RE: [projectvrm] Re: [WG-UMA] The Death of Safe Harbor is the Ultimate VRM and UMA Legal Opportunity

["Neiditz, Jon" < >]

Right on, Jim.

 

Jon Neiditz
Kilpatrick Townsend & Stockton LLP
Suite 2800 | 1100 Peachtree Street NE | Atlanta, GA 30309-4528
office 404 815 6004 | cell 678-427-7809 | fax 770 234 6341
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From: [mailto: ] On Behalf Of James Hazard
Sent: Tuesday, October 06, 2015 2:36 PM
To: Brian Behlendorf
Cc: M a r y H o d d e r; ProjectVRM list
Subject: Re: [projectvrm] Re: [WG-UMA] The Death of Safe Harbor is the Ultimate VRM and UMA Legal Opportunity

 

Privacy is not my field, but I surmise that the right to revoke arises from the nature of the information - personal data.  Your personal profile is yours and giving someone an irrevocable right to use it is offensive to the dignity of the person.  

 

Code that you create could be irrevocably alienated, it is not really about _you_.   Artistic works are somewhere in between. 

 

 

 

On Tue, Oct 6, 2015 at 8:17 PM, Brian Behlendorf < " target="_blank"> > wrote:

On Tue, 6 Oct 2015, M a r y H o d d e r wrote:

Withdrawing consent is an important right, whether a "human right" or not as classified in legal regimes. However, it's more subtle than just yes or no, you have it or you don't. Basically, you ought to be able to revoke consent going forward, but not backward, and if you shared data, it's possible there is a mechanism or right to remove data and actions with it. But those are the messy details and time, past, present, future changes the right or ability to revoke.

I am not sure what's meant by "revoking going forward and not backwards". "Revoking" as a word applies to reversing something that has happened in the past.

It seems like we can have it one of two ways, but not both.  Either

#1) I should be able to grant to you or anyone else an irrevocable right to my data / software / IP / etc (I'm not compelled to, but I can choose to)

or

#2) I have the right to claw back any data / software / IP I have ever granted to you or anyone else, no matter what the terms were on the initial exchange.


If we have #2, then we can not have Open Source software as we know it today, where every user has the freedom to modify and copy software without ever having to worry about the original authors revoking their rights to do that.  It would be very bad for Open Source if that were possible - imagine Oracle clawing back all rights to all the open source code Sun ever released, or a disgruntled individual open source developer who released fabulous code embedded everywhere decided it was time to start asking for a tithe.

If we have #1, then we get Open Source, but then we also get corporations like Facebook asking for and receiving consent from end-users to do whatever they like with consumer data, irrevocably.  Consumers always have the freedom to not accept those terms.  Who are regulators to tell them they don't deserve that choice?

There are nuances and differentiations that one could construct delicate regulations around, but that kind of hair-splitting seems to frequently end up with lots of collateral damage, and lots of money spent on lobbyists and lawyers, which tends to not go well for individual citizens.

I feel the ghost of Crosbie haunting me as I type this.

If end-users of systems cannot revoke consent going forward, they have no ability (depending on the context) to take their business elsewhere in future, or at least have their information trapped depending. I do think choice and autonomy are key to human freedom even if it's not classified legally as a human right.

I love Google's Data Liberation Front and other network services that make it easy for me to get a copy of the data I contributed in some very usable form.  I think data and computational portability is a highly desireable state for any network service.  I don't see them as human rights though, or desireable to regulate/legislate - I think businesses that offer these extra services should be rewarded by the market.  This is simply not a safety or fair practices kind of issue - this is not like requiring food handlers to wash their hands after using the restroom.

Of course where companies are violating the terms under which the user consented to share their data, e.g. are sharing it with third parties even if in indirect ways, then there should be legal recourse, at least civil and I'd argue criminal as deceptive practices.  But contracts should be able to be entered into freely.

Brian

 

On Oct 6, 2015, at 9:45 AM, Brian Behlendorf wrote:

People who publish Open Source software give irrevocable consents all the time to share their IP - by necessity and without exception.  Where is an irrevocable consent defined as alienating a human right?

Brian


On Tue, 6 Oct 2015, Neiditz, Jon wrote:

You cannot give an irrevocable consent, because that would be attempting to alienate a “human right.”

Jon Neiditz
Kilpatrick Townsend & Stockton LLP
Suite 2800 | 1100 Peachtree Street NE | Atlanta, GA 30309-4528
office 404 815 6004 | cell 678-427-7809 | fax 770 234 6341
" target="_blank"> | My Profile | vCard
[IMAGE]    [IMAGE]
From: Mike O'Neill [mailto: " target="_blank"> ]
Sent: Tuesday, October 06, 2015 11:21 AM
To: 'James Hazard'
Cc: Neiditz, Jon; 'WG UMA'; 'ProjectVRM list'
Subject: RE: [projectvrm] Re: [WG-UMA] The Death of Safe Harbor is the Ultimate VRM and UMA Legal Opportunity

Correct. Consent must be “freely given, specific and informed”. Even if the basis is “legitimate interest” they still have the right to opt-out, by automated means (if that is still in
the GDPR).

From: James Hazard [mailto: " target="_blank"> ]
Sent: 06 October 2015 15:48
To: Mike O'Neill < " target="_blank"> >
Cc: Neiditz, Jon < " target="_blank"> >; WG UMA < " target="_blank"> >; ProjectVRM list < " target="_blank"> >
Subject: Re: [projectvrm] Re: [WG-UMA] The Death of Safe Harbor is the Ultimate VRM and UMA Legal Opportunity

So, roughly,

?/

"I consent to You taking the Specified Personal Information to the US.  You agree to: protect it, use it only for Specified Purposes, inform me of Leaks, and Destroy it when no longer
needed for the Specified Purposes or I ask You to."


Can a person give non-revocable consent to use of data within EU?

/?





On Tue, Oct 6, 2015 at 4:21 PM, Mike O'Neill < " target="_blank"> > wrote:

     Consent must be “freely given”, so IMO it follows that it must be revocable (with a “sunset”). Article 29 and many DPAs also have said that.





     From: James Hazard [mailto: " target="_blank"> ]
     Sent: 06 October 2015 14:53
     To: Neiditz, Jon < " target="_blank"> >
     Cc: WG UMA < " target="_blank"> >; ProjectVRM list < " target="_blank"> >
     Subject: [projectvrm] Re: [WG-UMA] The Death of Safe Harbor is the Ultimate VRM and UMA Legal Opportunity



     Do you mean that consent of the person permits transfer of data, but consent is necessarily revocable and data must be destroyed?

     On Oct 6, 2015 3:40 PM, "Neiditz, Jon" < " target="_blank"> > wrote:

           Why?

           The Advocate General's opinion and the Court's decision both turn on the inability of Safe Harbor to prevent surveillance.  NO permitted basis for data transfer
           prevents surveillance, not Model Clauses, not Binding Corporate Rules (BCRs).  Logically, if probably not in immediate corporate and EU national practice, the
           only bulletproof basis for data transfer to the US is now the ever-so-revocable CONSENT, which presumes no fictitious protection from surveillance.

           See also:  https://www.linkedin.com/pulse/good-morning-safe-harbor-dead-what-does-mean-now-later-jon-neiditz?trk=prof-post

           Your thoughts?

           Jon Neiditz
           Kilpatrick Townsend & Stockton LLP
           Suite 2800 | 1100 Peachtree Street NE | Atlanta, GA 30309-4528
           office 404 815 6004  | cell 678-427-7809 | fax 770 234 6341
            " target="_blank"> | www.kilpatricktownsend.com

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