Category: Privacy and Data Protection

Posted on

EUCJ and the Data Retention and Investigatory Powers Act

A friend of mine asked a quick commentary about a Telegraph news about the European Court of Justice decision that bashed the British Data Retention and Investigatory Powers Act, forcing the ISPs to abid to a one-year Internet traffic data retention period.
Here is my answer:

It is clear that the EUCJ is following its political agenda.
As I said countless times, law enforcement and national security aren’t subjected to the might of the data-protection directive so this legal instrument can’t be enforced to rule investigative powers.
It is false that users are note informed about the retention. There is a law that set forth the duty, so the citizen are supposed to know about it (ignorantia legis non excusat.)
Again, the article and – I suppose – the EUCJ confuses fairly different things: GCHQ is intelligence and – as such – is well out of reach from the DP directive. Other public bodies have the right to perform their investigation to guarantee the respect of the law.
So, the actual problem is quis custodies ipsos custodies. In other words: I have no problem with an agency that accesses my data. But I do have the right to know in real time when it happens and why (or, if there is a secrecy issue, as soon as it is reasonable.)

Posted on

The Italian Supreme Court: name and surname only aren’t subjected to the Data Protection Act

The Corte di cassazione (Italian Supreme Court) decision n. 20615/16 narrows the definition of “personal data” under the Italian data-protection act that enforces the data-protection directive.

The merit of the decision is a legal action against a municipality accused of having published on its website the name and surname of an individual who sued the municipality.

While, the Court said, when mandatory by law the releasing of personal data is always allowed (and this was the case, since there is a law the bind a municipality to disclose its decisions, including those related to legal actions), the simple publication of a name and surname is not enough to make and individual actually identifiable.

Verbatim, the Court says:

the identification of the individuals… would have been possible only by way of further investigations, including third-parties database, with a disproportionate effort in terms of energy and money that is not justified by the interest to identify people involved in a trivial car accident.

This decision set forth a very important point because points out the fact that the “identifiability” notion of the directive is a relative one.

In other words, and enforcing the legal principle to the telco world, an IP number in itself is not necessary a personal data, unless “the identification of the individuals… would have been possible only by way of further investigations, including third-parties database, with a disproportionate effort in terms of energy and money that is not justified by the interest to identify people”.

Needless to sat, the Italian Data Protection Authority has always challenged this interpretation, trying to affirm an “absolute” notion of personal data, thus creating bureaucratic burdens end financial costs for the compliance.