DMA Update: It’s Still a Privacy Danger - International Center for Law & Economics
Focus Areas:    Digital Single Market | EU | Privacy

DMA Update: It’s Still a Privacy Danger

Truth on the Market View Original

The European Union’s Digital Markets Act (DMA) has been finalized in principle, although some legislative details are still being negotiated. Alas, our earlier worries about user privacy still have not been addressed adequately.

The key rules to examine are the DMA’s interoperability mandates. The most recent DMA text introduced a potentially very risky new kind of compulsory interoperability “of number-independent interpersonal communications services” (e.g., for services like WhatsApp). However, this obligation comes with a commendable safeguard in the form of an equivalence standard: interoperability cannot lower the current level of user security. Unfortunately, the DMA’s other interoperability provisions lack similar security safeguards.

The lack of serious consideration of security issues is perhaps best illustrated by how the DMA might actually preclude makers of web browsers from protecting their users from some of the most common criminal attacks, like phishing.

Key privacy concern: interoperability mandates

​​The original DMA proposal included several interoperability and data-portability obligations regarding the “core platform services” of platforms designated as “gatekeepers”—i.e., the largest online platforms. Those provisions were changed considerably during the legislative process. Among its other provisions, the most recent (May 11, 2022) version of the DMA includes:

  1. a prohibition on restricting users—“technically or otherwise”—from switching among and subscribing to software and services “accessed using the core platform services of the gatekeeper” (Art 6(6));
  2. an obligation for gatekeepers to allow interoperability with their operating system or virtual assistant (Art 6(7)); and
  3. an obligation “on interoperability of number-independent interpersonal communications services” (Art 7).

To varying degrees, these provisions attempt to safeguard privacy and security interests, but the first two do so in a clearly inadequate way.

First, the Article 6(6) prohibition on restricting users from using third-party software or services “accessed using the core platform services of the gatekeeper” notably applies to web services (web content) that a user can access through the gatekeeper’s web browser (e.g., Safari for iOS). (Web browsers are defined as core platform services in Art 2(2) DMA.)

Given that web content is typically not installed in the operating system, but accessed through a browser (i.e., likely “accessed using a core platform service of the gatekeeper”), earlier “side-loading” provisions (Article 6(4), which is discussed further below) would not apply here. This leads to what appears to be a significant oversight: the gatekeepers appear to be almost completely disabled from protecting their users when they use the Internet through web browsers, one of the most significant channels of privacy and security risks.

The Federal Bureau of Investigation (FBI) has identified “phishing” as one of the three top cybercrime types, based on the number of victim complaints. A successful phishing attack normally involves a user accessing a website that is impersonating a service the user trusts (e.g., an email account or corporate login). Browser developers can prevent some such attacks, e.g., by keeping “block lists” of websites known to be malicious and warning about, or even preventing, access to such sites. Prohibiting platforms from restricting their users’ access to third-party services would also prohibit this vital cybersecurity practice.

Under Art 6(4), in the case of installed third-party software, the gatekeepers can take:

…measures to ensure that third party software applications or software application stores do not endanger the integrity of the hardware or operating system provided by the gatekeeper, provided that such measures go no further than is strictly necessary and proportionate and are duly justified by the gatekeeper.

The gatekeepers can also apply:

measures and settings other than default settings, enabling end users to effectively protect security in relation to third party software applications or software application stores, provided that such measures and settings go no further than is strictly necessary and proportionate and are duly justified by the gatekeeper.

None of those safeguards, insufficient as they are—see the discussion below of Art 6(7)—are present in Art 6(6). Worse still is that the anti-circumvention rule in Art 13(6) applies here, prohibiting gatekeepers from offering “choices to the end-user in a non-neutral manner.” That is precisely what a web-browser developer does when warning users of security risks or when blocking access to websites known to be malicious—e.g., to protect users from phishing attacks.

This concern is not addressed by the general provision in Art 8(1) requiring the gatekeepers to ensure “that the implementation” of the measures under the DMA complies with the General Data Protection Regulation (GDPR), as well as “legislation on cyber security, consumer protection, product safety.”

The first concern is that this would not allow the gatekeepers to offer a higher standard of user protection than that required by the arguably weak or overly vague existing legislation. Also, given that the DMA’s rules (including future delegated legislation) are likely to be more specific—in the sense of constituting lex specialis—than EU rules on privacy and security, establishing a coherent legal interpretation that would allow gatekeepers to protect their users is likely to be unnecessarily difficult.

Second, the obligation from Art 6(7) for gatekeepers to allow interoperability with their operating system or virtual assistant only includes the first kind of a safeguard from Art 6(4), concerning the risk of compromising “the integrity of the operating system, virtual assistant or software features provided by the gatekeeper.” However, the risks from which service providers aim to protect users are by no means limited to system “integrity.” A user may be a victim of, e.g., a phishing attack that does not explicitly compromise the integrity of the software they used.

Moreover, as in Art 6(4), there is a problem with the “strictly necessary and proportionate” qualification. This standard may be too high and may push gatekeepers to offer more lax security to avoid liability for adopting measures that would be judged by European Commission and the courts as going beyond what is strictly necessary or indispensable.

The relevant recitals from the DMA preamble, instead of aiding in interpretation, add more confusion. The most notorious example is in recital 50, which states that gatekeepers “should be prevented from implementing” measures that are “strictly necessary and proportionate” to effectively protect user security “as a default setting or as pre-installation.” What possible justification can there be for prohibiting providers from setting a “strictly necessary” security measure as a default? We can hope that this manifestly bizarre provision will be corrected in the final text, together with the other issues identified above.

Finally, there is the obligation “on interoperability of number-independent interpersonal communications services” from Art 7. Here, the DMA takes a different and much better approach to safeguarding user privacy and security. Art 7(3) states that:

The level of security, including the end-to-end encryption, where applicable, that the gatekeeper provides to its own end users shall be preserved across the interoperable services.

There may be some concern that the Commission or the courts will not treat this rule with sufficient seriousness. Ensuring that user security is not compromised by interoperability may take a long time and may require excluding many third-party services that had hoped to benefit from this DMA rule. Nonetheless, EU policymakers should resist watering down the standard of equivalence in security levels, even if it renders Art 7 a dead letter for the foreseeable future.

It is also worth noting that there will be no presumption of user opt-in to any interoperability scheme (Art 7(7)-(8)), which means that third-party service providers will not be able to simply “onboard” all users from a gatekeeper’s service without their explicit consent. This is to be commended.

Conclusion

Despite some improvements (the equivalence standard in Art 7(3) DMA), the current DMA language still betrays, as I noted previously, “a policy preference for privileging uncertain and speculative competition gains at the cost of introducing new and clear dangers to information privacy and security.” Jane Bambauer of the University of Arizona Law School came to similar conclusions in her analysis of the DMA, in which she warned:

EU lawmakers should be aware that the DMA is dramatically increasing the risk that data will be mishandled. Nevertheless, even though a new scandal from the DMA’s data interoperability requirement is entirely predictable, I suspect EU regulators will evade public criticism and claim that the gatekeeping platforms are morally and financially responsible.

The DMA’s text is not yet entirely finalized. It may still be possible to extend the approach adopted in Article 7(3) to other privacy-threatening rules, especially in Article 6. Such a requirement that any third-party service providers offer at least the same level of security as the gatekeepers is eminently reasonable and is likely what the users themselves would expect. Of course, there is always a risk that a safeguard of this kind will be effectively nullified in administrative or judicial practice, but this may not be very likely, given the importance that EU courts typically attach to privacy.