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Re: Proposed Text for Local Law and Public Purpose

From: Walter van Holst <walter.van.holst@xs4all.nl>
Date: Fri, 26 Oct 2012 13:38:43 +0200
Message-ID: <508A7643.2020907@xs4all.nl>
To: public-tracking@w3.org
On 10/26/12 12:45 AM, Kimon Zorbas wrote:

> not sure, how much DNT reflects EU style law: EU law regulates storing
> of data on a device (not technology neutral), DNT  is about tracking
> (not sure what that is yet) and is (so far) technology neutral.

Maybe it helps if you frame the e-Privacy Directive as an attempt to
make concepts from the Data Protection Directive more concrete. So when
we're talking about EU law, it is more DP Directive than e-Privacy
Directive since the latter is a (poor) application of the former. For
the sake of clarity, the choice has been made that cookies shall be
treated equally to personal data, although cookies do not always
constitute personal data. That particular choice makes sense if you
realise that cookies in the vast majority of cases _do_ constitute
personal data.

The e-Privacy directive is less-than-succesfull because it ties all this
to cookies which is indeed technology specific, to the point that Roy
Fielding's observations on it are quite spot on.

> non-personal data is not regulated): Data Protection Authorities seek to
> increase privacy protection by interpreting many types of data as
> personal (e.g. IP addresses). Industry needs data to operate and more
> often than not has no intention to ever identify an individual with the
> data it processes (e.g. IP addresses), arguing (legally correct in my
> view) that such data is not personal.

We may be diverging here a bit. I do share some of your misgivings about
categorically considering IP-adresses as personal data, as is the
position of Article 29. However, in light of the fact that IP-adresses
are almost never processed as such, it is again better for clarity to
treat them as personal data. Moreover, intent never mattered in the
history of the DP Directive, it has always been about potential to link
to a person. And that goes even back further than 1995, the year in
which the DP Directive was finalised. Earlier national laws in EU member
states were using that as a core concept in the eighties of last
century. Notably France, Germany and the Netherlands.

> Thought that brief (and, I admit somehow superficial) but neutral
> explanation would add some clarity to the debates happening here and the
> differing views we sometimes see (e.g. I and Rob).

I think it is useful to have your perspective added to this, thank you
for that.


Received on Friday, 26 October 2012 11:39:13 UTC

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