3 ms·

The head of swiss data protection (Eidgenössischer Datenschutzbeauftragter) was on the news program [1] and scolded them since according to him it is illegal in

The head of swiss data protection (Eidgenössischer Datenschutzbeauftragter) was on the news program [1] and scolded them since according to him it is illegal in Switzerland to scrape data of the internet and then do facial recognition on it to identify people. He said because they are media it may be ok but the average joe and company should not get any ideas of doing the same thing. He also said it is facebook/instagram's responsibility to keep the users data safe and prevent it from being scraped. I'm not sure how anyone can prevent data scraping and I also don't see how it can be illegal if the data is on the public internet. Can anyone elaborate why it would be considered illegal to scrape data in Switzerland? I can see there being a conflict between the privacy laws and doing identifying recognition on public images but downloading the images themselves I don't see being illegal? We deal with scrapers taking our data all the time and this is the first time I heard that it may be illegal. [1] https://www.srf.ch/play/tv/10vor10/video/fokus-heikle-gesichtserkennung---das-experiment?id=579ffb3b-dadf-490b-be62-e9c692f2e3bb https://www.srf.ch/play/tv/10vor10/video/fokus-heikle-gesich...

quotemstr 7y ago
> He said because they are media it may be ok but the average joe and company should not get any ideas of doing the same thing. That's not the first time I've seen someone claim that a journalist claim is allowed to perform some kind of information processing that's off limits to regular people. These claims are specious and ridiculous. Journalists do not form a distinct class with special privileges, even if they claim to be one.
- vvG94KbDUtRa 7y ago
  They're nonsensical. There's no legal definition of journalist. You don't get a license from the government
  - anticensor 7y ago
    No licence needed, true, but governments issue press cards for certain privileges peculiar to professional journalists.
  - Barrin92 7y ago
    This is Switzerland, not the United States. In Europe at least in many countries journalists do indeed have special privileges and they do have recognised legal status and licenses, usually represented by private/public institutions that oversee ethical standards in the industry and so on. In Germany for example this would be the German Press council, in Sweden it is the Opinionsnämnd etc.. For the love of god can we please stop pretending that every country on the planet is the US.
    - Mirioron 7y ago
      I sure wish those journalists would have any more credibility than regular people though.
- shkkmo 7y ago
  We'll, there definitely are distinct classes of journalists that have special privileges. These classes are not defined by law but are implemented and supported by institutions (such as when special access is granted to events or killings generate international attention). There is no such thing as a "licensed journalist" because such licensing has been historically used to limit freedom of the press. However, there is an implicit understanding of what constitutes being a journalist that is similar and it is displayed when Judges choose whether or not to force a journalist to reveal their sources. The core idea is that intent matters. Building such an app to create public discourse by someone with a clear history of journalistic actions is likely to face different regulatory penalties than an individual with no such history who builds such an app for entertainment or profit. Edit: There is argument to be made that this "soft licensing" serves to extert control over journalists.
- Someone 7y ago
  “Journalist” isn’t clearly defined, but they do have some special privileges in many countries. https://en.wikipedia.org/wiki/Journalism#Legal_status https://en.wikipedia.org/wiki/Journalism#Legal_status: ”Journalists in many nations have some privileges that members of the general public do not, including better access to public events, crime scenes and press conferences, and to extended interviews with public officials, celebrities and others in the public eye.” https://en.wikipedia.org/wiki/Reporter%27s_privilege https://en.wikipedia.org/wiki/Reporter%27s_privilege: ”Reporter's privilege in the United States (also journalist's privilege, newsman's privilege, or press privilege), is a "reporter's protection under constitutional or statutory law, from being compelled to testify about confidential information or sources."” Also, in some (¿many, I would think, but I don’t know stats?) countries the justice system will weigh the right of the public to know against law infractions when deciding whether to prosecute journalists who performed crimes in order to gather information. For an example, see the pentagon papers (https://en.wikipedia.org/wiki/Pentagon_Papers https://en.wikipedia.org/wiki/Pentagon_Papers). All concerned knew the information was top-secret and stolen, but in the end, nobody got convicted for publishing them.
- pjc50 7y ago
  GDPR has exemptions for the purposes of news reporting, not for specific people.
Youden 7y ago
> Can anyone elaborate why it would be considered illegal to scrape data in Switzerland? Speculation but I think it can be as simple as Art. 4, p. 3 FADP [0]: "Personal data may only be processed for the purpose indicated at the time of collection, that is evident from the circumstances, or that is provided for by law." When users upload data to Facebook, they don't consent to have that data used by third parties for facial recognition. [0]: https://www.admin.ch/opc/en/classified-compilation/19920153/index.html#a4 https://www.admin.ch/opc/en/classified-compilation/19920153/...
- anticensor 7y ago
  You grant Facebook a nonexclusive sublicenseable transferable licence for all purposes.
  - nxpnsv 7y ago
    Yes, but (a) one can be in pictures without having any agreement (b) fb license cannot grant you rights contradicting swiss law (my assumption, neither lawyer or swiss), ...
    - billiam 7y ago
      I believe slips this knot by making any uploader responsible for securing rights from every person in any picture they upload, no?
    - anticensor 7y ago
      You are not supposed to upload pictures showing non-users. Facebook upload wizard clearly tells you that.
      - webmaven 7y ago
        How is Facebook supposed to enforce that? I suppose they could use facial recogniton to prevent those uploads...
  - Tarq0n 7y ago
oefrha 7y ago
> I'm not sure how anyone can prevent data scraping Not the first time politicians proposing something technically off limits. It’s all just magic to them anyways.
- jlarocco 7y ago
  That's not how laws work, though. Just because something is technically possible doesn't mean it has to be legal. There's no way to technically prevent murder or assault, or dumping chemicals in a river, but it doesn't make them any less illegal.
pergadad 7y ago
Depending on the national law (no idea about Switzerland) data can be protected by copyright laws. Eg even if the base data is free to use the combined dataset might be protected as it's a unique 'creative work'
- 101404 7y ago
  GDPR limits the use of personal data to the specific usages the user explicitly agreed to. Any other use of a person's data would be illegal. If I remember correctly, broad terms like "for anything" are not permitted.
xwdv 7y ago
>“He said because they are media it may be ok but the average joe and company should not get any ideas of doing the same thing.” Or else what? How would they even know this was done? All facial recognition tech benefits from plausible deniability. You could just easily say a face was recognized by an individual who saw the photo online and sent an anonymous tip. They have no leverage.
- Barrin92 7y ago
  the value proposition of companies like ClearviewAI is that they're building an automated system, which is of course why they precisely don't try to pretend to be some kind of private eye detective firm and why they are now on the hook for it. If the government gets serious it also could simply come knocking on the door and demand a tour.
sebow 7y ago
You can't prevent internet scraping. The law is stupid and time will prove the legislature bodies wrong. If you WILLINGLY upload a photo of yourself, expect all consequences. Privacy/Security laws try to abstract the law of posession to bigger scales,which is impossible in reality. I expected better from switzerland
dylan604 7y ago
>I'm not sure how anyone can prevent data scraping Is rules/legislation against scraping really meant to prevent it, or merely provide a mechanism to punish the perpetrators when discovered?
abc03 7y ago
Scraping is generally not illegal in Switzerland. He considers it a Persönlichkeitsverletzung. A violation of a person‘s privacy which are very strong in Switzerland. According to the tv report, the photos were uploaded without the consent of the people on the photo. Photos were taken while some were walking by in the background. You cannot just photo/video people here without their approval and publish the photos.
- mschilliger 7y ago
  But IMHO on a public event that rule doesn't apply, right?
white-flame 7y ago
> I also don't see how it can be illegal if the data is on the public internet. It can be seen as an issue of intent. By posting something, that datum might be there for personal use, and is not intended for further commercial use, especially by companies outside the one hosting the information originally. The act of data aggregation is one that I personally think should be heavily considered for regulation, especially since it can de-anonymize people. This in my opinion is a privacy invasion, performing extra actions to access additional private data when no access to the more private details was granted, and those details did not exist publicly in an accessible way. Especially at scale and yielding personally targetable results, this isn't something we want organizations or governments to use against people unchecked.
grssnbchr 7y ago
Author here. The argument the data commissioner makes is that, while the images are public, users can assume they are protected from other purposes, e. g. facial recognition, because of the ToS which disallow bulk download. Thus, by violating the ToS, we also violated their personal rights. However, you need to be aware that this is an interpretation of the data protection law, we don't know of any court ruling that would confirm such an interpretation, yet.

quotemstr 7y ago

> He said because they are media it may be ok but the average joe and company should not get any ideas of doing the same thing. That's not the first time I've seen someone claim that a journalist claim is allowed to perform some kind of information processing that's off limits to regular people. These claims are specious and ridiculous. Journalists do not form a distinct class with special privileges, even if they claim to be one.

vvG94KbDUtRa 7y ago
They're nonsensical. There's no legal definition of journalist. You don't get a license from the government
- anticensor 7y ago
  No licence needed, true, but governments issue press cards for certain privileges peculiar to professional journalists.
- Barrin92 7y ago
  This is Switzerland, not the United States. In Europe at least in many countries journalists do indeed have special privileges and they do have recognised legal status and licenses, usually represented by private/public institutions that oversee ethical standards in the industry and so on. In Germany for example this would be the German Press council, in Sweden it is the Opinionsnämnd etc.. For the love of god can we please stop pretending that every country on the planet is the US.
  - Mirioron 7y ago
    I sure wish those journalists would have any more credibility than regular people though.
shkkmo 7y ago
We'll, there definitely are distinct classes of journalists that have special privileges. These classes are not defined by law but are implemented and supported by institutions (such as when special access is granted to events or killings generate international attention). There is no such thing as a "licensed journalist" because such licensing has been historically used to limit freedom of the press. However, there is an implicit understanding of what constitutes being a journalist that is similar and it is displayed when Judges choose whether or not to force a journalist to reveal their sources. The core idea is that intent matters. Building such an app to create public discourse by someone with a clear history of journalistic actions is likely to face different regulatory penalties than an individual with no such history who builds such an app for entertainment or profit. Edit: There is argument to be made that this "soft licensing" serves to extert control over journalists.
Someone 7y ago
“Journalist” isn’t clearly defined, but they do have some special privileges in many countries. https://en.wikipedia.org/wiki/Journalism#Legal_status https://en.wikipedia.org/wiki/Journalism#Legal_status: ”Journalists in many nations have some privileges that members of the general public do not, including better access to public events, crime scenes and press conferences, and to extended interviews with public officials, celebrities and others in the public eye.” https://en.wikipedia.org/wiki/Reporter%27s_privilege https://en.wikipedia.org/wiki/Reporter%27s_privilege: ”Reporter's privilege in the United States (also journalist's privilege, newsman's privilege, or press privilege), is a "reporter's protection under constitutional or statutory law, from being compelled to testify about confidential information or sources."” Also, in some (¿many, I would think, but I don’t know stats?) countries the justice system will weigh the right of the public to know against law infractions when deciding whether to prosecute journalists who performed crimes in order to gather information. For an example, see the pentagon papers (https://en.wikipedia.org/wiki/Pentagon_Papers https://en.wikipedia.org/wiki/Pentagon_Papers). All concerned knew the information was top-secret and stolen, but in the end, nobody got convicted for publishing them.
pjc50 7y ago
GDPR has exemptions for the purposes of news reporting, not for specific people.

Youden 7y ago

> Can anyone elaborate why it would be considered illegal to scrape data in Switzerland? Speculation but I think it can be as simple as Art. 4, p. 3 FADP [0]: "Personal data may only be processed for the purpose indicated at the time of collection, that is evident from the circumstances, or that is provided for by law." When users upload data to Facebook, they don't consent to have that data used by third parties for facial recognition. [0]: https://www.admin.ch/opc/en/classified-compilation/19920153/index.html#a4 https://www.admin.ch/opc/en/classified-compilation/19920153/...

anticensor 7y ago
You grant Facebook a nonexclusive sublicenseable transferable licence for all purposes.
- nxpnsv 7y ago
  Yes, but (a) one can be in pictures without having any agreement (b) fb license cannot grant you rights contradicting swiss law (my assumption, neither lawyer or swiss), ...
  - billiam 7y ago
    I believe slips this knot by making any uploader responsible for securing rights from every person in any picture they upload, no?
  - anticensor 7y ago
    You are not supposed to upload pictures showing non-users. Facebook upload wizard clearly tells you that.
    - webmaven 7y ago
      How is Facebook supposed to enforce that? I suppose they could use facial recogniton to prevent those uploads...
- Tarq0n 7y ago

oefrha 7y ago

> I'm not sure how anyone can prevent data scraping Not the first time politicians proposing something technically off limits. It’s all just magic to them anyways.

jlarocco 7y ago
That's not how laws work, though. Just because something is technically possible doesn't mean it has to be legal. There's no way to technically prevent murder or assault, or dumping chemicals in a river, but it doesn't make them any less illegal.

pergadad 7y ago

Depending on the national law (no idea about Switzerland) data can be protected by copyright laws. Eg even if the base data is free to use the combined dataset might be protected as it's a unique 'creative work'

101404 7y ago
GDPR limits the use of personal data to the specific usages the user explicitly agreed to. Any other use of a person's data would be illegal. If I remember correctly, broad terms like "for anything" are not permitted.

xwdv 7y ago

>“He said because they are media it may be ok but the average joe and company should not get any ideas of doing the same thing.” Or else what? How would they even know this was done? All facial recognition tech benefits from plausible deniability. You could just easily say a face was recognized by an individual who saw the photo online and sent an anonymous tip. They have no leverage.

Barrin92 7y ago
the value proposition of companies like ClearviewAI is that they're building an automated system, which is of course why they precisely don't try to pretend to be some kind of private eye detective firm and why they are now on the hook for it. If the government gets serious it also could simply come knocking on the door and demand a tour.

sebow 7y ago

You can't prevent internet scraping. The law is stupid and time will prove the legislature bodies wrong. If you WILLINGLY upload a photo of yourself, expect all consequences. Privacy/Security laws try to abstract the law of posession to bigger scales,which is impossible in reality. I expected better from switzerland

dylan604 7y ago

>I'm not sure how anyone can prevent data scraping Is rules/legislation against scraping really meant to prevent it, or merely provide a mechanism to punish the perpetrators when discovered?

abc03 7y ago

Scraping is generally not illegal in Switzerland. He considers it a Persönlichkeitsverletzung. A violation of a person‘s privacy which are very strong in Switzerland. According to the tv report, the photos were uploaded without the consent of the people on the photo. Photos were taken while some were walking by in the background. You cannot just photo/video people here without their approval and publish the photos.

mschilliger 7y ago
But IMHO on a public event that rule doesn't apply, right?

white-flame 7y ago

> I also don't see how it can be illegal if the data is on the public internet. It can be seen as an issue of intent. By posting something, that datum might be there for personal use, and is not intended for further commercial use, especially by companies outside the one hosting the information originally. The act of data aggregation is one that I personally think should be heavily considered for regulation, especially since it can de-anonymize people. This in my opinion is a privacy invasion, performing extra actions to access additional private data when no access to the more private details was granted, and those details did not exist publicly in an accessible way. Especially at scale and yielding personally targetable results, this isn't something we want organizations or governments to use against people unchecked.

grssnbchr 7y ago

Author here. The argument the data commissioner makes is that, while the images are public, users can assume they are protected from other purposes, e. g. facial recognition, because of the ToS which disallow bulk download. Thus, by violating the ToS, we also violated their personal rights. However, you need to be aware that this is an interpretation of the data protection law, we don't know of any court ruling that would confirm such an interpretation, yet.