I am having a bit of an issue with a company called Withings!
I purchased a sleep monitoring gizmo, it goes under the mattress. It is actually pretty cool as it tracks sleep, and heart rate, and snoring. Working out what to do with the data is another matter, but is interesting, and could be quite helpful.
Obviously this device needs a way to present the data to me, and that is via an app on my phone. The ideal way would be to, say, bluetooth it to the app. Simple, and it has bluetooth.
But no, it seems to be set up so it uses my wifi to send data to Withings over the internet, and then the app on my phone gets it from them and displays it. This is not ideal, and it annoys me a little that people make devices work like that, but, in theory, GDPR comes to the rescue.
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My sleep is not always good |
Once upon a time companies could probably do what they like as part of T&Cs of some service they offered (though, bear in mind, I have not bought a "service", I bought a "device"). However, these days, they cannot simply use my data, they need to have a legal basis, and perhaps even consent.
Also, arguably, this is sensitive personal data (medical data), so subject to even tighter controls.
So, in theory, I should be able to use the device with the data being conveyed to them and back too my phone, and no more. Data being deleted when no longer needed, and not used for any other purpose. Or so you would hope.
The first clue of a problem was that the installation not only required me to agree their T&Cs (annoying) but "consent" to their privacy policy (
here). This immediately rang alarm bells as "consent" is meant to be "freely given" under GDPR. Insisting I consent as part of installation is wrong.
So, I consented on the basis I want to use the device, and immediately emailed withdrawing my consent, as is my right. To be clear, I explained I accepted that there would be some data processing to provide the core functionality of monitoring my sleep and displaying that on the phone app, but I withdrew consent for any other purposes - specifically (as per their privacy policy): Developing and managing Products and Services, Conducting data studies, and Marketing, advertising and making recommendations. The last one being my main concern.
It is worth noting, had they had a number of entirely optional consent settings such as "share data with our developers to help improve the product" and so on, I may well have clicked on some. Making it mandatory to consent to usage as per their privacy policy was what kicked this all off!
They basically have no clue, seriously. Many emails back and forth. They kept telling me where their privacy policy was and asking if there was anything else they could help with. They totally failed to understand their obligations or what I was asking. Finally I have an email saying if I don't consent then that is not compatible with use of the product and they offer a refund. Well, no, I want to use the product, but my data only be used for that usage and nothing more. That is my right!
We'll see what happens next - I have written to them now as well.
However, there is a big gotcha here, and this is the same with T&Cs for installing a smart TV and a lot of other
internet of shit stuff.
EVEN IF I CONSENT, what of other people?
This is not entirely hypothetical now. I was away for the weekend, and my sleep tracker says I slept one of those nights I (someone that does not snore!). Now, I happen to know who did sleep in my bed, he is 5, and not only did he not consent to Withings having his data, but he legally is too young to have done so.
(I believe my having his data probably comes under personal/domestic use in much the same way as if I marked his high on a door post).
But Withings will presumably want to use the data for Developing and managing Products and Services, Conducting data studies, and Marketing, advertising and making recommendations.
If the basis of this use is "consent", which they seem to suggest, then when and how did they get his consent exactly? I have asked them this. We will see what they say.
Basically, they cannot assume they have consent for any sleep data they collect to be used in such a way, at all, ever, as even if the installer or owner of the device consents, they do not know the person sleeping in the bed has consented.
As I say, this is much the same as smart TVs that could be recording you viewing patterns. Even if the installer has agreed terms and consented to such data processing, the people viewing the TV may not have.
This is a legal issue that needs sorting. I wonder if the sensitive nature of medical data in the case of the Withings sleep monitoring device will help get this to a test case? ICO have been told.
P.S. I checked, and it is at least talking over https.