47 ms·

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

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?
  - oldcynic 8y ago
    > It's whether they're predictable enough I'm used to the law going easy for a first offence, or an accidental breach. Occasionally we have separated offences (murder and manslaughter for example), but most of the time there's just a maximum that is reserved for the most wilful, or repeat or extreme cases. No one has ever been bankrupted by our unlimited fine for cannabis possession (most get a caution or trivial fine). Apart from anything else means are assessed before any fine is levied. If you're on minimum wage a £100 fine is going to hurt rather more than to a millionaire. So means are assessed first to try and remain proportionate. So how is it done in the US? I only have what I've gleaned from the media. Does the judge or regulator enforcing really have no discretion of penalty or always seek the maximum? I find it very difficult to believe that the entire range of penalties and when they apply are spelt out in every law and judges or regulators have no discretion or common sense. Movie "experience" seems to indicate a lot more horse trading goes on. Do our legal systems diverge so much that US citizens completely distrust theirs to do anything but bankrupt them for minutiae whilst we remain certain they can and will be proportionate? > ...extraterritorial limits. I think that's bad, and I don't see how it makes the EU's reach any better I'm somewhat uncomfortable with some of the global precedents myself. On the other hand I'm not sure how it is avoided in a world that is so globalised and so many internet services have essentially ignored EU privacy and data protection. So what's the alternative? We're not enthusiastic to adopt the US model of privacy and many internet services aren't even paying lip service to our (too) limited protections. How else to fix it? EU wide Facebook blocks seem like a fine way to start a trade war!
hluska 8y ago
Thanks for engaging with me. This has been a fun thread! > I think most Americans (including me) would still put Article 83 in the "fuzzy standards of reasonableness" category Is it valid to say that you're not wrong, but I disagree? :) I agree that article 83 will be hard to interpret if people act in bad faith. But, it provides a good framework for how to act in good faith. I would argue that if you genuinely care about your users and their data, you'll likely be okay unless something fucked up happens. And when something fucked up happens, as long as you're transparent, respectful and helpful, you'll still likely be okay unless something really fucked up happens. And then, you'll have bigger things to worry about anyways, so fuck the GDPR. :) > 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 completely agree with you. Unfortunately, vast parts of the American/Canadian justice systems would also fail this test. > Also: Doesn't the extraterritoriality bother you? It sure does. The extraterritoriality is first class bullshit. But, if current European data protection laws are any guide, it will mostly be used as a tool to gently encourage compliance and actual punishments will be very rare.
- tripletao 8y ago
  I appreciate the chance to get (what I presume is) a European perspective on this. I think Americans are just generally less trustful of government, domestic or foreign, and therefore less trustful of regulatory discretion. There are vague American laws too, like "honest services fraud"; but 1. We complain about those too. 2. The dangers of extraterritoriality and vagueness seem synergistic. A major check on regulators' discretion is political will, and screwing foreigners tends to be a lot more popular than screwing your own citizens. The ideal tax is one on foreigners living abroad... I think the GDPR will probably be fine, and have net positive effects even as it pushes small, essentially-compliant but risk-averse operators out of the EU. I find its legal basis troubling.
  - hluska 8y ago
    Actually, I'm Canadian and I don't consider myself very trusting of government. I've always seen the EU as a natural place for my startups, so I've made a point of learning as much about EU economic policy as I can. At first, I found the glut of it to be incredibly scary, but then I was lucky to have a series of European roommates when I was in business school. One time, I was afraid of some anti-corruption laws because it seemed like basic parts of doing business here would result in severe penalties there. My roommate at the time thought I was being certifiably insane, because the EU just doesn't work like that. He couldn't imagine what transgression I could possibly commit to warrant more than a strongly worded letter (on better stationery than I'd get from the Canadian government). From there, I started learning more about how open the EU is. I mentioned this in another comment, but I'll also encourage you to read about the International Procurement Instrument. The EU (like many other economic bodies) has trouble with non-EU companies bidding on EU public contracts and winning because the playing fields just aren't level. I don't want to give too much of the story away, but as you read about the IPI meandering its way through European politics, you can see an EU bending over backwards to make sure that foreign companies have open access to EU markets. If you read about the IPI with North American eyes, it seems absolutely bizarre. But it's a good primer to the EU's difficulty with protectionism. I'm from western Canada and seriouslu, if the Canadian government felt this way about protectionism, I could get a western independent movement off the ground in a matter of months...not that I would or would even want to, but it would be so egregiously opposite how we do things that radicalism would ensue. Sorry for droning on and on, but I don't think I can really debate you. I agree with you and everything you're saying is logical. My only response is that Europe is so incredibly different and that response is honestly starting to wear thin. Besides, I'm being a shitty entrepreneur. The more people are afraid of GDPR, the more opportunity I'll get!! :) (I've enjoyed this talk with you. Thanks for engaging with me!)

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?
- oldcynic 8y ago
  > It's whether they're predictable enough I'm used to the law going easy for a first offence, or an accidental breach. Occasionally we have separated offences (murder and manslaughter for example), but most of the time there's just a maximum that is reserved for the most wilful, or repeat or extreme cases. No one has ever been bankrupted by our unlimited fine for cannabis possession (most get a caution or trivial fine). Apart from anything else means are assessed before any fine is levied. If you're on minimum wage a £100 fine is going to hurt rather more than to a millionaire. So means are assessed first to try and remain proportionate. So how is it done in the US? I only have what I've gleaned from the media. Does the judge or regulator enforcing really have no discretion of penalty or always seek the maximum? I find it very difficult to believe that the entire range of penalties and when they apply are spelt out in every law and judges or regulators have no discretion or common sense. Movie "experience" seems to indicate a lot more horse trading goes on. Do our legal systems diverge so much that US citizens completely distrust theirs to do anything but bankrupt them for minutiae whilst we remain certain they can and will be proportionate? > ...extraterritorial limits. I think that's bad, and I don't see how it makes the EU's reach any better I'm somewhat uncomfortable with some of the global precedents myself. On the other hand I'm not sure how it is avoided in a world that is so globalised and so many internet services have essentially ignored EU privacy and data protection. So what's the alternative? We're not enthusiastic to adopt the US model of privacy and many internet services aren't even paying lip service to our (too) limited protections. How else to fix it? EU wide Facebook blocks seem like a fine way to start a trade war!

hluska 8y ago

Thanks for engaging with me. This has been a fun thread! > I think most Americans (including me) would still put Article 83 in the "fuzzy standards of reasonableness" category Is it valid to say that you're not wrong, but I disagree? :) I agree that article 83 will be hard to interpret if people act in bad faith. But, it provides a good framework for how to act in good faith. I would argue that if you genuinely care about your users and their data, you'll likely be okay unless something fucked up happens. And when something fucked up happens, as long as you're transparent, respectful and helpful, you'll still likely be okay unless something really fucked up happens. And then, you'll have bigger things to worry about anyways, so fuck the GDPR. :) > 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 completely agree with you. Unfortunately, vast parts of the American/Canadian justice systems would also fail this test. > Also: Doesn't the extraterritoriality bother you? It sure does. The extraterritoriality is first class bullshit. But, if current European data protection laws are any guide, it will mostly be used as a tool to gently encourage compliance and actual punishments will be very rare.

tripletao 8y ago
I appreciate the chance to get (what I presume is) a European perspective on this. I think Americans are just generally less trustful of government, domestic or foreign, and therefore less trustful of regulatory discretion. There are vague American laws too, like "honest services fraud"; but 1. We complain about those too. 2. The dangers of extraterritoriality and vagueness seem synergistic. A major check on regulators' discretion is political will, and screwing foreigners tends to be a lot more popular than screwing your own citizens. The ideal tax is one on foreigners living abroad... I think the GDPR will probably be fine, and have net positive effects even as it pushes small, essentially-compliant but risk-averse operators out of the EU. I find its legal basis troubling.
- hluska 8y ago
  Actually, I'm Canadian and I don't consider myself very trusting of government. I've always seen the EU as a natural place for my startups, so I've made a point of learning as much about EU economic policy as I can. At first, I found the glut of it to be incredibly scary, but then I was lucky to have a series of European roommates when I was in business school. One time, I was afraid of some anti-corruption laws because it seemed like basic parts of doing business here would result in severe penalties there. My roommate at the time thought I was being certifiably insane, because the EU just doesn't work like that. He couldn't imagine what transgression I could possibly commit to warrant more than a strongly worded letter (on better stationery than I'd get from the Canadian government). From there, I started learning more about how open the EU is. I mentioned this in another comment, but I'll also encourage you to read about the International Procurement Instrument. The EU (like many other economic bodies) has trouble with non-EU companies bidding on EU public contracts and winning because the playing fields just aren't level. I don't want to give too much of the story away, but as you read about the IPI meandering its way through European politics, you can see an EU bending over backwards to make sure that foreign companies have open access to EU markets. If you read about the IPI with North American eyes, it seems absolutely bizarre. But it's a good primer to the EU's difficulty with protectionism. I'm from western Canada and seriouslu, if the Canadian government felt this way about protectionism, I could get a western independent movement off the ground in a matter of months...not that I would or would even want to, but it would be so egregiously opposite how we do things that radicalism would ensue. Sorry for droning on and on, but I don't think I can really debate you. I agree with you and everything you're saying is logical. My only response is that Europe is so incredibly different and that response is honestly starting to wear thin. Besides, I'm being a shitty entrepreneur. The more people are afraid of GDPR, the more opportunity I'll get!! :) (I've enjoyed this talk with you. Thanks for engaging with me!)