GDPR - am I a data controller as an app owner if I do not have access to the data? Let's assume that I created a mobile app for iPhone that is tracking rides on a bike so that means the app is collecting GPS coordinates of the phone and later this mobile app shows some statistics about that. Also let's assume that the application keeps this gps data locally on the mobile phone only. So the app is processing that data in the way I programmed it but I as a person do not have access to that data. I assume in such case I am not the data controller according to GDPR because I do not have access to that data is that correct? What if additionally to that I will program my app for example in such way that it will sometimes send current GPS coordinate to an online service controlled by external company such as Apple in order to transform GPS coordinate to a name of a street and city so that app can display street/city name to the user (reverse geocoding service). But still my app would send this data directly to Apple server so I will still not have any access to that data. Does this change anything and does GDPR now apply to me? Am I becoming data controller in such case if I have no idea when the app sends that GPS coordinate data to Apple and I do not know what coordinates it sends? I also do not know if Apple save this request on their servers or if they just automatically convert received gps coordinates to a name and return the answer without saving the request. I guess probably they do not save it but I can't be sure as I have no access to Apple service code. Or perhaps Apple is the data controller in such case or nobody is the data controller and GDPR does not apply at all?
Let's assume that I created a mobile app for iPhone that is tracking rides on a bike [...] So the app is processing that data in the way I programmed it but I as a person do not have access to that data. I assume in such case I am not the data controller according to GDPR because I do not have access to that data is that correct? Yes, as far as I can see that is correct. The GDPR defines a data controller as someone who "determines the purposes and means of the processing of personal data" - you just provide a tool, you don't control for what purposes your customers use their ride data. This is also discussed in this question: How does the GDPR apply to software developed by one company and used by another? What if additionally to that I will program my app for example in such way that it will sometimes send current GPS coordinate to an online service controlled by external company such as Apple [...] But still my app would send this data directly to Apple server so I will still not have any access to that data. Does this change anything and does GDPR now apply to me? Yes, and yes. In that case, you are telling Apple to process data for you, so you would become the data controller (because you "determine[s] the purposes and means of the processing of personal data"), and Apple is a data processor for you. That means also the usual mechanisms kick in - you need to inform your users about this processing, you need to make sure Apple plays by the rules, etc. etc. I also do not know if Apple save this request on their servers or if they just automatically convert received gps coordinates to a name and return the answer without saving the request. This is exactly the kind of situation the GDPR is meant to address. Under GDPR, saying "I do not know what X does with the data" is not an option. This is something many companies tried in the past, that is why GDPR explicitly assigns responsibility to the data controller (i.e., you). As explained in a EU document, What is a data controller or a data processor?: The duties of the processor towards the controller must be specified in a contract or another legal act. For example, the contract must indicate what happens to the personal data once the contract is terminated. A typical activity of processors is offering IT solutions, including cloud storage. [...] So, no, you cannot just say "I do not know if Apple saves this request". Instead, you must make a contract with Apple which says whether (and how, and for how long...) they save the request, and you must inform your users about this in your privacy policy. And if Apple refuse to make such a contract with you, you must find a different company to work with.
It is not different. But one company can decide to approach compliance differently from another. Here, TomTom has chosen a fairly safe/conservative interpretation, whereas Google and Apple decided that more data collection is appropriate. A “find my device” style functionality appears to be entirely unproblematic if the user books that particular service (regardless of whether the service is paid or gratis) and provides consent for the location data collection. The legal basis for such a service could then be Art 6(1)(a) consent or Art 6(1)(b) necessity for performance of a contract to which the data subject is party. Personally, I believe that Google is not sufficiently transparent about how Find My Device works, but that TomTom could provide a compliant service if they wanted to. That TomTom doesn't offer this service primarily shows that they don't think developing this service is worth it. Wiping a remote device is unrelated to this issue and doesn't seem to provide GDPR challenges. At least in a business context, remote wiping may be an appropriate security measure and may then even be mandated by the GDPR (e.g. see Art 24 or Art 32).
If the GDPR applies, then the e-privacy directive (EPD) (formally Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002) almost surely also applies. However, this being a directive rather than a regulation, the implement6ing laws may vary in different countries. The relevant provision is Article 5 paragraph (3) which reads: Member States shall ensure that the use of electronic communications networks to store information or to gain access to information stored in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned is provided with clear and comprehensive information in accordance with Directive 95/46/EC, inter alia [among others] about the purposes of the processing, and is offered the right to refuse such processing by the data controller. This shall not prevent any technical storage or access for the sole purpose of carrying out or facilitating the transmission of a communication over an electronic communications network, or as strictly necessary in order to provide an information society service explicitly requested by the subscriber or user. This governs cookies and any other local data, that is, data stored on or read from the user's equipment. What this means is: A site operator must disclose, in detail, what cookies or other local data the site stores on or reads from the user's device. Even strictly required data (cookies) must be disclosed. A site may not store or read any local data until after consent has been obtained. The user must have the option to consent to or refuse consent to individual data items separately. Giving consent may not be a condition of permission to use the site. Consent must be opt-in, not opt-out, that is the default must be &quot;No consent&quot;. Local data (including cookies) that is &quot;strictly necessary&quot; for the operation of the site is exempt from the requirement of consent, but not from the requirement of disclosure, and that means specific disclosure. It must be at least as easy to cancel consent later as it was to give consent initially. Do my Stripe cookies count as essential cookies? If the Stripe cookies count as essential, is it legal to provide no option to turn them off? Have I met my legal requirements in terms of disclosure? The terms and conditions and privacy policy were generated by Termly. I don't know stripe well enough to be sure, but they might. What do they do that is essential for operating the site? Yes. No, not if the disclosures in the question are the only ones you make. As I understand it, you must provide at least a link to a page that shows each specific cookie that you read or set, and what data is stored in that cookie, even for strictly required cookies. Update: I should mention t6hat although the above describes my understanding of the current legal requirements, I have read that enforcement of those requirements does not seem to be a priority for the relevant authorities at this time. Other aspects of data protection, such as proper security to avoid data breaches, and having a proper legal basis for processing, and other GDPR requirements, as opposed to e-Privacy requirements, seem to get more attention and resources from the relevant authorities. Having read the comment by the OP, it does seem that at least some of the stripe cookies are strictly required and need not have consent. The stripe cookie policy linked to is better than many sites currently offer. It does not go into fully specific detail, but it may be that the dashboard does, and that together the two are fully compliant. Linking to this policy (and if possible directly to the stripe cookie dashboard) would seem to me to cover most of the issues here.
The law of each country where you offer the app for download applies, and you have to consider: Privacy Policy (GDPR in EU, CCPA in California, APPI in Japan, LGPD in Brasil, and more - check each country to be on the safe side) Disclaimer versus AGB/Terms and Conditions (e.g. Germany), not required but recommended Impressum (Germany, Switzerland, Austria) Value Added Tax (VAT) which is taken care of e.g. by Google Play for most countries but not all (e.g. not for Japan) in case the app is not free Consumer Protection Law - applicable (and different) everywhere There might be more, but these are the important ones I am aware of.
You are responsible for any processing of data that happens under your control – but are you the data controller in this scenario? Since you have no meaningful influence over whether or not this backup happens on the operating system level, there could be a strong argument that you aren't a data controller for these backups. And if you aren't a data controller for that processing activity, you aren't responsible for compliance. However, if you were to integrate directly with relevant Google APIs in order to facilitate backups that could make you a controller. Then, Google would either have to be your data processor (won't be the case here), or you would need a legal basis for sharing the user's data with Google. For example, you could ask for the user's consent before activating such features.
In the question, you write: The GDPR requires consent of the subject for collection or storage of personal data (in this case, IP addresses in a log file). No, it does not. To quote Miss Infogeek: GDPR DOES NOT MAKE CONSENT A MANDATORY REQUIREMENT FOR ALL PROCESSING OF PERSONAL DATA. Consent (Article 6 (1)a) is indeed one of conditions that can be used to comply with the GDPR requirement that processing must be lawful, but it is not the only condition available to the controller to ensure lawful processing &ndash; there are alternatives (before the list of conditions it says that "at least one of the following" must be satisfied). All the conditions for lawfulness of processing are spelled out in Article 6 of the GDPR. One of alternatives are Article 6 (1)f. It says says it is legal to process personal data if 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. (my emphasis) As noted in the question, logging IP addresses for the purpose of security is an extremely widespread practice. It is a legitimate interest to comply with standard security practices. It is the default, and most (all?) web-sites do this. I.e. it is legal to do this without consent (if this is not the case, I am pretty sure the outcry had been heard all over the Internet by now).
Not Allowed Under the GDPR The suggested method does not seem to comply with the GDPR, and would not be lawful for a Data Controller that is subject to the GDPR. Specific Provisions Let's consider some specific provisions of the GDPR: Article 4 Article 4 paragraph (11) states: &quot;consent&quot; of the data subject means any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her; If the choice is &quot;obscure&quot; then it is not clear, and legal consent has not been given. Article 7 Article 7 paragraph 3 reads: The data subject shall have the right to withdraw his or her consent at any time. The withdrawal of consent shall not affect the lawfulness of processing based on consent before its withdrawal. Prior to giving consent, the data subject shall be informed thereof. It shall be as easy to withdraw as to give consent. It does not appear in the situation described that the data subject has been clearly informed that consent is being given. Recital 42 Recital 42 reads in relevant part: In accordance with Council Directive 93/13/EEC a declaration of consent pre-formulated by the controller should be provided in an intelligible and easily accessible form, using clear and plain language and it should not contain unfair terms. ... Consent should not be regarded as freely given if the data subject has no genuine or free choice or is unable to refuse or withdraw consent without detriment. The specified means do not seem to comply with R42 Recital 32 Recital 32 reads: Consent should be given by a clear affirmative act establishing a freely given, specific, informed and unambiguous indication of the data subject’s agreement to the processing of personal data relating to him or her, such as by a written statement, including by electronic means, or an oral statement. This could include ticking a box when visiting an internet website, choosing technical settings for information society services or another statement or conduct which clearly indicates in this context the data subject’s acceptance of the proposed processing of his or her personal data. Silence, pre-ticked boxes or inactivity should not therefore constitute consent. ... If the data subject’s consent is to be given following a request by electronic means, the request must be clear, concise and not unnecessarily disruptive to the use of the service for which it is provided. The format in the question seems to rely on inactivity as a way of giving consent, and is surely not clear.
In short, no. Article 20 of the GDPR covers the “Right to data portability”, which essentially says two main things: The data subject had the right to an exported copy of their personal data in a common format And The data subject has the right to have this data transmitted directly from one controller to another where technically feasible. Neither of these rights as stated in the GDPR require the data controller to provide a button to initiate either a data export or a transfer to another controller.