Recently, the US Congress met to discuss privacy protections from the perspective of a federal regulation. One of the most discussed topics was GDPR and whether it works or not. A lot was said, and I was pretty disappointed with the overall lack of nuance with regards to understanding what privacy is about from sitting politicians. That said, I want to go over some of the arguments.
Compliance is too Expensive
One of the more quoted lines from the hearings was that the cost to comply with GDPR is burying small and medium businesses in the EU resulting in a consolidation of market share to bigger organizations. I was suspicious immediately and began to think what things a business has to do to comply with the requirements.
- Organizations do need to establish procedures and policies that allow individual data subjects to access their data and address other requests as laid out in Articles 15-21 of the GDPR.
- They also need to keep records about data processing activities per Article 30.
- They may need to hire or establish a Data Protection Officer position depending on whether or not the requirements in Article 37 apply to them or not.
- Finally, a privacy impact assessment process, and further implementation of privacy by design is needed as well.
This is a general list and not complete. However, the costs associated with GDPR are not going to be that much greater. I also did not consider fines, as non-compliance is not a cost to comply, it is a penalty for not doing so.
While the costs for the absolute best solutions can be high, there are less expensive, and just as effective methods, to meet the above requirements. In addition, it is important to remember that smaller business deal with less data and should have an easier time understanding what they are processing and how to handle that information.
Data Subject Requests will be too great a burden
One of the key pieces of GDPR is the ability of a data subject to make requests of data controllers to access, rectify, restrict, and erase the subject’s data, amongst other actions. Some individuals made the case that these DSRs could swamp small businesses and destroy them if they fail to comply through fines.
First and foremost, I often discussed the idea of privacy trolls filing as many DSRs as possible in order to possibly enact some sort of legal action against a business for malicious or otherwise dubious reasons. I have seen no evidence of this happening with our clients and have only seen the theoretical discussion of it on forums from privacy professionals. Put simply, there does not appear to be a wide spread, malicious group out there spamming DSRs.
I also thought about how difficult it is to fulfil a request. I have actively engaged in the establishment of DSR processes for our clients. The hardest part of this process is usually finding information from decentralized systems. However, it is far from impossible to get this information and relay this back to a data subject. There are also a number of exceptions and rules that prevent a controller from being abused by data subjects.
A pretty glaring point made by one individual was that the problem with privacy rights now is not that laws are too strict, but rather there is a lack of enforcement. Facebook, for example, has been caught in several activities that violate the consent decree from the FTC, yet no action has been taken. Laws are great, but non-enforcement makes any law about as effective as a colander in a sinking ship.
While I am not looking at the current situation in the United States with glee, I do have hope for the future. More and more, individuals in the US are in favor of privacy protections, and new candidates are taking up the cause to ensure protection for their constituents’ privacy. Hopefully, we will see more movement on this topic as well as a better understanding by all.