As the world approaches the May 25, 2018 GDPR enforcement date, some organizations are still adapting a wait and see approach, while many others are preparing with a palpable sense of urgency. Gartner published a study reporting that over 50% of companies affected by GDPR will not meet the May deadline. And then there are some pundits who are predicting Armageddon. While the Armageddon forecasts are premature, I do not see a lot of awareness, even among some legal privacy lawyers, of the private right action afforded under the GDPR.
A very important dynamic of the GDPR is that the private citizens of the European Union will have an active role in its enforcement. Unlike many regulatory regimes, where a relatively small handful of government regulators infrequently enforce the rules, organizations that store information on EU citizens will face about 300 million regulators, which is a rough figure of the adult population in the EU. These citizens can make requests at any time to have data deleted in place through the right of erasure as well as make other requests regarding the usage of their personal data.
Even more importantly, the GDPR provides a mechanism for a private right of action under Article 82(1). And Article 80(2) provides that “[T]he data subject shall have the right to mandate a not-for-profit body, organisation or association …. to lodge the complaint on his or her behalf.”
Regulations which provide a private right of action, including the ability to bring a class action law suit, are exponentially more impactful than the vast majority of regulations which do not.
European privacy lawyer and activist Max Schrems — fresh off his major legal victory resulting the safe harbor provisions in the data transfer arrangement between the EU and US being struck down in 2015 — is running a crowdfunding campaign to set up a not-for-profit privacy enforcement organization to take advantage of the GDPR right of private action provisions to pursue class-action style litigation. Shrems’ NGO, — called noyb; short for: ‘none of your business’ — is being made possible because GDPR allows for collective enforcement of individuals’ data rights.
Mr. Schrems told the Financial Times the organization would help consumers fight for their rights and encourage whistleblowers inside tech companies to speak out. “It makes sense to have a single EU hub to act as a coordinator to connect existing resources, ensure actions are effective and strategic, and ensure efforts and resources are not duplicated,” he said. In other public statements, Schrmes noted that his organization will enable class-action style GDPR claims in order “to enforce your rights individually. The only way to do that is to collectivise it through a rights organisation to get things done as we have in the past with consumer rights.” Schrems and his partners believe that having a single NGO at an EU level with the necessary expertise, experience and connections is far more efficient than lots of individual ones.
These developments concerning a possible torrent of private GDPR claims heighten the urgency and expected impact of the law. In terms of readiness, a mandatory aspect of GDPR compliance is the ability to demonstrate and prove that personal data is being protected, requiring information governance capabilities that allow companies to efficiently produce the documentation and other information necessary to respond to regulators and EU private citizen’s requests. As such, any GDPR compliance programs are ultimately hollow without consistent, operational execution and enforcement. To achieve GDPR compliance and also EU data shield certification, organizations must ensure that explicit policies and procedures are in place for handling personal information, and just as importantly, the ability to prove that those policies and procedures are being followed and operationally enforced. What has always been needed is gaining immediate visibility into unstructured distributed data across the enterprise, through the ability to search and report across several thousand endpoints and other unstructured data sources, and return results regarding PII leakage within minutes instead of days or weeks. The need for such an operational capability is further heighted by the urgency of GDPR compliance.
X1 Distributed Discovery (X1DD) represents a unique approach, by enabling enterprises to quickly and easily search across multiple distributed endpoints and data servers for PII and other data from a central location. Legal and compliance teams can easily perform unified complex searches across both unstructured content and metadata, obtaining statistical insight into the data in minutes, instead of days or weeks. With X1DD, organizations can also automatically migrate, collect, delete, or take other action on the data as a result of the search parameters. Built on our award-winning and patented X1 Search technology, X1DD is the first product to offer true and massively scalable distributed searching that is executed in its entirety on the end-node computers for data audits across an organization. This game-changing capability vastly reduces costs while greatly mitigating risk and disruption to operations.
X1DD operates on-demand where your data currently resides — on desktops, laptops, servers, or even the Cloud — without disruption to business operations and without requiring extensive or complex hardware configurations. Beyond enterprise eDiscovery, GDPR and other information governance compliance functionality, X1DD includes the award-winning X1 Search, improving employee productivity while effectuating that all too illusive actual compliance with information governance programs, including GDPR.
GDPR’s potentially significant penalties, which can be up to 4% of total global revenues or 20 million euro (whichever is greater), clearly have teeth and are intended to attain meaningful compliance. However, The CXP Group, a leading IT research firm notes in an industry report that, “compliance with GDPR will only be legally (effectuated) if an organization is able to identify exactly where data is.”
Next Gen eDiscovery Law & Tech Blog 