As we work with clients to prepare them for GDPR we deeply dive into data subjects’ rights. When we cover the right to erasure, the same question comes up, “what about backups?”
Article 17 of GDPR focuses on the right to erasure and, its partner, the right to be forgotten. Paragraph 1 discusses under what circumstances the right to erasure may be applied. Paragraph 3 discusses exceptions that will allow data controllers to continue processing personal information even though a data subject has requested deletion. There is no exception specified for backup purposes, so personal information in backups may be subject to Article 17 requirements.
In Article 17.1(a) the right to erasure may be applied when “the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed.” Additionally, both Articles 17.1(b) and (c) refer, in essence, to the right being applied where there is no other legal ground for the processing. This may give us some light at the end of the tunnel.
What are backups?
Backups may be viewed, in this case, as duplicates of the personal information stored by, or on behalf of, a data controller for the purposes of addressing the unavailability of the personal information for processing. The act of storing or retrieving this information is processing under GDPR.
Article 32.1(c) requires an organization to “…implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including…the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident;”. This requirement cannot be met without a backup as a foundational element.
I suggest personal information stored in a backup is being processed for a legitimate business purpose, the maintenance of the resiliency of a system providing access to personal information. This could meet the requirements for allowing the continuation of processing in Article 17(a) through (c) with Article 32.1(c) provides the foundation for this legitimacy.
This does not remove the requirement for an organization to re-erase the information if a backup is restored. Audit trails, logs, ore other mechanisms must be used to bring the restored data back to the same state it was in prior to the incident.