The DOBlog

Category: The Business of Information

  • Irish Water channelling Alec Guinness

    Irish Water channelling Alec Guinness

     

    Irish Water is working hard on Twitter and in other forums to convince itself, if not us, that all is well with regard to their Data Protection policies and procedures.

    In response to questions raised about the retention of data, specifically PPSN data once allowance entitlements are validated and personal data of non-customers, Irish Water have trotted out the standard 140 character line. Their response is essentially a variation on the following:

    Data will be stored in Irish Water, after a customer ceases to be a customer but not longer than is required by law.

    It is that response that has prompted my choice of image for this post. Those of you over the age of 12 will recognise Alec Guinness in one of his most famous mortgage paying roles, Obi Wan Kenobi in the original Star Wars. And why does my brain make this connection?

    These aren’t the droids you’re looking for. You can go about your business. Move along” (waves hand enigmatically)

    Unfortunately for Irish Water many of us are not as feeble minded as an Imperial Storm Trooper in a fictional universe. These Jedi Mind Tricks don’t work. We have a detailed specification for the specific droids we are seeking and we are pretty sure those are they.

    1. What is the specific purpose for the processing and retention of non-customer data by Irish Water? (i.e. why are they processing data about people who are not connected to a public water supply?)
    2. What is the retention period for that data? Why is it being retained? What is the basis for the retention period that has been selected that makes that retention proportionate? Which law are they operating within for their retention period?
    3. What is the retention period that Irish Water are applying to PPSN data provided to them? Why is that data being retained (for what purpose) given that the sole purpose Irish Water has for processing PPSN data is the validation of entitlements, suggesting that once that purpose has been completed the data should be deleted.

    These are simple questions. They should be easy to answer if appropriate efforts were made to conduct Privacy by Design based compliance with the Data Protection Acts.

    Once this grumpy old Storm Trooper gets a coherent and credible answer I’ll gladly move along.

  • Morning Ireland, Irish Water, and Data Protection clarifications

    Elizabeth Arnett of Irish Water was on Morning Ireland this morning. Some good and important clarifications given.

    1. She confirmed PPSN would only be used for the purposes of validating allowance entitlements. That differs from the commentary in yesterday’s Irish Times in the context of landlords and tenants, but clears up the confusion. Irish Water will not be using the PPSN for a purpose not covered in their Data Protection Notice. Therefore, a lot of the concerns I raised yesterday here should prove unfounded as that use is not going to happen and I can only hope and assume that Irish Water have implemented appropriate internal governance to ensure that the temptation to stretch the scope of use of PPSN is resisted. My experience in organisations is that temptation to process data “because we can” is often very difficult to overcome and needs a strong governance culture to push back on rash impulses

    Given that the DPC has expressed concern that there is a lack of clarity in the Data Protection Notice regarding the use of PPSN, it would be worth Irish Water investing time to ensure that the permitted use of PPSN is clearly communicated in the Data Protection notice and clearly reflected in internal policies and governance.

    1. The only 3rd parties that data will be shared with will be contractors delivering services on behalf of Irish Water, or Data Processors in Data Protection terms. There will be no sharing of data for marketing purposes. Again, this is a welcome clarification that should be reflected by appropriate wording in their Data Protection Notice. The wording that is there is reasonably good, but an example of the kind of person or kinds of purpose would help people understand better the processing involved. For example: “Examples of these kinds of 3rd parties would include maintenance engineers who would be provided with customer address and contact information for the purpose of carrying out maintenance on meters or doing ‘first fix free’ repairs for customers, contractors providing IT development or support services or related activities, or contractors providing bill processing or similar services.”)
    2. Ms Arnett clarified that Irish Water would only be engaging in postal marketing by way of bill insert and that this was something that people could opt out of. That is compatible with SI336 and the DPA, but needs to be clarified further in their Data Protection Notice which, as of this morning, still says

      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 products or services which may be of interest to the customer (“Marketing Purpose”).

    Based on the clarification given verbally by Ms Arnett, this should now read:

    Irish Water and/or authorised agents acting on behalf of Irish Water may wish to contact the customer by post about water related products or services which may be of interest to the customer (“Marketing Purpose”).

    These are important clarifications. They should be included in Irish Water’s Data Protection Notice which, while improved, can be improved further.

    However there are a number of points that need to be clarified by Irish Water still. Among those are the following:

    1. What is the retention period that will be applied to PPSN data once allowances are validated? “For as long as permitted by law” is a nonsense as the DPA doesn’t provide a specific retention period (it says “no longer than necessary for the purpose for which the data was obtained”). So either the data is dumped immediately (to comply with the DPA requirement) or it is retained for defined period for a secondary related purpose that is not incompatible with the validation of allowances (the statutory purpose for which Irish Water was permitted to request and process PPSN). Clarification is needed on that point. “For the length of a piece of string” is a platitude not a policy.
    2. What are the purposes for which email, mobile phone, or landline data that might be provided will be used for? For example, is that data needed to contact customers in emergencies? Clarification is important to help restore trust and compliance with the DPA.
    3. The retention period for “non-customer” data should be clarified. Irish Water’s social media team have been stating that it will be retained until such time as the information is verified. Is this an audit process where the data will be clashed against LPT data or Dept of Environment data to identify people who are claiming to be non-customers but are (perhaps through innocent mistake)? If so, that is a purpose for processing of non-customer data that needs to be stated in the Data Protection Notice. If there is no billing purpose, no allowances purpose, and no audit/verification purpose, I am unclear what the purpose for retaining this data is (and would have to ask why money is being spent processing data that has no purpose). It there is a purpose for processing non-customer data, it should be clearly communicated so that such data is obtained and processed fairly for a specified and lawful purpose as required under the DPA.

    There are other questions that I’m sure Irish Water will be able to answer soon as well such as:

    • What happens if you have a birth or a death in your family? How can you update the allowances etc.
    • What happens if you move house? How do you transfer over allowances? How will personal data be kept accurate and up to date in that context?

    It is also worth noting that, since the sixth of September, Irish Water have slowly made steps to improve their communication of Data Processing purposes. Almost a month. Played out in the media. Almost a month, during which time the DPC went from being disengaged to being actively involved. Almost a month in which trust in Irish Water was damaged by inconsistent and incomplete communication. Almost a month for the tip of the iceberg (the Data Protection notice) to begin to be hammered into shape, but clarifications are still required and communication still needs to improve.

    Privacy by Design thinking applied to the life cycle of information (which includes “PLANNING”) could have helped avoid a lot of this. One of the key points of Privacy by Design is it puts the customer at the centre of focus. It also puts Privacy at the Design stage in any initiative… and a month spent in design and in ensuring clarity of process, consistency of communication, and transparency of Data Protection Notice would have been a month well spent by Irish Water.

    [I’m speaking on Data Protection, Data Governance, and Privacy by Design at EDBI in London next month and at IGQIE2014 in Dublin on the 7th of November. Tickets are still available for IGQIE2014 and discounted student rates are available for the morning session.]

  • A blatant advert for IGQIE2014

    igqie2014-flyerflyerigqie2014-flyer
    I normally try to keep business and personal blogging separate for a variety of reasons *koff* domestic exemption to DPA *koff* but as this site is getting a lot of hits recently about Irish Water stuff, and as the conference my company is running is DIRECTLY RELEVANT to the subject, I thought I’d post a little snippet about it.

    IGQIE2014 – (Information Governance and Quality Ireland to give it its full title) is an event Castlebridge Associates is running on the 7th of November in the Marker Hotel in Dublin. The day is aimed at connecting the dots between the legal principles of Data Protection and Privacy in the EU and the coal-face challenges of data modelling, information quality, and data governance necessary to achieve compliance and deliver happy customer outcomes.

    In the morning session we have three presentations from:

    • Fergal Crehan – Barrister at Law and expert on EU Data Protection and Privacy law. Fergal has been directly involved in a number of key cases in Ireland and at the CJEU on Data Protection issues.
    • Michael G Morrow: Michael is an expert in Data Modelling. He’s going to be talking about  the need for business engagement in the Data Model design and engineering process.
    • Me – I’m talking Data Governance, Data Protection, Privacy by Design, Privacy Engineering, and Data Engineering. Aim is to link Fergal and Michael’s themes together in something educational.

    In the afternoon we have three of the world’s leading experts on Data Governance, Information Quality, and Information Architecture coming to deliver parallel tutorials.

    Full details can be found on http://igq.ie

    Early bird ticket deals expire TODAY

    Student tickets are available for the Morning only.

    A flyer is attached to this post for you to download and share.

    igqie2014-flyer

  • Reposted: Irish Water, the letter from the DPC, and what it all means

    [On the 24th September I posted this. I’ve updated it to insert relevant updates in other posts in context]

    This evening 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: Today I posted this which looked at the apparent lack of a “signed off” movers/leavers process for when people change address and the data protection and operational implications. That is basic utility billing stuff, and is also a basic requirement under the Data Protection Acts – at least to have the mechanism by which changes to data can be made in the course of a customer life cycle.]

    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: I wrote this this morning following an Irish Times report that Irish Water would use PPSN as part of debt collection. This is not a stated purpose, and is not the “sole purpose” that the DPC had recognised and approved of.  It appears Irish Water are unclear internally about things that the Regulator believes they are clear about]

    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 identifywhere 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 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 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 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.

  • 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.