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GDPR and Data Processors – a New World

data processors

Now that GDPR has been approved, companies need to start work on preparing their governance, employees and technology for the new legislation.

Among those organisations most affected by GDPR are Data Processors.    Data processors process data on behalf of, and under the instruction of their data controller.  Now data processors must comply with the statutory requirements of GDPR and, for the first time, can be held accountable.

Failure to meet the requirements of GDPR carries significant sanctions, up to 4% of global turnover OR 20 million euros – whichever is the greater.   In addition, processors still run the risk that, in the event of non-compliance or breach, their data controller can sue for breach of contract – all eye-wateringly expensive to the point of breaking the business.

So it’s a new world for data processors, who need to take steps immediately to protect themselves against compliance and security risk. For example:

  • They must have appropriate technical and organisational measures to ensure security of the data they are processing.
  • They must maintain written records relating to all personal data processing carried out for each of its data controllers
  • They may no longer appoint new or alternate sub-processors without the authorisation of the data controller
  • They must cooperate with the relevant supervisory authority
  • They must notify the data controller without undue delay in the event of a data breach
  • They must comply with GDPR in relation to cross-border data transfers

So what kind of organisation does this affect? Data processors include a multitude of businesses from call centres, to data providers, to data service providers – cleansing, hygiene, analysis – to cloud providers and technology vendors.

Mandated contract clauses have been specified in detail under GDPR, so all existing and future contracts will need review and are likely to need revision as negotiations between controllers and processors become ever tougher as each party tries to tie down the areas of liability and responsibility.

There is an argument that the costs of processing may increase, which will have a negative impact for data controllers.  But there’s no doubt – data processors are now firmly in a new world of liability and penalty.

Safe Harbour out .. EU-US Privacy Shield in

eu us privacy seal

EU Commission and United States agree on new framework for transatlantic data flows: EU-US Privacy Shield

On Tuesday 2nd February an agreement was reached after several months of negotiations between Europe and the USA. This has come about following the Schrems case and the European Court of Justice ruling on 6th of October 2015 which declared the old so called ‘Safe Harbour’ framework invalid.  The Safe Harbour expiry deadline was 31st January.

The EU-US Privacy Shield

Some of the key elements of the new framework are listed below:

  • Strong obligations on companies handling Europeans’ personal data and robust enforcement: U.S. companies wishing to import personal data from Europe will need to commit to robust obligations on how personal data is processed and individual rights are guaranteed. The Department of Commerce will monitor that companies publish their commitments, which makes them enforceable under U.S. law by the US. Federal Trade Commission. In addition, any company handling human resources data from Europe has to commit to comply with decisions by European DPAs.
  • Clear safeguards and transparency obligations on U.S. government access: For the first time, the US has given the EU written assurances that the access of public authorities for law enforcement and national security will be subject to clear limitations, safeguards and oversight mechanisms. The U.S. has ruled out indiscriminate mass surveillance on the personal data transferred to the US under the new arrangement. To regularly monitor the functioning of the arrangement there will be an annual joint review. The European Commission and the U.S. Department of Commerce will conduct the review and invite national intelligence experts from the U.S. and European Data Protection Authorities to it.
  • Effective protection of EU individuals’ rights with several redress possibilities: Any individual who considers that their data has been misused under the new arrangement will have several redress possibilities. Companies have deadlines to reply to complaints. European DPAs can refer complaints to the Department of Commerce and the Federal Trade Commission. In addition, Alternative Dispute resolution will be free of charge. For complaints on possible access by national intelligence authorities, a new Ombudsperson will be created.

EU-US Privacy Shield Next Steps

 Vice-President Ansip and Commissioner Jourová   have been mandated to prepare a draft “adequacy decision” in the coming weeks, which could then be adopted by the College of Commissioners after obtaining the advice of the Article 29 Working Party and after consulting a committee composed of representatives of the EU Member States. In the meantime, the U.S. side will make the necessary preparations to put in place the new framework, monitoring mechanisms and new Ombudsperson.

Charities and Data Protection Training

DP online trainingCharities are having a tough time with data protection at the moment.  The Daily Mail is pursuing them for their donor practices, and even when their behaviour is compliant, the reputational impact is enormously damaging to all charities, not just the few cited in the press.

Now the Altzheimer’s Society has fallen foul of the ICO because its volunteers were not trained in data protection, and were following inadequate processes, particularly in relation to sensitive personal data – for example using personal email addresses for sharing and receiving data about users of the charity;  storing unencrypted data on their home computers;  and not keeping paper records locked away securely.

This case does illustrate the need for charities to provide data protection training, not only among its own employees, but also to its volunteers.  Volunteers give selflessly of their time and energy, but even with the best intentions in the world, they cannot be expected to know the nuances of what is and is not acceptable in terms of data compliance and security.  Where sensitive personal data is concerned, this becomes a significant failing that will rebound on the charity  and generate a great deal of negative attention.  At the same time, lack of procedure and training creates an enormous risk of potential damage and distress to the very vulnerable individuals the charity is seeking to help.

Training volunteers as well as staff in data protection is essential to ensure security is maintained, that users are protected, and to provide reassurance that the charity is adopting a robust approach to data protection – particularly important to the Trustees as they are accountable and liable for breaches.

In addition, the charity’s own policies and procedures should be distributed and explained to all volunteers without exception.  And finally, checks should be carried out on an ongoing basis to ensure that volunteers are adhering to the charity’s documented policies and procedures.

Data Compliant is pleased to offer face to face training, and / or  online data protection training  – in each case, covering the 8 principles of the Data Protection Act, Privacy and Electronic Communication Regulation, data security and information on the upcoming European General Data Protection Regulation (GDPR).

Data Compliant training courses are written in clear, easy language.  The online training includes relevant and engaging gamification, and is ideal for employees, volunteers and Trustees.  If you’d like more information, please email dc@datacompliant.co.uk or call 01787 277742.

Victoria Tuffill, CEO Data Compliant

EU DPA Regulation – 7 Key Changes

EU balance

A good balance between business needs and individual rights

Talks on ensuring a high level of data protection across the EU Marketers are now complete and draft text was agreed on Wednesday 16th December 2015.  Marketers are delighted with the “strong compromise” agreed by Parliament and Council negotiators in their last round of talks.

The draft regulation aims to give individuals control over their private data, while also creating clarity and legal certainty for businesses to spur competition in the digital market.  Back in September Angela Merkel appealed to the European parliament to take a business view rather than simply look at the Regulation from a data protection perspective  lest the legislation hold back economic growth in Europe.  At the same time she described data as the “raw material” of the future and expressed her belief that it is fundamental to the digital single market.

The regulation returns control over citizens’ personal data to citizens. Companies will not be allowed to divulge information that they have received for a particular purpose without the permission of the person concerned.

EU DPA Regulation – 7 Key Changes

  1. 4% Fines:  The Council had called for fines of up to two percent of global turnover, while the Parliament’s version would have increased that to five percent.  In apparent compromise, the figure has been set at four percent, which for global companies could amount to millions.
  2. Data Protection Officers (DPOs):  Companies will have to appoint a data protection officer if they process sensitive data on a large scale or collect information on many consumers.  These do not have to be internal or full-time.
  3. Consent:  to marketers’ relief, consent will now have to be ‘unambiguous’ rather than the originally proposed ‘explicit’ which provides a more business-friendly approach to the legislation. In essence this means that direct mail and telephone marketing can still be conducted on an opt-out basis.  Nonetheless, businesses will be obliged to ensure that consumers will have to give their consent by a clear and affirmative action to the use of their data for a specific purpose.
  4. Definition of Personal Data – the definition has been  expanded in particular by reference to an identification number, location data, online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that person.
  5. Online identifiers -whether cookies and ISPs are personal data has been the subject of discussion for some months.  James Milligan of the DMA has expressed the view that a compromise has been reached “Whether or not online identifiers such as cookies fall into the definition of ‘personal data’ will depend on where they are placed in the online ecosystem. For example, a cookie placed by my internet service provider will be classified as personal data as it could identify me, whereas a cookie placed by an advertiser lower down the online ecosystem and cannot be linked to my email address or anything else which could identify me, is unlikely to be considered as personal data.  This represents a sensible compromise as it was feared that all online identifiers would be considered as personal data. This separation means non-identifiable, ‘blind’ data can be more widely used than identifiable personal data.”
  6. Profiling – Profiling has now been included under the term ‘automated decision making’.  Individuals have the right not to be subject to the results of automated decision making, so they can opt out of profiling. It will be necessary to implement tick-boxes or similar mechanisms to secure the data subject’s positive indication of consent to specific processing activities related to Profiling.
  7. Parental consent – Member states could not agree to set a 13-year age limit for parental consent for children to use social media such as Facebook or Instagram. Instead, member states will now be free to set their own limits between 13 and 16 years.

 

Next Steps

The provisional agreements on the package will be put to a confirmation vote in the Civil Liberties Committee today (Thursday 17 December) at 9.30 in Strasbourg.

If the deal is approved in committee it will then be put to a vote by Parliament as whole in the new year, after which member states will have two years to transpose the provisions of the directive into their national laws. The regulation, which will apply directly in all member states, will also take effect after two years.

Written by Michelle Evans, Compliance Director at Data Compliant Ltd.

If you would like further advice on how the EU Regulation will affect your business, just call Michelle or Victoria on 01787 277742 or email dc@datacompliant.co.uk

 

 

Data Privacy and the Internet of Things

iStock_000044457776Small (1) Earlier this month (August 2014) Offcom announced that UK adults spend an average of eight hours and 41 minutes a day on media devices – which compares with an average night’s sleep of eight hours and 21 minutes …

I have to admit to being something of a science fiction fan and it seems to me that our own world has some interesting parallels with that created by E M Forster in his short novel, The Machine Stops.

The setting is a world where humans live in isolation in underground cells, and where everything is provided by the global “Machine” – music, art, literature, conversation, education, knowledge, interaction with other humans, food, religion, medicine – truly everything that humankind allegedly requires. In Forster’s world, travel is available, but unpopular and treated with suspicion. The physically strong are culled at birth. The weak survive.  When the Machine breaks down, the humans – its subjects – perish, leaving the only hope for the human race with those who had previously escaped the underground world and made their way to the surface to live outside the Machine’s jurisdiction.

In our own world, we have the internet, social media, online music, art, and the ability to educate, work and communicate, both personally and in business, from a distance.

And, of course, we have the Internet of Things, which is currently generating a great deal of interest and discussion, and which brings us ever closer to Forster’s world.

What is the Internet of Things?

The answer lies in the name, though it’s worth mentioning that “Things” include people.

??????????????????????????????????????????????????????In a nutshell, we are living in a world where broadband is an ubiquitous fact of life, technology is moving faster and faster – and becoming increasingly less expensive, and more and more devices are being created with wifi capability and sensors – from smartphones to fridges,  remote household heating systems to tumble-dryers, razors to kettles, and TVs to wearable devices.

According to Gartner (a Connecticut-based IT research and advisory company) by 2020 there will be over 26 billion connected devices.  With an assumed 8 billion people on the planet in the same year, that’s an average of over 3 ¼ ‘smart’ devices per man, woman and child!

For example, LG has developed a fridge that has a camera which allows owners to see what food is inside.  It scans items as they’re added, tracks expiry dates and recommends recipes based on the food available. The owner can also programme Body Mass Index (BMI) and weight loss targets.  Using smart TV and voice recognition technology, the fridge can see who is opening the door, recommend a recipe … and even in future turn on the oven to the right temperature if you choose that recipe!

It’s intended that this fridge will link with online food shopping services so that it can restock itself when supplies run low.  The fridge’s data will all be accessible to the owner vie smartphone, tablet or PCF so the owner can stay in control. (If you like the idea, the fridge is scheduled to be on sale in the UK later this year for around £2,000.)

RFID Tags and Security Issues

There is no doubt that the opportunity for automated household management may be appealing and is possibly unavoidable in the future.   And there are many other potential uses too, including tracking wildlife, chipping pets (and even humans), providing access to a person’s medical records, and monitoring our medical conditions to notify us of drugs and dosages to be taken.  We already have RFID technology in our passports, our travel passes, even our clothes (though primarily for stock control reasons rather than intended tracking).

But privacy is a real concern.  Given the sensitivity of some of the data to be collected, it is alarming to read that the default security settings on these devices are often very weak, making it straightforward for hackers to break into devices.  This has been amply demonstrated already:

‘Smart’ Devices Send out Spam emails …

Between December 23rd 2013 and January 6th 2014, about 750,000 spam messages were sent out by smart gadgets.  The malware involved was able to instal itself on a range of kitchen appliances, home media systems and web-connected televisions.  It was able to do so because the gadgets had not been set up securely, used default passwords, and the owners were unaware of the potential for security issues – if they even knew the devices carried RFID tags.

Privacy and Security

Data Compliant Cloud considerationsBusinesses must be mindful of the consumer’s privacy and security when they develop products that can gather and share data about what they, their owners, and other, linked “smart” products do.  This new technology will be collecting private, and sometimes deeply personal and sensitive data about the owners who may be wearing the technology or installing it in their homes.

Currently it seems that companies are storing data from these smart devices onto the cloud, without necessarily informing the consumer or giving them a choice.  Even with the antiquated Data Protection legislation currently in place, if such data would allow individuals associated with that data to be personally identified, that must be a breach of the DPA.

There’s no doubt that becoming compliant and secure in the RFID environment will be much simpler for businesses if they start the process at the very beginning of the technological developments.  They would also be well advised to make their compliance and security solutions scalable to avoid significant problems in the future.

The EU Directive on the Protection of Personal Data states that a person must freely give specific consent and be informed before their personal information is processed.  EU Member States are required to ensure confidentiality of communications by prohibiting unlawful interception and surveillance of personal information unless consent has been provided.

This suggests that using RFID chips unleashes serious privacy implications.  To remain compliant with EU data protection legislation, organisations should make it absolutely clear that:

  • The merchandise includes RFID tags
  • Whether the user’s data will be will be collected and stored by the organisation
  • What data will be collected
  • How the data will be used

 

EU RFID Technical Standards

RFD-Blue-1bAt the end of July, the European Commission has put out a series of recommendations to protect consumers from privacy risks associated with RFID chips.  Viviane Reding, former EU Commissioner said: “While smart chips working with RFID technology can make businesses more efficient and better organised, I am convinced they will only be welcomed in Europe if they are used by the consumers and not on the consumers. No European should carry a chip in one of their possessions without being informed precisely what they are used for, with the choice of removing or switching it off at any time. The ‘Internet of Things’ will only work if it is accepted by the people.”

Privacy Impact Assessments

While the sentiment is admirable, it has, until now, been difficult to see quite how it is enforceable.  A good starting point, however, is that an RFID Privacy Impact Assessment has been agreed, which should ensure data protection within current EU privacy regulations.

rfid logo

RFID Logo

In the meantime, the European Commission’s new RFID logo has been developed for items that include RFID tags so that individuals will know that they are carrying items that can be tracked – eg Oyster cards, fashion items, wearable technology and so on.   Unfortunately the scheme is voluntary, which means that businesses are not obliged to use the logos.

The Future

RFID items are increasingly widespread and popular – the technology is cheap and efficient, retailers find it enormously helpful from a stock control perspective, consumers find it useful.  It will be fascinating to see how the development of RFID products impacts on our lives, our privacy and our security.  Perhaps we’re not so very far away from the world envisioned by EM Forster back in 1909 – long before the internet and all its trimmings were in place.

As Shakespeare so tellingly put it:  “O brave new world that has such people in’t”