> GDPR is so vague and open ended that there's no way they can ever be compliant
This is nonsense. I really don't see what's so difficult to understand. Personal information is information to which the person can be identified.
This is nonsense. I really don't see what's so difficult to understand. Personal information is information to which the person can be identified.
For example, additional restrictions are in place for “large scale” processing of personal information, yet “large scale” is never defined. Is that hundreds, thousands or millions of records?
As the owner of a very small SaaS business (that does not sell personal information of its users) I found it tremendously difficult to figure out how to comply given the vagueness of it all.
I don't know if the EU has a contactperson to whom you can ask these questions, if they do, you can simply ask them to clarify. If you've done that, you're in the clear because you've put in the effort to comply.
But yeah in this case they should just give you a number.
lol of course there isn't an office you can ring to help you with this! If there were we wouldn't be spending quite so much effort working out what it all means.
> If there were we wouldn't be spending quite so much effort working out what it all means
People love drama.
Firstly, no, your national regulators cannot give you binding answers about GDPR. This is one thing the EU Commission has been clear on. They can advise, but their advice has no more weight than this Hacker News thread does - the EU is not required to care about what national regulators said and they have no special powers to interpret the law. Only the EU gets to decide what GDPR means, and they have said explicitly they will not answer questions about it. The only time answers finally come is during legal actions.
Secondly, no, people do not "love drama" in the business context, far from it. Maybe you should consider that your own interpretation of the problem is the issue rather than other people just causing drama for the sake of it.
Hundreds or thousands not, millions definitely yes, somewhere in the middle you get to draw a line which to me is an indication that the closer you get to those millions the more you'll have to work and then those additional restrictions kick in.
There are companies that store billions of profiles (Google, Facebook), and for those the 'large scale' moniker is a no-brainer. If you're a small company that stores a few hundred to a few tens of thousands of records because you are doing direct business with those people then that would most likely still qualify as small. But from 100K and up I'd make sure the house was in order, not just because of the GDPR but because you are becoming a nice, fat & juicy target for miscreants as well.
That way one law will allow banks, insurance companies, hospitals and a mid-sized e-commerce company all to figure out for themselves what their comfort zone is, add a little room for safety and you're most likely going to be good, and even if not you can point at the law and say 'it wasn't explicit', so unless you are purposefully mis-interpreting a few million records as 'small scale' you will likely get away with that. Note the 'likely', this isn't a certainty but in my experience to date everybody that is fear mongering about the GDPR is coming up with the wildest of scenarios rather than to just look at the law as if it was intended well (which I really believe it is).
Bringing up the "parade of horribles" is a standard way of reacting to regulations, and it's normally countered by the regulators just pointing out that the horribles rely on really tortured interpretations that aren't intended. With the GDPR, that hasn't been the response (which has instead been a double-down on "it's just common sense" without confirming or refuting what will happen)--for me, that's some cause for concern.
We'll see what happens after may 25th but for now I'm really hopeful that we will finally see some counterbalance to all this ridiculous profile building for marketing purposes.
Does that include email addresses and IP addresses? If so, that means things like using email addresses to log in for comments or logging IP addresses for traffic analysis causes all sorts of GDPR to kick in. As the OP points out, this means that things like the EU's own websites are in violation of the GDPR.
Actually, it doesn't. There are plenty of valid reasons to collect those things. Collecting them to track your users and to spam them to death are not on that list.
Proving this can be expensive and is risky. Who knows what any individual judge in any EU country will decide is "reasonable"?
Companies can easily be destroyed by filing multiple charges against them. Guilt, innocence, or reasonableness doesn't come into it: the process is the punishment.
Look at Amanda Knox (Americans tend to think she's innocent, Brits tend to think she's guilty) - after appeals the Italian Justice System found her not guilty of the murder of her roommate. She still spent almost four years in prison in her early twenties and had to spend a huge amount of money on lawyers to arrive at this result. Just because you eventually get what you see as the right result doesn't mean you won't go through hell to get there.
A major reason why Americans are having such a big problem with GDPR is because the EU system appears to change its interpretations and decisions abruptly, with retrospective effect. You set up companies in certain jurisdictions thanks to their tax rates and how transactions are treated. You follow every aspect of national and EU law. These arrangements are widely known, are accepted as legitimate practice, and they continue for decades. The EU commissioners change - suddenly your corporate arrangements are wildly illegal and you are subject to penalties and back taxes stretching over a decade.
If staff changes and they say that they will interpret a rule differently going forward, you can adjust your behavior to comply. New legislation, sure abide by it. But when the rules change and your behavior 15 years ago is now viewed to be illegal you can't do anything. Retroactivity is accepted in Europe but it is explicitly unconstitutional in the US. It's a major reason why the US is not currently part of the UK.
So the GDPR is terrifying because of the massive discretion granted to judges and prosecutors in every EU country and their habit for changing their interpretations. On its face it's not too threatening, but the fines are massive, there are no hard rules, and you can't be sure that today's interpretation will be tomorrow's.
Facebook and Google will manage - they can write billion dollar checks and get the US government to protect them. Many of us can be completely wiped out by a $20MM fine. Just a court case would be existentially threatening in terms of the resources it requires and its impact on fundraising and gaining customers.
And bringing up some unrelated (murder!) case has no effect at all than to point out that justice systems aren't perfect, they are not expected to be perfect and we have lots of evidence to that effect already. That's a totally different discussion.
The EU itself is hyping up how fearsome this law is to win approval from their citizens and politicians. As well as to strongly encourage firms to take this change seriously.
But I am at fault for taking the EU seriously rather than being blase. I am fearmongering for trying to explain why businesspeople who are not in the EU are afraid of its actions and are afraid of a brand new law that grants a huge amount of discretion to prosecutors and judges.
What I know is that the EU can capriciously change its mind and go after the biggest companies for billions of dollars. I know that I don't have the resources to prove my innocence in a foreign country. I don't even have the resources to understand the charges against me, since legal translation is expensive and I could be faced with actions in any or all of the languages of the EU. If I get a package of documents in Estonian or Bulgarian I won't even know that I'm facing charges!
Claiming universal jurisdiction against every company in the world with a reverse onus of proof is a dangerous and malevolent tactic. Because it's your local government that you have confidence in, you're comfortable with it. I doubt that you would be so blase about a similar approach by the US or Japan.
That presumption is probably roughly in line with what I've seen in my daily practice over the last decade or so. Some to minor degrees, some in major ways. But overall, very very few companies take the privacy of their customers so serious that they would make choose for their users privacy if ther was a buck to be made, of the top of my head over the last 75 or so companies I looked at two would check that box.
> That storing IP addresses can be construed as illegal.
What's so surprising about that? You see a whole pile of lawsuits that - erroneously - hinge on IP addresses being PII (Copyright lawsuits) and at the same time you expect the law to treat IP addresses as through they are not PII? That simply won't fly. So yes, IP addresses are - in many places - seen as PII.
> That everyone is liable for a fine of $20MM for any mistake, innocent or malevolent.
Bullshit.
> The EU itself is hyping up how fearsome this law is to win approval from their citizens and politicians.
Where have they done so? All I've seen to date is some pretty dispassionate pieces and the text of the law itself.
> As well as to strongly encourage firms to take this change seriously.
Yes, you should take it seriously. Of course you should, it is the law.
> But I am at fault for taking the EU seriously rather than being blase.
No, you're at fault by drawing this out of proportion, just like you are doing in this comment.
> I am fearmongering for trying to explain why businesspeople who are not in the EU are afraid of its actions and are afraid of a brand new law that grants a huge amount of discretion to prosecutors and judges.
Your fearmongering is to exaggerate, to focus on the edge cases rather than on the bulk and then to start assuming that all cases are edge cases. They're not. The bulk of the businesses will be just fine. Those that chose to creatively interpret the law to see how far they can push things will hopefully find out that the EU actually means business.
By your reasoning we never should make new laws to deal with changing conditions. The EU tried a gentle approach aka the cookie law, companies tried hard to work their way around the law rather than to stop tracking users every which way they could so now you get this.
Self regulation -> mild regulation -> strong regulation+
(+ you are here now).
> What I know is that the EU can capriciously change its mind and go after the biggest companies for billions of dollars.
Capriciously? I have not seen the EU act capriciously yet. I've seen them act too slow and too late.
> I know that I don't have the resources to prove my innocence in a foreign country.
Poor you. Well, then better not to commit any crimes. That's a pretty good protection against having to defend yourself, stay well clear of that bright line.
> I don't even have the resources to understand the charges against me, since legal translation is expensive and I could be faced with actions in any or all of the languages of the EU.
More bullshit, the law is written in English and if you want to go so far as to take something to court - which I would highly advise against, it is much easier to comply with the law - you will find that the EU courts are set up to deal in English just fine. Lucky you, as opposed to say someone from Latin America, China or Outer Mongolia who does not speak or write English.
> If I get a package of documents in Estonian or Bulgarian I won't even know that I'm facing charges!
The chances of that happening are nil. Really, could you please stop the fearmongering, it does not serve any purpose.
> Claiming universal jurisdiction against every company in the world with a reverse onus of proof is a dangerous and malevolent tactic.
As opposed to what the US does? See: David Carruthers.
> Because it's your local government that you have confidence in, you're comfortable with it.
Yep.
> I doubt that you would be so blase about a similar approach by the US or Japan.
If the US or Japan has laws that apply to my situation I will take great care to comply with them. One such law (the DMCA) has caused me a lot of work over the years and I see this as a cost of doing business. If you don't want to comply with the law then you are taking your chances. Similar to speeding or deciding to kill someone: it's not what you can get away with that determines what is legal or not and if you are caught breaking the law you can expect trouble. So better don't break the law.
All you need to be able to do though is say what you're using the information for. If that is "To allow you to log in to your account" and "Your IP and page requests are logged and kept for 2 weeks to for traffic analysis and troubleshooting" you're good to go - just say that on the sign-up form[1]. If you want add the email address to a mail list too you need to add an opt-in consent checkbox and a bit more information on what the checkbox agrees to.
If you want to pass along the information (indirectly, I know) to Google Analytics for example then you have to mention that too, and don't load the GA snippets until the user has accepted that
You also need a way to tell a user what data you have on them and delete the data where appropriate if the user requests it. You do not need to automate this process, chances are you'll never get either of those requests. Do Things That Don't Scale[2] applies when it comes to the user's ability to request info/deletion
It's just another cost of doing business like if you want to take card payments don't store the card number without getting PCI compliant. Don't store user info without getting GDPR compliant.
This whole thing is good for all of us as users of sites and software too
[1] Actually for a signup form you don't need to say you're using the information to sign them in, that's "unambiguous consent", as long as you're not doing anything but registering them and signing them in you can avoid clogging up your form with that information
As with all things GDPR you can of course try to skirt the rules but you're risking the 20mil fine if you don't get it absolutely spot on