Data Privacy Inspection at the Home Office

Can an apartment really be inspected to ensure compliance with data protection obligations? If so, by whom?

Knock, knock—who’s there? Your worst nightmare! WHO? The data protection authority!

A bad joke that could soon turn out to be the new reality. Granted, it may be an exaggeration to describe the data protection authority as a personified nightmare that could one day show up at your doorstep. Especially since that title has already been exclusively reserved for bailiffs and TV license fee collectors. Still, it wouldn’t be pleasant if the authority were to inspect your home for compliance with data protection obligations. But are they even allowed to do that?

National data protection authorities are generally authorized to enter premises where data processing takes place. This applies to the private and business premises of the controller, the processor, and third parties (such as employees), provided that personal data is processed there. 

The shift to working from home therefore significantly expands the geographical scope of the right of access. The data protection authority may enter any home to verify compliance with GDPR obligations. However, the authority is not permitted to conduct a search in the strict sense (such as opening and rummaging through drawers). Refusal of access may result in an administrative fine.

However, it is not only the data protection authority that could suddenly pay an unwelcome home visit. The data controller is also usually contractually entitled to search the home offices of all employees of its data processor. Such a right must even be explicitly granted to the controller in the relevant data processing agreement (Art. 28(3)(h) GDPR).

Should the authority and/or the controller discover data protection violations, there is a risk of substantial administrative penalties, claims for damages, and/or contractual penalties. A home office visit to an employee is therefore likely to cause most employers to break out in a cold sweat. The protective measures typically chosen by employers to ensure data protection standards in the home office are—paradoxically—mostly analog in nature. Employees are required to comply with data privacy through internal company policies (mostly a product of an ISMS) and home office agreements. A toothless paper tiger in response to a digital challenge that also fails to meet the requirements of Article 32 of the GDPR.

Rather, the (hopefully existing) ISMS must be implemented with technical data privacy measures and applied in the home office. In particular, this involves technologies for automated data, access, and workflow management.