A Letter to the Editor

Over the past few days, the Irish Times has carried a larger volume than usual of the “Data Protection Commissioner is evil” letters, giving out about her “nonsensical powers” because the bad lady won’t let them do things they want to do with data about people who are/might be alive.

I don’t always agree with the ODPC (more often than not we have “differences of opinion” on things). But when (against all the odds) they appear to be DOING THEIR JOB, I will defend them. So, I wrote a letter to the Editor. It is probably too long and will get gutted or not published at all. Here it is (with links to the original letters)

Sir –

Over the past few days your letters page has carried unchallenged comments about the Data Protection Commissioner and her “nonsensical powers”.

Robert Frewen states that Electoral register information is available in hard copy through libraries. This is true, but it differs from an on-line and searchable resource in a number of key ways, namely that each search is manual and laborious and the library staff can act as a foil against trawling for data – multiple searches will easily be spotted and librarians are a fearsome breed in my experience. He also states that electoral register information is available on-line. This is incorrect. Electoral registers are available to search online, but only if you have the exact name and address of the individual – so you are searching for information you already have in your possession, not trawling for new facts.

Claire Bradley writes that the DPC’s decision is “small minded” and that “most of the people eligible to vote in the 1940s would be dead by now”. Unfortunately, that means that some of the people eligible to vote in the 1940s (such as my own Grandfather) are still very much alive and continue to enjoy a fundamental right to data privacy. This fundamental right is what the DPC has acted to uphold. Far from being a small minded sectoral interest, the DPC has acted in support of a broadly based fundamental principle.  

The DPC has made similar decisions in relation to other genealogy resources, which have been widely reported by the Irish Times, and clear rules of thumb have been established for births, marriages, and deaths. Perhaps rather than bemoaning the application of fundamental human rights rules to personal data, Ms Bradley might contribute more constructively by suggesting a reasonable and proportionate rule of thumb for the publication of electoral registers in an open and searchable format. The DPC, in my experience, welcomes such constructive discussion. Perhaps a benchmark can be found in the release of the 1911 Census Records?

It is important to note that the DPC has not said that any records should be destroyed, just that they cannot be made available for an open and unrestricted search. Yet.

Finally, Cllr Lacey seems to bemoan the DPC’s recommendation to Local Authorities that they respect and comply with Data Protection principles such as ensuring access to data and processing of data is conducted with a specified and lawful purpose. I would suggest that rather than blaming the DPC for the loss of patronage and perceived power that Councillors may have experienced when their participation in housing allocation was curtailed, he instead address his complaint to the Department of the Environment and ensure that a clear and explicit statutory basis in primary legislation is created to clearly set out what data about Council tenants Councillors can have access to, why, and under what controls such access will operate.

The release of Electoral Register data from the 1960s, 1970s and 1980s constitutes the release of personal data of living individuals for a purpose unrelated to the purpose for which it was obtained, and brings with it a risk of identity theft. If Cllr Lacey believes that the release of this data is sufficiently important, he should seek to have every person communicated with to obtain their consent to the release of their data for this new and, at the time, unforeseen purpose.

It is rare in recent times that I find an opportunity to fall full square behind the DPC and the actions of her office. This is one. Their function is imperfect, and in a professional context as Data Protection consultant and trainer, I have more than ample grounds to be critical of their actions at times.  But far from being nonsensical, the powers of the DPC are woefully inadequate in many ways for the challenge that they face as one of the leading Data Privacy regulators in the world upholding and protecting a fundamental right. As the Oireachtas prepares the updated Data Protection Act to beef up the DPC in line with the requirements of the General Data Protection Regulation, one hopes that the many weaknesses of the DPC will be addressed to make them more fit for purpose.

“Wha!!! Data Protection laws make things hard!” is a dumb argument. Better for people who have valid interests to assess what the “win-win” outcome would be and strike an appropriate balance.

Brexit’s got Talent?

I think Charlton Heston put it best:

Damn them all to hell! They finally went and did it! They blew it up!”

That was my immediate reaction to the Brexit news this morning.

  • A campaign that was polluted by lies and misinformation from the pro-Brexit side, including a bold claim that voting to leave the EU would save £350 Million a year, a claim that was debunked during the campaign but which the Pro-Leave side persisted with on the side of their “battle bus”. A claim that the Pied Piper of Brexit himself, Nigel Farage, has started back pedalling away from within single digit hours (barely minutes) of his side’s victory.
  • A campaign that cost a wife and mother her life simply because she had an opinion that differed from that of an armed man who had embraced the propaganda of the pro-Brexiters and, rather than risk his vote not being heard, stabbed and shot Jo Cox to death.  Yes, we all now know the depth of Shooty McShootface’s political opinion. And two children are without their mother.
  • A campaign where politicians blatantly lied and spread misinformation, capitalising on decades of anti-EU sentiment from a media controlled by an immigrant who likes being able to push governments around but gets told to fuck off by EU officials.
  • A campaign where a Minister of the Crown actually said, in response to experts calling bullshit on his arguments, that “People have had enough of experts”.
  • A campaign where, having won and having chased their people pleasing PR obsessed Prime Minister out of office (bye bye Dave), the heirs apparent to the Government of the United Kingdom stopped and, in the manner of kids who have seen a kid who has eaten all the sweets in the sweet shop and now realise what the words “diabetic” and “coma” mean when an ambulance paramedic is shouting them into a radio, have faltered in their cocksuredness that this Brexit thing is something that’s needed. “No need to rush things” says Boris Johnson. “I’ll have to consult with learned minds” says Gove.  Hopefully none of those learned minds are actually experts, because we all know Gove has had enough of them. But if they’re not experts, then is Gove just consulting with the winners of his local Trivial Pursuits club raffle?

Perhaps the arse falling out of the UK (and global) economy as if they had personally shovelled the economic equivalent of senokot and pure dysentery into the bowels of the world financial systems has softened their cough.

Perhaps they didn’t think they’d win so they didn’t have a plan? And now the plan they need will have to be a tad more cunning than one of Mister E. Blackadders. Because the plan they had been following thus far seems to have been concieved by Mr S. Baldrick. But no sensible politician or political leader places the economic futures of millions, the fate of the United Kingdom, and the stability of the global economy in jeopardy without having some semblence of a plan to deal with the fall out when things go their way.

Oh fuck.

But that’s not the bit that gets me angry. Campaigns like this are always fuelled by lies and misinformation from at least one of the sides involved. And a certain class of politician is always going to think of themselves as Machiavelli (instead of Ronald McDonald) and try to use a hiccup to foment a crisis that gets them to the leadership position they want. That’s just the bullshit cut an thrust of politics.

What gets me angry, and makes me very worried, is the Facebook-isation of democracy in two contexts:

  • The UK Electorate seems to think that voting in a referendum is of no more significance than liking a cat video on facebook.

Social media is full of videos and tweets of people saying that they have changed their mind and want a do over. That’s not how it works. Democracy is important. People die to get the right to vote. So… why not think about things before you put your scrawl in a box. Waking up with “Voters’ regret” doesn’t change the fact that you voted against your own best interests and those of your peers. You can’t fix your dumb vote with a smiley face emoticon and an “Unlike Brexit” vote.

This tells me that the education system (one of the things the Brexiters blamed the EU and immigration for messing up, when it is more likely to be chronic underfunding by successive governments) has failed to teach citizens of the soon-to-be-Disunited Kingdom what voting in elections and referenda is actually all about. It’s not about finding out who gets to stay in the Big Brother House. It’s about finding out if your kids get to have a future and at least the opportunities that you had. (One bright note in this is that the younger generation who grew up with social media bullshit and reality TV actually seem to be able to tell the difference between waffle and reality. It’s just a pity their older siblings, parents, and grandparents seem to have forgotten they were voting in a referendum, not on the outcome of Strictly.

Brexit was a world altering decision. To say you voted to leave “because you didn’t think your vote would count” means you don’t understand voting, or vote counting, or addition, or just generally the concept of accountability for your actions. Crying that you want a do-over so you can vote the right way the next time is not the answer. There may be no next time (except if you are Irish and voting on an EU Referendum in Ireland, in which case we tend to keep asking variations on the question until we get the answer that is needed, like Mrs Doyle in Father Ted only with Treaties instead of Tea).

  • The Filter Effect of algorithms in Social Media may have had an impact that may be impossible to quantify

Facebook has proven, through its own experiments, that showing people sad news on their timeline makes them sad. But the algorithms that filter and shape our experiences of social media filter our view of the world. It is not beyond the bounds of possibility that people who rely on social media for their news and for their impression of public opinion and trends simply fell into an echo chamber were the messages that bombarded them made them perceive and feel that their vote wouldn’t count.

With the bullshit misinformation and outright lies that circulated during the campaign, the bots and filters would have had a lot to play with in shaping a negative world view. That world view might have made marginal voters (the old reliable undecided voter) to vote Leave because they felt any other choice wouldn’t count.

I am speculating of course. But the algorithms that shape our world have biases inherited from the world views that created them, and they consume the data exhaust we leave for them to form a model of the world as we would like to see it and how the data says we perceive it. This has to have an impact.

Taking these two things together we find ourselves with an electorate who are algorithmically brainwashed but don’t consider their democratic function to be of such importance that they will take time to trust but verify the information they are given. And in that context we have shallow thinking, reflexive voting, and undesirable outcomes. And that is just the politicians.

 

Happy International Women’s Day

Today is International Women’s Day.

It is also another day that the Irish Department of Health and Children will spend counting down the hours until they can destroy material evidence of bad things that have happened to women in the State. Material evidence that they obtained through the operation of a Redress Scheme the terms of reference of which require the return of these records to the women who submitted them.

The Dept of Health has made statements to the effect that there is no need to retain the records as the women will be able to get copies again from their hospitals if they need them. But this ignores the defined retention schedule for clinical records relating to maternity care which is 25 years after the date of last pregnancy. It also ignores that there have been mergers and closures of hospitals and there is every chance that the hospital copies of records will not be available.

The Data Protection Commissioner is standing on the side line, apparently unconcerned that the destruction of records proposed is in contravention of the Terms of Reference of the Redress Scheme. She (or more accurately her Office) appears to have adopted the position that compliance with the Data Protection requirement to “retain for no longer than is necessary” automatically requires the destruction of records when the period of their usefulness purpose for has expired. “Allumer les déchiqueteuses” as they say in French.

A cynic would suggest that that is what the Department are counting on, given the renewed attention the United Nations is giving this issue as a question of Human Rights. A cynic might suggest that Digital Rights Ireland might have a point in their case about the independence of the DPC given the Office’s apparent unwillingness to engage with the balancing of rights issues that exist here.

My daughter is at an age where she wants to know what Daddy does for a living. She has decided I’m a “superhero spy guy” because I travel, wear suits, and try to help people but can’t always talk about it. Her child’s mind has not yet discovered Death by PowerPoint or the “clay layer” of change management, but she has started to learn about History. And History is important.

This issue is one where I have put my shoulder to the wheel to try and find a solution. It’s important. The medical records that face destruction in 12 days time represent important history. They are a record of the personal history of women who have already suffered and endured pain and indignity. They are a record of the social history of how the Irish State has treated women and women’s rights.

They are a record of a history we should not forget, even if it is painful for us to remember.

There is a valid historical value in these records being retained where they cannot be returned to the individuals so that their stories can be told in the aggregate. There is a practical value in the records being placed in trust with an independent body who can provide them back to individuals on request, while still supporting historical research. There is a Public Interest in remembering.

Ireland is not the only EU country to have struggled with the challenge of how to handle files from the past that evidence the gap between how we want to remember and what we need to remember. Countries of the former Soviet satellite states in Eastern Europe, including Germany, have retained the files that the Secret Police held on citizens. Individuals can request their own files back. Copies are held for historical research. Access for other purposes is strictly controlled. All of this operates in some of the most conservative Data Protection regimes in Europe. Perhaps Ireland needs to adopt a similar approach to the darker periods of our collective past.

For today’s International Women’s Day I hope my superpower (pedantic analysis of data privacy legislation and fundamental principles) can contribute in some way to ensuring that my daughter grows up in an Ireland that has learned from is painful past and treats its wives, daughters, and mothers with more fundamental respect than her grandmothers’ generation enjoyed.

Treating the records of Survivors of Symphisiotomy with greater respect than the survivors themselves have received would be a start.

Symphisiotomy, Redress, and the DPC

Over on the company site I’ve written a piece on Data Retention policies that references the Symphisiotomy redress scheme as a case study in data retention planning (not in a good way). For those who didn’t spot it yesterday and who are glued to the national media that isn’t referencing this huge story, let me summarise:

The State, in the form of the Redress Scheme, has told women who endured symphisotomies that they have until Monday to request their own medical records back or the State will take it on itself to destroy them. This is the same State that some of these women might want to sue, relying on these records as part of their case. The State has told the women and their legal representatives not by way of a letter, but by way of a notice on their website.

Here, on my personal blog, I get to have a small rant from time to time. This is one of those times. Because this sucks donkey balls. It is a further hideous abuse of women who have suffered, largely in silence, for years.

Donkey. Balls.

The terms of reference of the redress scheme (paragraph 46) clearly distinguish between two types of records: medical records provided by the applicants (the women who have endured the fall out of symphisiotomy) and records obtained from other sources by the Redress Scheme itself.

Paragraph 46 sets out that, for the first category of data “reasonable efforts” must be made to return the records. It does not set out a requirement for the destruction of the records. The second category of records it sets out will be destroyed when the Redress Scheme has run its course.

Regardless of source, this is personal and sensitive personal data relating to identifiable individuals. It is subject to the rights and duties outlined in the Data Protection Acts and in the EU Charter of Fundamental Rights. Those rights include the right to data privacy, which encompasses a right to get your data, and a right to dignity.

The Data Protection Acts and the Data Protection Directive require that data not be retained by a data controller any longer than necessary for the purpose for which it was obtained. It does not require that the data be destroyed. The women whose original medical records are in question here may have any number of purposes for them outside the scope of the Redress Scheme. On-going care and treatment of any complications arising from a symphisiotomy, seeking further legal advice, simply reminding their children and grand children of how poorly the State has treated them, historical record…. it doesn’t matter.

However, the State has skin in the game with regard to the destruction of these records. If they are gone, then it becomes impossible for any of these women to exercise their rights in further legal actions because the evidentiary documentation they need will have been destroyed. This may not be the conscious intent but it is the practical reality: the State is effectively destroying evidence when these records are destroyed. While the records may not ultimately carry the day as evidence in a court action, they are still evidence of what I had hoped were historic attitudes to women in this State.

But the haste with which the State is moving to dispose of these records and the clamorous droning of the shredders firing up heralds otherwise.

The Redress Scheme was required to make reasonable efforts to arrange for the return of documents. A message on a website when your target audience are lawyers and elderly women is not reasonable. It smacks of a box being ticked: “Did we put something out there about it? – TICK”.  It is not an appropriate mechanism of communication to those audiences. A letter to a lawyer, a snippet on Marian Finucane or other radio or TV for the affected women, a feck off big advert in the news paper… all of these are infinitely more appropriate.

I would compare this to the full court press that was done in the media to raise awareness of the closing date for women to apply and provide their records to the Redress Scheme. A cynic might think that this was a cunning strategy to get the evidence in from the affected women and then arrange for its destruction before it could be used in litigation. But that would be awfully cynical.

But this is the pattern that the permanent Government (the Civil Service) seems to fall into in matters like this: Protect the State at all costs.

Compare the approach to the retention of data about primary school children to this Redress Scheme: The Dept of Education has argued trenchantly that a) data relating to medical or psychological assessments is not sensitive personal data (it is)  and b) that they need to hold the data indefinitely (expressed as “until the child reaches their 30th birthday and then review”).

Why would the Dept of Education want to know all the sensitive data about kids for many years after they would have left the school system? They have not provided a coherent answer to this, despite the Grecian work of Simon McGarr (note: Trojans partied and were massacred, the greeks stayed up late and built a horse). The DPC has been left spinning as they apparently had approved of all of this and have been fought to the wire by Simon to ensure they enforce the actual law.

The answer to why is the O’Keefe case, which put the Department on the hook for child abuse in schools. So – get all the data on all the kiddies and hold it for ever in case any of them sue because of a thing so it can be used in defence of an action.

Keep it all for ever in case someone sues. In breach of Data Protection rules which require retention to be “necessary and proportionate”.

With this Redress Scheme the opposite seems to be happening: Shred focking everything in case we might be sued. Let’s ignore that shredding this data is not within the terms of reference of the Scheme. Let’s ignore that no reasonable effort has been made to arrange the return of records. Let’s create a situation where a room full of records can be whipped in to the shredder so that if any of them were thinking of suing the State they won’t be able to.

And in the middle of this we have the Data Protection Commissioner, whose office has told survivors that they are “looking into the matter”. Not that they will use their powers under the Data Protection Acts to order the proposed act of processing (i.e. the destruction) to be suspended pending a review given the tight timescale, but that they are looking at it.

This is the same Data Protection Commissioner that the Department of Education believed had pre-approved the POD database. The same Data Protection Commissioner that has approved the publication of the name and home address of every naturalised citizen in the State without a clear purpose other than ‘the Aliens Act 1956 requires it’.  The same Data Protection Commissioner that the Department of Enterprise explicitly references as an agent of State policy in strategy documents.

And the same Data Protection Commissioner that Digital Rights Ireland have initiated an action against the State over regarding their apparent lack of independence from the State, as required under the Charter of Fundamental Rights and EU Treaties.

If it walks like a duck and quacks like a duck it is probably a duck. If it pulls the plug on the destruction of medical records provided to the State by women seeking redress for suffering, it might actually be a Regulator.

They have until Monday to act to vindicate and uphold the rights of women whose rights have already been trampled enough.

Anything else just sucks donkey balls.

Census and Data Protection

My significant other has acted as an enumerator for the Irish Census of Population in the past, and has applied to do it again.

Every census season, I see lots of ill-informed comment about the nature of the census, what the data can or will be used for, and who it will be shared with. This ill-informed comment actually highlights the importance of trust in government in the obtaining of personal data, something which the former Chairman of one of my company’s clients (a very large Government agency) was obsessed with – loss of trust was directly linked in their mind to a loss of their ability to conduct their agency’s primary function, which is a very important one.

So, what is the legal position regarding data provided in the Census?

  1. Data that is obtained for a statistical purpose (i.e. obtained for a purpose under the Statistics Act 1993) is subject to a specific exemption under the Data Protection Acts 1988 and 2003.
  2. However, that exemption is justified largely by reason of the fact that it is prohibited under the Statistics Act 1993 to use the data obtained under that Act for any purpose other than “statistical compilation and analysis purposes” (section 32), and that to disclose data obtained under the Statistics Act which may be related to an identifiable individual without their consent (or the consent of their representative if they are deceased) is an offence under Section 33, except under specific circumstances, pretty much all of which relate to the operation of the function of the Central Statistics Office.
    • For the purposes of prosecuting an offence under the Act (you need to be able to identify the records that were the subject of the offence to prosecute the offence, so s33(1)(a) allows for them to be disclosed for that purpose
    • For the purposes of actually doing the statistical analysis functions of “officers of statistics” so that data can be aggregated and reported on (you need to have access to raw data to do the analysis and aggregation, so this is an obvious use of the data that has a very clear statistical basis)
    • For processing data for the purposes of the CSO in a form and manner governed by a contract in writing. This covers the use of 3rd party analysis tools or services or data enrichment, but ONLY for the purposes of the CSO, which is ONLY concerned with the publication of AGGREGATED statistical analysis.
  3. These restrictions do not apply to census data over 100 years old. However, the Data Protection Acts would still apply to data relating to any living individual in that data. Statistically, that is currently a small population and reasonably easy to check, and with a low probability of impact on fundamental rights for any disclosure. But as the life span of population increases, this would need to be kept under review.
  4. It is arguable that, should the CSO provide raw data to other government Departments for matching against their databases to append data for the CSO’s purposes, the recent CJEU ruling in Bara  would require them to disclose the fact of providing data to such Departments, but the Statistics Act 1993 would prevent those departments from making use of the CSO data for their own purposes (but this would likely need to be flagged by the “other side” of such a data enrichment process along the lines of “We get data from CSO and append information to it for statistical purposes but do not retain any CSO data at any time“).
  5. Regarding the actual census forms themselves, there is a very clear requirement under Section 42 of the Statistics Act 1993 that any records held by “officers of statistics” (which includes enumerators) be kept safe and secure “in such manner as to ensure that unauthorised persons will not have access thereto “, and that non-return of records constitutes an offence. Of course, the penalties on summary conviction (a prosecution taken by the Director General of the CSO, not the DPC) are pretty paltry (up to €1000 per offence), so might not be a sufficiently dissuasive penalty under the forthcoming General Data Protection Regulation.

It’s important to note that breaches of data security or misuse of statistical data are prosecuted not by the DPC but by the Director General of the CSO. To my mind this is not ideal, but reflects the fact that the Data Protection Acts didn’t cover paper records in 1993 as this only became a function of the DPA under the 2003 Act (enacting the 1995 Directive). It does, however, make clear that there are offences, sanctions, and a prosecuting body for breaches of the 1993 Act.

But of course, none of this will placate the tinfoil hat brigade who act on the default setting that any data you give to the Government is shared willy-nilly.  This highlights the importance of proactive data protection controls and data privacy considerations on the part of Government agencies and the legislature.

While it is tempting to build ‘databases o’ the people’, every instance of non-transparent and inadequately controlled sharing of data creates a threat to trust. When trust expires, key data simply becomes unavailable or unreliable as people cease to provide it or provide misleading information (which is an offence under the Statistics Act). Trust is fragile and ‘mushroom management’ approaches and “bit of an oul’ law” fig leaves are no longer sustainable when the tinfoil hat can be a fashion trend before the facts and truth of a process has its boots on (to mangle Churchill).

So: Census data is very strongly protected (albeit with sanctions that could and should be higher), and it is census data that underpins the priorities in government strategy, investment, and expenditure. It’s important for people to fill out the census accurately so that accurate data drives appropriate strategic decisions in Government.

However, Government needs to realise the impact that damaged trust in public sector data management and respect for data protection has on the willingness of people to trust the government with large amounts of data in the form of  a census. From POD to Health Identifiers to Irish Water there is a litany of error and misstep. Trust is fragile. Government needs to learn how not to step on it, or get used to tinfoil hat fashion shows and policy decisions grounded on statistical quicksand.

One route to restoring trust would be for our independent Data Protection regulator to regulate independently and take decisive action against public sector organisations that breach the Data Protection Acts. Enforcing the law is a key step towards ensuring that people trust the law will be enforced.

 

 

The General Data Protection Regulation and “Mental Discounting”

other_peoples_moneyThe General Data Protection Regulation (GDPR) is now in the home straight, with publication of final, final text expected in Q1 of 2016 (expect something to happen towards the end of January).

One of the small and subtle changes that is buried in the 209 pages of text in the most copy I have come into possession of is the apparent removal from the Regulation of any specific reference to personal liability of officers, directors or managers of bodies corporate where their actions (or inactions) cause an offence to be committed. This is a power that the Irish DPC has used judiciously over the past few years under current legislation (it is a power of the DPC under Section 29 of the Data Protection Acts and Section 25 of SI336 (ePrivacy Regulations), but which has served to focus the minds of managers and directors of recidivist offending companies when the sanction has been threatened or applied. The potential knock-on impact of such a personal prosecution can affect career prospects in certain sectors as parties found guilty of such offences may struggle to meet fitness and probity tests for roles in areas such as Financial Services.

The omission of this power from the GDPR weakens the enforcement tools that a Regulator has available, weakens the ability for Regulators to influence the internal organisational ethic of a body corporate when it comes to personal data, and invites officers, directors, and managers (particularly in larger organisations) to engage in “Mental Discounting” because the worst case scenario that can occur is a loss of “Other People’s Money”, not a direct impact to them.

I’ve written about this before on this blog in the context of organisations in compliance contexts weighing up “worst case scenarios” and assessing if the financial or other penalties are greater than or lesser than the value derived from breaching rules (search for “mental discounting“). However, the absence of a personal risk to the personal money of officers, directors, or managers also creates a problem when we consider the psychology of risk, given that our risk assessment faculties are among the oldest parts of our brain:

  1. We are really bad at assessing abstract risk (we evolved to understand direct physical risks, not the risks associated with abstract and intangible concepts, like fundamental rights, data, and suchlike).
  2. We are tend to down play risks that are not personalised (if there isn’t a face to it, the risk remains too abstract for our primitive brain. This is also the difference between comedy and tragedy… comedy is somebody falling off a ladder. Tragedy is me stubbing my toe).

So, when faced with a decision about the processing of personal data that has a vague probability of a potentially significant, but more probably manageable, financial penalty to an abstract intangible entity (the company we work for), with no impact of any kind on a tangible and very personal entity (the individual making the decision), invariably people will decide to do the thing that they are measured against and that they are going to get their bonus or promotion based on.

The absence of an “individual accountability” provision in the GDPR means that decision makers will be gambling with Other People’s Data and Other People’s Money  with no immediate risk of tangible sanction. If the internal ethic of a company culture is to take risks and ‘push the envelope’ with personal data, and that is what people are measured and rewarded on, that is what will be done.

In a whitepaper I co-authored with Katherine O’Keefe for Castlebridge, we discussed the role of legislation in influencing the internal organisational ethic. The potential for personal sanctions for acting contrary to the ethical standards expected by society creates a powerful lever for evolving risk identification, risk assessment, risk appetite, and balancing the internal ethic of the organisation against that of society. Even if only used judiciously and occasionally, it focuses the attention of management teams on data and data privacy as business critical issues that should matter to them. Because it may impact their personal bottom line.

Absent such a means of sanction for individuals, I fear we will see the evolution of a compliance model based around “fail, fail fast, reboot” where recidivist offender decision makers simply fold the companies that have been found to have committed an offence and restart with the same business model and ethic a few doors down, committing the same offences. Regulators lacking a powerful personal sanction will be unable to curtail such an approach.

After all, it’s just other people’s money when you get it wrong with other people’s data.

 

 

Farewell Caspar

Over the course of my career I’ve been lucky to meet and become friends with many of the pioneers in the fields of Information Quality, Data Governance, and Data Protection.  I have been doubly fortunate that some of these people have also become mentors – helping me to figure out what I wanted to do, and more importantly what I stood for, in the world of Information Management.

I had hoped one day to make the same connection with Caspar Bowden. Sadly that will not be possible now. This saddens me.

However, over the past few years, twitter has allowed me some level of contact with Caspar. It was often affirming to see him retweet one of my rants or rambles, or engage with me to clarify some point I was making or question I was raising.  At times it felt like I was getting a gold star from teacher… “10/10 for effort… keep paying attention to the details”.

I have no doubt that, had we met, we’d probably have wound up arguing about something. I’m sure it would have been an argument I’d have lost. But it would have been fun (and educational) to have argued.

The world has lost a true pioneer, a prophet of the dark consequences of unfettered digital privacy invasion, and a staunch advocate for finding better ways to do things.

It is never easy to be an advocate swimming against the tide, as Caspar often seemed to be.  However, sometimes the fight is worth fighting so that the pendulum finds a balance between rights, duties, and obligations in society, and so that people become more aware of the erosion of their privacy rights through legislative or technological changes.

So, if anyone in Ireland wants to remember Caspar Bowden, I can think of no better way then donating to Digital Rights Ireland or any of the other digital rights advocacy groups who fight the same fight that Caspar fought.

He may be gone but his spirit, and the fight, remain.

 

Me, speaking and teaching in 2015

alec guiness as Obiwan kenobi

Elderly data jedi imparts cryptic wisdom (film at 11)

So, a bunch of people have asked me to speak at events this year. And this is ON TOP of events and training I’m doing with my company (Castlebridge Associates).

Due to client commitments I’m unable to make it to my usual Californian summer conference DGIQ this year, but my colleague Katherine will be presenting there in June.

Not a bad diary! Now, to fit the big client engagements in around that…

We might be in a bit of a #gemalto

Gemalto is a manufacturer of mobile phone SIM cards based in the Netherlands. If you have a mobile phone, there is a good chance you have a SIM card manufactured by Gemalto. They also manufacture smart cards and identity validation solutions for financial services and government.

It has been revealed that Gemalto has been hacked by US and British intelligence agencies (GCHQ and NSA) and the encryption keys that encrypt the communication between your phone and the mobile phone network have been taken. This means that messages and calls can be intercepted and decrypted with ease by intelligence agencies. And anyone else who has these keys.

This arguably (in my view definitely) represents a particular risk of a breach of the security of the public telecommunications network.

In Ireland, Section 4(4) of SI336, the legislation that enacted the 2009 ePrivacy Directive (the “cookies law” as it has incorrectly become known) places a specific requirement on telecommunications companies to inform their customers of the issue without delay and, where the phone company isn’t in a position to fix the issue themselves they have to advise on steps that can be taken to minimise risk.

(4) In the case of a particular risk of a breach of the security of the public communications network, the undertaking providing the publicly available electronic communications service shall inform its subscribers concerning such risk without delay and, where the risk lies outside the scope of the measures to be taken by the relevant service provider, any possible remedies including an indication of the likely costs involved.

That Section enacts verbatim the text of Article 4.2 of the original 2002 ePrivacy Directive.

Irish telcos have been required by the Data Protection Commissioner in the past to provide blanket notification on their website regarding smishing (SMS-based phishing) threats and similar risks to the security of data on their networks. This is a whole level of complexity higher again.

The threat of unauthorised interception of GSM calls was perceived as relatively low risk due to the calls being encrypted between device and the network. Some threat vectors were identified, but in general the view was the encryption on any call would need to be cracked on a case by case basis. Now that encryption cannot be relied on. There is a particular risk.

My view is that telcos in Ireland, and potentially other EU countries, would need to inform their customers, and telcos should ideally be looking for a solution to reinstate the security of the SIM-to-Network link and issue new SIM cards to their subscribers. While National Security is outside the remit of the Data Protection laws and ePrivacy directives, that should be interpreted narrowly to relate to the actions of the Intelligence services in their spying. Hacking Gemalto may have been just on the right side of the line (I’m not saying that it is). However, it creates a problem for Telecoms companies in that the day to day operation of their networks is not a National Security or Intelligence service activity and the networks are now compromised if the telecoms company uses Gemalto SIM cards.

That will be costly and complex and, inevitably, telecoms companies will pass the cost on to their customers (it’s a tight margin business at the best of times, and reinstating a chunk of your customers with new SIMs is not to be undertaken lightly).

Of course, it requires EU Data Protection Authorities to engage with the companies in their jurisdictions to ensure they are acting in compliance with the relevant legislation. And that means ALL EU Data Protection Authorities, not just the one that everyones likes to beat up on for being “light touch”.

[Update: What about National Security and Criminal investigation exemptions?]

The Data Protection Acts in Ireland, and equivalent legislation across EU, has limited exemptions for activities of law enforcement and intelligence services relating to National Security and the investigation of criminal offences. This is being relied on by the UK ICO in relation to the Gemalto hack (see https://twitter.com/lisafleisher/status/569482404521496576/photo/1)

And I agree. In the context of the specific action of an intelligence service, the Data Protection Authorities have little authority due to the exemptions given under current legislation (Note: the exemptions are still subject to the Article 8 ECHR provision around a right to personal data privacy, which has been ruled on by the CJEU in the context of mass surveillance). So, in relation to the actual accessing of a company network and taking encryption keys, there is no role for a Data Protection Authority. In the conduct of intelligence service and law enforcement activities, Data Protection Authorities have very limited roles.

However, the fact that the keys are no longer under the control of Gemalto creates a “particular risk of a breach of security” in a communications network. So, telcos would still, in my view, need to give serious consideration to their obligations under Article 4.2 of the ePrivacy Directive. Yes, it is an intelligence agency (or two) that has the keys. Yes, they may have, in certain circumstances, a legitimate national security or criminal investigation purpose and associated exemption. But a risk to security of a public telecommunications network exists, and telcos are required to do something about it under Article 4.2. And that is something that national Data Protection Authorities are entitled to enforce.

In effect, the action that a telco needs to take should be no different than if a criminal organisation had executed a similar attack on a SIM card manufacturer. Because Article 4.2 doesn’t include a “… unless the particular risk arises from an action of an authorised intelligence agency or law enforcement body”. And, as I’ve said earlier in this post, the Irish DPC has previously required telecommunications companies to provide blanket notifications about the risk of Smishing as a security issue in the public telecommunications network.

I believe that telcos need to have some alert to customers about the risk that has been created.

For example, any telco that uses Gemalto SIMS could use a notice like this on their website:

It has been reported that the encryption keys for SIM cards manufactured by our supplier Gemalto have been taken by intelligence services acting, as we understand it, within their legal remit. These keys keep your calls and messages private and secure in our network in the normal course of activities, and this action creates a risk that calls and messages which would otherwise be encrypted between your device and our network can now be intercepted by anyone in possession of the correct encryption key without our knowledge. While we have no reason to believe the keys will be misused by the intelligence agencies in question or any other entities, a risk to security in the network does exist. We continually examine our options to keep your data safe and secure in our network and will provide updates on this situation as they arise.

Wording along these lines would meet the requirement of Article 4.2, and doesn’t take away from the legitimate access to telecoms network traffic and call data by intelligence services and law enforcement for the investigation of crimes or national security purposes. It has the added bonus of showing that the telco takes data security seriously enough to at least try to comply with the letter of the law.

It doesn’t get around the mass surveillance issues that arise when any call from any device using a Gemalto SIM can be decrypted, which almost certainly raises issues under Article 8 of the Charter of Fundamental Rights. But that is not the telecommunications companies’ issue to address, nor is it a matter for Data Protection Authorities. It’s one for Governments.

Data Protection Rake: WHACK!!

Sideshowbob walking on rakesSo, the Minister for Education is fighting a rear-guard action to justify the method of execution of the Primary Online Database. Get ready for the rakes.

Correctly, she is stressing the need for a means to track education outcomes as children move from primary to secondary education, where there is a drop-out rate which is rightly concerning. It’s been concerning since 2006 when Barnados highlighted the mystery of what was happening to the 1000 children a year who didn’t progress from primary to secondary education.

She has stated that the Data Protection Commissioner has been consulted and “and that office is satisfied with what we are doing“. The Data Protection Commissioner has commented that the Department has presented “a legitimate and proportionate purpose for requesting to be provided with the data it is seeking“. Now… that’s not the same thing as being “satisfied with what we are doing” as the Minister has said. It also depends very much on what purpose was communicated to the Office of the Data Protection Commissioner in 2013.

Even in an ideal world scope creep occurs, particularly when the objective for processing the data seems to be a bit confused. Is it for purely statistical purposes (which is implicit in the statements that the data would only be accessed by a small number of people in the statistics unit of the Department of Education), or is it for more day-to-day operational decision making purposes (which is implicit in comments made by the Minister that school funding could be at risk if data was not returned)? Those are two different categories of purpose.

[Whack]

But what about the DPC’s position?

The Data Protection Commissioner’s statement to the Irish Times actually limits its comment to the legitimacy and proportionality of the purpose that the Department may have for seeking to process this data. Ensuring children move from Primary to Secondary education and ensuring that the State has data available to help identify any trends in drop-out rates and ensure that limited resources are deployed as efficiently as possible to ensure equality of access to education (here’s a link to some more stuff from Barnardo’s on that) and support children in getting the best education outcomes possible.

Legitimacy and proportionality are linked to the purpose for which the data is being obtained. And the need to ensure that data is “Obtained fairly and processed for a specified and lawful purpose” it is just the first two of eight Data Protection principles. So what is the purpose the DPC was told about? Are there new purposes?

So, when the Minister comments on the retention of data about primary school children until they are 30 years old, and says that

“I did say I would examine it but it looks to me that up to the 30th birthday is probably appropriate and it satisfies the Data Commissioner as well which is obviously very important,”

it is really important to ask: What is the purpose for which this long a retention period is required?

[Whack]

It’s actually more than that: it’s essential that the Minister is able to say categorically what the purpose is for this retention and why a 25 to 26 year retention period for personal and sensitive personal data is required (“probably appropriate” is not the test… “retention for no longer than is necessary for the purpose for which the data is being processed” is the test under the Data Protection Acts. It is also important to assess whether the purpose and requirement can be met by less personally identifying data: would anonymised or pseudonymised data support the objective? If yes, then it ceases to be necessary to hold the raw data, so it is no longer “probably appropriate”).

[Whack]

So… what is the specific purpose for which a retention period of “until 30th birthday” is required? State it. Assess it. Compare against other alternative methods. And then make a clear decision based on the Privacy impact and the necessity and proportionality of the processing. “Probably appropriate” is not a form of words that fills me with confidence. “Assessed to be necessary and proportionate against other options, which were rejected because of X, Y, Z reasons” would be more illustrative and evidential of a proper Privacy Impact Assessment and Privacy by Design thinking at work.

[Whack]

For other purposes it might not be appropriate to allow access to the identifiable data even 90 seconds after it is recorded. Those purposes need to be identified and appropriate governance and controls defined and put in place to ensure only appropriate data is disclosed that is adequate, relevant, and not excessive to the purpose for which it is being processed. And that purpose needs to be consistent with and not incompatible with the purpose. The Data Protection Commissioner doesn’t appear to have actually commented on that. So the standard protocol of clear statutory basis and an appropriate system of Governance still needs to be considered and put in place for any sharing of data or subsequent use of data to be compliant with the Data Protection Acts (and, just in case we forget, Article 8 of the EU Charter of Fundamental Rights).

[Whack]

Disturbingly, the Minister seems to imply that it is irrelevant if parents provide their PPSN to the Department or not as they will be able to obtain that data from the Department of Social Protection. It is true that name, address, date of birth and mother’s maiden name can be used to validate a PPSN. However I would question the  basis under which the passing of that data to obtain the PPSN would be valid, given that the Dept of Education’s registration with Client Identity Services in the DSP seems to presume the Department has the PPSN it needs.The rent has been paid up on the battlefield it appears, and there is no going back.

[Whack. Whack]

(Name, address, date of birth, and mother’s maiden name could form a composite key to identify a child uniquely on the database where no PPSN is available. In which case, what is the purpose for the PPSN?)

[Whack]

What does the Minister’s statement mean?

In my opinion, the Minster’s statement means that the Department are mis-understanding the role of the Data Protection Commissioner and what it means for the DPC to give an opinion on the appropriateness of processing. The DPC will determine if there is risk of non-compliance with a proposed purpose for processing and will give guidance and feedback based on the information that is provided to them.

If that information is incomplete, or doesn’t match the final implementation of a system, then the DPC can (and does) change their position. It’s also not the role of the DPC to correct the homework of a Government Department, and the new Commissioner Helen Dixon has made that exceptionally clear to Public sector representatives in at least two forums since November. Her role is to enforce the legislation and support the protection of fundamental data privacy rights of individuals and to be independent of Government (that’s a Treaty obligation by the way since 2009… and towards the end of his term Billy Hawkes the former Commissioner exercised that independence by, for example, prosecuting the Minister for Justice).

It also means that the Minister is at risk of having to dig herself out of an entrenched position. The road to heck is paved with good intentions. This scheme (and all the other education outcome tracking databases that the Department has) are all valid and valuable as part of a coherent information strategy for the design and implementation of education services and delivery of education outcomes in Ireland. But the design and execution of the systems of processing (not just the technology systems but the wider scheme of stakeholder engagement, controls, governance, and impact assessments) is leaving a lot to be desired.

It means, unfortunately, that rather than display their homework around Privacy Impact Assessment, Governance controls, and Privacy by Design, the Minister and her Department are reacting exactly as I described in yesterday’s blog post:

Data Protection Expert: I think this raises significant issues and may be illegal

Government Representative: It’s too late. I’ve already paid a months’ rent on the PR agency project.

So far the report card reads:

  • Intention: 10 /10
  • Effort: 4 /10 for effort.
  • Execution:  2 / 10  (and negative marking applies here).

“Trust us, we’re the Government” doesn’t work any more because the Government has failed spectacularly to build and engender trust on previous data gathering and data sharing initiatives. So, laudable as the goals are, there was already a mountain to climb to put this data gathering inside the “circle of trust”.

My €0.02

Having reviewed a range of documentation around the Primary Online Database (including the specifications for the drop down fields in the database).

  1. The project has mis-identified as “non-sensitive” data a range of questions which are capturing sensitive personal data about medical or psychological assessments.
  2. The system has a notes field which currently can be accessed by users of the system in the Department but it is proposed that that will be restricted to just schools but in reality that means that the data is still being stored on a system designed and controlled by the Department and which would be accessible by anyone with an administrator access to the underlying database.
  3. The communication of purpose for processing, and the explanation of the retention period, is bordering on the unintelligible to me. And I read and write those kind of things for a living. I teach this stuff to lawyers. The defence that “it’s based on the Department circular” is not a defence. The requirement under the Data Protection Acts is that data be fairly obtained for a specified purpose. That requires that the statement of purpose be comprehensible (I advise clients to apply adult literacy standards to their text and aim for a reading age of 12 to 15). If the circular is incomprehensible, write a ‘friendly version’ or get the Circular redone.
  4. The project has gone to the wrong source for the data. The schools do not have a lot of this data, and even then they have obtained it for a different specified purpose. Schools guessing at ethnicity or religion or other aspects of the data being gathered makes little sense and creates an admin burden for the schools. The 50% response rate in the pilot project should have been a warning that the execution method was not appropriate.
  5. The use of “local” versions of the questionnaire by schools (where schools have modified the Department’s form and sent it out to parents) means that the Department (as Data Controller) has lost control of the statement of and explanation of purposes and processing. That means that no assumptions can be made now about what parents understood they were agreeing to because the ‘official’ form of communication may not have been used.
  6. There is no clear justification for a retention period of raw, identifiable, data until a child’s 30th year.
  7. The stance adopted by the Minister is not good. In the face of valid criticism she has adopted an entrenched position, clutching to the DPC as a shield rather than a fig leaf. Given the narrative arc in the Irish Water debacle that is, as Sir Humphrey Appleby would say, “Courageous Minister, very courageous”. (Data relating to children, “all cleared by the DPC”, challenge in public by knowledgeable experts, public disquiet, “DPC said it was OK”, immediate reverse ferret after a reshuffle… [we are at stage 3 now].)

Pausing. Assessing and defining an appropriate strategy for strategic use of data in education for statistical planning and centralisation of operational data, combined with an appropriate Privacy Impact Assessment that takes in to account recent rulings on necessity and proportionality by the CJEU would be advisable at this time.

Anything else is simply courageous, Minister.