“The Role of Digital in Death Amid the COVID-19 Pandemic”
The coronavirus pandemic that is currently sweeping the world has affected us all in several areas of our way of life. Millions of people across all continents have had to say goodbye to loved ones due to this deadly disease, many of which have been restricted to virtual communication. Due to the worldwide effort in combating this virus, many countries have enforced strict regulations about what the public can and cannot do. This means that families and friends of a dying hospital patient are unable to say their goodbyes in person, even if the patient does not have the virus. Other gatherings in this sector have also been affected, such as funerals where loved ones are told not to attend. The virus is significantly changing how we deal with death and grief.
Fatal Accident Claims is a specialist solicitor firm that helps to support families who have lost a loved one due to the unlawful or negligent act of another person. In this article they will describe some of the ways in which the COVID-19 virus has pushed the funeral sector towards greater use of digital technology.
Saying the Last Goodbyes
Saying goodbye to someone you know who is dying is always a traumatic experience. In the current climate, this can make the experience of death that bit more painful. In many hospitals at this moment of time, there are strict measures in place to limit visitors. To help protect the most vulnerable in our society, people are being urged to remain at home unless necessary. Hospitals in particular can be a very dangerous environment at present. As part of the measures to stop the spread of the disease, family members and friends are unable to see loved ones in hospital as normal. Instead, restrictions can include anything from no access at all, only one visitor allowed and limits on items that can be brought in. Hospital visits are now only where possible and the reality is, most loved ones will be unable to enjoy one last physical embrace in the presence of their terminally ill relative or friend.
While there is negativity and gloom surrounding the virus, there’s also plenty of positivity and hope than we can take from this experience. The influx of social distancing measures we now must endure means that there has been a rise in digital communication. In this example of saying goodbye to loved ones, many family and friends are taking to methods such as video chats. While this doesn’t make the process easier, it enables the possibility of something that is no longer capable in person. Technology may also have additional features to make this moment as special as possible, such as recording functionality to cherish the last time together.
How Funerals Are Changing
Social gatherings are now a big no-no, and this is expected to be the case for a good while now. Even with the peak of the virus having seemingly passed in several countries now, until a vaccine or cure is available, strict social distancing measures will be in place for the unforeseeable future. Funerals are always hard but it’s a vital part of the grieving process. This is an opportunity for friends and family to come together, mourn the deceased, and celebrate their life. Now, that is sadly not possible in the way that we know it. Funerals are now limited to very restricted numbers, usually involving only a handful of direct family members. But that doesn’t mean that other family and friends are unable to attend in some way. Many funeral organisers have now invested in live-streaming technology to help deal with mourning during this crisis. With livestreams, family and friends are unable to watch a funeral without having to be there in person. They will typically be able to see the memorial service inside the church as well as the burial or cremation process. It is a necessary step in using digital technology to bring people together so that they can grieve the loss of someone they loved and continue to journey through the coping process.
When a man died by suicide in 2016, a friend found an unsent SMS on his phone:
Dave Nic you and Jack keep all that I have house and superannuation, put my ashes in the back garden with Trish Julie will take her stuff only she’s ok gone back to her ex AGAIN I’m beaten. A bit of cash behind TV and a bit in the bank Cash card pin 3636 MRN190162Q 10/10/2016 My will
Following a dispute between the man’s widow and his brother and nephew, the Supreme Court of Queensland decided the message was a valid will.
The case represents a growing body of legal decisions reflecting how the digital age is challenging the courts.
In the UK, the Law Commission is reviewing the law of wills to decide whether it should reflect the ubiquity of digital technologies.
Except in very limited exceptional circumstances, a will is a document. To be a valid formal will, there are certain requirements: it must be in writing, on paper, signed by the testator, witnessed by other people, and formally executed. Specific formal language is encouraged.
In law, documents – more than witnesses or physical objects – have become the most important form of evidence.
But in the digital age, the distinction between a document, a witness and real evidence is becoming more difficult to perceive, and pointless to sustain.
What we understand as a “document” has expanded to include a potentially limitless range of digital forms and devices.
Challenges abound. Digital documents are long, ubiquitous, intangible, difficult to authenticate, easy to duplicate and modify. They sometimes bring more questions than answers.
The case of the unsent SMS
The Supreme Court of Queensland had no difficulty in finding that the unsent text message was a document. However, it was not a formal will. Informal wills can still be valid in some circumstances. The court noted that the unsent message was identified as a will, dated, contained the deceased’s initials and date of birth (“MRN190162”).
It identified most of his assets, included clear wishes about their distribution, provided a pin code and gave instructions about his ashes.
The court also considered his state of mind at the time of his death, determining he had sufficient capacity to make a will. It considered the fact the man didn’t send the text message: did it mean that his will was still in draft form and did not reflect his final wishes?
The court accepted evidence that he did not send the message so that his family would not interrupt his suicide. Despite lacking nearly all of the formalities of a will, it was found to be his valid last will and testament.
A court might look for clues wherever possible – even in the deceased draft messages folder.
In 1948, Cecil George Harris died following an accident on his Saskatchewan wheat farm. He had been trapped underneath his tractor for 12 hours in torrential rain. His wife and neighbours eventually found him during a lightning storm. Despite their best efforts, he died of his injuries.
Two of his curious neighbours went to examine Harris’ stricken tractor and found that message he’d scratched into the paint on the fender:
In case I die in this mess I leave all to the wife. Cecil Geo. Harris
An extract from ‘In Case I Die In This Mess’, an episode of the podcast History Lab, from Impact Studios at the University of Technology, Sydney.
The neighbours removed the fender after his funeral and conveyed it to a local lawyer. It was eventually held to be Harris’ last will and testament. Because this case is now a quirky landmark of Saskatchewan succession law, the fender and the knife Harris used to carve his message are now on display in the library of the University of Saskatchewan law school.
What would the deceased have wanted?
Grief, generosity, love, regret, hate, spite, retribution, eccentricity: the full gamut of human emotions are revealed in a person’s will, and in the conduct of their beneficiaries and descendants after death.
Probate courts are required to walk into this emotional minefield, and ask: what would the deceased have wanted?
When a deceased person hasn’t left a will, or they’ve left one that’s deficient, the court looks for clues.
And, as history tells us, the courts have often acted with considerable sensitivity and flexibility in trying to do justice to the dead.
If this article has raised issues for you, or if you’re concerned about someone you know, call Lifeline on 13 11 14.
In Case I Die In This Mess was made by Impact Studios at the University of Technology, Sydney – a new audio production house combining academic research and audio storytelling. It is the first episode in a four part series titled ‘The Law’s Way of Knowing’, available for download through the award-winning UTS History Lab podcast.
When a man died by suicide in 2016, a friend found an unsent SMS on his phone:
Dave Nic you and Jack keep all that I have house and superannuation, put my ashes in the back garden with Trish Julie will take her stuff only she’s ok gone back to her ex AGAIN I’m beaten. A bit of cash behind TV and a bit in the bank Cash card pin 3636 MRN190162Q 10/10/2016 My will
Following a dispute between the man’s widow and his brother and nephew, the Supreme Court of Queensland decided the message was a valid will.
The case represents a growing body of legal decisions reflecting how the digital age is challenging the courts.
In the UK, the Law Commission is reviewing the law of wills to decide whether it should reflect the ubiquity of digital technologies.
Except in very limited exceptional circumstances, a will is a document. To be a valid formal will, there are certain requirements: it must be in writing, on paper, signed by the testator, witnessed by other people, and formally executed. Specific formal language is encouraged.
In law, documents – more than witnesses or physical objects – have become the most important form of evidence.
But in the digital age, the distinction between a document, a witness and real evidence is becoming more difficult to perceive, and pointless to sustain.
What we understand as a “document” has expanded to include a potentially limitless range of digital forms and devices.
Challenges abound. Digital documents are long, ubiquitous, intangible, difficult to authenticate, easy to duplicate and modify. They sometimes bring more questions than answers.
The case of the unsent SMS
The Supreme Court of Queensland had no difficulty in finding that the unsent text message was a document. However, it was not a formal will. Informal wills can still be valid in some circumstances. The court noted that the unsent message was identified as a will, dated, contained the deceased’s initials and date of birth (“MRN190162”).
It identified most of his assets, included clear wishes about their distribution, provided a pin code and gave instructions about his ashes.
The court also considered his state of mind at the time of his death, determining he had sufficient capacity to make a will. It considered the fact the man didn’t send the text message: did it mean that his will was still in draft form and did not reflect his final wishes?
The court accepted evidence that he did not send the message so that his family would not interrupt his suicide. Despite lacking nearly all of the formalities of a will, it was found to be his valid last will and testament.
A court might look for clues wherever possible – even in the deceased draft messages folder.
In 1948, Cecil George Harris died following an accident on his Saskatchewan wheat farm. He had been trapped underneath his tractor for 12 hours in torrential rain. His wife and neighbours eventually found him during a lightning storm. Despite their best efforts, he died of his injuries.
Two of his curious neighbours went to examine Harris’ stricken tractor and found that message he’d scratched into the paint on the fender:
In case I die in this mess I leave all to the wife. Cecil Geo. Harris
An extract from ‘In Case I Die In This Mess’, an episode of the podcast History Lab, from Impact Studios at the University of Technology, Sydney.
The neighbours removed the fender after his funeral and conveyed it to a local lawyer. It was eventually held to be Harris’ last will and testament. Because this case is now a quirky landmark of Saskatchewan succession law, the fender and the knife Harris used to carve his message are now on display in the library of the University of Saskatchewan law school.
What would the deceased have wanted?
Grief, generosity, love, regret, hate, spite, retribution, eccentricity: the full gamut of human emotions are revealed in a person’s will, and in the conduct of their beneficiaries and descendants after death.
Probate courts are required to walk into this emotional minefield, and ask: what would the deceased have wanted?
When a deceased person hasn’t left a will, or they’ve left one that’s deficient, the court looks for clues.
And, as history tells us, the courts have often acted with considerable sensitivity and flexibility in trying to do justice to the dead.
If this article has raised issues for you, or if you’re concerned about someone you know, call Lifeline on 13 11 14.
In Case I Die In This Mess was made by Impact Studios at the University of Technology, Sydney – a new audio production house combining academic research and audio storytelling. It is the first episode in a four part series titled ‘The Law’s Way of Knowing’, available for download through the award-winning UTS History Lab podcast.
Summarise the legislative framework for the protection of personally identifiable information (PII). Does your jurisdiction have a dedicated data protection law? Is the data protection law in your jurisdiction based on any international instruments on privacy or data protection?
The legislative framework for the protection of PII in France is one of the oldest in Europe as it is based on the Law on Computer Technology and Freedom dated 6 January 1978 (Loi Informatique et Liberté, or LIL). This law has been amended several times since then, and especially by:
Law No. 2004-801 dated 6 August 2004 to implement the provisions of Directive 95/46/CE;
Law No. 2016-1321 dated 7 October 2016, which anticipates the implementation of certain provisions of the EU General Data Protection Regulation 2016/679 (GDPR);
Law No. 2018-493 of 20 June 2018 , which implements the GDPR in France and further amend the LIL;
Ordinance No. 2018-1125 of 12 December 2018 and Decree No. 2019-536 of 29 May 2019, which complete at the legislative level the compliance of the national law with the GDPR and redraft the LIL for a better readability and urderstanding of the law.
As a regulation, the GDPR has been directly effective in France since 25 May 2018.
Furthermore, the following international instruments on privacy and data protection also apply in France:
the Council of Europe Convention 108 on the Protection of Privacy and Trans-Border Flows of Personal Data;
the European Convention on Human Rights and Fundamental Freedoms (article 8 on the right to respect for private and family life); and
the Charter for Fundamental Rights of the European Union (article 7 on the right to respect for private and family life and article 8 on the right to the protection of personal data).
Data protection authority
Which authority is responsible for overseeing the data protection law? Describe the investigative powers of the authority.
The data protection authority in France is the National Commission for Data Protection and Liberties (CNIL). The CNIL is an independent public body entrusted with the following powers.
Powers of sanction
The maximum threshold of penalties that the CNIL can pronounce has been increased from €150,000 to €20 million or 4 per cent of world turnover for companies since the GDPR.
The CNIL can now compel sanctioned entities to inform each data subject individually of this sanction at their own expense.
It may also impose financial penalties without prior formal notification by the bodies where the failure to fulfil obligations cannot be brought into conformity.
It can also limit temporarily or definitively a specific processing.
Control and investigation powers
The CNIL is vested with investigation and control powers that allow its staff to have access to all professional premises and to request, on the spot, all necessary documents and to take a copy of any useful information. CNIL staff can also access any computer programs linked to the processing of PII and to recorded information. The CNIL can also conduct a documentary control where a letter accompanied by a questionnaire is sent to a PII controller and/or processor to assess the conformity of processing operations carried out by them or an online investigation, in particular by consulting data that are freely accessible or made directly accessible online, including under a fake identity.
In 2019, the CNIL will focus its supervisory action on three main themes, directly resulting from the entry into force of the GDPR:
respect of the rights of the data subjects;
the processing of minors’ data; and
the sharing of responsibilities between controllers and processors.
Regulatory powers
The powers of the CNIL have recently been extended, as it will have to be consulted for every bill or decree related to data protection and processing. Opinions will automatically be published.
The CNIL is also entrusted with the power to certify, approve and publish standards or general methodologies to certify the compliance of personal data anonymisation processes with the GDPR, notably for the reuse of public information available online.
Legal obligations of data protection authority
Are there legal obligations on the data protection authority to cooperate with data protection authorities, or is there a mechanism to resolve different approaches?
If the owner or processor of PII carries out cross-border processing either through multiple establishments in the EU or with only a single establishment, the supervisory authority for the main or single establishment acts as lead authority in respect of that cross-border processing.
As lead authority, the CNIL must cooperate with the data protection authorities in other member states where the owner or the processor is established, or where data subjects are substantially affected, or authorities to whom a complaint has been made. Specifically, the CNIL has to provide information to other data protection authorities and can seek mutual assistance from them and conduct joint investigations with them on their territories.
More generally, the CNIL is required to provide assistance to other data protection authorities in the form of information or carrying out ‘prior authorisations and consultations, inspections and investigations’. The European Commission can specify forms and procedures for mutual assistance. The CNIL could also participate in joint investigation and enforcement operations with other data protection authorities, particularly when a controller has an establishment on its territory or a significant number of its data subjects are likely to be substantially affected.
Breaches of data protection
Can breaches of data protection law lead to administrative sanctions or orders, or criminal penalties? How would such breaches be handled?
Failure to comply with data protection laws can result in complaints, data authority investigations and audits, administrative fines, penalties or sanctions, seizure of equipment or data, civil actions (including class actions that have been introduced by Law No. 2016-1547 dated 18 November 2016 for the Modernisation of the 21st Century Justice), criminal proceedings and private rights of action.
Proceedings
When the CNIL finds a PII owner to be in breach of its obligations under the LIL, as a preliminary step the CNIL chairman may issue a formal notice for the PII owner to remedy the breach within a limited period of time. In cases of extreme urgency, this period may be reduced to 24 hours.
When the breach cannot be remedied in the context of a formal notice, the CNIL may impose one of the following sanctions without prior formal notice of adversarial procedure:
a formal warning notification;
a financial penalty; or
the withdrawal of the authorisation to operate the data processing.
When the PII owner complies with the terms of the formal notice, the CNIL chairman shall declare the proceedings closed. Otherwise, the competent committee of CNIL may, after a contradictory procedure, pronounce one of the following penalties:
a warning notification;
a financial penalty, except when the PII owner is a public authority;
an injunction to cease treatment; or
the withdrawal of the authorisation granted by the CNIL for the data processing concerned.
In case of emergency and infringement to civil rights and freedoms, the CNIL may, after an adversarial procedure, take the following measures:
the suspension of the operation of data processing;
a formal warning;
the lockdown of PII for a maximum of three months (except for certain processing carried out on behalf of the French Administration); or
for certain sensitive files of the French Administration, the Prime Minister is given information in order for him to take the necessary measures to remedy the breaches.
In the event of a serious and immediate violation of rights and freedoms, the chairman of the CNIL may request, by summary application, the competent judge to order any necessary security measures.
The CNIL may also inform the public prosecutor that it has found infringements of data protection law that are criminally sanctionable.
Publicity of the penalties
The CNIL can make public the financial penalties that it pronounces. The inclusion of these sanctions in publications or newspapers is no longer subject to the condition of bad faith of the entity concerned.
Criminal sanctions
Infringements to data protection law may be punished by imprisonment for a maximum period of five years and a criminal fine up to €300,000 (articles 226-16 to 226-22-1 of the Criminal Code). However, criminal sanctions are hardly ever pronounced.
Scope
Exempt sectors and institutions
Does the data protection law cover all sectors and types of organisation or are some areas of activity outside its scope?
The LIL is generally applicable to all public bodies and all non-public entities that process PII and intends to cover all sectors. However, certain processing carried out by public authorities is subject to specific obligations that differ from the general obligations imposed upon private entities, for example:
processing of PII by public bodies for reasons of national security is subject to a specific regime supervised by the executive power; and
processing of PII managed by judicial authorities related to offences, convictions and security measures is subject to a specific regime supervised by the executive power.
The following categories of data processing fall outside the scope of the LIL:
processing of PII solely for journalistic or artistic purposes; and
processing of PII by a natural person in the course of a purely personal or household activity.
Communications, marketing and surveillance laws
Does the data protection law cover interception of communications, electronic marketing or monitoring and surveillance of individuals? If not, list other relevant laws in this regard.
The LIL does not cover the interception of communications nor surveillance of individuals when implemented for public interest purposes.
This is subject to the authority of a dedicated public authority, the National Commission for Monitoring Intelligence Techniques. This field is regulated by several laws, mainly Law No. 91-646 of 10 July 1991 and Law No. 2015-912 of 24 July 2015.
Electronic marketing is subject to the Postal and Electronic Communication Code (article L. 34-5 et seq) and to the Consumer Code (article L. 121-20-5 et seq).
Other laws
Identify any further laws or regulations that provide specific data protection rules for related areas.
Processing of health PII is subject to the provisions of the Public Health Code as well as to the LIL.
The solicitation by automatic calling machines, email or fax, and the sale or transfer of PII for prospecting purposes using these, is subject to the provisions of the Postal and Electronic Communications Code.
PII formats
What forms of PII are covered by the law?
The LIL is aimed at covering all forms of PII, which means any information relating to an individual who is identified or who could be directly or indirectly identified, by reference to an identification number or to the combination of one or several elements.
In addition, the LIL applies to automatic processing and to non-automatic processing of PII that forms part of a filing system (or is intended to form part of a filing system), with the exception of processing carried out for personal purposes. Accordingly, even records of PII in paper form may be subject to the LIL.
Extraterritoriality
Is the reach of the law limited to PII owners and processors of PII established or operating in the jurisdiction?
The LIL applies to processing of PII carried out by a PII owner:
who is established in France, whether or not the processing takes place in France. In this context, ‘establishment’ is broadly interpreted as it refers to all sorts of ‘installation’, regardless of its legal form; or
who is not established in France, but who uses a means of processing located in French territory, for instance, hosting data, internet service provider, cloud services, among others.
Covered uses of PII
Is all processing or use of PII covered? Is a distinction made between those who control or own PII and those who provide PII processing services to owners? Do owners’, controllers’ and processors’ duties differ?
In principle, the LIL applies to all processing of PII, with the exception of that carried out for purely personal purposes. The controller determines the purposes for which and the means by which PII is processed, whereas the processor processes PII only on behalf of the controller. The duties of the processor towards the controller must be specified in a contract or another legal act.
In principle, the PII controller is the principal party for responsibilities such as collecting consent, enabling the right to access or managing consent-revoking. However, the GDPR introduces direct obligations for PII processors (including security, international transfers, record keeping, etc) and thus they can be held directly liable by data protection authorities for breaches of the GDPR and the LIL.
Controllers and processors are also jointly and severally liable where they are both responsible for damage caused by a breach.
Legitimate processing of PII
Legitimate processing – grounds
Does the law require that the holding of PII be legitimised on specific grounds, for example to meet the owner’s legal obligations or if the individual has provided consent?
Every collection, processing or use of PII needs to be justified under French data protection law. In principle, the ground for legitimate processing must be the consent of the data subject, but the LIL introduced statutory legal exemptions to obtain the consent of the data subject for some processing when it is carried out for the following purposes:
the respect of a legal obligation of the data controller;
the protection of the data subject’s life (interpreted restrictively);
the performance of a public service mission entrusted to the data controller or the data recipient;
the performance of either a contract to which the data subject is a party or steps taken at the request of the data subject prior to entering a contract; or
the pursuit of the data controller’s or the data recipient’s legitimate interest provided such interest is not incompatible with the fundamental rights and interests of the data subject.
Legitimate processing – types of PII
Does the law impose more stringent rules for specific types of PII?
French law is more restrictive for the processing of specific types of PII, known as sensitive personal data. As a matter of principle, processing of sensitive data is prohibited.
The LIL provides a non-exhaustive list of sensitive PII by nature, which is PII that reveals, directly or indirectly, the racial and ethnic origins, the political, philosophical, religious opinions or trade union affiliation of individuals, or that concerns their health or sexual life. This category of sensitive data by nature can only be processed in the following cases, among others:
the data subject gave prior express consent;
the processing is necessary to protect the vital interests of the data subject or of another person, where the data subject is physically or legally incapable of giving his or her consent;
the processing is carried out by a foundation, association or any other non-profit organisation with political, philosophical, religious or trade union objectives, in the course of its legitimate activities;
the processing relates to PII that has been made public by the data subject; or
the processing is necessary for the establishment, exercise or defence of legal claims.
In relation to the use of PII in the employment context, the CNIL published several opinions on monitoring the activities of employees, video surveillance, discrimination, localisation data and collection of PII in the recruitment process. Moreover, in France, employers cannot rely on consent for processing involving PII of its employees, since the employees cannot freely consent as they are by nature subordinated to the employer.
Moreover, processing can be prohibited due to its context, such as the processing of PII relating to offences, convictions and security measures, which can only be carried out by a limited number of specific entities.
Furthermore, according to the law on the protection of personal data, a minor may consent to the processing of personal data alone with regard to the offer of information society services from the age of 15, which differs from the threshold of 16 years provided in the GDPR.
The law on the protection of personal data establishes a principle of prohibition of decisions producing legal effects on the sole basis of automated processing, including profiling intended to define the profile of the person concerned or to evaluate certain aspects of his or her personality. Such a provision maintains a certain gap with the GDPR, since the law is based on a prohibition in principle of such automated processing while the GDPR refers to an ‘individual right’ of the person concerned ‘not to be the subject of a decision based solely on automated processing, including profiling’.
Data handling responsibilities of owners of PII
Notification
Does the law require owners of PII to notify individuals whose PII they hold? What must the notice contain and when must it be provided?
As a general rule, data subjects shall be provided with the following information when their PII is collected:
the identity of the data controller;
contact details for the data protection officer, where applicable;
the purposes and the legal basis of the processing;
the category of personal data;
when PII is collected via a questionnaire, whether replies to the question are compulsory or optional;
the consequences of an absence of reply;
the categories of recipients of the data;
information on the data subject’s rights and the method to be used to exercise them (ie, the right to access the collected PII and to rectify, complete, update, block or delete it if inaccurate, incomplete, equivocal or expired; and the right to direct the use of their PII after their death);
the intended transfer of PII outside the EEA;
the storage duration or the criteria that will be used to determine the duration;
the right to lodge a complaint with a supervisory authority; and
the existence of automated decision-making, including profiling and, if applicable, meaningful information about the logic used and the significance and envisaged consequences of such processing for the data subject.
Where the data was not obtained from the data subject, the information must be provided at the time of recording of the personal data or, if disclosure to a third party is planned, no later than at the time the data is disclosed for the first time.
Exemption from notification
When is notice not required?
Notice is not required if the data subject already received such information. Furthermore, in cases where the data subject did not provide his or her PII directly, the data controller is exempted from the notification obligation if:
informing the data subject proves impossible or would involve a disproportionate effort, in particular in the context of statistical, historical or scientific research, or for the purpose of medical examination of the population with a view to protecting and promoting public health;
the data subject already has the information;
the PII is recorded only to comply with statutory and legal obligations; or
the PII must remain confidential subject to an obligation of professional secrecy regulated by EU or member state law, including a statutory obligation of secrecy.
Control of use
Must owners of PII offer individuals any degree of choice or control over the use of their information? In which circumstances?
The LIL grants rights to data subjects allowing them to have some control over the use of their PII. The relevant rights in this field are notably the right to rectify inaccurate or out-of-date PII, and the right to be forgotten, in order to obtain the deletion of such PII (see question 38).
Data accuracy
Does the law impose standards in relation to the quality, currency and accuracy of PII?
As a general rule, the PII controller shall ensure that the processed PII is adequate, relevant and not excessive in relation to the purposes for which it is collected and for onward processing. In addition, the PII owner shall also ensure that PII is accurate, complete and, if necessary, updated. In this respect, the law provides that the PII owner shall take appropriate measures to ensure that inaccurate or incomplete data for the purposes for which it is collected or processed is erased or rectified.
Amount and duration of data holding
Does the law restrict the amount of PII that may be held or the length of time it may be held?
PII owners are required to limit the processing of PII to what is strictly necessary for the purpose of the processing. The amount of PII collected and processed must be proportionate to the purposes of the processing.
The LIL also provides that the PII must only be kept in a form enabling the data subject to be identified for a period that does not exceed the time necessary for the purposes for which the PII is collected and processed. Accordingly, if the legitimate ground of the processing has disappeared or expired, the controller should erase, anonymise or pseudonymise the PII.
Finality principle
Are the purposes for which PII can be used by owners restricted? Has the ‘finality principle’ been adopted?
The finality principle is a core principle of data protection regulation in France. PII can only be collected for specified, explicit and legitimate purposes and must not be further processed in a way incompatible with those purposes.
Furthermore, the CNIL already encourages PII controllers to implement the ‘data minimisation’ principle (which is consecrated in the GDPR), as well as the systematic use, where applicable, of anonymisation and pseudonymisation techniques.
Use for new purposes
If the finality principle has been adopted, how far does the law allow for PII to be used for new purposes? Are there exceptions or exclusions from the finality principle?
PII can be processed for new purposes provided that such onward processing is not incompatible with the initial purposes for which the PII was collected and subject to the data subject’s rights and the principle of data minimisation.
Processing of PII for new purposes when such purposes are statistical, historical or medical research is generally considered as compatible with the initial purpose.
Processing of PII for new purposes even incompatible with the initial purpose is also possible with the prior consent of the data subject.
Security
Security obligations
What security obligations are imposed on PII owners and service providers that process PII on their behalf?
Data controllers must protect PII against accidental or unlawful destruction, loss, alteration and disclosure, particularly when processing involves data transmission over networks.
Data controllers are required to take steps to:
ensure that PII in their possession and control is protected from unauthorised access and use;
implement appropriate physical, technical and organisational security safeguards to protect PII; and
ensure that the level of security is appropriate with the amount, nature and sensitivity of the PII.
The CNIL issued guidelines on 23 January 2018 on the security measures to be implemented by data controllers, in line with the requirement of the GDPR, to guarantee the security of personal data processing. These guidelines encourage data controllers to perform a privacy impact assessment, which shall be carried out in consideration of the two following pillars:
the principles and fundamental rights identified as ‘not negotiable’, which are set by law and must be respected. They shall not be subject to any modulation, irrespective of the nature, seriousness or likelihood of the risks incurred; and
the management of risks on data subjects that allows data controllers to determine which appropriate technical and organisational measures shall be taken to protect the PII.
Notification of data breach
Does the law include (general or sector-specific) obligations to notify the supervisory authority or individuals of data breaches? If breach notification is not required by law, is it recommended by the supervisory authority?
With the GDPR, there is a general obligation for PII controllers to report PII data breaches to the CNIL without undue delay and, where feasible, not later than 72 hours after becoming aware of it. However, an exception to this notification exists when the data breach is unlikely to result in a risk to the rights and freedoms of natural persons. Where the notification is not made within 72 hours, reasons will have to be provided to the supervisory authority.
The notification shall at least:
describe the nature of the personal data breach, including, where possible, the categories and approximate number of data subjects concerned, and the categories and approximate number of personal data records concerned;
communicate the name and contact details of the data protection officer or other contact point where more information can be obtained;
describe the likely consequences of the personal data breach; and
describe the measures taken or proposed to be taken by the owner to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.
Moreover, when the data breach is likely to result in a high risk to the rights and freedoms of data subjects, the controller shall notify the data breach to the data subject without undue delay. This notification can be waived if the CNIL considers that:
the controller has taken subsequent measures that ensure the high risk to the rights and freedoms of data subjects is no longer likely to materialise;
appropriate technical and organisational protection was in place at the time of the incident (eg, encrypted data); or
the notification would trigger disproportionate efforts (instead a public information campaign or ‘similar measures’ should be relied on so that affected data subjects can be effectively informed).
The PII owner must keep an updated record of all PII breaches, which must contain the list of conditions, effects and measures taken as remedies. This record must be communicated to the CNIL on request.
Failure to meet the above requirements exposes the owners of PII to an administrative fine of up to €10,000,000 or, in case of an undertaking, up to 2 per cent of the total worldwide annual turnover of the preceding financial year, whichever is higher.
Providers of electronic communication services are also subject to an obligation to notify the CNIL within 24 hours in the event of a PII breach. In this respect, when the PII breach may affect PII or the privacy of a data subject, the PII controller shall also notify the concerned data subject without delay.
Internal controls
Data protection officer
Is the appointment of a data protection officer mandatory? What are the data protection officer’s legal responsibilities?
Controllers and processors may decide to appoint a data protection officer (DPO). However, this is mandatory for public sector bodies, those involved in certain listed sensitive processing or monitoring activities or where local law requires an appointment to be made.
The DPO assists the owner or the processor in all issues relating to the protection of the PII. In a nutshell, the DPO must:
monitor compliance of the organisation with all regulations regarding data protection, including audits, awareness-raising activities and training of staff involved in processing operations;
advise and inform the owner or processor, as well as their employees, of their obligations under data protection regulations;
act as a contact point for requests from individuals regarding the processing of their personal data and the exercise of their rights; and
cooperate with the data protection authorities (DPAs) and act as a contact point for DPAs on issues relating to processing.
Record keeping
Are owners or processors of PII required to maintain any internal records or establish internal processes or documentation?
PII controllers are required to maintain a record of processing activities under their responsibilities as referred to in article 30 of the GDPR. Processors of PII are also required to maintain such a record about personal data that controllers engage them to process.
While an exemption from the above obligations applies to organisations employing fewer than 250 people, this exemption will not apply where sensitive data is processed and where owners or processors of PII find themselves in the position of:
carrying out processing likely to result in a risk (not just a high risk) to the rights of the data subjects;
processing personal data on a non-occasional basis; or
processing sensitive data or data relating to criminal convictions.
New processing regulations
Are there any obligations in relation to new processing operations?
Since the GDPR is directly effective in France, controllers and processors of PII are required to apply a privacy-by-design approach by implementing technical and organisational measures to show that they have considered and integrated data compliance measures into their data-processing activities. These technical and organisational measures might include the use of pseudonymisation techniques, staff training programmes and specific policies and procedures.
In addition, when processing is likely to result in a high risk to the rights and freedoms of natural persons, owners and controllers are required to carry out a detailed privacy impact assessment (PIA). Where a PIA results in the conclusion that there is indeed a high, and unmitigated, risk for the data subjects, controllers must notify the supervisory authority and obtain its view on the adequacy of the measures proposed by the PIA to reduce the risks of processing.
Controllers and processors may decide to appoint a DPO (see question 22).
Registration and notification
Registration
Are PII owners or processors of PII required to register with the supervisory authority? Are there any exemptions?
PII controllers or processors are not required to register with the CNIL.
Since the entry into force of the GDPR, owners and processors no longer have the obligation to declare the PII processing they carry out to the CNIL.
However, the law on personal data maintains the requirement of a prior authorisation from the CNIL for the following processing:
of biometric or genetic data by the state;
for research, study or evaluation in the field of health.
Formalities
What are the formalities for registration?
The formalities of registration for data processing requiring prior authorisation must be performed for each new PII processing operation.
The formalities are free of charge and can be realised on the CNIL’s website and are non-renewable since they remain valid for the whole duration of the processing. The following information must be provided:
the identity and the address of the data controller;
the purposes of the processing and the general description of its functions;
if necessary, the combinations, alignments or any other form of relation with other processing;
the PII processed, its origin and the categories of data subjects to which the processing relates;
the period of retention of the processed information;
the department responsible for carrying out the processing;
the authorised recipients to whom the data may be disclosed;
the function of the person where the right of access is exercised, as well as the measures relating to the exercise of this right;
the steps taken to ensure the security of the processing and data, the safeguarding of secrets protected by law and, if necessary, information on recourse to a sub-contractor; and
if applicable, any transfer of PII that is envisaged outside of the EEA.
Penalties
What are the penalties for a PII owner or processor of PII for failure to make or maintain an entry on the register?
Failure to comply with the registration obligation can be punished by imprisonment for a maximum period of five years and a criminal fine of up to €300,000 (article 226-16 and 226-16-1 A of the Criminal Code).
Refusal of registration
On what grounds may the supervisory authority refuse to allow an entry on the register?
The CNIL can refuse its registration if some of the information to be provided is missing or if the PII collected for the processing is too broad in relation to its purpose. In such cases, the PII owner cannot carry out the intended data processing. Failure to comply with a refusal of the CNIL to authorise processing is subject to criminal sanctions (see question 27).
Public access
Is the register publicly available? How can it be accessed?
On 30 August 2017, the CNIL published on its website a register that lists the formalities completed since 1979 by data controllers (public and private). This register can be consulted freely, with ease, via the CNIL website.
Effect of registration
Does an entry on the register have any specific legal effect?
The PII controller may only be allowed to start carrying out the processing upon registration and receipt of authorisation from the CNIL.
The registration as such does not exempt a data controller from any of its other obligations. After the registration, data controllers still need to ensure that the processing complies with the information disclosed in the notification and with data protection standards.
Other transparency duties
Are there any other public transparency duties?
Not to our knowledge.
Transfer and disclosure of PII
Transfer of PII
How does the law regulate the transfer of PII to entities that provide outsourced processing services?
Under the LIL regime, any person that processes PII on behalf of the data controller is regarded as a processor. The processor may only process PII under the data controller’s instructions.
When a data controller outsources some of its processing or transfers PII in relation with such processing to a sub-contractor (ie, a data processor), it must establish an agreement with that processor.
This agreement shall specify the obligations incumbent upon the processor as regards the obligation of protection of the security and confidentiality of the data and provide that the processor may act only upon the instruction of the data controller.
Restrictions on disclosure
Describe any specific restrictions on the disclosure of PII to other recipients.
Generally, there are no specific restrictions on the disclosure of PII other than the general data protection principles provided by the LIL.
Nevertheless, disclosure of sensitive PII such as health data is limited to certain institutions and professionals, unless the data controller has obtained a specific and express consent of the data subject for the disclosure of such PII.
Cross-border transfer
Is the transfer of PII outside the jurisdiction restricted?
PII can be transferred freely to other countries within the EEA, as well as to countries recognised by the European Commission as providing an ‘adequate level of data protection’.
Such transfers of PII from France are permitted to Canada (under certain conditions), Switzerland, Argentina, Guernsey, the Isle of Man, Jersey, the Faroe Islands, Andorra, Israel, Uruguay and New Zealand.
Furthermore, transfers of PII from France to recipients established in the US are permitted to the extent that they are registered under the Privacy Shield certification.
Moreover, a controller or processor may transfer PII to other countries, or to recipients in the United States who have not chosen to sign up to the Privacy Shield, only if the controller or processor has provided appropriate safeguards, and on condition that enforceable data subject rights and effective legal remedies for data subjects are available.
The appropriate safeguards may be provided for by:
a legally binding and enforceable instrument between public authorities or bodies;
binding corporate rules approved by the CNIL;
standard data protection clauses – model clauses designed by the European Commission to facilitate transfers of personal data from the EU to all third countries, while providing sufficient safeguards for the protection of individuals’ privacy; or
a code of conduct approved by the CNIL, together with binding and enforceable commitments of the controller or processor in the third country to apply the appropriate safeguards, including as regards data subjects’ rights; or
a certification mechanism approved by the CNIL together with binding and enforceable commitments of the controller or processor in the third country to apply the appropriate safeguards, including as regards data subjects’ rights.
Subject to the authorisation from the CNIL, the appropriate safeguards may also be provided for, in particular, by:
contractual clauses between the controller or processor and the controller, processor or the recipient of the personal data in the third country or international organisation; or
provisions to be inserted into administrative arrangements between public authorities or bodies which include enforceable and effective data subject rights.
However, in the absence of an adequacy decision or of appropriate safeguards as descried above, a transfer of personal data to a third country or an international organisation shall take place if:
the data subject has explicitly consented to its transfer after having been informed of the possible risks of such transfers due to the absence of an adequacy decision and appropriate safeguards; or
the transfer is necessary under one of the following conditions:
protection of the data subject’s life;
protection of the public interest;
to meet obligations ensuring the establishment, exercise or defence of legal claims;
consultation of a public register that is intended for public information and is open for public consultation or by any person demonstrating a legitimate interest;
performance of a contract between the data controller and the data subject, or of pre-contractual measures taken in response to the data subject’s request; or
conclusion or performance of a contract, either concluded or to be concluded in the interest of the data subject between the data controller and a third party.
Data controllers must inform data subjects of the data transfer and provide the following information:
the country where the recipient of the data is established;
the nature of the data transferred;
the purpose of the transfer;
categories of the recipients; and
the level of protection of the state concerned or adopted alternative measures.
Notification of cross-border transfer
Does cross-border transfer of PII require notification to or authorisation from a supervisory authority?
The cross-border transfer must be approved by the CNIL when it is based on:
contractual clauses concluded between the controller or processor and the controller, processor or the recipient of the personal data in the third country or international organisation; or
provisions inserted into administrative arrangements between public authorities or public bodies which include enforceable and effective data subject rights.
Further transfer
If transfers outside the jurisdiction are subject to restriction or authorisation, do these apply equally to transfers to service providers and onwards transfers?
Restrictions on cross-border transfers apply to transfers from the PII owner based in France to a data processor outside of the EEA. Onward transfers are in principle subject to the restrictions in force in the recipient’s jurisdiction. By exception, SCCs contain specific requirements for onward transfers.
Rights of individuals
Access
Do individuals have the right to access their personal information held by PII owners? Describe how this right can be exercised as well as any limitations to this right.
Data subjects have a right to ‘access’ the PII that a controller holds about them.
Data subjects can exercise their right of access by sending a signed and dated access request, together with proof of identity. Data subjects can request that the PII owner provides the following information:
confirmation as to whether the controller processes the data subject’s PII;
information related to the purposes for which the PII is processed, and the recipients or categories of recipients to whom the PII is or has been provided;
where applicable, information related to cross-border data transfers;
the logic involved in any automated decision making (if any);
the communication, in an accessible form, of personal data concerning the data subject as well as any information available as to the origin of the data; and
information allowing the data subject to know and to contest the logic underlying the automated processing in the event of a decision taken on the basis of it and producing legal effects with regard to the person concerned.
The controller may oppose manifestly abusive access requests, in particular with respect to their excessive number or repetitive or systematic nature. In the event of a claim from the data subject, the burden of proving the manifestly abusive nature of the requests lies with the PII owner to whom they are addressed.
The right of access may be denied when the personal data is kept in a form that excludes any risk of invasion of the privacy of the data subjects (ie, if PII is pseudonymised or anonymised) and for a period not exceeding what is necessary for the sole purpose of statistical, scientific or historical research.
Other rights
Do individuals have other substantive rights?
In addition to the right of access described above, data subjects are granted the rights described below. When PII has been collected by electronic means, the data subjects must be provided with a way to exercise their rights using electronic means.
Right to object
Data subjects have the right to object to the processing of their PII on legitimate grounds, unless the processing is necessary for compliance with a legal obligation or when the act authorising the processing expressly excludes the data subjects’ right to object.
Data subjects also have the right to object, at no fee and without justification, to the use of PII related to them for the purposes of direct marketing by the PII owner or by an onward data controller.
Right to correct
Upon proof of their identity, data subjects may require the PII owner to correct, supplement, update, lock or erase personal data related to them that is inaccurate, incomplete, equivocal or out of date, or whose collection, use, disclosure or storage is prohibited.
When the concerned PII has been transmitted to a third party, the data controller must carry out the necessary diligence to notify such third party of the modifications operated in accordance with the data subjects’ request.
Right to be forgotten
Data subjects have the right to request the PII controller to erase personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay, in particular where one of the following grounds applies:
the PII is no longer necessary in relation to the purposes for which it was collected or otherwise processed;
the data subject withdraws consent on which the processing is based, and where there is no other legal ground for the processing;
the PII has been unlawfully processed;
the PII has to be erased for compliance with a legal obligation in EU or member state law to which the controller is subject; or
the PII has been collected in relation to the offer of information society services.
Right to be forgotten for children
Data subjects have the right to request the PII controller to erase without undue delay the personal data that has been collected in the context of the provision of information society services where the data subject was under age at the time of collection. When the PII controller has transmitted the concerned data to another PII owner, the data controller shall take reasonable measures, including technical measures, to inform the onward PII owner of the data subject’s request for the deletion of any link to the data, or any copy or reproduction thereof.
This is unless the data processing is necessary:
to exercise the right to freedom of expression and information;
to comply with a legal obligation requiring the processing of such data or to carry out a task in the public interest or in the exercise of the public authority entrusted to the controller;
to public health;
to archival purposes of public interest, for scientific or historical research or for statistical purposes; or
to establish or exercise legal rights.
Right of data portability
Data subjects have a right to:
receive a copy of their personal data in a structured, commonly used, machine-readable format that supports re-use;
transfer their personal data from one controller to another;
store their personal data for further personal use on a private device; and
have their personal data transmitted directly between controllers without hindrance.
‘Digital death’
Data subjects have the right to set guidelines for the retention, deletion and communication of their personal data after their death.
Compensation
Are individuals entitled to monetary damages or compensation if they are affected by breaches of the law? Is actual damage required or is injury to feelings sufficient?
Individuals may claim for damages when they are affected by a breach of the LIL that qualifies as a criminal offence subject to the referral to criminal jurisdiction.
In this case, compensation may amount to the total amount of damage endured by the individual, which includes moral damages or injury to feelings.
Enforcement
Are these rights exercisable through the judicial system or enforced by the supervisory authority or both?
Where the data controller does not answer or refuses to grant the right to the data subjects’ request, the latter can refer to the CNIL or a judge to obtain interim measures against the data controller.
Exemptions, derogations and restrictions
Further exemptions and restrictions
Does the law include any derogations, exclusions or limitations other than those already described? Describe the relevant provisions.
Not applicable.
Supervision
Judicial review
Can PII owners appeal against orders of the supervisory authority to the courts?
PII owners can appeal against orders or sanctions pronounced by the CNIL in front of the Supreme Court for the administrative order (the Council of State).
Specific data processing
Internet use
Describe any rules on the use of ‘cookies’ or equivalent technology.
Data controllers may install cookies or equivalent devices subject to the data subject’s prior consent. Such consent may derive from the browser or other application settings. The following categories of cookies require the prior consent of the data subject:
cookies related to targeted advertising;
social networks’ cookies generated in particular by their buttons of sharing when collecting personal data without the consent of the persons concerned; and
analytics cookies.
As regards analytics, the CNIL considers that these cookies may be exempted from prior consent subject to the following:
information must be given to users who must be able to oppose processing (this opposition must be possible from any terminal);
the data collected must not be cross-checked with other processing (client files or statistics of attendance of other sites, for example);
the cookies must be used only for the purpose of anonymous statistics and should not allow the tracking of navigation on different sites;
raw attendance data associating an identifier must also not be retained for more than 13 months; and
the use of an IP address to geolocate the user should not allow the street to be determined: only the first two bytes of the IPv4 addresses can be preserved and possibly used for delocalisation (for IPv6 only the first six bytes can be retained).
Implied consent is now accepted and companies must implement a two-step approach for obtaining consent.
Data controllers must use a banner providing the following information to the website user:
purposes of the cookies;
the possibility to object to the use of cookies and to modify settings by clicking on a link (made available in the cookie banner). Such link must describe the operations to be carried out by the data subject to disable the cookies;
that further navigation on the website constitutes valid consent to the storage of cookies on their device; and
an explanation of how disabling cookies might affect the data subject’s use of the website or app.
The CNIL recommends that to ensure that the data subject’s consent is unambiguous, the banner shall not disappear until the individual continues to navigate on the website, for example, by clicking on an element of the website or navigating to another page of the website.
The CNIL considers that the consent given by the data subject is only valid for 13 months. After this period, the consent of data subjects shall be collected again with the same conditions. Accordingly, the cookies’ lifetime shall be limited to 13 months from the date of the first deposit on the user’s device. New visits of the user to the website shall not automatically extend the cookies’ lifespan.
In addition, data subjects shall be provided with an easy way to withdraw their consent to the deposit of cookies at any time.
Electronic communications marketing
Describe any rules on marketing by email, fax or telephone.
Sending unsolicited marketing messages is prohibited without the prior consent of the recipient. Such consent of the data subject cannot derive from:
a pre-ticked box; or
general acceptance of terms and conditions.
Under the following conditions, the prior consent of the data subject is not required to address unsolicited marketing messages:
when the information of the data subject has been collected on the occasion of a purchase in accordance with the applicable data protection rules;
the marketing messages concern products or services similar to those purchased by the data subject; and
the data subject is provided with an easy way to opt out of receiving marketing messages when the data is collected and with each marketing message.
In a B2B relationship, the prior consent of the recipient is not required provided that:
the recipient has been informed that his or her email address would be used to address marketing messages;
the recipient has the possibility to oppose the use of his or her email address for the purpose of direct marketing at the time of its collection and with each message; and
the marketing messages must be in relation to the recipient’s profession.
Direct marketing by regular mail or telephone is not subject to the prior consent of the recipient, but the recipient has the possibility to object to it by signing up to an opt-out list. In France, this list is called Bloctel, which is the governmental opt-out list for telephone marketing.
Cloud services
Describe any rules or regulator guidance on the use of cloud computing services.
There is no specific provision applicable to cloud computing in the LIL or the GDPR. The CNIL issued guidelines addressed to companies contemplating subscription to cloud computing services dated 25 June 2012. These guidelines contain seven recommendations by the CNIL that should be taken into account by data controllers when assessing the opportunity to migrate to cloud services, as well as a template clause to be inserted into agreements with cloud computing services providers.
The recommendations are to:
establish a precise mapping of the data and processing that will be migrating to the cloud and the related risks;
define technical and legal security requirements adapted to the categories of data and processing;
carry out a risk analysis to identify the security measures to be implemented to preserve the essential interests of the company;
identify the type of cloud services and data hosting appropriate with respect to all data processing;
select cloud service providers that provide adequate security and confidentiality guarantees;
review and adapt the internal security policies of the company; and
carry out regular assessments of the cloud services.
Update and trends
Key developments of the past year
Are there any emerging trends or hot topics in international data protection in your jurisdiction?
Key developments of the past year46 Are there any emerging trends or hot topics in international data protection in your jurisdiction?
Since the implementation of the GDPR one year ago, many national data protection authorities have reported a sharp increase in the number of complaints. In France, the CNIL recently observed a 32 per cent increase in the number of complaints received in 2018, largely attributable to the RGPD. Indeed, the CNIL has received more than 11,900 complaints since May 2018. During the first nine months of the RGPD, the EDPB reported 144,376 complaints.
In the first major example, on 25 and 28 May 2018, the CNIL received group complaints from the associations None Of Your Business (NOYB) and La Quadrature du Net (LQDN). LQDN was mandated by 10,000 people to refer the matter to the CNIL. In the two complaints, the associations reproach Google for not having a valid legal basis to process the personal data of the users of its services, particularly for ads personalisation purposes.
As a result, Google has been fined €50 million by the CNIL for not properly informing to its users how data is collected across its services to present personalised advertisements. The CNIL noticed that the information on the data-processing activities provided to users was neither easily accessible to users nor always clear or comprehensive.
The CNIL also observed that Google doesn’t properly obtain users’ consent to target them with personalised ads. Essential information required to sufficiently inform data subjects of storage purposes, periods or categories of personal data used for ads personalisation is diluted in several documents and does not enable the user to be aware of their extent, with a several clicks required to access the full information. Therefore, the CNIL underlined that the user gives his or her consent in full, for all the processing operations purposes carried out by Google based on this consent (ads personalisation, speech recognition, etc). However, the GDPR provides that the consent is ‘specific’ only if it is given distinctly for each purpose.
Finally, we can also underlines that the CNIL is more likely to make public the sanctions that it imposes on the PII controller or processor.
Several days after my mother died in a car accident, my two sisters and I sat together in her apartment, stunned and overwhelmed. High on our horrible to-do list — along with retrieving her smashed vehicle from the tow lot, making burial plans and meeting with the rabbi — was this: getting into her cellphone.
Everything we needed to get her affairs in order was on her phone. Her contacts would tell us who to reach out to about the memorial service. Her email would tell us whether she had made plans we needed to cancel. Her finance apps would tell us whether she had been paying bills electronically. And there would be personal information, too. Her texts to family and friends. Her notepad. Her photos. The e-book she had been reading on the flight home in the hours before the accident as she left the Tulsa International Airport.
Luckily, Mom had given me the passcode to her phone only a month before. When we felt ready, I turned on her iPhone in its pink plastic case and typed in the code.
Nothing.
I typed in the code a second time. Again, nothing. My sisters and I looked at one another. A tightness gripped my stomach as I realized that the code Mom had given me couldn’t possibly work: That code had contained four digits, and her phone was asking for six.
Six digits means one million possible combinations, and her phone would give us only 10 tries before Apple would erase all of her data. Her old passcode had been the last four digits of the phone number at our childhood home, which ended in a zero. We decided to add two zeros to the end and were so confident that we knew how Mom’s brain worked that I paused dramatically before I tapped in the final zero, certain it would work. It did not.
After that failure, my sisters and I treated every one of the remaining tries like some sort of nuclear access code. We made a few more attempts, none successful. With each failure, the phone made us wait longer between tries. Eventually we decided it was best to stop and find a different way in — the risk of permanently erasing everything was too great.
As a historian and biographer, I’ve made a career of reconstructing lives. To do that, you need information. The people I study and write about are entrepreneurs, innovators, famous and wealthy individuals. Their lives have been well documented in countless ways, including television interviews, newspaper and magazine articles, congressional testimony, patent records and the corporate archives of companies they founded. It’s relatively easy to reconstruct those lives, particularly if there are still friends and colleagues to help fill in the blanks.
Mom left no public record aside from a letter to the editor published in The Tulsa World. Instead, she had a dusty purple plastic bin she labeled “Memorabilia” with a Magic Marker. Inside were a prom program, a love letter from a boyfriend we had never heard of and hundreds of drawings, photos and notes from her grandchildren or us sisters as children. She had the photo albums she had made when we were little. A safe deposit box held her citizenship papers and other legal documents.
Nearly anything from the past 20 years existed only online, locked away behind passwords and firewalls. Notwithstanding the cards she made by gluing New Yorker cartoons onto cardstock, her written communications essentially stopped in the early 2000s, when she got an email account. She was a great texter, pouncing to be the first to respond in any group and embracing emojis with the passion of a preteenager. Her social media posts were politically passionate and at times head-scratchingly random.
I valued these public things, of course, but I also wanted more. We document our lives in two ways, one intended and one not. There are the emails we send, the photos we post and the comments we debate and wordsmith before hitting Return. And then there is the inadvertent record: the enraged first drafts, the unflattering selfies, the record of purchases at Amazon or Netflix, the digital sticky notes we had not meant to keep.
We work hard to curate the public self and rarely think about the shadow self. I knew from my own work, however, that off-the-cuff notes, old receipts, call logs and calendar entries can serve as proxies for feelings. A run of doctor’s appointments, a glut of calls to the same phone number that never picks up, the purchase of five types of acne cream or a self-help book — these are clues. When we are alive and artificial intelligence assembles these clues to hazard an eerily accurate prediction about our interests and future desires, we are horrified. But for a historian looking at the life of someone who has died, the same clues can lead to understanding.
As a daughter, my heart broke at the realization that digital records, along with the stories from those of us who loved Mom, were going to be the best way to be with her again, to learn from her again or to laugh again at her stupid jokes. But as a historian, my mind raced. If the only way to preserve her memories was to put together the pieces of her digital life, then we had to hack into her online accounts.
After a frantic hunt, my middle sister found a small pocket calendar in Mom’s desk. The back pages were filled with handwritten login IDs and passwords. I patted myself on the back for having insisted Mom record her passwords, and we sisters rejoiced … for about five minutes. At site after site, login page after login page, every attempt failed.
The only login and password combination that worked was for her Apple iCloud account, but she had protected it with two-factor authentication. We could see that her phone was receiving texts — texts from Apple containing the codes needed to get into her account — but we couldn’t unlock the phone, so we couldn’t see the code. I called a few high-powered techies I know from working at Stanford and living in Silicon Valley, but none of them could help. It seemed we would be locked out of everything.
Eventually I found a savior — a young employee at an Apple Store. I explained to him that I had Mom’s login ID (an email address) and the password for her Apple account, but I couldn’t override the two-factor authentication. He asked me to enter the login and password, and he grimaced when her locked phone lit up with the authentication code we could not see. Then his expression changed. “Let’s try her SIM card,” he said.
A phone’s SIM card is no bigger than the fingernail on your pinkie finger, but it is of vital importance. It gives your phone its unique identity, making it possible to associate the physical device with a specific mobile carrier and phone number. You can pop the card out of your phone by inserting a paper clip in the tiny hole you might have noticed on the side of your phone. Moving a SIM card from one phone to another is how most people move their phone number when they upgrade their devices.
The employee ejected the SIM card from Mom’s phone and put it in his own. His phone now had her phone number. We logged into Mom’s iCloud account again. This time we clicked the link that said we had not received the original two-factor passcode sent to the phone as a trusted device. We requested another be sent to her phone number. An instant later, his phone buzzed with the code. “O.K. to input this?” he asked. My heart pounded at the thought of this young stranger being with me when I peeked into Mom’s hidden digital life for the first time, but I nodded approval. He typed the code on the site.
Boom: We could see her Apple mail, her memos, her bookmarks and her photos. We had recovered a key to unlock her digital world.
At home, I put Mom’s SIM card into my husband’s phone so that it could receive texts sent to her number. Now, with her login ID and control over her phone number, I could impersonate her. At every website, I said that I forgot her password. The website tried to confirm her identity by texting a code to Mom’s registered phone number — and the code would go straight to my husband’s phone. Once I was logged in, I could then change both the password and the trusted phone number that would thereafter be associated with the account. Every time a page opened up with her name at the top, I felt a mix of elation and nausea.
It took hours, but I gained control of her email accounts, her Amazon account, her cable provider and the sites for her credit cards. We never did figure out the passcode to her phone, which means I will most likely never see the iMessages or other encrypted information. Otherwise, I now have access to almost all of her digital history.
After all that work to crack Mom’s accounts, I haven’t looked at them. It has been six months, but it’s still too soon. Looking through her digital life will mean remembering her before she was gone, back when I was a daughter with the luxury of being annoyed by her calls or texts, back before she or I understood in the visceral, never-going-back way I do now that it was all going to end. I haven’t even listened to the voice mail messages from her that I still have on my phone. I do know they almost all begin in the same way: with a pause and then her voice saying, “It’s just me.”
Leslie Berlin, a historian at Stanford, is the author, most recently, of “Troublemakers: Silicon Valley’s Coming of Age.”
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