Comment by tzs | Hacker News Reader

Comment by tzs | Hacker News Reader

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> This is particularly concerning given that GDPR specifically requires member states, in enforcing GDPR, allow exceptions for journalism and documents/data "in the public interest."

That may not apply, because of the clever (evil too, but also clever) way they are doing this.

If they were asking as data subjects where the data came from (which data subjects have a right to under Article 15 1(g)), then journalism and public interest exceptions should apply.

But that's not what they are doing. They aren't coming in as data subjects asking about the data held on them. They are coming in as an Article 51 supervisory authority in charge monitoring GDPR in their country. They are claiming to be doing the tasks Article 57 assigns to the supervisory authority, and exercising the powers Article 58 gives them for that.

Presumably, someone who the journalists wrote about alleged that the journalists were not complying with GDPR in how they obtained and used the data.

And so now the supervisory authority is investigating that. Article 58 gives them power "to obtain, from the controller and the processor, access to all personal data and to all information necessary for the performance of its tasks". They can probably argue that in order to decide if a journalism or public interest exception applies, they have to know where the data came from and how it was obtained.

Assuming things are as corrupt as people have claimed, I'd expect they will go in, and if they obtain the information on the sources, they will rule that a journalism or public interest exception applies, and dismiss whatever sham GDPR complaint they had someone file to set this off.

> Presumably, someone who the journalists wrote about alleged that the journalists were not complying with GDPR in how they obtained and used the data.

That somebody is the chief of the ruling party, Liviu Dragnea, president of one houses of parliament, who almost got to be named prime minister if not for an earlier conviction for electoral fraud.

He was now found guilty in a second unrelated criminal probe, and is appealing the sentence while at the same time trying to steer the legislative process and pressure his own party to decriminalize a large swath of offenses pertaining to his case, namely abuse of public office.

The journalists have recovered a large trove of damaging documents that are related to yet another criminal case (3rd, if you're counting) in which he is being investigated.

The head of the data protection agency is a former colleague from the same party and is herself under criminal investigation for fraud. Yeah, so these are the watchers.

This is really interesting, too because of the decentralized implementation/enforcement.

Compare Romania's one sentence implementation of the journalism exception (translated by the EU website so perhaps not the best):

>In order to ensure a balance between the right to the protection of personal data, freedom of expression and the right to information, processing for journalistic purposes or for the purpose of academic, artistic or literary expression, it may be carried out if it concerns personal data which have been made manifestly publicly disclosed by the data subject or closely related to the public personality of the person concerned or the public nature of the facts in which he is involved

With the U.K.'s implementation of that same exception [at Part 5]: http://www.legislation.gov.uk/ukpga/2018/12/schedule/2

The EU court will slap this down.

Your post makes it sound as if, no matter how corrupt this is, their demand is within the letter of the law.

If so, that is a pretty nasty unintended consequence.

That's exactly what he's saying.

Usual thing with these laws, within the letter of the law but not within the spirit of it.

They write laws with ink not ectoplasm.

Quis custodiet ipsos custodes?

When cheering on such laws, we should always ask ourselves whether we're cheering on the intent or the practical/potential effect. When viewed in the latter context, one might instead cheer on a much smaller, incremental approach towards such legislation (if at all).

No legislation (really, 'no additional legislation' - we're not starting from zero, nor is anarchy desirable) has as much consequence and is not qualitatively different than a little or a lot of legislation; there are downsides and unintended consequences to every option. There is still political and economic power to be had and which is exercised. The question is, do we want that power to be controlled democratically or to be arbitrarily exercised by the most powerful?

The latter is often appropriate; people should be free to do what they want unless others are affected significantly. But when it comes to privacy and freedom of speech, I don't think so.

Laws should have some kind of escape clauses that kick in should unintended consequences start dominating the impact.

and what is "unintended"? Who gets to decide if a certain use of a law is unintended?

Laws are often intentionally pretty vague so that courts get to decide.

How about the polity?

> no additional legislation [...] has as much consequence and is not qualitatively different than a little or a lot of legislation

This cannot be generalized and is different depending upon the circumstance. In this case, I wholeheartedly disagree.

The difference is that the consequences of no new legislation are known (from experience), while the consequences of new legislation can be estimated, but with complex and far-reaching laws the practical effect is usually very different, with numerous unintended corner cases that can get very nasty. The problem is that politicians (and people in general) usually ignore that, and present it as a choice between how things work today, and how they think things will work once the law passes.

If we took into account the uncertainty properly, I think the balance would look very different, and many laws wouldn't pass simply because no-one would be able to vouch for the actual effects.

>there are downsides and unintended consequences to every option

Even so, there are not the same "downsides and unintended consequence" to every option, nor they have the same impact for every option chosen.

So, this is not some "6 of one, half a dozen of the other" case.

>The question is, do we want that power to be controlled democratically or to be arbitrarily exercised by the most powerful?

Whatever we want, in practice, and for pragmatic reasons, we usually get just a mix of both. So it makes sense to have laws that don't give so much possibility for arbitrary execution, or don't give too much power when arbitrary executed.

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