GDPR and the Right To Be Forgotten (RTBF) and other Rights
 
A bit of a longer read.
 
I recently had the opportunity to engage a bit here on Mastodon on the question of data privacy and the EU General Data Protection Regulation (GDPR). I’ve had a chance to think about this a bit more and am providing the following thoughts. This is not a complete analysis of data privacy under GDPR, but I hope it will be helpful for organizations or agencies who fall under this regulation. I appreciate those who commented previously (references below).
 
First, some disclaimers:
-       I am not a lawyer. I recommend you talk to one if you are developing software that handles private information or are simply storing or sharing private information.
-       I have read the entire GDPR and recitals, but I am not current on recent legal refinements.
-       I have also read other data compliance regulations such as CCPA and at one point I read all of the data privacy regulations of all 50 US states.
-       Why did I do this? My company was subject to GDPR and a number of other privacy regulations and we were selling a data security solution. Our customers had a reasonable expectation that we would help them meet compliance regulations.
-       We developed internal policies and procedures to comply with GDPR.
-       We honored all GDPR requests related to RTBF.
-       We consciously designed systems that supported and enabled GDPR compliance.
-       We invested in and partnered with a blockchain start up and designed and developed for IPFS.
 
Some definitions might be helpful. GDPR refers to individuals (individual people like you and me) as Data Subjects. The rights granted are granted to individual users and consumers. Organizations that collect private information about Data Subjects are Data Controllers. When we stored information in our CRM we were a Data Controller as defined by GDPR. It takes a bit of reading to get used to these definitions, but they are fairly straightforward.
 
Context is important when understanding a regulation like GDPR.
 
I benefited from my time living in and starting a business in Europe (West Germany, in the 1980s). This part of the world had experienced unspeakable horrors during WWII and were living very close to the repression that existed just across the border in eastern Europe. Repressive regimes abuse confidential information and weaponize secrecy in order to exert control over others. My colleagues from Germany, Italy, France, the UK and Poland understood this in a fundamental, human way. I see GDPR as a natural expression of their desire to protect their nations, their communities, their families and themselves. This is why I deeply respect the EU’s right to promulgate these privacy regulations.
 
Under GDPR the individual becomes the ultimate owner of their private information. There is no implied ability of a Data Controller to override that right (with some exceptions, see below), or to assume that any rights granted to a Data Controller by an individual are permanent and immutable. An individual can give a Data Controller permission to store their private information, and, importantly, an individual can revoke that permission. This is a fundamental difference with how we in the US tend to think of privacy. It is very important to fully grasp this concept if you are planning to do business in the EU.
 
The Right To Be Forgotten (sometimes called the Right To Deletion) gives the individual the right to ask for their data to be removed from a Data Controller’s system and for that to occur in a timely fashion. But it is only one right defined under GDPR. There are others:
-       Right to opt in or out of data sharing.
-       Right to change data sharing permissions.
-       Right to know with whom data has been shared.
-       Right to correct data.
-       Right to assume data is pseudonymized, usually with encryption.
-       Right to be informed in a timely way of any data beach.
 
This is not a complete list of the rights and responsibilities conferred under GDPR, but these are probably the most well-known, and probably where many organizations fail to implement proper controls.
 
Of course, there are exceptions to data privacy rights under GDPR. Some of them are:
-       Legal requirements to retain data (tax history, etc.).
-       Some freedom of information requirements.
-       Some public knowledge aspects.
-       General public health and safety.
 
Please note that GDPR does not provide an exception to the rules because your technology prevents you from meeting RTBF deletion requests (looking at you, blockchain and IPFS). There is no programming around these requirements and clever developers do not get a magical pass to ignore them.
 
It is also important to understand that RTBF is still being refined. This is a bubbling pot of legal activity. In my opinion the direction seems to be in favor of protecting Data Subject’s privacy rights and enforcing RTBF.
 
GDPR applies to the EU countries and to anyone doing business in the EU. There are lots of other privacy regulations that are similar to GDPR. In the US, there is the California Consumer Privacy Act (CCPA) and the California Privacy Rights Act of 2020 (CPRA). The UK, Australia, New Zealand and many other countries also have privacy regulations that are similar in intent. Once you start absorbing the requirements of these regulations you start to think of private information in a new way.
 
Ok, now for some recommendations:
 
If you are a software developer creating that killer app and the next big Unicorn, build in GDPR support right from the beginning. We know how difficult it is to “bolt on” security after the fact. It is equally hard to re-engineer applications to meet GDPR. So, get it right from the beginning and avoid some angst as you approach an IPO or a global rollout.
 
If you are a business and have dreams of scaling your business beyond your local community, think about how you collect, store and share information about individual consumers. It is almost certain you are going to run into some flavor of GDPR at some point and you will want to be prepared. If you are not covered by GDPR, CCPA or other privacy regulations now, you may soon be.
 
If you are using social media platforms as a part of your marketing strategy (who isn’t ???) be sure you understand how your social media provider meets GDPR. Sharing sensitive data with social media and big data brokers can be a GDPR nightmare. Make sure your social media partner has processes in place to meet GDPR data deletion requests.
 
It was previously mentioned here that developer tools like git and Gitlab would likely not come under GDPR controls. I think the point was that tools like git and Gitlab are not typically used to collect information on individuals, and I think that is correct. It is not that GDPR exempts developer tools from its compliance scheme (it doesn’t), it is just that it is rare to use developer tools to store a lot of personal information. One caution: be careful about test data that you might store as a part of automated testing routines. Don’t store test data with information about real people! Anonymize or tokenize the data before adding it to git.
 
What about Web3 technologies?
 
Web3 technologies like blockchain and IPFS can make it extremely difficult (nearly impossible) to meet GDPR requirements for RTBF. If your application ingests data to blockchains and/or IPFS, or provides a public gateway to allow this type of data ingestion, I would recommend implementing application logic to prevent sensitive personal data from being added. I’ve built blockchain and IPFS applications and there is no effective delete function. If you have to store sensitive data, I would recommend against using these technologies.
 
Lastly, remember that you will probably need proper legal advice (that is not me!) related to GDPR and other compliance regulations. Governance and compliance are proper components of a business plan and software design process.
 
Here are some resources that may be helpful:
 
EU General Data Protection Regulation (lots of resources here):
https://gdpr.eu/
https://gdpr.eu/right-to-be-forgotten/?cn-reloaded=1
 
EU General Data Protection Regulation recitals:
https://gdpr-info.eu/recitals/
 
California Consumer Privacy Act:
https://oag.ca.gov/privacy/ccpa
 
The newer California Privacy Regulation Act (If you enjoy reading legislation – I do!). Not the official site and be aware that CPRA is still undergoing implementation discussion:
https://thecpra.org/
 
UK Data Protection Law. Good resources here:
https://ico.org.uk/
 
Acknowledgements and appreciation:
 
Demi Marie Obenour (@alwayscurious)
Gabriel Svelto (@gabrielesvelto)
Andi McClure (@mcc)
And many others!
 
#GDPR #CCPA #CPRA #Compliance #Security #BlockChain #IPFS #Software #SoftwareDevelopment #Programming