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If you're embedding a JS library from a CDN, then you have a lawful basis for passing the IP address of your user to a third party under Art. 6(1)(f). But if y

If you're embedding a JS library from a CDN, then you have a lawful basis for passing the IP address of your user to a third party under Art. 6(1)(f). But if you're embedding a JS library from a CDN, then as a matter of fact, you aren't passing any data about your user to the third party at all. The user's browser is doing that as part of its normal operation. Moreover, as another matter of fact, you cannot have either any knowledge or any control over what happens next regarding any personal data the third party is collecting or how it is being processed, unless you have some separate arrangement with the third party that goes well beyond mere linking or embedding. Logically, it doesn't seem to make much sense for you to be either the controller or the processor in that instance. However, if the third party plays either role, they may have no mechanism to communicate with your site visitor to fulfil their obligations either.

michaelbuckbee 8y ago
You're still the controller b/c you control the website they landed on. Presumably the user was trying to interact with you (as the website) and you get to say what does or does not go on to it. It really all does revolve around control: as the website owner you can't control their ISP, Browser, VPNusage, etc. but you could trivially change your site from using Google Analytics to using a different system (or disable it altogether).
- Silhouette 8y ago
  You're still the controller b/c you control the website they landed on. But the regulations don't say anything about websites. Being a controller is about whether you determine the purposes and means of processing (even if someone else is then doing that processing). Merely embedding third party content on your site doesn't even give you knowledge of that processing, never mind any control over it. Now, if you have a formal agreement with some other service that they will process personal data for some purpose and you will embed something in your page that gives them access to that data, obviously in that situation you're acting as controller. But huge amounts of the embedding that happens in the real world don't have those formal arrangements, and if you say no-one can ever embed anything any more without formal legal agreements to protect themselves, you break a large part of the modern web both technically and culturally. I don't think that was the intent of the new regulations, nor do I think it is a reasonable thing to do.
_o_ 8y ago
You don't understand it. It is your site, your users. If you enable 3rd party illegal tracking of your users by ANY means, it is your responsability too. To cover your back, you need to sign a legally valid contract (or they need to send you conformation) that they respect GDPR and assess their way of doing it (at least in this early stages, as very often, they are just trying to workaround it, which puts you in danger) to be absolutely sure about them. Analyitics, ad providers, CDNs, SaaS... all of them. Take it as, "I control the door to a bank vault, if I allow robbers in, I will be a complice to a crime as the crime couldn't be commited without your help". Negligence or direct intent, it can be costly. Assess your 3rd party sources very carefully, I have already removed GA and replaced them with local analytics (https://matomo.org/ https://matomo.org/) as I can't trust them, they are trying to downplay GDPR and there is already a complaint written against them (https://noyb.eu https://noyb.eu not for GA though), and I have read the PDFs, they are right and quite objectively, they are guilty. I dont want to be in a same boat with them.
- Silhouette 8y ago
  That is one possible interpretation, but like many things around the GDPR, it is not what the regulation literally says nor how the technology actually works in practice, so other reasonable interpretations are also possible. I am asking whether there is any official, authoritative guidance on this.
  - _o_ 8y ago
    Look, GDPR is not about technical means, it is about a concept. If the ICO proves to you that you are conceptually violating the GDPR by enabling 3rd party to violate it and you don't have your back covered, you wont have much to defend you with. You need to have a proof that you have done everything in your power to defend your users right to privacy and you were cheated by 3rd party. This is why all the fuss about GDPR was in last 6 months, you can't downplay the concept as it isnt saying anything what "script" or "service" (or cookies as an ultimate abuse of "concept of law" and an example why GDPR was written this way) you can use or not, it is just talking about user right to privacy and for you as data contoller, it is your duty to defend it. Yes there is a guidance, it is called GDPR, it is THE only guidance, just take the concepts, I can give you this link, it is the best I was able to find, it will help understand the GDPR, but for each and every site, owner needs to decide on its own: https://www.youtube.com/watch?v=-stjktAu-7k https://www.youtube.com/watch?v=-stjktAu-7k
jdietrich 8y ago
The law doesn't care how a browser works. The law doesn't care that it's the browser making the HTTP request. The law doesn't care if the JS library is delivered by pixies travelling through the ether on rainbows. You put the embed in that page, so you're responsible for what happens next. You acted (intentionally or negligently) to cause the user's browser to make a HTTP request to a third party, which might cause their personal data to be unlawfully processed. You're not absolutely and totally responsible for anything that might possibly happen under any circumstances, but you're required to implement appropriate technical and organisational measures to ensure and to be able to demonstrate that processing is performed in accordance with this Regulation (Art. 24). If you embed a JS library from Google Cloud CDN and compile a written risk assessment with copies of Google's privacy policy for that product and their EU-US Privacy Shield and ISO 27018 certifications, you're probably fine no matter what happens. If you embed a JS library from SuspiciousCDN.ru because someone on 4chan gave you the link and your user data ends up on WikiLeaks, you're going to have some serious explaining to do.
- Silhouette 8y ago
  But as I've already noted in other comments, this heavy-handed interpretation breaks a large part of the modern web, including many common practices that are in visitors' interests and not doing anything shady at all. Expecting every instance of embedding on the entire web, even among freely available pages using freely available services, to go full lawyer not just initially but on an ongoing basis, simply isn't a reasonable approach to take. An interpretation that puts significant extra liability on those freely offered sites and services regardless of whether they are intentionally doing anything shady is how you get extreme reactions like people geoblocking the EU.
  - jdietrich 8y ago
    If you're fine with running untrusted third-party code on your website, that's your prerogative. The European Union will shed no tears if you choose geoblocking over responsible business practices.
    - 8y ago

michaelbuckbee 8y ago

You're still the controller b/c you control the website they landed on. Presumably the user was trying to interact with you (as the website) and you get to say what does or does not go on to it. It really all does revolve around control: as the website owner you can't control their ISP, Browser, VPNusage, etc. but you could trivially change your site from using Google Analytics to using a different system (or disable it altogether).

Silhouette 8y ago
You're still the controller b/c you control the website they landed on. But the regulations don't say anything about websites. Being a controller is about whether you determine the purposes and means of processing (even if someone else is then doing that processing). Merely embedding third party content on your site doesn't even give you knowledge of that processing, never mind any control over it. Now, if you have a formal agreement with some other service that they will process personal data for some purpose and you will embed something in your page that gives them access to that data, obviously in that situation you're acting as controller. But huge amounts of the embedding that happens in the real world don't have those formal arrangements, and if you say no-one can ever embed anything any more without formal legal agreements to protect themselves, you break a large part of the modern web both technically and culturally. I don't think that was the intent of the new regulations, nor do I think it is a reasonable thing to do.

_o_ 8y ago

You don't understand it. It is your site, your users. If you enable 3rd party illegal tracking of your users by ANY means, it is your responsability too. To cover your back, you need to sign a legally valid contract (or they need to send you conformation) that they respect GDPR and assess their way of doing it (at least in this early stages, as very often, they are just trying to workaround it, which puts you in danger) to be absolutely sure about them. Analyitics, ad providers, CDNs, SaaS... all of them. Take it as, "I control the door to a bank vault, if I allow robbers in, I will be a complice to a crime as the crime couldn't be commited without your help". Negligence or direct intent, it can be costly. Assess your 3rd party sources very carefully, I have already removed GA and replaced them with local analytics (https://matomo.org/ https://matomo.org/) as I can't trust them, they are trying to downplay GDPR and there is already a complaint written against them (https://noyb.eu https://noyb.eu not for GA though), and I have read the PDFs, they are right and quite objectively, they are guilty. I dont want to be in a same boat with them.

Silhouette 8y ago
That is one possible interpretation, but like many things around the GDPR, it is not what the regulation literally says nor how the technology actually works in practice, so other reasonable interpretations are also possible. I am asking whether there is any official, authoritative guidance on this.
- _o_ 8y ago
  Look, GDPR is not about technical means, it is about a concept. If the ICO proves to you that you are conceptually violating the GDPR by enabling 3rd party to violate it and you don't have your back covered, you wont have much to defend you with. You need to have a proof that you have done everything in your power to defend your users right to privacy and you were cheated by 3rd party. This is why all the fuss about GDPR was in last 6 months, you can't downplay the concept as it isnt saying anything what "script" or "service" (or cookies as an ultimate abuse of "concept of law" and an example why GDPR was written this way) you can use or not, it is just talking about user right to privacy and for you as data contoller, it is your duty to defend it. Yes there is a guidance, it is called GDPR, it is THE only guidance, just take the concepts, I can give you this link, it is the best I was able to find, it will help understand the GDPR, but for each and every site, owner needs to decide on its own: https://www.youtube.com/watch?v=-stjktAu-7k https://www.youtube.com/watch?v=-stjktAu-7k

jdietrich 8y ago

The law doesn't care how a browser works. The law doesn't care that it's the browser making the HTTP request. The law doesn't care if the JS library is delivered by pixies travelling through the ether on rainbows. You put the embed in that page, so you're responsible for what happens next. You acted (intentionally or negligently) to cause the user's browser to make a HTTP request to a third party, which might cause their personal data to be unlawfully processed. You're not absolutely and totally responsible for anything that might possibly happen under any circumstances, but you're required to implement appropriate technical and organisational measures to ensure and to be able to demonstrate that processing is performed in accordance with this Regulation (Art. 24). If you embed a JS library from Google Cloud CDN and compile a written risk assessment with copies of Google's privacy policy for that product and their EU-US Privacy Shield and ISO 27018 certifications, you're probably fine no matter what happens. If you embed a JS library from SuspiciousCDN.ru because someone on 4chan gave you the link and your user data ends up on WikiLeaks, you're going to have some serious explaining to do.

Silhouette 8y ago
But as I've already noted in other comments, this heavy-handed interpretation breaks a large part of the modern web, including many common practices that are in visitors' interests and not doing anything shady at all. Expecting every instance of embedding on the entire web, even among freely available pages using freely available services, to go full lawyer not just initially but on an ongoing basis, simply isn't a reasonable approach to take. An interpretation that puts significant extra liability on those freely offered sites and services regardless of whether they are intentionally doing anything shady is how you get extreme reactions like people geoblocking the EU.
- jdietrich 8y ago
  If you're fine with running untrusted third-party code on your website, that's your prerogative. The European Union will shed no tears if you choose geoblocking over responsible business practices.
  - 8y ago