Does GDPR apply to location data collected by apps? I've just been reading this article in the New York Times which expounds on the business practices of mobile apps which collect your location data and use it/sell it. The article gives examples of apps which give a vague/misleading message on the permissions screen ("you'll get personalised weather data"), but which actually sell the data to tens of different companies. As far as I'm aware (which isn't very far), the data processor only has the right to use the data for a purpose which you have agreed to. So are apps which do this in violation of GDPR? (Or, would they be if they do it in Europe?) One thing to note is that the apps usually associate the data with a unique ID assigned to the device rather than your name or phone number, for example. However, it's well-known (and shown in the article) how it is usually trivial to tie back "anonymised" data to individuals. How does this use of a unique ID affect the GDPR situation?
Yes, this violates the GDPR if the user is in Europe. Data which is tied to a personal device can be tied to the person who owns it. From "What Is Personal Data" by the UK Information Commissioner's Office (ICO) (emphasis added): Personal data is information that relates to an identified or identifiable individual. What identifies an individual could be as simple as a name or a number or could include other identifiers such as an IP address or a cookie identifier, or other factors. If it is possible to identify an individual directly from the information you are processing, then that information may be personal data. If you cannot directly identify an individual from that information, then you need to consider whether the individual is still identifiable. You should take into account the information you are processing together with all the means reasonably likely to be used by either you or any other person to identify that individual. The bit about "all means reasonably likely" in the last bullet includes the kind of de-anonymisation tactics described in the NYT article. There are 6 lawful bases for data processing in the GDPR, and all processing must fall under at least one of them. (a) Consent: the individual has given clear consent for you to process their personal data for a specific purpose. (b) Contract: the processing is necessary for a contract you have with the individual, or because they have asked you to take specific steps before entering into a contract. (c) Legal obligation: the processing is necessary for you to comply with the law (not including contractual obligations). (d) Vital interests: the processing is necessary to protect someone’s life. (e) Public task: the processing is necessary for you to perform a task in the public interest or for your official functions, and the task or function has a clear basis in law. (f) Legitimate interests: the processing is necessary for your legitimate interests or the legitimate interests of a third party, unless there is a good reason to protect the individual’s personal data which overrides those legitimate interests. (This cannot apply if you are a public authority processing data to perform your official tasks.) Selling data isn't covered by any of the others, so consent must be obtained. Permission must be clear and positive, and you cannot predicate delivery of a service on the processing of data that isn't necessary for that service. So for instance you cannot say "You can use this service as long as we are allowed to collect and sell your data" because selling the data isn't necessary to the provision of the service. From "Consent" by the ICO: Consent requires a positive opt-in. Don’t use pre-ticked boxes or any other method of default consent. Explicit consent requires a very clear and specific statement of consent. Keep your consent requests separate from other terms and conditions. Be specific and ‘granular’ so that you get separate consent for separate things. Vague or blanket consent is not enough. [...] Avoid making consent to processing a precondition of a service. This applies to any processing of data about individuals within the EU, so just being an American company doesn't get you a free pass to ignore the GDPR if your app gets used by Europeans. The "Legitimate interests" basis is more problematic, in that the company collecting the data has to conduct a vague "balancing test" to determine if this basis applies. For direct marketing the ICO has written this, which says that direct marketing may be a legitimate interest, especially if you can show that the user has expressed interest in such adverts. For instance a location service which promises to tell you about nearby special offers would fall into this category. Against this, the impact on the user's privacy has to be considered, and location data is "special category data" because it can reveal medical information (e.g. hospital attendance) or religious affiliation (e.g. which church you go to). So unless the relationship between the recorded location data and the service is very direct its not going to pass the balancing test. The company would also need to distinguish between knowing the current location and keeping a record of historical locations; the two need separate justification. And of course nothing about this covers the sale of the data; this is considering a company which sells advertising space in it's app, not one that sells the data itself.
TL;DR In theory there's nothing wrong with your method, it's just a way to authenticate the user, and without authentication a user has no right to request anything anyway. But in practice it looks like your method doesn't have a way to deal with situations where users lose or forget their authentication data and want to be able to recover their account. Failing to deal with that in a modern system might be considered an unacceptable bad practice and so be against the GDPR principles of security and privacy by design. EXTENDED VERSION I might be wrong or not understand the question correctly, but I don't see how this is different from many other common cases where encryption is not involved. Think about it, you aren't able to give the user their own personal data unless they provide the ID and encryption keys. How is this significantly different from the fact you aren't able to (or rather you should not) show a user their own data unless they provide their own username and password, or they convincingly authenticate themselves in any way? Just like you can't ask Facebook to show you all the data collected about Donald Trump only by claiming you are Donald Trump, you can't be required to give a user their own data unless they provide the encryption key. It can be seen as your way to authenticate users (among other things). Edited: multiple IDs/keys I didn't understand your method involved multiple IDs and keys. In theory, the situation is still the same, only with multiple pieces of data for authentication, like the user had to remember multiple usernames and passwords. Failing to provide all IDs and all keys will result in a partial authentication. But with such an approach a potential problem becomes more evident: your authentication scheme might be against the GDPR principles of "security and privacy by design and by default". Basically, your methods might be considered bad practice because they fail to deal with the common issue of lost or forgotten passwords. If a user tells you they have lost a USB drive containing all their IDs and keys and they don't have them anymore, what do you do? You can't delete their data because you aren't able to know what their data is, without another way of authenticating. And their data is now at risk, because somebody else might have their IDs and keys. If you had an email address associated with all the user's IDs and data, then you might be able to confirm their identity (for example sending an email with a link) and delete all their data. As you see, things can get pretty complicated, it all depends on the details of your implementation, and just adding or removing one detail might change the whole scenario.
Can you anonymise people It is valid to anonymise the data of people, instead of deleting all of the records. The principles of data protection should apply to any information concerning an identified or identifiable natural person. Personal data which have undergone pseudonymisation, which could be attributed to a natural person by the use of additional information should be considered to be information on an identifiable natural person. To determine whether a natural person is identifiable, account should be taken of all the means reasonably likely to be used, such as singling out, either by the controller or by another person to identify the natural person directly or indirectly. To ascertain whether means are reasonably likely to be used to identify the natural person, account should be taken of all objective factors, such as the costs of and the amount of time required for identification, taking into consideration the available technology at the time of the processing and technological developments. The principles of data protection should therefore not apply to anonymous information, namely information which does not relate to an identified or identifiable natural person or to personal data rendered anonymous in such a manner that the data subject is not or no longer identifiable. This Regulation does not therefore concern the processing of such anonymous information, including for statistical or research purposes. Source As long as the person is not identifiable, then you do not need to treat the data as personal under the GDPR. You do have to inform a person once they are no longer identifiable, and be able to identify them if they provide the missing information: If the purposes for which a controller processes personal data do not or do no longer require the identification of a data subject by the controller, the controller shall not be obliged to maintain, acquire or process additional information in order to identify the data subject for the sole purpose of complying with this Regulation. Where, in cases referred to in paragraph 1 of this Article, the controller is able to demonstrate that it is not in a position to identify the data subject, the controller shall inform the data subject accordingly, if possible. In such cases, Articles 15 to 20 shall not apply except where the data subject, for the purpose of exercising his or her rights under those articles, provides additional information enabling his or her identification. Source The articles covered by this are: 15 - Right of Access 16 - Right to rectification 17 - Right to erasure 18 - Right to restrict processing 19 - Right to be informed 20 - Right to data portability
The GDPR has a fairly broad concept of what it means for a data subject to be identifiable. The details are given in Recital 26: To determine whether a natural person is identifiable, account should be taken of all the means reasonably likely to be used, such as singling out, either by the controller or by another person to identify the natural person directly or indirectly. To ascertain whether means are reasonably likely to be used to identify the natural person, account should be taken of all objective factors, such as the costs of and the amount of time required for identification, taking into consideration the available technology at the time of the processing and technological developments. The good news is that this mandates a risk-based approach to identifiability. You don't have to prevent re-identification with absolute certainty, but you must make sure that re-identification is not “reasonably likely”. The bad news is that “identify” does not just mean “figuring out the real-world identity of the data subject”, but also “being able to single out the data subject”. Hashes of personal data are still personal data. The hashed password still allows you to single out data subject, since the hash now serves as an identifier that links multiple records. Equivalently, a random ID would serve as an identifier. Depending on the information in the linked records, this could reasonably likely also allow linking to a real-world identity. I'll also point out that the GDPR explicitly notes that “online identifiers … such as internet protocol addresses, cookie identifiers or other identifiers” enable profiling and identification, and are thus a kind of personal data. Note that it seems you have a user database that includes a password hash. This database includes rich links between the password hash and other, more directly identifying, data. Alternatively, consider that the software that collects tracking information along with this tracking identifier would also receive other information about the data subject that could allow re-identification, such as the data subject's current IP address. It would be reasonably likely that such additional information could be used to identify or single out the data subject. For this analysis, it is irrelevant whether you have any intention of singling out users – it only matters whether, under an objective analysis, the relevant means to do so exist. Related: EDPB thinks hashed phone numbers are personal data. There has been recent debate by regulatory bodies on the question whether hashed phone numbers are personal data. This debate was published by the EDPB binding decision regarding the Irish DPC's fine against WhatsApp, which uses hashed telephone numbers to intersect user's address books. The question in the context of the fine was whether this represents processing of personal data of users who are not WhatsApp users themselves. Originally, the Irish DPC argued that such hashes were not personal data. However, the German, French, Portuguese, and Dutch supervisory authorities pointed out that the specific hashing approach used by WhatsApp does not provide anonymization, for example because there still is contextual information (such as the user's social graph) that would allow indirect identification (and because their hashing was pretty weak and reversible with reasonable effort). Such hashing would only be pseudonymization, not anonymization. The Hungarian supervisory authority makes the argument that WhatsApp could always re-create the hash from the original data, thus permitting re-identification of the hash. This is in line with my above argument that the hash allows singling out. Again, the hash should be considered pseudonymous, not anonymous. The EDPB upheld all these objections against the Irish interpretation as “relevant and reasoned”, and largely agreed with their merits. Some parts of the resulting analysis are specific to issues around phone numbers, in particular that there are comparatively few phone numbers. However, a recurring point is that the hashed data cannot be viewed in isolation. It must be viewed in the context of how it is created and used, and in the context of other data that the data controller has. Conclusion It is possible that in some cases the hash could serve as an anonymous token. But this would require careful analysis about how the hash is created and used, and about what other data you have available and could potentially link or correlate with this token. Unless you are extremely sure that there are no means that could be reasonably likely used to perform re-identification or singling out, you should consider such tokens to be pseudonymous data. Pseudonymization is a great security measure, but such data is still personal data. I suggest reading the WP29 opinion 05/2014 on Anonymization Techniques (WP216) (PDF link). It predates the GDPR and is slightly outdated in both legal and technical matters, but still contains highly relevant guidance on the matter of proper anonymization in the European data protection context. Aside from identifiability issues, I am concerned about using the password (or derived hashes) for anything other than authentication. Even in hashed form, this is fairly sensitive data. In most cases where you would use a password hash, you can likely use a random number instead.
If you merely provide software for your client to use, you are not processing personal data on behalf of the client. But if you have access to systems that store personal data, then you must consider the GDPR. Or more accurately: your client must consider the GDPR. Under what legal basis can they give you access to the data in these systems? The easiest way to solve this is indeed if you act as the client's processor. Processor status is never the default, but requires a binding contract with the data controller. This contract will require you to only process personal data as explicitly instructed by the client, and may require you to take certain security measures as a precaution. Without such a contract you aren't a data processor, but possibly a data controller of your own (with all the compliance obligations that implies).
Term 1 isn't going to hold up, but that is not a GDPR matter. It's just a matter of basic consumer protection law in the EU. You can't offload responsibility for your mistakes. Looking at 2, Dale M. already pointer out that it's now how the GDPR works. You are the Data Controller. X,Y and Z are Data Processors. Article 28(1) of the GDPR is in direct conflict with your disclaimer. You accept zero responsibility, the GDPR says you are fully responsible. That's the exact opposite.
I think this shows a misunderstanding of the meaning of the GDPR. A data subject has the right to demand information, correction, deletion etc. about some of their data held by some institutions, depending on the legal basis for the data processing. One John Smith does not have the right to see the data of any other data subject named John Smith, and he cannot even demand to know if there are other John Smiths in the database. The data controller has to make reasonable steps to ensure that an individual who seeks account information is in fact the individual who is the data subject. In the case of an email, that's usually easy -- if John Smith can access the mail account jsmith@sample.org, one can assume that he is the John Smith who opened the account. If not, then not. If the data controller has the birthplace and birthdate in their records, they can possibly match that against some government-issue identity document, too, but why would they have that data?
Per Art 3(2), GDPR only applies to non-European companies when their processing activities relate to the offering of goods or services to people in Europe, or when the processing activities relate to monitoring people in Europe. However, the word “offer” of this targeting criterion requires some level of intent. It is not enough for GDPR to apply that they're marketing to someone who happens to be in Europe, but GDPR would apply if they are intentionally marketing to people who are in Europe. I don't know what they are marketing, so I don't know if that would be the case here. Even if GDPR were to apply, it would not be the most appropriate law. Yes, there's the GDPR right to erasure, which applies under some conditions (though there's a pretty absolute right to opt-out from marketing). The EU's ePrivacy Directive provides more specific rules though, in particular that every such marketing email must offer a way to unsubscribe. Other countries have comparable anti-spam laws, potentially also the home country for this online service.