The DOBlog

Author: Daragh

  • Irish Water and PPSN data

    This morning the Irish Times has a story about Irish Water, landlords, tenants, and PPSNs

    The article tells us that:

    Bills are to be issued quarterly, but as Irish Water will have the tenant’s PPS number, the utility firm will be able to pursue the tenant for any arrears and even apply any arrears to new accounts, when the tenant moves to a new address.

    What this tells me as a data geek is:

    1. Irish Water has a purpose for PPSN data that goes beyond the purpose agreed with the DPC (the validation of allowances)
    2. They are using PPSN as a primary key to identify people linked to properties (which goes beyond the “validation of allowances” purpose agreed with the DPC)
    3. Irish Water have some mechanism to identify tenants versus landlords, otherwise they are retaining ALL PPSN details for a period of at least six years. (It may be the PRTB data they have access to under S26 of the Water Services Act 2013).
    4. The retention period for PPSN is likely to be 6 years from the date of the final bill issued, but only where there are arrears on the account. Therefore, retention will be a rolling period for PPSN as bills are issued. It will only crystallise at 6 years once a final bill issues.
    5. The tenant who fills out the Irish Water application will be responsible for any arrears, even if they only wash every second week while their flatmates operate a water park in the kitchen.
    6. Irish Water haven’t modeled scenarios correctly as not every tenant in a rented property will be registered on the Application form… only one. I refer back to point number 5.

    Let’s just remind ourselves of what Irish Water told the Data Protection Commissioner they were going to use PPSN data for. The quote below is from a letter sent by the Acting Data Protection Commissioner to Roisin Shorthall TD that I blogged about last week.

    The collection of the PPSN for use by Irish Water in verifying occupants of a household is provided for in legislation. We are satisfied from this Office’s interactions with Irish Water that it is intended to use the PPSN for the sole purpose of confirming the qualification for a free water allowance of occupants of the household (including children) and in line with conditions set down for its use by the Department of Social Protection. However, we are in agreement that the Data Protection Notice published does not currently give sufficient clarity and detail in this regard and we are corresponding with Irish Water and providing our views on this.

    I’ve highlighted the relevant sentence. And the crucial word. So any use of or retention of PPSN for purposes other than validating allowances is potentially a breach of the Data Protection Acts. Full Stop. End of story. Move along.

    [It also means that they can’t validate the rest of the data – only the entitlement. So they can verify that the PPSN of Joe Blow is valid, and that the PPSN data provided for Joe’s 623 children is valid and that those 623 children exist and are resident in the jurisdiction. No more. So they cannot legally “enrich” their data from the DSP’s data sets (despite what some people are stating might be the case). Of course, this is a perfect reason why the Water Allowance for Children, which is payable only to children in receipt of Child Benefit, would have been better paid as an allowance from the DSP, as I’ve blogged about already.]

    Are Irish Water making this up as they go along ?  If so, this crisis of communication around a critical issue of Regulatory compliance could be a lot worse under the surface. For example, has Irish Water modeled their data and processes to allow for customer life events (births, deaths, marriages, divorces, people moving in, people moving out)? Not doing that will lead to data quality and data protection headaches down the line. If those scenarios are not catered for in their processes, bills will be wrong. Designing for Privacy means considering data and its processing, which means you being to look at how the organisation knows or can know important facts about things it needs to know. Lurching around like a drunken uncle at a country wedding does not suggest good design for processes, data, or privacy.

    At an upcoming conference on the 7th of November I’ll be talking about Data Protection, Data Governance, and Privacy by Design. The other delegates include some of the world’s leading experts on Data Governance, Information Strategy, and Data Quality. It’s a pretty darn good conference.

    Irish Water might want to send some people so they can learn from the other delegates and I about Data Protection, Data Modelling, and Data Governance.

    [Update: This status update has appeared via the @IrishWater twitter account which seems to suggest the Irish Times had it wrong:

    Because Irish Water can’t be wrong can they? Left hand needs to communicate with right hand and then talk to their customers!]

  • Irish Water – A Data Architecture thought noodle [Updated]

    [preamble: This is a thought noodle. It’s not a solution. It just sets out possible options for an alternative approach. I fully expect issues and wrinkles to be pointed out. ]

    There has been a lot of discussion about the legality of Irish Water’s use of PPS Numbers. It is correct to say that Irish Water has a legal basis f or requesting PPS Numbers under the Social Welfare & Pensions Act 2014. The Water Services Act 2013 also gives them the power to request data from the Revenue Commissioners and the Department of Social Protection (amongst others).

    So, there is a legal basis for obtaining data. However, the Data Protection Acts require that the data being processed by a Data Controller be adequate, relevant and not excessive to the purpose for which it is being obtained.  Article 8 of the EU Charter of Human Rights also requires that processing be proportionate, a point that was stressed by the CJEU in the Digital Rights Ireland Data Retention case.

    <update>Also, as Fred Logue points out:

    </update>

    So… is it proportionate for Irish Water to be processing PPSNs, notwithstanding the legal basis that might exist permitting it? When working with clients designing data processes, I try to encourage avoidance of excessive processing of data by looking at whether existing functions can be repurposed to minimise the number of hands data must flow through. Thinking “lean” is important. Looking at this from a Data Architecture perspective, we must first look at the purposes. There are two.

    1.  To verify entitlement to a household water credit
    2. To verify and validate child water allowances.

    Next, we need to see if there are any similar functions currently operating in the State that might provide either a model to replicate or a function that can be extended to deliver these objectives. 

    Household Water Credit

    Prior to 2012, households were entitled to claim a tax credit for domestic waste services from Revenue. Each household applied and the credit was applied as an income tax benefit. PPSN information was not shared with local authorities or private bin collectors to implement the tax credit. Policing the credit was simply a matter of using existing Revenue powers to seek information into Revenue for audit purposes. While the system was retired in 2012, old code doesn’t die, it just gets commented out. Reintroducing this mechanism for the Household Water Credit likely have been simple and cost effective as the basic structures for implementing it had already been developed and worked. They were just mothballed. Therefore: in determining the proportionality of allowing a private company access to 4 million PPS numbers, did anyone examine the feasibility of reusing an existing system that would not require data to be shared outside of an organisation that already processes PPSNs? Did anyone consider reusing/recycling this processing?

    The Children’s Water Allowance

    Irish Water tell us that they need to have PPS numbers of children to confirm their eligibility for a water allowance.  There is an allowance. For children. A children’s allowance if you will. A benefit for children. That must only be given to children who are in receipt of Child Benefit…. So why not just either add the allowance for water to the existing Child Benefit payment, or clone the Child Benefit processing in the DSP to deliver the Child Water Allowance? This would have avoided the need to request PPS numbers of children, a sensitive matter for many. No data would be processed outside the existing state agency that deals with Child Benefit and the PPSN data of children. <update>Another tweeter raised the question of non-resident recipients of Child Benefit.

    This does not invalidate the approach outlined above. It simply adds a business rule to the data queries necessary to run the process. When working with clients on projects this kind of thing crops up a lot.  It’s one of the many reasons why, after half a life time doing this ‘data thing’ I advocate organisations invest in PLANNING and design for data before jumping into building databases.

    Dermot Casey nailed the necessary business rule in “code speak”

    Translating that for humans: “IF a child has a PPSN AND is resident in Ireland THEN assign credit ELSE don’t assign credit”.

    Of course, this assumes that the DSP has a data field that identifies if the country of residence is Ireland or not (and if they don’t then I would have to ask how any statistics about how many non-resident children are in receipt of Child Benefit are calculated).

    </update>

    Value For Money?

    Given the set up costs of Irish Water, one must ask as well whether reusing/recycling or repurposing existing systems and processes to the objective of having credits and allowances might have resulted in a net saving to the exchequer, particularly in difficult economic conditions.

    I cannot answer that and would suggest that is a question the C&AG should consider asking. However, from a Data Protection perspective, it would have resulted in a zero fuss outcome – “State Agencies process data the way they always have to ensure credits and benefits are applied appropriately – SHOCK!!” is not an attention grabbing headline. A private company that is processing PPSN and other personal data but is unable to give clear answers about the nature and scope of that processing IS a headline or dozen.

    The Importance of the Information Asset Life Cycle

    When I teach Data Governance or Information Quality or when I engage on consulting projects, I always introduce the POSMAD lifecycle of information. POSMAD is a standard model for any asset management consisting of six steps.

    • Plan
    • Obtain
    • Store and Share
    • Maintain
    • Apply
    • Dispose

    Part of “Plan” from a Data Protection perspective is asking “Is there a less invasive/less privacy risky way of doing this?”, and from a ‘return on investment’ perspective it requires us to assess if the way we are proposing to do something is the best. Working through this life cycle allows organisations to apply “Privacy by Design” thinking earlier in the lifecycle of the data.

    It appears Irish Water jumped straight to the “Obtain” phase because they had legislation that allowed them to do it, but nobody gave consideration to the PLAN stage. This is a function of effective Data Governance in an organisation and I would hope that the Government learns a valuable lesson from this as they formulate their Data Sharing and Governance Bill over the coming months.

  • Irish Water and the DPC’s letter and what it means

    [This is a repost of a post I wrote o the 24th of September. Some people said they had difficulty accessing it so I am reposting it. I’ve updated it with links to other relevant posts that I’ve made since then. They are included in-line]

    This evening [24th Sept] the Data Protection Commissioner has contacted Irish Water in relation to their processing of personal data. Deputy Roisin Shorthall TD has published a response from the Commissioner’s office on her website to questions she has raised. The response reads as outlined below. I’ve annotated it with an explanation of the key issues raised. Key sentences are highlighted:

    Dear Deputy Shortall,

    I have been asked by the Commissioner Helen Dixon to respond to you on her behalf.

    Thank you for your query in relation to concerns you are hearing about Irish Water’s proposed collection and use of personal data. This Office is concerned to ensure there is clarity on these matters for the 2.2 million prospective customers of Irish Water. Clearly, the obligations under the Data Protection Acts in this regard fall directly on Irish Water as the Data Controller in terms of ensuring they are collecting data in a lawful way and using it for a legitimate stated purpose which they make clear to users of their service. Notwithstanding the obligation on Irish Water, this Office is in on-going contact with them in an effort to ensure they take on board our best-practice advice in this regard.

    [This paragraph confirms that Irish Water is the Data Controller and is subject to the Data Protection Acts.

    One of the fundamental principles of Data Protection under the Acts and the EU Directive is that data should be processed for a specified and lawful purpose. There is a requirement on Data Controllers to be clear with people about what uses their data will be put to. It is Irish Water’s job to make sure that that clarity is there. “

    The DPC is in on-going contact in an effort to ensure they take on board our best-practice advice” basically means that Irish Water has not done things the DPC might have expected and they are engaging with them to try and fix the situation. Under the Data Protection Acts the DPC must always seek an amicable resolution in the first instance. That usually involves a lot of “on-going contact” with organisations that have not quite got what is required of them.

    If the DPC is in “on-going contact” with you to give “best practice advice” you are NOT compliant, you are engaged in an amicable resolution process with the DPC. The only distinction is that the DPC has not yet made a decision that you are not compliant. If an Enforcement Notice issues at all in this instance it will be interesting to see what happens.

    Update: As Irish Water is subject to the Data Protection Acts, the apparent absence of an operational “movers/leavers” policy for people changing address is a problem. I explain why here. The summary being that one of the obligations under the DPA is to keep data accurate and up-to-date, in the context of the purposes for which it is being processed.]

    The collection of the PPSN for use by Irish Water in verifying occupants of a household is provided for in legislation. We are satisfied from this Office’s interactions with Irish Water that it is intended to use the PPSN for the sole purpose of confirming the qualification for a free water allowance of occupants of the household (including children) and in line with conditions set down for its use by the Department of Social Protection. However, we are in agreement that the Data Protection Notice published does not currently give sufficient clarity and detail in this regard and we are corresponding with Irish Water and providing our views on this.

    [This paragraph confirms that there is a statutory basis for Irish Water to ask for PPSNs. It sets out that Irish Water has told the DPC that the SOLE purpose for processing PPSN is to confirm the qualification for free water allowances.

    The bit in bold is interesting. The DPC are “giving their views” on the clarity of the Data Protection notice (which is also referred to as a “fair processing notice” in Data Protection-speak) because they are of the view that the notice as published doesn’t give sufficient clarity. Not having sufficient clarity means that the Data Protection notice fails a basic test: that of being specific as to the purpose or purposes of processing. That is a breach of the Data Protection Acts, but is not, in and of itself an offence under the Acts for a host of technical reasons that hurt my head to explain.

    Again, if the DPC is contacting you to “provide views” on something, you are not compliant. The DPC does not tend to write letters telling you you’re brilliant and should have a gold star. Correspondence providing views is part of the investigation/amicable resolution process that the DPC is required under the Acts to follow. If an organisation is compliant the DPC wastes neither stamp, nor electron, nor oxygen molecule engaging in “correspondence” – the exception being where an organisation is audited or investigated and good practices are found to be in place. In that case you might get a mention in the Annual Report.

    I suspect Irish Water may get a mention but not for the right reasons.

    Also, the DPC does not specifically mention the question of the retention period or purposes for retention of PPSNs. I would assume that that topic would form part of the discussion as, if there is no purpose beyond the initial validation of allowances there is no lawful purpose for Irish Water to retain PPSNs.

    Again, the issue of clarity was the very topic I picked up on when I wrote my first blog post about the Data Protection Notice 18 days ago. It’s reassuring to see that the Data Protection Commissioner shares the concerns I raised.

    update: Today, on foot of an Irish Times article, I wrote this post which points out that Irish Water are citing a purpose for retaining PPSNs that give a retention period of at least 6 years. And it is not a purpose that is related to the validation of entitlements to allowances.]

    The issue of disclosure of personal data to third parties inevitably arises in the case of Irish Water where they are already using contractors to fit water metres and for other outsourced functions. This Office has asked Irish Water to be transparent in terms of making clear the categories of the data processors to whom they are providing the data and for what purpose and to provide contact details in the event that a customer wishes to raise a data protection concern. We are currently following up with Irish Water on this matter.

    [Again, the question of clarity and transparency raises its head here. The Office of the Data Protection Commissioner correctly recognises that there are times when the use of third parties to do things for a company. Contractors are the third party in question. Third parties, doing work for Irish Water, under contract. These are known as Data Processors.

    The DPC here is requiring Irish Water to be transparent about the CATEGORIES of data processor they will disclose data to, for what purpose, and to give contact details if there is a Data Protection concern. Normally, the Data Controller is the entity concerns are raised to and they use their contract (for the love of spuds let Irish Water have proper data processor agreements in place) to address the issue with the Data Processor via a right of audit or inspection (as is actually required under the Data Protection Acts). If the DPC is now requiring contact details to be provided for Data Processors as well, I can’t see how that fits with only identifying categories, but would be happy to help figure it out. 

    Interestingly, the DPC seems to be going beyond what I’d included in my mockup “alternative universe” version of the Data Protection Notice. I’ll be taking note of that and advising clients accordingly.

    Also, the requirement to specify “categories” of recipients of data differs slightly but significantly from their Direct Marketing guidance in relation to providing marketing lists to or conducting marketing on behalf of third parties, which currently requires the SPECIFIC organisations data will be shared with to be disclosed at the time of data capture. If that requirement was intended to be specific categories as well, it makes a lot more sense and the current wording needs to be revisited to correct what appears might be a transcription error.

    Again, the DPC is “following up with Irish Water on this matter”. An organisation that is compliant with the requirements of the Acts does not require the DPC to “follow up”, and yet again the DPC is following up on issues of transparency, clarity, communication, and (in essence) customer focus.All of which were issues that I raised nearly 3 weeks ago.]

    Equally, Irish Water as part of their business model may use outsourced service providers outside of the EEA. We are not aware that this is currently part of their actual business plan but it would appear to be the case that they wish to ensure this eventuality is covered in their Data Protection Notice. Again, we have asked them to be more explicitly clear in the notice in relation to how they would protect the data and to identify where possible what type of data and for what purpose a transfer would occur.

    [This paragraph means that the DPC agrees that the use of outsourced data processors outside the EEA is something Irish Water MAY do in the future. This is very common. High street supermarkets use software development teams in India, telephone companies use database administrators in other countries, many SMEs use tools and technologies that have their data sitting outside the EEA. It’s a common thing. Irish Water include it in their Data Protection notice as a future proofing element.

    I note with interest that the DPC is asking for Irish Water to more explicitly state what type of data and for what purpose the data would be transferred outside the EEA. This is essentially the same question I asked in my original blog post when I wrote;

    “Question: Is Irish Water planning to outsource call centre operations to India? Also: What countries are they intending to transfer data to, and under what controls?”

    The DPC’s request for Irish Water to provide more information about how they would protect the data is essentially the same as my query about “under what controls”.

    Again, if the DPC is asking you to be more explicit in how you are communicating things, then that means you are not compliant and are in the “amicable resolution zone” where the DPC talks gently to you to encourage more compliant behaviours. That’s a good thing if it is happening during planning and design of a system or process, but is a horrendously bad thing to have happen when you are up and running with your processing. At any point the gentle communication could develop teeth and you might be instructed to do something by way of an enforcement notice. The DPC is empowered to block any data transfer outside the EEA using a Prohibition Order under Section 11 of the Data Protection Acts.]

    I hope this information is of use to you. We do understand the urgency of the matter in light of the obligation on customers to return application forms to Irish Water and we are communicating our views in relation to this urgency to Irish Water.

    Yours sincerely, John O’Dwyer Deputy Data Protection Commissioner

    The DPC does not address in this communication the question of whether Irish Water’s approach to marketing consents is valid (I believe it is not). I’d expect that correspondence is on-going in relation to that aspect at the moment as well. And while Irish Water may wish to insist they are compliant in that regard, I beg to differ.

    I suspect this particular well has not yet run dry.

  • Irish Water, transfer of data, and WTF

    TJ McIntyre was on Morning Ireland this morning talking about Irish Water and their use of PPSN. The Irish Water representative, Elizabeth Arnett was on a few minutes later.

    In the course of the Irish Water commentary on their use of data, the question was asked about what would happen to PPSN data if Irish Water was ever sold. The assurance was given that Irish Water cannot be sold under legislation and that the reference to any such sale or transfer in the data protection notice was just the use of “standard clauses”.

    And therein lies the nub of (part) of the problem – a Data Protection Notice is supposed to inform people about what YOUR organisation is going to do with the data provided to YOU. Cutting and pasting might give you a template, but you need to invest a little time and effort working through the Information Asset Life Cycle (Plan, Obtain, Store/Share, Maintain, Apply, Dispose) to ask some key questions so you can build a truly accurate and reflective Data Protection statement that is, for want of a better term, TRUE. Plagiarizing some other organisation’s policies is not a recommended practice.

    (As an aside, in the day job at Castlebridge Associates I’m fortunate to have hired someone whose previous career involved them checking for academic plagarism, so when we audit data protection policies we can pretty quickly find out where the cut and paste bits were sourced from).

    So, today we learned that Irish Water can’t be sold. Which means that all the guff in the Data Protection notice about the transfer of data on the sale of the business or the purchase of another business is utter claptrap.

    Unless of course the situation is that Irish Water can’t be sold NOW. I started my career in Data Governance in a semi-state company that we were assured couldn’t be sold and wouldn’t be sold. That company is now heading to its second IPO, having been flipped more times than a pancake on Shrove Tuesday. So perhaps I’m a little cynical about the management of State utility companies.

    If Irish Water can’t be sold, that’s great. The Government and Irish Water need to make that explicitly clear and the Data Protection notice should be amended to have a positive declaration that Irish Water will not be sold. However, if there is a possibility that it might be sold then that should be clarified (even if a legislative change would be required for it to be sold) and the Data Protection notice should clarify what data would be transferred (for example, would PPS numbers be transferred, and if so why).

    As I said on WLRFM earlier in the week – if a glass of water was put in front of me that was as murky and opaque as the current Data Protection notice from Irish Water I would refuse to drink it.

  • Irish Water Data Protection Notice – An Alternative Version

    So, I appear to have caused some consternation with my post over the weekend. To help clarify things, I’ve put together an alternative reality version of the Irish Water Data Protection Notice based on information that has been included in recent media coverage and which is fragmented across a number of documents produced by Irish Water. This is effectively free consultancy for Irish Water and is an incomplete first pass that is intended to illustrate the benefits of layout and structure of Data Protection Notices to improve clarity and communication of purposes for processing of data.

    However, the content of this post is (c) 2014 Daragh O Brien and cannot be reused for commercial purposes other than news reporting without prior written permission.

    +++++++

    Who we are

    Irish Water is the new national water utility, which is responsible for providing and managing public water services throughout Ireland. Irish Water is a State-owned company, established under the Water Services Acts 2007–2013.

    Irish Water replaces the previous system of 31 Local Authority Water Services departments.

    Registered Office

    Our registered office is:

     Colvill House,
    24-26 Talbot Street,
    Dublin 1.

    Address for Data Protection Queries

    Data Protection queries, such as Subject Access requests or requests for data correction, should be sent to:

    Data Protection Officer
    P.O. Box 860,
    South City Delivery Office,
    Cork City,
    Cork.

    You can email queries to us care of dataprotection[AT]water[dot]ie  ==>(This email address doesn’t currently exist)

    What Data are we processing?

    We process a range of data about customers of public water services (Customers) and other users of private water services (Non-Customers).

    Data about your property and water services

    If your property is connected either a Public water main supply or Public Sewer you are a customer of Irish Water. We will ask you to confirm what kind of water or sewage system you are connected to in order to identify if you are a customer of Irish Water or not.

    If you are a customer, we will confirm if you are receiving a bill for a water service from your Local Authority and if the property is used as a private residence or not, and if you are a property owner or a tenant.

    We will also seek information about the number of people residing in your property.

    Personal Data

    The personal data we process about you includes:

    • Names of account holders,
    • PPSN numbers for account holders and any resident children (17 years or under)
    • Customer property address
    • Customer preferred billing address (if different from property address)
    • Home land line telephone number
    • Mobile telephone number
    • email address
    • Billing language preference

    We will also record calls between Irish Water customer service staff and customers for purposes including quality assurance and training.

    Sensitive Personal Data

    Irish Water processes sensitive personal data about customers who indicate they wish to avail of special and/or priority services.

    This information may include data relating to physical or mental health. In these circumstances we may also process personal data relating to a nominated carer or other person who will deal with correspondence on your behalf.

    Personal Financial Data

    We will process bank account details for the purposes of establishing recurring direct debits for the payment of Water Services bills.

    Other than data you provide to us, what other data do we process about you?

    Under Section 26 of the Water Services Act 2013, Irish Water is empowered to seek data from a number of different bodies. As of September 2014, these bodies include:

    • The Revenue Commissioners
    • The Residential Property Tenancies Board
    • The Property Services Regulatory Authority
    • Local Authorities
    • The Local Government Management Agency
    • Electricity Service providers
    • The Department of Social Protection
    • Gas service providers

    Other bodies or data providers may be specified by the Minister after consultation with the Data Protection Commissioner.

    Irish Water may make use of data from 3rd party data service providers for some of the purposes set out below.

    Why are we processing it?

    Irish Water has a number of specific purposes for processing your personal and sensitive personal data, and for seeking data about you from other sources.

    Confirming if you are a Customer of Irish Water

    We will process information about your household, its water supply and sewage services, and other related household data to confirm if you are a customer of Irish Water.

    Confirming eligibility for allowances

    • To apply for the Household Water Services Allowance we process your PPS Number to verify your identity and your entitlement.
    • To apply for the Children’s Water Services Allowance, we process the PPS Numbers of resident children (under the age of 17) to verify the age and identity of the children.

    This is a control check process that ensures correct and appropriate allowances are claimed to help ensure accurate application of credits to customer water service bills. For more information on our processing of PPSN please see the relevant section below.

    [note: This is the purpose for which PPS Numbers is being obtained. It is good to note that Irish Water are not asking for PPSN for non customers, however that assumes that people won’t fill it in in error. I assume Irish Water have a process to purge PPSN details they don’t require?]

    To generate and distribute customer water service bills and collect monies owed

    We will use the name of the registered account holder and the property address, or the alternative billing address, for the purposes of sending Water Service bills to customers.

    This data will also be used to support our credit control processes. In the event of non-payment of bills, your data may be passed to debt collection agencies for the purposes of debt recovery, up to and including legal proceedings for non-payment.

    Data about language preferences will be used to ensure you receive a bill in the language you select. Sensitive personal data will be processed to allow us to issue braille bills or to arrange for “talking bill” services to be provided to visually impaired customers.

    Where a customer availing of special services or priority services has indicated that a carer or other person should receive correspondence on their behalf we will process that person’s data as required.

    For Fraud Detection and Prevention and Credit Scoring

    Irish Water will use data obtained from various bodies as outlined above to allow us to operate prudent fraud detection and prevention  controls.

    We may also use data from data services providers for the purposes of customer credit scoring as part of our prudent management of risk.

    Marketing

    Subject to specific consents, Irish Water may use contact data provided by customers for the purposes of marketing products and services to customers related to their Water Service. This will be subject to specific consents which will be obtained.

    For non-customers, Irish Water may use contact data provided to send information about water service availability and to market relevant products and services. Again, this will be subject to specific consents.

    Call Recordings

    Calls between Irish Water Customer Service staff and customers will be recorded for quality assurance and training purposes, and to confirm details of the conversation if required.

    Maintenance and Construction Activity

    Irish Water may process your personal data for the purposes of conducting visits to premises, arranging for required works to be carried out at premises, and other construction and maintenance activities necessary to ensure the delivery of a public water service.

    Health and Safety and Risk Assessment

    Irish Water may process your personal and sensitive personal data for the purposes of ensuring compliance with Health and Safety obligations, ensuring appropriate water supplies for people with certain medical conditions, and the conducting of risk assessments associated with the management of the public water supply.

    Your PPSN – what we will do with it

    Irish Water is entitled to request your PPS Number and the PPS Numbers of  under Schedule 5 of the Social Welfare Consolidation Act 2005. PPS Numbers provided will be stored securely by Irish Water.

    Your PPS Number will only be used to determine if you are entitled to water services allowances. PPS Numbers will be verified with the Department of Social Protection and a simple confirmation of entitlements will be received from them. No other data will be exchanged or processed for this purpose.

    PPS Numbers will be retained by Irish Water for [NEEDS A RETENTION PERIOD AND PURPOSE POST VALIDATION OF DATA AT APPLICATION]

    Only customers of Irish Water are required to provide us with their PPSN. Users of private water services should not submit this data to us as we do not have a purpose for processing it.

    [note: I’ve flagged this already, but an exception handling process to ensure ppsn is not processed for non-customers by mistake would be a good control here.]

    Sharing Data/Disclosure of Data

    Irish Water may share data with companies who provide services to Irish Water for the purpose of carrying out our business functions as outlined above. Companies providing data processing services to Irish Water do so under a formal contract and are required to process data only for the purposes specified by Irish Water and must ensure they have appropriate organisational and technical measures to prevent unauthorised access to, alteration of, or disclosure of your data.

    Irish Water may disclose or transfer data to a third party in the event of the business being purchased in part or entirely by that third party.

    Irish Water may also disclose data if required to do so  in order to comply with a legal obligation, or to protect the rights, property, or safety of Irish Water, its customers, or other relevant third parties, or if required to do so on foot of a search warrant, court order, or where required under a Statutory duty.

    Irish Water may share data with third parties for the purposes of fraud detection and prevention and as part of credit risk reduction.

    Transfer of Data Outside the European Economic Area

    Personal Data held by Irish Water may be transferred to or accessed from countries outside the European Economic Area. The reasons for data to be transferred may include, but are not limited to:

    • Outsource Customer Support services
    • IT Technical support services
    • Software development and support
    • Data hosting and back up services
    • Fraud Detection, Prevention, and Credit risk management

    Transfers to countries outside the European Economic Area will be carried out subject to specific contract terms and other relevant controls, such as transfer to appropriate countries on the European Commission Safe Countries List or alternative  appropriate mechanism under the Data Protection Acts.

    [note: The original Irish Water Data Protection notice forces consent to this EEA transfer provision. The Data Protection Commissioner is clear that relying on consent in this case requires the consent to be unambiguous and freely given. In the original form, the consent was not unambiguous as it didn’t specify any purpose or what data. Also, given that Irish Water is a monopoly and we have no option but to fill out the registration form, the consent being sought was not freely given].

    Data Retention

    Irish Water has a defined Data Retention Policy.

    [note: I assume they have a defined retention policy. What I would suggest here is that for each key purpose a time period be established]

     

    Exercising your Data Protection Rights

    Under the Data Protection Acts you have the right to:

    1. Request a copy of personal data held about you by Irish Water (Subject Access Request)
    2. Request Irish Water correct or delete incorrect or inaccurate data about you
    3. Request Irish Water cease processing your data for specific purposes, such as Direct Marketing

    Subject Access Requests

    To request a copy of your data you should send a request in writing to:

    Data Protection Officer
    PO Box 860
    South Delivery Office
    Cork City
    Cork

    Irish Water may request additional proof of identity from applicants for the purposes of verification to ensure data is disclosed only to the relevant individual.

    Irish Water may charge a fee of up to €6.35 for Subject Access requests.

    Change Direct Marketing Preferences

    To change your Direct Marketing preferences you should send your request to:

    FREEPOST,
    Irish Water,
    Data Protection Opt-out,
    PO Box 860,
    South City Delivery Office,
    Cork City

    Alternatively you can phone Irish Water on 1890 278 278 to update your marketing communications preferences.

    Other Requests

    Other requests should be sent to:

    Data Protection Officer
    PO Box 860
    South Delivery Office
    Cork City
    Cork

    Marketing Consents & Permissions

    • email:             I would like to receive marketing communications by email (YES/NO) [this is an opt-in consent]
    • SMS:               I would like to receive marketing communications by Text message (YES/NO) [this is an opt-in consent]
    • Mobile Call: I would like to receive marketing calls on my mobile phone (YES/NO) [needs to default to NO as this is an opt-in consent]
    • Landline:      I would like to receive marketing calls on my land line phone (YES/NO) [this can be an opt-opt consent]
    • Postal Mail: I would like to receive marketing material by post (YES/NO) [this can be an opt-out consent]

    [note: The Article 29 Working group and the DPC have indicated that preticked boxes on web forms are not valid consent as the consent is not freely given. Including them here is possibly not ideal given that the form isn’t online. 

    The application form contains only one single Opt-out tick box for both electronic and postal marketing. This does not meet the requirements of SI336. As I haven’t received my pack yet I can’t comment on the on-line application process and whether it has better compliance with the ePrivacy regulations requirements (SI336)

    Also it is important to note that the application form for Irish Water does not capture any electronic contact data for non-customers, therefore non-customers will be marketable to only via postal mail at this point on an opt-out basis]

  • Irish Water Data Protection Notice: A review…

    circle of trustIrish Water have published their Data Protection notice on their website. This document is a key element in any organisation’s data protection compliance. It is the way in which the organisation demonstrates “fair obtaining” of personal data and sets out the specific lawful purposes for which they are processing data.  It is essential that these documents are as clear as possible, particularly for audiences who may have literacy difficulties. This is why I strongly recommend to clients that they do not let their legal team write these. Ultimately, data protection compliance is about ensuring you don’t have a surprised customer. It’s also about ensuring you establish and maintain a “Circle of Trust” about why you are asking for data and how you will process it.
    In this post I’ll go through the Irish Water Data Protection notice and parse each paragraph and explain what it means and, where necessary, point you to the relevant legal justification for the processing that is taking place.

    Irish Water Data Protection Notice

    (sourced from https://www.water.ie/data-protection-notice/ 05/09/2014)

    In order for Irish Water to provide the Customer with Water Services, it is necessary for Irish Water to collect and use data, including personal public service numbers, relating to the Customer. This data is used mainly to manage and administer the Customer account and for operational reasons, including for example, visits to the Premises, works required at the Premises and construction and maintenance activities. In addition, data relating to the Customer may be used for health and safety, administration, risk assessment, marketing and credit checking purposes. Irish Water may use the data relating to the Customer to carry out credit checks and for fraud prevention with licensed agencies including the Department of Social Protection and fraud prevention agencies. This data may be recorded by these organisations to prevent fraud, help make credit decisions about the Customer and for debt collection purposes. Irish Water may keep the Customer’s data for a reasonable period after the Customer ceases to be supplied with Water Services but will not keep it for any longer than is necessary and/or as required by law.

    [comment: This paragraph basically says they are going to process data about you, including your PPSN.  The problem arises here with their description of the purposes for which data is to be processed. It appears that they will be using your PPS number for things such as site visits and construction and maintenance activities. That strikes me as being irrelevant data and excessive for the purpose for which it is being put to use.

    Data relating to “health and safety issues” might relate to a record of illnesses or medical conditions which might affect your need for uninterrupted water supply – the ESB has similar data processing for elderly customers or customers with medical equipment in the premises so they don’t cut people off from life as a consequence of cutting them off from the ‘leccy. This would probably be covered under the provision in the Data Protection Acts that allows processing where it is necessary to prevent injury or damage to the health of the data subject. A key word there is “necessary”. 

    Administration, risk assessment, marketing, and credit checking would be covered under the heading of processing that is in the legitimate interests of the Data Controller. Nothing too bad there. We need organisations to be able to move paper about people to run the show.  

    The credit checking purpose raises its head again later in this paragraph. Credit checking and fraud prevention are legitimate purposes, checking with the DSP is likely to be related to validation and verification of PPSNs and validation of any claim of receipt of a relevant Social Welfare payment. But this is unclear. The question of sharing with “fraud prevention agencies” is one that I would watch closely to be honest: does this mean sharing data with private investigators/tracing agents? If so, what controls will be applied to this? I would hope that Irish Water have learned the lessons of various Credit Unions regarding the oversight and control of such agencies?

    “This data may be recorded by these agencies” is a worrying sequence of words. This suggests a transfer of data that will be retained by these agencies. There is nothing stated here regarding the retention period that will apply to this data. One possible interpretation is that all data of all customers will be handed to unknown tracing agents to hold on to for a vague “fraud prevention” objective that may not be related to Irish Water itself but may be utilized by other entities. I hope that is not the case. Also, why would these agencies need to retain data for “debt collection purposes” if they had been given it for fraud and credit checking purposes at customer sign up? That smells decidedly disproportionate and, frankly, non-compliant. Unless a person has failed to pay their bill there is no reason for their data to be retained by anyone for “debt collection” purposes. If you’ve passed the credit check and you account is in good order, there is zero lawful purpose for any 3rd party to have access to data about you and your family.  I’m hoping against hope that I’m misreading this, but I doubt it (I do this for a living).

    The retention period that is referenced in the last sentence is “a reasonable period”. That’s a similar duration as the length of string I have in my pocket. Curtailing it with reference to “as necessary and/or as required by law” is lawyer weasel words. This sentence is largely meaningless. If you are a ceased customer who has no outstanding debt with the company then there is no legal time period applicable and Irish Water would need to set a policy – many of my clients have similar issues and we get them to PICK A NUMBER and JUSTIFY IT WITH A REASON. Regarding ceased customers, the relevant period is the statute of limitations on a debt. “What about if people sue us or we are suing people?” organisations ask me: Have a ‘legal hold’ provision I reply. “Data may be retained on a case by case basis where necessary to seek legal advice or exercise or defend legal rights” is one useful form of words.]

    Irish Water may share the Customer’s data with agents or third parties who act on behalf of Irish Water in connection with the activities referred to above. Such agents or third parties are only permitted to use the Customer’s data as instructed by Irish Water. They are also required to keep the Customer’s data safe and secure. The data that we collect from you may be transferred to, and stored at, a destination outside the European Economic Area (“EEA”). In the event that the data is stored outside of the EEA, Irish Water shall procure that all relevant laws are complied with to secure the data. It may also be processed by staff operating outside the EEA who works for us or for one of our suppliers. Such staff maybe engaged in, among other things, the processing of your request for information and the provision of support services. By submitting data to Irish Water, the Customer agrees to this transfer, storing or processing. Irish Water will take all steps reasonably necessary to ensure that your data is treated securely and in accordance with this Clause 19.

    [comment:

    This clause should have a “data sharing” heading. It repeats a bit of what was in the previous section. “Such agents or third parties are only permitted to use the Customer’s data as instructed by Irish Water” is a reasonable sentence. Of course, it must be assumed that those agents and third parties have contracts with Irish Water that specify the purposes and controls for processing. 

    This section also tells us that data “may be transferred to, and stored at, a destination outside the European Economic Area”. This suggests use of outsourced data centres or data processors that are outside the EEA. There is nothing wrong with this in and of itself, but the problem comes with the next statement: “Irish Water shall procure that all relevant laws are complied with to secure the data”. This is problematic, apart from the awkward use of the word “procure”. Cross border data transfer outside the EEA requires either that the destination country is either a Safe Country , be covered by Safe Harbor (i.e. the US), or be undertaken using model contracts.

    Why is our data being transferred? Staff outside the EEA working for Irish Water or a supplier will be processing data if we request information or to provide support services. This sounds like either IT support services being provided outside of the EEA or direct customer support call-centre type services being provided outside of the EEA. Question: Is Irish Water planning to outsource call centre operations to India? Also: What countries are they intending to transfer data to, and under what controls?

    Apparently, by submitting data to Irish Water we will have agreed to the transfer. This is probably not valid consent under EU Data Protection law. While it is specific and informed, it is not freely given. Individuals have to provide data to Irish Water. While I am heartened to see that Irish Water will take all steps reasonably necessary to ensure data is treated securely, I’m bloody confused where “Clause 19” comes from (I suspect this Data Protection notice is an extract from a longer T&Cs document). Unfortunately, Irish Water are not required to take all “reasonably necessary steps”. They  are required to ensure appropriate organisational and technical controls.

    And as for processing “in accordance with this Clause 19”? Well, without knowing what that Clause 19 actually is (it might be this paragraph *shudder* or it could be something else) I can’t add anything about the impact or meaning of that sentence.]

    Irish Water may disclose the Customer’s data to third parties in the event that it sells or buys any business or assets, in which case it may disclose Customer data to the prospective seller or buyer or such business or assets; if Irish Water or substantially all of its assets are acquired by a third party, in which case Customer data held by it about its Customer will be one of the transferred assets. Irish Water may also disclose Customer data if it is under a duty to disclose or share Customer data in order to comply with any legal obligation, or in order to protect the rights, property, or safety of Irish Water, its customers or others. This includes exchanging information with other companies and organisations for the purposes of fraud protection and credit risk reduction. Irish Water will also disclose Customer data if it believes in good faith that it is required to disclose it in order to comply with any applicable law, a summons, a search warrant, a court or regulatory order, or other valid legal process.

    [comment: 

    The inclusion of a disclosure purpose covering sale or transfer of assets is normal and common sense for any business. The biggest asset in most businesses now is its customer data. Disclosure of data when buying an asset is a question mark purpose, but one scenario might be due diligence when buying another water services business serving the Irish market to validate the size of the additional customer base being acquired. I’d question the legitimacy of disclosing data when buying a non-water sector business however. 

    This clause also says that Irish Water will disclose data if required to do so under any legal obligation or to protect rights, property, or safety of Irish Water, its customers, or others. This is allowable under the Data Protection Acts, but should not be read as a blanket provision allowing any kind of disclosure. Appropriate governance controls would need to be in place to ensure that the “legal obligation” is valid and to ensure that the decision about protecting rights, property, and safety is taken under appropriate guidelines and controls.  Of course, we can’t ignore the last sentence here which basically restates in a different way the kinds of legal obligation under which data might be disclosed. The “believes in good faith” clause suggests to me that IW will not contest any order requiring disclosure of data. My reading: If you are drinking tea while engaged in illegal downloading, IW will tell IRMO if asked.

    This paragraph reiterates the exchange of and disclosure of data to third parties for fraud prevention and credit control. I’ve already raised an eyebrow about that earlier.]

    From time to time the Customer may speak to employees of Irish Water (or agents acting on its behalf) by telephone. To ensure that Irish Water provides a quality service, the telephone conversations may be recorded. Irish Water will treat the recorded information as confidential and will only use it for staff training/quality control purposes, confirming details of the conversations with Irish Water or any other purposes mentioned in this Clause 19.

    [comment: 

    This actually a reasonably good provision, at least in part. It provides for the recording of calls with their employees or sub-contractors (i.e. customer service staff in call centres – see my question re: where those call centres might be in the future earlier).

    The problems with this clause are that it starts with specific statements of purpose (“staff training/quality control”) and then degenerates quickly into catch-all vagueness (“or any other purposes mentioned in this Clause 19”). Firstly: Clause 19 is not numbered or identified in this document. Secondly, I’m a Data Protection professional and I can’t say that, even after a number of readings, I could list what specific purposes are mentioned in this document. There are a lot of “reasonable”, “as necessary”, and “because we’re worth it” type phrases. I can’t scan quickly and directly to a single section that says: “These are the purposes for which we are processing information”.]

    The Customer has a right to ask for a copy of the Customer’s data (Irish Water is entitled to charge a nominal administration fee for this) which is held by Irish Water about the Customer. If the Customer wishes to avail of this right, a request must be submitted in writing to: Irish Water, Data Protection Officer, PO Box 860, South City Delivery Office, Cork City. In order to protect the Customer’s privacy, the Customer may also be asked to provide suitable proof of identification. If any of the Customer’s details are incorrect the Customer is entitled to notify Irish Water to amend such details. Where the Customer has any queries in respect of Customer data it should contact Irish Water using the details provided in Clause 20.2.

    [comment:

    This paragraph tells us we have a right to ask for a copy of our data and we have to submit the request in writing. Correct thus far, this is as required under Section 4 DPA). They say they are entitle to charge an administration fee. This is correct. It’s €6.35 maximum. They don’t tell us how to pay that (postal orders, 10 €0.65 stamps, 635 1-cent coins…). They provide a postal address to send our requests to. It’s worth bearing  in mind that the Data Protection Acts only require that the request is in writing and organisations are not actually allowed to prescribe a standard form or mechanism for sending in Subject Access Requests. Personally, I’d have used an email address for this in addition to the postal address to ensure capture of SARs early in the process. I also hope their processes for handling requests that come in are better defined and resourced than this classic example.

    That Irish Water are telling us they may ask for proof of identification for a Section 4 request is not a bad thing. It is good practice to verify the identity of a requester and is a basic organisational control practice to prevent unauthorised disclosure. Of course, once identification information is provided (e.g. passport copy) and the identification process has been met, the data should not be retained. The DPC looked at this in Case Study 16 of this year’s Annual Report.

    This paragraph also requires us to address any queries in respect of data to a different address. We’re told the contact details are in Clause 20.2. Out of context, that is utterly meaningless – they might as well have asked us to send our requests attached to an Owl care of Hogwarts. It is important to note that queries in respect of customer data are most likely Section 3 requests – requests to confirm if data is being processed, and why, or requests to have data rectified or erased under Section 6 of the DPA. The use of two different addresses for Data Protection related processes strikes me as potentially inefficient and an inevitable cause for confusion. I always recommend to clients that they have a single “Data Protection request” funnel and have well defined back-office processes to sort the requests and process them effectively and efficiently.

    If the Customer signs up for any of the Irish Water online services and Irish Water communicate with the Customer by email, the Customer is solely responsible for the security and integrity of the Customer’s own email account. The Customer accepts that electronic mail passing over the Internet may not be free from interference by third parties. Consequently, while Irish Water will take all reasonable security measures, Irish Water cannot guarantee the privacy or confidentiality of information relating to the Customer when passing over the Internet. Unfortunately, the transmission of information via the internet is not completely secure. Although Irish Water will do its best to protect Customer data, it cannot guarantee the security of Customer data transmitted via the internet; any transmission is entirely at the Customer’s own risk.

    [comment: Summary of this is that Irish Water accept no responsiblity for the security of email communications. This is true. They can’t be responsible for external malicious attacks on your email account. This is a limitation of liability clause. It is not unreasonable. Of course, IW could give the option of using encrypted email communication…

    Marketing [note: this is where some fun starts]

    Irish Water and/or authorised agents acting on behalf of Irish Water, may wish to contact the Customer by text message, email, post, landline or in person about water related with products or services which may be of interest to the Customer (“Marketing Purpose”).

    [Comment: 

    This paragraph does not meet the requirements of SI336.

    1. Marketing by SMS requires opt-in consent under Section 13(1) of SI336. Given there is no alternative water service provider, any implied consent that might be argued would likely be invalid on grounds of it not being freely given. This basically amounts to a pre-ticked box on a web-form, which the Article 29 Working Party has already said doesn’t meet the requirement for informed opt-in consent.
    2. The same goes for marketing by email.. (SI336 lumps email and SMS messages in under the same term – electronic message).
    3. Post is OK for an opt-out mechanism under SI336
    4. Landline calls are also OK for an opt-out mechanism under SI336 (Section 13(5))

    The “in person” provision is door to door selling. 

    The catch all “related with products or services which may be of interest to the Customer” clause here is very wide. The service being offered does not have to be related to your water service – This is sufficiently broad that Irish Water could call you to sell Andalusian Time Share units if they so desired.

    I note that their consent landgrab does not extend to mobile phones. If I was mischievious, I’d suggest that people enter their mobile phone number as a contact number as SI336 requires prior, explicit, opt-in consent for calls to mobile numbers (SI336, Section 6). 

    If the Customer does not wish to be contacted for Marketing Purposes as set out above, the Customer may exercise a right of opt-out by either writing to Irish Water at FREEPOST, Irish Water, Data Protection Opt-out, PO Box 860, South City Delivery Office, Cork City or by calling Irish Water on 1890 278 278.

    [comment: You can send your opt-out requests by a freepost letter or by ringing their call centre. Another address, another set of processes. It is clear that there is a strong presumption that opt-out is a sufficient mechanism for their marketing. This is incorrect.]

    Conclusion

    There are some good things about this Data Protection notice. However, they are outweighed by:

    1. Poor structure and layout that makes it very difficult to find relevant information and understand what is being done with data
    2. Some extremely vague and non-specific provisions, as well as some “kitchen sink” “just-in-casery” in terms of what is being addressed
    3. Some simply unsupportable approaches to obtaining consent
    4. An appearance of a fragmented and not properly thought through approach to governance of Data and management of Data Protection obligations.

    The upshot:

    • Tinfoil hat brigade will have wriggle room to misunderstand potentially valid and allowable processing purposes, which will lead to more nonsense and noise.
    • The rest of us will find our data being processed in a range of vague and unspecified ways to which we will be told “you consented”, which we actually didn’t as consent needs to be freely given and meaningful and it is difficult to see how one can consent to take -it-or -leave-it provisions in the terms and conditions of a monopoly organisation.
    • Irish Water will wind up dealing with Data Protection complaints, some groundless but many with a strong basis.
    • Irish Water will engage in activities that will actually breach Data Protection rules when they engage in marketing, and will attempt to argue that customers consented. This will result in investigations by the DPC, and avoidable legal costs in defending prosecutions.

    My rating: 5/10 – close, but no cigar.

  • Roll Up, Roll Up – see the amazing psychic dog! (minor update)

    Roll up Roll Up, meet the new DPC!
    Roll up Roll Up, meet the new DPC! (says Irish Times)

    Every so often I read things in the newspaper that make me go “Yay!”. More frequently I read things that make me go “Boo!”. Today, as with other days, I read something that made me go “WHAT THE F….?!?!”.

    Over the past few weeks the Irish Times has done a bang up job breaking some excellent stories about Data Protection issues in Ireland. Karlin Lillington, Elaine Edwards, and others have sought to “Tell the Story of Why” and push past the usual soundbites and bullshit gloss that usually passes for data-related journalism in Ireland.

    One great example of this was the work done on a story about how the Dept of Arts Heritage and the Gaeltacht had erred in exposing data on living people (whose data privacy rights are protected under the Data Protection Acts and the Treaty for the Formation of the European Union, as well as the Irish Constitution – and if you want a potted guide to all of that Gerard Hogan gives a great summary here) on the IrishGenealogy.ie website. This was despite having had consultation with the Office of the Data Protection Commissioner and having had guidance on what was and was not acceptable from a Data Protection perspective.

    The various pieces written by Elaine Edwards were detailed, explained the core of the issues well, and generally added to the quality of discourse.

    On the 23rd of July, in their Online edition, the Irish Times ran this piece of utter nonsense dressed up as journalism. It’s such a poorly researched and written piece that I can understand why the author felt it best to leave their name off the byline [update- unfair to author, it was a leader piece, but if so my comments below are even more relevant – /update].

    It is true that the DPC raised issue regarding a property price register. The issue was that the sharing of data between different entities that would be required to create such a register, while of interest to the public, lacked a legislative basis and therefore risked breaching the Data Protection Acts. Legislation was passed two years ago that provided the “air cover” for the sharing of data to build a property register and lo and behold there is a property price register in place now, linked to the LPT process.

    Comparisons between Irish law and UK law are often as valid as comparing an apple and orange, and complaining about the bitterness of the orange skin as you try to bite into it, on the basis that they are both fruit.

    But the doozy in this article for me is the challenge to the DPC as to why they didn’t spot that the Dept of Arts Heritage and the Gaeltacht were in breach of the Data Protection Acts for a year. The anonymous author of this article asserts that the DPC’s job is to ensure compliance with the Data Protection Acts.

    Actually no. That is not their job. To make the Regulator responsible for ensuring compliance breaches a number of concepts in Governance, such as segregation of duties.

    Their job is to enforce the Act, to provide advice on how to not be non-compliant (which they did in this case), and investigate and prosecute offences under the legislation (albeit with a role in relation to education and awareness building as well).

    The responsibility for ensuring compliance rests with the Data Controller doing the processing, in this case the Dept of Arts, Heritage and the Gaeltacht, who were non-compliant because they did the very thing they were told not to do by the DPC. Responsibility for ensuring compliance rests with the IT project team who developed interfaces that shared too much data, the testers who didn’t spot it, and the Data Controller in the Dept who didn’t double check that the business rules were followed.

    The DPC’s job is to hold the Data Controller ACCOUNTABLE.

    The bizarre logic of the writer of the article simply makes no sense. Are the Gardai responsible for ensuring compliance with the Road Traffic Acts? No. Their job is the detection of, investigation of, and prosecution of offences. Just like the DPC in this context – when the Office was made aware of a possible breach of the Acts, they investigated and took action immediately.  (Ensuring compliance with the Road Traffic Acts is the responsibility of the road user).

    For all the sense that is in the article, the anonymous scribe [update-anonymous as it is a leader piece-/update] might as well have advocated that the soon to depart Mr Hawkes be replaced with a Psychic Dog who would detect all the potential future crimes, just like Tom Cruise in Minority Report.

    Lazy, sloppy, and brain numbingly dumb hackery dressed up as journalism, an article of this low quality has no place in a paper of merit such as the Irish Times.

    Good, informed, and informative journalism on Data protection issues must be encouraged however.

  • An anniversary post (of sorts)

    A little under a year ago I wrote two posts on this blog regarding the Irish DPC, Facebook, and Safe Harbor.

    The blog posts in question are here and here

    Those posts were written under less than ideal conditions; sitting at train stations or in cramped train carriages, eyes streaming with hayfever (or perhaps I was weeping for the death of privacy.. sometimes it’s hard to tell),  typing furiously on an iphone, with limited access to internet, so were rattled off essentially off the top of my head at the time based solely on the information that was in the public domain.

    The gist of what I wrote in those posts was as follows:

    1. The Data Protection Commissioner’s Office has to enforce the law that is in front of them.
    2. The law that is in front of them says that transfers to Facebook are OK under Safe Harbor
    3. To conduct an investigation would mean the DPC would have to challenge a decision of the European Commission (specifically the Safe Harbor decision).
    4. That was probably the reason why other Data Protection Authorities, while complaining about Facebook, PRISM, and Safe Harbor hadn’t actually done anything to suspend transfers, because they too were not able to directly challenge a decision of the European Commission.

    In June we received the judgement of Hogan J. in Schrems vs DPC. This case was initiated as a judicial review of the decision of the DPC not to launch a full blown investigation in to Safe Harbor and Facebook.

    In that judgement, Hogan J. held that:

    1. The DPC had correctly interpreted and enforced the law that was in front of them. Transfers from Facebook Ireland to Facebook US were permitted as a result of Safe Harbor.
    2. A question needed to go to the ECJ as to whether the DPC could actually ignore or look beyond the Commission Decision on Safe Harbor when looking at whether processing was lawful. (In essence this is a question that is asking the ECJ to rule on Safe Harbor in light of the changes in EU Data Protection law since it was implemented a decade and a half ago. Since then Data Privacy has become clearly recognised as a fundamental right and the Digital Rights Ireland case has clarified the need for proportionality in data processing, particularly on-line surveillance).

    And with that he sent a question to the European Court of Justice that potentially will have echoes as profound as Gavrilo Princip’s revolver shot on a side street in Sarajevo a century ago.

    It was particularly heartening to me to read paragraphs 80 and 81 of Hogan J.’s judgement when it came out. In those paragraphs he basically says exactly what I said a year ago: the EU Commission had decided that Safe Harbor was an appropriate mechanism for cross border data transfer and the DPC was tied t the findings of the Commission under the Irish Data Protection Acts and the underlying Directive. That’s pretty much what I said in this blog post.

    I am loathe to engage in precognition on the ECJ case that we are presented with now. However, I will venture the following for now:

    1. This is no longer a case about an Austrian law postgrad taking on an administrative functionary in on the western spiral arm of the EU.
    2. This has become a case about information flows and fundamental rights (thanks in no small part by some deft adjudication by Hogan J).
    3. This has become a question of information society (the ethics, rights, rules, and benefits of information processing) versus information economy (individuals as units of production, and surveillance of the drones by Big Brother). It will have a profound impact no matter what the outcome.
    4. While Max Schrems has taken his case against the Irish Data Protection Commissioner, ultimately it is the Safe Harbor mechanism that is on trial now at the ECJ.
    5. If Safe Harbor is found to be not fit for purpose as a result of the disproportionate threats to data privacy rights of EU citizens, we will move into a very interesting era. If it turns out that national Data Protection Authorities can second guess decisions of the EU Commission when the surrounding laws or social environment changes, that will have ripples out far beyond the world of Data Protection law and practice.

    The role of Digital Rights Ireland as amicus curae in this case is to be welcomed. They add no baggage to the wagon train, but having been to the ECJ already on a data protection issue they are familiar with the winding trail ahead.

    It is to be hoped that politicians and functionaries in the civil services of Member States and the Commission, as well as the media and the general public, wake up to the issues here and start paying attention. In the absence of a global drive to establish functioning and balanced frameworks for effective cross border data transfer we may find ourselves with exactly the same problems that gave rise over three decades ago to the need for the OECD Guidelines , and in turn Council of Europe Convention 108 and the entire framework of EU Data Protection laws in the first place.

    Interesting times indeed.

  • Arise DeskZilla

    I use a standing desk when working in my office (and if I could find a light weight portable option I’d use one on client sites as well). Many of the greatest leaders have used standing desks.

    There are proven medical benefits to getting off your backside when working. It’s worth bearing in mind that sitting for a living is an invention of the late 19th and early 20th century. Prior to that most people did have to move around a lot. But standing desks can be expensive. So a theme has developed over the past few years of hacking functional standing desks that are ergonomically aligned using a low capital investment model (for which we must read “it don’t cost much if you make a mess of it”). The source of raw materials is a certain Swedish home improvements store famed for their meatballs that I won’t name here because they are very protective of their brand name. But a good source of ideas for how to repurpose their stuff can be found here.

    About 18 months ago, after a flare up of back trouble, I did a bit of research (using the hacks site linked to above and a few others) to see how I might best build a standing desk on a near-zero budget. I started with a few basic design principles:

    1. Aim for “minimum viable product” – it had to meet ergonomic requirements for me and my height, but I guessed it how I worked, laid out my work, and how the desk would need to function would evolve as I changed from sitting on my ass to moving around.
    2. Reuse or recycle things I already had – I had a desk already. I wasn’t going to junk that. I also had a pretty cool laptop stand with cooling fan and USB ports.
    3. Kaizen principles – I’d look to find ways to reduce waste of effort and time when working, and accept that the desk would not be perfect as I’d always find something else to improve how it works for me and with me.
    4. MacGyver rocks.

    Ergonomics

    Some basics. If you don’t have your standing desk set up correctly you will simply make things worse for yourself. Do some research. Buy a measuring tape. Think about posture, stance and positioning. I train (as often as I can, which isn’t often enough) in Aikido so I am very concious of my centre point (hara) and the need to have hips and back aligned correctly for good movement and energy flow.

    Some good resources for standing desk ergonomics I found during my research are here, here, and here. A recent resource that covers off some good “dos and don’ts” can be found here.

    Introducing DeskZilla

    DeskZilla was the result of my research and my design principles. It was built entirely from parts purchased from Ikea (oops I’ve named them), with a few extra bits thrown in to make minor adjustments.

    Picture of deskzilla standing desk
    First iteration of DeskZilla.

    The parts I used were:

    1. A Vika/Amon desktop (no longer available). It is 100cm wide and 50 cm deep. For alternative table tops, see here: Ikea TableTops
    2. An Ekby Jarpen shelf for the monitor and laptop level, with three Ekby Tore clamp brackets (3 ensures shelf doesn’t bow in the middle). Ikea actually illustrate the use of the brackets on a desktop on their website now.
    3. Capita legs for the desk (which require a little MacGyvering with a drill to make some new screw holes for them as they are not meant as desk legs). I went for these as they could be adjusted up to 17cm high. Note that the Capita legs aren’t MASSIVELY extendy, they adjustable to compensate for uneven floors in the furniture they are supposed to be used on. But a centimetre or two can make all the difference.
    4. Two power blocks from Aldi that bolted onto the desk. I put them on the rear edge to stop DeskZilla from sliding backwards.

    Total cost, a little over €70.

    A key point… it is really important to measure your existing desk and the height/depth of each component to make sure things are going to be at the right height.

    What I have with Deskzilla is a modular system where I can move the monitor and laptop down on to the lower level and move the keyboard and mouse down to the lower desk and use it as a sitting desk. The monitor is almost exactly perfectly positioned for a sitting desk when on the first level.

    I had to add a pencil box under the keyboard to move it up a centimetre and a half or so for better ergonomics when typing. The monitor is now raised up on a hardback books to improve positioning (more on that in a moment).

    Evolution, Phase 1

    Almost immediately DeskZilla began to evolve. While the monitor was almost perfectly aligned, I found that video conferencing was a great way to double check.

    Rule of thumb: if you have a webcam in your monitor your eyes should be in line with the lens. A hardback book fixed that.

    After a few weeks of use I noticed I was getting stiffness. Some gym mats from Argos on the floor provides an anti-fatigue feature, and I still have my chair and can switch to sitting if I get too stiff and sore any day. The body is a bugger and some days you can stand without issue for hours (I pulled a 27 hour straight working day on a project last year… standing almost the entire time) and other days it hurts like heck after a few hours.

    Second rule of thumb: listen to your body and adapt each day.

    Evolution Phase 2

    DeskZilla will evolve again soon. Experience with the monitor, and the hassle of bending to get pens, post-it notes etc,  tells me that it might make sense to swap the Ekby shelf for one with drawers that has the same length and a bit more height. The Ekby Alex shelf looks like a contender. The only reason I rejected it in Phase 1 was cost – it would have been over 50% additional on the budget.

    I also need to think about raising the desktop a little to remove the need for a pencil case under the keyboard. That could be achieved through castor guards or something like that (the things that you put on furniture that is going on a wooden floor), another option is some half-inch wooden blocks  between the Ekby desktop and the Capita legs to give a small height boost. That last option would be a good call for anyone over 6ft 2″ who wanted to use this recipe, and could be a way to incrementally tweak the height to what you need rather than relying on just the leg extendibility.

    Finally, I’ll probably invest in a folding bar stool type chair, or an ironing board chair to use when fatigue kicks in to take the weight off my ankles and knees.

    Some key lessons about standing while working

    1. Think zen and do yoga. Simple stretching movements keeps fatigue at bay and helps strengthen core.
    2. Don’t stand still… move around and shift posture.
    3. Get used to working in shorter bursts and then changing position. I used to sit motionless for hours, now I work in 10 to 15 minute bursts and then switch posture or position… any longer and I stiffen up, which can hurt and break concentration any way. Movement keeps the brain awake!
    4. Two monitors makes a massive difference, but only if you aren’t having to crane your neck to see it.
    5. Your workspace will evolve around you. Find a natural movement and flow for you and settle into it. If you force it you’ll find it just doesn’t click for you.
    6. Breathe. Take advantage of your posture and position to take deep breaths and relax into your work.
    7. Each day you will need to improvise something to tweak a factor to improve comfort and flow. Accept that and get on with it
    8. The Desk is NEVER finished if you are building your own, (and it’s never perfect if you bought it off the shelf)

  • TV Licences, Data Protection, and the comments of the DPC

    It was great to hear the Data Protection Commissioner on Newstalk this afternoon explaining the situation regarding the proposed TV License data slurp. I’ll post a link to the podcast when it is available.

    A quick summary of key points that he made is as follows:

    1. The Government must pass legislation to allow for any access to data.
    2. The accessing of subscriber data is an interference with fundamental rights so, while Public Interest (e.g. maximising revenue from TV licence to keep Fair City on the air), the Government must convince the Oireachtas that the levels of access proposed are justified. The DPC specifically said that “the Oireachtas need to think about this”.
    3. He went on later to restate the importance of the Public Interest needing to out weigh and justify the interference in fundamental rights.
    4. He specifically flagged that whatever mechanism and process is proposed in legislation, it needs to be a “reasonable and proportionate measure”
    5. An Post should only have access to the minimum amount of information necessary to confirm if there is use of a TV service.

    Hmmm.. I’ve heard comments like that somewhere else recently…

    A slight difference of opinion…

    The DPC compared the access of data from TV service providers as being similar to the legislation that was brought in to establish the Property Register for the LPT tax.

    I respectfully have to disagree a little on this. The LPT register required a completely new database to be created from scratch for the purposes of effectively, efficiently, and fairly levying a new tax. Data was drawn from multiple State and private sector data sets to create the best possible register for that purpose [disclosure: my company was involved in some preliminary work around the establishment of the LPT Register].

    What is proposed in the case of the TV licence is to supplement an existing private sector database (An Post’s) with data from potential competitors for the purpose of detecting non-compliance with an existing tax/levy. It is a subtle difference and should affect the determination of what is proportionate. There is already an investigation and detection function for TV licence enforcement. Any level of access other than on a case by case basis for the investigation of and prosecution of non-payment would require a clear justification in my view to pass a proportionality test. Rather than comparing to the LPT establishing something new, a more appropriate comparison would be to existing Revenue powers to request data from banks in the course of an investigation, not as a general blanket bulk extraction.

    The Thin End of the Wedge

    The DPC is “concious of making sure that this won’t be the thin end of the wedge”. In that case attention needs to be paid to how the legislation evolves. As I pointed out yesterday, Sky and UPC are both also providers of telecommunications services. In defining what data is being accessed for what purpose, it needs to be clarified if this legislative data grab will be constrained just to television service packages or to a wider range of product offerings. And within that there then needs to be consideration as to how An Post would verify that a broadband subscriber was or was not using their service to stream TV to a laptop or handheld device, a scenario that is currently not covered by the TV licence, but is proposed to form part of a Household Broadcasting Charge in the not too distant future.

    This is where there is another key difference between this proposed legislation and the LPT. The LPT legislation, from the very beginning, made clear that data would be obtained from private sector organisations to enrich and validate data on the Register obtained from existing State sources. While some thought that it was the tightening of Big Brother’s grubby mitts around our data, it was at least an open and transparent initiative.

    If the intent here is to build a Household Broadcasting Charge Register by enriching the existing An Post data sets with 3rd party data, then the Minister and Department should come out and state that and place the Public Interest question around this proposed legislation on a more transparent footing, which in turn may affect the consideration of what form of mechanisms and measures would be reasonable and proportionate to achieve that end. That will ensure that the legislation that the Oireachtas may eventually pass will be fit-for-purpose, that the correct balance of rights between the individual, the organisation, and the State will be considered, and there can be a proper debate and provision of information about what constitutes a “reasonable and proportionate measure” in that context.

    If the data is required to support existing investigation and detection processes for the current TV licence, I would suggest that what is reasonable and proportionate is more in line with Revenue’s powers of access to bank records on a case by case basis then the mass integration of data required to create the infrastructure for an entirely new tax head, and it is on that basis that the assessment of “reasonable and proportionate” should be made.

    The de minimis principle

    The DPC was clear that only the minimum necessary amount of information for the specific purpose could or should be shared. Hear hear!

    Of course, his comment presumes a bulk sharing obligation is required or is proportionate. As I wrote yesterday, and as I mention above, if the proportionate response is to improve evidence gathering in investigation of suspected non-payment of a licence fee then An Post (or any other collecting agency) could simply ask, on a case by case basis, “Does X address have a television service” and receive a simple yes or no response.

    The Commissioner’s comments don’t rule that approach out however.

    Of course, de minimis is a principle that applies to the purpose and intent of the processing. If the intent or purpose is to ensure that everyone who has a Sky or UPC subscription has paid their TV licence, it would be quicker, easier, and cheaper, to make them collecting authorities for their customers and leave An Post with the rump, with the Department managing a reconciliation process on an annual basis. It would add €13 or so to a Sky TV subscription, and it would ensure that every location where a single customer had a Sky TV box installed was paying the fee.

    The Prickly Problem of Proportionality

    It is good to see the DPC making positive comments about how the Oireachtas needs to reflect on how any legislation that might emerge would impact on fundamental rights. The Government must convince the Oireachtas (but with a majority, that is a fudge), but the Oireachtas has to act in accordance with the Constitution and with our obligations under EU Treaties. The ECJ has ruled on the Data Retention Directive and has made it clear that for serious offences that the interference in data privacy rights through retention of or bulk access to communications data must be proportionate. Digital Rights Ireland have yet to return to the High Court for the next round of their challenge to the Communications Retention of Data Act 2011, but it defines a “serious offence” as being one carrying a prison sentence of at least 5 years.

    For a €160 licence fee and a summary offence with a €1000 fine on first offence or €2000 on subsequent offences (people go to jail for non-payment of fine, not non-payment of TV licence) it will be interesting to see how proportionality will be established.

    It may be that the Government will need to consider alternative mechanisms for enforcement of the TV Licence (or future Broadcasting Charge) that does not require the sharing of data. The key objective, after all, is to maximise the cash inflow for the State to support development of indigenous broadcasting while at the same time minimising enforcement costs and minimising the extent to which data is being shared and processed between private sector organisations, albeit on behalf of the State.

    Of course, any reliance on full and frank debate in the Oireachtas has to recognise that the Government has a majority and we operate a whip system in our parliament. Government TDs will vote with the Government line. Which means that legislation might get passed that is actually a disproportionate response to the problem. Gerard Cunningham (@faduda) kindly reminded me of this on twitter.

    Ultimately, the Minister needs to be clear in his Problem Statement before rushing to a solution, and the Oireachtas needs to think outside the box when assessing the reasonableness and proportionality of the legislative response to the realities of the telecommunications and broadcasting markets.