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EU data protection issues in the
Internet-of-Things (IoT) (or Internet
of Everything)

IoT is subject to the general data
protection law
• Currently: Directive 95/46/EC (“Directive”), available at http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31995L0046:en:HTML
• Soon: General Data Protection Regulation (“GDPR”), expected entry into
force Spring 2018, available at
http://data.consilium.europa.eu/doc/document/ST-5455-2016-
INIT/en/pdf

EU Authorities on IoT
WP29’s Opinion 8/2014 on the Recent
Developments on the Internet of Things,
available at http://ec.europa.eu/justice/data-
protection/article-29/documentation/opinion-
recommendation/files/2014/wp223_en.pdf

Privacy challenges in the IoT (as
identified by the WP29)
• 1. Lack of control and information asymmetry
– IoT, with its pervasive and “unobtrusive” presence, might
cause data subjects to lose control under several
perspectives and result basically in a “third-party
monitoring.”

• 2. Quality of the user’s consent
– EU law requires consent for the legitimate processing of
personal data (save exceptions). Consent is a major
problem with the IoT because often (i) often users are not
aware that a specific object is collecting data (ii) the
possibility to decline certain services or features of an IoT
device is more theoretical than real.

• 3. Inferences derived from data and
repurposing of original processing
– The problem is that data collected by a specific device
might be insignificant (e.g. accelerometers and gyroscope
of smartphones), but this raw information might allow the
controller to “infer” much more significant information (for
example, driving habits)

• 4. Intrusive bringing out of behavior patterns
and profiling
– Due to the “proliferation of sensors,” a vast amount of
separate (maybe insignificant) pieces of information will be
collected and continuously cross-matched with one
another, which “reveal specific aspects of individual’s
habits, behaviours and preferences.” IoT stakeholders will
be able to create general profiles of users.

• 5. Limitations on the possibility to remain
anonymous when using services.
– With the IoT everyone is traceable
– Why? Think of wearable devices (e.g., smart watches),
used in close proximity to data subjects so that they are
able to collect “identifiers” (e.g., MAC addresses of other
devices) that can track the location of users.

• 6. Security risks

• 6. Why cybersecurity risk is higher in IoT
environment?
– Manufacturers prefer battery efficiency over security;
– the number of “security targets” will dramatically increase;
– Need of multilevel cybersecurity multilevel, which involve
securing devices, “communication links, storage
infrastructure” and the entire IoT “ecosystem”
– Since more IoT stakeholders involved to provide a service,
need to provide cybersecurity coordination among them.

– Above IoT challenges are not uniquely European.

Relevant EU data protection principles
– Data from things is often “personal data”
(therefore subject to the general data protection)
pursuant to Article 2(a) of Directive 95/46/EC
because individuals are likely to be identified from
that data.
– Also in case of pseudonymisation or
anonymisation because “the large amount of data
processed automatically in the context of IoT
entails risks of re-identification.” Opinion on IoT at
10.

– Data subjects are not only the subscribers of an
IoT service or the users of a device but also
individuals that are neither subscribers nor users,
such as people whose data is collected by
wearables (such as smart glasses), sometimes
without being aware of.

• At least the following provisions of Directive
95/46/EC are relevant:
• - Article 7 (legitimate data processing). Opinion on IoT at 14-
16. Note that “Lawfulness of processing” is in Article 6 of the
new GDPR.
– The main avenue for a legitimate data processing is data subject
consent. Article 7(a). Consent must have the characteristics specified
by WP29’s Opinion 15/2011.
– Alternatives to consent possible.

• Article 6 (fair and lawful data collection and
processing).
– “minimization” principle
• Article 8 (processing of sensitive data).
- “personal data revealing racial or ethnic origin, political
opinions, religious or philosophical beliefs, trade-union
membership, and … concerning health or sex life”. Consent
required (very limited exceptions).
- Under GDPR wider definition - now includes genetic and
biometric data.

• Articles 10 and 11 (transparency requirements).
– Data controllers must provide users with a privacy policy in a “clear
and comprehensible manner.”
• Challenging with the IoT and might require new methods of delivery. Opinion on
IoT at 18. E.g., on the object itself using the wireless connectivity to broadcast the
information.
See Article 14 and 14(a) GDPR. The characteristics of the
information are listed in Article 12 GDPR.

Article 17 (security requirements).
- Any data controller remains fully responsible for security
of the data processing even when more than one IoT
stakeholder intervenes in the delivery of service.
- New security principles from GDPR (Article 30)
- (i) security breach: data controller responsible if breach results
from poor design or maintenance of device;
- (ii) security assessments: “of system as a whole, including at
components’ level.” Opinion on IoT at 18.
- Data breach notification duty to the supervisory authority within
72 hours (Article 31).

Cybersecurity recommendations from WP29:
- Data controllers must supervise subcontractors that design
and manufacture devices which are not processors (not
bound by Article 17) and must seek “high security
standards with regard to privacy.”
- Use of principle of “data minimization”;
- “Network restrictions, disabling by default noncritical
functionalities, preventing use of un-trusted software
update sources” ;
- adherence to a “privacy by design” principle.

Cybersecurity recommendations from WP29 (cont’d)
- automatic updates to patch vulnerabilities always available
to users OR alternatives offered (e.g., open-source) AND
and notification to users of vulnerability.
- Security of IoT devices tracking health values must be
particularly protected.
- Data breach notification policies useful to contain the
consequences of vulnerabilities in software and design.

• Rights of data subjects: the same they have in non-IoT
environment (e.g., Articles 12 and 14), particularly the right of
access, the right to withdraw consent, and the right to oppose
the processing.
– Access to raw data should be granted to users. Opinion on
IoT at 20. Access to data is to switch to another provider
(avoiding the lock-in).
– GDPR provides a “right to portability”. Article 18 GDPR:
• The data subject shall have the right to receive the personal data concerning
him or her, which he or she has provided to a controller, in a structured and
commonly used and machine readable format and have the right to transmit
those data to another controller without hindrance from the controller to
which the data have been provided.

• IoT stakeholders must also comply with Article
5(3) of Directive 2002/58/EC (consent to
storage in E-Privacy Directive).
– Unless storage or access (by IoT stakeholder) is
“strictly necessary in order to provide a service
explicitly requested by the subscriber or user,”
consent is necessary.

Mauritius Declaration and other
important authorities
Mauritius Declaration on the Internet of Things. adopted
on October 14, 2014 inside the 36th International
Conference of Data Protection and Privacy Commissioners
(“Mauritius Declaration”),
http://www.privacyconference2014.org/media/16596/Ma
uritius-Declaration.pdf.

Mauritius Declaration highlights:
individuals’ right to self-determination;
drawing of broader and more sensitive inferences form the
huge quantity of data;
Identifiability;
ubiquitous connectivity which requires trust in a
connected world. To maintain trust, transparency is key.

Concerns of Commissioners:
Lack of clarity of information (which data is collected, for
which purpose and retention policy);
informed consent;
 privacy by design and by default still not use
Lack of encryption. End-to-end encryption necessary.

- ENISA, Privacy and Data Protection by Design – from policy
to engineering December 2014, available at
https://www.enisa.europa.eu/activities/identity-and-
trust/library/deliverables/privacy-and-data-protection-by-
design.
- privacy needs to be considered from the very beginning of system
development. For this reason, [Dr. Ann] Cavoukian [former
Information and Privacy Commissioner of Ontario, Canada] coined
the term “Privacy by Design”, that is, privacy should be taken into
account throughout the entire engineering process from the
earliest design stages to the operation of the productive system.

• Report discusses also
– “privacy/data protection by default,” meaning that “in
the default setting the user is already protected
against privacy risks.”
– “privacy design strategies”
– several privacy techniques including authentication,
attribute based credentials, secure private
communications like encryption, and communications
anonymity and pseudonymity.

DPAs’ positions on IoT:
 Italian DPA (Garante per la Protezione dei Dati Personali), Avvio della
Consultazione Pubblica su Internet delle Cose (Internet of Things) -
Deliberazione del 26 marzo 2015, doc. web n. 3898704, available in
Italian at http://www.garanteprivacy.it/web/guest/home/docweb/-
/docweb-display/docweb/3898704
 UK DPA (ICO), The Information Commissioner’s Office response to the
Competition & Markets Authority’s call for information on the
commercial use of consumer data, https://ico.org.uk/media/about-
the-ico/consultation-responses/2015/1043461/ico-response-to-cma-
call-for-evidence-on-consumer-data-20150306.pdf.

DPAs’ positions on IoT (cont’d):
 Spanish DPA, Resolución de 20 de noviembre de 2015, de la Agencia
Española de Protección de Datos, por la que se aprueba el Plan
Estratégico 2015-2019, available in Spanish at
http://www.agpd.es/portalwebAGPD/LaAgencia/common/Resolucion
_Plan_Estrategico.pdf.
 French DPA (Commission Nationale de L’informatique et des Libertés –
CNIL), Rapport d’Activite’ 2014, in French at
https://www.cnil.fr/sites/default/files/typo/document/CNIL-
35e_rapport_annuel_2014.pdf.pdf, discussing smart cars and smart
cities.

More information
Francesca Giannoni-Crystal & Allyson Haynes Stuart, The
Internet-of-Things (#IoT) (or Internet of Everything) –
privacy and data protection issues in the EU and the US,
Information Law Journal, Spring 2016, volume 7 issue 2,
available
at http://apps.americanbar.org/dch/committee.cfm?com=
ST230002
www.technethics.com (TAG IoT:
http://www.technethics.com/tag/iot/)

Contacts
Francesca Giannoni-Crystal (NY, DC, Italy, and SC foreign
legal consultant- not a member of SC Bar)
Crystal & Giannoni-Crystal, LLC
(www.cgcfirm.com)
fgiannoni-crystal@cgcfirm.com

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