Data Protection Rake: WHACK!!

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

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

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

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

[Whack]

But what about the DPC’s position?

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

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

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

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

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

[Whack]

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

[Whack]

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

[Whack]

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

[Whack]

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

[Whack. Whack]

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

[Whack]

What does the Minister’s statement mean?

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

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

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

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

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

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

So far the report card reads:

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

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

My €0.02

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

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

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

Anything else is simply courageous, Minister.

Why Apple’s iOS6 changes mean increased work for Irish Data Protection Commissioner

At Apple’s WWDC conference this week nerds, fanbois and developers were greet by the news that Apple will be shipping iOS6 later in the autumn (or “fall” for non European readers). Among the features that Apple is touting are:

  1. Ditching Google Maps for its own mapping product and GPS tools
  2. More deeply integrating Facebook with iOS, similar to the deep integration with twitter that emerged in iOS5.

I personally have some privacy concerns about this level of integration and the potential for Apple to become even more the “Big Brother” they so eloquently mocked in their 1984 TV advert.

Maps

By ‘baking in’ an application (Apple Maps) that will likely require me to disclose my location to Apple in order to work (and which at first glance appears to be less useful than Google Maps), I’m getting a less good deal on which to base the sharing of my personal data. And Apple aren’t giving me a map for the good of my health or because they want me to know where I am.

Location data is part of the “Big Data” gold rush. Traditionally it has been mobile telcos who have access to this data and can analyse it to determine a variety of offerings for customers (next time you get a “pleasantly surprising” SMS message telling you about a special offer in the coffee shop you just happen to be near, congratulations, you’ll have walked within range of a ‘geo-fence’ that will have triggered the SMS. Assuming of course you opted-in to that kind of thing. Like that voucher service you signed up to).

Google tracks you as well when you used Google Maps on your iphone. But, in the absence of a Google login that tracking is relatively anonymous, going down at most to being able to identify that a particular device was in a particular location (unless you’re logged into a Google service on your device, in which case rest assured Google is probably making associations on the fly).

Apple on the other hand can also link your location to your phone. And your phone is registered to you. Through iTunes. So Apple will potentially have access to a more granular level of data about who is where, when, who is near them, who they are contacting (iMessage makes your SMS free to another iPhone user… congratulations, Apple now knows who you are messaging). Apple knows what kind of music you like, what movies you rent, your demographic segment… (it’s the iTunes platform!)

By adding maps to the mix in the iOS/iTunes platform, Apple can also tap information about you in motion – where you are travelling from, to, how fast and can probably make assumptions about your mode of transport (moving fast, not on a road, in a relatively straight line… means you’re probably on a train. Well done, Apple now knows you are probably a user of public transport).

As CNET reporter Rafe Needleman writes:

…the more users you have running your geolocation software, the more data you have about how fast people are moving. Apple’s adoption of its own mapping platform means it will now get access to that data from its iPhone users, assuming (and it’s a big assumption) that Apple can hurdle the privacy issues over gathering that data.

And as Apple’s European HQ is based in Cork, it will be the Irish Data Protection Commissioner who will be in the vanguard of haggling with Apple with regard to the nature of the terms and conditions and controls that will be placed on the processing of the valuable and very identifiable personal data in question.

Facebook

I use Facebook. I have a Facebook profile. I am a believer in Sun Tzu’s mantra that one must know your enemy.

By tightly integrating Facebook with iOS6 Apple potentially gets access to a valuable array of data about who you know, your interests, etc. Facebook get an easier to manage interface and a more ‘baked in’ and reflexive sharing of content and information by Facebook users.

And the individual gets another avenue by which personal data by and about them may wind up in places they were not expecting or being used in ways they didn’t anticipate.

Later this month Facebook will be facing into the return visit of the Irish Data Protection Commissioner who made relatively negative findings in their audit report earlier this year (but not as negative as many may have hoped). As the integration with iOS was not in the scope of their original review, I suspect it will not be on the table for discussion (at least not formally).

But again it is the Irish Data Protection Commissioner who is in the vanguard of protecting the fundamental rights to Data Privacy which are enshrined in EU law and which Facebook, through it’s terms and conditions, extends to Facebook users everywhere outside of the US and Canada.

And it means Apple don’t have to waste any more time and effort trying to put the bounce into Ping. They will have effectively outsourced that to Facebook. So Apple wins something. Facebook wins something. Where is the consumer’s win (and is it big enough to balance the impact on privacy).

Evolving the Platform

Any minute now I expect my friend Phil Simon to fire out a blog post about how Apple’s ditching of Google and locking in and locking down of Facebook represents a platform strategy play in The Age of the Platform. Apple is simply adding more “planks” to its platform, pushing out a competitor platform and reducing the incentive for another platform to start competing in devices (or at least minimising the impact of any such competition by leveraging the critical mass of the iOS/iTunes platform).

But to stretch and mangle Phil’s Platform analogy to the nth degree, any form of large scale construction requires permits and clearance and needs to balance the utility and convenience of what is being built (whether it is a shopping mall or a social media data sucking behemoth) with the impediments it may cause to the rights and enjoyments of individuals.

And the “Building Control Inspector” in this case will more than likely be the Irish Data Protection Commissioner.

  • With less than 22 full time staff
  • A budget of less than €1.5million

I fear that the back-end complexity of Apple’s move to front-end simplicity may be a killer blow to the efficiency and effectiveness of the Office of the Data Protection Commissioner, which is already creaking under the strain.

Given the influx of DataSuck Platform companies in to Ireland (LinkedIn, Facebook, Twitter, Google, Apple –admittedly here for years, Zynga etc.) the Irish Data Protection Commissioner is rapidly becoming the “Local Sheriff” in the Wild West of ‘Big Data’ exploitation for more than just the 4.5 Million people living on our little island.

#SupportyourLocalSheriff

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.

Setting tone from the Top

In the rush to adopt new technologies and new ways of working, particularly When an organisation embarks on a change to systems and processes it is often very easy to get caught up in the whirlwind of enthusiasm for the new technology and the promised benefits of new ways of working.

Nearly 2 years ago I wrote a post on this blog about the adoption of US style internet campaigning and the use of Web2.0 in Irish politics from an information quality perspective. The scorecard wasn’t good from a data quality perspective. The strategy seemed to be “If Obama can get elected using this Internet thingy, then we need to copy what he did”. No attention seemed to have been paid to the simple fact that a “cut and paste” adoption of a pre-canned solution from elsewhere would not necessarily work.

2 years on I would have thought that some lessons might have been learned. So when Fine Gael announced they’d “stood down” their finegael.ie website in favour of a more interactive presence in the run up to the election I thought I’d take a quick look. While the Information Quality issues with the form were not too bad, the structure and operation of the site raise a number of concerns from a Data Protection perspective.

Bluntly – when a US election solution provider rolls up in Europe they will find that they literally ain’t in Kansas anymore, particularly with regards to what you must and must not do with regards to the capture and processing of personal data. Political parties buying these services need to be aware that they are Data Controllers and that the solution providers are Data Processors in the context of the Data Protection Acts 1988 and 2003.

Failure to set the “tone at the top” and cascade it through the organisation means that often the important questions are not asked (or the answers are ignored).

Ultimately, in a Data Protection context, you are dealing with issues that can impact on your brand. If you are positioning yourself as being a political party that will “get tough” with vested interests through more effective regulation and enforcement you can’t really start the ball rolling by flouting basic principles of Data Protection law.

Indeed, back as far as 2004 the Data Protection Commissioner wrote:

It is important that public representatives and candidates for elective office realise the importance of their obligations under the Acts and that, in so far as responding to legitimate investigations from statutory office holders is concerned, in no sense should they consider themselves above the Law

In 2009’s annual report the Commissioner also wrote that:

Rapidly changing technology can be both a threat to this right and the means of protecting it. Building data protection safeguards into new technologies and applications of these technologies remains the best approach. This is as much true of data processing in the “cloud” as it is of a routine development of an IT application in an organisation.

So… the issues?Continue reading