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In the interest of Electoral Balance

by Daragh on February 14th, 2011

I’ve written previously about Fine Gael and their issues with avoiding Data Protection pitfalls during this current General Election.

Some people might have gotten the impression that I’m obsessed with Fine Gael. I’m not. I’m obsessed with Data, specifically the management of data and information in manner that ensures quality outcomes through quality data governed with due regard to relevant legislation.

On courses I teach on Data Protection and Information Quality I often make reference to “The Joe Duffy Effect” to describe the brand impacts that can arise if organisations don’t take care to manage information as a complex and valuable asset. The term refers to Joe Duffy, a talk radio host on Irish radio. Joe enjoys taking the side of the common man, usually. Occasionally he makes a jape of not getting the point, whether by accident or design we may never know. But organisations who fall foul of the “Joe Duffy Effect” can find themselves fighting rear guard actions against an often intractable foe.

Last week Joe spoke with Jacob, a South African living in Ireland who had received a pre-recorded voicemail to his phone from Michael Martin. Jacob’s tale can be heard in Technicolour on the RTE website.

From the call we glean that:

  1. A voicemail was received by Jacob on the 9th of February with a pre-recorded message (which Jacob played)
  2. He has apparently received SMS messages from Fianna Fail with calls for volunteering and campaigning.
  3. He is not a member of Fianna Fail
  4. He has not asked for Fianna Fail to contact him and does not know where they got his number.
  5. The mobile in question is used as an internal work mobile and is not listed. His number is only listed with the Road Safety Authority.

In the broadcast Joe tells Jacob that we live in a democracy.

Correct. We live in a democracy. Specifically we live in democracy where we have decided that the Right to Privacy, while not absolute, is a right that must be defended. Just because we are a democracy it does not give politicians an automatic carte blanche to process data regardless of where or how it has been obtained. These rights to privacy are enshrined in law, in the Constitution and in EU Treaty obligations. Yes, there are balances, mitigations and exemptions with respect to how that right is exercised and protected – but it is still a democratic right of the individual.

During the course of the call, a comment from Fianna Fail was read out saying that they didn’t have Jacob’s number. That is at odds with the evidence – to whit: one recording. And if I’ve learned one thing from watching CSI is that evidence trumps counter claim every day.

So, what is the Data Protection issue here:

  • Fair Obtaining – Jacob is not a member of the party and was not aware of how his number came to be called and texted. Granted his phone seems to be for work purposes, but the electronic Privacy regulations apply to business as well as personal data. Also, while he may use the phone for work purposes a big question to ask here is who is paying the bill – him, or a company. If he pays the bill the phone may actually be a personal phone used for business purposes (Sole Trader data is a tricky area in Data Protection land).
  • Governance and control of data and/or data processors – Fianna Fail claimed not to have Jacob’s number. The fact that a Fianna Fail party message was left by voicemail and various SMS messages were sent to him suggests that they do. Or if not them then someone working on their behalf. Under the Data Protection Acts, the Data Controller is responsible for the actions of the Data Processor unless the Data Processor acts outside the parameters of the formal contract in writing that governs the Data Controller/Data Processor relationship. So… while it may be true that FF HQ don’t have Jabob’s number, someone processing data on behalf of Fianna Fail does. Fianna Fail not knowing whether or not they had the data suggests a weakness in internal control and governance.
  • Accuracy – Joe D. suggested to Jacob that maybe the messages were being sent because of a wrong number. Personal data needs to be kept accurate and up to date. FF should have taken steps to correct the error rather than denying that they have the data. Ultimately FF carry the can for the actions of the Data Processor.

Of course, there is the distinction to be made between normal “direct marketing” and the processing of personal data by a candidate for elected office. Basically during an election personal data is “fair game” for politicians, provided they have obtained it correctly first and have clear consents for contact. Which puts the discussion of “auto dialling” or “power dialling” on the table. According to the Data Protection Commissioner’s website:

The use of automatic dialling machines, to call individual subscribers at random for direct marketing purposes, is prohibited, unless subscribers’ consent has been obtained in advance.  Unsolicited fax messages to individual subscribers are likewise prohibited.

That is why it is important to know who the “subscriber” is to Jacob’s phone. If it is a limited company or similar legal entity, then it is not a call to an “individual” subscriber. If it is his phone or he is a sole trader or part of a partnership, then it is possible that he is an “individual subscriber” and as such the use of an autodialler to RANDOMLY call numbers for direct marketing would be illegal. Dialling from a preloaded list is OK. So long as the list has been fairly obtained and takes into account NDD Opt-out requests etc. And then there is the grey area of the Political exemptions from the Data Protection Acts.

The DPC has issued guidelines to all political parties before the election. My sense is that these guidelines may have been breached in this case.

During previous election campaigns, the Commissioner received numerous complaints from individuals in receipt of unsolicited SMS (text) messages, emails and phone calls from political parties and candidates for election.  In many cases, the individual had no previous contact with the political party or candidate and was concerned at the manner in which their details were sourced.  Subsequent investigations revealed that contact details were obtained from sources such as sports clubs, friends, colleagues and schools.  Obtaining personal data in such   circumstances would constitute a breach of the Data Protection Acts, as there would be no consent from the individual for their details to be obtained and used in this way.

So.. Fianna Fail need to know where their Data Processors are getting their data from. The evidence says they have Jacob’s phone (and who knows who elses’) but don’t know they have Jacob’s phone. That suggests that the Data Controller is not in Control of the Data. Which is a problem in and of itself.

Fine Gael are not the only Data protection flaunters in this election. Fianna Fail have had their moments too. The Green Party STILL don’t have a Privacy statement. And I’m sure the others have slipped up along the way as well. But that is a discussion for another day.

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