Lower Sax­ony’s data pro­tec­tion aut­ho­ri­ty con­siders Office 365 “high­ly cri­ti­cal.” Is it? We say no.

Sta­tus quo

Num­e­rous reports and pro­duct war­nings have been issued about Micro­soft Office 365 and other col­la­bo­ra­ti­on and video con­fe­ren­cing plat­forms sin­ce the start of the pan­de­mic, unsett­ling com­pa­nies and other users. The office of the Com­mis­sio­ner for Data Pro­tec­tion of the Fede­ral Sta­te of Lower Sax­o­ny (only in Ger­man) announ­ced this week that it con­siders use of Office 365 to be “high­ly cri­ti­cal” and urgen­tly advi­sed against using the pro­gram from the view­point of data pro­tec­tion law. In the past, the Con­fe­rence of Inde­pen­dent Fede­ral and Sta­te Data Pro­tec­tion Aut­ho­ri­ties (DSK) (only in Ger­man) had also exami­ned the ques­ti­on as to whe­ther Office 365 can be used in accordance with data pro­tec­tion law in the public and non-public sec­tor. In an extre­me­ly tight 9–8 decis­i­on, it found based on the review­ed docu­ments that “at least as of Janu­ary 2020, Micro­soft Office 365 can­not be used in a man­ner which con­forms to data pro­tec­tion law.” Sin­ce then, super­vi­so­ry aut­ho­ri­ties have been in dis­cus­sions with Micro­soft in an effort to address data pro­tec­tion con­cerns. To our know­ledge, the aut­ho­ri­ties have not under­ta­ken any addi­tio­nal mea­su­res, such as e.g. pro­hi­bi­ting data pro­ces­sing with Office 365, and such orders appear to be high­ly unli­kely while the dis­cus­sions are ongo­ing. This con­clu­si­on is also sup­port­ed by a press release from Lower Sax­ony’s data pro­tec­tion aut­ho­ri­ty stres­sing that it has “not yet issued any such order or pro­hi­bi­ti­on.” (only in German)

Mean­while, Office 365 con­ti­nues to be used in schools. The office of the Com­mis­sio­ner for Data Pro­tec­tion and Free­dom of Infor­ma­ti­on for the Fede­ral Sta­te of Hes­se had pre­vious­ly sta­ted that tole­ra­ti­on of the use of all video sys­tems which fail to meet all of the requi­re­ments of data pro­tec­tion law would expi­re on 31 July 2021 (only in Ger­man), but has now announ­ced that tole­rance of the­se pro­ducts will be exten­ded until fur­ther noti­ce fol­lo­wing a delay in the pro­cess for awar­ding a new con­tract (only in Ger­man). On a fun­da­men­tal level, Minister-President Tobi­as Hans of the Fede­ral Sta­te of Saar­land recent­ly cri­ti­ci­zed the idea of ban­ning func­tion­al digi­tal tech­no­lo­gies due to data pri­va­cy con­cerns (only in Ger­man) and cal­led for easing requi­re­ments in data pro­tec­tion law so as to allow for their use.

Cri­ti­cism by the data pro­tec­tion aut­ho­ri­ty of Lower Saxony

In its recent press release, the cri­ti­cism expres­sed by the Lower Sax­o­ny data pro­tec­tion aut­ho­ri­ty were main­ly focu­sed on two aspects. First, it stres­sed that the pro­ces­sing agree­ments with Micro­soft are pro­ble­ma­tic. But unfort­u­na­te­ly, it remains unclear what exact­ly the aut­ho­ri­ty means by this and whe­ther its cri­ti­cism goes bey­ond the comm­ents made by DSK about ear­lier ver­si­ons of the agree­ments (only in Ger­man). Lower Sax­ony’s data pro­tec­tion aut­ho­ri­ty also cri­ti­ci­zes the back­ground trans­fer of tele­me­try data, for which the­re is curr­ent­ly no legal basis, accor­ding to the aut­ho­ri­ty. In this case as well, it is unclear whe­ther the aut­ho­ri­ty­’s cri­ti­cism goes bey­ond the aspects con­cer­ning the pro­ces­sing of tele­me­try data which have alre­a­dy been cited by DSK, which rela­ted pri­ma­ri­ly to use of Office 365 by public aut­ho­ri­ties (only in German).

We can the­r­e­fo­re sta­te that the recent press release from Lower Sax­ony’s data pro­tec­tion aut­ho­ri­ty gives no indi­ca­ti­on of any new cri­ti­cism of Office 365 in terms of data pro­tec­tion law. As a result, com­pa­nies in the pro­cess of eva­lua­ting use of Office 365 may con­ti­nue to use last year’s DSK reso­lu­ti­on when incor­po­ra­ting the posi­ti­on of the super­vi­so­ry aut­ho­ri­ties into their data pro­tec­tion ana­ly­sis, even though this reso­lu­ti­on has its­elf drawn signi­fi­cant cri­ti­cism from some of the super­vi­so­ry aut­ho­ri­ties (only in German).

Can they do that?

The GDPR does not aut­ho­ri­ze super­vi­so­ry bodies to con­duct gene­ral pro­duct eva­lua­tions and doing so with no legal basis could expo­se them to num­e­rous dama­ge claims from affec­ted manu­fac­tu­r­ers. A preli­mi­na­ry DSK opi­ni­on (only in Ger­man) con­cludes that the­re may be legal basis for the aut­ho­ri­ties’ pre­vious eva­lua­tions and pro­duct war­nings if tho­se actions are clas­si­fied as mea­su­res to pro­mo­te public awa­re­ness in accordance with Artic­le 57(1) of the GDPR. But it remains ques­tionable whe­ther the prin­ci­ples of objec­ti­vi­ty and accu­ra­cy were satis­fied in each indi­vi­du­al case (only in Ger­man). The most pro­mi­nent exam­p­le of the­se actions during the pan­de­mic were tho­se con­cer­ning the video con­fe­ren­cing ser­vice Zoom. On the who­le, a cau­tious approach on the part of the super­vi­so­ry aut­ho­ri­ties would be wel­co­me in light of the enorm­ous impact of pro­duct war­nings (only in Ger­man) and the thre­at of dama­ge claims in case of mis­con­duct by the authorities.

What do we advi­se companies?

Given that the regu­la­to­ry situa­ti­on is still unclear and unsett­led, com­pa­nies are advi­sed to clo­se­ly exami­ne their use of Office 365. In doing so, howe­ver, they should not attach too more importance to the opi­ni­ons and state­ments of indi­vi­du­al super­vi­so­ry aut­ho­ri­ties, par­ti­cu­lar­ly tho­se which do not pre­sent con­cre­te cri­ti­cism. Whe­ther or not Office 365 and other col­la­bo­ra­ti­on and video con­fe­ren­cing ser­vices com­ply with data pro­tec­tion law should be eva­lua­ted based on the GDPR and the appli­ca­ble case law. In par­ti­cu­lar, the requi­re­ments ari­sing from the ECJ’s “Schrems II” decis­i­on should be hee­ded in this con­text. The con­duct of this eva­lua­ti­on should be docu­men­ted by the com­pa­ny in each case, and all indi­vi­du­al opti­ons for adap­ting to the requi­re­ments should be exhaus­ted, with the assis­tance of tech­ni­cal experts if necessary.

Plea­se cont­act our Digi­tal Busi­ness Unit at any time if you have any fur­ther ques­ti­ons rela­ting to data pro­tec­tion with Office 365 or other col­la­bo­ra­ti­on or video con­fe­ren­cing services.

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