The trouble with Article 25 (and how to fix it): the future of data protection by design and default

... What requirements does the new European data protection law impose on regulated entities regarding the use of privacy technologies across all aspects of product development? When the European Union adopted the Data Protection Directive in 1995 it included a recital instructing data controllers to ‘implement appropriate technical and organizational measures’ for safeguarding personal data ‘both at the time of the design of the processing system and at the time of the processing itself’.1 Over the next quarter-century, this idea of designing in privacy from the outset took hold in both Europe and the USA. What then Ontario Privacy Commissioner Ann Cavoukian famously called ‘privacy by design’ (or ‘PbD’)2 progressed from a non-binding recital in Directive 95/46, to a recommendation of the European Commission (EC),3 the European Data Protection Supervisor (EDPS)4 and then the 32nd International Conference of Data Protection and Privacy Commissioners,5 to a proposed article in the General Data Protection Regulation (GDPR).6 The final text of the Regulation christened Article 25 as a new general obligation of controllers (and processors) to implement ‘data protection by design and default’.7 But what does this mean? In particular, does it require controllers and processors8 to embrace privacy engineering in full and adopt ‘state of the art’ privacy technologies and advanced cryptographic techniqes for protecting user data?9