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I suspect this might end up as a slightly trickier scenario because when you get down to the details it’s hard at a technical level to make a distinction betwee

by mhoad 5y ago

I suspect this might end up as a slightly trickier scenario because when you get down to the details it’s hard at a technical level to make a distinction between a server log file and a tool like analytics which takes those same bits of data and mostly just organises and displays it in an intuitive way with charts and a nice UI.

mtsr 5y ago
The ruling against google analytics in France is quite simple: google analytics as used by an unnamed website was not compliant with GDPR, because it exports user data to a country that has privacy laws that are not up to GDPR standards, which is not allowed. This is on the unnamed website and they or compelled to stop this illegal export of user data by either only exporting anonymized statistics or stopping use of google analytics entirely. Of course this isn’t yet a perfect banning of GA and Google might be able to work around it, but it’s something. And in fact, anonymized statistics would probably be OK (depending on the details of course).
- mhoad 5y ago
  But this actually highlights exactly what I mean. What if I simply stood up a plain old Apache server to host my website but that happened to be hosted in the US. No analytics, just a few HTML files and that’s it. I’m still in this scenario sending PII of EU citizens in the form of IP addresses to the US which are just written to /var/log/apache It seems obviously different and yet as that ruling seems to imply it wouldn’t be unless I’m missing something here between first and third party capture or something?
  - nickpp 5y ago
    Default configurations of logging on most servers is illegal now under GDPR since it saves IP addresses.
    - hyperman1 5y ago
      This pops up regularly, but AFAIK it's not correct. The law is much more fine grained than the USA PII concept. IP addresses are only personal data (PD) if you are capable of using them as identification mechanism. If you don't they are not. This also means that something that is not PD for you, can become PD when you give it to someone else. Or that 2 items which are not PD themselves, become PD when you combine them. Or that being hacked turns non-PD into PD. Even as PD, using IP addresses to maintain a website is fine, even without consent. Using them to track individuals is not fine. Having a log rotation policy and a sane security policy so you can demonstrate when you throw them away is a good idea. To be short: Install debian, drop nginx on it, then let it log as it wants. This is legal. But don't you dare mine the logs for abusing PD.
      - nickpp 5y ago
        Do you have a source? My observation came from multiple lawyers in the context of "to stay on the safe side".
      - rndgermandude 5y ago
        Incorrect. In the "Breyer" ruling[0] the highest European court concluded that dynamic IP addresses are PII (not just personal data, and not just data), as there is an abstract risk that combining IP addresses with other data can lead to identification of a user. The ruling explicitly said that the mere risk of such an identification is enough, not that such an identification has to actually happen. Subsequent rulings by many courts have found that all IP addresses are PII, for various reasons, such as "static" IP addresses bear the same risk of indirect identification, and there is no reliable way to distinguish between "dynamic" and "static" addresses anyway. The recent German ruling that Google Fonts violates the GDPR just by transmitting an IP to google (by making the web browser fetch a resource from a google server) hammered home this point, citing the EU ruling again[0]. This is different to e.g. of a streaming provider keeping a history of songs you played. This data is personal data, but it is not personally identifiable data as this history alone cannot be used to identify a person. However, if this history has some kind of identifier attached that links back to account information or an IP address, that identifier would be PII, as this identifier could be used to indirectly identify a person. [0] https://curia.europa.eu/juris/document/document.jsf;?text=&docid=184668&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3164186 https://curia.europa.eu/juris/document/document.jsf;?text=&d... [1] https://rewis.io/urteile/urteil/lhm-20-01-2022-3-o-1749320/ https://rewis.io/urteile/urteil/lhm-20-01-2022-3-o-1749320/ Die dynamische IP-Adresse stellt für einen Webseitenbetreiber ein personenbezogenes Datum dar, denn der Webseitenbetreiber verfügt abstrakt über rechtliche Mittel, die vernünftigerweise eingesetzt werden könnten, um mithilfe Dritter, und zwar der zuständigen Behörde und des Internetzugangsanbieters, die betreffende Person anhand der gespeicherten IP-Adressen bestimmen zu lassen (BGH, Urteil vom 16.05.2017 - VI ZR 135/13)[2]. Translated, best to my abilities: The dynamic IP address is to a web site operator a piece of personally identifiable data, because the web site operator abstractly has legal means, which could be reasonably used, with the help of third parties, namely the the responsible authority and the internet service provider, to identify the person in question with the use of the stored IP address (BGH, ruling from the 16th of May 2017, VI ZR 135/13)[2] [2] The BGH ruling quoted is the "Breyer" ruling again, just at the German national level instead of the EU level. The Bundesgerichtshof (BGH, highest German court of ordinary law) asked the European Court of Justice to settle the question of whether dynamic IP addresses are PII, which the ECJ affirmatively settled in [0].

by mhoad 5y ago

mtsr 5y ago

The ruling against google analytics in France is quite simple: google analytics as used by an unnamed website was not compliant with GDPR, because it exports user data to a country that has privacy laws that are not up to GDPR standards, which is not allowed. This is on the unnamed website and they or compelled to stop this illegal export of user data by either only exporting anonymized statistics or stopping use of google analytics entirely. Of course this isn’t yet a perfect banning of GA and Google might be able to work around it, but it’s something. And in fact, anonymized statistics would probably be OK (depending on the details of course).

mhoad 5y ago
But this actually highlights exactly what I mean. What if I simply stood up a plain old Apache server to host my website but that happened to be hosted in the US. No analytics, just a few HTML files and that’s it. I’m still in this scenario sending PII of EU citizens in the form of IP addresses to the US which are just written to /var/log/apache It seems obviously different and yet as that ruling seems to imply it wouldn’t be unless I’m missing something here between first and third party capture or something?
- nickpp 5y ago
  Default configurations of logging on most servers is illegal now under GDPR since it saves IP addresses.
  - hyperman1 5y ago
    This pops up regularly, but AFAIK it's not correct. The law is much more fine grained than the USA PII concept. IP addresses are only personal data (PD) if you are capable of using them as identification mechanism. If you don't they are not. This also means that something that is not PD for you, can become PD when you give it to someone else. Or that 2 items which are not PD themselves, become PD when you combine them. Or that being hacked turns non-PD into PD. Even as PD, using IP addresses to maintain a website is fine, even without consent. Using them to track individuals is not fine. Having a log rotation policy and a sane security policy so you can demonstrate when you throw them away is a good idea. To be short: Install debian, drop nginx on it, then let it log as it wants. This is legal. But don't you dare mine the logs for abusing PD.
    - nickpp 5y ago
      Do you have a source? My observation came from multiple lawyers in the context of "to stay on the safe side".
    - rndgermandude 5y ago
      Incorrect. In the "Breyer" ruling[0] the highest European court concluded that dynamic IP addresses are PII (not just personal data, and not just data), as there is an abstract risk that combining IP addresses with other data can lead to identification of a user. The ruling explicitly said that the mere risk of such an identification is enough, not that such an identification has to actually happen. Subsequent rulings by many courts have found that all IP addresses are PII, for various reasons, such as "static" IP addresses bear the same risk of indirect identification, and there is no reliable way to distinguish between "dynamic" and "static" addresses anyway. The recent German ruling that Google Fonts violates the GDPR just by transmitting an IP to google (by making the web browser fetch a resource from a google server) hammered home this point, citing the EU ruling again[0]. This is different to e.g. of a streaming provider keeping a history of songs you played. This data is personal data, but it is not personally identifiable data as this history alone cannot be used to identify a person. However, if this history has some kind of identifier attached that links back to account information or an IP address, that identifier would be PII, as this identifier could be used to indirectly identify a person. [0] https://curia.europa.eu/juris/document/document.jsf;?text=&docid=184668&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3164186 https://curia.europa.eu/juris/document/document.jsf;?text=&d... [1] https://rewis.io/urteile/urteil/lhm-20-01-2022-3-o-1749320/ https://rewis.io/urteile/urteil/lhm-20-01-2022-3-o-1749320/ Die dynamische IP-Adresse stellt für einen Webseitenbetreiber ein personenbezogenes Datum dar, denn der Webseitenbetreiber verfügt abstrakt über rechtliche Mittel, die vernünftigerweise eingesetzt werden könnten, um mithilfe Dritter, und zwar der zuständigen Behörde und des Internetzugangsanbieters, die betreffende Person anhand der gespeicherten IP-Adressen bestimmen zu lassen (BGH, Urteil vom 16.05.2017 - VI ZR 135/13)[2]. Translated, best to my abilities: The dynamic IP address is to a web site operator a piece of personally identifiable data, because the web site operator abstractly has legal means, which could be reasonably used, with the help of third parties, namely the the responsible authority and the internet service provider, to identify the person in question with the use of the stored IP address (BGH, ruling from the 16th of May 2017, VI ZR 135/13)[2] [2] The BGH ruling quoted is the "Breyer" ruling again, just at the German national level instead of the EU level. The Bundesgerichtshof (BGH, highest German court of ordinary law) asked the European Court of Justice to settle the question of whether dynamic IP addresses are PII, which the ECJ affirmatively settled in [0].