In a new opinion on the Commission’s proposal for a Regulation on electronic identification (“eID”) and trusted services, the European Data Protection Supervisor (“EDPS”) has called, amongst other things, for security measures that trust service providers must apply to their services to be specified directly in legislation rather than left to the Commission to define at a later stage.  The EDPS has also called for additional data privacy safeguards, higher security controls to apply to authorities that issue eIDs, more detailed mechanisms on how to ensure that eIDs and trust services are interoperable at EU level, and for data breach notification requirements under this proposal to be aligned with requirements under the e-privacy Directive and proposed new data protection Regulation.

Background to the proposal

The proposed Regulation has three key elements:

  • it requires mutual recognition between national eID systems across the EU;
  • it upgrades the legal framework of electronic signature and replaces the current Electronic Signatures Directive 1999/93/EC; and
  • it creates a new legal framework and safeguards for “trust services” that involve creating, verifying, validating, handling and preserving electronic signatures, electronic seals, electronic time stamps, electronic documents, electronic delivery services, website authentication, and electronic certificates.  

In addition to being more comprehensive than the existing Directive, the Regulation will apply directly in all 27 EU Member States, leaving little room for national divergences.

Requirements on trust service providers: security

In the trust services chapter, the proposed Regulation imposes numerous requirements on trust service providers in relation to security, data breaches, supervision and audits.  In terms of security, the Regulation sensibly leaves it to trust service providers to adopt technical and organisational measures that they consider appropriate for the risks associated to the service, having regard to the state of the art.  However, similar to the proposed data protection Regulation (which we have commented on here, here and here), the eID and trust services proposal also empowers the European Commission to further specify security measures by means of secondary legislation (i.e., delegated and implementing acts), which potentially undermines this flexibility and could lead to security mandates.

The EDPS is concerned that the flexibility awarded to providers creates “a risk of divergence”, but appears equally if not more concerned about allowing the Commission to specify precise security measures.  The EDPS has therefore called for the Regulation to establish a minimum set of requirements, in particular with respect to the circumstances, formats and procedures associated to security as well as the criteria, conditions and requirements, including the determination of what constitutes the state of the art in terms of security for electronic trust services. 

Additional data privacy safeguards across the board and higher security safeguards for eID providers

The EDPS has also called for additional data privacy requirements to apply to trust service providers as well as providers of electronic identification schemes, including greater transparency about data processing and enhancing the ability of individuals to control their personal data and exercise their data protection rights.  This is in addition to comments, in relation to national eID schemes, that a common set of conditions should apply to the use of such schemes across borders, and that safeguards that apply to authorities issuing eIDs should, at a minimum, be the same as those that apply to trust service providers. 

Interoperability and harmonization

Another point that may interest companies who could assist public authorities provide national eID schemes or provide trust services, is that the EPDS has called for more specific provisions detailing mechanisms that should ensure interoperability at European level.  The EDPS recommends that the Regulation harmonises at least those aspects that are crucial for interoperability, such as the data fields that will be used for identifying individuals, security requirements and data protection safeguards.

Data breach notification requirements

Finally, the EDPS seems to share the concern of industry and other stakeholders that this proposal includes data breach notification rules that possibly diverge from similar requirements in other legislation such as the e-privacy Directive and proposed new data protection Regulation.  (This topic was the subject of a recent ENISA report on “Cyber Incident Reporting in the EU”.)  To address this, the EDPS calls for specific provisions to ensure that notification procedures are aligned, and for a cooperation mechanism to be established between the trust services supervisory authorities and national data protection authorities who will have to deal with notifications.

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Photo of Mark Young Mark Young

Mark Young, an experienced tech regulatory lawyer, advises major global companies on their most challenging data privacy compliance matters and investigations.

Mark also leads on EMEA cybersecurity matters at the firm. He advises on evolving cyber-related regulations, and helps clients respond to…

Mark Young, an experienced tech regulatory lawyer, advises major global companies on their most challenging data privacy compliance matters and investigations.

Mark also leads on EMEA cybersecurity matters at the firm. He advises on evolving cyber-related regulations, and helps clients respond to incidents, including personal data breaches, IP and trade secret theft, ransomware, insider threats, and state-sponsored attacks.

Mark has been recognized in Chambers UK for several years as “a trusted adviser – practical, results-oriented and an expert in the field;” “fast, thorough and responsive;” “extremely pragmatic in advice on risk;” and having “great insight into the regulators.”

Drawing on over 15 years of experience advising global companies on a variety of tech regulatory matters, Mark specializes in:

  • Advising on potential exposure under GDPR and international data privacy laws in relation to innovative products and services that involve cutting-edge technology (e.g., AI, biometric data, Internet-enabled devices, etc.).
  • Providing practical guidance on novel uses of personal data, responding to individuals exercising rights, and data transfers, including advising on Binding Corporate Rules (BCRs) and compliance challenges following Brexit and Schrems II.
    Helping clients respond to investigations by data protection regulators in the UK, EU and globally, and advising on potential follow-on litigation risks.
  • GDPR and international data privacy compliance for life sciences companies in relation to:
    clinical trials and pharmacovigilance;

    • digital health products and services; and
    • marketing programs.
    • International conflict of law issues relating to white collar investigations and data privacy compliance.
  • Cybersecurity issues, including:
    • best practices to protect business-critical information and comply with national and sector-specific regulation;
      preparing for and responding to cyber-based attacks and internal threats to networks and information, including training for board members;
    • supervising technical investigations; advising on PR, engagement with law enforcement and government agencies, notification obligations and other legal risks; and representing clients before regulators around the world; and
    • advising on emerging regulations, including during the legislative process.
  • Advising clients on risks and potential liabilities in relation to corporate transactions, especially involving companies that process significant volumes of personal data (e.g., in the adtech, digital identity/anti-fraud, and social network sectors.)
  • Providing strategic advice and advocacy on a range of EU technology law reform issues including data privacy, cybersecurity, ecommerce, eID and trust services, and software-related proposals.
  • Representing clients in connection with references to the Court of Justice of the EU.