The Fake Data Processor and The True Criminal Liability

Under Legislative Decree 196/03 (the Italian enforcement of the Data Protection Directive) one of the most common practice when developing the data-protection corporate policy of a company is to appoint the heads of the various departments as “Data Processor”.

Although easy on the short term, this solution might backfire the company itself. A recent Corte di cassazione (Italian Supreme Court) decision – ? III penal section – Dec. n.20682/14 – ruled that under the workplace safety regulation, the employer that appoints a safety manager who is not fit for the job because of his lack of competence, ? commits a criminal offense.

The very same principle can be applied by analogy to the Data Protection Directive. The DPD – and its Italian enforcement – make mandatory to appoint a data controller actually fit for the job.

By choosing people on different basis (not because they know the matters, but just because they’re company’s heads) means that in case of data-protection-related criminal offenses the data controller (and, most important, the prosecutor and the court) can’t blame (only) the data processor itself.

Then, in terms of management, the decision is between only formally comply with the legal requirements, and actually comply by appointing capable data processors.

In the first case the company is accepting the risk of a future (but uncertain both in “if” and “when”) accident but saves on the short term effort and time.

In the second case the company spends more, has to possibly change its internal processes in the anticipation of an event that might not happens at all.

Google, the European Court of Justice and the End of History

The European Court of Justice ruling against Google Spain is another step toward the deletion of the History (capital “H”) and collective memory. In the name of “privacy” the Court allowed the possibility to completely remove a lawful information from public scrutiny, as is clearly stated at the end of the ruling:

Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be interpreted as meaning that, in order to comply with the rights laid down in those provisions and in so far as the conditions laid down by those provisions are in fact satisfied, the operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful. (emphasis added)

Now, with the support of this decision, corrupts politicians, scammers, con artists, bad payers and similar breeds can easily re-gain their anonymity, and historians from the future will not be able to discover and understand how our society was working.

And, to some extent, this wouldn’t be a bad thing…

The Italian Data Protection Authority to start a code reviewing investigation

Better late then ever: a press release from the Italian Data Protection Authority ? advertises the data-protection oriented review of a certain number of apps.

This initiative should be a major concern for the (yet unaware) software industry, whose intellectual and industrial property might be endangered by a deep peep into its well protected secrets. Neither are clear the criteria that will lead to the app selection, nor whether or not the DPA will asks the developers for source code access.

Unless this IDPA investigation is just an empty PR stunt, it should be carried on by accessing the source code or reverse-engineering the executables: but doing so without signing NDAs and/or provide guarantees of non exploitation is an approach that the industry will likely reject.

Furthermore, if the software check will target only a certain kind of companies, leaving the other players of the same market safe from the scrutiny, this might be held as an unfair alteration of the market dynamics. And things might be much worse if the targeted companies are the smallest one, instead of the big fishes in the pond.

Mind, the lack of data-protection compliant programming isn’t a new or unforeseen issue – as the history of software can witness – but the IDPA never actually cared that much. For instance, it didn’t move a finger when back in 2002 ALCEI (a civil-rights Italian NGO) asked in vain the IDPA to check the claims of the existence of hidden features of a certain series of Telindus routers that posed significant threats to the users’ data protection.

 

 

Data Protection and Right of Defense. Stating the Obvious

Yet more evidence that Data Protection is not an absolute right. On the contrary, as the Italian Supreme Court decision n. 7783/14 said 1 a few days ago:

the interest to the protection of personal data must step back when confronted by true defense needs and other legally relevant interests, such as the fair and coherent enforcement of the right of defense in court.

  1. Unofficial Translation

The Italian Data Protection Authority and the Bad Payers

The Italian Data Protection Authority public hearing about the upcoming credit-scoring database regulation is ending soon and will likely endanger the possibility for a company to protect its right of not being defrauded by unfaithful clients.

This is because the DPA keeps pushing the (wrong) notion that data-protection=privacy=absolute right. This is a logical and legal fallacy because the ? concerned EU directives include privacy among the other fundamental rights to be protected while processing personal data.

This means that data-protection as such has not a higher status than the right of defense or the right to freedom of entrepreneurship (both granted by the Italian Constitution). But the upcoming regulation will likely to ignore this (elementary) fact.