I think you and everyone making similar points in this thread are getting tripped up by the difference between rules-based regulation and principles-based regulation. This is unsurprising, given that the US is so heavily rules-based, but the EU (certainly the UK) has a long history of principles-based regulation.
In rules-based regulation, all the rules are spelled out in advance, and the regulator is basically an automaton once the rules are set. In principles-based regulation, the rules are extensive rather than complete and you expect the regulator to have some lattitude (and, if the system is well designed, a mechanism of recourse if they do something stupid).
An advocate of rules-based regulation would say this can make regulators unpredictable and capricious. An advocate of principles-based regulation would say it is an important safeguard against "rules-lawyering" and regulatory capture (especially the kind that ties new entrants up in check-box compliance that doesn't actually affect your business because all the rules have been worked around).
A classic example would be the time PayPal tried to tell the UK regulators they shouldn't be regulated like a financial institution (which is a claim they successfully made in the US). They pointed to chapter and verse of the relevant law, and said that according to subparagraph 2.b.c(iii)... and the relevant regulator essentially told them "shut up, you keep consumers' money for them and will be treated accordingly". As a result, the worst "PayPal took all my money and I can't get it back" stories generally do not come from the UK. (And when they do, they are accompanied by referrals to the Financial Conduct Authority, who have teeth.)
You can approve of this way of working or not, but the GDPR is a principles-based regulation, and you'll have to engage with it on those terms.
What you dub principles-based regulation others call trust-based regulation, or randomly-enforced regulation, or we-know-it-when-we-see-it-based regulation. Some don't appreciate this type of regulation.
I think the unfortunate thing is that, when the previous/existing incarnations of these protection laws were/remain unenforced, many assumed it was because of lack of "teeth". But those of us familiar with how these principles-based regulatory bodies work know that it's more about confusion and regulator apathy. Nobody here is watching the watchers. Instead, there's a bunch of people foaming at the mouth with pitchforks asking for more laws and dismissing alternative concerns as hysteria or not understanding how laws work. We should be discussing how to solve the problem, yet we continually devolve to discussing the government-led solution presumably because we feel helpless and can't consider better options.
Going on a bit of a tangent here, I am becoming concerned with how we discuss these things. You're completely either for or against it. And if you're against one way you are automatically for the other. If you think one thing is bad, obviously you need to be corrected that other thing is bad too. And then you'll get extreme examples showing it. Call it whataboutism, appeal to emotion, whatever.
Every time these GDPR discussions come up, someone is always quick to say the US is worse, US is getting a taste of its own medicine, that dissenters must want surreptitious data collection, and on and on. Oddly enough, bringing it full circle, the tendencies for humans to argue in these directions instead of stay focused on the issue at hand make me glad to have more strict boundaries that are less subject to the whims of idle thought. Obviously this can't be absolute, so we should craft our rules to limit their scope at least from the outset. It's not about one country/continent vs another, it's about the goals and how they are achieved. Some believe and/or have experienced difficulties conforming to all sorts of government rules, it is a human thing not a location one. IMO, we need to stop deflecting and we need to stop being so absolute. People that are feeling pain of impending laws are not hysterical and laws are not magically OK because other forms/interpretations have downsides.
I think this is a situation where it's easy to see the mote in someone else's eye. I tried to provide a summary using the standard terms for both approaches (in practice, making it clear I preferred a principles-based approach); you jumped up to rebut (in practice, by trying to find the most derogatory synonym for "principles-based regulation" and accusing opponents of "frothing at the mouth"). And then both of us are astonished by the level of partisanship in this argument ;)
It's true, I do think that a more principles-based approach is usually preferable. (And I will happily marshal anecdata to that end!)
But it's naive to think that any approach comes without a cost. Even the PayPal example I mentioned above could be coloured the other way: A company makes a major investment in a foreign market, only to find the rules changed underneath them by a capricious government agency! (Someone brought up IR35 down-thread, and that's an excellent example too.) Is that an acceptable cost for the outcome? I'd look at the overall state of (eg) consumer financial protections in the US vs the UK and say "yes"; but I'm open to evidence-based disagreement.
Meh, I'm less concerned with disagreement (or the words used) than I am with deflection. To be clear, and brief, I am not saying one approach to law is better than another (though I too have my preferences and of course corruption anecdata abound). In this case, I think neither legal approach is preferable with such a large statute. But if we are resigned to this option, one could argue that the size/scope of the legislation can only happen with vagueness and trust. In general I think we could arrive at a GDPR-level statutes (at a global level no less) after working up to it. And I don't believe the regulatory bodies' failures themselves justify doubling down on those same failure-causers. I could talk about my suggestions for days, but in general a good set of first steps would be simple transparency requirements for specific uses and tangible enforcement.
Thank you for bringing this up. I never knew PB law was a thing. I thought it was just poorly written. Being a yank, I just assumed they forgot the corner cases. I am anti authoritarian by nature so I tend to view authorities as Djinn that must be tightly constrained by wording lest they find a way to misbehave. I would have thought PB would have a higher risk of regulatory capture and corruption of regulators than RB. What is a small business owner's recourse if a regulation is being selectively enforced to favor a competitor? To they need to find funds to retain legal representation? What if the competitor is much larger?
Edit: I realized this might sound passive aggressive. I like the idea of human judgement in regulation, but I really want to know what checks are commonly used to account for all actors involved potentially being malicious.
I think your tangent is merited and unfortunately there seems to be a lot of polarizing comments (I might have done a couple, but there are some that really go over the top in either direction, like "hiring a lawyer to be your DPO is trivial" or people spreading FUD and saying how they will have to shut access from the EU to their personal site, etc.)
But in essence people are missing the bigger context.
Principles-based regulation means you're still committing the same number of crimes per day if you somehow anger the wrong people. If the local police don't like you, then principles-based laws can be used to single you out and target only you.
This is it. Thank you, I commented about my local experiences with government in Europe and US/Canada but did not know the correct terms and you're right, I think this is the big difference and a driver of fear outside of the EU. In Canada I found the police, by-law enforcers, and almost any official are essentially rules based robots, very much different to my experience in the UK. Thank you for teaching me about rules-based and principles-based regulation. This is one of the big reasons I enjoy living in Europe tbh, a bit of discretion and old 'common sense' is actually quite an awesome thing.
The EU’s digital commissioner said in 2015 that the EU should use regulation to "replace today’s Web search engines, operating systems and social networks" with EU companies.[1]
And they've passed or proposed ridiculous laws like cookie warnings and link taxes. We have reason to be suspicious of their intentions.
You have to keep in mind that the EU is not as integrated as the US on a political level. You need diplomatic leeway to get everyone to agree to do anything: instead of saying "this is what we'll do", it's "this is more or less what we do, everyone gets to fill in the details on their own". Without that level of flexibility and autonomy for individual countries, they would block the legal process even more than they are now.
As for the link tax: I would blame the publishers pushing for it, not the EU.
An advocate of rules-based regulation would say this can make regulators unpredictable and capricious.
Unfortunately, so might students of history. Ask anyone in the UK who was working in the freelance or contract world when IR35 was introduced.
In that case, too, the principle was reasonable enough: there was a loophole in tax law where you could decide you're a contractor instead of an employee and pay less money despite for all other practical purposes still being an employee, and this was being actively exploited by some people.
In that case, too, the reality was that most people working in the sector probably wouldn't be challenged by the authorities, not least because the enforcers had limited resources.
But in that case, too, a given individual's status was often unclear. While some of those who were deterred or subsequently received penalties really were engaging in obvious tax avoidance, other reports described crippling penalties for people whose arrangements appeared to have been quite reasonable but to have fallen foul of someone in government's dubious interpretation.
This led to substantial amounts of time and money being collectively spent by the freelance and contractor community incorporating new legalese into contracts and paying for advice and taking out insurance policies. An entire trade body was formed primarily to deal with this threat. Even today, those of us who take on any sort of individual contract or freelance work from time to time have to be careful not to say or do certain otherwise reasonable things, or to allow others to do so, for fear of tipping the balance or giving any appearance that might be subject to challenge.
And the irony is that while the law arguably had some effect initially in getting contractors to go back to being permies if they were just using it as a tax dodge, overall it appears that IR35 has raised very little extra tax revenue for the government. It turns out that the vast majority of contractors and freelancers were operating in that fashion legitimately and continue to do so, and most enforcement actions appear to fail to the extent that the government even tries any more. Nevertheless, the rules still hang like a sword of Damocles above the whole sector.
Are you claiming that most companies are not storing data in compliance with current law today? There's a meme about how all businesses are trying to exploit personal data mercilessly at any cost, yet among the small businesses around here and the people I know who work there, none of us is in that line of work, nor I suspect would any of us want to be.
I do not believe that the vast majority of companies which are significantly impacted by the GPDR were storing data in a reasonable manner, no.
Having to spend some effort to make sure you are in compliance with a huge new piece of regulation is expected and I understand that people complain about having to do it. However, after the initial bring-up pains any business which continues to have a problem with the GPDR most likely has a business model directly in conflict with the spirit of the law.
I do not believe that the vast majority of companies which are significantly impacted by the GPDR were storing data in a reasonable manner, no.
If that's your personal belief then obviously you're entitled to your opinion, but have you seen any actual evidence that that is the case?
However, after the initial bring-up pains any business which continues to have a problem with the GPDR most likely has a business model directly in conflict with the spirit of the law.
Perhaps, but as you say, what we know now is that there are some initial compliance costs for everyone. If nothing else, we all have to understand the new regulations and our obligations under them, and we will now have to allow for additional subject rights and stronger and more specific documentation and notification obligations, which generally apply retrospectively as well.
I admit that part of my concern here is not specific to the GDPR, but rather to the general practice of creating ever more rules governing businesses. Every time some new regulation comes along, the costs of running a business go up. Not only does that impose some level of overhead on established businesses, it also has a chilling effect on new businesses starting up, and on paths to growth like starting a side business that can expand to something full time and later to take on additional employees. If a new regulation is necessary to achieve some positive effect, then those overheads might be justified as well, but I remain to be convinced that this is the case for most of the new rules and regulations that have come in over the decade or so that I've been doing this now. The GDPR is just the latest example of something perhaps well-intentioned but poorly implemented.
> If that's your personal belief then obviously you're entitled to your opinion, but have you seen any actual evidence that that is the case?
I can't speak for that other person but I've seen lots of evidence to that effect. I look at ~40 companies / year at the moment and a large percentage of those has issues. Usually not because of malice, mostly because of lack of resources or unfamiliarity with regulations.
Say I use a DDoS prevention service (like cloudflare). They get my user data, and also have to be under scope of GDPR as well. And since IP isn't indicative of EU citizenship status, a company had better apply GDPR to everything rather than just a subset.
In the end, this law makes a "We respect the privacy of your data" subset of providers, and provides a great way for us users to identify bad actors (Google, FB, Amazon, etc).
I'm absolutely glad to heard that (about CloudFlare).
The GDPR is becoming a "I'm doing the right thing" checkbox. At least with the European rule, we data-drained Americans can rely that these services might cost more, but we retain our rights.
Lack of will have to be scrutinized. Smaller places may make the determination based upon reasonable answers, or be malicious. Facebook/Google/Etc wouldn't exist in their current forms if there was strong privacy rules in place.
> This is unsurprising, given that the US is so heavily rules-based, but the EU (certainly the UK) has a long history of principles-based regulation.
This is a good point, but many people seem to forget that most misdemeanor criminal offenses in the US are punishable by fine and/or up to 30+ days in jail. People do not often get the jail time so most don't even think about it, but it is available as an option to the judge for things like repeat offenders.
Unfortunately in the US, any conviction leads to essentially a work "blacklist," whereby employers do background checks and deny employment for anything they find within 7 years.
Not for non-violent misdemeanors. Unless you're a flagrant offender you will normally be slapped don the wrist and given a stern lecture in the form of a class. Source: was in a fraternity in the US where literally nothing bad happened to anyone I knew with a misdemeanor outside of a fine and class
A lot of companies won't hire you if you have a criminal record of any kind. Some won't even hire you if you have any record of arrest, regardless of conviction.
> If the court seals the record its nearly impossible for anyone but government agencies to discover
No, it is not, because background check and other third-party intelligence firms aren't purely reactive now, they have and use tools to proactively vacuum up public records and maintain their own DBs. After-the-fact sealing of arrest records or expunging of convictions has no effect on data that is already in third-party hands.
Never knew this, so is it that just no employer cares enough about minor misdemeanors or the cost of doing so makes it not worthwhile? I've never heard of anyone getting a job offer taken back because of a minor misdemaonor
Now if the government interpretation of GDPR will differ from a website owner's they'll be able to shut it down with a fine. Since this law can be interpreted in so many ways they can virtually fine any site they don't like, because depending on interpretation every site can be found non complaint. This is huge and dangerous.
> In rules-based regulation, all the rules are spelled out in advance, and the regulator is basically an automaton once the rules are set.
Given that description, after a couple decades working in some and dealing daily with the acts of other agencies who which issue and apply regulations on the US, let me assure you that the regulatory system in the US is nothing at all like “rule-based” as you have described it.
I have also been extensively involved in compliance issues at US companies in the financial space and this comment is dead-on. The idea of rule-based regulations is a complete straw man as far as I can tell.
Or you can just disengage with Europe all together, which is an obvious choice for many small to medium sized companies, given the risks and costs involved.
We ran the numbers on how much it would cost to establish compliance, and with that alone it was barley worth it based on the current EU customer base we have.
We also considered all the additional liability we’d be taking on, and with that alone it was barely worth it based on the current EU customer base we have.
We’d also be very happy if one of our competitors started investing in the EU market. It’s worth about 10 times less than the US market in our industry, so having them chasing peanuts in Europe (and investing in compliance with European - absolutely not international - regulations) would be a truely fantastic outcome for us.
Where did I advertise misuse of our customers data? Compliance and privacy are not the same thing, just like compliance and security are not the same thing. We have a great privacy policy and we don’t misuse our customers data in any way.
For us, it didn’t make sense to invest the amount of money we’d have to to establish compliance with the GDPR, or to invest in maintaining that compliance, and the liability that GDPR would introduce for us most certainly didn’t make sense.
Europe is worth almost nothing to us, we don’t market ourselves there because it’s a waste of money. The EU customers we have all sought us out, not the other way around. For us, the cost and liability is simply not worth it. I think you’ll start to see more businesses make this decision, based on facts and numbers. You can’t just cry that they’re all being hysterical or want to abuse they’re customers data and privacy. When you introduce expensive new regulations, that have very strong punitive elements, this is exactly what you’d expect to happen. Small to medium sized businesses will wear the most of the cost (while posing the least of the risk). Luckily for us, EU is worth close to nothing for us.
You are advertising that your handling of personal data is so haphazard that GDPR compliance would be expensive.
You are admitting that you aren't good enough for the EU, and therefore that you aren't very good in general at whatever you do.
I expect that, at least in some obviously global markets like most e-commerce, GDPR compliance (as opposed to throwing the towel like you) will be treated like a certification of being a relatively non-evil and non-amateur business, with a significant impact outside the EU.
I’m sorry, but this is simply the naive opinion of somebody that has clearly never had to deal with compliance before on a meaningful level.
My customers are all happy with my privacy policy, and not a single one outside of the EU has expressed any interest at all in the GDPR. We are actually compliant with a majority of the regulation, however there are some areas where we would have to re-architect to gain full compliance.
This is not in anyway a signal that we’re “not good enough” to handle our customers data. It is mostly a sign of a poorly written piece of regulation, that has more undefined edge cases than it has defined use cases.
We’re not going to be the only company that comes to this conclusion, so you can go around slandering anybody you like, but that’s not going to change the facts behind what is a rather simple business decision for a lot of people.
You’re incredibly naive if you think complying with regulations like this is going to be cheap and easy, and your even more naive if you think that compliance is going to mean anything other than a rubber stamp. I’ve seen PCI, Fedramp, ISO27k, SOC2... organisation that have been certified as compliant, but were in reality less than 10% compliant. The compliance industry is a joke worldwide, and everybody knows it.
I'm arguing from the point of view of a customer, not "slandering".
Customers are going to have a choice between GDPR-compliant companies and USA-only ones and (if they care) they are going to assume the worst about why the GDPR can make a company retreat from the EU market.
As far as the public understands that complying with a new law is expensive, and why GDPR compliance in particular is expensive, it is obviously more expensive for "bad" companies: don't expect the same compassion and tolerance with which other types of customer disappointments (e.g. raising prices) are received.
Your competitors who do not retreat from the EU are obviously caring more for customer privacy, and/or better organized, and/or less reliant on excessive data collection. They are not going to be considered stupid because they spend more than they should on doing the right thing.
You admit bad organization ("there are some areas where we would have to re-architect to gain full compliance"): not trying to comply with the GDPR is clearly not a "rather simple business decision", it's a decision to accept failure instead of losing even more money, and you aren't going to look good even if it's the rational choice in your situation.
Right now we are going through a federal audit. We sell only to US orgs, but also have a social media platform.
Because our social media platform is open to all, we are addressing adhering to the GDPR. In spirit, we already do, but they want what amounts to 5 documents how we use metrics and user data.
(Edit: we use metrics only in a '20 new people signed up'. We treat all data as federal confidential data. We also abide by deletion requests - immediately all user data is zeroed out, and a script overnight removes the zeroed fields. If it should not have been entered, we also will nuke users on backups too.)
If you're doing things respectfully and the right way, the GDPR is a nuisance. If you were hoovering anything and everything, you're in for a bad time.
And given your comments above, I'd put you in the company of "Hoover, Dyson, and Electrolux".
Edit:
> "My customers are all happy with my privacy policy,"
Do they have a choice, aside to never use your stuff? If do you force acceptance of the 'privacy policy' on usage of your service? If you, that is in direct violation of the GDPR.
Hope you never want to consider European citizens as a customer. Building in this respect is cheap, but is expensive if you ignore now.
Think of this as "California Emissions". Eventually the US will adopt, even if in defacto. Might as well be on the right side of the fence.
So because you don’t have many in-scope systems, you believe that the cost of compliance is going to be the same for every company in the world? And what did I say that gave the impression that I don’t respect my users or their data?
Our application is a financial one, so I’d say it’s reasonable to assume that it ends up with a lot more in-scope PII than yours does.
In spirit, we also comply with almost all of the GDPR. However, some of its undefined edge cases prevent us from fully complying with it without an expensive re-architecture project, and re-implementation of some of our toolset. The areas we don’t comply with are incredibly minor, and I’ve seen some people arguing that we’d fall within the GDPRs limits of flexibility. However, that’s not how we manage risk. No matter how confident we were, being wrong could potentially end our business with fines.
As I have said repeatedly, for many small to medium sized businesses that don’t have many EU customers, there is simply no reason to implement GDPR at all. The costs can be quite high, and the risk of getting it wrong is enormous and not survivable. This is one of the many unintended (although entirely expectable) side effects of the regulation. All you’re trying to do is spread FUD.
I think that this point can't be over-emphasized, and I wish you had put that sentence in its own paragraph.
Risk (management) was also alluded to elsewhere in the comments in the discussion of "rules-based" versus "principles-based" regulation.
Perhaps characterizing certain business reactions as "panic" is grossly unfair, when they're merely sensible (or even somewhat excessive) risk-aversion reactions.
I've come to suspect that the HN readership has a high risk-affinity, not just because of the startup leanings, but also even because of the preponderance of programmers working in internet/web tech, possibly never even being exposed to an environment that's life-critical or money-critical (is there a word for that? fiduciary?). Given that, I also suspect there's also broad, possibly even unconscious assumption that risks like you're describing are no big deal, 80% compliance is more than enough, (always) ask for forgiveness instead of permission, and that sort of thing.
Personally, I don't think there's anything wrong with either risk-affinity or risk-aversion, as long as one is aware of it and it's not an unconscious bias.
I think you've hit the nail on the head regarding the bias of this particular forum. As a group, it seems obvious that HN would be less risk-sensitive than the average.
For the sake of the topic however, I'd say that in this case the greatest risk is in not pushing to become compliant for the sake of future-proofing against legislation of this type. The mood of consumers and legislators worldwide is becoming increasingly pro-privacy and security.
Essentially, many businesses not looking to adopt GDPR compliant are winning the economic mini-game while getting beaten in the metagame.
> For the sake of the topic however, I'd say that in this case the greatest risk is in not pushing to become compliant for the sake of future-proofing against legislation of this type
I find it a bit frustrating that you would so clearly ignore the whole point of this sub-thread merely to repeat the same sentiment about privacy and security, which wasn't under debate in the first place.
Are you seriously suggesting that the GDPR is the end-all, be-all of data privacy regulation and that "legislastion of this type" will always be a proper subset of the GDPR, no matter the jurisdiction?
If not, then even your purported future-proofing rings hollow, especially for a company which already substantially complies with the spirit of the legislation, which is what we've been discussing here.
> Essentially, many businesses not looking to adopt GDPR compliant are winning the economic mini-game while getting beaten in the metagame.
I remain unconvinced that this is true, because of, again, risk. It seems credible to me that, for many businesses, the risk could easily not be worth it, regardless of others opinions on the ease of compliance or financial exposure (so far only unsubstantiated opinions, as we have no actual data on enforcement yet, and this is a pretty deeply political matter, as you yourself point out).
Moreover, I find it telling that you would refer to the situation as a "game". I expect the business owners in question (I'm assuming smaller business, in general) are more likely to view it a bit more soberly, in that they're running a business, not playing a game. As such, I don't expect they have a "mini" or a "meta", only decisions for which they and those that depend on them bear the consequences.
I think the underlying idea here, is that data is "radioactive". Quite a lot of data can be fed into classifier systems to accurately identify people (not just computers), their trends, their shopping habits, and other much more private things.
In Europe, because of classification systems surrounding IBM and Nazis, have chosen to be very proactive about the dangers of having too much data. It may be used right now in a good way, but the data can easily be used for very evil things.
The GDPR reminds me of a Target (chain retailer) advertisement where a 17 year old girl was being profiled and send pregnancy, maternity, and baby ads. The father was angry at Target sending his daughter this, until the daughter fessed up that she was indeed pregnant. How did they determine this? Shopping purchase records. The GDPR may not have stopped the first occurrence, but would have provided sufficient "bite" to ever stop this from ever happening again.
Your response seems to completely ignore what I said, which had nothing to do with data. It's as if you're just making an appeal to emotion.
I keep smelling this false dichotomy: either you're complying with the GDPR or you're doing something nefarious.
Others may be arguing against the spirit of the law, the extent of the protections, the tradeoffs between data and privacy, or any of those topics actually related to data or its storage. I'm not, nor is the GP.
I'm arguing that businesses can make perfectly valid decisions regarding risk with respect to regulation that have little to do with the compliance in spirit.
> I keep smelling this false dichotomy: either you're complying with the GDPR or you're doing something nefarious.
It certainly doesn't appear to be a false dichotomy to me. If your company has a European presence, you will be required to follow the GDPR. But for my purposes, companies that say they will support the GDPR globally will absolutely get my business before those that do not.
And there are plenty of areas where my data is used against me. Look no further than the recent cell phone location leaks, or facebook, or google.. The time for their siphoning every last shred of data is done.
> I'm arguing that businesses can make perfectly valid decisions regarding risk with respect to regulation that have little to do with the compliance in spirit.
And I, a customer, can make a very easy choice of "If you assert that you follow the GDPR globally, I will buy from you." I think of it like California Emissions, or other 'Better than average certifying bodies'.
> It certainly doesn't appear to be a false dichotomy to me.
That's the problem. What you seem to be espousing is exactly "my way or the highway" (where "my way" is the GDPR) or "you're either for it or against it", the very epitome of false dichotomy.
Why not actually address the middle ground that has now been clearly explained multiple times? In what way does that non-compliance equate to nefarious conduct?
> And there are plenty of areas where my data is used against me
And here, again, is the appeal to emotion. Where's the data in this case, not those other cases?
That, and the fact that a good chunk of present day Europe was under the Soviet boot for 40 odd years and the people there got to see up close how dangerous data is in the wrong hands (in that case: the government).
Hungary and Poland were under the Soviet boot, but a generation later they are going back to undemocratic and authoritarian governments. Eastern Germany was under the Soviet boot and they have far more neo-nazism than Western Germany who wasn't. So the 40 years seem to have made some long lasting damage instead of fostering as strong "never again" attitude.
On the other hand 12 years of nazi government have left a much more permanent "never aggain" against big brother in Western Germany. To my knowledge it's the only country on the planet where citizens' resistance made Google to stop deploying Streetview (where it might well be debatable whether Streetview is the worst big brother thing. But sometimes relatively minor issues raise big fears and hit big resistance, as it seems to be with GDPR for small US businesses)
Countries are made up of individuals and not all individuals have the same mental make-up. Yes, there are quite a few worrisome developments but there still (maybe not much longer) is an institutional memory of these things that is for the moment exerting a positive influence in this particular domain.
I'm not sure what you mean by this. No magic is required, only sufficient desire by those in power.
That wasn't my point, though. It was that now only governments are allowed to gather and keep this data. Granted, the breadth of what's available to them may not be as great if they're mainly recording traffic with no access to corporate servers, but even that access can be periodically arranged given sufficient desire.
I remember the time we had very good privacy policies but getting that project to be compliant with COPPA was still a significant effort, so I think I get where you're coming from.
Once we became compliant, quite frankly, I felt a lot safer and more confident in affirming that our privacy policies were very good. Maybe it was some kind of sunk cost syndrome, but I was glad we did (were forced to do) it.
thanks, you’ve pointed out a great signal that now exists. don’t do business with companies that choose to pull out of the eu market rather than comply with gdpr. these are companies that have made an explicit decision that user data privacy is a burden not to be cared about.
my company OTOH is choosing to apply gdpr principles globally.
Compliance and cost of doing so does not equate to privacy. Remember when all of the auto manufacturers in Europe "complied" with new regulation by spending a fortune on testing?
And in your mind there is absolutely no possibility that a reasonable explanation would exist why a company would pull out because of it?
How about cost of compliance? For example, just the fact that you need to figure out whether you are compliant or not costs money. If you ask for user consent, then you must be able to later show that you got said consent from the user to work that data. You also have to take into account the risk of fines if something somewhere goes wrong. We, as software developers, should be intimately aware of how things can go wrong despite everyone trying their best.
All of these things cost money. If the cost is greater than what the business from the EU brings in, then it's not worth it. The fact that there are people who immediately and only jump to the thought they don't care about privacy is very worrying.
There is a difference between complying with GPDR and caring about privacy.
I completely and utterly care about privacy, but things like not tracking IP address and allowing people to request removing them are a bridge to far. I can’t comply with that. I treat my customers important PII (names, addresses, etc) very delicately. But the cost of complying GPDR is too must.
> allowing people to request removing them are a bridge to far.
Are dissonant. You will have to pick the one or the other but you can't both care about privacy and not allow people to request removal of their data. That should be fairly obvious.
GDPR does allow you to record IP addresses in access logs and whatnot. And I'm not so sure people can actually ask you to remove their IP addresses; they'd have to demonstrate use of that IP over the relevant time interval, which is beyond most people. So I think while GDPR requires you to have a good reason to collect IP addresses, it doesn't meaningfully impose an obligation to be able to expunge them in removal requests.
and what will you do when Canada follows in the EU's footsteps? Or the rest of the world? When they finally put pressure on the US to do the right thing? Because this is the right thing to do.
An option that I see a lot of companies taking, we considered it, but decided it wasn’t worth it. I personally know of a few companies that have decided to blatantly ignore it until they see how offshore enforcement works out. If it ends up being favourable, it’s a strategy we may adopt.
The GDPR regulation directly applies in all member states, and does not need individual states to do anything at all to enact it. If national courts decline to enforce it then it can escalate to the Eu courts.
It is also international in that it applies to EU citizen date no matter which country it is held or processed in.
It is true — you need to read the actual GDPR rather than online summaries.
The GDPR creates some new criminal offences that can be prosecuted through courts without the regulatory authorities being involved in Clauses 162 & 163.
Article 82 allows individuals to sue in court for compensation if breaches of GDPR rules cause harm.
I read the article, and I found it more than slightly dismissive of this option, particularly because the article (and other commentors, it seems), in effect, makes the inference that the main goal of avoiding compliance is a continuation of some nefarious behavior.
A bunch of companies are going to do this and then regret it when they notice that their competitors really didn't have to do much work to become compliant.
Then they'll try to come back... after their EU user-base was kicked out and forced to find alternatives.
> If the original business couldn’t, its unlikely the competitor could.
Considering amount of FUD spread about fines, even here, with fairly educated readership - I don't think you can really trust other people's cost / benefit analysis, even when they happen to have same variables with same values.
People are often wrong even in much clearer cases . . .
We’d be quite happy if that happened. Seeing our competitors investing in Europe would simply mean less competition in markets with much greater growth.
> In order to determine whether such a controller or processor is offering goods or services to data subjects who are in the Union, it should be ascertained whether it is apparent that the controller or processor envisages offering services to data subjects in one or more Member States in the Union. 3Whereas the mere accessibility of the controller’s, processor’s or an intermediary’s website in the Union, of an email address or of other contact details, or the use of a language generally used in the third country where the controller is established, is insufficient to ascertain such intention, factors such as the use of a language or a currency generally used in one or more Member States with the possibility of ordering goods and services in that other language, or the mentioning of customers or users who are in the Union, may make it apparent that the controller envisages offering goods or services to data subjects in the Union.
By blocking EU IPs the service is very clearly, unambiguously, not targetting EU residents.
Not sure why downvotes. If you block EU IP, EU resident accessing a website on holiday outside EU will not know that the website is not meant to offer services to EU residents. Solely blocking EU IPs is not sufficient. What would do probably is to have a banner on the website, where user is informed that website doesn't allow EU resident visitors with "Leave" button.
Now the problem is if the EU resident confirms that he/she is not an EU resident. Then controller or processor is still processing protected data, but unknowingly.
If you block EU IPs but your business is not targeting Europeans who are on holiday you don't need to comply with GDPR.
If you block EU IPs but your business is targeting Europeans who are on holiday - well, you probably still don't need to comply with GDPR because you've demonstrated attempts to actively avoid European residents.
The test in GDPR is not "does any European ever use the service?" but "are you targeting them?"
I was really wondering that as well. Can we be held accountable?
It would be nice if the GDPR had a piece about “if a company refuses sales, even if they accidentally happen, the company isn’t liable” and/or “blocking EU IPs or redirecting to a no sale page is sufficient to avoid compliance”.
Probably they will not be - but there are cases of extradition of EU citizens to the US for various crimes like hacking. Who knows, maybe it will happen the other way around or some people will have to take holidays in the EU off the list.
Same here. EU makes up such a small amount of or customer base, and EU customers spend far less money with us. Which is generally true in most industries, US consumers spend far more than consumers anywhere else in the world.
If we ever choose to enter the EU again, it will be a careful and deliberate choice, and will likely only ever happen if our growth slows in other regions.
We’ve got a great privacy policy, and don’t abuse our customers data in any way. However compliance would be very expensive for us, largely due to some of our early architecture decisions. The liability is also insane, and we don’t want anything to do with it. When we looked at how little our EU customers were worth to us, it was a very easy decision to simply abandon them.
so you say. if you don’t have strong processes to make sure that is true, it isn’t true. gdpr is mostly about ensuring you have such processes. if
you can’t do things such as tell the user what data you have, and delete it, you do not have a great policy.
methinks you need some advice from better counsel. i bet that you are closer to compliant than you think.
Do you actually think the only way to respect users privacy is to comply with GDPR? That is an absurd and narrow minded opinion. Do you also actually believe that the entire regulation is reflected in your two line comment?
Listen, you’ve said higher up the thread that you are plan to spread FUD about all companies that don’t comply with GDPR as a marketing strategy for your own product. I don’t see how anybody here could possibly take you seriously. GDPR is going to have a lot of unintended consequences, and people aren’t going to be happy with all of them. One of them is that small to medium sized companies will reconsidering doing business in the EU, another is that the scope of the legislation is especially anti-competitive for small EU based businesses. There’s been a lot of FUD going around HN recently that the only reasons a company would plan to pull out of the EU are hysteria and malevolence. That’s not true, and for many companies this is just a simple business decision.
> That’s not true, and for many companies this is just a simple business decision.
But likely based on incorrect advice.
You haven't said why you think your company isn't compliant with GDPR, and it's possible your company is compliant with GDPR, or would require only minor tweaks to privacy policies to make it compliant.
If you ask US-trained lawyers (especially those with exposure to the tech or financial sectors) to perform an impact assessment of a European regulation, don't be surprised to receive a full-on Chicken Little response.
The reality is that the law is not a programming language and compliance is about alignment with principles, not blindly following a set of rules.
Sounds like he analyzed if very closely, so probably not base on incorrect advice.
And I’m guessing he can’t share too much about why since he has said its based on architectural decisions, which might reveal business secrets.
The biggest reason I don’t like complying with GDPR is the IP address situation- I’m going to continue to track them and I’m not going delete them because somebody requested.
> I’m not going delete them because somebody requested.
Why do you think you need to delete them when requested to do so? Can you point me to the bit of the regulation that makes you think that's a requirement?
When I read it, I see that the "The data subject shall have the right to ... erasure of personal data ... where one of the following grounds applies: ... the data subject withdraws consent...."
I imagine that HTTP logs associating URLs and IPs are personal data because they associate users with activity, so they would have to be removed.
It's pretty hard to destroy individual log lines (they're often aggregated in zipped files, for instance), and logs show up in lots of places: your load balancer may log, your web server may log, your application may log, those logs may be backed up to tape, you might have debug logs captured for analysis from any of these systems, and those debug logs might be present on developer machines, not on servers or long-term storage.
That basically means that if any user asks to have their data erased, you have to figure out whether they owned that IP address at that time (so they can't ask for others' information to be removed), then delete all those logs, potentially rewriting your whole tape archive(!), potentially having developers destroy the debugging info they were using to track down a memory leak or whatever (on laptops, or in the ticketing system, or in heap dumps, or wherever it might be).
It's pretty easy to say "don't keep logs of IP addresses", but that's one of the major ways people detect malicious traffic, e.g. spam, denial-of-service attacks, and break-in attempts. It's hard to live without that.
Am I reading something wrong? Is there something I missed in that section that makes it easier?
Is "so we can look for malicious traffic" enough of a legal ground for processing to keep personal information around indefinitely even if the user asked for it to be removed? I can't imagine that's so, as that would be a pretty big loophole.
> the data subject withdraws consent on which the processing is based according to point (a) of Article 6(1), or point (a) of Article 9(2), and where there is no other legal ground for the processing;
There are several justifications for procesing user data. One of them is consent. But there are others. One is "legitimate need". You're not using user consent to process this log data, you're using a legitimate need justification.
> processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.
Legitimate interest doesn't let you gather everything and keep it forever, but standard practice log rotation seems like it's compliant.
The proper way to deal with this is to rotate out the logs after a finite amount of time (you are doing that anyway, right?) and then to delete the logs after yet another period of time, once they have outlived their useful life. That's good practice anyway so I really don't see the problem.
Looking for malicious traffic is not a loophole that allows you to keep data indefinitely - even if nobody asks you to remove it - you don't need to keep it indefinitely.
I'm not the person you're asking this from, but any regulation tends to require extra work to be done. Just the fact that you need to know that you're compliant requires work. Then you have requirements such as being able to prove that users gave you this consent, being able to prove that you did delete all the user data in all the possible places (including back ups, VMs, crash dumps on developer machines etc) when requested etc.
You also have to take into account the risk of the fines. The fines are enormous and there are no guarantees that the regulators will not slap you with the highest fines "to make an example of you" or because you just rubbed them the wrong way. Even if you try your hardest to comply and think you have all the bases covered, it could very well be that you are not compliant because something was overlooked or there's a bug somewhere or something else entirely. You can never be certain about this.
Now you add up all of these costs and compare it to how much the EU market offers you. If the costs to comply exceed the income, and there's no near-future opportunities for large growth, then it would make a lot of sense to just pull out of the market.
If you are already compliant with your great privacy policy, what are some specific things that you find too expensive to be worth it? All I read from GDPR detractors are vague hand wavey claims of “compliance stuff” being expensive. I’m obv not a professional compliance expert so ELI5.
This argument makes about as much sense as "if you have nothing to hide, you have nothing to fear" in support of surveillance laws. Presumption of guilt is a terrible rule to live by.
Actually your argument makes no sense because it amounts to : I am honest therefore there is no need for laws. Thousands of years of human history suggests you are wrong.
GDPR and “not spying on your users” are not even remotely related. GDPR is a massive regulation requiring significant resources that most small businesses simply don’t have.
Surely you already had "cyber" coverage on your general liability policy, right, since you are handling users' data? I haven't been notified of any changes in premium for our policy related to the new regulations, fwiw.
>I haven't been notified of any changes in premium for our policy related to the new regulations, fwiw.
I don't see how you can legitimately believe that there is not going to be an increase in costs. Either the insurance company was overcharging you before, they're lowering their margins or the price goes up. Anything else would require that the risk would be basically non-existent. The price might not increase right now, but it might increase next year or the year after that or the service might get worse.
>Massive legal fees for what, exactly?
To deal with situations that you didn't expect to happen, but did happen anyway. Even if you try your best, mistakes can happen.
The GDP, the consumer spending market and the consumer spending per household is all higher in the US than the EU. You can cherry pick out a few industries where other countries spend more than the US, but it's still the most valuable market by far in most industries.
There is a difference between what GDPR says is okay with user data and what is actually okay with user data.
We may be reasonable with user data, but either disagree with a portion of GDPR (like IP addresses) or do not have the time or money to very we comply.
Still don't understand the issue. IP addresses are being kept private like with all the other user details right? You still can have web logs with ip addresses without needing consent.
And also (as stated in numerous places) that you won't get hit with fines. If you aren't compliant (and it would take a big violation to get their notice) you are given ample time to comply. Or you could in your case if you really are violating it flagrantly then you could just block access to EU. But you would have to a big violater.
So if you look at a prisoners dilemma outline you've got:
- you are violating / you block EU: outcome is no market access to EU
- you are violating / you don't block EU: you have access to the market and if you are caught violating you got ample time to change or you can just block EU and you're in the same boat as before
- you aren't violating / you block EU: you just blocked access for no reason and losing out on a market
- you aren't violating / you don't block EU: You have access to the market
So if you don't know you're violating or you wonder about the IP address and weblogs issue which is minor, then the prisoners dilemma show that best go with continue as normal. There is no case were you would be hit with big fines.
To be honest I know nothing about law enforcement in the EU, but the one thing I have heard about in recent memory is that guy who made a video of his girlfriend's dog saluting hitler, and was subsequently tried for a hate crime, convicted, and was charged with a pretty hefty 800 GBP fine after being found in violation of the Communications Act of 2003[1]. Seems like a pretty poor example of principles-based regulation. Maybe it's just an outlier though, idk.
Oh okay, I actually misremembered what I had seen, I thought it was just the saluting thing. I just checked the original again[1], and that being said I still don't see how this isn't a ruling that is overblown; he's saying "wanna gas the jews" in a playful way to his dog over and over, and the dog responds when this is said.
The ruling was that this was a hate crime, because it was "menacing, anti-Semitic and racist". I have trouble seeing how a Nazi pug that responds to "gas the jews" is anything other than silly bit of absurd comedy. I can't realistically see this video actually advancing any legitimate hatred, or having any negative consequences other than some people laughing at how silly it is, and some people just thinking it's kind of stupid.
I know several people who fit that criterion. I didn't say it wasn't rude, crass, impolite, or ignorant. I said that I don't think it counts as a hate crime, and that it doesn't fit the criterion for "menacing" society. How many people do you think fear for their personal safety because of that pug?
For what it's worth, I grew up in a town that was roughly half jewish, reflected in my circle of friends. When I was younger, extremely crass jokes that made light of historical tragedies were made at everyones expense, including ones that historically affected my family. It was clear that the intent of these was not to instill terror or provoke hatred. It was more of a pissing contest, to see who could say the most absurdly offensive thing.
Were these the types of situations where we should have had more sensitivity to the real weight of these tragedies? Sure.
Were these hate crimes? Absolutely not. When someone commits a hate crime against you, you probably wouldn't regularly invite them over to your house for the next several years...
> I said that I don't think it counts as a hate crime
That's curious given your background. I know a couple of people that still have the tattoos on their arms and one guy who literally has no family at all and it pains me to see that people think that this is just a matter of bad taste. "Gas the Jews" is not a joke, my sense of humor is pretty broad but it does not stretch that far.
To be clear, I'm not arguing that it wasn't a horrible atrocity that completely destroyed many peoples lives, and and I'm not arguing that the genocide itself was in any way funny. The joke isn't that the event itself is funny, it's the absurdity of context in which the statement is being made that's funny.
I can't even count the number of comedy central stand-up specials I've seen that casually make jokes about absolutely horrific things that destroy lives. Jokes that play on children dying, slavery, the holocaust, rape, murder, pedophilia, torture, etc. I guarantee you that both you and I both know someone (or are one person removed, at most) that has had their lives destroyed by one of these things, or something of a similar caliber. Does that mean that none if these jokes can be funny, in any context? If so, I'd say you'd be hard pressed to find a single comedy special that counts as funny; virtually every comedy special I've seen makes light of one of these horrific things in some way.
I'm a big fan of George Carlin, so I can see where you're coming from ('Elmer Fudd', if it rings a bell) and yet I can't cross that particular bridge. Sorry. But thank you for the conversation.
I have family that suffered at the hands of communists. Many were deported and exiled, some were sent to gulags. Some of them made it back, some died there, because the conditions in Siberia were horrible. Do you think it would be reasonable to start fining or jailing people who make jokes about "being sent to the gulag"?
I think you're simply appealing to emotion here to justify an unjust ruling and an unjust law.
I think the person you're replying to has a point in saying that some laws in Europe are pretty ridiculous. However, the difference is that that's a local law in the UK and not one that affects the entirety of Europe. Nor is it a widespread law in other European countries.
Who is talking about jailing, the guy just got a fine. It was pretty big (still less than one paycheck, no?), but if that is the worst case you can find, I think you can make fun of anything.
And fwiw I do think Europe is oversensitive about Nazis-related stuff. But for good reasons.
I don't know, EU members seem perfectly willing to toe literal rules for perverse outcomes in some areas. Open market gamesmanship, for one, such as the proliferation of national standards as a way to exclude 'single' market products.
Maybe they are trying a kind of best of both worlds approach?
Great explanation. I didn’t know the difference between US and U.K. law was so fundamentally different. Thank you for educating me on the correct terms.
This sort of explanation has been very popular by people who are trying to reduce the overall concern level of the community. You're not wrong. You very well could be right and this could be how it will work. Let me give a view as to why it doesn't matter.
The problem with this approach is if you run a large or small company or are a sole proprietorship or simply have a hobby site, you can't write off legitimate fears of heavy handed enforcement. No one wants to be the example.
In the former cases, if your company is how people are feeding and clothing their children, do you want to be the person who says "Oh well we tanked the company this year because weren't worried. Someone on the internet told us they'd be gentle! How could we have known they'd be serious about levying the maximum penalty!?"
If this law is "no big deal" or "so easy to implement" or any other version of the arguments proposed this week, it would not be causing so much concern. It's neither an unreasonable ask or a trivial one. People are being impacted in large ways.
I'm on my company's GDPA compliance team and it is serious business. Our European footprint is small but not insignificant. If we were an unreasonable bunch, we'd just shut the whole thing down and move on. The very expensive very well versed German legal counsel we're paying to help us do this right completely disagrees with what many are saying here. We have no reason to not believe them as they have a lot of experience with the German laws the GDPR is based on. We're paying them far more than the fines we'd see because we believe in doing the right thing. Ergo, we must take the "hard" regulator view rather than your "kid glove" view. Our lawyer's underlying point in every discussion is that this is really really serious business and that they're not fooling around. Adding to that is a GDPR like law is likely to be implemented in Canada and other jurisdictions in the future. We must be ready for that as well.
I think GDPR is great for consumers. I think we'd actually be in a better/easier place if it were a requirement in the US since everyone would have to follow the same rules. The problem is that implementing it takes time and effort to do well at scale. To not loose your competitive edge against other large competitors that do not serve the EU and can operate under only US law. These are real concerns that have nothing to do with the regulators and whatever their whims are.
So even if you're right, these are the real costs. You're going to be held accountable to the people you let down if you put your company in peril. You're going to be held accountable if you loose marketshare because you got this wrong and an unencumbered competitor outmaneuvers you. And most of all, you simply cannot assume the best case, kid glove, approach is what is going to happen. THIS is what people are frustrated with.
I do hope that the EU is fair and equitable (which is my belief) but it would be irresponsible for me to act as if that is the only possibility.
That's a fair assessment and in line with the proportionality of the costs associated with becoming compliant with the GDPR, it sounds as if the company you are working for is smack in the middle of the range where the turnover:compliance costs is at its worst. This is unfortunate but I don't see any way in which that could have been avoided. For trivial companies the cost is negligible because the costs are small or nil, for large companies the cost is negligible because their turnover is huge (unless they are misbehaving on purpose, then the cost might be very large), for companies in the middle it hurts the most but it is still worth doing it and doing it right for all the reasons you listed.
As for this part of your comment:
> If this law is "no big deal" or "so easy to implement" or any other version of the arguments proposed this week, it would not be causing so much concern. It's neither an unreasonable ask or a trivial one. People are being impacted in large ways.
It's no big deal if you already had a user centric approach to privacy, if that's novel then you will probably have to change lots of procedures and some software too in order to get things right, even so I've seen far worse from a compliance point of view, look into fintech or healthcare compliance for examples.
Wow I wish we had principle-based regulation in the US. It seems like rules are made specifically so that only wealthy, entrenched institutions can follow them without significant burden. When those institutions fail, the fines don't seem relative to profit or size of the company or anything.
I suspect it wouldn’t work in the US. Principles based regulation requires some level of concensus on principles. We don’t have that in the US. Polarization breeds rules worship because you don’t trust the other people to use their discretion.
Consider, for example, how every major social issue devolves into a Constitutional litigation. Whereas in Europe people just vote on stuff.
And as to regulatory approaches I think you’d be surprised. European regulation is often quite conservative.
Oh totally agree. Just think about the DMV. The people who work there cite the law word with zero discretion. Most US companies are like that as well. It's quite dystopian.
Well lets say it wouldn't work with the current ruling class mindset where everyone they employ is stupid and unable to think critically.
It depends on where you are. In places like Oregon, the DMV is a friendly place full of smiles where expiration dates can slip a few days and you don't have to change your hairstyle for your ID photo.
In rules-based regulation, all the rules are spelled out in advance, and the regulator is basically an automaton once the rules are set. In principles-based regulation, the rules are extensive rather than complete and you expect the regulator to have some lattitude (and, if the system is well designed, a mechanism of recourse if they do something stupid).
An advocate of rules-based regulation would say this can make regulators unpredictable and capricious. An advocate of principles-based regulation would say it is an important safeguard against "rules-lawyering" and regulatory capture (especially the kind that ties new entrants up in check-box compliance that doesn't actually affect your business because all the rules have been worked around).
A classic example would be the time PayPal tried to tell the UK regulators they shouldn't be regulated like a financial institution (which is a claim they successfully made in the US). They pointed to chapter and verse of the relevant law, and said that according to subparagraph 2.b.c(iii)... and the relevant regulator essentially told them "shut up, you keep consumers' money for them and will be treated accordingly". As a result, the worst "PayPal took all my money and I can't get it back" stories generally do not come from the UK. (And when they do, they are accompanied by referrals to the Financial Conduct Authority, who have teeth.)
You can approve of this way of working or not, but the GDPR is a principles-based regulation, and you'll have to engage with it on those terms.