The DOBlog

Category: Data Protection

data protection

  • While we’re all fired up about protecting rights..

    Hey you #stopsopaireland people, I’ve got a favour to ask. It’s not a big one. It will take you 30 seconds to do but it may help to make your life a little better

    The 30 seconds kicks in as soon as you’ve finished reading this post.

    The discussion around #stopsopaireland has focussed on the impact that internet blocking would have on fundamental rights of freedom of expression, and the EU legislative and policy frameworks and case law that exist to support that right and ensure it is protected in a balanced way.

    There is another right that is important. The right to Privacy. In particular the right to Personal Data Privacy which is set out in Article 16 of the Lisbon Treaty. It is this Article that provides the basis for the EU’s Data Protection regime, changes to which were announced on Wednesday. Those changes will take a number of years to come into affect, assuming they are not bastardised and watered down beyond all recognition by national parliaments or the European Parliament responding to lobby groups.

    But a functioning Data Protection framework is in existence day and it is policed in Ireland by the Data Protection Commissioner. Already this year they have engaged with the Dept of the Environment regarding the Household Charge database and with Dublin City Council regarding the transfer of personal data from Dublin City Council to a private company. And let’s not forget their audit of Facebook last year. And that’s just the high profile stuff that gets in the media. In my professional context I’m aware of the significant number of complaints they help people with each year as they strive to promote compliance with the Data Protection Acts in an increasingly complex information management environment and a financial culture where organisations and governments are trying to to less with more and often cutting the wrong corners in the process.

    The Office of the Data Protection Commissioner serves the individual citizen, helping them with advice regarding their rights and acting to investigate and prosecute breaches of those rights. They also serve the Organisation (be that a Government department, a large multi-national, a local football team, or a student company selling jumpers on-line) providing education and advice (when asked) as to what steps should be taken to ensure the right balance is struck between the goals of the organisation and the rights of the individual. They don’t deal with just one sector of the economy. Anywhere personal data is being processed they have a role to play.

    Saturday 28th January is World Data Privacy Day. It is one day in the year where Data Privacy is celebrated. Companies and regulators around the world have planned activities and events to celebrate the day (see here and here), but in Ireland it seems to be just another Saturday. Some of you might say that the Data Protection Commissioner should have lead the charge on this but, to be frank, they are under resourced in terms of numbers and budget and need to prioritise their efforts and energies to dealing with the actual and alleged breaches of people’s rights that come through their inbox every day.

    So, to celebrate World Data Privacy Day 2012 I’m asking you to write an email to your TD, Minister, or other elected official asking them to comment, tweet, or in some other way make public

    1. Their support for the principles set out in the Data Protection Acts and the proposed revised EU Regulation on Data Protection
    2. Their commitment to ensuring the Office of the Data Protection Commissioner is properly funded and resourced to allow it to execute its duties under the Acts and the Lisbon Treaty in an effective and truly independent manner.
    3. What one thing they will do by January 2013 to improve their personal knowledge of the Data Protection regulations.

    I’ve even put sample text below so you can just cut and paste it. You can use the great contact form at Contact.ie to bulk contact your elected representatives (while you are there, why not donate to support the site), or you ca nmake the message personal and send it yourself from your own computer/phone/device/smoke ring maker. Heck, if you want to phone them or tweet them directly about this fire ahead.

    +++ email text

    Dear Sir/Madam

    I write to you on the occasion of World Data Privacy Day, which is being celebrated globally on Saturday the 28th of January (mark your diary, it’s the same day next year).

    Personal rights, particularly personal rights in relation to information and personal data, have been in the media a lot this past month. Much of the coverage could have been avoided had proper attention been paid to the requirements and obligations under the Data Protection Acts 1988 and 2003 which apply equally across a wide range of industry sectors, including Government

    To celebrate World Privacy Day I would ask you to consider issuing a statement either by traditional press release, a blog post, or a tweet, that will tell your electorate where you stand on the following questions:

    1. Do you support the principles set out int he Data Protection Acts and in the proposed revised Regulation on Data Protection announced this past week by Vice President of the European Commission Viviane Reding?
    2. Are you committed to  ensuring the Office of the Data Protection Commissioner is properly funded and resourced to allow it to execute its duties under the Acts and the Lisbon Treaty in an effective and truly independent manner, as is required under EU Directive and the Lisbon Treaty?
    3. What one thing will you do by this time next year to improve your personal knowledge of the Data Protection regulations.

    Of these three questions, the second is one I feel is important.  Personal data is the currency of the new economy and it is a valuable commodity. The Regulator for the Personal Data Industry is the Data Protection Commisioner. One of the key lessons of the Financial crisis is that for a Regulator to be effective they must be correctly resourced and independent of Government or industry influences.

    I appreciate your time on this and look forward to seeing your press release, blog post, or tweet expressing your support for #DataPrivacyDay, the principles of Data Protection, and the office and role of the Data Protection Commissioner.

    ====ends===

    If you get responses please post a comment below so I can see what uptake (if any) there has been from our political classes.

     

     

     

  • New rules, Old roots, Old attitudes

    So, today the European Commission is announcing new rules for Data Protection and Privacy in the EU (and the EEA countries and those countries seeking accession to the EU). There is hype and hoopla about the rules and what they mean, particularly for organisations conducting business on-line, companies based outside the EU selling into the EU, standardisation of penalties, and realignment and consolidation of the Regulatory and Enforcement regime.

    Oh yeah, and it is being done by Regulation which means the rules will be the same across the EU.

    But at its heart the fundamental principles remain the same. Organisations who seek to process personal data of individuals need to make sure that the ‘deal’ is fair. After all, to paraphrase Commissioner Reding’s comments at the DLD conference in Munich earlier this week

    Personal information is the currency of the Information Age

    And as with all markets where items of value are traded, checks and balances need to be in place to ensure the asset is valued appropriately and treated with care. Hence the focus in the new Regulation on concepts such as Privacy by Design, ensuring appropriate training of staff, specific requirements re: organisational governance and internal controls and clarity of documentation about the meaning, purpose, and methods of use of personal data. There is an economic trade off required to obtain the thing that is of value. That trade off is good management of Personal Data through the life cycle of the Information Asset.

    As a Data Governance and Information Quality guy I’m glad to see that the legislators in my third area of passion have finally caught up with the need to ensure organisations have defined Quality Systems with defined decision rights and accountabilities over Information as an Asset.

    So, while many of the rules are new, their roots are old. Based on my reading of the version of the Regulation that was leaked just before Christmas revealed a Regulation with one foot in the camp of Fundamental Human Rights (and the trade offs that need to be made there for economic activity to take place) and the other firmly in the camp of Quality Management practices and principles, with a clear focus on creating a Constancy of Purpose in management towards the goal of striking a sensible balance and ensuring a fair deal in the processing of personal data.

    And that is where the problem begins.

    There is a window now for national governments and the European Parliament to make contributions to the Regulation. Many in national government and the EP will make sensible contributions that will evolve the framework and make it easier to implement in practice.

    However, in a month where one Government Minister acted in blissful ignorance of the Data Protection Acts one week, another flew a policy kite that would require an illegal extension in scope of the database being built by the first Minister, and where the unelected officials of the largest City Council in the country appear to be unable to point to the legitimate grounds on which they transferred the personal data of over 100,000 residents to a private company, I hold out little hope of sensible debate and dialogue from the Irish body politic.

    In a month where we greeted the year (for the second year in a row) with a story about poor planning of projects involving personal data (both under the stewardship of the same person) I hold out little hope of sensible engagement from the Irish body politic.

    And in a month where the reversal of a bad law to control copyright on the Internet (SOPA) after leading websites across the world “went dark” we find a Junior Minister of the Government, in the Department that is in charge of attracting and retaining exactly those companies who opposed the US law, seeking to implement a similar law by Statutory Instrument with no debate or discussion, even after the legal position and EU policy position has changed in relation to Internet blocking, and only the opinions of the dying industry this law would protect seem have been sought in advance, I hold out little hope for the Irish Body Politic not to make an arse of this.

    And as for the Irish media… with a few notable exceptions the absence of attention to Data Protection issues (except where it involves embarrassing a Government Minister and the copy can be lifted from this blog) is staggering. So yet again I hold out little hope of sensible engagement.

    Adapting to the new Data Protection landscape will require individuals to change their mind set. But I fear that the entrenched attitudes in the body Politic and the traditional media may be such that Ireland (the little nation that faced trade sanctions in 2003 for not implementing Directive 95/46/EC by 1998 as we were required to) will fail to step up to the plate and drive the change in thinking and attitude necessary to achieve sustainable and sustained change in Data Protection practices in Ireland.

    W. Edwards Deming wrote in his famous 14 Points for Transformation that it was essential for the transition that organisations “Institute Leadership”. I see precious little leadership in this area from our politicians and only dazzling pin-pricks of illumination from the main stream media. So I must keep my hope guarded in the face of the likely knee jerk reactions against the changes and the almost inevitable white noise of ignorance until the Regulation passes into law with a direct effect sometime in 2014.

    Prove me wrong. Please.

  • Household Charge Data Protection: Part 4 – The Circle of Trust

    Phil Hogan has stated on RTE news that the problems with the Privacy Statement have been fixed.

    They haven’t (and for record purposes I’ve taken a PDF copy of the current Privacy Statement to track future evolutions). The problem with not complying with Google’s Terms and Conditions has been fixed. The problems with:

    • Lack of clarity re: the Data Controller has not been addressed. While it is tempting to say that the Controller is Government, in practice there needs to be a single entity who is driving and directing the gathering and collation of the data. Who is the ‘controlling mind’? While this may be set out in legislation somewhere it is a requirement of the Data Protection Acts that it be brought into the light and made clear to people who they are providing their data to. Suggested wording might be:

    The Data Controller for the Household Charge is the Department of the Environment. The Department makes use of a number of Data Processors to help administer the charge, provide IT facilities and services to support this website, and to securely process payments made. These Data Processors include: The Local Government Management Agency (LGMA), the various Local Authorities, and Realex Payments.

    Under the legislation, the Department has delegated to Local Authorities the responsibility for the day-to-day administration and operation of the Household Charge such as issuing Certificates of Discharge etc and in that context Local Authorities will have access to your personal data for those administrative and customer service purposes.

    The LGMA is a shared services organisation providing administrative and back-office support to Local Authorities. In that context they will have access to and will process your personal data in order to provide support for website issues, to assist the Department and Local Authorities in the administration of the Household Charge through the analysis of data, production of reports, and provision of on-line customer support for this website.

    That took me all of 30 seconds to draft. It should be at the beginning of the Privacy Statement.

    • Lack of clarity around the purposes to which the data will be put. While the Privacy Statement as it stands is fairly specific (stating payment processing, issuing reminders of future liability, issuing receipts etc.) the media statements about potential future uses of the data and the data which is actually being obtained (see Elaine Edward’s article in the Irish Times today [scroll to bottom] which points out that the process asks for the type of water supply you have and type of property etc ) suggest either that there are other future purposes that have not been disclosed, or data is being captured which is not relevant or is excessive to the stated purposes.

    The primary purpose for which we are processing your information is to enable you to pay the Household Charge and to enable us to administer the Household Charge, as required under the relevant legislation, through the issuing of receipts, waiver notices, certificates of discharge, and the issuing of reminders for payment and notifications of liability in the future.

    We are also capturing data about you and your property in order to establish a higher quality database of Residential Properties in the State for the purposes of supporting the efficient, fair, and cost-effective roll out of future property or service related charges and to provide a key information resource to the Department and Local Authorities about the nature and make-up of the residential properties in the State to support the planning and delivery of services and facilities in the future in a more cost-effective manner.

    • Lack of clarity regarding the periods for which data will be retained still persists. While the purposes of the retention are required in the legislation, the retention of data indefinitely is not allowed under the Data Protection Acts. How long does data need to be retained to issue a Certificate of Discharge? Is the personal data being retained as a standing database of property owners? (again.. that would be a purpose that would have to be stated).

    In order to support the administration of the Household Charge and to permit the discharge of obligations under the legislation by Local Authorities and/or the Department, your personal data will be retained for the period of time you are the owner of a Residential property in the State. This will enable us to locate your records and issue receipts, Certificates of Discharge, reminder notifications, settlement of arrears on sale of property etc without having to require you to re-register for the Household Charge every year.

    Data relating to persons who cease to be the owners of Residential properties in the State who have no outstanding liability will be retained for two years from the date of sale to allow for the re-issuing of Certificates of Discharge etc. in that period.

    Data relating to persons who cease to be owners of Residential properties with arrears will be retained for six years to allow us to pursue outstanding amounts and for two years from the date of final discharge or settlement of any outstanding arrears.

    Again, this is just a brain dump of what might be in a more ‘fit-for-purpose’ Privacy Statement, but it highlights the need to have thought through the key purposes for which data will be used so you can figure out how long you need to hold it for. So long as there is a lawful purpose for the retention and that is flagged to the Data Subject the ‘deal’ between Controller and Subject is fair and balanced.

    • Disclosure to third parties. The Privacy Statement is silent on this. The media, and the Data Protection Commissioner, have rightly focussed on the proposals to suck data from Utility companies, but the disclosure of data is as important. The Privacy Statement needs to be clear about who data might be disclosed to by the Controller and the basis for that disclosure.

    Data provided as part of the Household Charge registration process may be disclosed to the Department of Social Protection or the Revenue Commissioners in order to support the administration of the Social Welfare system and the fair collection of other tax revenues. Such disclosures will be on the basis of specific requests arising from an investigation or as a result of legislative requirements currently in existence of which emerge in the future. All such disclosures of data will be undertaken in compliance with the Data Protection Acts and the minimum data necessary to achieve the purpose of the request will be disclosed. Where we believe there to be evidence of criminal activity or fraud data may be disclosed to the investigating authorities to support the detection and prosecution of any offences.

    Again, this is just a brain dump. But it again illustrates that by stopping and thinking BEFORE you rush to obtain data you can improve transparency and identify the controls and governance you would likely need to have in place before you start.

    • The Data Protection Acts suggest that a Fair Processing Notice/Privacy Statement include any other information that the Data Controller considers will make the processing more fair. The obtaining data from 3rd parties should, in my view, be bumped into the Privacy Statement as well in this context  to make it CLEAR to people that this is a potential power and the basis on which it would be used. At the risk of pre-empting the protocols that the Department and the Data Protection Commissioner are agreeing, one possible wording for such a section might be

    In order to investigate cases of non-payment of the Household Charge the Department or a Local Authority may, on a case by case basis, make a request to a Utility Company or other provider of services as specified by the Minister in the legislation for information about services provided to an address. This information will be sought for the purposes of identifying if the property is inhabited. Information which may be sought in this context would include the name of the account holder with the Utility company/service provider.

    I was disheartened yesterday to hear the Minister constantly fall back on the mantra that the information provided on the site would be secure. That is not the point I’ve been making, and that is not where the Data Protection Commissioner’s concerns lie.

    Security of Information (no offence to my friends in the InfoSec world) is just one of 8 Principles that needs to be complied with under the Acts, the Directive, and under our Lisbon Treaty obligations (Personal Data Privacy is a fundamental right of EU citizens).

    The other 7 require Data Controllers to stop and think about what they are doing, what information they need to do that, how long they will need to keep that information for, who might need to look at that information, and a whole host of other factors over and above whether the site uses SSL and whether the data is encrypted on the server and other technical and practical security concerns.

    It is even more disheartening when I see evidence of good work to try and ensure good security was designed in being undermined by a lack of focus on ensuring the other aspects required to balance the right to Privacy against the legitimate interests of the State were equally planned for and designed in.

    This approach of “Privacy by Design” is what builds and sustains a Circle of Trust between the Data Controller and the individual.

    In the case of the Household Charge that circle has been broken and will be difficult to restore.

    If I was Taoiseach Kenny I’d be commenting on Minister Hogan’s Report Card: “Must try harder”.

     

  • It was 12 months ago today…

    [Note: This post was drafted before Christmas and before the kerfuffle this week about the Household Charge]

    It’s been a busy 12 months. Data Protection and Information Quality challenges are increasingly being faced up to by Irish businesses. A new Data Protection Regulation (yes, Regulation, not Directive) is in the offing which will change the landscape still further and lead to even more convergence of the fields of Information Quality, Information Governance, and Data Protection.

    Looking back on the past 12 months I must say thank you to the “good eggs” who helped along the way and remember back to the first issue that captured the media headlines in 2011, just before the general election.

    That’s when Fine Gael, in a mad dash to embrace social media in their campaigning ignored the Data Protection Acts, prompting this post from me. That post was followed by a number of others (here, here and here). The story also ran in the media for a number of weeks, helped by the fact that the website (which was already a Data Protection disaster area was hacked because it secured very well).

    12 months on and we have seen Facebook politely nudged in the direction of improved compliance. But our political classes continue to ignore the Data Protection legislation in policy proposals and in local campaigning.

    • Want to integrate data and collate data from multiple sources for the purposes of tax collection? – then you need to do it in a way that balances risk to privacy and ensures security of the data
    • Want to send Christmas emails to your consitutents? then make damned sure you have consent for that because it is not an exempted activity under the Acts (it is not part of running for political office and it is not part of the operation of their elected office, it’s marketing).

    The new EU Regulation will impose a reworking of old rules on all data controllers and processors. I expect we’ll here griping and complaining about the changes and fluster from bank bench TDs. But the core rules are 24 years old this year. Anyone who hasn’t gotten their head around them at this stage needs to consider how lucky they’ve been to date that they haven’t been hit with investigations or fines.

    Will 2012 be the Year of Privacy? All the pundits think it will be. I expect to see Data Protection concerns being more prevalent in the media. I just hope our political classes are on the right side of the discussion and not bumbling into breaches as they have done before.

     

  • Household Charge – A Data Protection Kerfuffle (Part 3)

    So, in the interests of trying to figure out what the purpose for requesting the PPSN from persons registering for the Household Charge I took a look at the pdf forms that are available from the HouseholdCharge.ie website.

    Form HC12N sheds a little bit of light on this as, in Note A on the form, as it tells us that

    PPSN (also known as RSI number) is unique to each individual and is used to distinguish between individuals with similar names or addresses.

    So it is being used as a matching key, a unique identifier for citizens accessing public services. Which is what it is designed to be used for, under strict controls. The control set out in the Social Welfare Consolidation Act 2005 require the PPSN to be used by Register Users for specific purposes. The details for the Department of the Environment’s use of  the PPSN can be found on the Department of Social Protection website.

    Deduping data is one of the uses. But not for a Household Charge. For other schemes. Specifically New House and Thatching grants and the Rental Accomodation Scheme. All of which require transfers of data around the Dept of Environment and the Dept of Social Protection, the Revenue Commissioners and Local Authorities. All of which is similar to what might need to happen to effectively administer a household tax.

    But such a scheme isn’t actually listed as a use. It isn’t even noted as a planned future use. Therefore, the published records indicate that this might not be a lawful purpose (there is a caveat around the information on the DSP website regarding its completeness). And I note with dismay that the record for the Dept of the Environment was last updated in 2008. That’s a whole Government ago.

    Open Data is a big buzz word in Government circles around the world. But Open Data starts with Openness ABOUT Data and being transparent enough about what will be done with data that citizens can trust. There are doubtless good reasons and valid purposes for the gathering of data. Government must ensure appropriate governance so that the information citizens can refer to about how their data is used can be reliably accessed and relied upon.

    Mushroom Management styles are contrary to the spirit and intent of the Data Protection regulations.

  • The Household Charge Data Protection Kerfuffle (Part 2)

    I don’t normally blog twice in day but I also don’t like to write 40000 word blog posts.

    So here is part 2 of the post I wrote earlier (with thanks to @brianhonan for pointing out some stuff on the twitterbox).

    Data Retention

    The Privacy Statement for HouseholdCharge.ie states that

    The Local Government (Household Charge) Act 2011 provides for the issuing of receipts and certificates of discharge, waiver and exemption on request. To enable a local authority meet these statutory requirements your data will be securely retained in the system.

    Great. That tells me the statutory basis for some of this processing. But it doesn’t tell me how long the data is actually going to be retained for. As VAT isn’t payable/chargeable on a tax the retention period that applies under the VAT acts wouldn’t apply, and in the context of Income tax Revenue require me to hold data, not the other way around (but they do hold data, and hold it quite securely).

    I would assume a receipt would issue as a matter of course (at which point, no need to retain data) , as would certificates of discharge (I assume). I’m not sure about the waivers and exemptions… I would have assumed that that was a seperate process where by you would register your grounds for waiver or exemption and be excluded. (Unless of course data has been disclosed to the LGMA by another department, e.g. DSP, either in bulk or on record by record basis that would allow them to perform look ups to verify eligibility for waivers or exemptions).

    So, I’m hard pushed to find a reason for retention longer than 12 months (and I’m basing that on the need to have the data to send a reminder in 11 months time). But the waivers and exemptions bit might give a reason for asking for the PPSN.. but not from everyone, just from those applying for a waiver or an exemption -anything else is still excessive processing for the purposes stated.

    Rolling up the Tinfoil Hat

    One element of comfort I find in the opacity of the Privacy Statement is that for all the elements it is missing that would add transparency, those that it has place some constraints on current and future uses.

    In my last post I pointed out at the only two purposes that they state that data is being processed for are processing payments and sending reminders. When we look at the Retention Period bit we find a few more (issuing receipts, Waivers and Exemptions).

    Which means there are a discrete set of stated specific purposes for which this data can be used. And no more.

    Therefore, to roll up the tin foil hat a little, fears that the Government might be building a property register on the sly can be allayed by the fact that any such use would not be lawful as it has not been spelled out as a purpose for the data you are providing.

  • Household Charge–A Data Protection kerfuffle in the making?

    It’s time for my annual “roll a data protection hand grenade under something” blog post. Every year I try to be topical. And I try to apply a similar approach to spotting risks and getting them on the table for discussion as I do when conducting Privacy Impact Assessments or Compliance reviews. Only I’m less formal here.

    This year my interest has been piqued by the new Household Charge which the government has introduced. Citizens are required to register for this tax at a specific website which is ostensibly (from the logo header) under the control of the Department of Environment Community and Local Government.

    But a number of things about this whole process wrankle with me from a Data Protection point of view. Let me be clear – I am not opposed per se to a property tax. I think however it should be fair and should reflect not just the value of property but the ability of the individual to pay. After all, in Ireland we have a generation of people living in properties that are worth a lot less than they were when purchased with people struggling to pay mortgages – increased charges are yet another burden that should be levied carefully.

    The website

    Cookies

    Looking at the website the first step is to check for compliance with SI336 (ePrivacy Directive) which requires that cookies can only be used with consent unless the cookies are necessary for the delivery of the information age service that the individual is seeking to avail of. Using the “View Cookies” add on in Firefox it is possible to see a listing of the cookies that a website is writing to your device.

    On the home page a set of cookies starting with “_utm” are being written. These are tracking cookies written by Google Analytics, the popular analytics tool used by millions of websites the world over.

    No mention is made in the Privacy Statement that accompanies the website about their use of Google Analytics [Update: The privacy statement was updated this afternoon to include the text referenced below… well done to who ever acted on that to fix it]. This is a breach of the Terms of Use of Google Analytics, which clearly states:

    8. PRIVACY

    8.1 You will not associate (or permit any third party to associate) any data gathered from Your Website(s) (or such third parties’ website(s)) with any personally identifying information from any source as part of Your use (or such third parties’ use) of the Service. You will comply with all applicable data protection and privacy laws relating to Your use of the Service and the collection of information from visitors to Your websites. You will have in place in a prominent position on your Website (and will comply with) an appropriate privacy policy. You will also use reasonable endeavours to bring to the attention of website users a statement which in all material respects is as follows:

    “This website uses Google Analytics, a web analytics service provided by Google, Inc. (“Google”).  Google Analytics uses “cookies”, which are text files placed on your computer, to help the website analyze how users use the site. The information generated by the cookie about your use of the website (including your IP address) will be transmitted to and stored by Google on servers in the United States . Google will use this information for the purpose of evaluating your use of the website, compiling reports on website activity for website operators and providing other services relating to website activity and internet usage.  Google may also transfer this information to third parties where required to do so by law, or where such third parties process the information on Google’s behalf. Google will not associate your IP address with any other data held by Google.  You may refuse the use of cookies by selecting the appropriate settings on your browser, however please note that if you do this you may not be able to use the full functionality of this website.  By using this website, you consent to the processing of data about you by Google in the manner and for the purposes set out above.”

    The emphasis in bold is mine. What Google requires is for people using GA to put in place a Privacy Statement but that that Privacy statement needs to clearly detail the use of Google Analytics, the fact of data transfer to the US, the purposes to which the data will be used etc.

    The Privacy Statement on HouseholdCharges.ie does not do this.

    Because the Privacy Statement on HouseholdCharges.ie doesn’t do this I would argue that, even on the first visit to the site, before you type anything, the site is operating in breach of SI336 as there is no means by which a user would be able to find information about the cookies that are being written and provide consent other than by blocking cookies entirely using their browser.

    This is despite the admittedly very clever use of URL redirection as an alternative path for people to navigate the site if they have turned cookies off in their browsers. But the wording around this in the Privacy statement ignores that the site actually writes third party persistent cookies from Google, and Google requires them to tell you that (as well as SI336).

    Privacy Statement – Fit for Use?

    Another concern I would have is with the loose wording and phrasing in the Privacy statement. The Data Protection Commissioner’s Audit report on Facebook cautioned strongly against the use of open-ended consents and non-specific specific purposes. Yet here we see clear examples of this within this Privacy Statement.

    Well, actually we don’t. There is no statement about the purposes for which the data is actually being processed. And that’s just the beginning of it.

    IP or Not to IP, that is the question.

    The Privacy statement proclaims that for “general web browsing” they may capture the “logical address” of the server you connect to the site from. Unless I am horridly mistaken that is the IP address. And that would be the IP address assigned to your broadband connection. Which is Personal Data, as eircom have recently found out. And there is no ‘may’ about it. The data is captured by Google Analytics (see above) and any other stats tools the Department might have.

    So. Personal data is being processed even if you are just browsing. Privacy statement is misleading in this regard and should be clarified.

    Who’s the Daddy.. I mean Data Controller?

    Frankly this thing is a mess. There is a horrendous lack of clarity about who is http://ec.europa.eu/justice/policies/privacy/docs/wpdocs/2010/wp169_en.pdfactually governing the processing of the data. Is it the Department (as it appears from the top right hand corner of the website)? Is it the LGMA (the collective IT department for most Local Authorities)? Is it the Local Authorities (as was set out in the legislation)?

    Or to put it another way… who would the Data Protection Commissioner expect to get a call from if there was a security breach relating to this data?

    If the Department is defining the format and structure and purpose of the data, they are the Data Controller as per the Article 29 Working Group Opinion1/2010.

    Local Authorities collecting revenues on behalf of the Department would be Data Processors. The LGMA, as an entity acting to provide support services to Local Authorities would be a Data Processor (albeit further down the chain of processors).

    What contractual or similar arrangements are in place governing this processing? Is there a clear governance structure established to ensure that breaches or problems are identified and dealt with in a timely manner?

    What I’d have expected to see would be something along these lines:

    This Household Charge is being administered by the Department of the Environment (the Data Controller). It is being collected on behalf of the Department by Local Authorities (Data Processors). As part of the support functions they provide to Local Authorities the Local Government Management Agency is providing hosting and technical support services for this collection facility, also as a Data Processor. REALEX payments are providing a secure payment processing facility that is certified to ISO27001 and meets the PCI-DSS security standards for credit card security.

    Funds will be dispersed from the Department to each Local Authority as part of their budgetary allocations during the year.

    It’s a bit clearer who is doing what. But the question is whether that actually matches what the enabling legislation for this charge actually said.

    Don’t tell me the what, show me the why?

    The Privacy Statement tells me that

    Data collected on this site is gathered for the purpose of processing household charge payment transactions. This data may be reused in future years for notifications regarding liability for household charge properties.

    So the purposes for which the data is being processed are:

    1. Processing a payment for the charge this year.
    2. Sending a bill to me for the charge next year.

    No other purpose (statistical, strategic, or operational) is put forward for the processing of the information which is requested by the site.

    What information is required to send me a bill?

    • My name
    • My postal address
    • My email address (should be optional if I don’t want to rely on electronic billing)

    Which begs the question: Why is my PPSN number being requested given the particularly protected status of the PPSN in Irish law, a position I know from a  client engagement last year that the DPC takes VERY seriously indeed.

    Quite apart from the limited scope that exists under Irish law to actually ask for and process a PPSN (which affects the “lawful purpose” of processing, the simple question under the Data Protection rules is whether, given that it is not necessary to have my PPSN to process a payment and send me a bill next year, why is this information being asked for.

    If there is a secondary purpose (such as the development of a Property register which can be used as the basis of a valuation system in subsequent years) this should be stated as a specific secondary purpose in the Privacy statement.

    If Facebook is not permitted to be sneaky with Scope Creep in their Privacy Statements, the Government should be be either.

    I’ll post more on this as I get time to poke around a bit more.

  • Facing up to Facebook

    I spent a number of hours last night reading and rereading the report from the Irish Data Protection Commissioner on their Audit and Investigation of Facebook. At over 200 pages it was not for the faint hearted but it did set out clearly the findings and the areas of gap and weakness which were identified, as well as a number of surprising twists where Facebook had, almost by accident, started to do things in a sensible manner respectful of privacy.

    However, despite the statement from Facebook and the positive tone adopted by the Irish Data Protection Commissioner in media comment, this was not a clean bill of health for Facebook. This was a statement of gaps, with a clear message that the gaps need to be addressed rapidly in advance of a July 2012 rematch. Facebook may not have a bloodied lip from this encounter but the organisation has had (yet another) wake up call to the need to do Privacy better and to do it by design rather than happy accident.

    Of course, the Data Protection Commissioner does not come off unscathed in this report either. On my reading of the report there were a number of instances where the operation of Facebook processes contravened either the Data Protection Acts or the ePrivacy regulations. Each of these instances represented a cluster of prosecutable events. But this opportunity seems to have been missed, or at best deferred until another day. As a Privacy professional I am somewhat disappointed by this apparent failure to push the agenda resulting in a somewhat limp, albeit broadly welcomed, outcome.

    The key question is What next?

    Facebook has given undertakings to the DPC to have taken certain actions by January and to have completed or be demonstrably progressing other actions by July 2012. Will the DPC issue enforcement notices in 2012 if these undertakings have not been complied with?

    Will we see the David of the Data Protection Commission (total staff less than 20 and a total budget in 2009/2010 of less than €1.5million to run a Data Protection Authority in a country that is host to some of the most complex data processing companies in the world and wants to entice more in) staring down the giant of Facebook armed only with the pebble of SI336 of 2011 and the slingshot of the Data Protection Acts 1988 and 2003? Given that Facebook’s global turnover is estimated at being in the region of US$1.5 billion. Given that their recent settlement with the FTC requires them to keep their privacy nose clean, they would doubtless fight any prosecution to the fullest as it affects their core business.

    So, our under resourced, under funded, and increasingly overstretched Data Protection Commissioner seems to be wisely avoiding fights that it would find costly to win. But in this it is possible that they are playing for time.

    While the national government here seems to have been happy to long finger Data Protection reforms (to the point that we were 8 years late enacting the legislation to support Directive 95/46/EC) the noises from the European Commission are that the long awaited revised Directive will actually arrive in January as a Regulation. This will change the nature of the DPC’s role as they will become in effect the local outpost of a larger, more standardised and federalised Data Protection regime.

    This will result in larger penalties for breaches. It will also introduce increased requirements for transparency around data processing, including clearer obtaining of consent and clearer documentation of internal controls and processes.

    All of which are elements of the findings in the Facebook Audit.

    The next question is What now?

    The Data Protection Commissioner has stated that this report is the beginning of a longer term and long running series of engagements with Facebook. In other words, they will be working them over regularly to raise standards. With the Regulation expected to take until 2014 to come into full effect, this would give ample time to fix the problems that have been found thus far and any new balls of crazy that the Facebook cat would care to spit out on our collective shoes.

    Of course, this would require the Government to step up to the plate and properly resource the DPC and begin to promote Ireland as a good place to run compliant businesses. The era of light touch/no touch regulation of Data Protection needs to come to an end as we move into the era of Balanced Privacy.

  • My personal thoughts on the Facebook Audit

    This post was originally published on the Irish Computer Society Data Protection blog. I am republishing it here as it is my original work and I am moving my Data Protection musings into one place.

    Over on my personal blog [this one] I’ve written a short piece about my thoughts re: the Facebook Audit by the DPC.

    All in all I welcome the findings (and at 40 or so discrete findings it is not a clean bill of health by any stretch of the imagination regardless of spin and positioning) but feel that, given the breadth of potential scope for any audit and the limited resources and time available to the DPC’s office, it was inevitable that some issues could be missed.

    I am personally dismayed that the DPC did not prosecute some or all of the offences that they identified, particularly those in relation to breaches of the ePrivacy directives (where clear penalties and court precedents exist). A high profile prosecution would have made it a lot easier dealing with clients and prospective clients as it would have focussed the attention on issues.

    Also a number of unasked questions remain unanswered. For example, what is the position of Apps which process data outside the EEA? Does Facebook as a Data Controller not need to ensure that these apps (processors) are undertaking their activities in “safe countries” or under terms consistent with the Model Contracts approved by the European Commission.

    I’d like to think that this is part of a long term strategy by the DPC to develop a “poster child” for compliance (“hey, look… if Facebook can do it so can you”), whittling down issues and changing the Facebook mindset over time.

    But I am fearful that proper regulation and enforcement of Data Protection rules may be seen by the Irish Government as a barrier to enticing foreign investment in the data storage and services sectors and as such the independence of the DPC’s office may be threatened and its ability to effectively carry out its duties may be weakened.

    The Office of the Data Protection Commissioner does a sterling job with a small cohort of staff, a massive remit and scope of responsibility, and a budget that, in their 2010 Annual report was less than €1.5 million. My instinct is that they opted not to blow that budget on prosecutions and instead elected to work the network of International authorities (Canada’s OPC, various German Authorities, the FTC) to keep the pressure on to drive change rather than levy penalties.

    After all, any visit to Courts with a prosecution is a roll of the dice as to whether the judge accepts the full weight of the offences and agrees the penalties requested. The DPC could have spent quite a lot to achieve, in effect, the same result.

    However, I await with interest the findings of the rematch in July 2012. Will Facebook win gold for privacy then? Or will we see the true stamina of the Data Protection Commissioner in a legal tussle? All we can hope for is either an Olympic performance from the “New Facebook” or a Herculean stand by the DPC in defence of individual privacy.

  • The EU Data Protection Regulation

    This post was originally published on the ICS Data Protection Blog. It is republished here as it is my original work and I am putting my Data Protection musings in one place.

    Earlier this month we saw the leaking of a late draft of the forthcoming EU Data Protection Regulation.  Yes. That’s right. Regulation. In other words direct effect, standardised legal framework across Europe, less wriggle room at local level, and no waffling and stalling by national parliaments as they butcher a Directive into national law.

    The full final text is expected in January, with a 2 year implementation window being mooted.

    Among the criticisms I’ve seen levelled at the Regulation is that it is “longer than the Directive it will replace”. Yes. It is. But that’s because it has had to do more than just replace the existing Directive it has had to:

    • Update the Directive with new concepts such as the “Right to be Forgotten” and increased duties of transparency
    • Introduce new penalty structures (which were previously the preserve of the national enabling legislation that transposed the Directive) such as the 5% of Global turnover penalty for breaches of the legislation.
    • Define new governance structures for Data Protection in Europe at the EU level and between countries.
    • Imposes sanctions on Data Processors who act beyond the terms of their processor agreement (currently the only sanction is for the Controller to sue in Contract law, assuming a contract exists).
    • Adapt the existing regulations and governance models to things like Social Networking, Cloud computing and mobile devices.
    • Figure out how to deal with extra-EU entities selling into the Internal Market (easy.. they will have to comply with our rules now).

    Buried among the new changes was one aspect that jumped out at me was the introduction of lower value “administrative” financial penalties for smaller incidents of breaches of the legislation. I for one hope that that proposal makes it into the final draft of the Regulation as it would provide a tiered approach to penalties and put something tangible between the “softly softly encourage compliance” and “hit Controller with full prosecution”

    Another reason why I’d be interested to see this make into the final Regulation can be found in this post here (in which I argue in favour of just this form of small scale fines based system)

    (Yes folks, you read it on this blog first).