French data protection authority, the CNIL, recently published a Guide for Heath Professionals (Guide des professionnels de santé), available online (view here in French).
The first pages of this Guide remind the core principles of the French Data Protection Act, the missions of the CNIL and the role of data protection officers (“CIL”).
The second part is divided into practical, easy-to-read fact sheets designed to give health professionals the basic information and guidelines they need when processing personal and health data.
Purposes of biometric recognition systems
Vauban Systems, an information security consulting firm, had applied for an authorization, in compliance with Article 25-I-8° of the French Data Protection Act, which provides that automatic processing comprising biometric data necessary for the verification of an individual’s identity may be carried out only after the CNIL’s authorization.
A biometric system is designed to identify individuals based on their physical, biological or even behavioral features. Biometric data is data produced by the human body, positively identifying individuals and enabling to trace them. Vein pattern is a more reliable and secure biometric method than fingerprints, which may be lifted and reproduced unbeknownst to the individual.
France has recently adopted an ordinance implementing the EU Telecoms Package into its national law. The new ordinance introduces a series of measures related to data protection, including a data breach notification requirement, leading to the amendment of the Data Protection Act.
Adoption of the ordinance implementing the “Telecoms Package”
An ordinance implementing the European “Telecoms Package” has just been adopted by the French Council of Ministers last August 24. It came into force on August 26, 2011, date of its publication in the French Official Journal.
The ordinance is divided into three main chapters. Chapter 1 relates to the changes made by the Telecoms Package into the French Posts and Electronic Communications Code (mainly the strengthening of the powers of the French Telecommunications Regulator, ARCEP), Chapter 2 deals with the impacts in the Consumer Code (clearer contacts for consumers) and Chapter 3 focuses on the protection of data and privacy.
Regarding, in particular, the changes made to the data protection legislation, the following three concepts have been decided:
Creation of a data breach notification requirement
The ordinance amends Article 34 of the Data Protection Act by introducing an Article 34 bis. Electronic communications service providers now have to notify any personal data breach to the French data protection authority (the CNIL) and indicate the measures they have taken or intend to take to remedy the breach.
In a deliberation dated June 23, 2011, the French data protection authority (“CNIL”) agreed to the use by a company of a behavioral biometric system based on the typing pattern of individuals, designed to strengthen the identification of individuals accessing to an information system. This is the first time that a biometric system based on keystroke dynamics is authorized in France by the CNIL.
The system requires the recording of personal data, such as the last name, first name, pseudonym and IP address.
In France, companies have to obtain the authorization of the CNIL before processing biometric data (Article 25-I-8° of the French Data Protection Act of January 6, 1978).
This authorization has been granted exclusively for a specific purpose, namely the demonstration of a product to prospects, and is subject to the implementation of stringent security measures to ensure the confidentiality of the data.
Can a company legally use biometric devices in France?
YES. Businesses may use a biometric device, subject to first obtain the prior authorization of the French data protection authority, the CNIL. (Article 25 of the French Data Protection Act (Loi Informatique et libertés))
The CNIL has established simplified notification formalities for some biometric devices, such as:
- Hand geometry recognition for access control, working time management and food catering at the workplace;
- Fingerprint recognition with fingerprint exclusively recorded on an individual medium held by the data subject, designed to control access to work buildings;
- Vein pattern recognition to control access to work buildings;
- Fingerprint recognition to control access to professional laptops.
The French data protection authority, the CNIL, expressed its concerns, in a press release on July 27, 2010, on the agreement, known as “Swift Agreement”, concluded on June 28, 2010, between the European Union and the USA to regulate the transfer of banking data between the EU and the US for the purposes of the Terrorist Finance Tracking Program (TFTP).
Despite the additional guarantees supplied, the CNIL “is in doubt as to the effectiveness of the measures taken and considers that several matters of concern remain“.
A “Deliberation” of the CNIL (French Data Protection Authority) published in the February 16, 2011 Official Journal of the Republic of France as “Deliberation No. 2011-023” should ease the burden on companies that have no operations in France, and engage France-based subcontractors (or cloud service providers) in order to process their data on the French territory. This is the case, for example for US based companies that hire French service providers to process their payroll or manage databases of client information, where the concerned individuals (employees or customers) are located outside of France. (more…)