GDPR might be considered a mature piece of legislation that is well understood“.

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OTHER THREATS AND RISKS THAN FINES

Data processors of personal data (controllers and processors) should not only fear fines. A fine may just constitute an additional bad taste to an already too salted menu.

Personal data processors should take into consideration other risks or threats to their business as a result of GDPR non-compliance than just fines. Here are just a few examples that demonstrate how non-compliance may impact your organization and potentially your business as a whole:

  • reputational damage, financial and customer losses after an incident. Notifications of cybersecurity incidents to the individuals, when a breach is “likely to result in a likely to result in a high risk to the rights and freedoms of natural persons” (art. 34 (1) GDPR), reputational dammage causing loss of business opportunities, loss of customers, potential contractual liabilities, breach of contract, (just to name a few), may be much more damaging than a fine. If you read the news, you probably heard about the Talk-Talk disaster, where the unprepared spokesperson of Talk-Talk gave the worst signal ever to their customers when making a public statement about a data breach incident.
  • business discontinuity and costs recovery due to an incident. Not only a cybersecurity incident may cause the organization to stop being able to conduct its regular business and have reputational consequences on the market, but it will require to spend a lot of money to conduct investigations, fixing the issue, changing the processes where necessary, put in place stronger measures to prevent further incident, etc. A cybersecurity incident does not mean you are in breach of the GDPR, but with the increasing amount of personal data processed through connected networks, it is likely that a breach will also concern personal data of natural persons, which is regulated by the GDPR. This is where putting in place appropriate technical and organizational measures (which I call “ATOM“) plays a crucial role. In the most optimistic scenario, a well equiped and prepared company may not even require to inform the authorities, nor the individuals. In any case, it remains crucial to discuss and implement a cybersecurity preparedness plan and an incident response plan with the relevant people on a senior level.
  • suspension of data flows. While a cybersecurity incident may cause business discontinuity for a relative short period of time, an authority may impose a suspension of data flows. Despite the practical aspects of how an authority may enforce such measure, this might be damaging to the company if there is a business need to process the personal data.
  • competitors taking market share. This is a fear that some organizations should think about if they think non-compliance with EU privacy laws are just an academical topic. This is also where the GDPR is a great opportunity.
  • long-term ability to do business affected. Suspension of data flows may not be a common sanction given by an authority. However, non-compliance may prevent organizations to continue doing business with EU clients and cease to be competitive, losing market share.
  • loss of customer confidence.
  • staff losses and senior executive resignations.
  • allocation of an extra budget on security, data protection, restructuring, new roles and internal audits.
  • etc.

While NOT all organizations around the world falling into the scope of the GDPR will become GDPR compliant as of 25 May 2018, businesses and organizations processing personal data creating particular risks for the data subjects will be in the focus of the authorities. The so-called “Lex Facebook” will motivate authorities to focus on large companies such as the GAFAM and BATX, but also on their providers.

As long as your organization can demonstrate that GDPR readiness is on the top list of priorities and that working hard to achieve full compliance, you may be on the road to safety.

Be prepared, but not scared. Make the GDPR an opportunity, not a blocking point. Don’t fear fines, collaborate, remain transparent, prepare to demonstrate that you are working on compliance and that it is a priority for you. And if you need advice, then hire a specialized law firm.

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By Gabriel Avigdor | NTIC.ch

Abilify connected pill: ethics and privacy aspects of Personal Health Monitoring

ABILIFY MYCITE: A FIRST FDA APPROVAL FOR mHEALTH AND CONNECTED MEDICAL DEVICES

On 13 November 2017, we have probably reached a historical new step in digital health (and mHealth) with this market approval from the FDA for “Abilify MyCite“, the first digital tracking-pill which sends data to your doctor. This connected pill is used to track whether patients sufferring from schizophrenia, bipolar I disorder, and depression have taken their medication, which is used for Personal Health Monitoring (‘PHM‘).

As mentionned by Pharmacytimes:

“the approval of the pill and the sensor together represents a first for the FDA“

even if the sensor itself that is used along with aripiprazole (substance used for patient suffering from schizophrenia) was first cleared for use by the FDA in 2012. As secondary or side effects, the clinical trials revealed adverse events such as nausea, vomiting, constipation, headache, dizziness, uncontrollable limb and body movements (akathisia), anxiety, insomnia, and restlessness. However, the common adverse events associated with the sensor were related to the patch, and were predominantly skin irritation.

Find more information on the website of the FDA.

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TECHNOLOGY AND FUNCTIONALITIES – How it works

On the technology side, the sensor embedded into the Ability MyCite pill syncs with a smartphone and sends an alert to the patient’s smartphone. The doctor receives also a notification through the App when the medication is ingested via a patch that is worn on the surface of the skin of the patient. If the patient shares its data with his practitioner, the latter has the ability to monitor whether the patient has ingested properly. According to the US TV channel PBS, researchers are also trying to manufacture ePills that collect and process other body-related data by monitoring internal heat of the body for several days long.

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TECHNICAL ASPECTS OF THE DEVICE

According to LiveScience, the technical aspects are as follows:

“It’s a partial power source, “the patient becomes the battery”. The pill integrates a silicon chip with a logic circuit and contains copper and magnesium.  The chip’s logic circuit makes a small modulated current — a graph of the current levels would look like a sine wave. Since the human body is conductive, the wearable sensor can pick up the changes. The modulated current can encode ones and zeroes, similar to an FM signal. “It works in a similar way as an EKG,” or electrocardiogram. These machines pick up on changes in electrical current in the body to monitor heartbeats. The wearable sensor does the same thing, though the current is smaller.” The pill is designed to work for only about 3 minutes. That’s just enough time for it to send a signal to the wearable sensor that it should wake up and start gathering data. That saves battery power and allows the wearable sensor to work for a week at a time.

The patch and sensor is manufactured by the company Proteus Digital Health and aripiprazole marketed by Otsuka Pharmaceutical.

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ETHICS AND LEGAL ISSUES

PATIENT MONITORING AND REDUCING HEALTH COSTS

Personal Health Monitoring (‘PHM ‘) contains at least two major advantages.

MEDICAL COMPLIANCE – being the “consistency and accuracy with which someone follows the regimen prescribed by a physician or other health professional“. In the context of mental disability, the physician must ensure that the patient suffering from a mental disorder takes the prescribed medication on a regular basis. This may be particularly interesting for patients who may find themselves incapable of making a proper judgement (such as elder people). In the USA, a study from the National center for biotechnology information showed that “an estimated 50% of those who respond well to medications are nonadherent to their treatment regime“. Therefore, medical compliance is also a important challenge for patients who are suffering from a mental illness; and

HEALTHCARE COSTS – which could be reduced if more patients would take their pill properly. Consequences are both medical and financial. When a patient do not or, forgets to, take a pill, or do not follow the treatment as prescribed, his/her health may be worsened and this person may require treatment adjustment, more medicine, another hospitalisation or even a further surgery should there be a need to. In particular, this article indicates that the “loss that the taxpayer incurs when patients fail to take their medication, the cost of which is assumed to be at least $100 billion. According to an American report, these numbers could even be between $100 et $300 billion.

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TECHNOLOGICAL ADVANCEMENT: YES.  BUT AT WHAT COST AND
TO WHAT EXTENT DOES THIS REMAIN A PROGRESS?

Although such technological advancement (connected pill to track patient’s medical compliance) is remarkable for healthcare costs reduction, not everybody agrees to it, especially within the medical profession. Moreover, it is legitimate to ask to what extent such technology can constitute a practical improvement, not just a scientific progress.

What value does this progress add for patients, the healthcare system and the society in general? What does it improve, is it better than before? If yes, how and what are the bad sides of it? What is the balance between the bad and good sides of this? Will the benefits for the patient override financial benefits?

Some people already rose their voice and expressed reluctance to Personal Health Monitoring (‘PHM’), which scientists have already looked into and published on this complex topic. (see additional notes on that topic at the end of this article).

Altough a few have called this practice “medical Big Brother (or biomedical Big Brother according to the New York Times), PHM raises a number of ethical questions, which can lead to at least 8 key  points and interrogations:

1. Privacy – for personal health monitoring, two types of privacy aspects can emerge, which are personal privacy and data privacy. This also relates to risk of interference in the private life of the patient by collecting and processing health (sensitive or even biometric) patient data. Is such data processing in compliance with explicit consent of the patient, who may not able to make a proper judgement?  This article describes very well some privacy aspects  that personal health monitoring are raising.

2. Visibility or  obstrusiveness – Visibility appears to refer to “the degree to which a PHM device is noticeable by the user and other individuals, both at home and in public“. In accepting the use of tracking devices for dementia patients, cognitively intact older adults identified ease of use, size and weight as important in accepting a tracking technology. One consider the patient differently, being seen as an ill human being. This may create a risk of discrimination by the society and the person might be more vulnerable;

3. (over)Medicalization – the devices have the effect of reminding the user or occupants of a medical condition in a non-medical environment. The home could be turned into a medical environment or “de facto intensive care unit” as well as creating stigmatization linked to the fact that the person feels under surveillance;

4. Social isolation – the patient monitored will reduce or cease going to the hospital or to see the physician for regular check-ups. Therefore, this could increase patient’s loneliness and social isolation with psychological and medical consequences with a lack of motivation and reduction of the mentality;

5. Autonomy – what room remains to the patient with PHM to decide how to take the pill or not? What if the patient wishes to stop taking the pill, for good reasons? Where are we talking about pressure on the patient will?

6. Shame et identity – what consequences could there be on the personality of the patient, who may be perceived by the society as marginal human being, in particular when the treatment is visible?

7. Providing healthcare – with remote care, to what extent does this improve or reduce its effectiveness, especially when the patient does not move him/herself anymore? Is this an efficient manner to treat a patient, shall this remain the exclusive way of doing it or should we combine it with physical appointments?

8. Security and reliability of the technology. This element is obviously central for both privacy and health reasons.

Do these aspects reduce or delete the patient’s responsibility or does it create an over-responsibility? With or without benefits?

How about from an insurance point of view if the patient do not takes the pill while he/she is being monitored with or without worsening of his/her health? Suspension, reduction, cessation of the payment by the insurance or the medical measures? To what extent can the insurance have access to such information or personal health-related data?

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A PRIVACY PERSPECTIVE?

As this article pointed out, despite huge costs reductions (around 100 billion) and health benefits of this mHealth technology for the healthcare system and patients, patient’s privacy is an area of concern which is even more related to medtech technologies with Big data and IoT (Internet of Things) in the healthcare sector. Combined with the patch worn by the patient, the sensors that are embedded into the pill may provide far more data about the patient than just taking a pill or not.  The device may be used in a way to gather data from the patient’s body, such as the heart rate, how much the patient sleeps, how fit the patient is, etc.

The major concern is the misuse of such sensitive data, which could be used by corporations or government to collect more personal and biometric information about citizens that they had consented to revealing. Furthermore, since the technology has only recently come into the public domain, very few regulations exist to police it, says this article. Misuse for marketing purposes, is one thing. Data breach, criminal intents, or cyberattack on the device itself are another thing with severe consequences for both patients’ health, privacy and reputations of tech and pharma organizations. Further, another study explains that it appears impossible to obtain informed consent from recipients of PHM because full understanding of the implications of using PHM cannot be gained without actually using the technology. Therefore, using the technology without informed consent, may be considered as illegal processing, which creates a vicious circle. This article suggests that piloting methods such as storytelling and prototyping may present a possible solution to this problem and avoid collecting personal data without the proper legal basis for processing.

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PRIVACY AND INFORMATION SECURITY 

From an EU and Swiss perspective, health-related data (health or biometric) is considered as a special category of personal data that we call “sensitive data“, where the processing is generally prohibited, unless the controller can demonstrate a legal ground for the processing, such as the patient’s explicit consent (art. 9 §2 (a) GDPR, art. 4 al. 5 and 13 al. 1 of the Swiss DPA), the provision of medical services by a health professional tied by a secrecy obligation (art. 9 §2 (h) and 9 §3 of the GDPR) or private overriding interests (art. 13 al. 2 of the Swiss DPA). As one can read in the press almost everyday now, cyberattacks can happen, and a data breach may lead authorities to impose hefty fines, with 4% of worldwide annual turnover according to article 83 of the GDPR, although fines should remain a last resort in the sanction mechanism applied by the authorities. I wrote a note in this article about the envisaged approach with fines and sanction pursuant to the GDPR.

In addition, the doctor would also have to require the patient’s prior explicit consent before sharing, or allowing any third party to access, any sensitive data . See my previous note on recommendations for outsourcing in the context of medical billing for healthcare professionnals.

There are many other obligations under these regulations, which this article does not intend to cover.

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CONCLUSION

This FDA approval sounds like a very good “signal” to pharmaceutical companies developing connected drugs and advanced digital life science technologies, mHealth and medical devices.  This can improve the life of many patients, while saving costs and improving efficiencies in the treatment.

There is no need for scaremongering. However, remaining careful using the device for the purpose of the treatment, informing the patient and gathering explicit consent, processing only the data that is necessary for the purpose of the treatment, working with ethics and respect for the individual, especially if these patients have a reduced of discernment, are some good steps to ensure the individual’s privacy.

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To read more on this topic:

  • Mittelstadt, Brent, Ben Fairweather, Mark Shaw and Neil McBride. “The Ethical Implications of Personal Health Monitoring.” IJT 5.2 (2014): 37-60.Web.4Feb.2018.doi:10.4018/ijt.2014070104.
  • Mittelstadt, B., Fairweather, N.B., McBride, N., Shaw, M., 2011. Ethical Issues of Personal Health Monitoring: A Literature Review, in: ETHICOMP 2011 Conference Proceedings, ETHICOMP 2011, Sheffield, UK.
  • Elin Palm, Anders Nordgren, Marcel Verweij and Göran Collste, Ethically Sound Technology? Guidelines for Interactive Ethical Assessment of Personal Health Monitoring, 2013, Interdisciplinary Assessment of Personal Health Monitoring, 105-114.
  • Nordgren, Anders. (2013). Privacy by Design in Personal Health Monitoring. Health care analysis : HCA : journal of health philosophy and policy. 23. . 10.1007/s10728-013-0262-3.
  • Data protection and privacy in connected health, an article from a blog for research and innovation relating to emerging technologies.
  • Information notice  from “Otsuka Pharmaceutical”, the manufacturer of Abilify Mycite.

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By Gabriel Avigdor | NTIC.ch

Tails 1.0 : the amnesic and incognito live system

I.     Tails 1.0

1.1   Version 1.0 released

It is official. Since the 29th of April 2014, the last baby of the Tor Project has ben released and is now available for download : Tails 1.0.

“Privacy for anyone anywhere”

Tails 1.0 is a live operating system that protects you against data gathering and increases your privacy on the Internet. It includes built-in open-source software and is bootable from a USB flash key or a DVD. This software has been used by Edward Snowden to evade the NSA and communicate with Glenn Greenwald in June 2013.

1.2     Specifications

Its little name: the amnesic incognito live system.

Like Tails 1.0 is an amnesic operating system since it doesn’t record your data and erase your traffic information when you close the program. It is also incognito because your Internet traffic is confidential, secure and your data encrypted (files, emails, chat, etc.).

As well as other existing software (Bouldows for example), Tails is a live operating system and works can be launched from a USB flash key, an SD card or a DVD. When installed, Tails includes lots of open-source software usable for the Internet (Tor browser, Firefox, etc.), data encryption tools (such as Truecrypt) or simply office use (Open Office, Gimp, etc.). Tails 1.0 is distributed under a GNU/GPL licence including Creative Commons logos or coming from thenounproject such as the USB logo of Tails 1.0.

The official website says that it helps you to :

  • use the Internet anonymously and circumvent censorship;
    all connections to the Internet are forced to go through     the Tor network;
  • leave no trace on the computer you are using unless you ask it explicitly;
  • use state-of-the-art cryptographic tools to encrypt your files, emails and instant messaging.

 II.    Tor Project & Cie

Tor Projects (logo)

Tor Project regroups developpers that advocate for more open-source, security, anonymity, encrypted data and non-trackable, free software. In a few words non-commercial purpose and building software for confidentialiy and full privacy of the users on the Internet. Tor is an acronym for The Onion Router because of it refers to layers of encryption, nested like the layers of an onion, used to anonymize communication. As free software it enables online anonymity and censorship resistance. Tor directs Internet traffic through a free, worldwide, volunteer network consisting of more than five thousand relays to conceal a user’s location or usage from anyone conducting network surveillance or traffic analysis.

Parallel to Tor Project, Guardian Project is a good complementary resource for open-source Smartphone software for the public and developers.

Encrypted email applications, browser working with unique proxys or jumping ones, anonymous and encrypted live chat, coded messages sent though steganography principle, lots of software that are more accessible, more democratical and less elitist.

III.    Tails : for who and for what use? 

3.1    First test of Tails 1.0 (short overview)

When you start it, Tails seems to be accessible to anyone. You can be a Linux, Windows or Mac OS user, you will be guided step-by-step for installing it and use it. You lose a bit of your comfort zone by setting up the starting options and tools (such as keyboard, mouse, Wifi, admin password, etc.), but nothing really mad if know how to install an OS.

Tails desktop

Windows XP users will fatly find their way with an original option : “Windows camouflage” which is simply Tails OS with a Win XP theme.

Mac OS users will have to bite the bullet, because its less intuitive. For my first start, it was impossible to access to the local data on my HDD of my Macbook! In addition, please use a mouse because the use of the Mac touchpad rapidly becomes a nightmare. (Do not forget to press alt key to boot Tails).

Globally, Tails is rather intuitive, with lots of comfortable options such as a persistent volume where some data and new software can be saved as well as your settings (otherwise you’ll have to start all over again every time you start Tails) and can be updated. This option only works with a USB flash key, because a DVD cannot stock and save any more data on it. Connection to the Internet is easy and the jumping system method of Tor lets you surf on Facebook or Gmail without any problem. Even without VLC, Totem video player is rather good and read almost without any problem a .mkv video file including H264 for video codec and AAC for audio with multilingual audio track and subtitles.

At this stage, we can say that Tails 1.0 is intended for a broad audience, not only for those who loves penguins. You don’t know programming or writing code lines in a terminal, it is not a problem. Nevertheless, in my opinion Tails will not be accessible to everyone and lots of patience is needed for a dayly use, especially if you always have to configure the settings again at every starts. But obviously, it is the very principle of a live operating system …

3.2    Multipurpose use

Tails 1.0 includes an interesting list of open-source software such as Iceweasel for the Internet (GNU version of Firefox), Claws mail for emails, Pidgin for chatting, Open office for documents, Gimp (Photoshop’s equivalent) or TrueCrypt for data encryption. But, this Operating System is not foolproof. The user is warned about the limits of the program, especially for data encryption and deciding how to act with the computer and the information spread on social network or the Internet. Choosing a good password and change it from time to time is a must.

Tor Browser is not a standard Internet browser. It is from far slower than any other browser because of its functions. Blocking Ads, scripts, spy software, cookies, run Internet trough jumping proxys or data encryption require times, slow your network and block most websites that do not match with that settings. Most of e-commerce websites, social network or standard websites will not work if specific blocking options are enabled. Same script when you use Firefox with too many add-ons or plugins such as Ghostery, Adblock Plus, Donottrackme, etc.

Thus, running Tails is rather simple and all the built-in software let you have a daily use, but not for everyone or anyhow. Installing more software on your USB flash card and saving settings are an indication of the longevity of the project. Will it be enough for a very broad use? A wide professional use in private or administration sectors is something even more uncertain …

IV.    Conclusion

Other projects like Guardian or Tor are necessary for helping the web community to protect user’s privacy and anonymity and other strong values of tomorrow’s Internet. Recent software developments allow to reach a wider and broader audience. In that context, the massive innovative efforts of the open-source developers must be welcomed. These projects encourage people and governments to promote, use or develop such software. The Swiss Federal Supreme Court is a great example with its project: “OpenJustitia” (only available in French or German).

However, few of these software are really used by a majority of the Internet users. First, these programs are not of public knowledge, and Internet users ofter do not know alternatives exists or do not want to know about. Second, for years these software have not been very “user friendly”. Problems of settings, installation or use may repell the average user motivated by more protection but do not have sufficient knowledge or do not understand the proposed tool. Finally, the very geek design may often rejects users in a media hype world where people think that because it’s nice, it’s better…

Visiting Tor and Guardian Projects websites may be very instructive. Lots of unknown software for PC, Mac OS or Android are available for download. Their use is often simpler as we could have thought and allows you to decrease Internet tracking (see my article about Panopticlic in french) and preserve anonymity.

What about you, have you or will test Tails 1.0 ?

More information and links

  • Tor Browser;
  • guardianproject.org with web apps for a better stay on the Internet;
  • Orweb, Android version of Tor Browser;
  • Orbot : Android app with proxys servers;
  • Startpage : neutral search engine that do not give any information about you to third parties;
  • JonDo and JonDoFox : Tor Browser alternatives;
  • tens of others … !