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Europe Data Protection Digest | Notes from the IAPP Europe Managing Director, 31 July 2020 Related reading: CCPA update: Calif. attorney general comments, new amendments signed into law

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Greetings from Brussels!

Unfortunately, several countries in Europe have tightened restrictions once again amid recent localized infection spikes across the continent leading to a dreaded fear that a second wave of COVID-19 may be on the horizon. Were we bullishly optimistic opening our borders prematurely, with the summer months upon us, and no doubt with an eye to salvaging Europe’s prized tourism business? 

There is an interesting story developing out of Ireland this week regarding EU travel, correlated to the pandemic unemployment payments scheme. For context, these payments are being made to more than a quarter of a million Irish citizens, down from a peak of 600,000 in the month of May. It was reported in the media this week that citizens have had their PUP cut off because they were found to be boarding flights abroad in breach of rules. Moreover, it was reported that additional payments, such as jobseekers' allowance, were cut for similar reasons.

Government statements over the course of the last couple of days have been contradictory, with some senior sources saying jobseekers could take a two-week holiday. Conversely, the Department of Social Protection is saying that this provision had been suspended since 10 July when the social protection minister signed a statutory instrument that amended the Social Welfare Regulations 2007. This new amendment states that jobseekers' benefit only continues to be payable in which the claimant is on holidays “in accordance with the General (COVID-19) Travel Advisory in operation”: the current advisory is to “avoid non-essential travel until further notice,” suggesting that claimants can’t travel and claim at the moment. 

The airport checks made of traveling Irish citizens prompted the Data Protection Commissioner to ask the Department of Social Protection to explain how exactly it is obtaining data used to block benefit payments. Helen Dixon asked welfare chiefs for clarifications of their operations at Dublin Airport since it emerged that passengers' details were being accessed by benefits inspectors.

The department stated in relation to airport inspections, control reviews take place across the range of schemes operated by their services every day and can take a "variety of forms," including joint operations with other state agencies, adding that the withholding of welfare payments was backed by law. However, it seems that the relevant laws provide that inspectors must have a “reasonable” suspicion that someone is committing an offense. There are reports that inspectors have been blanket questioning large numbers of passengers before they board flights, asking for employment-related administration ID data, and other personal information. Additionally, it seems that the welfare officers are being supported in their spot inspections by the police force — the Gardaí — at the airport. Passport information has been taken by both inspectors and police officers of traveling passengers.

The issue has provoked a good deal of reaction. The Irish Council for Civil Liberties questioned the legality of the COVID-19 payment checks at airports, questioning whether the statutory instrument reliant on an "advisory" travel notice is being erroneously used as a legal basis for withholding welfare payments. The debate has spilled over into the Dáil — the Irish Parliament — where the Department of Social Protection conceded that the government could have communicated more effectively on the rules and that the cases of all those who traveled for holidays will be reviewed.

In what concerns the Irish DPC, it is still waiting for additional feedback on questions raised with the department over the current practice of collecting and processing personal information of passengers on the basis of travel to certain destinations: The DPC expressed serious doubt over the lawfulness and conformity of the current practices with the powers of inspectors under Irish law(s) in this context.

We should expect more developments in this now very public affair.

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