This is going to upset the apple cart – the European Court of Justice (ECJ) has decided in favour of Mario Costeja González in his dispute with Google. Way back in 1998, a Spanish newspaper published reports on certain pecuniary difficulties in which González found himself.
By 2010 those difficulties were long past – but Gonzales found the archived pages on the internet and Google search links to them. He wanted both the pages and the links removed because they are no longer relevant.
The Spanish Data Protection Agency, the AEPD, half agreed. It made no demands against the newspaper because the information was valid when it was written. But it found against Google, requesting that Google Spain and Google Inc remove the links from the Google database.
Google objected, and appealed to the Spanish High Court to have the AEPD’s decision annulled. The High Court referred the matter to the ECJ for an interpretation of the European Data Protection Directive – and the ECJ has today delivered that interpretation.
It finds, in a nutshell, that search engines that operate in Europe are bound by European data protection laws, and that Google is one such search engine.
So far as concerns, next, the extent of the responsibility of the operator of the search engine, the Court holds that the operator is, in certain circumstances, obliged to remove links to web pages that are published by third parties and contain information relating to a person from the list of results displayed following a search made on the basis of that person’s name.
Judgment in Case C-131/12 – Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González
Green MEP Jan Philipp Albrecht is pleased with the outcome, commenting,
The ruling by the European Court of Justice to also hold search engine operators responsible for compliance with data protection law is the right decision. Today’s ruling clarifies that search engine operators are responsible for the processing of personal data even if it comes from public sources. Affected individuals are therefore also entitled to exercise their right to erasure… It is now important that we adopt a uniform and consistent data protection regulation in order to strengthen the enforcement of such rights in all areas of the law and throughout the EU.
But life is never that simple, and the ECJ’s ruling leaves the waters very muddy. While making it clear that as a general principle individuals have the right to demand that personal information is removed from the search engines,
The Court observes in this regard that, whilst it is true that the data subject’s rights also override, as a general rule, that interest of internet users, this balance may however depend, in specific cases, on the nature of the information in question and its sensitivity for the data subject’s private life and on the interest of the public in having that information, an interest which may vary, in particular, according to the role played by the data subject in public life.
If that seems a bit convoluted, it just means that there is a ‘public interest’ loophole. In González’ case it’s pretty straightforward – there is no public interest argument in providing links to long dissatisfied pecuniary difficulties from 1998. Those links must go.
But what about links to the improprieties of celebrities? Those who perhaps dress up as Nazis or attend S&M parties. And will this lead to two separate internets – one for the US where freedom of speech prevails and one for Europe where data protection and privacy prevails?
I had to visit the hospital the other day. I’m not going to say why, because that’s private, personal and confidential. Suffice it to say that the condition isn’t one that I wouldn’t tell my mother; but it is one that I’d prefer potential employers and insurers know nothing about unless I tell them (it’s probably nothing anyway). I would most certainly not want the pharmaceutical industry to know — the drugs they offer make the (possible) condition much worse, and introduce new ones.
But I don’t need to worry, do I? At the bottom of the hospital appointment letter, in bold type, is the statement:
All personal information about you is kept confidential at all times and is only shared when necessary to support your care and treatment. If we want to use your information for any other purpose, with the exception of when the law requires us to do so, we will talk with you and obtain your consent. If you have any concerns regarding this, please talk to the person providing your care and treatment.
(see grammatical note at the end of this post)
But that’s a lie. While the government wants to start centralizing our GP records in the autumn, it is already doing so with HES (Hospital Episode Statistics). These are already held by the Health and Social Care Information Centre (HSCIC) which is where all of the records will eventually be held. According to the HSCIC website,
HES is a data warehouse containing details of all admissions, outpatient appointments and A&E attendances at NHS hospitals in England.
This data is collected during a patient’s time at hospital and is submitted to allow hospitals to be paid for the care they deliver. HES data is designed to enable secondary use, that is use for non-clinical purposes, of this administrative data.
It is a records-based system that covers all NHS trusts in England, including acute hospitals, primary care trusts and mental health trusts. HES information is stored as a large collection of separate records – one for each period of care – in a secure data warehouse.
We apply a strict statistical disclosure control in accordance with the HES protocol, to all published HES data. This suppresses small numbers to stop people identifying themselves and others, to ensure that patient confidentiality is maintained.
Compare the two statements. It is perfectly clear that the hospital is lying. But the reality is, so is HSCIC.
Back in 2012, the marketing firm PA Consulting bought a copy of the HES data.
So we bought the data and installed it (with certain security restrictions) on our own hardware… [But querying the data took too long.] The alternative was to upload it to the cloud using tools such as Google Storage and use BigQuery to extract data from it… Within two weeks of starting to use the Google tools we were able to produce interactive maps directly from HES queries in seconds.
(That document seems to have been removed from the PA site, or hidden away. Anyway, I can no longer find it, and have to rely on the copy I have. It seems to have been replaced by a press statement from PA here and another from HSCIC here in a coordinated release. Neither of these should satisfy any patient.)
The HES data sold by the government is pseudonymised — but still includes postcode and age (PA denies that it received DOB or address, but doesn’t specify whether that included ‘age’ and ‘postcode’). In other words, standard HES data specifies very clearly exactly who 98% of the patients actually are and where they live.
And then there’s Beacon Dodsworth, a firm that “provides geographical information system (GIS) mapping software and marketing technology to clients in a wide range of industries” including Estee Lauder, Trinity Mirror Group and Boots. It says
Hospital Episode Statistics (HES) have now been integrated with our P2 People & Places people classification thanks to some hard work from our clever developers.
This means you can now better understand the health needs of local communities and populations and identify trends and patterns in order to target health improvement more effectively.
So we seem to have a system that quite readily sells our hospital records to any marketing company that will pay for them, and then allows those marketing firms to advertise the ability to target us on the basis of our health. And at the same time, the NHS itself tells us something completely different: that the data is only seen by those involved in our treatment.
Now Ross Anderson, chair at the Foundation for Information Policy Research; Phil Booth, coordinator at medConfidential; and Nick Pickles, director at Big Brother Watch, have all filed a complaint with the ICO requesting that the issue be examined in relation to the Data Protection Act.
It will be interesting to see how the ICO can reconcile what to everyone else is a clear but hidden breach of confidential patient data — and the Data Protection Act — with this government’s desire to sell and share everything about us to anyone willing to pay for it, irrespective of our own wishes. Because the one thing we can be very sure about in all of this is that the ICO will do all he can to avoid doing anything at all.
The first sentence is a complete statement. The second sentence is also a complete sentence. There is nothing in the second sentence to indicate that it qualifies the first sentence. There is nothing in these two sentences from which a reasonable patient could infer that it really means, “We will not share your personal data with anyone other than the centralised government database operated by HSCIC, with whom we will always provide all of your details all of the time, and over which we have not the slightest control nor responsibility for your personal data.
This coming week the European Justice and Home Affairs Council (ie, national ministers from the individual national governments) will meet in Brussels. There are several items on the agenda.
Top of the list in a memo released by Viviane Redding is reform of the data protection laws. She says,
I am confident we will be able to build on the momentum injected into the negotiations by the Greek Presidency at the last informal Council meeting in January. Seeing the latest progress, I will continue working with Ministers for an adoption of the data protection reform before the end of this year.
Bottom of the list in a ministerial statement from Theresa May is reform of the data protection laws. She says,
There will be a state of play/orientation debate on the Proposal for a General data Protection Regulation. The UK continues to believe that this proposal is far from ready for a general agreement, and that no such agreement can occur until the text as a whole has been approved. The proposal remains burdensome on both public and private sector organisations and the Government would not want to see inflexible rules on transfers outside the European Economic Area which do not reflect the realities of the modern, interconnected world.
And yes, they really are talking about the same thing. Most of Europe has already agreed the data protection reform proposals; but the UK doesn’t like it and won’t play.
The problem is, providing more protection for our personal information is difficult for the UK. It would upset the three most powerful organizations in the country: GCHQ, Google and Facebook. GCHQ would have its ability to collect our private messages, photos, home videos and internet browsing habits severely curtailed — and of course nobody would want to see that.
Google and Facebook would no longer be able to ship our personal information to servers outside of the UK; that is, the US, from where the NSA/FBI could demand access while declining to allow us to be told (assuming they need to since GCHQ will probably have already intercepted the data via its taps on the fibre cables that run between the two continents and simply handed it en masse to the NSA for storage and safe keeping).
Since these negative arguments would not prove popular to the British public, they are being hidden in spurious and frankly false claims that data protection will cost business. Yes there will be some cost in protecting our data (not nearly as much as the government would like us to believe); but that will be more than compensated by the lower cost of doing business with dozens of different data protection regimes. The net effect of reforming data protection will be greater data protection at a lower overall cost.
But Theresa May doesn’t want us to understand that. She and David Cameron would like us to believe that they are protecting us when they are really just protecting vested interests and actually selling us down the river. They are willing to trade our privacy to keep GCHQ and big American business happy.
The United States would be well advised not to dismiss European anger over the NSA — but so far the US doesn’t seem to be taking the EU’s concerns seriously. Consider the safe harbour agreement, and the growing movement to suspend it.
Safe harbour is an official arrangement that allows American companies to circumvent the European data protection laws. These laws prohibit the export of personal European data to any country that does not have comparable data protection laws. The United States does not. On the face of it, then, this would stop companies like Google and Yahoo and Facebook operating in Europe since they ‘export’ their users’ data to servers in the US.
To avoid this, the EU and US developed the Safe Harbour. Provided individual companies are certified to provide a comparable level of data protection to that required in the EU, safe harbour allows US companies to store EU data in the US. That certification can be provided by a qualified third-party, or it can be self-certification. One of the conditions included is that personal EU data will not be passed on to third parties.
But this requirement is clearly being breached by the NSA’s Prism programme. It doesn’t matter whether US cloud companies are giving EU data to the NSA willingly or even knowingly — that it happens is in contravention to safe harbour. So the mood in Europe is simple: if safe harbour isn’t being honoured, it would be better to suspend it. If this were to happen as things stand, companies like Google and Facebook would no longer be able to operate in Europe.
Why I don’t think America is taking this threat seriously
In December 2013, a US think tank called Future of Privacy Forum (FPF) published a report concluding, “It would be unwise at this stage of the Safe Harbor to pull back on this effective program.” It claims that safe harbour is working — when Prism shows it is not.
FPF’s first argument is that “eliminating the Safe Harbor will not prevent the NSA from accessing EU citizens’ data.” Seriously? Is FPF really suggesting that since the NSA will disregard the law, we shouldn’t bother having any laws?
Its second argument is that even US companies that allow their safe harbour certifications to lapse are “still subject to FTC Section 5 enforcement for any substantive violations of
the Safe Harbor principles committed while it claims to be a member.” Luckily, we can test that assertion because the FTC has just made enforcement on 12 US companies for that very infringement.
Following complaints, the FTC took action against the companies which resulted in settlements. The settlement agreements now prohibit the companies from falsely stating to be Safe Harbour certified.
FTC takes safe harbor enforcement action against 12 US corporations
So, the punishment for ignoring safe harbour rules is to agree to stop ignoring safe harbour rules; which can be done via self certification.
This is not the behaviour of a country that is taking Europe seriously.
Is it even possible for Europe to suspend safe harbour?
This is the crux of the problem. America clearly believes that it would be impossible: Google, Facebook, Microsoft, Yahoo etc, etc are so deeply woven into the social and economic fabric of Europe that it would not dare, in the final analysis, to pull the plug. That, I fear, would be a catastrophic underestimate of European determination.
Consider some of Europe’s recent announcements. It is preparing itself for a life without US tech giants, and even a life without the UK. (Incidentally, David Cameron will rapidly discover how insignificant the UK will be considered by the US if it can no longer influence the EU in favour of the US; and GCHQ, like the NSA, can no longer spy on Europe.)
Firstly, the EU has declared it wishes to be an honest broker between US and UN ownership of internet governance. In other words, the European bloc is no longer in blind support of the US position — it is preparing for, and in doing so it is making inevitable, a time when US control is removed.
Secondly, Angela Merkel has indicated a Franco-German intent to build a European internet outside of the NSA’s reach. US companies will either have to agree to play by European rules, or be excluded from Europe. (That, of course, applies equally to the UK and GCHQ. Nigel Farage of UKIP wants the UK to leave the EU; Cameron, who doesn’t, is close to getting the UK excluded by default.)
Faced with such a decision, the US companies will take a commercial position and play by the rules of what will effectively be a heavily policed virtual internet within and for Europe. Microsoft has already broken ranks and said it will ensure European data remains in servers within Europe. The problem for Microsoft will come when it receives a FISC order demanding EU data from those European servers. The danger for the United States is that under such circumstances, some of those companies will emigrate from America in order to maintain their European presence.
So, as I said at the beginning, the US would be well-advised to take Europe seriously. Europe is older and more patient than America. It can and will take the long view over this issue.
I had to speak to my GP today. It was a telephone consultation with what is, generally speaking, a pretty good surgery.
When we finished, I said, “While I’ve got you, I’d like to state my objection to inclusion in care.data.”
“In what?” he replied. “Care…?”
I explained. “I want to stress that I must not personally be identifiable with any health data that leaves your premises, nor any data that leaves HSCIC.”
“Oh,” he said. “You’ll have to write to the practice manager about that.” (Well, I have already done that; but the advantage of repeating it here is that I now have a recording of the event. Letters can be lost or denied; a recording in my possession cannot. It’s good, this VoIP thing.)
“No,” I said. “According to the official NHS documentation, all I have to do is tell you.”
“Oh, all right. I’ll pass it on to the practice manager. She’s probably got a form for you to fill in.”
“While we’re at it,” I added, “I’d like a comment added to my notes, please. I object to any of my personal records leaving your care at all. It is my opinion that if that happens, it will be in contravention of the European Union’s Data Protection Directive.”
I’m not a lawyer, obviously — but then neither is he.
But actually I do believe it would contravene the data protection principles for two basic reasons. Despite all the publicity about an explanatory leaflet from the NHS, I have never received one. That means that I have not been informed that my personal data is going to be passed to a third-party, nor have I had the process explained to me; and that while I should have to opt in to this process, I haven’t even been given the opportunity to opt out.
It all just goes to show that the whole thing is a deceitful farce.
The brilliant Hawktalk blog has demonstrated how the UK government has airbrushed the Data Protection Act out of ‘national security’ issues. This leaves GCHQ free to conduct mass surveillance of British citizens (and who cares about foreigners anyway?) without any effective legal oversight — merely a nod and a wink from the government of the day.
The conclusion comes from an analysis of a data protection exemption certificate obtained under freedom of information laws and dating back to 2005 — now probably out of date but equally probably indicative of what is happening today (born out by similarities between an old TfL exemption certificate and a recent one issued by Theresa May).
There are eight data protection principles underpinning the Data Protection Act. Summarized by the Information Commissioners Office (the UK’s data protection regulator), these are that personal data should be:
- Fairly and lawfully processed
- Processed for limited purposes
- Adequate, relevant and not excessive
- Accurate and up to date
- Not kept for longer than is necessary
- Processed in line with your rights
- Not transferred to other countries without adequate protection
In the certificate analysed by Hawktalk, principles 1, 2, and 8 are exempted. Furthermore, principles 3 and 5 are effectively nullified by the exemption to principle 8 — the data can simply be transferred to NSA databases outside of the ICO’s jurisdiction.
Hawktalk’s argument is that these principles are automatically suspended for any statutory body pursuing its statutory purposes. The implication of a certificate specifically issued to completely exempt that body (GCHQ) from any of the principles is that it (GCHQ) wishes to pursue the processing of personal data beyond its (GCHQ’s) statutory purpose — it simply does not need an additional exemption if it sticks to what it was designed to do (ie, national security). In other words, GCHQ wishes to collect and process personal data to an extent that is both beyond its legal remit and the strictures of national law.
GCHQ has become, quite literally, a law unto itself.