Ber­lin data pro­tec­tion aut­ho­ri­ty: Posi­ti­on paper and a check­list on the issue of data pro­tec­tion in con­nec­tion with video conferencing

Ser­vices from Micro­soft (par­ti­cu­lar­ly Teams and Sky­pe) and Zoom do not con­form to data pro­tec­tion requirements 

In pro­vi­ding infor­ma­ti­on about data pro­tec­tion during the coro­na­vi­rus pan­de­mic, the Ber­lin data pro­tec­tion aut­ho­ri­ty has issued a posi­ti­on paper (PDF) and a check­list (PDF), both of which are dated 8 April 2020 based on the docu­ment meta­da­ta, in which it dis­cus­ses the issue of data pro­tec­tion in con­nec­tion with video con­fe­ren­cing. While it is good to see the aut­ho­ri­ty take this initia­ti­ve, and par­ti­cu­lar­ly its decis­i­on to pro­vi­de spe­ci­fic gui­de­lines, its deter­mi­na­ti­on that the ser­vices pro­vi­ded by Micro­soft, spe­ci­fi­cal­ly Teams and Sky­pe, and the video con­fe­ren­cing soft­ware Zoom can­not be used in a man­ner con­forming to data pro­tec­tion requi­re­ments appears debatable.

In its posi­ti­on paper, the Ber­lin data pro­tec­tion aut­ho­ri­ty pur­sues the goal of avo­i­ding or at least mini­mi­zing risks to data sub­jects in con­nec­tion with video con­fe­ren­cing. At the same time, it urges busi­nesses to use solu­ti­ons which con­form to data pro­tec­tion requi­re­ments ins­tead of the non-conforming solu­ti­ons which have been intro­du­ced at short noti­ce in respon­se to the cur­rent situa­ti­on. Spe­ci­fi­cal­ly, the aut­ho­ri­ty recom­mends that video calls and video con­fe­ren­ces should be con­duc­ted exclu­si­ve­ly through encrypt­ed chan­nels. This recom­men­da­ti­on may be cal­led sen­si­ble, even though data encryp­ti­on is only one of the pos­si­ble tech­ni­cal data pro­tec­tion mea­su­res cited in Artic­le 32(1)(a) of the GDPR. Howe­ver, the aut­ho­ri­ty does not spe­ci­fy the degree or type of encryp­ti­on requi­red (e.g. trans­port encryp­ti­on and/or con­tent encryption).

The aut­ho­ri­ty also recom­mends solu­ti­ons ope­ra­ted by the con­trol­lers them­sel­ves (self-hosted solu­ti­ons). But such solu­ti­ons are likely unrea­li­stic for many com­pa­nies becau­se of the enorm­ous expen­se. The aut­ho­ri­ty ack­now­led­ges this fact and allows for the pos­si­bi­li­ty of enga­ging a relia­ble ser­vice pro­vi­der as a pro­ces­sor. This view is gene­ral­ly wel­co­me, but the fact that the aut­ho­ri­ty goes right to the opti­on of a pro­ces­sing arran­ge­ment is curious. After all, it is also pos­si­ble that the use of encryp­ti­on means that the GDPR will not app­ly for the video ser­vice pro­vi­der becau­se it will have no access to per­so­nal data. It is also pos­si­ble that the video ser­vice pro­vi­der is its­elf respon­si­ble for ensu­ring pri­va­cy, e.g. if the lat­ter. A mix­tu­re of the­se cate­go­ries may also app­ly, depen­ding on the indi­vi­du­al case.

In addi­ti­on to pro­vi­ders based in the EU or else­whe­re in the Euro­pean Free Trade Asso­cia­ti­on (EFTA) zone, the aut­ho­ri­ty also express­ly sta­tes that ser­vice pro­vi­ders based in third count­ries are accep­ta­ble if they offer an equi­va­lent level of data pro­tec­tion. Asi­de from a decis­i­on from the EU Com­mis­si­on fin­ding an equi­va­lent level of pro­tec­tion for per­so­nal data, the aut­ho­ri­ty also right­ly points out the use of stan­dard con­trac­tu­al clau­ses as ano­ther pos­si­bi­li­ty. In prac­ti­ce, an ade­quacy decis­i­on from the EU Com­mis­si­on should be of par­ti­cu­lar importance in this con­text for trans­fers of data to US con­trol­lers sub­ject to the EU-US Pri­va­cy Shield. Despi­te some cri­ti­cism from the data pro­tec­tion aut­ho­ri­ty, the level of pro­tec­tion actual­ly gua­ran­teed by the EU-US Pri­va­cy Shield con­ti­nues to be an important and valid basis for data trans­fers to the US, satis­fy­ing legal requirements.

The authority’s other state­ments do not appear to adhe­re strict­ly to cur­rent law. For exam­p­le, the data pro­tec­tion aut­ho­ri­ty recom­mends that only pro­vi­ders in the EU or the EFTA should be used in cases invol­ving the pro­ces­sing of sen­si­ti­ve data whe­re the pro­vi­der can­not be pre­ven­ted from acces­sing the trans­fer­red audio and video data. But such a distinc­tion based on the provider’s loca­ti­on is not found in the Chap­ter of the GDPR begin­ning with Artic­le 44. As we have seen, the rele­vant cri­ter­ion is in fact the level of data pro­tec­tion. As a result, this recom­men­da­ti­on is likely not meant to be legal­ly binding.

Risks of Data Processing

In its posi­ti­on paper, the super­vi­so­ry aut­ho­ri­ty also addres­ses the risks of video con­fe­ren­cing, which it iden­ti­fies as the risk of unaut­ho­ri­zed lis­tening or recor­ding, as well as fur­ther explo­ita­ti­on of the con­tent. Accor­ding to the data pro­tec­tion aut­ho­ri­ty, this could result in adver­se effects for the peo­p­le who take part in the video con­fe­rence, as well as tho­se who are men­tio­ned in the dis­cus­sion. The aut­ho­ri­ty notes that this risk mate­ria­li­zes not only if the con­fe­rence is recor­ded by third par­ties, but even if the recor­ding is made by the ope­ra­tor of the video sys­tem. The aut­ho­ri­ty reasons that the ope­ra­tor can make a recor­ding of the con­fe­rence unless it is blo­cked by means of encryp­ti­on, even if this recor­ding is made for ana­ly­ti­cal pur­po­ses only. The aut­ho­ri­ty also cites tele­com­mu­ni­ca­ti­ons sec­re­cy as ano­ther argu­ment that such a risk exists. In doing so, it makes the fac­tual­ly cor­rect obser­va­ti­on that tele­com­mu­ni­ca­ti­ons sec­re­cy does not app­ly for video ser­vice pro­vi­ders, at least until now, becau­se they do not pro­vi­de tele­com­mu­ni­ca­ti­ons ser­vices and ins­tead func­tion as “over-the-top” pro­vi­ders. But it does not fol­low from this obser­va­ti­on that video ser­vices should not be used: in fact, even the aut­ho­ri­ty con­ce­des that this risk can be sub­stan­ti­al­ly mini­mi­zed through a con­trac­tu­al arran­ge­ment, such as e.g. a pro­ces­sing con­tract. The authority’s view that recor­ding is never allo­wed, even for the pur­po­se of impro­ving the ser­vice, is in any case uncon­vin­cing. After all, impro­ving or deve­lo­ping the ser­vice is a legi­ti­ma­te pur­po­se and may actual­ly be in the user’s inte­rest. From a legal stand­point, the pro­vi­der may have a legi­ti­ma­te inte­rest in impro­ving the ser­vice in accordance with Artic­le 6(1)(f) of the GDPR, and recor­ding may also be con­duc­ted based on the user’s con­sent in accordance with Artic­le 6(1)(a) of the GDPR. In cases invol­ving pro­vi­ders based out­side the EU and the EFTA, the aut­ho­ri­ty also sees a vague risk in con­nec­tion with the fact that the pro­ces­sing con­tract and other con­trac­tu­al arran­ge­ments will have to be enforced in a for­eign legal sys­tem, and it recom­mends that the agree­ment con­sist enti­re­ly of stan­dard con­trac­tu­al clau­ses. In this docu­ment, the aut­ho­ri­ty does not devo­te any fur­ther dis­cus­sion to the fact that stan­dard con­trac­tu­al clau­ses are not the only legal basis for trans­fers to third count­ries in accordance with the GDPR.

The Authority’s Recommendations

In its recom­men­da­ti­ons, the Ber­lin data pro­tec­tion aut­ho­ri­ty advi­ses com­pa­nies to use con­fe­rence calls whe­re­ver pos­si­ble ins­tead of video con­fe­ren­cing, not­ing that con­fe­rence calls are “much easier to con­duct in a man­ner con­forming to data pro­tec­tion requi­re­ments.” Regard­less of the ques­ti­on as to whe­ther this is actual­ly the case, this recom­men­da­ti­on will likely be unhel­pful for many com­pa­nies in prac­ti­ce: the use of video con­fe­ren­cing soft­ware, fea­turing mode­ra­ti­on opti­ons and the abili­ty to share one’s screen, offers who­le new pos­si­bi­li­ties for col­la­bo­ra­ti­on. The aut­ho­ri­ty also makes refe­rence to solu­ti­ons which are ope­ra­ted by the con­trol­lers them­sel­ves and by Euro­pean pro­vi­ders, but does not men­ti­on any spe­ci­fic pro­ducts, as the Data Pro­tec­tion Com­mis­sio­ner for the Sta­te of Baden-Württemberg recent­ly did.

State­ments Con­cer­ning Ser­vices from Micro­soft and Zoom

The aut­ho­ri­ty then once again addres­ses the issue of “non-European ser­vice pro­vi­ders,” but men­ti­ons only pro­vi­ders from the US. It obser­ves that the afo­re­men­tio­ned risk of recor­ding exists even with pro­vi­ders which have a con­trac­tu­al cont­act per­son in Euro­pe, but who­se ser­vice is lar­ge­ly pro­vi­ded by non-European ser­vice pro­vi­ders which are mem­bers of the same cor­po­ra­te group. The aut­ho­ri­ty sta­tes that this risk has to be mini­mi­zed through sepa­ra­te gua­ran­tees, which is often not the case. Spe­ci­fi­cal­ly, the aut­ho­ri­ty sta­tes as follows:

“The most pro­mi­nent examp­les are the ser­vices pro­vi­ded by Micro­soft Cor­po­ra­ti­on (e.g. Micro­soft Teams), inclu­ding its sub­si­dia­ry Sky­pe Com­mu­ni­ca­ti­ons SARL, which is based in Luxem­bourg (with the pro­duct of the same name).”

The aut­ho­ri­ty does not dis­cuss how it rea­ched the con­clu­si­on that the­re is a signi­fi­cant risk that Micro­soft will fail to honor its con­trac­tu­al agree­ments and that it will not be pos­si­ble to enforce any claims or con­trac­tu­al rights in the US. It also fails to men­ti­on Microsoft’s data resi­den­cy model, which express­ly assu­res Ger­man cus­to­mers of Micro­soft Teams and Sky­pe for Busi­ness that their data will be stored in Ger­ma­ny. Taking the­se aspects into con­side­ra­ti­on, the authority’s con­clu­si­on with respect to mini­mi­zing risk seems by no means compelling.

The aut­ho­ri­ty sees the afo­re­men­tio­ned risks even in cases whe­re a con­tract is con­cluded with the­se pro­vi­ders direct­ly. Even in that case, it takes the view that addi­tio­nal legal gua­ran­tees are requi­red in order to over­co­me the risk ari­sing from trans­fers to a third coun­try. In the case of Zoom Video Com­mu­ni­ca­ti­ons Inc., the aut­ho­ri­ty sta­tes that such gua­ran­tees have not been pro­vi­ded, at least as of 2 April 2020. The aut­ho­ri­ty does not cite more spe­ci­fic grounds for its decis­i­on in this docu­ment, but the authority’s press release of 31 March 2020 sta­tes as follows:

“Note: the­re are ser­vice pro­vi­ders from the US with lar­ge mar­ket shares which do not meet this requi­re­ment becau­se they are not ade­qua­te­ly regis­tered or offer the stan­dard con­trac­tu­al clau­ses only in modi­fied form. As of this prin­ting, one exam­p­le is Zoom Voice Com­mu­ni­ca­ti­ons, Inc.”

But even from this state­ment, it is not clear why the Ber­lin data pro­tec­tion aut­ho­ri­ty finds Zoom’s regis­tra­ti­on under the EU-US Pri­va­cy Shield to be ina­de­qua­te. It is also not evi­dent which defects the aut­ho­ri­ty has iden­ti­fied in the stan­dard con­trac­tu­al clau­ses used by Zoom. Both of the­se would be very hel­pful for con­trol­lers to know, sin­ce other­wi­se ins­truc­tions can­not be issued to Zoom in the pro­ces­sing contract.


It is clear from the published docu­ments that the Ber­lin data pro­tec­tion aut­ho­ri­ty takes the posi­ti­on that ser­vices from Micro­soft, spe­ci­fi­cal­ly Teams and Sky­pe, and the Zoom video con­fe­ren­cing solu­ti­on (the lat­ter updated as of 2 April 2020) do not con­form to data pro­tec­tion law. The aut­ho­ri­ty express­ly cla­ri­fies this point once again in its published check­list, which sta­tes as fol­lows:
“We would point that the pro­vi­ders of some wide­ly used pro­ducts do not satis­fy the con­di­ti­ons cited abo­ve, inclu­ding Micro­soft, Sky­pe Com­mu­ni­ca­ti­ons and Zoom Video Com­mu­ni­ca­ti­ons.“
Howe­ver, sin­ce the docu­ments deal both with the legal requi­re­ments for the use of video con­fe­ren­cing solu­ti­ons and with the authority’s recom­men­da­ti­ons, it is not neces­s­a­ri­ly the case, in our view, that the aut­ho­ri­ty is taking the posi­ti­on that using the­se pro­ducts would vio­la­te the law. This inter­pre­ta­ti­on is sup­port­ed by the fact that the aut­ho­ri­ty mere­ly says that the­se ser­vices “should” be repla­ced, not that they “must” be repla­ced, as well as the fact that the aut­ho­ri­ty does not cite any spe­ci­fic defects. Nevert­hel­ess, con­trol­lers which use the afo­re­men­tio­ned ser­vices should remain alert. Respon­ses from affec­ted com­pa­nies and fur­ther state­ments from the Ber­lin data pro­tec­tion aut­ho­ri­ty may bring fur­ther clarity.


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