General Data Protection Regulation Assessment Answer

Introduction

This study examines the similarities and differences between the data protection legislation of the United States and the European Union on a worldwide scale. Many nations are now implementing data protection regulations that are similar to the General Data Protection Regulation (GDPR), which is a sign of change in this field of legislation. Conditions of the existing right to data security are examined, and questions about the underlying concepts of that right are raised. This article also delves into some of the challenges in applying this right in the era of pervasive "dataveillance," or the systemic surveillance of individuals' interactions. This paper provides a comprehensive evaluation of best practices for law enforcement data protection. It examines the data protection laws of the United States and the European Union. Its goal is to compare and contrast how the United States and the European Union handle data protection in the law enforcement (LE) sector. The study's findings will be used to determine if new regulations are required to better protect individuals' right to privacy.

General Data Protection Regulation

The General Data Protection Regulation (GDPR) was the first of its kind in 2018, and it is the most comprehensive and forward-thinking legislative measure for safeguarding private information and ensuring that it remains secure. If your company handled the biometric or other personally identifiable information of any EU resident, you were required to comply with this international privacy legislation for data protection. It became the benchmark, and it influenced the developments that are now commonplace in the industry. The ultimate goal of data protection is to keep sensitive information safe from prying eyes both within and beyond an organisation. It safeguards against the dangers of fraud, compromise, and corruption.
The General Data Protection Regulation (GDPR) was more of a global privacy regulation for data protection than a mere additional layer of localised security and compliance for every company handling the personal data of any EU individual. More stringent rules, larger penalties, and greater reputational harm for noncompliance characterise the future of data protection in an era when security and data protection policies are being enforced throughout the world. After numerous businesses disobeyed the GDPR and were slapped with hefty fines, many other businesses took notice. Businesses are having a tough time right now thanks to the General Data Protection Regulation (GDPR) and the heavy penalties and brand harm that come with its implementation. They need the proper resources to help them stay in compliance.

Individual Rights

Individuals whose personal data is being processed have certain rights that are enumerated in the General Data Protection Regulation. Individuals are afforded greater discretion over their personal information as a result of these expanded protections. For example:

1. Individuals will be required to provide more specific consent before their data is processed, and data subjects will have greater ease in gaining access to their information.
2. Correction, deletion, and "forgetting" are all forms of the right to be forgotten.
   including the right to object to the use of personal data for the sake of "profiling," and the right to have one's data transferred from one service provider to another.
3. As part of the rule, controllers (those in charge of data processing) are required to make information readily available to individuals about how their data will be used.

The Data Protection Directive of 1995 did not contain a human right to data privacy. Van der Sloot argued that the initial provisions of the Data Protection Directive and similar regulations "could best be treated as principles of quality management" because they are not framed as about the human rights of data subjects but rather focused on the administrative obligations of controllers. However, the General Data Protection Regulation (GDPR) protects people's privacy rights in a very concrete way. Given that privacy protections had long been in place in European law before the charter was drafted and that the European Court of Human Rights has found in several cases that it is important for data to be protected under EU law, it is unclear what benefit a separate concept of rights would provide. Although a right to data protection has some common ground with the freedoms of speech, assembly, and the press as well as religious and political beliefs, it benefits from several additional safeguards that set it apart. "Data protection officer (DPO) - Ensuring greater data protection compliance," describes this function as "the ability to manage and process equivalent amounts of data, the ability to provide and correct individual data access, and the autonomous ability to exercise control".

The European Parliament and Council approved the General Data Security Legislation to protect individuals' right to privacy online. The aforementioned EU Data Security Directive was also nullified in April 2018 by the 95/46/etc. Organisations operating within the European Union will be restricted in their data handling practices. Any company that wanted to comply with the old Data Protection Directive had to appoint a data protection officer. Many businesses aren't aware of the risk of having to fork over 2 to 4 per cent of their annual turnover in European Union fines. A comprehensive data security law was necessary to bring the EU together. All EU residents will benefit from the most recent EU General Data Security Legislation since it harmonises the legislation of all 27 member states. The unification of Europe is a win-win situation for all parties involved. It brings every nation under one banner. A whole continent made up of different countries needs room for doubt.

There is a lot of information on consumers that companies don't share. Businesses are increasingly using time series data, such as customer and prospect locations, for targeted advertising and other purposes. Data processing has made this process quite easy. A company like IBM will be able to paint a detailed portrait of you based on your movements and preferences. Customers are pleased when they receive relevant advertisements, but privacy may be compromised. Therefore, there is an anticipated rise in consumer security. Any information can be utilised inappropriately or for profit. Details allow us to put a face to a name. All of this information must be protected since it is the responsibility of businesses to do so. One facet of your privacy strategy should be "differential confidentiality" techniques.

EU GDPR vs United States

The General Data Protection Regulation (GDPR) will harmonize data security regulations across the European Union. The GDPR permits MS to implement its own rules that differ in various ways from the GDPR. European nations made varying degrees of use of this window of opportunity in adjusting their privacy legislation in light of the General Data Protection Regulation. This presents a significant problem for any corporation that deals with data transfers across foreign borders. If you collect, handle, or store personal data in more than one Member State, you must comply with the GDPR and the data privacy regulations of each of those Member States. This goes against the old EU Data Protection Directive 95/46/EC, which was written before the remarkable technological advancements of recent years. However, the General Data Protection Regulation (GDPR) provides, among other principles, the requirement for privacy by design and by default, tougher restrictions over cross-border data transfers, and allowing the data's owner to govern the data. Therefore, it is becoming increasingly vital to have a thorough understanding of the rules that apply in each circumstance.

However, the United States takes a different approach to data security. It differs from the General Data Protection Regulation (GDPR) in that rather than relying on a single set of rules, it relies on separate laws and policies for protecting personal information in different industries. This increases the GDPR's chances of success. Health Insurance Portability and Accountability Act (HIPAA), National Institute of Standards and Technology (NIST) 800-171: Requirements for the Protection of Controlled Unclassified Information in Electronic Records and Organisations Outside the Federal Government are examples of sector-specific laws. U.S. government agencies are obligated to record, design, and implement a comprehensive information security programme by the government Information Security Management Act (FISMA) and the Financial Modernisation Act (Gramm-Leach-Bliley Act). Notification rules against security breaches are not universal but exist in some areas like California. The fact that some states' data privacy regulations may be up to GDPR standards while others don’t present a difficulty for the United States as a whole. Although there are no specific federal laws protecting data in the country, there is some federal legislation that does so. Many US states have enacted their data-related legislation since the federal authority was decentralised. The California Consumer Privacy Act (CCPA) is widely regarded as one of the most progressive pieces of legislation in the country. Citizens of the state are granted the right to learn the specifics of any data collection and subsequent usage that involves their information. States including Alabama, Connecticut, Florida, New York, Washington, Illinois, Texas, and Virginia have already approved or are working on similar legislation.

The focus on data protection is a key distinction between the European Union and the United States. As a commercial asset, data security is of great concern to the United States, in contrast to the European Union's General Data Protection Regulation (GDPR), which prioritises individual privacy over corporate profit. If a company fails to adequately secure the personal information of EU residents, it will be held financially responsible by the European Union (EU). U.S. companies will need to comply with GDPR's stringent regulations if they want to continue processing data belonging to European Union citizens. Data about EU citizens and enterprises poses no problems for government bodies, organisations, and businesses at the state level whose data protection policies are in line with the GDPR. This clarifies the question of why certain U.S. businesses are not yet GDPR compliant.

The inherent structural, constitutional, and practical legal disparities seen in the foregoing analysis make it challenging to compare EU and US data protection legislation for LE purposes. Since the foregoing study is so detailed, a summarising comparison can only mention and identify the most glaring discrepancies and deficiencies. Based on the discussion above, it is clear that there is a significant gap between the amount of privacy and personal data protection afforded to EU people and that afforded to US persons under the law enforcement and national security framework. New legislation like the Judicial Redress Act and the FREEDOM Act is helping, but only to a limited extent. Many American businesses would need to take a series of steps to bring themselves into conformity with the European Union's General Data Protection Regulation. Businesses must revise their approaches to collecting user consent and processing personal data. While the U.S. defines a data breach as the "unauthorised access or acquisition" of personally identifiable information like credit card numbers and social security numbers, the EU's General Data Protection Regulation (GDPR) provides a broader definition of the term. Second, in the level of potential harm above which reports must be made. Data breach rules in the United States are far laxer than those in the European Union (GDPR). Thirdly, the GDPR expands the scope of protections for advanced security protocols. Fourth, firms in the United States that have suffered a data breach have a timeframe of 5-30 days to notify those who have been impacted. Wherever possible, notifications of data breaches must be made within 72 hours of discovery by the General Data Protection Regulation. Other differences between GDPR and U.S. regulations include those relating to notification recipients, notification content, credit monitoring expectations, public lists of data protection impact assessments, notification requirements for data processors, and post-mortem documentation.

The necessity for organisations or enterprises to know important ideas and articles surrounding GDPR must be taken into account if U.S. corporations are to take any actions to guarantee compliance with the GDPR. Data subjects, data controllers, data processors, and personal data are all concepts that need to be understood. The organization must familiarize itself with the GDPR, namely Article 5 of the Regulation's Principles Concerning the Processing of Personal Data. Second, the organization has to take steps towards compliance in areas like data mapping, privacy policy, and compliance training. Third, continue working on operational rules, processes, and procedures while reviewing GDPR compliance, reporting data breaches, and other actions that other suppliers are taking. Step four involves making changes to the website regarding Opt-In Forms and Cookie Consent. The processing of children's data, data protection officers, data transfer and disclosure, data protection impact assessments, and frequent monitors and audits are all factors to think about as steps towards compliance. It should be highlighted, however, that complete GDPR compliance may be impossible to achieve. The emphasis should be on treating data and processes from an "ethical" perspective, rather than on using specific "tools" or "checklists."

Closing Remarks

Important discrepancies in the legal and constitutional protection of personal data were revealed by this comparison between EU and US data protection provisions in the realm of law enforcement. These differences make it hard to compare protective measures because of the inherent differences between them. In general, it can be established that the data protection guarantees in the US LE and national security sector are much less comprehensive than those in the EU, where they are shaped by comprehensive data protection guarantees that are codified in EU primary and secondary law along with EU and ECtHR case law. However, even where data protection standards do exist at the federal level, and even when they do apply to US individuals, they often do not extend to non-US persons, as the Constitution only provides limited protection in those cases. Law enforcement and national security concerns often trump individual interests when deciding whether or not to restrict data protection rights in the United States, and proportionality considerations are not a deciding factor in this process. The United States lacks several of the European Union's privacy protections. As a result, we cannot draw any comparisons. For individuals located outside of the United States, there either are no rules governing the sharing of information between government agencies or very few rules governing the sharing of information with third parties, as well as no rules governing thorough independent supervision or effective judicial review. These flaws are especially obvious in current data-sharing agreements like the Safe Harbour system. Therefore, the proposed policies allude to a future EU-US regulation of LE data interchange. Here's a quick rundown of the main points:

Future efforts to create an "Umbrella Agreement" should prioritise not just the procedural aspect of ensuring that EU people have access to effective judicial review, but also the other material data protection protections stated above, which together form the basis of a complete protection regime inside the EU. In this regard, it is crucial to have independent oversight, to regulate onward transfer, to have inter-agency data exchange within the United States, to apply minimization procedures to EU citizens, to have notification requirements after surveillance or data breaches, to have access, correction, and deletion rights, and to have a limited purpose for a data transfer.

The fundamental disparity between the rights afforded to US citizens and those of foreign nationals would not be addressed by the proposed Judicial Redress Act. Only "covered records" are mentioned in the Draught Act, indicating its narrow reach. This idea and the practical implementation of the rights implied in this Act need clarification. To the extent that it only applies to data supplied by EU agencies or private businesses in an LE context, it may preclude all other types of data access, such as the access in the scope of national security, which is currently being carried out despite receiving scathing criticism. Further, the Draught Act only refers to some rights to sue for protected individuals, while leaving out others, most notably 5 U.S.C. 552a(g)(1)(d) of the Privacy Act. As a result, the Judicial Redress Act does not necessarily ensure that EU and US citizens enjoy the same legal protections. The issue of fairness in future data-sharing arrangements is, nevertheless, crucial.
In addition, it is crucial to note that the collection of foreign intelligence within the parameters of Section 702 of the FISA Amendment Act and Executive Order 12333 is still ongoing. As far as the protection of EU nationals is concerned, the FREEDOM Act does not significantly alter these measures. Due to concerns about their conformity with EU fundamental rights, these two issues should be addressed in any future instrument governing data interchange.

Conclusion

The worldwide privacy legislation environment is currently unstable. Trends, worldwide best practise, and regulatory judgements all have a role in shaping and updating regulations. Some authorities argue that the patchwork of global standards will lead to more holes than corporations can cover. A more stable regulatory foundation for nations, individuals, and businesses is anticipated as a result of these shifts in global needs. As a result of growing state and citizen monitoring, data modernisation, and broader collaboration, as well as the increased use of algorithms to predict future attacks, people's data is no longer safe. It is more important than ever to proclaim this basic human right for all individuals and emphasise the underlying principles on which their democracy rests. Since the proliferation of technological possibilities, ensuring the privacy of sensitive data has become a global need and a punishable criminal in every country. The number of people that engage in such conduct would decrease if new developments were implemented in this area. In countries where data privacy rights law has not been developed, the situation is far more serious. In some parts of the world, there appears to be little recourse in the event of a leak or other sort of information compromise.

Bibliography

Journals/Articles

Andrew J and Baker M, “The General Data Protection Regulation in the Age of Surveillance Capitalism - Journal of Business Ethics” (SpringerLink, June 18, 2019) Available at https://link.springer.com/article/10.1007/s10551-019-04239-z (Accessed on 21st April’23)

Dimitrova A and Brkan M, “Balancing National Security and Data Protection: The Role of EU and US Policy-Makers and Courts before and after the NSA Affair” (2017) 56 JCMS: Journal of Common Market Studies 751. Available at http://dx.doi.org/10.1111/jcms.12634 (Accessed on 21st April’23)

Goddard M, “The EU General Data Protection Regulation (GDPR): European Regulation That Has a Global Impact” (2017) 59 International Journal of Market Research 703. Available at http://dx.doi.org/10.2501/ijmr-2017-050 (Accessed on 20th April’23)

Hoofnagle CJ, van der Sloot B and Borgesius FZ, “The European Union General Data Protection Regulation: What It Is and What It Means” (2019) 28 Information & Communications Technology Law 65. Available at http://dx.doi.org/10.1080/13600834.2019.1573501 (Accessed on 19th April’23)

Acts

“California Consumer Privacy Act (CCPA)” (State of California - Department of Justice - Office of the Attorney General, October 15, 2018) Available at https://oag.ca.gov/privacy/ccpa (Accessed on 21st April’23)

Others

“Data Protection Officer (DPO)” (European Data Protection Supervisor, March 30, 2023) available at https://edps.europa.eu/data-protection/data-protection/reference-library/data protection-officer-dpo_en (accessed on 20th April’ '23)

“NBER Board of Directors” (2021) 35 NBER Macroeconomics Annual. Available at http://dx.doi.org/10.1086/715180 (Accessed on 20th April’23)

“The General Data Protection Regulation” (The general data protection regulation - Consilium, September 1, 2022) available at https://www.consilium.europa.eu/en/policies/data protection/data-protection-regulation/ (Accessed on 20th April’23)

Ausloos J, “The Right to Erasure in EU Data Protection Law” Available at http://dx.doi.org/10.1093/oso/9780198847977.001.0001 (Accessed on 20th April’23)

Graef I and Slot B van der, “Collective Data Harms at the Crossroads of Data Protection and Competition Law: Moving Beyond Individual Empowerment” (2022) 33 European Business Law Review 513. Available at http://dx.doi.org/10.54648/eulr2022024 (Accessed on 20th April 23)

Lloyd IJ, “2. The Beginnings of Data Protection” (2020) Information Technology Law 27. Available at http://dx.doi.org/10.1093/he/9780198830559.003.0002 (Accessed on 21st April’23)

Macenaite M and Kosta E, “Consent for Processing Children’s Personal Data in the EU: Following in US Footsteps?” (2017) 26 Information & Communications Technology Law 146. Available at http://dx.doi.org/10.1080/13600834.2017.1321096 (Accessed on 21st April’23)

Macenaite M and Kosta E, “Consent for Processing Children’s Personal Data in the EU: Following in US Footsteps?” (2017) 26 Information & Communications Technology Law 146. Available at http://dx.doi.org/10.1080/13600834.2017.1321096 (Accessed on 20th April’23)

Peeters J, “Data Protection in Mobile Wallets” (2020) 6 European Data Protection Law Review 56. Available at http://dx.doi.org/10.21552/edpl/2020/1/8 (Accessed on 21st April’23)

Sanchez-Rola I and others, “Can I Opt Out Yet?” [2019] Proceedings of the 2019 ACM Asia Conference on Computer and Communications Security. Available at https://sci-hub.se/https://doi.org/10.1145/3321705.3329806 (Accessed on 21st April’23)

Woods L, “United Kingdom ∙ ICO Reacts to Use of Data Analytics in Micro-Targetting for Political Purposes” (2018) 4 European Data Protection Law Review 381. Available at http://dx.doi.org/10.21552/edpl/2018/3/19 (Accessed on 21st April 2022)

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