Lemmy and GDPR - What is the current state?

Former (small scale) data protection officer here. While I am long out off the data protection game and there are surely a lot more qualified people out there I maybe can clear up a few misconceptions here and answer a few questions that come up regularly:

(BTW: My first language is not English and all my comments/books on that topic are not in English so excuse me if my translations are sometimes not 100% accurate)

Does the GDPR even apply to a instance hosted outside the European Union? It absolutely does. And in fact it is harder to comply to the GDPR outside of the European union. The GDPR does apply to all data collectors (from now on DCs) that collect data of European citiziens. While §2 Section 2a GDPR limits the application of the GDPR to usage within EU laws the collection of EU citiziens information clearly falls under the EU law as long as the EU citizien is within the EU during the collection process.
So why is it harder to comply to EU law outside of the EU? Because of local laws. A good example are US homeland security laws that do contradict the GDPR (and various other EU laws) and therefore make it impossible for someone to host EU data in the US complying to the GDPR. Facebook made a pretty costly experience in that regard recently. To comply to the GDPR one would need to keep EU citiziens out of their service AND defederate all EU instances. More of that later.
Does the GDPR even apply to Lemmy posts? It absolutely does! GDPR §4.1 states clearly that all information relating to an "online identifier" (aka username) is already protected. So the IP adresses, etc. collected by the initial server aren't even the only personal data. This makes the whole topic a clusterfuck in terms of federation.
But what about my small/medium size instance? I am not a business! I make no money. The GDPR does not care a bit about ones intentions here - it applies to all instances that are beyond "personal or intrafamiliy" data collection. This basically means that you can absolutely do what you want with the data you collected at the last family reunion. Maybe one can even get away with a invitation only private instance that only caters to a group of friends knowing each other. But any DC having a public instance is not, by definition, a private DC anymore. Therefore the GDPR does absolutely apply.
Can I simply the user for permission to use their data indefinitly and however I want? One surely can ask that. But that automatically invalidates the agreement. (Funnily enough this is exactly what reddit does and why reddit is not in compliance. Which might turn out costly.) The consent always has to be revokeable, amongst other things.
So what does the GDPR stipulate? There are three main topic we need to look at: Data deletion, traceability of data transfers and connected to this information about data usage.

Lets start with traceability. Because that makes the federation a federation!

What does traceability of data transfers mean? It basically means that a DC must record its data transfers to third parties and ensure that data is handled there according to the consent agreement with the user and the GDPR. Usually a data transfer agreement is necessary to ensure the rights of all parties. This makes it so difficult for a federated system: In theory a instance would need a data transfer agreement with ALL instances that federate data from it. And these instances woud then need to make sure that they don't transfer OR their transferpartner is covered in the original data transfer agreement as well their own one. A receipe for a pretty nice clusterfuck.
What does data deletion mean? Under the GDPR every user has the right to have his data deleted from a DC. This does not include data necessary for legal obligations but basically everything else. So the user can at any point revoke his consent and make the instance delete all their data.
Okay, I deleted the data on my instance, do I now comply to the GDPR? Surely I can simply ask the user to go to the other instances and ask them to remove the data? No. And here is another problem: The original DC (the users instance) is responsible for the data handled through transfer. That's why one needs a transfer agreement. To ensure that the data is deleted on all instances it was transfered to. There are two exceptions here: "Involuntary data transfer" is generally seen as not being part of the data handling. But that mainly applies to datascrapers like the web archive and similar usage where the data is transfered through general usage of a page that the DC cannot reasonaby prevent without limiting the usage of their service massively. That would very very likely not apply to a service that does provide a specialised api for the transfer. The other one is a data transfer partner not complying. In that case the user can sue the DC, but the DC can sue the transfer partner for breach of contract.
What does right to information usage mean? Basically a user has a right to know what happened to their data. So in case of the federation: To what instances got my data transfered to? How did they use it? Did they transfer it?
The end: What does that mean for Lemmy? To be honest: I can not fathom a way that put Lemmy in a position that is fully GDPR compliance. There might be one, but I can't imagine one that does not entail full defederation. But Lemmy can and must urgently improve the GDPR compliance as far as possible:

We need tooling for administrators to easily remove a users personal information from their own instances. Currently this is still very bothersome and time consuming manual work as far as I know.
We need a tool to federate deletion requests. So once the administrator of the "original instance" deletes the data a request is sent out to all instances and they automatically delete the user data then.
We need a system to deal with instances who do not follow deletion requests. This, for example, could include a "karma" system - once you are caught to not delete the userdata you are getting bad karma. And with enough bad Karma you get defederated by more and more instances.
We need a tool to inform people which instances did federate their data.
We need to optimize data frugality: The less data is collected the better it is.
We should consider data transfer agreements between the instances being set up automatically.

In theory even then someone can sue an instance owner. Even then we are not 100% in compliance. But it is a far better position in court if one can argue that they did basically everything they can to ensure the users right compared to "I don't give a f****, your honour".

Additionally we should lobby for change in the GDPR to include better rules for federated systems. Also because E-Mail as another federated system is not in compliance - that can easily be weaponized as a good point.

Just wanted to let you know your English is significantly better than many native speakers. Thank you for the great and amazingly detailed response!
- Thank you. But especially with the legalese English it is sometimes fairly hard to find the proper translation.
Best answer so far thank you!
This is a great answer, you (or someone else) should make sure the devs see this! Maybe as a Github issue

It isn't up to Lemmy to be GDPR compliant, but the individual instances.

People are struggling really hard to understand the concept of software federation
- Both ways are a wheel with a hub in the center and spokes out to the wheel. The users are the spoke/wheel location, the “corporation” is the spoke/hub connection
  
  The Old Way was users connecting to a corporation that provided a service. The corporation controls almost everything.
  
  The New Way is that users control almost everything and connect to the hub which allows them to connect with each other.
  
  Lemmy is the hub, instances are the users, and communities are the data shared.
Has this actually been court-tested? I get the feeling that this is all really quite grey until something in the Fediverse actually gets sued over this.

For example: when you create something (a comment, a post, a community), the "true" version exists on your home-instance, but copies also get sent and saved across the entire Fediverse. Is an instance really able to be GDPR compliant if it's constantly "backing up" data to non-compliant instances?

On the one hand, you could make the case that these outside instances are separate entities. Like the equivalent of a webarchive. Simply being public on the internet means other people can save copies and that's obviously all fair play under the GDPR.

On the other hand, you could make the case that saving copies to the outside instances is a lot like using third-party cookies. It's not technically "strictly necessary" for the instance to send your data to outside instances, even though it would seriously complicate the underlying design to allow specific users to opt-out of federating their content specifically.
- There's no reason why activitypub would be considered any different from email, nntp, or even search engines and internet archives. When an website or email server gets a GDPR request it's not propagated in any way, and it would be a stretch to expect it to.
- I would imagine that the caching that Lemmy does has been tested in court, since the intent of the cache isn't to create a permanent copy of the data. It would likely only become a problem with GDPR if that data would stay across the instances.
I think to this might be a reductive view.

the fediverse uses activypub.

ActivityPub is. a W3C raccomandation and this organisation cares about privacy.

it's likely that the protocol will, if it already doesn't, take care of it.

even if it's up to single imstamcesy is true, there are two further questions here (beyond how much it's enforceable)

should fediverse help admin in the task?

should fediverse help users to protect their privacy?

and to me the answer to both is yes.
- You need the protocol to implement crosshonoring of deletion requests, which is the default now. However, that deletion request could be ignored.
  
  As others noted, it gets complicated if two instances defederate from each other, as the communication link which would process these requests have been severed.
I think to this might be a reductive view.

the fediverse uses activypub.

ActivityPub is. a W3C raccomandation and this organisation cares about privacy.

it's likely that the protocol will, if it already doesn't, take care of it.

even if it's up to single imstamcesy is true, there are two further questions here (beyond how much it's enforceable)

should fediverse help admin in the task?

should fediverse help users to protect their privacy?

and to me the answer to both is yes.
I think to this might be a reductive view.

the fediverse uses activypub.

ActivityPub is. a W3C raccomandation and this organisation cares about privacy.

it's likely that the protocol will, if it already doesn't, take care of it.

even if it's up to single imstamcesy is true, there are two further questions here (beyond how much it's enforceable)

should fediverse help admin in the task?

should fediverse help users to protect their privacy?

and to me the answer to both is yes.

Regarding GDPR, one thing I've done as an instance admin is making clear in our privacy policies that lemmy allows you to send and receive social content and interactions across the internet in a way that's similar to email.

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- Actually I think it needs a lot of work regarding wording, because it doesn't really read as too professional. But I plan on keeping the core concept. My assumption here is that the GDPR is fine with people sending emails with details over to servers that the email provider has no control over, so the same should apply to the fediverse.

Wither GDPR applies to an individual instance will be up to those running the instance to decide.

If you decide it does, then you need to do a few things. Number one is read up advice on compliance with GDPR.

Being able to delete data alone doesn't mean GDPR compliance. I'm thinking about the need for privacy notices on sign up, retention schedules for data, lawful basis of processing, records of processing activities.. Data subjects have numerous rights, which apply depend on the lawful basis you're processing under.

I'd suggest that larger general instances might want to read up more urgently than smaller single focus "hobby" instances.

edit: more I think about this, I think there is an moral responsibility for the developers to help those running instances comply. If GDPR does not apply to an instance, it is still good practice to allow uses to delete their data, etc.. Also, art. 20 of GDPR is the right to portability. Interesting to see how this applies to fediverse platforms like Lemmy.

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- Isn't the key operating word here business?
  
  With no advertising on the line and no operations currently in place operating at anything but a loss there isn't a commercial interest at stake.
- My statement about it being up to those running instances is mean in terms of it's up to them to read the legislation and come to a conclusion. If I were hosting an instance I'd certainly assume it applied, though I doubt there has been any case testing its implementation in this sort of situation.
  
  I can see someone starting a lawsuit against a standards incompliant server that ignores deletes and edits, though.
  
  I wonder if the first data breach will draw the attention of a regulator. We're all using essentially alpha software, with no privacy notice, I doubt there are RoPAs or DPIAs, I doubt there is a DPO.. all those things might upset someone like the ICO in the UK if a breach were to occur.
  
  Edit: saying that, I'm not sure any breach would even be reportable given what data is collected by Lemmy.

GDPR Art 4.(1) 'personal data' means any information relating to an identified or identifiable natural person ('data subject'); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;

Posts in the Lemmy instances contain information relating to an identifiable natural person (by their user handle), as they contain the person’s ideas and opinions. Therefore the Lemmy instances are handling personal data and must comply with the GDPR.

Lemmy can avoid the impossibly heavy burden of compliance by becoming an underground illegal service and/or IP banning the Europeans Union and/or abolishing the European Union.
- That is a terrible option, cuts off a huge amount of potential users, and basically impossible to do fediverse wide. In fact, The European Union actually has official Fediverse accounts (on Mastodon, custom instance), and if the EU itself is willing to use a platform, that means it's probably not gonna be taken down by the EU.
- Lemmy is developed using EU funds and many of the biggest instances are in the EU
Lemmy can avoid the impossibly heavy burden of compliance by becoming an underground illegal service and/or IP banning the Europeans Union and/or abolishing the European Union.
- abolishing the European Union
  
  Ah, yes. I believe this was step 4 of setting up your self-hosted instance.

Lemmy is GDPR compliant, as far as I know.

Admins can entirely purge you off their instance, should you ask them to, and other servers do not store any personal details that GDPR would require be deletable. By most interpretations.

It can be argued that previously federated data that is now out of reach and as such cannot be deleted, could constitute a breach of GDPR.

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- There's not just ignoring the request.
  
  An instance can simply be offline when the request is made. Or be defederated.
Personal data posted by the user also falls into this, so they might have to force deleting on any instance hosted by organizations. Individuals or small teams running instances which don't take money don't need to comply to GDPR.
- Individuals or small teams running instances which don’t take money don’t need to comply to GDPR.
  
  Are you sure about that? So if I hosted a website that shows your name and address, you could do nothing to make me take it down because I'm not an organisation or company?
Other servers do store personal data. Any post or comment made by a user is personal data as it contains the thoughts/ideas of that user.

GDPR Art 4.(1) 'personal data' means any information relating to an identified or identifiable natural person ('data subject'); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
- That's one interpretation. One I illuded to.
  
  But you can also argue that if the person who made the comment is unidentifiable, there is no "natural person" to make the data GDPR related.
Yeah, but I imagine that could be handled via email. The tricky thing is to verify that the email is coming from the account in question, but that could be done by posting or commenting a specific phrase.

Does Lemmy even need to be gdpr compliment? It's not a company, it's private individuals.

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- This isn't true since your single user instance is federated. For example, this comment is going to end up on your instance, and it could have my personal data.
  
  edit: here's a meta-link to this comment on your instance: https://lemmy.cwagner.me/comment/2786 -- despite it originating from lemmy.one and the post being lemmy.ml from a user on lemmy.world (interestingly every person involved in this interaction is on a different instance)
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- It doesn't apply to purely personal use. See Article 2 section 2 (c). For shits and giggles would fall under that.
For now anyways, I can see that changing in the future. Company centric instances with communities for each of their product lines.

I also created a topic about this one, and there were quite a few different opinions in it. Check it here: https://lemmy.ml/post/1409164

If I understand correctly, the GDPR includes provisions or restrictions on transferring personal data from the EU to third countries. So, I'm wondering if Lemmy and Fediverse replication follow these GDPR regulations.

I am pretty sure it isn't fully compliant and needs to be. Could be significant issues if not.

There are definitely references to GDPR but there are basics which are not even there yet.

It is a serious business, so hopefully a high priority on the backlog.

It will be interesting to see how it is addressed centrally and across instances, and how quickly it is tested.