This cartoon is about the GDPR’s lawful basis requirement to process personal data. One of the biggest differences between U.S. and EU privacy law is that in the U.S., organizations can collect and use personal data in nearly any way they choose as long as they state what they are doing in their privacy notice and follow what they say. In the EU, in contrast, the GDPR requires that organizations have a “lawful basis” to collect and process personal data. The GDPR specified six lawful bases, including consent, performance of a contract, compliance with a legal obligation, public interest, protect the vital interests of the data subject or other people, and legitimate interest in processing the data.
Many organizations use legitimate interest as their lawful basis.
Article 6(1)(f) of the GDPR provides:
1.Processing shall be lawful only if and to the extent that at least one of the following applies:
(f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.
(1) IP Addresses Can Somehow Escape from Being Personal Information
New text of the regulation:
§ 999.302. Guidance Regarding the Interpretation of CCPA Definitions
(a) Whether information is “personal information,” as that term is defined in Civil Code section 1798.140, subdivision (o), depends on whether the business maintains information in a manner that “identifies, relates to, describes, is reasonably capable of being associated with, or could be reasonably linked, directly or indirectly, with a particular consumer or household.” For example, if a business collects the IP addresses of visitors to its website but does not link the IP address to any particular consumer or household, and could not reasonably link the IP address with a particular consumer or household, then the IP address would not be “personal information.”
Ransomware has long been a scourge. Since at least 2012, ransomware has grown dramatically. Ransoms have increased — the average ransom payout is now more than $40,000. Organizations most hit are public sector, software services, professional services, and healthcare. Healthcare, in particular, is a soft target because of the need to get systems back and running quickly. According to a McAfee report, ransomware attacks more than doubled in 2019. An FBI warning from fall 2019 didn’t indicate an increase in the number of attacks but did show an increase in the targeting and severity of the attacks: “Ransomware attacks are becoming more targeted, sophisticated, and costly, even as the overall frequency of attacks remains consistent. Since early 2018, the incidence of broad, indiscriminant ransomware campaigns has sharply declined, but the losses from ransomware attacks have increased significantly, according to complaints received by IC3 and FBI case information.”
For a long time, a debate has raged about whether to pay the ransom. Some argue that the ransom should never be paid, but organizations facing the loss of their data might not have much of a choice. But if organizations back up their data, then they can they can avoid paying the ransoms and restore their data. But now there’s a new development in ransomware that is particularly troubling and that makes paying the ransoms a necessity even when data is backed up. Ransomware groups are now threatening to release an organization’s data online if the ransom isn’t paid.
This year, five law firms were hit with Maze Ransomware. Instead of just encrypting the data, the ransomware group exfiltrated it first and then posted a small amount of it online. The group threatened to post the remainder of the data online unless the ransom was paid. According to one article: “Recent reports have shown the hacking group behind Maze ransomware has been steadily posting the data of its victims online after the organizations fail to pay the ransom demand. A compiled list of victims shows the data of several healthcare organizations are included in those postings, despite a lack of public reporting of those incidents.”
For Data Privacy Day, here’s a cartoon about the history of privacy. A constant stream of articles and books proclaim that privacy is dead. But people have been saying that privacy is dead for quite some time. This is either the longest death scene in history, or privacy isn’t dying.