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"The EDPS, the EU’s data watchdog, opened an investigation in April to assess whether contracts between Microsoft and EU institutions such as the European Commi

by Zenst 7y ago

"The EDPS, the EU’s data watchdog, opened an investigation in April to assess whether contracts between Microsoft and EU institutions such as the European Commission fully complied with the bloc’s data protection rules." Are these contracts signed before GDPR? Signed after? Is there some part of the EU that you can submit a contract and that they go thru and raise any compliance issues that you should change? Or is it, do you best, and possibly get a knock on the digital door by the EU at a later date and a backdated fine? Hard to form any opinion about this without knowing when the contracts got signed (by both parties) and how changes in law affect existing contracts from an accountability aspect (good/bad faith) on both sides.

krageon 7y ago
Microsoft has contracts that are extremely overbearing so it is not surprising that their contracts might not comply with the law. There is of course a space (the legal department) and a profession (lawyers) that large institutions usually employ to monitor problems like these and I don't see why there needs to be another body that performs the same function.
- Zenst 7y ago
  Not all companies have Microsoft or indeed EU sized lawyer pools. So would be nice if there was some aspect of the EU that you could have check/audit contracts to approve them as compliant. Sure that may well be the realms of a lawyer and equally also insurance policy on the indemnity aspect. But does highlight how smaller companies will and can suffer the same issues (maybe more so) and fall foul even when acting in good faith. https://europa.eu/youreurope/business/selling-in-eu/public-contracts/public-tendering-rules/index_en.htm https://europa.eu/youreurope/business/selling-in-eu/public-c... "If your company, organisation or institution is established in the EU (In this case, the 28 EU member states + Iceland, Norway and Liechtenstein.), you have the right to compete for a public tender in any EU country. You have the right to: compete for a public tender in another EU country without discrimination use supporting documents (certificates, diplomas, etc.) issued by your country have equal access to all information regarding tenders, regardless of the EU country in which you are established have access to the review procedures in the respective country" That last one implies that equally access to review procedures in EU member states must be available. That would cover contracts and with that, raises more questions about the accountability of this. But my takeaway is, if Microsoft can have a contract questioned at a later date, how exposed are smaller companies in the same vain.
  - rzwitserloot 7y ago
    It's not that black and white. It's more a matter of: If you push your legal rights in such a contract to the absolute limits, well, you may run into some issues later on when laws change. If you're a tiny company but you put maximum onerous one-sided rules in your contracts, AND you somehow have the government you're selling to by the short and curlies so they sign it anyway, yeah, this view of 'eh, microsoft has got it coming' would imply this small company is now on the hook for keeping a team of lawyers on the ball. That seems fair to me. In real life, there's no way a small company would even go for such a pushed contract in the first place, or if they did, that's because they messed up by copying the wrong contract text, or there's a big brother helping them out. Or, perhaps said simply: If this notion of 'oops the rules changed right in the middle of the contract, that is not fair!' becomes relevant, they probably were.. NOT acting in good faith in the first place.
    - JumpCrisscross 7y ago
      > If this notion of 'oops the rules changed right in the middle of the contract, that is not fair!' becomes relevant, they probably were.. NOT acting in good faith in the first place That assumes a benevolent government. Rules can change because of balance-of-power shifts, or as a result of misinformed debates. If you do business in a heavily-regulated economy like Europe, part of the cost of doing business is legal and compliance. This is a valid tradeoff the Continent has made. It makes many consumers and workers happy while adding fixed costs to commerce.
      - gpderetta 7y ago
        > That assumes a benevolent government. Rules can change because of balance-of-power shifts, or as a result of misinformed debates. that's true in any jurisdiction, right? Laws and regulations can always override contracts.
        JumpCrisscross 7y ago
        > that's true in any jurisdiction, right? Laws and regulations can always override contracts. What varies is how easily new rules can be introduced, how easily they can be challenged, and the number of entities with rule making power. Broadly speaking, Europe's systems make it easy for rules to be introduced and hard for them to be struck down by a competing arm of government. There also tend to be more regulators with independent rule making authority in Europe than in America. This derives, fundamentally, from differing levels of trust in government, and differing views on the scope of government's job.
deleted 7y ago
[deleted]
Someone 7y ago
"Are these contracts signed before GDPR? Signed after?" Why would that matter? If the law changes, contracts may have to be updated. Microsoft is large enough to be in the "should have known the changes were coming, and should have acted upon it" camp. "Is there some part of the EU that you can submit a contract and that they go thru and raise any compliance issues that you should change?" Yes/No. On the one hand: NO, just like with (almost) all other laws and regulations in any government (or, for that matter, companies. You can't ask Apple or Google whether doing X will get your app on the App Store, for example). Allowing that would be impractical, as governments would be overwhelmed by entities looking to find exactly how far they can go before they get 'caught'. Also, there's the "Separation of Powers" thing (https://en.wikipedia.org/wiki/Separation_of_powers https://en.wikipedia.org/wiki/Separation_of_powers). That brings me to the YES: on the other hand, there is: https://en.wikipedia.org/wiki/Test_case_(law) https://en.wikipedia.org/wiki/Test_case_(law). It will cost you money, but, if you do it right, less so than when you go in full. Also, the ones to be fined, if any, in this case likely also, and maybe more so (as a, perhaps somewhat bad, analogy, there's nothing wrong with a North Korean company applying for some US defense contract; companies hiring them to do the work would be in the wrong) would be Microsoft's customers. Many of them also are large enough to be in the "should have known the changes were coming, and should have acted upon it" camp.

by Zenst 7y ago

krageon 7y ago

Microsoft has contracts that are extremely overbearing so it is not surprising that their contracts might not comply with the law. There is of course a space (the legal department) and a profession (lawyers) that large institutions usually employ to monitor problems like these and I don't see why there needs to be another body that performs the same function.

Zenst 7y ago
Not all companies have Microsoft or indeed EU sized lawyer pools. So would be nice if there was some aspect of the EU that you could have check/audit contracts to approve them as compliant. Sure that may well be the realms of a lawyer and equally also insurance policy on the indemnity aspect. But does highlight how smaller companies will and can suffer the same issues (maybe more so) and fall foul even when acting in good faith. https://europa.eu/youreurope/business/selling-in-eu/public-contracts/public-tendering-rules/index_en.htm https://europa.eu/youreurope/business/selling-in-eu/public-c... "If your company, organisation or institution is established in the EU (In this case, the 28 EU member states + Iceland, Norway and Liechtenstein.), you have the right to compete for a public tender in any EU country. You have the right to: compete for a public tender in another EU country without discrimination use supporting documents (certificates, diplomas, etc.) issued by your country have equal access to all information regarding tenders, regardless of the EU country in which you are established have access to the review procedures in the respective country" That last one implies that equally access to review procedures in EU member states must be available. That would cover contracts and with that, raises more questions about the accountability of this. But my takeaway is, if Microsoft can have a contract questioned at a later date, how exposed are smaller companies in the same vain.
- rzwitserloot 7y ago
  It's not that black and white. It's more a matter of: If you push your legal rights in such a contract to the absolute limits, well, you may run into some issues later on when laws change. If you're a tiny company but you put maximum onerous one-sided rules in your contracts, AND you somehow have the government you're selling to by the short and curlies so they sign it anyway, yeah, this view of 'eh, microsoft has got it coming' would imply this small company is now on the hook for keeping a team of lawyers on the ball. That seems fair to me. In real life, there's no way a small company would even go for such a pushed contract in the first place, or if they did, that's because they messed up by copying the wrong contract text, or there's a big brother helping them out. Or, perhaps said simply: If this notion of 'oops the rules changed right in the middle of the contract, that is not fair!' becomes relevant, they probably were.. NOT acting in good faith in the first place.
  - JumpCrisscross 7y ago
    > If this notion of 'oops the rules changed right in the middle of the contract, that is not fair!' becomes relevant, they probably were.. NOT acting in good faith in the first place That assumes a benevolent government. Rules can change because of balance-of-power shifts, or as a result of misinformed debates. If you do business in a heavily-regulated economy like Europe, part of the cost of doing business is legal and compliance. This is a valid tradeoff the Continent has made. It makes many consumers and workers happy while adding fixed costs to commerce.
    - gpderetta 7y ago
      > That assumes a benevolent government. Rules can change because of balance-of-power shifts, or as a result of misinformed debates. that's true in any jurisdiction, right? Laws and regulations can always override contracts.
      - JumpCrisscross 7y ago
        > that's true in any jurisdiction, right? Laws and regulations can always override contracts. What varies is how easily new rules can be introduced, how easily they can be challenged, and the number of entities with rule making power. Broadly speaking, Europe's systems make it easy for rules to be introduced and hard for them to be struck down by a competing arm of government. There also tend to be more regulators with independent rule making authority in Europe than in America. This derives, fundamentally, from differing levels of trust in government, and differing views on the scope of government's job.

deleted 7y ago

[deleted]

Someone 7y ago

"Are these contracts signed before GDPR? Signed after?" Why would that matter? If the law changes, contracts may have to be updated. Microsoft is large enough to be in the "should have known the changes were coming, and should have acted upon it" camp. "Is there some part of the EU that you can submit a contract and that they go thru and raise any compliance issues that you should change?" Yes/No. On the one hand: NO, just like with (almost) all other laws and regulations in any government (or, for that matter, companies. You can't ask Apple or Google whether doing X will get your app on the App Store, for example). Allowing that would be impractical, as governments would be overwhelmed by entities looking to find exactly how far they can go before they get 'caught'. Also, there's the "Separation of Powers" thing (https://en.wikipedia.org/wiki/Separation_of_powers https://en.wikipedia.org/wiki/Separation_of_powers). That brings me to the YES: on the other hand, there is: https://en.wikipedia.org/wiki/Test_case_(law) https://en.wikipedia.org/wiki/Test_case_(law). It will cost you money, but, if you do it right, less so than when you go in full. Also, the ones to be fined, if any, in this case likely also, and maybe more so (as a, perhaps somewhat bad, analogy, there's nothing wrong with a North Korean company applying for some US defense contract; companies hiring them to do the work would be in the wrong) would be Microsoft's customers. Many of them also are large enough to be in the "should have known the changes were coming, and should have acted upon it" camp.