Right of access to personal data

The Right of Access, also referred to as Right to Access and [data] subject access, is one of the most fundamental rights in data protection laws around the world. For instance, countries in Europe, Singapore, the United States, and Brazil have all developed laws that regulate access to personal data as privacy protection.The European Union states that: "The right of access occupies a central role in EU data protection law's arsenal of data subject empowerment measures." [1] This right is often operationalized as a Subject Access Request.

Europe

The right of access is enshrined as part of the fundamental right to data protection in the Charter of Fundamental Rights of the European Union. It is in fact the only one of the practical rights relating to personal data that is listed there.

In the GDPR, this right is defined in various sections of Article 15. There is also a right to access in the GDPR's partner legislation, the Data Protection Law Enforcement Directive.[2] When the EU Directive is transposed into Member State national law, the right of access may be suspended or restricted, as in the case of Germany in Article 34 of its Bundesdatenschutzgesetz.[3] Moreover, on the European level, Europol offers a right of access.[4]

In the current Member State United Kingdom, the website of the Information Commissioner's Office states regarding Subject Access Requests (SARs):[5] "You have the right to find out if an organization is using or storing your personal data. This is called the right of access. You exercise this right by asking for a copy of the data, which is commonly known as making a ‘subject access request". Before the General Data Protection Regulation (GDPR) came into force on 25 May 2018,[6] organizations could charge a specified fee for responding to a SAR, of up to £10 for most requests. Following the GDPR: "A copy of your personal data should be provided free in a commonly used and machine readable format.[7] An organization may charge for additional copies. It can only charge a fee if it thinks the request is ‘manifestly unfounded or excessive’. If so, it may ask for a reasonable fee for administrative costs associated with the request."

Singapore

Personal data in Singapore is protected under the Personal Data Protection Act 2012 (PDPA). The PDPA establishes a data protection law that comprises various rules governing the collection, use, disclosure and care of personal data. Access to personal data is laid out as part of Part IV, chapter 21 which states that on request of an individual, an organization shall, as soon as reasonably possible, provide the individual with:[8]

(a) personal data about the individual that is in the possession or under the control of the organization; and
(b) information about the ways in which the personal data referred to in paragraph (a) has been or may have been used or disclosed by the organization within a year before the date of the request

United States

Five federal laws include a right of access to personal data:

FCRA Fair Credit Reporting Act,
FERPA Family Educational Rights and Privacy Act,
COPPA Children's Online Privacy Protection Act,
HIPAA Health Insurance Portability and Accountability Act.
Privacy Act of 1974.

In addition, some state laws like the CCPA California Consumer Privacy Act have started to include this right.

Brazil

According to the Brazilian General Data Protection Law, Subject Access Requests need to be fulfilled within 15 days.[9]

Transatlantic data flows

Transatlantic data flows (or at least those going West, towards the US) are governed by the EU–US Privacy Shield. One of the Privacy Shield principles is the right of access.[10] Indeed, it is most fundamental in enabling accountability mechanisms around personal data processing. This example demonstrates that a European-style conception of privacy does not necessarily have to be perceived by American actors as unduly imposing new restrictions on free speech by data subjects.

This Privacy Shield practice also shows that the case of civilian data protection (as under GDPR) is quite different from the case of criminal investigation, where a right of access is exercised as a "data request" by a government, not an individual, as in the US Supreme Court case Microsoft Corp. v. United States. The individual in criminal cases does maintain a right to know what data is being used about him/her, and of what crime s/he is accused.[11]

United Nations

The aspirational Sustainable Development Goal 16, target 9, calls for the provision of legal identity for all human beings. "In the digital economy, this becomes the right to a digital identity."[12] Such an identity could help in filing Subject Access Requests.

References

Ausloos, Jef; Dewitte, Pierre (20 January 2018). "Shattering One-Way Mirrors. Data Subject Access Rights in Practice". International Data Privacy Law (2018) 8(1), Pp.4-28. 8: 4–28. doi:10.1093/idpl/ipy001. Retrieved 6 February 2019.
"Protecting personal data when being used by police and criminal justice authorities (from 2018)". eur-lex.europa.eu. Retrieved 2019-10-25.
"Act to Adapt Data Protection Law to Regulation (EU) 2016/679 and to Implement Directive (EU) 2016/680" (PDF). Retrieved 2019-10-25.
"Right of access". Europol. Retrieved 2019-10-25.
"Your right of access". Information Commissioner's Office. Archived from the original on 26 May 2018. Retrieved 25 May 2018.
Report, PrivSec (2017-11-15). "Dealing with subject access requests under GDPR". PrivSec Report. Retrieved 2020-12-05.
"what are the rights of data subjects under GDPR?". TrueVault. TrueVault.
"Personal Data Protection Act 2012 - Singapore Statutes Online". sso.agc.gov.sg. Retrieved 2019-10-25.
"Law No. 13,709, of August 14, 2018 - Provides for the protection of personal data and changes Law No. 12,965, of April 23, 2014 (the "Brazilian Internet Law")" (PDF). International Association of Privacy Professionals.
"Privacy Shield Framework". U.S. government. Retrieved 11 January 2019.
"Working paper on Standards for data protection and personal privacy in cross-border data requests for criminal law enforcement purposes 63rd meeting, 9-10 April 2018, Budapest (Hungary)" (PDF). Retrieved 11 January 2019.
"A/CN.9/WG.IV/WP.158 - Explanatory Remarks on the Draft Provisions on the Cross-border Recognition of Identity Management and Trust Services, Section II, paragraph 6". United Nations Commission on International Trade Law, Working Group IV: Electronic Commerce, 58th session, 8–12 April 2019, New York. Retrieved 27 April 2019.