DATA PROTECTION LAW

DATA PROTECTION LAW

Filiberto Brozzetti

Instructional goals

The course promotes an in-depth analysis of one of the most challenging and multidisciplinary legal topics of the time. The course addresses students with different backgrounds such as law, economics, statistics, digital and engineering management, marketing and advertising, PR and further sectors intensely affected by the employment of personal data, who intend to develop the knowledge and the attitude of privacy compliance in their activities. There will be lectures, presentations of case studies, interviews to experts and professionals who deal on a daily base with both theoretical and practical issues produced by the implementation of data protection legislation in current market practices. Data flows are nowadays the actual fuel of economical, political and social research and strategical planning, providing continuous and rich information about singular profiles of present or potential customers, electors and stakeholder and with a thorough detail and update degree. On the other hand, such a deepened scrutiny has its severe repercussion on the side of data subjects trying to defend private information about themselves against illegitimate excessive intrusions. Innovation and technologies like big-data and AI represent unmissable chances for businesses, enterprises and governments, but also a permanent menace towards the rights and the liberties of individuals. Contemporary data protection legislations are specifically aimed to balance the reasonable needs of the market with the impact of digital technologies over personalities. The goal of the course is to give a thorough overview of the European General Data Protection Regulation (GDPR), its principles, its rules, its implementations method, its risk-based approach and the activity of the institutions it calls on. The analysis will focus on the pivotal concept of “accountability” of data controllers and processors, the very keystone of the brand-new data protection legal system, which specifically requires aware and responsible actors. The confrontation with realities dealing with the necessity to manage the fulfillment of practical needs in term of data processing within a strict legal framework will grant the students the development of that then-intuitive sensitiveness to the data protection compliance as one of the most precious strategical assets of an enterprise. Data governance is made of the ability both of mining and interpreting salient information but most of all being able to give an account of one’s choices when it comes to design data processing in order to minimize the risk of unnecessary or disruptive interference with another one’s personal and intimate life. Another goal of the class is to study and understand the different approaches towards data flows regulation held by Europe’s commercial partners overseas and how the profound conceptual distinction between “privacy” and “data protection” still affects them. Comparison will be an integral part of the teaching method for this subject. Students will also be presented with all the draft Acts of the EU Digital Package (DSA, DMA, DGA, Data Act, AI Regulation, and Privacy Regulation) currently under discussion in Brussels as fundamental elements of the future European legal framework of digital. environment. In addition, students will be presented with studies and applications of the most disruptive technologies and their impact on the future of data protection.

Intended learning outcomes

Knowledge and understanding: By the end of the course, students should be able to: • know all the principles and concepts applying to data control and processing; • follow-up the non-stop engineering innovation in data processing and comprehend the significant characteristics of relevant technologies such as the application of big-data and AI technologies in several business sectors; • master the tools and the institutions compatible with the new legal framework regulating data protection. Applying knowledge and understanding: Upon completing the study program, students will be able to: • assess the impact of data processing towards the right and liberties of data subjects; • elaborate and plan different privacy-by-design and privacy-by default solutions depending on specific processing purposes and situations; • effectively communicate and work, as an expert in data protection issues. Making judgements: Upon completing the study program, students will be able to: • apply the rules required by specifical data processing schemes; • recognize data protection risks within a processing and identify proper and effective measures to minimize them; • prepare original reports and impact assessment of specifical data processing simulations. Communications Skills: Upon completing the study program, students will be able to: • develop the ability to communicate in written form through completing the assignment and oral form through the final exam and the class debate; • use the notions and the communication of data protection law; • develop the ability to provide legal advice to data controllers and processors. Learning skills: Upon completing the study program, students will be able to: • build an analytic toolbox from data protection and privacy regulations; • solve problems in dynamics settings and develop critical positions. This ability will be acquired through: class participation, class debate, and research carried out for the drafting of the written assignment.

Course Contents

I. Privacy and Personal Data Protection fundamentals II. The GDPR discipline III. Comparative Privacy and Data Law around the Globe IV. Technological, political and economic challenges for Data Protection V. Other relevant EU legislation on the governance of the digital environment

Reference Books

In order to have a general and analytical view on data protection law and the impact of digital technology on individual rights, students can refer to: Council of Europe, European Court of Human Rights, European Data Protection Supervisor, European Union Agency for Fundamental Rights, 2018, Handbook on European Data Protection Law, EU Publications, Luxembourg, available at https://op.europa.eu/en/publication-detail/-/publication/5b0cfa83-63f3-11e8-ab9c-01aa75ed71a1/language-en A book of the following chosen by the individual student: D.J. Solove and W. Hartzog, Breached! Why Data Security Law Fails and How to Improve It, Oxford University Press, 2022 K. O'Hara, The seven veils of privacy: How our debates about privacy conceal its nature, Manchester University Press, 2023 J. Chin and L. Lin, Surveillance State: Inside China's Quest to Launch a New Era of Social Control, St. Martin's Press, 2022 N. Richards, Why Privacy Matters, Oxford University Press, 2021 S. Zuboff, The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power, Profile Books, 2019 D.K. Citron, The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age, W. W. Norton & Company, 2022 A. ​Monti and R. Wacks, Protecting Personal Information: The Right to Privacy Reconsidered, Hart Publishing, 2019 T. Naef, Data Protection without Data Protectionism: The Right to Protection of Personal Data and Data Transfers in EU Law and International Trade Law, Springer, 2022 F. DeBrabander, Life after Privacy: Reclaiming Democracy in a Surveillance Society, Cambridge University Press, 2020 D. Lyon, Pandemic Surveillance, Polity 2021 Students are also expected to read the papers/articles assigned each week as well as the EDPB Guidelines indicated during the lessons and selected case law of the European Court of Human Rights and the Court of Justice of the European Union. Study Materials: slides uploaded on the course page on Luiss Learn

Teaching Methods

Acquisition: lectures, podcasts and online quizzes Practice: guest speakers, case study and simulation Investigation: analyzing ideas and information in a range of materials and resources Collaboration: small group project, discussing others’ output and building joint output Discussion: seminars, group based class discussion, synchronous and asynchronous discussion Production: essays

Assessment Method

The assessment of learning is conducted according to the following criteria: - 15% of the final grade is based on attendance and active participation in class (7.5% for attendance and 7.5% for participation through contributions, opinions, initiatives, questions, and comments) - 30% of the final grade is based on the result of the first mid-term test (Groupwork on Compliance Assessment Simulation) - 30% of the final grade is based on the result of the second mid-term test (multiple choice) - 25% of the final grade is based on the final oral exam The mid-term tests cover the topics taught from the start of the course until the first test, and from the first to the second test, respectively. They are not mandatory: if you do not participate in one or both tests, you will be examined on the missing topics during the final oral exam. You may reject the written test grade, in which case you will also be examined orally on the related topics. The oral exam covers all topics for which you have not already received a grade. Additionally, you will have to discuss the topics of the book chosen among those in the list. Non-attending students are required to study all the material listed in the syllabus without exception. Unjustified non-attendance will be evaluated negatively.

Thesis assignment criteria

A strong interest in the subject matter and theoretical inquiry, along with critical thinking skills and intellectual engagement will be highly valued by the course chair.

Week 1

I. Privacy and Personal Data Protection fundamentals 0. Presentation of the course. 1. Context and backgrounds of European Data Protection Law • from the right to privacy to the right to personal data protection • international legal frameworks 2. The “Copernican revolution” of the GDPR • from prescriptions to principles • the forerunners of the GDPR • a new geography for data Reference: - Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, in “Harvard Law Review”, Vol. 4, No. 5 (Dec. 15, 1890), pp. 193-220 - Judith Jarvis Thomson, The Right to Privacy, Philosophy & Public Affairs , Summer, 1975, Vol. 4, No. 4 (Summer, 1975), pp. 295-314

Week 2

II. The GDPR discipline 2. The “Copernican revolution” of the GDPR • from prescriptions to principles • the forerunners of the GDPR • a new geography for data 3. Data Protection terminology • “personal data” • Special categories of data (“sensitive data”) • “data processing” • actors of data governance Reference: - ECHR (1950) Article 8 of the Convention – Right to respect for private and family life - CFREU (2000) Article 7 – Respect for private and family life and Article 8 – Protection of personal data - TEU (2009) Article 39 - TFEU (2009) Article 16 (ex article 286 TEC) - GDPR: Articles 1, 2, 4, and Recitals 1- 5, 7, 9-11, 14, 15, 18-20, 22-31

Week 3

II. The GDPR discipline 4. Key principles of European Data Protection Law • lawfulness, fairness and transparency of processing • purpose limitation • data minimization • accuracy, storage limitation and security • accountability 5. Rules of European Data Protection Law • lawful grounds for processing data and special categories of data Reference: - GDPR: Articles 5-14 and Recitals 32, 33, 38, 39, 41-47, 49-62 - Article 29 Working Party, Guidelines on consent under Regulation 2016/679 - Judgment of the Court (Grand Chamber) of 4 July 2023, Meta Platforms Inc and Others v Bundeskartellamt, C-252/21

Week 4

II. The GDPR discipline 6. Data subjects’ rights • the right to be informed • the rights to rectification, restriction and object • the “right-to-be-forgotten” • the rights against automated individual decision-making, including profiling • the enforcement of the subjects’ rights Reference: - GDPR: Articles 15-23, and Recitals 63-65, 67-73 - Article 29 Working Party, Guidelines on Automated Individual Decision-Making and Profiling for the Purposes of Regulation 2016/679 - Judgment of the Court (Grand Chamber), 13 May 2014, Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González, Request for a preliminary ruling from the Audiencia Nacional, C-131/12

Week 5

II. The GDPR discipline 7. GDPR Compliance • Personal data governance and accountable actors • elements of data security • management of personal data breach • rules on accountability • tools for compliance • data protection by design and by default • DPIA Reference: - GDPR: Articles 24-26, 28-29, 31-43, and Recitals 75-78, 81, 84, 85, 87-95, 97 - EDPB Guidelines 4/2019 on Article 25 Data Protection by Design and by Default - EDPB Guidelines 07/2020, on the Concepts of Controller and Processor in the GDPR - EDPB Guidelines 01/2021 on Examples Regarding Data Breach Notification - Article 29 Working Party, Guidelines on Personal Data Breach - Article 29 Working Party, Guidelines on Data Protection Impact Assessment (DPIA) and determining whether processing is “likely to result in a high risk”

Week 6

II. The GDPR discipline 8. Institutional frameworks and independent supervision • supervision Authorities • powers and sanctions • the European Data Protection Board • the “consistency mechanism” Reference: - GDPR: Articles 51-84, and Recitals 117-152

Week 7

- First Mid-Term Test (Groupwork on Compliance Assessment Simulation) - II. The GDPR discipline 9. Rules on international personal data transfers • free flow of personal data between EU Member States • personal data transfers to third countries or to international organisations • EU-US agreements on data flows • effects of Brexit on data tranfers to UK Reference: - GDPR: Articles 44-49 and Recitals 101, 102, 105, 108, 109, 113-116

Week 8

III. Comparative Privacy and Data Law around the Globe 10. Comparative perspectives of data regulation around the World • the Anglo-Saxon Approach • data protection in the Far East • “a clash of civilizations”? • the call for a new geo-politics of data Reference: - Judgment of the Court (Grand Chamber) of 6 October 2015, Maximillian Schrems v Data Protection Commissioner, Request for a preliminary ruling from the High Court (Ireland), C-362/14 - Judgment of the Court (Grand Chamber) of 16 July 2020, Data Protection Commissioner v Facebook Ireland Limited and Maximillian Schrems, Request for a preliminary ruling from the High Court (Ireland), C-311/18

Week 9

III. Comparative Privacy and Data Law around the Globe 11. Privacy and Data Protection Disciplines around the World • U.S. and California • Australia • Singapore • Hong Kong • Brazil • South Africa • India • Turkey • Russia • China Reference: - Council of Europe Convention 108 / 1981 ECourtHR Case Law applying the Convention 108 Emending Protocol for Convention 108+ - UK, Data: A New Direction (2021) - Prof. Graham Greenleaf Global Data Privacy Laws 2023: 162 National Laws and 20 Bills, [2023] UNSW Law & Justice Research Series, 48, (2023) 181, Privacy Laws and Business - International Report 1 Australia’s never-ending privacy reform process, (2023) 186, Privacy Laws and Business - International Report 11-13 India’s 2023 Data Privacy Act: Business/government Friendly, Consumer Hostile, [2024] UNSW Law & Justice Research Series, 8, (2023) 185, Privacy Laws and Business - International Report 1, 3-12 China’s Completed Personal Information Protection Law: Rights Plus Cyber-security, [2021] UNSW Law & Justice Research Series, 91, (2021) 172, Privacy Laws and Business - International Report 20-23 ASEAN Model Contractual Clauses: Low and Ambiguous Data Privacy Standards, [2021] UNSW Law & Justice Research Series, 83, (2021) 174, Privacy Laws and Business - International Report 22-24 - Materials provided by Prof. Brozzetti

Week 10

III. Comparative Privacy and Data Law around the Globe 12. International Data Protection Law and Governance • DFFT • OECD • G7 • G20 • UN Reference: - DFFT: G20 Osaka Leaders' Declaration (2019) (https://www.mofa.go.jp/policy/economy/g20_summit/osaka19/en/documents/final_g20_osaka_leaders_declaration.html) UK G7 Roadmap for Cooperation on DFFT (2021) Germany G7 Action Plan for Promoting DFFT (2022) Japan G7 Vision for Operationalising DFFT (2023) CSIS: Operationalizing Data Free Flow with Trust (https://www.csis.org/analysis/operationalizing-data-free-flow-trust-dfft) - OECD Data Governance (https://www.oecd.org/digital/data-governance/) - UN OHCHR - Special Rapporteur on the right to privacy (https://www.ohchr.org/en/special-procedures/sr-privacy) General Assembly A/77/196 - Materials provided by Prof. Brozzetti

Week 11

IV. Technological, political and economic challenges for Data Protection 13. Contemporary challenges in personal data protection and disruptive technologies • AI and Big Data • social networks • cloud and edge computing • quantum computing • Big Tech and new powers • Data Monetisation and Pay or Consent • Data Protection and Counter-Terrorism • Data Protection and the Law of War Reference: - L. West, Privacy v. Precautions in Future Armed Conflicts, Lieber Institute - West Point, 2022 (https://lieber.westpoint.edu/privacy-vs-precaution-future-armed-conflict/) - A. Lubin, The Rights to Privacy and Data Protection under International Humanitarian Law and Human Rights Law, in Research Handbook on Human Rights and Humanitarian Law: Further Reflections and Perspectives (2022) 463-492 - R. Geiss, H. Lahmann, Protection of Data in Armed Conflict, 97 International Law Studies 556 (2021) - L.R. Blank, E. Talbot Jensen, LOAC and the Protection and Use of Digital Property in Armed Conflict - R. Buchan, A. Lubin (eds.), The Rights to Privacy and Data Protection in Times of Armed Conflict, NATO Cooperative Cyber Defence Centre of Excellence 2022 - Materials provided by Prof. Brozzetti

Week 12

V. Other relevant EU legislation on the governance of the digital environment. 14. EU Data strategy and Digital Package • Data Governance Act • Data Service Act • Data Market Act • Data Act • European Health Data Space • ePrivacy Regulation • Copyright Act • AI Act • Network and Information Security 2 - Second Mid-Term Test (multiple choice) - Reference: - Materials provided by Prof. Brozzetti