19 ms·

> But to claim "financial annihilation at the whim of a foreign government"?? That's just poor taste. Then let's say "financial annihilation at the discretion

> But to claim "financial annihilation at the whim of a foreign government"?? That's just poor taste. Then let's say "financial annihilation at the discretion of a foreign government"? I don't see how you can deny that the GDPR gives them that discretion, unconstrained by statute (though constrained by a judge's fuzzy standards of reasonableness). You're saying that they will use that discretion reasonably. You're probably right; but why do they need it in the first place? Like, why is 20M EUR the right number here? Why not 10M or 40M? Or are you sufficiently confident in your regulators' discretion that you don't think the numbers matter? That's great, but it's not the rule of law. I think two classes of business will block the EU: those with business models fundamentally incompatible with the GDPR (like unroll.me, I suspect), and those with compatible models that consider their EU business too small to justify the risk. I feel no sadness for the former, but the latter seems to me like real damage. It could easily have been avoided with proportionate fines. Why do you think they didn't do that?

hluska 8y ago
You're right about the 20M euros. I can't imagine where that number comes from and I don't like anything arbitrary about law. However, I still don't agree that foreign governments can operate unconstrained by statute. Again, I'll point you to article 83 of the GDPR. It starts off with some vague statement about how supervising authorities need to make sure that fines are effective, proportionate and dissuasive. That's bullshit, but if you read further, they add quite a bit more substance to the argument. I've just been linking to article 83, but it's likely worth quoting once in this thread. Part of it reads: --- When deciding whether to impose an administrative fine and deciding on the amount of the administrative fine in each individual case due regard shall be given to the following: (a) the nature, gravity and duration of the infringement taking into account the nature scope or purpose of the processing concerned as well as the number of data subjects affected and the level of damage suffered by them; (b) the intentional or negligent character of the infringement; (c) any action taken by the controller or processor to mitigate the damage suffered by data subjects; (d) the degree of responsibility of the controller or processor taking into account technical and organisational measures implemented by them pursuant to Articles 25 and 32; (e) any relevant previous infringements by the controller or processor; (f) the degree of cooperation with the supervisory authority, in order to remedy the infringement and mitigate the possible adverse effects of the infringement; (g) the categories of personal data affected by the infringement; (h) the manner in which the infringement became known to the supervisory authority, in particular whether, and if so to what extent, the controller or processor notified the infringement; (i) where measures referred to in Article 58(2) have previously been ordered against the controller or processor concerned with regard to the same subject-matter, compliance with those measures; (j) adherence to approved codes of conduct pursuant to Article 40 or approved certification mechanisms pursuant to Article 42; and (k) any other aggravating or mitigating factor applicable to the circumstances of the case, such as financial benefits gained, or losses avoided, directly or indirectly, from the infringement. (source - http://www.privacy-regulation.eu/en/article-83-general-conditions-for-imposing-administrative-fines-GDPR.htm http://www.privacy-regulation.eu/en/article-83-general-condi...) --- Also, consider that GDPR isn't a huge change over existing EU privacy legislation. The scariest change in GDPR is that it gives the European Union tools to force non-European companies to comply. While that is scary, if a non-European company has been showing a good faith effort to comply with existing EU privacy protections, they shouldn't have much to fear unless something fucked up happens. To summarize my position, if a company is already complying with EU privacy law, they don't have much to fear. If a company is not complying with EU privacy law, they have a problem, but seeing as how the first draft of GDPR came out almost six years ago I don't feel particularly bad for them. And finally, if a company was found not to be in compliance, it would be hard to justify the maximum fines if they were showing a good faith effort to become compliant. The wildcard here would be what would happen if a popular company suffered a massive data breach. Consider for example, the time that LinkedIn accidentally lost a whole bunch of unhashed passwords. On one hand, that's a massive breach, LinkedIn did a very poor job as data stewards and it's a perfect opportunity for a maximum fine. On the other hand, what would be the political ramifications? And where would liability flow?
- tripletao 8y ago
  I think most Americans (including me) would still put Article 83 in the "fuzzy standards of reasonableness" category. I agree that it probably works in practice, but I wouldn't see it as much of a constraint. Like, how closely would you expect the rulings of two independent judges each assessing a fine according to these guidelines to match? I wouldn't bet with even odds that they'd be closer than within a factor of ten. (Fines in typical situations would probably agree better, if there's precedent to follow; but that's the precedent working, not the statute, and in a situation like your LinkedIn breach there is likely no close precedent.) That level of unpredictability doesn't seem like law to me. Also: Doesn't the extraterritoriality bother you? There are roughly 200 countries in the world. Do you really want to argue that each of them can impose a burden on a website operated outside its borders, just because its people might happen to visit it? That seems like an incredibly dangerous precedent to me. Can the UK enforce a super-injunction against all websites available to its nationals? What's the difference between the GDPR and that super-injunction? It can't just be that "one is good and the other bad"--what law determines that?
  - oldcynic 8y ago
    > two independent judges each assessing a fine As I understand it the penalty is assessed and levied by the regulator. Just like DPA penalties where the number of people receiving any fine at all has been minuscule. The proportionality of instances where fines have been given seems good. I think most EU citizens would feel too few, and too low fines have been the norm. > That level of unpredictability doesn't seem like law to me That is how most UK and EU law has worked for, well, forever. Most offences have a maximum penalty yet it is the US that regularly makes headlines for extreme penalties or length of incarceration. Plenty of people get small fines in the hundreds, or just a caution, or their business gets a letter for offences that have fines running far into the thousands. Talking of extraterritoriality, doesn't that also apply, along with the burden to 200 nations you criticise, to the US DMCA for sites with user content?
    - tripletao 8y ago
      I said "judges" because I understand them to be the final authority, since the regulator's number can be appealed. If that's wrong, then substitute whatever party does make the final decision. My question isn't whether the fines are frequent or high enough. It's whether they're predictable enough--whether the law is described in enough detail that two people interpreting it independently would reach something close to the same number given the same facts. I don't think it is. (Do you?) The usual answer is "but don't worry, the people interpreting it make good decisions". I think that's probably true; but when the maximum penalty is indeed financial annihilation, that doesn't seem too comforting. The USA has indeed pushed the extraterritorial limits. I think that's bad, and I don't see how it makes the EU's reach any better. And to emphasize, my concern isn't the burden to ~200 nations--it's the burden from ~200 nations. Should the UK be able to enforce that super-injunction? If not, why not? Iran, a prohibition on the Satanic Diaries?

hluska 8y ago

You're right about the 20M euros. I can't imagine where that number comes from and I don't like anything arbitrary about law. However, I still don't agree that foreign governments can operate unconstrained by statute. Again, I'll point you to article 83 of the GDPR. It starts off with some vague statement about how supervising authorities need to make sure that fines are effective, proportionate and dissuasive. That's bullshit, but if you read further, they add quite a bit more substance to the argument. I've just been linking to article 83, but it's likely worth quoting once in this thread. Part of it reads: --- When deciding whether to impose an administrative fine and deciding on the amount of the administrative fine in each individual case due regard shall be given to the following: (a) the nature, gravity and duration of the infringement taking into account the nature scope or purpose of the processing concerned as well as the number of data subjects affected and the level of damage suffered by them; (b) the intentional or negligent character of the infringement; (c) any action taken by the controller or processor to mitigate the damage suffered by data subjects; (d) the degree of responsibility of the controller or processor taking into account technical and organisational measures implemented by them pursuant to Articles 25 and 32; (e) any relevant previous infringements by the controller or processor; (f) the degree of cooperation with the supervisory authority, in order to remedy the infringement and mitigate the possible adverse effects of the infringement; (g) the categories of personal data affected by the infringement; (h) the manner in which the infringement became known to the supervisory authority, in particular whether, and if so to what extent, the controller or processor notified the infringement; (i) where measures referred to in Article 58(2) have previously been ordered against the controller or processor concerned with regard to the same subject-matter, compliance with those measures; (j) adherence to approved codes of conduct pursuant to Article 40 or approved certification mechanisms pursuant to Article 42; and (k) any other aggravating or mitigating factor applicable to the circumstances of the case, such as financial benefits gained, or losses avoided, directly or indirectly, from the infringement. (source - http://www.privacy-regulation.eu/en/article-83-general-conditions-for-imposing-administrative-fines-GDPR.htm http://www.privacy-regulation.eu/en/article-83-general-condi...) --- Also, consider that GDPR isn't a huge change over existing EU privacy legislation. The scariest change in GDPR is that it gives the European Union tools to force non-European companies to comply. While that is scary, if a non-European company has been showing a good faith effort to comply with existing EU privacy protections, they shouldn't have much to fear unless something fucked up happens. To summarize my position, if a company is already complying with EU privacy law, they don't have much to fear. If a company is not complying with EU privacy law, they have a problem, but seeing as how the first draft of GDPR came out almost six years ago I don't feel particularly bad for them. And finally, if a company was found not to be in compliance, it would be hard to justify the maximum fines if they were showing a good faith effort to become compliant. The wildcard here would be what would happen if a popular company suffered a massive data breach. Consider for example, the time that LinkedIn accidentally lost a whole bunch of unhashed passwords. On one hand, that's a massive breach, LinkedIn did a very poor job as data stewards and it's a perfect opportunity for a maximum fine. On the other hand, what would be the political ramifications? And where would liability flow?

tripletao 8y ago
I think most Americans (including me) would still put Article 83 in the "fuzzy standards of reasonableness" category. I agree that it probably works in practice, but I wouldn't see it as much of a constraint. Like, how closely would you expect the rulings of two independent judges each assessing a fine according to these guidelines to match? I wouldn't bet with even odds that they'd be closer than within a factor of ten. (Fines in typical situations would probably agree better, if there's precedent to follow; but that's the precedent working, not the statute, and in a situation like your LinkedIn breach there is likely no close precedent.) That level of unpredictability doesn't seem like law to me. Also: Doesn't the extraterritoriality bother you? There are roughly 200 countries in the world. Do you really want to argue that each of them can impose a burden on a website operated outside its borders, just because its people might happen to visit it? That seems like an incredibly dangerous precedent to me. Can the UK enforce a super-injunction against all websites available to its nationals? What's the difference between the GDPR and that super-injunction? It can't just be that "one is good and the other bad"--what law determines that?
- oldcynic 8y ago
  > two independent judges each assessing a fine As I understand it the penalty is assessed and levied by the regulator. Just like DPA penalties where the number of people receiving any fine at all has been minuscule. The proportionality of instances where fines have been given seems good. I think most EU citizens would feel too few, and too low fines have been the norm. > That level of unpredictability doesn't seem like law to me That is how most UK and EU law has worked for, well, forever. Most offences have a maximum penalty yet it is the US that regularly makes headlines for extreme penalties or length of incarceration. Plenty of people get small fines in the hundreds, or just a caution, or their business gets a letter for offences that have fines running far into the thousands. Talking of extraterritoriality, doesn't that also apply, along with the burden to 200 nations you criticise, to the US DMCA for sites with user content?
  - tripletao 8y ago
    I said "judges" because I understand them to be the final authority, since the regulator's number can be appealed. If that's wrong, then substitute whatever party does make the final decision. My question isn't whether the fines are frequent or high enough. It's whether they're predictable enough--whether the law is described in enough detail that two people interpreting it independently would reach something close to the same number given the same facts. I don't think it is. (Do you?) The usual answer is "but don't worry, the people interpreting it make good decisions". I think that's probably true; but when the maximum penalty is indeed financial annihilation, that doesn't seem too comforting. The USA has indeed pushed the extraterritorial limits. I think that's bad, and I don't see how it makes the EU's reach any better. And to emphasize, my concern isn't the burden to ~200 nations--it's the burden from ~200 nations. Should the UK be able to enforce that super-injunction? If not, why not? Iran, a prohibition on the Satanic Diaries?