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Operational Security //

Compliance

2/16/2018
09:30 AM
Joe Stanganelli
Joe Stanganelli
News Analysis-Security Now
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GDPR Territorial Scope: Location, Location, Location?

Disagreement over Article 3, Section 2, of the GDPR rules has left the realm of data-privacy practice in confusion as to who is protected and under what circumstances.

Citizens, residents or mere visitors? Who is protected under the European Union's General Data Protection Regulation? These are perhaps the most controversial questions of GDPR interpretation among data-protection practitioners.

The thing that has made GDPR so big and scary -- aside from the potential for unprecedentedly massive fines -- is its broad reach. Specifically, the idea that the EU has effectively promulgated its way into being the world data police.

Obviously, GDPR applies to (1) data controllers and data processors sufficiently established within the EU or other areas where the EU has reach by way of international law, and (2) non-EU data controllers and data processors if they are targeting EU citizens within the EU.

However, what non-EU data processors and data controllers are targeting EU citizens located anywhere?

Or what if they are targeting EU residents regardless of citizenship? Or if they are targeting people just visiting or passing through the EU?

Or some combination of the above?

It depends who you ask.

In the EU
More specifically (and with apologies to former President Bill Clinton), it depends what the meaning of the word "in" is.

Under Article 3, Section 2, of the Regulation, GDPR reaches data controllers and data processors who are not established in the EU when they process "personal data of data subjects who are in the Union" -- where the processing of that data relates to "the offering of goods or services... to such data subjects in the Union" and/or tracking their behavior to the extent it "takes place within the Union."

Note the key phrase that keeps cropping up: "in the Union."

"[T]here are lots of uncertainties as to what [GDPR's territorial scope] is and should be," Michèle Finck, a research fellow at the Max Planck Institute, told Security Now. "Most people seem to agree that the relevant criterion is whether you're based in the EU at the moment data is collected -- citizen or not."

For organizations based outside of the EU, this conclusion has some devastating logical consequences.

Imagine a US tourist riding on the Autobahn accesses their favorite US website on their smartphone -- and the US website, recognizing the device, proceeds to use cookies, trackers, and metadata to keep tabs on the US tourist's subsequent activity throughout their European excursion across Germany and other EU member states. That would tend to implicate GDPR under this plain-meaning construction.

Assuming that that construction is right. The EU's own website about GDPR expressly states that GDPR was formulated, in part, "to protect and empower all EU 'citizens' data privacy" (emphasis mine). At the same time, the website FAQ goes on to explicitly announce that GDPR "applies to all companies processing and holding the personal data of data subjects residing in the European Union, regardless of the company's location."

So is data-subject residency required for Article 3, Section 2, applicability? Is citizenship?

Residency & citizenship
"Non-EU citizens, regardless of where they were when the data was collected, are not under the jurisdiction of the DPAs," or EU Data Protection Authorities, Denver attorney Calli Schroeder told Security Now. "When it comes to GDPR, it's pretty unlikely [non-EU] citizens will have standing to bring action at any point, unless -- possibly -- they are expats living on a semi-permanent basis in the EU. Even then, it's not certain. The individual DPAs who will be enforcing the action are unlikely to take on defending rights of non-EU citizens."

Still, many pundits, arguing that non-EU citizens even ephemerally in the EU are protected in their data from non-EU data processing, point to Recital 14 of GDPR -- which states that data-protection rules should apply "whatever the nationality or residence of natural persons." This interpretation, however, is expressly contemplated in GDPR provisions concerning data processors and data controllers established in EU-controlled territory.

Article 3, section 2, however, arguably remains ambiguous.

Nonetheless, citizenship- and residency-specific interpretations present their own practical enforcement problems. Finck argues that it is "clear" that EU citizenship and residency are GDPR red herrings because of the untenable compliance position the attendant interpretations would put data processors and data controllers in -- compelling the collection of additional protected data on these factors, driving organizations further down the GDPR rabbit hole.

"There are a few perfectly valid interpretations out there," noted Schroeder. "[GDPR] is so massive, and… so broadly-worded, that no one can be really sure how the DPAs will interpret the minutiae of it until they start applying it in May."

On this point, at least, GDPR pundits can agree.

Related posts:

— Joe Stanganelli, principal of Beacon Hill Law, is a Boston-based attorney, corporate-communications and data-privacy consultant, writer and speaker. Follow him on Twitter at @JoeStanganelli.

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