Tag Archives: dpa

Data Protection Weekly Round-up: PECR breaches, ransomware research and Facebook on security

Two large corporations fined for PECR breaches; Google study reveals ransomware profits, and Facebook urges people-led changes to security methodology

In the blog below, you’ll note how the Information Commissioner’s Office is taking a hard-line approach to PECR. If an organisation uses electronic channels to re-permission its database in time for GDPR enforcement in May 2018, it must comply with PECR. Moneysupermarket.com is the latest in a series of big names to fall foul of email regulations.

You’ll also see an analysis of ransomware profitability, which helps explain its continued growth; the final story summarises Facebook’s views on data security.

The ICO issues fines amounting to £160,000 for Provident Personal Credit and Moneysupermarket.com

The Information Commissioner’s Office has issued civil monetary penalties of £80,000 each for Provident Personal Credit, a Bradford-based sub-prime lender, and Moneysupermarket.com, a leading brand comparison site, on the 17^th and 20^th of July respectively. In both cases the fine was for breaching the Privacy and Electronic Communications Regulation (PECR).

Unsolicited texts annoy prospects and customers

Quick-loan credit firm Provident Personal Credit, a brand operated by Provident Financial, was fined £80,000 for sending out nearly 1 million nuisance text messages in the space of 6 months.

The company employed a third party affiliate to send the unsolicited marketing for loans provided by a sister brand, Satsuma Loans.

Text messages may not be sent if the recipients have not consented to receiving marketing texts, so this activity was in breach of PECR.

Beware of sending “service” emails which are actually “marketing” emails

A few days later, the price and brand comparison website Moneysupermarket.com was fined for sending 7.1 million emails over 10 days updating customers with its Terms and Conditions, despite these customers having explicitly opted-out of receiving this type of email. This offence is almost identical to the breaches for which Morrison’s, Honda and Flybe were fined last month.

One of the key problems was the section “Preference Centre Update” which said: “We hold an e-mail address for you which means we could be sending you personalised news, products and promotions. You’ve told us in the past you prefer not to receive these. If you’d like to reconsider, simply click the following link to start receiving our e-mails.”

In a previous blog, we explained the ambiguity between ‘service’ emails and ‘marketing’ emails when implicitly emailing or communicating marketing content to individuals who have opted out. This is in breach of regulations (which will only get stricter after the General Data Protection Legislation comes into force in May 2018).

Google research leads to fears of proliferating ransomware

Ransomware encrypts and scrambles victims’ computerised files. The files will not be decrypted until after a ransom is paid

Research carried out by Elie Bursztein, Kylie McRoberts and Luca Invernizzi from Google has found that cyber-thieves have made $25m (£19m) in the last two years through the use of ransomware. The research suggests that this type of malware regularly makes more than $1m (£761,500) for its creators.

The two strains of ransomware that have seen the most success are ‘Locky’ and ‘Cerber,’ which have collected $7.8m (£5.9m) and $6.9m (£5.2) respectively. But fears have arisen that due to the profitability of ransomware, new and more expansive variants will emerge amid the increasingly competitive, aggressive and “fast-moving” market for cybercrime weaponry. Mr Burszstein warns that ‘SamSam’ and ‘Spora’ are variants that seem to be gaining traction.

The research collected reports from victims of ransomware but also from an experiment wherein thousands of ‘synthetic’ virtual victims were created online. Mr Bursztein and his colleagues then monitored the network traffic generated by these fake victims to study the movement of money. More than 95% of Bitcoin payments (the preferred currency for ransom payments) were cashed out via Russia’s BTC-e exchange.

The lucrative nature of ransomware has led the Google researchers to conclude that it is “here to stay” and may well proliferate among the many syndicates and crime networks around the world. At a talk at the Black Hat conference, one of the world’s largest information security events, Mr Bursztein warned, “it’s no longer a game reserved for tech-savvy criminals, it’s for almost anyone.”

Facebook’s security boss argues that the industry should change its approach

Hitting the data security balance: user issues vs. tech solutions

At a talk at this year’s Black Hat, Facebook’s Chief Information Security Officer, Alex Stamos, has criticised the information security industry’s over-prioritisation of technology over people.

Advocating a ‘people-centric’ approach to information security, Mr Stamos stated his belief that most security professionals were too focused on complex ‘stunt’ hacks involving large corporations and state organisations, and tended to ignore problems that the majority of technology users face.

He told the attendees, “we have perfected the art of finding problems without fixing real-world issues. We focus too much on complexity, not harm.”

He explained that most Facebook users are not being targeted by spies or nation states, and that their loss of control over their information are from simple causes with simple solutions in which, he claims, the security industry takes no interest. He criticised the industry in general for lacking ‘empathy’ with less tech-savvy people, citing the often-expressed thought by security professionals that there would be fewer breaches and data losses if people were perfect.

He used the example of the widespread criticism from cyber experts that the security team for Facebook subsidiary Whatsapp faced after their decision to use ‘end-to-end’ encryption for the popular messaging app, which was heralded by some as sacrificing security for the sake of usability. Such a sacrifice did not manifest, but Mr Stamos was keen to emphasise the fact that it simply did not occur to security experts that usability was worth pursuing.

Mr Stamos advocated the diversification of the industry by working with less technically minded people who could empathise with the imperfections of tech-users, thus helping to develop more straightforward tools and services that would benefit a larger amount of people.

Facebook has also committed half a million dollars to fund a new project to secure election campaigns from cyber attack. The initiative will be run by the Belfer Center for Science and International Affairs, a think-tank affiliated to Harvard University. This is timely, given the scandals around the cyber- attack on French President Emmanuel Macron’s recent election campaign, and the Russian hack of the Democratic National Committee during the US elections last year.

If you have any data privacy compliance, governance or security concerns which you’d like to discuss with Data Compliant, please email dc@datacompliant.co.uk.

Harry Smithson 20th July 2017

ICO updates Subject Access Requests (SARs) advice for data controllers following Court of Appeal decisions

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The Information Commissioner’s Office (ICO) has updated its ‘Code of Practice on Subject Access Requests’ chiefly in response to several Court of Appeal decisions made earlier this year related to SARs. Under the Data Protection Act 1998, individuals (‘data subjects’) may request access to their personal information held by a ‘data controller.’

These requests for information are called SARs, and can range from the request for specific or limited information to the request for the entirety of held information including why it is held and to whom it may have been disclosed. The scope of a data controller’s obligations, therefore, will vary from case to case, and will be particularly burdensome for large organisations. Currently, data controllers may charge a fee of up to £10 for processing a SAR, and must provide the requester the relevant information within 40 calendar days. When the GDPR comes into force next year, data controllers will normally not be entitled to charge a fee, irrespective of the inconvenience, and will be expected to provide the information within a shorter timeframe of 30 calendar days.

However, the ICO has revised its guidance in dealing with SARs to prepare controllers for data compliance in light of the Court of Appeal’s judgements on a string of cases in which SARs took place alongside ongoing or threatened litigation – cases which in the opinion of numerous legal commentators, therefore, highlight the potential for widespread abuse of SARs to redress grievances outside the purview of data protection law.

The three key changes to the ICO’s Code

Scope for assessing ‘disproportionate effort’

The DPA includes an exemption from having to respond to SARs if this would involve ‘disproportionate effort’ for the data controller. Whereas the Code previously indicated that a refusal to provide information on the grounds of it being difficult is unacceptable, it now, with greater lenience, states: “there is scope for assessing whether, in the circumstances of a particular case, supplying a copy of the requested information in permanent form would result in so much work or expense as to outweigh the requester’s right of access to their personal data.” The ICO expects controllers to evaluate the benefits to the data subject as a result of the SAR against the difficulties in complying with the request, and assess whether the scope of the request is reasonable.

Dialogue between controller and requester

The ICO now advises controllers to enter into dialogue with data subjects following a SAR. This may allow the requester to specify which information they require, thereby refining the request, and making the process more manageable and less likely to result in disproportionate effort. The Code continues to explain how it will take into account both controller’s and subject’s willingness to participate in this dialogue if they receive a complaint about the handling of a SAR.

Information management systems and redaction of third-party data

The ICO now expects controllers to have information management systems wherein personal information, including archived or back-up data, can be found expediently in anticipation of a SAR. Moreover, the information management system should allow for the redaction of third-party data. This is important, since certain SARs may be declined if the information requested would result some way in the disclosure of personal information about another living person.

Subject Access Requests: For more information have a look at the 4 Court of Appeal decisions that informed the ICO’s revised guidance: Dawson-Damer v Taylor Wessing LLP, Ittihadieh v 5-11 Cheyne Gardens, Deer v Oxford University, Holyoake v Candy

Harry Smithson 7th July 2017

Weekly Roundup: Global Cyber-Attack, Google Scan Emails, Political Party Under Investigation, Nuisance Calls Fine

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Malware outbreak in 64 countries, Google scrap email scans, and the Conservative Party face ‘serious allegations’

Global cyber-attack disrupts companies in 64 countries

Corrupted Ukrainian accountancy software ‘MEDoc’ is suspected to be the medium of a cyberattack on companies ranging from British ad agency WPP to Tasmanian Cadbury’s factory, with many European and American firms reporting disruption to services. Banks in Ukraine, Russian oil giant Rosneft, shipping giant Maersk, a Rotterdam port operator, Dutch global parcel service TNT and US law firm DLA Piper were among those suffering inabilities to process orders or else general computer shutdowns.

Heralded as “a recent dangerous trend” by Microsoft, this attack comes just 6 weeks after the WannaCry attack primarily affecting NHS hospitals. Both attacks appear to make use of a Windows vulnerability called ‘Eternal Blue,’ thought to have been discovered by the NSA and leaked online – although the NSA has not confirmed this. The NSA’s possible use of this vulnerability, which has served to create a model for cyber-attacks for political and criminal hackers, has been described by security experts as “a nightmare scenario.”

A BBC report suggests that given 80% of all instances of this malware were in Ukraine, and that the provided email address for the ‘ransom’ closed down quickly, the attack could be politically motivated at Ukraine or those who do business in Ukraine. Recent announcements suggest it could be related to data not money.

The malware appears to have been channelled through the automatic update system, according to security experts including the malware expert credited with ending the WannaCry attack, Marcus Hutchins. The MEDoc software would have originally begun this process legitimately, but at some point the update system released the malware into numerous companies’ computer systems.

Google to stop scanning Gmail accounts for personalised marketing data

In a blog published at the end of last week, the tech firm Google have confirmed that they will stop scanning Gmail users’ emails for the sake of accruing data to be used in personalised adverts, by the end of the year. This will put the consumer version of Gmail in line with the business edition.

Google had advertised their Gmail service by offering 1GB of ‘free’ webmail storage. However, it transpired that Google was paying for this offer by running these scans.

This recent change in tactic has been met with ‘qualified’ welcome by privacy campaigners. Executive director Dr Gus Hosein of Privacy International, the British charity who have been campaigning for regulators to intervene since they discovered the scans, stated:

When they first came up with the dangerous idea of monetising the content of our communications, Privacy International warned Google against setting the precedent of breaking the confidentiality of messages for the sake of additional income. […] Of course they can now take this decision after they have consolidated their position in the marketplace as the aggregator of nearly all the data on internet usage, aside from the other giant, Facebook.

Google faced a fairly substantial backlash on account of these scans when they were discovered, notably from Microsoft, with their series of critical ‘Gmail man’ adverts, depicting a man searching through people’s messages.

However, digital rights watchdog Big Brother Watch celebrated Google’s move, describing it as “absolutely a step in the right direction, let’s hope it encourages others to follow suit.”

UK Conservative Party under investigation for breaching data protection and election law

A Channel 4 News undercover investigation has provoked ‘serious allegations’ of data protection and election offences against the Conservative Party.

The investigation uncovered the party’s use of a market research firm based in Neath, South Wales, to make thousands of cold calls to voters in marginal seats ahead of the election this month. Call centre staff followed a ‘market research’ script, but under scrutiny this script appears to canvass for specific local Conservative candidates – in a severe breach of election law.

Despite the information commissioner Elizabeth Denham’s written warnings to all major parties before the election began, reminding them of data protection law and the illegality of such telecommunications, the Conservatives operated a fake market research company. This constitutes a breach separate to election law, and mandates the Information Commissioner’s Office to investigate.

The ICO’s statement on 23^rd June reads,

The investigation has uncovered what appear to be underhand and potentially unlawful practices at the centre, in calls made on behalf of the Conservative Party. These allegations include:

Paid canvassing on behalf of Conservative election candidates – banned under election law.
Political cold calling to prohibited numbers
Misleading calls claiming to be from an ‘independent market research company’ which does not apparently exist

MyHome Installations Ltd fined £50,000 for nuisance calls

Facing somewhat less public scrutiny and condemnation than the Conservative Party, Maidstone domestic security firm MyHome Installations has been issued a £50,000 fine by the ICO for making nuisance calls.

The people who received these calls had explicitly opted out of telephone marketing by registering their numbers with the Telephone Preference Service (TPS), the “UK’s official opt-out of telephone marketing.”

The ICO received 169 complaints from members of the public who’d received unwanted calls about electrical surveys and home security from MyHome Installations Ltd.

Harry Smithson 28 June 2017

Queen’s Speech Confirms New Bill to Replace Data Protection Act 1998

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As part of several of measures aimed at “making our country safer and more united,” a new Data Protection Bill has been announced in the Queen’s Speech.

The Bill, which follows up proposals in the Conservative manifesto ahead of the election in June, is designed to make the UK’s data protection framework “suitable for our new digital age, allowing citizens to better control their data.”

The intentions behind the Bill are to:

Give people more rights over the use and storage of their personal information. Social media platforms will be required to delete data gathered about people prior to them turning 18. The ‘right to be forgotten’ is enshrined in the Bill’s requirement of organisations to delete an individual’s data on request or when there are “no longer legitimate grounds for retaining it.”
Implement the EU’s General Data Protection Regulation, and the new Directive which applies to law enforcement data processing. This meets the UK’s obligations to international law enforcement during its time as an EU member state and provides the UK with a system to share data internationally after Brexit is finalised.
To update the powers and sanctions available to the Information Commissioner.
Strengthen the UK’s competitive position in technological innovation and digital markets by providing a safe framework for data sharing and a robust personal data protection regime.
Ensure that police and judicial authorities can continue to exchange information “with international partners in the fight against terrorism and other serious crimes.”

Ultimately, the Bill seeks to modernise the UK’s data protection regime and to secure British citizens’ ability to control the processing and application of their personal information. The Queen’s Speech expressed the Government’s concern not only over law enforcement, but also the digital economy: over 70% of all trade in services are enabled by data flows, making data protection critical to international trade, and in 2015, the digital sector contributed £118 billion to the economy and employed over 1.4 million people across the UK.

Written by Harry Smithson, 22nd June 2017

Data Compliant’s Weekly Round-Up

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hacker-1

It’s the weekend before Christmas. Have you done all your Christmas shopping? If you’re shopping online, this is the last weekend you can really do your online shopping and still get everything delivered on time.

Now you may be bored of hearing it but please be careful, look after your passwords, change them regularly, don’t have devices store your information! Lets start the year without a stranger stealing money from your credit cards and bank accounts!

Yahoo…Again

This week brings us the news that Yahoo had announced a hack from 2013 – a separate breach to the 500,000 hacked records announced in September.

Yahoo was investigating the 2014 breach when it uncovered the earlier hack – this time discovering that a billions accounts had been compromised.

The reputational damage to Yahoo is enormous – a clear pattern of poor security is emerging and if I had an account with Yahoo, I’d be considering changing my provider immediately. Having said that, though, how can we be certain that other companies haven’t had similar breaches and we just don’t know about them yet?

The ICO’s deputy commissioner, Simon Entwisle has released a statement saying that they are talking to Yahoo and will try to find out how many UK users have been affected by the latest hack. Their immediate advice is to recommend strongly that customers change their passwords if they haven’t already.

TalkTalk
An update on the huge TalkTalk hack has been released. One of the hackers, a 17 year old, has admitted to 7 offences relating to the hack and has been given a 12-month rehabilitation order and an £85 fine. He was told his excellent computer skills need to be used for the good. 19-year old Daniel Kelley also pleaded guilty. He has been told that a jail sentence is inevitable, and has been released on bail prior to sentencing in March.

Uber
Uber has come under fire after an ex-worker claimed that staff could track fares of celebrities, politicians and even ex-partners. If that’s true, it’s lucky for me I’ve only ever used it in Australia where no exes live and unfortunately I’m not yet a celeb!

Uber released a statement to the Standard stating that the claims made by Mr Spangenberg are “absolutely not true … we have hundreds of security and privacy experts working round the clock to protect our data … all potential violations are quickly and thoroughly investigated.” Uber also makes it clear that access to personal data is limited to approved workers who may only access the data they need in order to perform their job function.

Lionhead Studio just as bad as ‘Trolls”?
It has been released this week at a BAFTA event that a teenager targeted Sam van Tilburgh and his team, back in 2003, when they were creating the game Fable. The teen released a screen shot of the hero stabbing a child in the head – something no one was expecting to see.

Rather than go through official routes, Tilburgh and team decided adopt an unconventional aporiach. They were able to track the boy’s IP address and let care the teenager. They then ‘acquired’ some of his school work from and published a part of it, with a demand that he stop or they would publish more and tell be his family what he was up to. He did indeed stop.

Tilburgh said Lionhead’s legal team knew nothing of the retaliating hack, and it has taken 13 years for the story to surface! I wonder if there’ll be repercussions.

The National Lottery hit with fine
So it wasn’t so long ago we heard that hackers had attacked The National Lottery (TNL). Today we hear TNL’s operator Camelot has been issued with a fine of £3m because of a fraudulent payout back in 2009. How this happened has not yet been announced but it sounds as if a ‘deliberately damaged ticket’ was to blame. The prize fund payout is suspected to be around £2.5m but the actual figure has not yet been officially released.

I, for one will continue to buy my lottery tickets. Although The National Lottery has come under fire recently, it has fuelled a whopping £36 billion into good causes such as sports, community and heritage projects. Also imagine if you won.. (legitimately)

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Written by Charlotte Seymour, 17th December 2016

Insider Threats – Charlotte’s View

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Insider Threats – Charlotte’s View

Something that is being spoken about more and more (due to the unfortunate higher frequency) is insider threat. It’s in the news an awful lot more than it ever used to be.

Do you remember the auditor of Morrisons who released a spreadsheet detailing just shy of 100,000 members of staff’s (very) personal details? He did end up getting jailed for 8 years but I heard a saying recently, it’s not a digital footprint you leave it’s more of a digital tattoo. Even two years after the incident Morrisons is still suffering the effects.

Now obviously that was what you would call a malicious breach. It does unfortunately happen, but there are ways for you to protect your company against this. Firstly we here at Data Compliant believe that if you have detailed joiner processes in place (i.e. thorough screening and references and criminal checks where appropriate), ongoing appraisals with staff and good leaver processes you can minimise your risk.

Other ways of insider breaches occurring, and much more likely in my opinion, are negligence, carelessness and genuine accidents. Did you know that over 50% of data breaches are cause by staff error? This may be because staff do not follow company procedures correctly and open up pathways for hackers. Or it could be that your staff are tricked into handing over information that they shouldn’t.

Your staff could be your company’s weakest point in relation to protecting it’s personal and confidential data. But you can take simple steps to minimise this risk by training your staff in data protection.

Online training has some big advantages for businesses, it’s a quick, efficient and relatively inexpensive way of training large numbers of employees while “taking them out of the business” for the least possible time.

The risk of breaches isn’t just your business’ reputation, or even a hefty fine from the ICO but as mentioned before, also a criminal conviction. Now that is a lot to risk.

If you’re interested in online training have a look at this video.

Written by Charlotte Seymour, November 2016

Delays to the EU Data Protection Regulation …

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There has been little progress on the draft EU Data Protection Regulation since October. However, the Greek Government took over the Presidency of the Council of the European Union in January 2014, so it is now up to them to progress this legislation.

It is clear that delays are inevitable. Even if the draft is agreed at the Justice and Home Affairs Ministers Council meeting in June, the process then continues with three-party negotiations between Justice and Home Affairs Ministers, the European Commission and the European Parliament.

That process is unlikely to start before the autumn, which would mean that the EU Regulation must be delayed until the end of this year or, more likely, until early 2015. This will delay the law coming into force until the end of 2016 at the earliest, and more likely in 2017.

Three aspects of the new legislation that we have not covered in previous blogs are:

· International Data Transfers: this is a new certification programme which will allow data controllers and processers to apply for certification under The European Data Protection Seal. The certificate will be gained through an audit of data processing activity and certification granted by data protection authorities or accredited third parties. The European Data Protection Seal will enable legitimate transfers of data outside the EEA to recipients who also hold a Seal.

· Data Protection Officers: though still in the draft stage, it is clear that firms will be encouraged or required to appoint data protection officers (DPOs) to ensure an organisation uses, controls and processes data compliantly, nationally and / or globally. There are 500 million citizens within Europe, and currently, a DPO is to be appointed if an organisation processes data on more than 5,000 individuals per annum.

· One Stop Shop continues to be a subject of fierce debate. It is significantly different from current legislation where a business is always subject to the data protection authority in each and every country in which it operates. Under the new One Stop Shop rule, a business which operates in several of the EU Member states would only be subject to the national data protection authority in the country where its Head Office is based.

The debate relates to citizens’ human rights – any data protection complaint made against a company whose head office location is in a different country, will mean that individuals must complain to their own national data protection authority, who will then pass it onto the authority in the relevant country. This complexity will make it difficult for individuals to complain simply and effectively, and argument rages over whether and to what extent this might undermine human rights.

If you are concerned about how the new European legislation might affect you or your business, don’t hesitate to get in touch with Victoria or Michelle on 01787 277742. Or emailvictoria@tuffillverner.co.uk or michelle@tuffillverner.co.uk

NHS … patient data … what’s next?

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According to the ICO, there were 388 data breaches relating to health data in the first nine months of 2013. That is 34% of all the data breaches in the UK during the same period, and the proportion has increased from 27% at the end of March to 38% by the end of September 2013. The chart below compares the number data breach levels by industry sector over the same period. Given the sensitivity of the health data held by medical organisations in this country, those are shocking statistics.

Centralised medical records database

Despite this poor track record, very soon the NHS is going to combine all our medical records into one massive database. Every GP practice in the UK will shortly begin to disclose their patients’ personal and sensitive data to care.data at the Health and Social Care information Centre (HSCIC). The process is monthly, automatic, and assumes patient consent unless patients actively opt out – which is not necessarily a simple process.

So what does this mean to patients? Essentially, personal confidential data (PCD) such as family history, vaccinations, diagnoses, referrals, blood pressure, BMI, cholesterol and NHS prescriptions and more will be extracted from GP systems and shared with care.data.

In order to match data from the GP surgeries with data acquired by the HSCIC from other sources (such as hospitals) identifying data such as data of birth, postcode, NHS number and gender will be included within the data extracts. Once matched across all the data sources, the data is pseudonymised (ie identifying characteristics are removed).

Once an individual is flagged as “deceased” no further data will be collected – though the data already provided will continue to be processed by the HSCIC.

What are the benefits?

If it were possible to trust the security and intentions of those collecting the data, there are some fantastic potential benefits, for example improved patient care; the effective prevention, treatment and management of illness; hospital performance, management of NHS resources; or the analysis and understanding of specific treatment benefits; even planning new health services.

What are the risks?

The poor track record of the NHS in terms of protecting our medical data is alarming and raises concerns over confidentiality of our medical records. In addition, there are increasing numbers of private companies who provide services to the NHS, from physiotherapists to care homes; from private hospitals to insurance companies. Members of the public are likely to be uneasy about private companies benefiting from their health data, and equally concerned that their GP will no longer be the “gatekeeper” of their confidential medical data.

Furthermore, although the data will be pseudonymised, single-minded analysts may undoubtedly try and will probably succeed to some degree in finding a way of matching the data against other commercial data sets to “re-identify” the individuals.

Who can use the data?

The data can be released for five listed reasons: health intelligence, health improvement, audit, health service research and service planning. That’s a pretty broad spectrum, and it is evident that the number and range of potential customers for this centralised database of our medical records is enormous.

For example, how long it will be before insurers persuade the HSCIC that it is to the benefit of the health and social care system that they should model and predict medical claims rates based on the UK’s centralised medical database, and use the findings to price their medical insurance policies accordingly.

Can GP practices opt out?

The Health and Social Care Act 2012 creates a statutory obligation for GP practices to disclose the information as directed. GPs are unable to refuse to do so as such refusal would put them in breach of the statutory requirement.

But because the GP practice is actually the “data controller” of their patients’ confidential medical records, GP practices are also responsible for ensuring that their patients’ personal and sensitive data is handled fairly (as defined under the Data Protection Act 1998).

So it is up to GPs to ensure that patients are aware that their data will be shared with the HSCIC, that the HSCIC has powers to extract personal confidential data, and, arguably, what the HSCIC intends to do with the data.

And if a patient claims they were unaware that their data was to be shared, it would be the GP practice who would be investigated by the ICO.

The GP practices remain data controllers of the data they hold within the practice, but are no longer responsible for the data once it has been disclosed to the HSCIC. Instead the HSCIC and NHS England become joint data controllers who are obliged to comply with the Data Protection Act. NHS England will determine the “Purpose” for the data collection, while the HSCIC will determine the manner of processing.

How do patients opt out?

Normally one would expect the sharing of data of this sensitivity and confidentiality to be subject to patient opt-in, rather than the NHS assuming consent. However, the Health and Social Care Act 2012 empowers the HSCIC to require providers (eg your GP practice) to send it personal confidential data when directed to do so. And the Act overrides the requirement to seek patient consent.

A patient can inform their GP of their wish to opt out, and no reason is required. It is worth noting that the right to opt out has been implemented as a constitutional rather than a legal right. Having opted out, it is up to the GP practice to ensure that the right code is appended to the legal record.

However, the patient has no right to prevent his or her medical data leaving the GP practice if such data carries no identifiable information as this is anonymous data rather than personal data. The question, really, is what is “identifiable information”? It is DOB? Arguably in some circumstances, it may be. And surely an NHS number is identifiable information.

The Secretary of State for Health has given a commitment that individuals’ objections to disclosure ot the HSCIC will be respected in “all but exceptional circumstance” (for example, a civil emergency).

Is the process compliant?

You could argue that this data sharing activity defies the second principle of the Data Protection Act: “Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with the purpose or those purposes”. In my view, you don’t talk to your doctor about a medical condition for any purpose other than to have him solve – or try to solve the problem for you. And while that may include prescriptions, or visits to consultants, hospitals and clinics, making our medical records data available to commercial organisations cannot possibly be considered the “Purpose”.

Data Compliance October Round-up

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What’s happening in Europe … and beyond?

Update 28.10.13

The new date for implementation of a proposed new data protection regulation (DPR) – has been pushed back to “by 2015”, thanks in part to David Cameron’s efforts to protect the interests of UK business. Germany were also supportive though Merkel’s reasoning was slightly different “… to ensure that it can reconcile the existing rights of its citizens.”

23.10.13

On 21st October, 2013, the European Parliament approved its Compromise Text of the proposed EU General Data Protection Regulation. Still a long way from being complete, but the latest from Europe is:

1. Pseudonymous data now has its own definition – currently “personal data that cannot be attributed to a specific data subject without the use of additional information, as long as such additional information is kept separately and subject to technical and organisational measures to ensure non-attribution”.

2. Data Protection Officers: a data controller or processor must appoint a Data Protection Officer when processing personal data relation to over 5,000 data subjects in any consecutive 12-month period. Also where the core processing activities relate to processing location data, children’s data, sensitive personal data, or employees in large scale filing systems.

3. A new concept has been introduced – a European Data Protection Seal -a certification process which allows international data transfers outside the EEA to recipients that also hold a Seal.

4. Right to erasure: the right of data subjects to have their personal data erased if requested is still in the draft (originally “right to be forgotten”). And it’s been strengthened – if the data subject asks a controller to erase his data, the company should also forward the request to others where the data is replicated.

Pulling NSA’s teeth …

The Compromise text had some other changes, including new data protection rules designed to curb America’s spying activities. The intention is to make US secret court orders powerless, and to force companies based outside the EU, like Google and Facebook, to comply with European data protection laws if they operate in Europe. Powers to levy fines running into billions of Euros are being made available to discourage violation of the new rules.

For example, if a third country’s court, tribunal or other administrative authority requests a company (such as a social network or cloud provider) to disclose personal data processed in the EU, that company must notify the data protection authority and obtain their authorisation before any such data transfer can be made.

This step is largely due to Edward Snowden’s information about the American companies, platforms and social networking sites which have been forced to share substantial volumes of EU citizens’ personal online data (from emails and phone calls to video chats and web searches) with the National Security Agency (the US intelligence organisation which collects, monitors, decodes, translates and analyses foreign intelligence and counterintelligence information and data).

The third country issue has been ongoing since January 2012, when the proposed reform to the law was dropped after intense US lobbying. It now seems clear that the EU has had enough, particularly since the revelations that the NSA systems collected – in the single month from February 8th to March 8th – 24.8 billion telephone data and 97.1 billion computer data from across the globe – including UK, Germany and France.

In addition the French are aggrieved that, from December 2012 to January 2013, the NSA were reported to have made 70.3 million recordings of French individuals’ telephone data.

While the NSA is known to collect and store all phone records of all American citizens, their profligate global approach to privacy is clearly unacceptable, and Europe has taken steps to limit their – and other agencies and countries’ – powers.

So now it’s just the simple matter of balancing the need to combat terrorism versus people’s protection of the rights to privacy. Which makes it hardly surprising that this legislation is taking so long with a record-breaking 4,000 amendments so far. It is thought that there is a less than 50% chance of the new regulations going through in the time-frame, though final legislation is still anticipated before the European elections in May 2014.

India’s Draft Privacy Protection Bill

The issue of data protection in India has been generated for a number of reasons – not least, Europe’s concerns given the sheer volume of personal data that is transferred to India. Also, within India itself, there is concern among Indian citizens in relation to the combination of the use of personal identifiers (including biometric data) and extensive individual profiles.

India has been holding a set of roundtable talks since April 2013, with the goal of generating recommendations for a privacy regulatory framework. The last of those talks was held on October 19th between the Center for Internet and Society, the Federation of Indian Chambers of Commerce and Industry, and the Data Security Council of India. Christopher Graham, the UK Information Commissioner, was among the speakers.

We’ll send more updates as they come through – in the meantime, if you have any concerns over how these or the existing DPA and PECR regulations might affect your business, don’t hesitate to contact us.

: Victoria Tuffill
01787 277742
victoria@tuffillverner.co.uk

: Michelle Evans
01206 392909
michelle@tuffillverner.co.uk

Data Compliance October Round-up UK

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Meanwhile, back in the UK …

Telemarketing – Caller identification spoofing …

Earlier this week, Canada, the United States and the United Kingdom issued a joint statement making it clear that they intend to combine their resources to tackle the problem of caller ID spoofing.

Spoofing is a practice conducted by telemarketers who want to conceal their true identity rather than fulfil their legal obligation to identify themselves. Spoofers provide their caller ID with false information which may be a string of digits, or a random or stolen number belonging to a real person or organisation. It is on the increase, and makes it particularly difficult for the authorities to track down those responsible for non-compliant or illegal calls.

The various agencies responsible for enforcing telemarketing and privacy laws announced that they will coordinate their efforts through the international law enforcement network of the London Action Plan and the International Do Not Call Network. If they need the telecoms industry to provide help, they will ask those organisations within their respective countries.

Next steps are exploratory discussions, to be held later this month, to identify options focusing on enforcement, industry compliance and consumer education, technology and regulatory issues with the goal of considering solutions available to stop spoofing and to take action against those responsible.

DATA BREACHES AND FINES

What a monumental blunder …

We heard yesterday that The Ministry of Justice was on the receiving end of the ICO’s judgement, when it received a fine of £140,000 – after details of ALL the prisoners serving time at HMP Cardiff were emailed to three of the inmates’ families.

The fine goes back to 2011 – when, on 2nd August, the recipients received an email from a prison clerk which included a file containing details of the 1,182 inmates – including names, ethnicity, addresses, length of sentence, release dates, and the offence codes. Worse yet – this wasn’t the first time such a breach had occurred. Within the previous four weeks, the same error occurred twice – with details sent to different inmates’ families.

The ICO’s investigation found:

Clear lack of management and supervision at the prison, where the clerk concerned was found to have received limited training and experience, though he was left to work unsupervised.
Audit trails were lacking and the only reason the breach was identified was because one of the recipients reported receipt of the information to the prison.
Problems with the methods used to handle the prisoners’ records, such as the use of unencrypted floppy discs to transfer large volumes of data between networks

The importance of being registered …

If organisations process personal data, with a very few exceptions, they must register with the ICO and spell out the type of information they process. Not doing so is a criminal offence – as Hamed Shabani, sole director of payday loan company First Financial, discovered.

After failing to register, he and his company were prosecuted by the ICO and convicted in the Magistrate’s Court. As Director of the company, he was fined a modest £150 and ordered to pay £1,010.66 towards the costs of prosecution and a £20 victims’ surcharge. In addition, the company itself was fined £500, and also made to pay £1,010.66 towards costs plus a £50 victims’ surcharge.

The total bill of £2,741.32 compares rather unfavourably against the annual £35 notification fee he should have paid. It is also interesting to note that Hamed Shabani tried to remove his name from the company’s registration at Companies House in an attempt to avoid prosecution.

To quote Stephen Eckersley, ICO Head of Enforcement:

“Pay day loans companies hold important information about some of the most financially vulnerable people in the UK. This makes this company and its director’s decision not to face up to their legal responsibilities all the more concerning.

“Businesses must commit to looking after the information of their customers and this begins with making sure that they are registered. We will continue to use our enforcement powers to safeguard people’s information.”

The importance of a strong BYOD policy …

BYOD (Bring your own device) continues to be high on the ICO’s priority list – earlier this month, the Royal Veterinary College breached the DPA when a member of staff lost their camera whose memory card held 6 job applicant passport pictures. Unfortunately, the RVC had not briefed staff on how personal information stored for work should be looked after on personal devices.

Nearly half of all UK employees now use their smartphones, tablets, PCs for work purposes, and the number is growing. As a result, organisations must update their data protection policies to take this into account.

Stephen Eckersley said:

“Organisations must be aware of how people are now storing and using personal information for work and the Royal Veterinary College failed to do this. It is clear that more and more people are now using a personal device, particularly their mobile phones and tablets, for work purposes so its crucial employers are providing guidance and training to staff which covers this use.”

The importance of encryption …

If you are unlucky enough to have a portable device containing personal data stolen, it could cost you much more than simply replacing the device. As the owner of loans company Jala Transport discovered to his cost. He stopped his car at a set of traffic lights, only to have his car boot broken into. A hard drive – containing financial details of his 250 customers – was stolen, along with £3,600 cash.

Though the hard drive was password protected, the data within was not encrypted, and it included customers’ names, dates of birth, the payments made, and the identity documents provided to support the loan application. Because the hard drive had not been encrypted, all those customers were left wide open to the threat of identity theft.

The penalty could have been £70,000, but was reduced to £5,000 to reflect the limited financial resources of the company and the fact that the breach was reported voluntarily.

Stephen Eckersley said of this case:

“We have continued to warn organisations of all sizes that they must encrypt any personal data stored on portable devices, where the loss of the information could cause clear damage and distress to the customers affected…

“The penalty will have a real impact on this business and should act as a warning to all businesses owners that they must take adequate steps to keep customers’ information secure.”

Rates of identity fraud continue to rise

Identity fraud is the most significant threat facing the UK, making security a key issue not only for businesses but also for individuals. Not taking steps to protect personal data just gives fraudsters a license to steal. This is clearly illustrated by the stats – identity fraud now accounts for over half of all committed fraud and is still growing. CIFAS confirmed 114,000 frauds in the first half of 201, of which 52% involved impersonation or fake identity details. An additional 14% of frauds involved account takeover.

All the stories above reflect the importance of being and remaining data compliant and illustrate the penalties that can be imposed by the ICO. If you would like any advice on how to become and remain compliant, just call us for a no-obligation chat.

: Victoria Tuffill
01787 277742
victoria@tuffillverner.co.uk

: Michelle Evans
01206 392909
michelle@tuffillverner.co.uk

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