Shattering one-way mirrors – data subject access rights in practice

Abstract

The right of access occupies a central role in EU data protection law's arsenal of data subject empowerment measures. It can be seen as a necessary enabler for most other data subject rights as well as an important role in monitoring operations and (en)forcing compliance. Despite some high-profile revelations regarding unsavoury data processing practices over the past few years, access rights still appear to be underused and not properly accommodated. It is especially this last hypothesis we tried to investigate and substantiate through a legal empirical study. During the first half of 2017, around sixty information society service providers were contacted with data subject access requests. Eventually, the study confirmed the general suspicion that access rights are by and large not adequately accommodated. The systematic approach did allow for a more granular identification of key issues and broader problematic trends. Notably, it uncovered an often-flagrant lack of awareness; organisation; motivation; and harmonisation. Despite the poor results of the empirical study, we still believe there to be an important role for data subject empowerment tools in a hyper-complex, automated and ubiquitous data-processing ecosystem. Even if only used marginally, they provide a checks and balances infrastructure overseeing controllers' processing operations, both on an individual basis as well as collectively. The empirical findings also allow identifying concrete suggestions aimed at controllers, such as relatively easy fixes in privacy policies and access rights templates.