NEWSLETTER No 31 // Thursday 27 January 2022
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THE ENVIRONMENTAL FOOTPRINT OF DIGITAL TECHNOLOGY: IT IS TIME TO WAKE UP!
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This month, our newsletter “La Lettre du DPO ” interviewed Vanessa Kurukgy, former lawyer, legal expert at the French Federation of Conservatories of Natural Areas (Fédération des Conservatoires d’espaces naturels - FCEN) and David Bessot, founding member and CEO of the company Infhotep. They share with us their personal views on the environmental impact of digital technology.
The environmental footprint of digital technology. Digital technologies can be seen as a driver of innovation providing concrete answers to environmental challenges. Through the collection and analysis of data, digital technology can be used to intelligently adapt building heating systems and to detect and measure losses in electricity, gas and water networks. However, the parallel development of devices based on the collection, processing and storage of data on a large scale (connected speakers, personal video surveillance cameras, etc.) contributes to greenhouse gas emissions. Today, digital technology is estimated to generate 3 to 4% of global GHG emissions and 2% of national emissions. More than 75% of the environmental impact of digital technology in France (GHG emissions, water and resource consumption) would be concentrated in the equipment manufacturing phase (televisions, computers, telephones, etc.). According to the preliminary report of the French Senate's information mission on the environmental footprint of digital technology, GHG emissions related to digital technology could increase significantly if no action is taken to reduce its environmental footprint: +60% by 2040 representing 6.7% of France's GHG emissions.
France’s action plan to align digital technology with environmental protection imperatives. Aware of the alarming increase in digital pollution, linked in particular to the excessive replacement of devices (smartphones, tablets, computers...), the French government has taken several ambitious measures aimed, on the one hand, at aligning the digital transition with the ecological transition and, on the other hand, at making all digital players (consumers, professionals in the sector and public players) more accountable. These are the objectives underlying the recent French regulations: law no. 2020-105 of February 10th, 2020 relating to the fight against waste and the circular economy (Loi AGEC) and promoting recycling and repair (effective on January 1st, 2021, except for certain provisions that entered into force on January 1st, 2022) and law no. 2021-1485 of November 15th, 2021 aiming to reduce the environmental footprint of digital technology in France ("REEN law").
Data protection and environmental protection. An interpretation of the GDPR from the perspective of digital sobriety could also contribute to environmental protection. The actual application of certain fundamental principles, such as the minimization of data collection and the limitation of their retention period, could contribute to moderation in terms of energy consumption. The environmental consequences of massive data processing are also a major concern for the CNIL (the French data protection authority). Thanks to the Digital Innovation Laboratory, the CNIL is studying the links between data protection and environment through forward-looking studies, publications and experimentation.
Enjoy the reading!
Matthieu Bourgeois and Laurent Badiane, partners in charge of the Intellectual Property and Digital Law Team.
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"Digital sobriety (...) is the consequence of energy sobriety which is becoming an obvious necessity"
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Captivated since childhood by the beauty of nature and sensitive to the vulnerability of natural balances and the dangers posed to them by immoderate human activity, Vanessa Kurukgy quickly became interested in environmental law. She then studied energy law, at the time when this market was opening to competition and the so-called renewable energies. She recently joined an organization dedicated to the protection of biodiversity, after a long career as lawyer. During her interview with “La Lettre du DPO” Vanessa discusses in detail her experience and commitment to this sector and shares with us her vision on the future of environmental law as well as its impact on digital technology.
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1/- What is your background and what led you to become interested in environmental law?
I started my law studies at the University of Nanterre (double degree in French and American law), followed by a year of LLM in London, where I received my first education in environmental law. I then integrated the Paris Institute of Political Studies (Sciences Po), in the "Public Affairs" Master's program and the Energy program, with the conviction that the two subjects were intimately linked. A first internship in the Public Law department of CMS Francis Lefebvre, more specifically with lawyers involved in matters related to environmental and urban planning law, confirmed my orientation, which I pursued as a lawyer in the Fieldfisher law firm for 7 years.
Then, as I wanted to get more involved in the field of protection of biodiversity, in 2020, I joined the Federation of Conservatories of Natural Areas (FCEN) as a legal expert.
2/- What are your responsibilities and the missions that you currently carry out?
The FCEN is a network of associations of biodiversity specialists, notably naturalists, established in each French region (except Brittany). The FCEN assists the Conservatories day-to-day, especially on legal aspects. My activity as a legal expert focuses on the tools related to the land area applicable in and to natural areas, in order to identify the best possible protection instruments and to support their implementation. This requires considering all the issues of the local context, such as the different players (farmers, the French National Forests Office - ONF, communities etc.) and the specificities of the land (economic activity on the site, particular regulatory classification, natural characteristics etc.). I am notably involved in voluntary biodiversity protection contracts (called "Obligation Réelle Environnementale" or "ORE", i.e. the real environmental obligation), with the financial support of the French Office for Biodiversity ("OFB"). This system concerns a wide range of players (individuals, companies, public bodies) and leads me to work both on the aspects of "assets" protection in the field of biodiversity (desire to transfer a "green heritage" to the next generations) and on ecological compensation. Their implementation is linked to the destruction of the environment for an economic and/or development project and requires a land base.
3 /- What is your vision on the future of environmental law and its impact on areas such as digital technology?
Environmental law is not a new discipline, since the first significant laws were drafted at the beginning of the 20th century. It has become particularly important since the 1970s and has constantly expanded, at an ever-increasing pace, reflecting the urgent need to eliminate, control or mitigate the impact of human activities on the environment. In the future, regulations and case law will multiply in a very transversal way, and digital technology will be no exception. The protection of biodiversity will be one of the major challenges of the future, alongside that of climate change. In this respect, the digital industry will have to adapt because data centers, for example, currently consume considerable resources causing the destruction of natural areas. Digital sobriety, which is promoted by the recent French "REEN" law (adopted on 15/12/2021), is the consequence of energy sobriety which is becoming an obvious necessity. The offer of eco-friendly technologies must go hand in hand with a parallel moderation of consumption. The digital industry, like other human activities, cannot escape this reality and must stop encouraging the culture of an unlimited use at all costs.
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FROM DIGITAL SOBRIETY TO DIGITAL ETHICS
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Founding partner and current CEO of Infhotep, David Bessot took the decision, from the beginning of his career, to think and work on sustainable digital solutions. He has always focused on making the best use of existing skills and tools, rather than favoring application hyper-growth. Realizing that a reasoned use of data was necessary for an excellent use of tools, in 2019, Infhotep published a white paper entitled "l’Écologie de la Donnée - du bon usage de la donnée en 2020” (Data Ecology – about the good use of data in 2020), to which Julien Hautemanière (Infhotep consultant and university-trained geographer) contributed. Discussing this issue, they both share with our “Lettre du DPO” their practical insights on what responsible management of such resources could look like in 2022.
Saving resources by promoting digital sobriety."The digital revolution is over because everyone is now well equipped, and therefore the challenge of the next decade will be to better manage the existing resources and not to develop them. But let's get back to the topic of the environmental impact of digital technology: we know that the manufacturing of devices (smartphones, tablets, computers, etc.) accounts for about 80% of digital pollution in France, and at the same time, the number of these devices is going to increase dramatically with the widespread use of the Internet of things (IOT), which will affect a whole range of objects used in everyday life (cars, watches, refrigerators, etc.).
It will be necessary to work on the reparability of these devices (i.e. to extend their lifespan) as well as on a better management of the resulting massive amounts of data (in particular by learning how to "kill" data, i.e. to delete them once and for all, whereas today real destruction is still too rare). From this point of view, the GDPR promotes a form of ecology by imposing a limitation of the collection and retention period of personal data. And this will not necessarily be an obstacle to efficiency, as information overload can be unfavorable: an organization that stores data wisely will be able to focus its energies on improving their quality and adding value to them, and finally to produce results that are just as good as – or even better than - by excessively retaining all kinds of data. Digital sobriety, if applied properly, will lead to a healthy organization."
Ecology and ethics: everything is connected to everything else. “The digital tool gives the person who really knows how to use it a control over other people: one of the reasons is for example the information contained in personal data which can sometimes be used against the interests or the rights of a person. If in the physical world, the rules are rather clear (a person cannot sell a kidney, for example), things are fuzzier in the digital world: one can sell personal data for example. This distinction may be linked to the immoderate consumption of digital resources (which, let's not forget, are consuming physical resources - electricity, rare-earth metals, etc - which are quite limited). In reality, the deterioration of the environment is caused by human behavior towards technology. It calls us to examine the proper use of technology and digital technology is no exception. We could, for example, impose a combined business-personal computing to avoid the multiplication of devices or set up an ecological label for digital products/services. Basically, with digital technology, we are (re)living the dilemma of our ancestors who, after having multiplied their physical power thanks to industrial machines, had to restrict their capacities or practices to avoid destroying those who handled them or worked with them. Thus, in order not to damage human relations, electronic communication tools must be used with moderation and awareness. In the future, the missions of the DPO could be extended to other topics such as ethics and digital sobriety, because unlimited consumption is not sustainable. Moreover, MOORE's law (exponential increase in the processing power of microprocessors), which has reached its limits, cannot serve as a model for this consumption at the expense of creating a destructive, natural but also human decline.”
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A MORE SUSTAINABLE DIGITAL FUTURE: ARCEP'S NEW ACTION PLAN |
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Adopted on Christmas Eve as complement to the French "REEN" law of November 15th, 2021 aiming to reduce the environmental footprint of digital technology, Law No. 2021-1755 of December 23rd, 2021 extends the powers of the France’s electronic communications, postal and print media distribution regulatory authority (Autorité de Régulation des Communications Electroniques, des Postes et de la Distribution de la Presse - ARCEP). According to this law, the ARCEP has now the right to collect data on the environmental impact of digital technology as well as to conduct expert reports and studies. Aware that the digital sector is responsible for 2% of carbon emissions in France in 2019, the French government is determined to control the environmental footprint of digital technology and is particularly targeting the electronic communications sector, devices and data centers. Operating system providers and data center operators, as defined in the new law (art. L.32 of French postal and electronic communications code - CPCE), as well as electronic communications service providers, manufacturers of terminal equipment and network equipment will be subject to transparency. Upon justified request, they will be obliged to provide ARCEP with any reliable information and documents relating to the environmental footprint of their tools and to the identification of relevant indicators and methods used for its evaluation (art. L.36-6 of French CPCE). On an annual basis, ARCEP will draw up an assessment and publish a report on its activities, including the state of the electronic communications and Internet market (art. L.135 of French CPCE).
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The French REEN law adopted on November 15th, 2021: moving towards the conciliation of digital world and environment!
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The issue is alarming: according to the European Commission, digital technology, which already accounts for as much as global civil air traffic (2,5%), could represent up to 14% of global GHG emissions by 2040, if no action is taken to reduce its impact on the environment. Concerned about this fact, some senators submitted a proposal in October 2020, which led, on November 15th, 2021, to the adoption of law 2021-1485 "aiming to reduce the environmental footprint of digital technology in France" (known as the "REEN" law). The provisions of this law, which will come into force between 2022 and 2026, aim to (i) limit the ongoing replacement of devices, (ii) promote the development of eco-friendly digital practices, (iii) promote more energy efficient data centers and networks and (iv) encourage a responsible digital strategy in the French territory. This text introduces many new elements, in particular in consumer law, electronic communications law and public law. All private and public players, notably from the digital sector, must quickly become familiar with them.
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CNIL’s fines against GOOGLE and FACEBOOK for forged consent concerning cookies
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Following several investigations, the restricted committee of the CNIL (the French data protection authority) noted that the websites "facebook.com", "google.fr" and "youtube.com" had still not implemented a compliant solution allowing users to refuse cookies as easily as they can accept them, i. e. directly from the cookies banner.
The CNIL considered that this process affects the freedom of consent since, on the Internet, the user expects to be able to quickly consult a site: this process therefore influences his choice in favor of consent.
Consequently, the CNIL issued:
- two fines of a total amount of 150 million euros against GOOGLE (90 million euros for GOOGLE LLC and 60 million euros for GOOGLE IRELAND LIMITED),
- a fine of 60 million euros against FACEBOOK IRELAND LIMITED.
Since March 31st, 2021, corresponding to the deadline for compliance with the new cookie rules, the CNIL has adopted approximately 100 corrective measures.
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Thursday, 10th February 2022 |
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16th edition of the DPOs University (Université des DPO)
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The French Association of Data Protection Officers (AFCDP) is back in 2022 with the organization of the most important conference in France about GDPR compliance. The 16th edition of the DPOs University will begin on February 10th, 2022 at the Maison de la Chimie in Paris and will include 6 webinars throughout the year. Here are some of the topics that will be discussed: the place of the Defender of Rights (French independent authority in charge of defending the citizens’ rights) in relation to personal data, the appropriate response to a ransom demand and the impact of the health crisis on citizens' rights and freedoms.
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The Intellectual Property and Digital Law Team at klein • wenner
Fortified by in-depth experience, klein • wenner's attorneys in the IT Law and Intellectual Property team, who are experts in the digital sector and in GDPR, have developed a transversal practice unique in the area of data law. We work with other experts (in cybersecurity, SI/data governance and other areas), and our team offers a global, cooperative approach to all the issues relating to data (privacy, intellectual property, cybersecurity and open data - *with klein • wenner's Public Law team).
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