Editorial Director: Giusella Finocchiaro
Web Content Manager: Giulia Giapponesi

posted by admin on aprile 28, 2017

digital identity

(No comments)

Giusella Finocchiaro was re-elected President of the IV Working Group on Electronic Commerce of the United Nations Commission on International Trade Law (UNCITRAL).

The election was held during the 55th session of the Working Group which took place from 24th to 28th of April 2017 in New York. At the same time the Working Group initiated its work on the legal issues related to Identity Management and Trust Services.

Under the presidency of Giusella Finocchiaro, the group of experts is required to develop the first drafts about Digital Identification systems which should concern both multi-party and two-party identity systems and natural and legal persons’ identity, without excluding consideration of digital objects.

The Commission’s mandate also concerns Trust Services which will immediately be taken into consideration working out their definitions.

To follow the work-in-progress, see UNICTRAL’s website to the dedicated page.

 

 

posted by admin on marzo 31, 2017

computer crimes

(No comments)

The Italian DPA has imposed fines totalling over 11 million euros on five money transfer companies which had unlawfully processed more than one thousand users’ personal data in order to bypass anti money-laundering regulations.

These companies collected and transferred to China sums of money belonging to Chinese businessmen, violating both the anti money-laundering law and the data protection law. By using the technique of structuring (i.e. the technique of breaking up large amounts of money into several smaller transactions below the anti money-laundering legal threshold), companies allocated money transfers to more than 1,000 customers, who were completely unaware of these transactions, by illegally using their data.

These serious violations came to light during an investigation by the Procura di Roma (the Rome Public Prosecutor’s Office). The Currency Police Unit of the Italian Financial Police, authorised by the Judicial Authorities, ascertained that the names of the people these money transfers were registered to did not correspond to the real senders. In addition, in certain cases the transaction forms turned out not even to have been signed or to have been filled out by people who were either deceased or non-existent. The personal data used were taken from photocopies of id documents, which were stored in specific folders to be used when needed. Money transfers were carried out within seconds of each other and involved sums of money which were just under the legal threshold and addressed to the same recipient.

Due to this infringement of the Data Protection Law committed by the companies, the Italian Data Protection Authority was obliged to intervene and, in view of the seriousness of the violations, the number of parties involved whose personal data had been processed without their consent and the importance (and size) of the database, has imposed the following fines: 5,880,000 euros for the multinational corporation and fines of 1,590,000 euros, 1,430,000 euros, 1,260,000 euros and 850,000 euros respectively for the other four companies, for a total of over 11 million euros.

 

 

posted by admin on marzo 15, 2017

computer crimes

(No comments)

The latest report from Clusit (the Italian Association of Internet and IT Security) states that 2016 was the worst year ever for the evolution in cyber threats and their impact. The Interministerial Commitee for the Security of the Republic, chaired by Prime Minister Gentiloni, has devised a national cyber security plan.

Clusit stresses the phenomenal rise (+1,166%) in phishing attacks – by means of which cyber scammers persuade victims to hand over personal and financial data or login credentials by masquerading as bona fide companies – and social engineering scams – i.e. techniques of studying individual people’s behaviour in order to extort information. Malevolent common malware virus attacks also rose (+116%), and were not only small scale attacks, but also aimed at attacking important targets with significant impact.

There was a dramatic rise even in cyber warfare related attacks (+ 117%), which aim to increase geopolitical pressure or manipulate public opinion. Examples of cyber warfare attacks include those on political parties’ or institutions’ email accounts, but potential targets also include critical infrastructure such as energy, water, communications and transport services, attacks on which rose by + 15% compared to 2015.

So-called cybercrime – i.e. offences committed in order to extort money or information – represented 72% of global attacks in 2016. There has been a consistent upward trend in cybercrime since 2011, when the percentage was 36%. 32% of attacks use unknown techniques, which is 45% up on 2015.

In 2016 the healthcare sector was under increased serious attack (+ 102%) from ransomware – i.e. viruses that encrypt data on victims’ devices only released if the victims pay a ransom – and data theft. There was also a substantial rise in attacks against large scale retail distribution (+70%) and the banking and financial sector (+64%).

In geographical terms, in the second half of 2016 attacks against European targets rose from 13% to 16% and against Asian targets from 15% to 16%, whereas the number of victims in the USA seems to have dropped slightly, even if the USA remains the area most hit by cyber attacks. The tendency to attack mostly important and transnational targets was confirmed. An example of one of the most important global attacks was that against the Italian Ministry of Foreign Affairs.

The Interministerial Commitee for the Security of the Republic (Cisr) has launched a multi phase national plan for cyber security with a new decree – “indications for cybernetics protection and national information security”, which replaces the old Council of Ministers Presidential Decree of January 24th, 2013.

The new measure acknowledges the NIS (Network and Information Security) European Directive and reinforces the role of the Cisr which will issue directives with the aim of raising the level of national cyber security and will avail itself of the support of interministerial coordination on the part of the so-called “Cisr tecnico” (the Technical Interministerial Commitee for the Security of the Republic) and the Security Intelligence Department (Dis).

The new decree assigns the Director General of the DIS the task of defining appropriate courses of action to ensure the required levels of security in both public and private strategic systems and networks, identifying and removing their vulnerabilities. So as to successfully carry out these initiatives the involvement of both the academic world and the world of research is envisaged, as is the idea to use top quality resources in addition to setting up extensive co-operation with businesses in the cyber sector.

At an operational level, the Cyber Security Unit (Nsc) – now part of the Dis – will guarantee a coordinated joint response to any significant cyber attack on national security, together with specialists from all relevant Government Departments.

 

 

posted by admin on marzo 1, 2017

Privacy

(No comments)

ratingBlackMirrorThe Italian Data Protection Authority has established that a “reputation rating” project violates the provisions of the Personal Data Protection Code and impacts negatively on human dignity.

The project, which was devised by an organisation structured as an association and a company appointed for its management, is based on a web platform and a database which gathers vast amounts of personal data either uploaded by users or obtained from the web, on various types of individual – from job candidates to business people, freelance professionals and private individuals. By means of a specific algorithm the system would then be able to objectively measure people’s reliability in the economic and professional fields, by assigning a score (“rating”) to their online reputation.

The DPA observed that the system would create significant problems in relation to privacy due to the confidential nature of the information, the pervasive impact on the interested parties and the method of processing. Essentially, the system implies the massive collection – also online – of information open to significantly impacting on the economic and social representation of thousands of people. Such processed reputation ratings might have serious repercussions on the lives of those who had been rated, since it might influence other people’s choices as well as jeopardising access for rated parties to services and benefits.

The DPA also expressed a number of doubts about the objectivity claimed for the ratings, stressing that the company could not prove the effectiveness of the algorithm used to regulate the settings of the “ratings”, which would be calculated without rated parties having any chance to freely give their consent. Given the complexity and sensitivity of measuring situations and variables which are not easy to classify, any rating might be based on incomplete or flawed documents and certificates with the consequent risk of creating inaccurate profiles which do not correspond to the real social identity of the rated parties.

Moreover, the DPA was concerned about the unreliability of allowing an automated system to decide upon such complex and sensitive issues relating to individuals’ reputations.

The system’s security measures which are principally based on “weak” authentication systems (user ids and passwords) and on encryption techniques only for judicial data, were found to be totally inadequate in the DPA’s opinion. Finally, further critical issues were detected in the time period for data storage and privacy policies for interested parties.

Therefore, in conclusion, the DPA has banned all present and future processing operations related to the reputation rating project.

 

 

posted by admin on gennaio 30, 2017

Labour law and digital world

(No comments)

On 1st January 2017 France brought into force a law on the “right to disconnect”, which aims at banning office emails outside working hours.

Conceived as a means to combat an increase in stress, linked to compulsive out-of-hours email checking, the new legislation requires all companies with more than 50 employees to start negotiations in order to define the rights of employees to ignore their smartphones out of working hours.

As is well known, replying to emails outside working hours is not usually considered as overtime and therefore generally remains unpaid. Moreover, employee availability during off-hours is nowadays considered “a duty” by many employers. For this reason the new law requires companies to reach an agreement with their employees, in which the out-of-hours times when employees are required to reply to office communications must be explicitly detailed. The new measure also aims to protect digital professionals, who work remotely and are therefore more exposed to off-hours calls.

The law was introduced after Labour Minister Myriam El Khomri had commissioned a report on the health impact of the uninterrupted flow of digital information, so-called “info-obesity”, coming from the workplace. The excessive use of digital devices on which employees are reachable 24/7 has been considered the cause of any number of health conditions from “burnout”, to sleeplessness and relationship problems.

A number of multinational companies based in France have already announced that they have already taken steps to put in place innovative solutions such as a “curfew” on evening communications or systems that automatically delete emails sent to employees when they are on holiday or not working.

 

 

posted by admin on dicembre 15, 2016

Privacy

(No comments)

The Privacy Shield agreement, which regulates cross border data transfer flows between the European Union and the United States and which recently replaced the previous Safe Harbor agreement, is once again under discussion.

Only a few months after the text came into force, the European Court of Justice has been called upon to decide on the adequacy of the level of protection guaranteed by the Privacy Shield agreement.

A number of companies working in the digital sector and performing the transfer of personal data abroad (among which the by now well known Digital Rights Ireland Ltd.) argue that the Privacy Shield agreement does not offer an adequate level of protection, contrary to what was deemed to be the case by the European Commission, which on the 12th July 2016 implemented the adequacy decision, making legitimate the transfer of data towards the United States and those American organizations endorsing the new agreement.

In particular, the claimants maintain that the EU-US Privacy Shield does not fully implement those principles and rights regarding personal data protection included in directive 96/46/EC (which will be repealed from 2018 by means of recent EU Regulation 679/2016) and consequently, does not adequately safeguard the rights of European citizens. In the appeals it is also brought into question that the agreement does not exclude indiscriminate access to electronic communications by foreign authorities, thus in violation of the right to privacy, to the protection of personal data and the freedom of expression as set out in the Charter of Fundamental Rights of the European Union.

For the abovementioned reasons the said companies appealed challenged the Commission’s adequacy decision in accordance with art. 263 TFUE, which grants interested parties the right to appeal against the Commission’s acts and obtain their annulment within two months from their entry into force or their publication.

It is worth recalling that the Article 29 Working Party had already expressed its fears regarding certain aspects of the agreement, which had not been modified, despite repeated requests for review. Immediately following the implementation of the Privacy Shield agreement, in a statement on the 26th July 2016, the Group of European DPAs underlined that no concrete security measures to prevent the general collection of data had been provided and that the independence of the role and powers of important redress bodies (such as the Ombudsperson) had not been guaranteed.

As a consequence, the new system does not seem to have helped to establish a climate of certainty regarding the legal framework regulating cross border data transfer flows to the United States, a country, which has clearly not yet gained the trust of European operators. The decision by the Court of Justice is now awaited since it might either consider the appeals inadmissible due to a lack of legitimization or groundless motivations or decide to uphold them.

 

 

The 54th session of UNCITRAL Working Group IV on Electronic Commerce brought to a close work on the regulation of “Electronic Transferable Records”, following which a new Working Group on Identity Management was formed.

During the last session in Vienna, Working Group IV on Electronic Commerce of the United Nations Commission on International Trade Law (UNCITRAL) produced a final version of the International Model Law on Electronic Transferable Records and invited the UNCITRAL Secretariat to forward the text to all Member States and international organisations for their opinions, after which the text will then be submitted to the UNCITRAL Commission in Vienna in July 2017.

Over the last five years the Working Group’s activity focused on the definition, the rules and the use of these particular electronic financial data. As its President, Giusella Finocchiaro chaired the Working Group from 2012 until the termination of its work.

In its activity concerning ETRs, the Working Group drew inspiration from a number of fundamental principles such as those of technology neutrality and of non-discrimination between paper and electronic documents, keeping the impact on national substantive legislation to a minimum.

At the same time as they brought to an end their analysis of Electronic Transferable Records, the Working Group initiated a discussion on the new Identity Management project assigned by the Commission, which is currently an issue of significant national and international interest.

The new Working Group will be required to focus both on Digital Identification systems with a diversity of subjects and on bilateral systems and will have to take into consideration the identities of both natural persons and legal persons, without at the moment excluding digital objects. There was a reminder that the Commission’s mandate also concerns “Trust Services” the detailed study of which will be made in the future, but which will immediately be taken into consideration working out their definitions.

Therefore a group of experts has been created for the elaboration of first drafts. Given that the European Regulation on this subject has recently come into force, the European approach, which the Commission strongly supports, will be most significant.

 

A recent judgment by the European Court of Justice stated that IP addresses can be considered as personal data in that they can be used to identify a user by turning to the authorities or ISP providers.

The point was raised in the context of a controversy between Mr Patrick Breyer and the Bundesrepublik Deutschland (Federal Republic of Germany) concerning the registration and storage of Mr Breyer’s IP address on the occasion of his consulting a number of Internet websites of the German federal services.

Every access to German Government websites is registered with the aim of thwarting cyber attacks and identifying hackers and at the end of each consultation session, a range of data is stored, such as the name of the website or file consulted, words typed in the search bars, date and time of consultation, volume of transferred data, outcome of the consultation and the IP address of the computer which has effected access.

Mr Breyer petitioned the German administrative judges, requesting them to prohibit the Federal Republic of Germany from storing IP addresses. His request was rejected at first instance trial, but the Appeal Judge partially accepted his petition, condemning the Federal Republic of Germany to refrain from storing IP addresses when these are collected together with the corresponding date of consultation and when users reveal their identity during the consultation session, even though in the form of an e-mail address.

Therefore, according to the German Court of Appeal, dynamic IP addresses associated with dates of consultation are only to be considered personal data in those cases when users have revealed their identity when surfing the web, whereas if users do not reveal their identity during a consultation session, IP addresses would not be considered as personal data as only Internet service providers could link those IP addresses to the names of their subscribers.

As both the Federal Republic of Germany and Mr Breyer opposed the Appeal Court’s decision, each petitioned the Bundesgerichtshof (Federal Court of Justice), Mr Breyer aiming at full approval of his injunction and the State requesting its rejection.

The Federal Court of Justice pointed out that the qualification of IP addresses as «personal» data depends on whether or not it is possible to identity users and raised a question of doctrine regarding the choice of «objective» or «relative» criteria in order to establish whether a person is identifiable. Applying «objective» criteria, IP addresses could be considered personal data even if only one third party were able to determine the identity of the person involved; the third party, who in this case would be an Internet access service provider. On the other hand, according to «relative» criteria, these data could only qualify as personal data in relation to a particular subject, such as the Internet access service provider, who was able to trace precise identification back to a specific user. On the contrary, IP addresses could not be considered personal data for other subjects such as Internet site administrators, since they are not in possession of the necessary information for identification without resorting to external sources, except for those cases in which users reveal their identities while browsing the web.

First of all the European Court of Justice observed that a dynamic IP address does not represent information referring to an «identified natural person», since it directly reveals neither the identity of a computer owner connected to an Internet website, nor that of another person who may be using the same computer. However, the Court stressed that the wording in art. 2, letter a) of directive 95/46 proves that a person is considered identifiable when they can be identified not only directly, but also indirectly. Moreover, recital 26 of directive 95/46 states that, to determine whether a person is identifiable, it is appropriate that the sum total of the means that may be reasonably used by a data processor or others to determine said person’s identity should be taken into consideration.

According to the Court, the fact that additional information necessary to identify users is not directly in the possession of website administrators, but rather in that of Internet access service providers, is not sufficient to exclude dynamic IP addresses from being considered as personal data in accordance with art. 2, letter a) of directive 95/46. Indeed, it needs to be established whether the possibility to match a dynamic IP address to the names in the possession of Internet access service providers constitutes an accessible means for website administrators. A situation that would not be conceivable if the identification of the person involved was prohibited by law or in practice unfeasible, for example due to the fact that it would imply an enormous amount of time, cost and labour.

Despite German national legislation not allowing ISP providers to directly transmit information that identifies a person starting from an IP address, the Court stressed that there are legal instruments which, especially in cases of cyber attacks, allow website administrators to turn to the appropriate authorities, in order that these authorities can obtain the relevant information from Internet access service providers and initiate criminal proceedings. It follows that there are means, which, with the help of other subjects, can be reasonably used to identify a person based on their IP address.

Therefore, the European Court of Justice has established that article 2, letter a) of directive 95/46 must be interpreted as meaning that a dynamic IP address registered by a website represents personal data, where website administrators are concerned, in the event that they are in possession of the legal means to allow the identification of the person involved by recourse to an Internet access service provider.

The European Court of Justice decision is available HERE.

 

 

posted by admin on novembre 15, 2016

computer crimes

(No comments)

This is a summary of the interview given by Prof. Giusella Finocchiaro to Vanity Fair, in which she was invited to explain certain legal aspects underlying some particular recent news items regarding online privacy.

Social media allow a choice of the level of visibility for each post published, however for uses such as that of videos illegally circulated online judicial measures are required. Giusella Finocchiaro, the first attorney at law in Italy to teach Internet law, explains how.

Two cases recently appeared in the news in the space of just 24 hours. Firstly, the suicide of a 31-year-old woman, whose hard core videotape had been circulating illegally on the web for more than a year and the case of a 17-year-old girl, whose girl friends recorded and posted a video of her while she was being raped in a disco. Both of these cases raise the question of what the limits of privacy on the Internet are. The head of the Italian Data Protection Authority, Antonello Soro, spoke of « the risk of being pilloried that the Net exposes us to, given the lack of adequate user awareness of the nature of its unlimited space and of the damaging effects that violent communication or the ferocity of ruthless mockery on the part of others may cause».

Lack of legislation was not in question Soro did not speak of a lack of legislation but rather of the need for «appropriate response procedures on the part of the different platforms» and also of another fundamental need: namely «to cultivate respect among people on the Internet». Investment in digital education is fundamental also according to Giusella Finocchiaro, (attorney at law and Professor of Private and Internet law at the University of Bologna, the first chair for this subject in Italy, as laws exist and the legal course followed by Tiziana Cantone (the woman who committed suicide) was the correct one, but timescales remain lengthy and not all people know how to protect themselves.

 

 

  • Recent comments

  • Popular posts

    • None found