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Comment by lucb1e | Hacker News Reader

I've heard this sentiment being expressed by at least one person in all of these threads, but you're one of the first that actually mentions having consulted with a lawyer. The thing I keep asking is: what is new? I have yet to hear anything non-trivial which a company suddenly has to do, which wasn't required by any EU country before.

The only new thing seems to be higher fines and aligning laws in all EU countries, rather than having different implementations of roughly the same thing. But if you don't comply with GDPR, odds are that you should never have been able to do business with a lot of European countries. To the best of my knowledge, you should have geoblocked the Netherlands long ago (the only country I know the laws well enough of, to say that there is truly only a small difference between the 2002 WBP and the new GDPR) if you have to close to the EU for GDPR.

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The biggest 2 issues (at least for non-EU companies) are the extraterritorial reach, and the absurd maximum fines that can indeed be assessed for a first, single violation. Whether or not that is the public's understanding of the law, that is how it is written, and when it comes to enforcement, the letter of the law is the only thing that matters.

So we have a foreign government (to us) that has asserted authority to reach beyond its borders and into our pockets with an absurdly complex regulation, where a single violation would financially destroy the company. Since I don't have $20 million to give to them, and the families of my employees depend on their income for things like food and housing, I have to either carry expensive liability insurance to protect against that, or block EU traffic. For us, and I suspect most other sites on the planet, that's an easy decision to make. I'll take a 5%-10% hit in revenue from the loss of EU traffic and be able to sleep at night knowing that someone in a country I've never been to isn't out there filing documents that have the ability to destroy my and my employees' livelihoods.

I won't go into the minutiae of why it's so easy to violate and why most of the experts we have spoken to agree that being compliant is an uncertain endeavor at best, even if you want to comply, because that would be a very long winded comment. But if you do a Google search, you'll see the gist of the problems.

Thanks for responding! I was hoping someone would finally bring up concrete points after talking to a lawyer, and you have. It still doesn't sound like a big deal to me (you don't mention anything in-depth, only that the law can now actually harm you both in terms of jurisdiction and non-trivial fines), but I see where you're coming from.

>> Thanks for responding! I was hoping someone would finally bring up concrete points after talking to a lawyer, and you have.

Can you please quote the "concrete points" made in the parent post?

Sure, it's in the first line:

> the extraterritorial reach, and the absurd maximum fines that can indeed be assessed for a first, single violation

As I said in my comment, I don't think those are big issues if you comply with the law (and 99% of the law is common sense or was already in place in most countries), but they are points that a lawyer might indeed have brought up.

If you don't have offices in the EU, and you don't keep your money in any accounts controlled by EU banks, then why not just refuse to pay the fines?

Might be a good opportunity to make some contacts in the Trump administration too, who will be interested in asserting US sovereignty.

According to the people we have spoken to, it's reasonably possible that judgments for GDPR fines can be domesticated in the US. Once domesticated, they carry the same force and effect as a judgment issued by a US court. The legal processes for this generally already exist, although there are no GDPR-specific treaties, and it isn't guaranteed that this would occur for GDPR fines - it would be up to the US court system. Like many other aspects of GDPR, it is uncertain at this time. However, I don't want to be the first test case.

And then also say goodbye to any chance of European expansion, ever.

That's a big risk, given the size of Europe and the fact that it the US is your current target demographic, it's not a far stretch to think Europe might be, too.

> And then also say goodbye to any chance of European expansion, ever.

Blocking the EU effectively means the same thing, though, because it's announcing to everybody that you're ignoring that market and leaving the door open for companies who can copy your business model but are willing to respect user's privacy. Not to mention the reputation damage from snubbing their privacy laws. The door's still technically open, but it's going to be much more difficult.

I also wonder if this kind of announcement will backfire a bit for these companies. When I see a "We're dropping the EU over GDPR," article, I don't think about how bad the GDPR must be, but instead I wonder what shady activities these companies are doing that makes them unable to comply, and that makes me avoid them.

The general public are pretty clueless on these things (look at the surprise around Facebook lately), but I do feel it'll cost them some users.

I don't think big companies will back out of the EU at all. In fact, they now have a big more of a competitive advantage because they have the money and time needed to get GDPR right over a smaller company. And transparency about how they use data will isolate less users, now that they already built their name. I think it will affect smaller companies more whose new innovative product will be tested on the US market first before demand is recognized and then adapted to the EU. Of course it really depends on the regulatory reach of this law.

> a single violation would financially destroy the company

If you refer to the flowchart on how enforcement is to be handled (notably including referring to "proportionate"), the FAQs on regulator sites, and even the track record of penalties under DPA you'll find this is not the case.

Why there are some who keep wanting to catastrophise this is beyond me.

I’ve said this repeatedly throughout this thread, and hopefully this will be the last time I have to. So I’ll try to be extremely clear here. There is nothing written in the GDPR limiting the ability of regulators to issue maximum fines for any violation - even the first, minor violation. Not a single sentence. The limits are $10 million for less serious violations and $20 million for more serious ones. If I’m wrong, show me the clause. It simply doesn’t exist. If there were meant to be safeguards, those would have been written into it. They are not.

The section you are referring to that uses the word “proportionate” gives a brief list of suggestions of the kinds of things that regulators should consider when issuing fines. But it no way limits their legal ability to issue maximum or multimillion dollar fines for minor violations, and doesn’t even define “proportionate”. A hardline country like Germany may easily decide that because they so value their privacy, “proportionate” is a maximum fine for a single violation.

No, Germany could not issue such a fine for a minor single violation. "Proportionate" is a so-called indeterminate legal term that is open to full judicial review with no interpretative power left to the administration. Our law is littered with clauses stating "fines up to 50 Mio. €" and courts have developed a system of how to make sure everyone gets treated fairly. Other European countries have the same. This is simply a difference in legal traditions between Europe and the US. We don't simply cling onto the exact text of a law and call it a day. Interpretation of laws goes far beyond that. It may be scary to someone not used to such clauses but I can assure you companies around here do business just fine even though they have to comply with a long list of such laws threatening fines this high.

Anyway, "proportionate" isn't as ill-defined as you claim. It's a term of art used in many laws and we (and the courts) know pretty well what the legislator meant with it. Heck, they even list some criteria. If those aren't fulfilled a maximum fine isn't possible. Also, "proportionate" implies that a more severe violation must have a higher fine meaning the maximum can hardly ever be reached.

A law isn't code and shouldn't be read as such.

No, Germany could not issue such a fine for a minor single violation

Yes, they could, as is clearly stated within the text of the GDPR. Regardless, most websites outside the EU aren't going to want to put up with the headache, and will block EU traffic. Who wants the risk?

The text of the GDPR is not the whole body of law. It exists within an old and large legal framework. You can't take just the GDPR and ignore all context around it. And yes, it's much different that what people from other legal traditions are used to. If you don't want to learn about our laws that regulate enforcement of the GDPR – fine. But in that case please stop spreading unwarranted FUD.

For example, "due regard shall be given to" has a very specific meaning with decades of precedent and does not mean whatever pops into a layman's head when reading the text.

The whole concept that people have ownership of any information about themselves is new. If I take a picture of my friend Bob, or write an article about him, and upload it to your website, you now have an obligation to Bob.

Re: geoblocking — that’s the problem with this law. Shouldn’t individuals be allowed to consent to their data being used? Shouldn’t individuals be allowed to choose what services they use? What about VPN? A Dutch citizen is still Dutch regardless of their IP address and thus they are still “protected” regardless of IP. Also discrimination based on citizenship or national origin is illegal, but to comply with GDPR, we’re going to be forced to discriminate. Europeans are going to become second class digital citizens because compliance risk is simply too high except for the Facebooks and Googles of the world.

The law has a bunch of unintended consequences that are about to be unleashed. Or maybe, they are consequences that are fully indended: a de facto trade barrier against non-European companies who’s own laws conflict with GDPR.

> Shouldn’t individuals be allowed to consent to their data being used?

They are. You just need to tell them what you want to do with their data, and then do what you told them you were going to do. And not something additional ("oh hey look at all these IP addresses stored for security purposes, I bet we could make funny graphs about Bob's sleeping schedule too!") That is apparently too hard for many companies, so now this is codified in law and can actually be enforced.

There are some additional clauses like right to view your data, correct it if incorrect, and remove it if there is no longer a need for it... but that has existed in Dutch law since 2002 and few people ever exercise it. I recently did for the first time when I found out someone was doing WiFi tracking based on MAC addresses (I didn't remember giving consent), and I got an email from them (which looked like it took 15 minutes to look my data up and type it out), so it's not such a big deal.

I can’t comply with HIPPA and GDPR and since HIPPA applies to any US based medical practitioners, that essentially cuts off all Europeans from using our services — so people in Europe who have a US based therapist — we can’t legally allow that anymore — assuming we want to be GDPR compliant.

How can we be required to delete IP addresses in our logs yet also be required to keep access audit logs for 7 years.

A bullshit law written by people that assume everyone is Facebook and data mining.

> How can we be required to delete IP addresses in our logs yet also be required to keep access audit logs for 7 years.

I don't know where you got this idea, but I strongly suggest you find someone who has experience with the GDPR and discuss this with them. These two things are not even remotely close to any grey areas that could land someone in hot water.

> How can we be required to delete IP addresses in our logs yet also be required to keep access audit logs for 7 years.

IANAL but from what I read and heard (indirectly) from lawyers at work this is not a problem. GDPR doesn't apply to data that you are required to keep for other legal reasons.

I also ANAL, but heard this same thing directly when I asked this question at my company's GDPR briefing

>How can we be required to delete IP addresses in our logs yet also be required to keep access audit logs for 7 years.

Then you may well be able to rely on the Legal Obligation basis for processing, namely that “processing is necessary for compliance with a legal obligation to which the controller is subject.”

> I can’t comply with HIPPA and GDPR and since HIPPA applies to any US based medical practitioners, that essentially cuts off all Europeans from using our services — so people in Europe who have a US based therapist — we can’t legally allow that anymore — assuming we want to be GDPR compliant.

To be honest, for better or worse I kinda tuned out your indignation at the intricacies of maintaining compliance the moment I saw "HIPPA". HIPAA - the Health Insurance Portability and Accountability Act.

Just how many Europeans would you have with US therapists? Besides, the GDPR specifically mentions data that is already covered under other privacy mandates.

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