Thoughts about what the regulators say
As with previous WP29 Opinions (think cloud, for example), the regulators have taken a very broad brush approach and have set the bar so high, that there is a risk that their guidance will be impossible to meet in practice and, therefore, may be largely ignored. What we needed at this stage was a somewhat more balanced and nuanced guidance that aimed for good privacy protections while taking into account the technological and operational realities and the public interest in allowing the IoT to flourish.
I am also unsure whether certain statements in the Opinion can withstand rigorous legal analysis. For instance, isn't it a massive generalisation to suggest that all data collected by things should be treated as personal, even if it is anonymised or it relates to the 'environment' of individuals as opposed to 'an identifiable individual'? How does this square with the pretty clear definition of the Data Protection Directive? Also, is the principle of 'self-determination of data' (which, I assume is a reference to the German principle of 'informational self-determination') a principle of EU data protection law that applies across the EU? And how is a presumption in favour of consent justified when EU data protection law makes it very clear that consent is one among several grounds on which controllers can rely?
Few people will suggest that the IoT does not raise privacy issues. It does, and some of them are significant. But to say that (and I am paraphrasing the WP29 Opinion) pretty much all IoT data should be treated as personal data and can only be processed with the consent of the individual which, by the way, is very difficult to obtain at the required standards, leaves companies processing IoT data nowhere to go, is likely to unnecessarily stifle innovation, and slow down the development of the IoT, at least in Europe. We should not forget that the EU Data Protection Directive has a dual purpose: to protect the privacy of individuals and to enable the free movement of personal data.
Distinguishing between personal and non-personal data is essential to the future growth of the IoT. For instance, exploratory analysis to find random or non-obvious correlations and trends can lead to significant new opportunities that we cannot even imagine yet. If this type of analysis is performed on data sets that include personal data, it is unlikely to be lawful without obtaining informed consent (and even then, some regulators may have concerns about such processing). But if the data is not personal, because it has been effectively anonymised or does not relate to identifiable individuals in the first place, there should be no meaningful restrictions around consent for this use.
Consent will be necessary in several occasions such as for storing or accessing information stored on terminal equipment, for processing health data and other sensitive personal data, or for processing location data created in the context of public telecommunications services. But is consent really necessary for the processing of, e.g., device identifiers, MAC addresses or IP addresses? If the individual is sufficiently informed and makes a conscious decision to sign up for a service that entails the processing of such information (or, for that matter, any non-sensitive personal data), why isn't it possible to rely on the legitimate interests ground, especially if the individual can subsequently chose to stop the further collection and processing of data relating to him/her? Where is the risk of harm in this scenario and why is it impossible to satisfy the balance of interests test?
Notwithstanding my reservations, the fact of the matter remains that the regulators have nailed their colours to the mast, and there is risk if their expectations are not met. So where does that leave us then?
Sophisticated companies are likely to want to take the WP29 Opinion into account and also conduct a thorough analysis of the issues in order to identify more nuanced legal solutions and practical steps to achieve good privacy protections without unnecessarily restricting their ability to process data. Their approach should be guided by the following considerations:
- The IoT is global. The law is not.
- The law is changing, in Europe and around the world.
- The law is actively enforced, with increasing international cooperation.
- The law will never keep up with technology. This pushes regulators to try to bridge the gap through their guidance, which may not be practical or helpful.
- So, although regulatory guidance is not law, there is risk in implementing privacy solutions in cutting edge technologies, especially when this is done on a global scale.
- Ultimately, it's all about trust: it's the loss of trust that a company will respect our privacy and that it will do its best to protect our information that results in serious enforcement action, pushes companies out of business or results in the resignation of the CEO.
This is a combustible environment. However, there are massive business opportunities for those who get privacy right in the IoT, and good intentions, careful thinking and efficient implementation can take us a long way. Here are the key steps that we recommend organisations should take when designing a privacy compliance programme for their activities in the IoT:
- Acknowledge the privacy issue. 'Privacy is dead' or 'people don't care' type of rhetoric will get you nowhere and is likely to be met with significant pushback by regulators.
- Start early and aim to bake privacy in. It's easier and less expensive than leaving it for later. In practice this means running privacy impact assessments and security risk assessments early in the development cycle and as material changes are introduced.
- Understand the technology, the data, the data flows, the actors and the processing purposes. In practice, this may be more difficult than it sounds.
- Understand what IoT data is personal data taking into account if, when and how it is aggregated, pseudonymised or anonymised and how likely it is to be linked back to identifiable individuals.
- Define your compliance framework and strategy: which laws apply, what they require, how the regulators interpret the requirements and how you will approach compliance and risk mitigation.
- When receiving data from or sharing data with third parties, allocate roles and responsibilities, clearly defining who is responsible for what, who protects what, who can use what and for what purposes.
- Transparency is absolutely essential. You should clearly explain to individuals what information you collect, what you do with it and the benefit that they receive by entrusting you with their data. Then do what you said you would do - there should be no surprises.
- Enable users to exercise choice by enabling them to allow or block data collection at any time.
- Obtain consents when the law requires you to do so, for instance if as part of the service you need to store information on a terminal device, or if you are processing sensitive personal data, such as health data. In most cases, it will be possible to rely on 'implied' consent so as to not unduly interrupt the user journey (except when processing sensitive personal data).
- Be prepared to justify your approach and evidence compliance. Contractual and policy hygiene can help a lot.
- Have a plan for failure: as with any other technology, in the IoT things will go wrong, complaints will be filed and data security breaches will happen. How you react is what makes the difference.
- Things will change fast: after you have implemented and operationalised your programme, do not forget to monitor, review, adapt and improve it.