Agreed. There is no legal certainty. "there is considerable flexibility
in the
application of the rules to the data..." simply means in each case we
must try and guess what the regulator : ICO - FTT - Court, will decide
is fair and proportionate. Sometimes it is reasonably predictable,
others it is not.
Phillip Bradshaw
Information Manager
Democratic Services
Room CY4A, County Hall
EMail: [log in to unmask]
Phone: 029 2087 3346
Mobile : 07890 265987
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Fax: 029 2087 3349
You're digging it round and it ought to be square
-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Andrew Cormack
Sent: 02 June 2010 13:12
To: [log in to unmask]
Subject: Re: [data-protection] Google has mapped every WiFi network in
Britain
Renzo
Thanks for confirming my impression.
I do find that every time I read that paper I add more and more question
marks to my think-bubble marked "legal certainty?????"
Cheers
Andrew
> -----Original Message-----
> From: Marchini, Renzo [mailto:[log in to unmask]]
> Sent: 02 June 2010 09:45
> To: Andrew Cormack; [log in to unmask]
> Subject: RE: Google has mapped every WiFi network in Britain
>
> @AndrewCormack
> "But if you combine the wide definition with the absolutist
> requirements in the Acts and regulator guidance (e.g. "encrypt all
> personal data on portable media") then you quickly get to a stage when
> it's impossible to comply with the Act. For example if the source
> addresses on IP packets are personal data, how can an ISP lawfully
send
> them to servers outside the EEA?"
>
> I agree. Indeed, in the Opinion you cite, the WP also say in arguing
> that there should be a wide definition that:
>
> "In those cases where a mechanistic application of every single
> provision of the Directive would at first sight lead to excessively
> burdensome or perhaps even absurd consequences, it must be first
> checked ..... whether the Directive itself or national legislation
> adopted pursuant to it do not allow for exemptions or simplifications
> with regard to particular situations in order to achieve an
appropriate
> legal response while ensuring the protection of the individual's
rights
> and of the interests at stake. It is a better option not to unduly
> restrict the interpretation of the definition of personal data but
> rather to note that there is considerable flexibility in the
> application of the rules to the data." (my emphasis)
>
> In other words, proportionate application of the rules. When I have
> spoken about this at conferences, I have made the point that this is
> incredibly disingenuous on the part of the WP. In relation to many
> aspects, it is black or white. If personal data, you must. If not
> personal data, you don't have to. Subject access requests, adequacy of
> transfers, and so on. (In fact, under the 8th principle, the UK - but
> no other member state I believe - does allow the sort of flexibility
> they are alluding to with the "self-assessment" approach - but that is
> another topic.
>
> Renzo Marchini
> Dechert LLP
> +44 (0) 20 7184 7563 direct
> +44 (0) 20 7184 7001 fax
> [log in to unmask]
> www.dechert.com
>
> -----Original Message-----
> From: Andrew Cormack [mailto:[log in to unmask]
> <mailto:[log in to unmask]> ]
> Sent: 02 June 2010 08:55
> To: Marchini, Renzo; [log in to unmask]
> Subject: RE: Google has mapped every WiFi network in Britain
>
> Some of the Art29WP's comments actually go further, and suggest that
> they think any identifer that permits recognition of the same
equipment
> is personal data, even if there is no possibility of linking it to a
> name or address. For example (from Opinion 4/2007):
>
> "At this point, it should be noted that, while identification through
> the name is the most common occurrence in practice, a name may itself
> not be necessary in all cases to identify an individual. This may
> happen when other "identifiers" are used to single someone out.
> Indeed, computerised files registering personal data usually assign a
> unique identifier to the persons registered, in order to avoid
> confusion between two persons in the file. Also on the Web, web
> traffic surveillance tools make it easy to identify the behaviour of a
> machine and, behind the machine, that of its user. Thus, the
> individual's personality is pieced together in order to attribute
> certain decisions to him or her. Without even enquiring about the name
> and address of
the
> individual it is possible to categorise this person on the basis of
> socio-economic, psychological, philosophical or other criteria and
> attribute certain decisions to him or her since the individual's
> contact point (a computer) no longer necessarily requires the
> disclosure of
his
> or her identity in the narrow sense. In other words, the possibility
of
> identifying an individual no longer necessarily means the ability to
> find out his or her name. The definition of personal data reflects
this
> fact."
>
> I can see why you might want a definition that wide, because some
> processing of those identifiers could lead to significant privacy
> breaches. But if you combine the wide definition with the absolutist
> requirements in the Acts and regulator guidance (e.g. "encrypt all
> personal data on portable media") then you quickly get to a stage when
> it's impossible to comply with the Act. For example if the source
> addresses on IP packets are personal data, how can an ISP lawfully
send
> them to servers outside the EEA?
>
> Andrew
>
> > -----Original Message-----
> > From: This list is for those interested in Data Protection issues
> > [mailto:[log in to unmask] <mailto:data-
> [log in to unmask]> ] On Behalf Of Marchini, Renzo
> > Sent: 01 June 2010 15:41
> > To: [log in to unmask]
> > Subject: Re: Google has mapped every WiFi network in Britain
> >
> > But if you think the statement "Ena Sharples lives in Coronation
> > Street" is personal data about that character, then "MAC 1234567890
> is
> > used in Coronation Street" may well be personal data about the
> > individual using that MAC number (if you buy Mr Hustinx's argument,
> of
> > course).
> >
> > So I think IP Addresses and Mac Numbers are the same. You don't
> need
> > to know (in the sense of name/address/passport number/tap an live
> > person on the shoulder)) who uses the IP/MAC to be processing
> personal
> > data.
> >
> >
> >
> >
> > Renzo Marchini
> > Dechert LLP
> > +44 (0) 20 7184 7563 direct
> > +44 (0) 20 7184 7001 fax
> > [log in to unmask]
> > www.dechert.com
> >
> > -----Original Message-----
> > From: This list is for those interested in Data Protection issues
> > [mailto:[log in to unmask] <mailto:data-
> [log in to unmask]> ] On Behalf Of Roland Perry
> > Sent: 01 June 2010 15:35
> > To: [log in to unmask]
> > Subject: Re: [data-protection] Google has mapped every WiFi network
> in
> > Britain
> >
> > In message
> > <[log in to unmask]>, at
> > 13:54:26 on Tue, 1 Jun 2010, "Griffiths, Ian"
> > <[log in to unmask]> writes
> >
> > >I think if one argues that IP is PD then the MAC being so would
also
> > >be the case. Particularly as the web logs which contain IP are
> > comparable
> > >to the war driving logs which Google now possesses.
> >
> > But most of the time the Streetcar can't tell which of the
> surrounding
> > houses contains each access point, nor do they have the details of
> the
> > owner of the AP.
> > --
> > Roland Perry
> >
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