If you haven’t looked into how your data protection vendors are preparing for the General Data Protection Regulation (GPDR), you’re already behind the power curve. It goes into effect May 25, 2018. Hopefully this article can get you up to speed so you can start pressuring your vendors about how they are going to help you comply with this incredibly big regulation.
Note: This article is one in a series about GDPR. Here’s a list of articles so far:
- Worried about GDPR?
- What is personal data?
- Some hope about GDPR & backups
- Keeping a copy of deleted data
- More thoughts on GDPR
Disclaimer: I’m not a lawyer or a GDPR expert. My goal of this blog is to get you thinking and maybe scare you a little bit. Nothing in this blog should be construed as legal advice.
Disclaimer #2: There is no such thing as a GDPR-compliant product, and definitely no such thing as GDPR-certified. A product can help you comply with GDPR. A product can say “we are able to help you comply with articles 15 and 17,” but a product alone will not make you GDPR compliant. And there is no certification body to provide a GDPR certification. Anyone who says that is making it up.
US companies must comply with GPDR if
Although this is a European Union (EU) regulation, you are subject to it if you are storing personally identifiable information (PII) (referred to by GPDR as “personal data”) about European citizens (referred to by GDPR as “data subjects”) living within the EU. Where your company is headquartered is irrelevant.
A business transaction is not required. A marketing survey targeting EU residents appears sufficient to require your company to comply with GDPR. An EU resident (who was not targeted specifically) filling out a form on your US website that does not have an EU domain might not trigger GDPR protection for that person. My non-legal advice is that you should look into how you’re preparing for the requirements.
Not complying with GPPR can cost you dearly
Companies not complying with the data privacy aspects of GDPR can be fined 4% of annual revenue, or 20 million Euros, whichever is greater. It hasn’t gone into effect yet, and no one has been fined yet, so we don’t yet know just how tough the courts are going to be. But that’s what the regulation allows.
How does GDPR affect data protection?
There are several aspects to GDPR protection, but only a few of them affect your data protection system. For example, there is a requirement to gain consent before storing personal data. That responsibility falls way outside the data protection system. But let’s look at some parts that many systems are going to have a really hard time with.
GDPR has articles that talk about general data security, but I think any modern backup system should be able to comply with those articles. The things about GDPR that I think data protection people will struggle with are articles 15, 16 and 17: the right to data access by the subject, the right to correction, and the right to erasure (AKA “right to be forgotten”).
If you have data on a data subject (i.e. EU citizen), and assuming that data is subject to GDPR, the subject has a right to see that data. This includes any and all data stored on primary storage, snapshots, backup storage, and archives. Try to think about how you would comply with that request today and you see where my concern is. Archive software might be ready for this, but most backup systems are incapable of delivering information in this manner.
A data subject has the right to have incorrect data corrected. This may not directly affect the backup and archive systems, but it might.
This one is the one that truly scares me as a data protection specialist. If a company cannot prove they have a legitimate business reason for continued storage of a particular data subject’s personal data, the data subject has the right to have it deleted. And that means all of it.
As previously mentioned, we don’t have any case law on this yet, and we don’t yet know the degree to which the EU courts will order a company to delete someone’s data from backups and archives. But this is article that has me the most worried.
I told you so
The customers that are in real trouble are those that use their backup systems as archive systems, since most backup systems are simply incapable of doing these things. They will be completely incapable of complying with Articles 15-17 of GPDR.
I’ve been telling customers for years to not use their backup system as an archive system. If you are one of the ones who listened to me, and any long term data is stored in an archive system, you’re pretty much ready for GDPR. A good archive should be able to satisfy these requirements.
But if you’ve got data from five years ago sitting on a dedupe appliance or backup tapes, you could be in a world of hurt. There simply isn’t a way to collect in one place all data on a given subject, and there’s definitely no way to delete it from your backups. Each record is a tiny record inside a filesystem backup stored in some kind of blog, such as tar file or the equivalent for your backup system.
What are your vendors saying?
Has anyone had any conversations about this with their data protection vendors? What are they saying? I’d really love to hear your stories.