Tesla's Sentry Mode: Data Protection Authority could launch a test case to examine lawfulness under GDPR

Yesterday, the Bavarian Data Protection Authority for the private sector (BayLDA) published its latest activity report for 2020 (PDF, German). In this report, the DPA comments on the possible use of recordings of video sequences made for research purposes by Tesla and ambient recordings for the own purposes of a Tesla owner.

In the view of the BayLDA, the lead supervisory authority for Tesla (as controller) is the Dutch Data Protection Authority. It is consequently competent for examining the lawfulness of camera recordings (e.g., during braking situations) by Tesla for its own purposes (e.g., product development). The background to this conclusion is the fact that Tesla has its European headquarter in the Netherlands. But, in the view of the BayLDA, the situation is different with regard to the so-called Tesla Sentry Mode, in which vehicle owners can start video recordings for their own purposes. In the opinion of the BayLDA, any German Data Protection Authority of a Federal State in which the specific Tesla vehicle is registered is competent in this case.

In the opinion of the BayLDA, as soon as an owner activates the Sentry Mode, he or she will be considered as the data controller and must consequently be able to prove a legal basis for a recording in a supermarket parking lot, for example, if other visitors who pass the car only a short distance away are recorded by the vehicle.?

In addition to the legal basis, there arises also the question of how best to comply with the information requirements. It is interesting to note that the BayLDA seems to be explicitly considering a model procedure against a Tesla owner. In the case of complaints about the Tesla Sentry Mode, for example, it would be important according to the BayLDA, that evidence of active recording as well as a license plate number be communicated with the complaint to the DPA in order to be able to initiate test proceedings for the possible prohibition of Tesla Sentry Mode or even fine proceedings against Tesla owners, if it concerns a serious case.