Bonum Certa Men Certa

The European Data Protection Supervisor (EDPS) Needs to Get Its Act Together on the EPO's GDPR Violations

Nothing says 'European data protection' like outsourcing communications to an American surveillance firm
The European Data Protection Supervisor (EDPS) isn't actually doing anything; in a sense, it's very much complicit (by inaction and outright refusal to enforce the law against the EPO, even when presented with clear evidence of violations)



Summary: EU authorities aren't keeping abreast of EPO abuses; as a result, people's basic rights and fundamental sense of dignity erode, with impunity resulting in passage of massive piles of data to foreign corporations and governments that engage in industrial and political espionage

WE previously wrote about the European Data Protection Supervisor (EDPS) ignoring EPO privacy abuses. The Central Staff Committee (CSC) of the EPO has just brought up the subject, about a week after a meeting with António Campinos and his "Mafia" (people who flagrantly break the law while looting the institution). The CSC is circulating a 5-page "Report on the GCC meeting of 2 June 2021,", which it says showed "[s]ome light but strong shadow (data protection, pensions)..."



As usual, not much progress was made. It's mostly about the listening, if at all. No actions. Actions and policy-making will always be done unilaterally by the "Mafia" while merely pretending there was "consultation"...

"Actions and policy-making will always be done unilaterally by the "Mafia" while merely pretending there was "consultation"...""The new framework deviates in many points from the Data Protection Regulation EU-2018/1725," the CSC notes regarding the Data Protection Framework of the EPO under the Strategic Plan 2023. "While we recognise that data protection has improved somewhat," the representatives of the staff say, "it is still a long way to go to achieve the level of protection afforded to employees (and pensioners) in the EU institutions." The EPO has, in effect, outsourced itself to Microsoft and the NSA.

The CSC continues: "The main problems are, in particular, that the framework expressly calls into question the fundamental rights of natural persons in certain cases, that the President of the Office is both the controller and the appointing authority for the members of the supposedly independent Data Protection Board (DPB) and that the DPB cannot make binding opinions. The framework also makes the rules for the internal means of redress de facto stricter than the rules for the Appeals Committee in Title VIII of the Service Regulations (Settlement of disputes). For these reasons, we abstained on the document. For more details, please see our full opinion, annexed to the report."

Then there's the part about attack on pensions and pensioners: "Under “Any other Business”, we addressed on-site vaccination in the EPO as well as the announced review of the New Pension Scheme / Salary Savings Plan (NPS/SSP). The pension schemes are supposed to provide long-term security for staff and the Office alike. The fact that the Office intends to revise them just in highly turbulent times is disquieting. We will keep you informed as soon as more details emerge."

In any case, here's the full report (below), reproduced as simplified HTML for the European public to see:

Zentraler Personalausschuss Central Staff Committee Le Comité Central du Personnel

Munich, 10.06.2021 sc21077cp

GCC meeting on 2 June 2021 – Some light but strong shadow1



The meeting lasted one hour and there was only one document on the official agenda: the so-called modernisation of the Data Protection Framework of the EPO under the Strategic Plan 2023.

Modernisation of the Data Protection Framework of the EPO - for consultation

The Data Protection Officer introduced the document with the usual EPO buzzwords and jargon. We put a few questions. When asked why data protection at the EPO should be weaker than in the EU institutions, she answered that this was due to the very specific institutional set-up of the EPO.

In our view, this does not explain the many deviations from the Data Protection Regulation EU-2018/1725. While we recognise that data protection has improved somewhat, it is still a long way to go to achieve the level of protection afforded to employees (and pensioners) in the EU institutions. For this reason, we abstained on the document. For more details, please see our full opinion, annexed.

Any other Business

We decided to limit the discussion on the document for consultation to be able to accommodate two further important topics in the one-hour meeting, which we could not deal with in our previous meeting with the President on 19 May2.

On-site vaccination in the EPO Director HR Customer Engagement [sic] told us that they were busy preparing to start on-site vaccination in Germany (Munich and Berlin) after the third week of June3, following the offer by the German authorities but depending heavily on the availability of vaccines. For The Hague, staff will have to wait for similar initiatives from their local authorities.

Review of the New Pension Scheme/ Salary Savings Plan (NPS/ SSP) The Administration downplayed the importance of this review but nevertheless identified legal certainty of the scheme (e.g. taxation of the lump sum) as an issue to be tackled. Adjustments based on actuarial considerations are also to be expected. Some “convergence” with the “old” pension scheme was also mentioned. We will define principles to improve the scheme and we invite you to send us any idea you think is important.

_____ 1 Freely adapted from Johann Wolfgang von Goethe: “Wo viel Licht ist, ist starker Schatten.” 2 See our report on our meeting with the President on 19 May 2021 3 See also the announcement of 1 June: “Coronavirus measures: caution urged”




Conclusion: Some light but strong shadow

We welcome the intention to start on-site vaccination wherever possible. However, the pension schemes are supposed to provide long-term security for staff and the Office alike. The fact that the Office intends to revise them just in highly turbulent times is disquieting. We will keep you informed as soon as more details emerge.

The Central Staff Committee

Annex: opinion of the CSC members of the GCC on GCC/DOC 5/2021 (Data Protection Framework)




Opinion of the CSC members of the GCC on GCC/DOC 5/2021 (CA/26/21 and CA/26/21 Add.1): Modernisation of the Data Protection Framework of the European Patent Office under the Strategic Plan 2023

The CSC members of the GCC give the following opinion on document GCC/DOC 5/2021. The EPO intends to modernise the Data Protection Framework as part of its Strategic Plan 2023. It states that it will pursue an approach that creates long-term value, not only in terms of financial sustainability, but also in terms of environmental and social sustainability.

The CSC members of the GCC recognise that the standard of the proposed framework arguably positions the EPO slightly higher than some other International Organisations in terms of data protection... but far lower than the Data Protection Rules implemented at the EU institutions, bodies & agencies and in the EU members states. This certainly does not put our rules “on par with the data protection standards of other international organisations, and in particular the EU data protection regime applicable to EU institutions and in most EPC contracting states”.

The consultation process A concrete draft proposal of the intended modernisation was presented to the Staff Representation for the first time on 7 May 2021, with an invitation to comment. Document GCC/DOC 5/2021 was made available to GCC members on 17 May. The consultation was therefore insufficient on such a long and complex document.

Comparison with the EU-GDPR We welcome the commitment to data minimisation, which is the best way of protecting personal data, and the intention to harmonise the framework with the practices and standards of International Organisations and Institutions. However, the President deliberately chooses to go for a modernisation that deviates from the EU-GDPR.

The main differences between the EPO framework and the Data Protection Regulation EU-2018/1725 are the following:

● The GDPR emphasises the protection of the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data. At the EPO, the “compelling legitimate interest” of the EPO may override the interests or the fundamental rights and freedoms of the natural persons1. This provision in the Service Regulations calls into question the declaration that the Office would adhere to general legal principles, including human rights2. The Implementing Rules (IR) contain other similar mentions. ● In the GDPR, the European Data Protection Supervisor (EDPS) is appointed by the European Parliament and the Council. The same decide on renewal of their term. At the EPO, the corresponding Data Protection Board (DPB; a chair and two members) is appointed by the President of the Office3. The Data Protection Officer is also appointed by the President of the Office. As a result, all the persons and bodies capable of providing

_____ 1 Article 1b(5) ServRegs 2 CA/PV 55, CA/104/94, point 66, and Communiqué No. 257 3 Article 48 (IR)




some checks and balances are appointed by the same person, the controller / President of the Office. In addition, the DPO and the DPB are de facto not independent since the President of the Office decides on the renewal of their term of office. ● In the GDPR, the EDPS has a wide range of powers to ensure and monitor the consistent enforcement of data protection rules, including investigative and corrective powers and including imposition of administrative fines on EU institutions and bodies. At the EPO, the corresponding DPB has only oversight and advisory functions, i.e. it merely gives opinions and advices with no binding effect4. ● As regards legal challenges, the EDPS makes binding decisions. At the EPO, the DPB merely gives opinions, where a data subject makes use of the means of redress available5. Again, this opinion is not binding and the President of the Office may deviate from it, provided he/she gives reasons in writing6. For the reform of the internal appeal procedure in June 2017, the Administrative Council opted for a formulation intended to make it as difficult as possible for the President to deviate7. The new framework should be as close as possible to making DPB opinions binding on the President. ● At the EPO, the time limit for requesting a review of the processing of personal data by the controller is three months from the day on which the data subject was informed or otherwise became aware of the processing of personal data allegedly infringing his or her rights8. This time limit is far too short, especially since the decision might be a “covert” one and the relevant day could be open to debate. This will likely make many requests for review and complaints irreceivable. A two-year period like in EU institutions would be a reasonable compromise as regards legal certainty. ● In the GDPR, the EDPS and the Court of Justice are available to any natural person. At the EPO, natural persons not being EPO staff or EPO former staff (e.g. patent applicants, patent attorneys, visitors, members of the delegations in the Administrative Council) must have recourse to ad hoc arbitration in an official language chosen by an arbitration tribunal in The Hague, excluding any other national or international jurisdiction*. This may be better than the current situation, but it is a very unusual provision. It is therefore far from satisfactory.

The Rules of Procedure (CA/26/21 Add. 1) For reasons of autonomy and independence, the Rules of Procedure of the DPB should be adopted by the DPB itself, not by the President of the Office. In addition, contrary to the procedure before the internal Appeals Committee, the new framework excludes hearings before the DPB when it examines complaints10. This limits further the prospect of a fair “trial”.

_____ 4 Article 47 IR 5 Article 47(3)b IR 6 Article 50(4) IR 7 Article 110(4) ServRegs 8 Article 49(1) IR 9 Articles 50(8), 52(1) and 52(7) IR 10 Article 9(2) Rules of Procedure of the DPB




Open questions Some aspects were not dealt with and the relevant information is missing for a complete consultation:

● The document impinges on the functioning of the Boards of Appeal Unit. The advice of the Presidium in accordance with Rule 12b(3)(d) EPC is still outstanding, so that the influence on the (perceived) independence of the Boards is not yet known. ● The policy of informing / seeking consent for natural persons not covered by Article 1 ServRegs needs to be determined and clearly communicated to them. Otherwise the Office would mislead them if they would think that they fall under the EU-GDPR. This could affect the Office’s reputation.

The six-month transition period (July-December 2021) should be used to clarify the latter open question as well as further open questions. The Staff Representation is ready to contribute.

Conclusion The Office deliberately chooses not to follow the EU-GDPR, which can be considered the “gold standard”. Even taking into account the institutional set-up of the Organisation11, the new framework could have been closer to the EU-GDPR. The main problems are, in particular, that the framework expressly calls into question the fundamental rights of natural persons in certain cases, that the President of the Office is both the controller and the appointing authority for the members of the DPB and that the DPB cannot make binding opinions. The framework also makes the rules for the internal means of redress de facto stricter than the rules for the Appeals Committee in Title VIII of the Service Regulations (Settlement of disputes).

The new framework will require re-evaluation in a few years, hopefully with a view to coming closer to the EU-GDPR.

Based on the foregoing, the CSC members of the GCC abstain on the document.

_____ 11 E.g. Article 10 EPC



Long story short, it's just a PR exercise from EPO management. They're still violating privacy of staff, stakeholders, and the general public.

Recent Techrights' Posts

A Week After a Worldwide Windows Outage Microsoft is 'Bricking' Windows All On Its Own, Cannot Blame Others Anymore
A look back at a week of lousy press coverage, Microsoft deceit, and lessons to be learned
 
Links 26/07/2024: Tesco Cutbacks and Fake Patent Courts
Links for the day
Links 26/07/2024: Grimy Residue of the 'AI' Bubble and Tensions Around Alaska
Links for the day
Gemini Links 26/07/2024: More Computers and Tilde Hosting
Links for the day
Links 26/07/2024: "AI" Hype Debunked and Elon Musk's "X" Already Spreads Political Disinformation
Links for the day
"Why you boss is insatiably horny for firing you and replacing you with software."
Ask McDonalds how this "AI" nonsense with IBM worked out for them
No Olympics
We really need to focus on real news
Nobody Holds the GNOME Foundation Accountable (Not Even IRS), It's Governed by Lawyers, Not Geeks, and Headed by a Shaman Crank
GNOME is a deeply oppressive institutions that eats its own
[Meme] The 'Modern' Web and 'Linux' Foundation Reinforcing Monopolies and Cementing centralisation
They don't care about the users and issuing a few bytes with random characters costs them next to nothing. It gives them control over billions of human beings.
'Boiling the Frog' or How Online Certificate Status Protocol (OCSP) is Being Abandoned at Short Notice by Let's Encrypt
This isn't a lack of foresight but planned obsolescence
When the LLM Bubble Implodes Completely Microsoft Will be 'Finished'
Excuses like, "it's not ready yet" or "we'll fix it" won't pass muster
"An escalator can never break: it can only become stairs"
The lesson of this story is, if you do evil things, bad things will come your way. So don't do evil things.
When Wikileaks Was Still Primarily a Wiki
less than 14 years ago the international media based its war journalism on what Wikileaks had published
The Free Software Foundation Speaks Out Against Microsoft
the problem is bigger than Microsoft and in the long run - seeing Microsoft's demise - we'll need to emphasise Software Freedom
IRC Proceedings: Thursday, July 25, 2024
IRC logs for Thursday, July 25, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Links 26/07/2024: E-mail on OpenBSD and Emacs Fun
Links for the day
Links 25/07/2024: Talks of Increased Pension Age and Biden Explains Dropping Out
Links for the day
Links 25/07/2024: Paul Watson, Kernel Bug, and Taskwarrior
Links for the day
[Meme] Microsoft's "Dinobabies" Not Amused
a slur that comes from Microsoft's friends at IBM
Flashback: Microsoft Enslaves Black People (Modern Slavery) for Profit, or Even for Losses (Still Sinking in Debt Due to LLMs' Failure)
"Paid Kenyan Workers Less Than $2 Per Hour"
From Lion to Lamb: Microsoft Fell From 100% to 13% in Somalia (Lowest Since 2017)
If even one media outlet told you in 2010 that Microsoft would fall from 100% (of Web requests) to about 1 in 8 Web requests, you'd probably struggle to believe it
Microsoft Windows Became Rare in Antarctica
Antarctica's Web stats still near 0% for Windows
Links 25/07/2024: YouTube's Financial Problem (Even After Mass Layoffs), Journalists Bemoan Bogus YouTube Takedown Demands
Links for the day
Gemini Now 70 Capsules Short of 4,000 and Let's Encrypt Sinks Below 100 (Capsules) as Self-Signed Leaps to 91%
The "gopher with encryption" protocol is getting more widely used and more independent from GAFAM
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, July 24, 2024
IRC logs for Wednesday, July 24, 2024
Techrights Statement on YouTube
YouTube is a dying platform
[Video] Julian Assange on the Right to Know
Publishing facts is spun as "espionage" by the US government and "treason" by the Russian government, to give two notable examples
Links 25/07/2024: Tesla's 45% Profit Drop, Humble Games Employees All Laid Off
Links for the day
Gemini Links 25/07/2024: Losing Grip and collapseOS
Links for the day
LWN (Earlier This Week) is GAFAM Openwashing Amplified
Such propaganda and openwashing make one wonder...
Open Source Initiative (OSI) Blog: Microsoft Operatives Promoting Proprietary Software for Microsoft
This is corruption
Libre-SOC Insiders Explain How Libre-SOC and Funding for Libre-SOC (From NLNet) Got 'Hijacked' or Seized
One worked alongside my colleagues and I in 2011
Why We're Revealing the Ugly Story of What Happened at Libre-SOC
Aside from the fact that some details are public already
Removing the Lid Off of 'Cancel Culture' (in Tech) and Shutting It Down by Illuminating the Tactics and Key Perpetrators
Corporate militants disguised as "good manners"
FSF, Which Pioneered GNU/Linux Development, Needs 32 More New Members in 2.5 Days
To meet the goal of a roughly month-long campaign
Lupa Statistics, Based on Crawling Geminispace, Will Soon Exceed Scope of 4,000 Capsules
Capsules or unique capsules or online capsules are in the thousands and growing
Links 24/07/2024: Many New Attacks on Journalists, "Private Companies Own The Law"
Links for the day
Gemini Links 24/07/2024: Face à Gaïa, Emacs Timers for Weekly Event, Chromebook Survives Water Torture
Links for the day
Why Virtually All the Wikileaks Copycats, Forks, and Rivals Basically Perished
Cryptome is like the "grandpa" of them all
A Total Lack of Transparency: Open and Free Technology Community (OFTC) Fails to Explain Why Over 60% of Users Are Gone (Since a Week Ago)
IRC giants have fallen
In the United Kingdom Google Search Rises to All-Time High, Microsoft Fell Nearly 1.5% Since the LLM Hype Began
Microsoft is going to need actual products or it will gradually vanish from the market
Trying to Put Out the Fire at Microsoft
Microsoft is drowning in debt while laying off loads of staff, hoping it can turn things around
GNU/Linux Growing at Vista 11's Expense
it's tempting to deduce many people who got PCs with Vista 11 preinstalled are deleting it, only to replace it with GNU/Linux
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, July 23, 2024
IRC logs for Tuesday, July 23, 2024