GDPR implementation part 8: “Personal data” in the EU and the US is not the same

We usually think of “personal data” as a term that contains for instance a person’s full name, home address, email address, telephone number, and date of birth.

These are ordinary data that can obviously identify a specific person. But in the personal data category of linked personal information are also data such as social security number, passport number, and credit card numbers – data that can identify us, and data we usually feel more restrictive about.

Linkable and non-linkable information

But there is another category of data that on its own may not be able to identify a person, but combined with other information could identify, trace, or locate a person. Such data are gender, race, sexual orientation, workplace, employment etc. These are examples of linkable personal information.

Then we have the category non-personally identifiable information. That is data that cannot be used on its own to identify or trace a person, for example IP addresses, cookies, device IDs, and software IDs (non-linkable personal information).

Privacy regulations differ in the EU and the US

Now, we know that there are industries that exist almost under the radar while taking advantage of personal data. For instance, companies in the AdTech and MarTech industry base their business on collecting and trading personal data for targeted advertising and marketing.

Many of these actors try to take protection of personal data seriously, and refer to the rules and regulations for processing personal data. In Europe this is the GDPR (General Data Protection Regulation) within the EU/EEA-area1, and in the US it is the responsibility of the FTC (Federal Trade Commission).

However, what the EU/GDPR and US government agencies mean by “personal data” is different. Specifically, the definition by EU/GDPR is more comprehensive than the definition often referenced by US agencies, such as that of NIST (National Institute of Technology).

For example, the EU concept of personal data includes information such as cookies and IP addresses, which are not considered as personal data in a US setting.2

This means that if US websites in their privacy policy state that they are GDPR compliant, but combine their data with other data sets, they may breach the GDPR. For example, they must have the user’s consent to collect their IP address under the GDPR.

Definitions of “personal data”

National Institute of Technology’s definition

NIST’s definition of personal data is contained in the definition of Personal Identifiable Information (PII):

PII is any information about an individual maintained by an agency, including (1) any information that can be used to distinguish or trace an individual‘s identity, such as name, social security number, date and place of birth, mother‘s maiden name, or biometric records; and (2) any other information that is linked or linkable to an individual, such as medical, educational, financial, and employment information.

US Office of Privacy and Open Government’s definition

Another PII-definition is from the US Office of Privacy and Open Government (OPOG) as follows:

The term personally identifiable information refers to information which can be used to distinguish or trace an individual’s identity, such as their name, social security number, biometric records, etc. alone, or when combined with other personal or identifying information which is linked or linkable to a specific individual, such as date and place of birth, mother’s maiden name, etc.

EU’s GDPR definition

Compare these PII-definitions with the GDPR Article 4(1)’s definition of personal data:

‘personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;

It is obvious that GDPR defines personal data much broader than both NIST’s and OPOG’s PII, and this is underlined by this statement found in GDPR’s Recital 30:

Natural persons may be associated with online identifiers provided by their devices, applications, tools and protocols, such as internet protocol addresses, cookie identifiers or other identifiers such as radio frequency identification tags. This may leave traces which, in particular when combined with unique identifiers and other information received by the servers, may be used to create profiles of the natural persons and identify them.

The US is lacking comprehensive regulation

That said, US authorities are moving towards stronger protection of privacy and personal data, but as late as March 2019, the US Congressional Research Service says:

Despite the increased interest in data protection, the legal paradigms governing the security and privacy of personal data are complex and technical, and lack uniformity at the federal level. The Supreme Court has recognized that the Constitution provides various rights protecting individual privacy, but these rights generally guard only against government intrusions and do little to prevent private actors from abusing personal data online. At the federal statutory level, while there are a number of data protection statutes, they primarily regulate certain industries and subcategories of data. The Federal Trade Commission (FTC) fills in some of the statutory gaps by enforcing the federal prohibition against unfair and deceptive data protection practices. But no single federal law comprehensively regulates the collection and use of personal data (our emphasis).

Conclusion

When US websites claim to follow the rules for processing personal data it is dubious at best, compared to the regulations in the EU/EEA – which the Norwegian legislation is based on and is what Runbox adheres to.

However, it should be mentioned that some US states, for instance California, do classify some anonymous data (i.e. IP-addresses, aliases and account data) as PII.

In addition, as stated in our Privacy Policy, the personal data we ask customers to register in order to use our service is very limited. We are conscious about the trust our customers place in us when they register personal data in our systems, and in return we can demonstrate that we are compliant with the regulations.

Addendum

Above we referred to the AdTech and MarTech industries and their usage of personal data to identify, trace, or locate a person for advertising and marketing purposes. That topic is outside the scope of this blog post, but is absolutely worth writing about in a later post.

1 EEA = European Economic Area, that is the EU and three countries: Iceland, Lichtenstein, and Norway.

2 https://www.forbrukerradet.no/out-of-control/ footnote on page 102.

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