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This is not a lengthy analytical post; it is by way of quick update on the much overlooked younger sibling of the proposed General Data Protection Regulation: the Data Protection Directive for the police and criminal justice sector. Most practitioners are understandably focussing on the Regulation: that is the instrument which will affect most of us most of the time. But the EU is proposing to harmonise the rules across sectors and, at the same, implement a new Directive applicable to the police and criminal justice sectors. The existing Directive does not, of course, apply to that arena by virtue of article 3(2) (although the DPA 1998 is unlimited in its scope, so the point has rarely been of much relevance domestically). Continue reading →

As if TalkTalk don’t have enough to think about at the moment, the House of Commons yesterday discussed the sanctions available to the Information Commissioner for significant data breaches. Responding to an urgent question on the TalkTalk incident, the Minister for Culture and the Digital Economy (wasn’t that one of Gladstone’s titles once?), Ed Vaizey, made a number of interesting comments. Continue reading →

On 6^th October 2015 the CJEU declared the Commission’s Safe Harbor Decision invalid, in Case C-362/14 Schrems.  Since then, data protection specialists have discussed little else; and Panopticon has hosted comments by Chris Knight, Anya Proops, and Robin Hopkins.

How have EU data protection regulators responded to the judgment?

The ICO’s immediate response came in a statement from Deputy Commissioner David Smith.  This struck a careful and measured tone, emphasising that the Safe Harbour is not the only basis on which transfers to the US can be made, and referring to the ICO’s earlier guidance on the range of ways in which overseas transfers can be made.

On 16^th October the Article 29 Working Party issued a statement taking a rather more combative line.  Here are the main points.

1. The question of massive and indiscriminate surveillance (i.e. in the US) was a key element of the CJEU’s analysis. The Court’s judgment required that any adequacy analysis implied a broad analysis of the third country domestic laws and international commitments.

2. The Working Party urgently called on Member States and European institutions to open discussions with the US authorities to find suitable solutions. The current negotiations around a new Safe Harbour could be part of the solution.

3. Meanwhile the Working Party would continue its analysis of how the CJEU judgment affected other transfer tools. During this period Standard Contractual Clauses and Binding Corporate Rules could still be used.  If by the end of January 2016 no appropriate solution with the US had been found, the EU regulators would take “appropriate actions”.

4. Transfers still taking place based on the Safe Harbour decision were unlawful.

There are a couple of key messages here.  One is that it seems doubtful that the Article 29 Working Party would regard an adequacy assessment by a data controller as being a proper basis for transfer to the US:  see point 1.  A second is that there is a hint that even standard clauses and BCRs might not be regarded a safe basis for transfer (see point 3): the answer will depend on the outcome of the Working Party’s further analysis of the implications of Schrems.

 

In May 2012, Transport for London licensed Uber London Limited as an operator of private hire vehicles in London.

Uber is controversial.  It’s a good example of how new technology can disrupt existing business models in unexpected ways.  One controversy is addressed by Ouseley J in Transport for London v Uber London Limited and others [2015] EWHC 2918 (Admin):  whether the way in which the Uber fare is calculated infringes the criminal prohibition on the use of a taximeter in a London private hire vehicle. Answer – it doesn’t.

What does any of this have to do with Panopticon?  Our usual concerns, broadly speaking, are with access to public sector information, and with information privacy (including its interaction with freedom of expression).  But these fields are fundamentally shaped by developments in the technology that is used for collecting, sharing and using information.  A wider understanding of the legal issues to which those developments can give rise is valuable, even if it takes us a little outside the usual ambit of this blog.

So:  in London there are black cabs, and there are private hire vehicles (PHVs).  PHVs are subject to three-fold licensing:  the operator, the vehicle, and the driver must all be licensed.  One of the restrictions under which PHVs operate is that it is a criminal offence for the vehicle to be equipped with a taximeter: see section 11(1) of the Private Hire Vehicles (London) Act 1998.  A taximeter is defined by section 11(3) as “a device for calculating the fare to be charged in respect of any journey by reference to the distance travelled or time elapsed since the start of the journey (or a combination of both)”.

Uber operates in London as a licensed PHV operator (though the vehicles in its network include both PHVs and black cabs).  It uses technology that – as Ouseley J points out – was not envisaged when the relevant legislation was introduced in 1998.  “As was agreed, the changes brought about by the arrival of Google, the Smartphone equipped with accurate civilian use GPS, mobile internet access and in-car navigation systems, would not have been within the contemplation of Parliament in 1998.” (Google was in fact incorporated in 1998, and what it has to do with the case is obscure, but let that pass).

In order for the Uber system to operate, both the driver and the customer must have a smartphone, and must download the Uber Driver App and Customer App respectively.  The customer makes a booking using the Customer App.  The booking is transmitted to Uber’s servers in the US, and thence to the smartphone of the driver of the nearest vehicle in London – if that driver does not accept the booking, it is sent to the next nearest vehicle.  When the driver picks up the customer, the driver presses the “begin trip” icon on the Driver App.  At the end of the journey he presses “end trip”.  Signals are then sent to Uber’s servers in the US by the driver’s Smartphone, providing them with GPS data from the driver’s smartphone and time details.  One of the servers (“Server 2”) obtains information from another server about the relevant fare structure, and then calculates the fare and transmits information to the Driver App and the Customer App about the amount charged.  The customer’s credit or debit card is charged for the journey.

Does all this mean that the vehicle is equipped with a taximeter?

No, said Ouseley J, in proceedings brought by Transport for London seeking a declaration that PHVs in the Uber network are not equipped with a taximeter.

The argument before Ouseley J was that the driver’s smartphone, operating using the Driver App, was a taximeter.  But the fatal objection to this argument was that the fare was calculated by Server 2 not by the smartphone, and hence the calculation was done remotely and not in the vehicle itself.  To contravene section 11, it was not sufficient that the calculation was done using information uploaded from the smartphone, and that the calculation was then transmitted to and received on the smartphone.  Hence the smartphone was not a device falling within section 11(3). Moreover, even if the smartphone was a relevant device, the vehicle was not equipped with it; it was the driver who was equipped, and so the prohibition in section 11(1) was not infringed in any event.

Ousely J considered the case-law about the need to adopt an updating or “always speaking” construction of legislation, to take account of technological or scientific developments: see R (Quintavalle) v Secretary of State for Health [2003] UKHL 13, [2003] 2 AC 687.  This case law had no bearing, since the section 11 was in general terms and entirely capable of being applied to modern technology; there was no need to adopt any updating construction of the section.

The Uber case is a useful reminder that controversies about the implications of developments such as big data, cloud computing, and mobile internet access, are not just about privacy and data protection.  Rather, the issues are pervasive and can be expected to affect every corner of the law (and of politics, the economy, and society).

The mobile data devices that we use are constantly interacting with other devices and information storage facilities, including servers.  For the purpose of our daily lives, usually all we are interested in is specific transactions (like booking and paying for a PHV): we do not need to think about the different stages of information processing that underpin the transaction.  But for regulatory purposes, breaking down a transaction into those stages, and understanding when and how each stage takes place, can be essential.  Uber drivers and customers don’t need to think about Server 2:  but if you want to know whether Uber breaks the law, Server 2 is crucial.