Doorstep Dispensaree

This entry is part of 1 in the series Lessons Learned

Since it’s a New Year, and an opportunity presented itself, I’m trying something new. In this series, if it continues, I will be looking at various incidents and pulling out the lessons we can, should, or must learn in security. This first article looks at the first penalty levied by the ICO under GDPR, against Doorstep Dispensaree.

There are a few lessons to pull out of this case, but for those who want to look at the details themselves the full ICO penalty notice is available from their website.

The ICO identified a number of failings after they were called in by the MHRA, who had found some curious containers while executing a search warrant for their own investigation. In a courtyard behind the premises they found:

  • 47 unlocked crates
  • 2 disposal bags
  • 1 cardboard box

These unsecured containers, stored outside, contained around half a million documents – some water damaged – with personal information including medical and prescription information dating from 2016-2018. Shortly after they were informed, the Commissioner sent a request for additional information, a list which will be familiar to anyone who has banged their head against GDPR enough: data retention and disposal policies, privacy notice, explanation of why some data had been retained since 2016 and was stored in this way, and various other standard bits of evidence.

In response Doorstep Dispensaree did not cover themselves in glory by denying knowledge of the matter. Things escalated when they then refused to answer questions following a second request, apparently confusing the ICO and MHRA investigations. After an Information Notice was issued requiring the information, then appealed and upheld, they provided about half of the information claiming protection under the DPA 2018 that providing the rest would expose them to prosecution by the MHRA.

As part of their documentation, they did kindly provide the National Pharmacy Association template Data Protection Officer Guidance and Checklist, and Definitions and Quick Reference Guide. Other documents did not mention the GDPR, and the template were the original templates from the National Pharmacy Association.

Lessons

In all Doorstep Dispensary were found to have contravened Articles 5, 13, 14, 24 and 32 to some degree or another. It’s a good thing for them that no information was stolen, as the ICO would have been unlikely to look on them kindly if anything had happened – especially as given the serious compliance failures it is unlikely any notification of the breach would have been forthcoming until the MHRA investigation flagged it up, and certainly not within the required 72 hours.

You cannot delegate responsibility for data you control

Doorstep Dispensaree failed to dispose of the data securely, fairly clearly as some of it dated from 2016. An attempt was made to have the penalty assigned to a waste disposal company, blaming them for not having picked up the waste, which the ICO dismissed. While no evidence that the company was contracted was provided, Doorstep Dispensaree also failed to implement their own claimed shredding procedures, and in any case as the data controller they are ultimately accountable for the breach.

Information security is more than just confidentiality

Apparently storing sensitive personal information in unlocked boxes in an accessible yard is not considered secure storage or processing. As this is fairly obvious, the main point of interest here is that the ICO picked up on water damage to the documents being another failing. In information security terminology, there was a failure to ensure integrity and availability along with confidentiality. There is more to information security than simply locking data away.

Policies do not work retroactively

The ICO commented that eventually Doorstep Dispensaree did provide a more comprehensive set of policies. Unfortunately many were still in template form and had been acquired as a response to the investigation. The lesson here is that once an investigation has started, it’s probably too late to start downloading policy templates – best to put a framework in place beforehand.

Only keep data that needs to be kept

While the ICO were generous enough to only consider on-going infringement from May 2018, they remarked that the age of the data caused some concern about retention.

Be clear on your privacy notice

Your privacy notice requires you to state who the controller is and how to contact them, the nature of the processing and the basis (and with special category data the additional basis for processing), the categories of personal data you collect and work with, all parties involved in the processing of data, how long it is retained, the rights of the data subjects, and where personal data is collected. It must also be written in clear, unambiguous language and be freely available to data subjects.

A GDPR breach does not require that data has been lost or stolen

What’s particularly interesting about this case compared to many of the headlines about cyber-related data protection incidents, is that no data was stolen. The fact that it could have led to distress and damage to individuals is sufficient.

Trying to improve counts

The improvements Doorstep Dispensaree claims to be making have been taken into account, even though some of the policy documents presented are still in template format.

If you are found in breach, co-operate

It is very clear that the lack of early co-operation did more to hurt than help Doorstep Dispensaree’s case. Later co-operation and attempts to improve were taken into account, and the original proposed penalty of £400 000 was finalised as £275 000.

Santa and the GDPR

There’s a meme that’s been doing the rounds for a while, and with Christmas approaching has become especially popular.

Firstly article 4 is made up of definitions (https://gdpr-info.eu/art-4-gdpr/), so difficult to be in breach of, but let’s ignore that and run with the joke.

Lawful Basis

The first thing to do is to establish the lawful basis under which the processing is taking place. I’d argue that contract rather than legitimate interests applies here, since there is a standing agreement between parties (who believe in Santa) and Claus Corp. that belief and good behaviour will bring gifts (bad behaviour, obviously, bringing coal or similar). While the parties in question are under the age of capacity (in the vast majority) and cannot enter contracts themselves, in this instance their guardians can give consent to enter into and perform the gift/behaviour exchange contract on their behalf (https://gdpr-info.eu/art-8-gdpr/).

Now this does raise the question of children or other parties who do not believe. In this instance there is no mechanism for Claus Corp. to collect or process any data about these parties and so again I see no problems here. Data is only collected on those who believe in Santa, and therefore also agree to the gift/behaviour contract (or rather will have guardians willing to do so on their behalf).

There is an argument that legitimate interests could apply as a legal basis, but the additional responsibility, right to portability, and other requirements make it less suitable in this instance.

Right to Object

Under the contract lawful basis data subjects do have the right to object () to the processing of their data, meaning the processing must cease unless the controller can demonstrate legitimate grounds for the processing weighed up against the interests of the data subject. Of course, objecting would raise questions about gifts later being received, meaning that if an objection is received processing would cease in any case. Now it is important that in any correspondence with the data subject, or their guardian, Claus Corp. notify them of their right to object and the mechanism to do so, but this is a relatively simple requirement.

Notification Obligation and Restriction of Processing

Claus Corp. does have a responsibility to communicate any rectification or erasure of personal data, or restriction of processing (https://gdpr-info.eu/art-19-gdpr/). Of course, the contract basis does not provide an automatic right to erasure, we have already established that the processing is lawful, and Claus Corp. famously keeps their data worryingly up to date. The only instance that could apply is one in which the controller, Claus Corp. no longer needs the data for the purposes of processing but the subject wishes for the data to be retained for legal purposes. Given the unlikelihood of any legal case dependent on Claus Corp. data, and their extraterritoriality for any treaties allowing legal authorities access to their databases, this is not a scenario that needs to be examined in depth.

Automated decision-making and profiling

This is an area that could raise issues for Claus Corp. While the details of their decision-making process are obviously proprietary, it is safe to assume at least some level of automation is involved due to the sheer volume of data gathered (https://gdpr-info.eu/art-22-gdpr/). However, in this instance not only are no legal effects produced, but the processing is necessary to enter into and perform the gift/behaviour exchange contract. Whether the data subject (or their guardian(s)) give explicit consent is a more challenging question, as it is clear that by believing and communicating that belief to guardians they are making a clear and active decision to enter into the contract. I suspect this would be seen as explicit consent, but without test cases there is still some uncertainty here.

As such the best decision for Claus Corp. would be to provide a means for appeal to obtain human intervention (elf intervention is not counted as sufficient under the GDPR, and indeed elf processing of data in the first place may be considered automated decision making rather than manual, another instance where a test case would help to establish precedent).

So long as Claus Corp. makes some minimal changes to their working practices, and applies appropriate security for the data being processed (there is no indication or suggestion that they are not doing so), I see nothing to suggest they are in breach of any article of the General Data Protection Regulation.

Having said that I do have some concerns around the Tooth Fairy agency, who are clear processing sensitive medical data and provide no such clear channels for communication as Claus Corp., but that will wait for another article.

GDPR for Sole Traders – Controllers, Processors and ICO Registration

This entry is part 4 of 5 in the series GDPR for Sole Traders

This morning my other half mentioned a concern that was popping up about ICO registration fees for sole traders working with personal data under GDPR. Since there seems to be a lot of confusion (including from the ICO phone staff themselves who have been reported as giving varying answers to the same people) I thought I’d try and help. All the usual provisos apply, and I am working only from the information published by the ICO – simply summarising it and cutting out some of the parts I don’t think are relevant.

First of all, the way that the ICO is funded and the requirements for notification/registration have changed. I won’t go into the old rules, but the new ones are quite simple – there is now a legal requirement for data controllers to pay a data protection fee to the ICO. These fees are not unreasonable, running between £40 to £2900 per year depending on size and turnover. You can also get a £5 discount for paying by direct debit. Data processors do not need to pay this fee. There are certain other exemptions, but frankly they really only complicate the issue for most sole traders. I will talk about them shortly, but the core issue is that difference between controllers and processors – which is fundamentally quite simple but poorly explained.

The definition is this – a data controller determines the purposes for which data is processed. For most sole traders and small businesses who work with personal data, this will not be the case – in the vast majority of cases you will be fulfilling a commission or contract for a client, which means that you are not determining the purpose of processing any data they have passed you. You will still have the same duty to protect that data under the GDPR of course, but are not the data controller and so do not have to pay the data protection fee to the ICO. If, however, you are gathering the data, determining the purposes of processing and analysis, or anything similar then you will either need to pay the fee or rely on one of the other exemptions.

A data processor meanwhile may process the data, but does not decide the purposes of processing. As an example – a translator asked to translate a CV by an individual or a company is the data processor, while the client would be the data controller. A data processor does not have to pay the ICO data protection fee.

What if I am a data controller?

If you are a data controller there are certain exemptions which might apply, for example if your only purpose in processing data is staff administration you are exempt from the fee. In general though you will need to pay it – the exemptions are clear and narrow in terms of the data you can process and the purposes of processing it. Unless everything you process (where you are defining the purposes of processing it, not a client) falls under the exemptions then you will need to pay the fee.

The exemptions are listed, clearly, in the ICO’s own literature:

  • Staff administration
  • Advertising, marketing and public relations
  • Accounts and records
  • Not-for-profit purposes
  • Personal, family or household affairs
  • Maintaining a public register
  • Judicial functions
  • Processing personal information without an automated system such as a computer

Take special note of that last one – the definition the ICO is using here of an automated system is different to the GDPR’s definition of automated processing. In essence, if you are using any system with any level of automation for any point in the processing of data, then you do not fall under this exemption. Hopefully the others and the reasons for them are clear.

As always, feel free to send me any questions either here or on Twitter, and hopefully the picture is a little clearer for some of you now.

GDPR for Sole Traders – Contract Lawful Basis

This entry is part 3 of 5 in the series GDPR for Sole Traders

Under GDPR a lawful basis is the justification to process personal data. While I’ve focused mainly on consent, as the easiest to understand, the others are worth looking at – and contract may be a better fit for much of the work that sole traders carry out. First, a quick examination of what the lawful bases mean and how you can apply them.

Essentially a lawful basis defines the purpose for which you’re holding the data, and provide different sets of rights for data subjects to allow for the different usage. Consent, for example, allows subjects to request erasure, to object to the storage of their data or processing for a specific purpose, and allows them to demand that any data held on them be exported and provided in a portable format. Obviously these rights are not suitable to all purposes.

The contract lawful basis allows for data subjects to object, which means that they can ask for you to stop processing their data for particular purposes. They cannot ask that you erase the data, nor that it be exported in a portable format (or rather they can ask for these things but you have a legal right to refuse). If they do ask that you stop processing their data for a specific purpose then you must comply – unless you have compelling legitimate reasons to process the data, or are doing so to establish, exercise or defend a legal claim (i.e. if a client has refused to pay, you would not have to stop processing their data in order to pursue payment).

In order to establish contract as a lawful basis you need to assess the data you are holding (most likely not much more than contact details), ensure you are only using it for that purpose (in order to negotiate or perform a contract), ensure you do not hold it longer than necessary (once the contract is complete if there are no legal reasons to hold onto it for a period of time, such as auditing or chasing payment, then you should delete it), and record that you are holding it under that basis. In most cases all you’d need would be a footer on e-mails explaining that you will hold and use contact information in order to negotiate and complete a contract, and will retain it for compliance with any applicable laws after the contract is complete.

If you want to use those contact details for any marketing either during or after the contract, then that would be a separate purpose (arguably you might be able to go for legitimate interest, but to be honest consent is far more suitable for this purpose) and you would need to inform the client and get their explicit consent for this. They would also need to be provided with a simple method to object (i.e. sign up to my mailing list for further details, followed by on each mailing an e-mail address to contact or link to click if they want to be removed).

As always, any questions please ask here, or via Twitter (I don’t mind dealing with private queries, but it’s easier to go through those two than answer the same questions several times). Also please remember if you have particular legal concerns then you should speak to an expert with insurance rather than leaning on this article for any legal opinion – I’m purely looking to clarify the available guidance and target it more appropriately at those who seem to have slipped under the ICO’s radar in terms of advice.

GDPR for Sole Traders – Contacts and Communications

This entry is part 2 of 5 in the series GDPR for Sole Traders

I’ve had variations of this question on contacts a few times since the first post, and I can understand the confusion around it. I’ve been asked by a few people whether lists you have of friends, family, or similar fall under GDPR (technically, yes, which is where the magic word ‘reasonable’ keeps coming in to play), and a lot of questions seem to be around the use of personal details for everyday business purposes.

Now, there’s various advice about legitimate interests as a basis for processing, notifications to send out to your address book and so on. When you are not collecting and processing personal data beyond contact details for clients, what needs to be done to be compliant?

The bad news, from one point of view, is that this is still personal data, it still falls under the act and therefore you need to think about what you are doing with it.

The good news is that it is extremely unlikely you need to do anything particularly special about it. The reason for this is that GDPR recognises two categories of data – personal data, and sensitive personal data. Sensitive personal data is personal data that relates to a protected characteristic. Normal personal data is personally identifying data which does not relate to a protected characteristic – an e-mail address or phone number would be personal data, but would not fall under sensitive personal data.

Unambiguous consent

The obvious question then is why it matters – and the answer is simple. Sensitive personal data requires explicit consent for any form of collection or processing – in other words to collect it or do anything with it, the data subject must be asked the question ‘do you agree to us collecting and holding this data for these purposes’, and a very definite yes is required from them for usage to be allowed.

Non-sensitive personal data (for want of a better term) requires only unambiguous consent. This means that they must have taken an affirmative action indicating their consent, but some aspects can be implied rather than having to be spelled out. So in the case of contact details, let’s say someone gives you a business card and says to get in touch. In that moment they have provided you with their personal data, and given you unambiguous consent to use it for the purposes of contacting them. The same would apply if they sent you an e-mail asking to start a business relationship, or picked up the phone.

However here’s where the whole purpose thing comes in again – while it is reasonable to say that someone who has given you their contact details and asked you to get in touch has given unambiguous consent for contact (or if you’re a larger company, and if you are we can talk consultancy fees or you can talk to your own GDPR experts, for one of your sales/relationship team to get in contact), they have not given consent to be signed up to your automated mailing list. If you think they might be interested in it, and want them to sign up, then get in touch and ask for their consent to use their data that way – then make sure you keep a record of that consent (saving an e-mail would count).

When someone makes personal data public it’s a slightly different matter. By having some of my contact details publicly available I am providing unambiguous consent to being contacted using them – although signing them up to an automated mailing list would be a different matter.

Please note that in this particular article, I am looking only at personal data used in an everyday business way, and what is reasonable to do with it. In terms of contacts and communications a sole trader is likely already compliant, unless they are carrying out some sort of automated marketing rather than handling things directly.

To sum this all up in some simple answers (and I still believe the GDPR can be summed up in a few sentences for the vast majority of cases, but that’ll come later):

  • someone giving you their contact details is providing all the consent you need to contact them, but nothing else such as subscribing them to an automated list
  • if you want to do anything other than contact them, then to be compliant you need to very clearly inform them of what you want to do and confirm that they consent to it
  • you need to be very clear with people you contact on how they can ask for their data to be removed, and do so promptly if they ask
  • take reasonable security precautions with these contact details (I would hope that most sole traders would consider them valuable enough to protect from disclosure in any case)

I’ve put together a quick and dirty tutorial on how to use one of the better encryption tools out there. I’ll go more into depth once I’m back at a real computer and have a little more time, maybe with a full video exploration and explanation of the different options. I’ll also be looking to do an evaluation of cloud storage options and how they play in to the situation. As always, if there are particular questions or particular urgent areas then drop me a line either here or on twitter (@coffee_fueled).

GDPR for Sole Traders – Brief Summary

This entry is part 1 of 5 in the series GDPR for Sole Traders

There is a lot of advice floating around about the GDPR – for everyone from large enterprises to small business. What I haven’t seen much of (though I have seen some) is an attempt to relate it to self-employed or freelance individuals, sole traders, and small partnerships. Recently my wife came across some questions about it on one of her social media translator groups where there were concerns about how it will impact these groups.

The advice for SMEs and larger is generally very official, designed for consumption by the legal and technical teams of a company. That’s great for a company which has those, but doesn’t apply so much to a sole trader who doesn’t specialise in law and IT. So I offered to summarise as best I could, and translate things a little. Before I do that I need to make a couple of things clear:

  1. This post is aimed to make the GDPR understandable for sole traders and other small businesses, I do not aim to present or suggest solutions here, simply try and help to ensure that the responsibilities and duties are understood appropriately.
  2. This is not official advice from a lawyer or similar and you should not lean on it if you have a particularly complex situation, instead consult a professional who is willing to put official advice in writing and has liability insurance.
  3. This first post is a brief summary – I will be skimming over the legislation, as I don’t know which are the most pertinent questions to go into depth. If you have any questions please get in touch, or post a comment, and I’ll happy elaborate on any areas of confusion or concern.

Principles of the GDPR

The GDPR is based around a number of principles, largely building and elaborating on existing principles in data protection legislation.

  • Lawfulness, fairness and transparency: treat personal data according to the law, fairly, and be open and transparent about your usage of it with the subjects of the data
  • Purpose limitation: only collect and use data for clearly defined purposes, do not use it for anything outside of those purposes (transparency applies here, as the data subjects must be informed of the purposes)
  • Data minimisation: you should only keep the most limited data you can which is adequate and relevant to your purposes in processing
  • Accuracy: personal data you hold must be accurate, and where necessary kept up to date
  • Storage limitation: this is more an extension from data minimisation – you must not hold data in a form that allows identification of subjects longer than necessary for your stated purposes, note that this permits anonymisation of data for further storage and processing
  • Integrity and confidentiality: make sure that the data is secure, using (and this is the key word) appropriate technical or organisational measures
  • Accountability: the data controller (different from the data processor, we’ll get to that) is responsible for and must be able to demonstrate compliance with the GDPR legislation

GDPR Data Subjects, Processors and Controllers

The other three key terms that come up in the GDPR are about who it applies to. Here we have data subjectsprocessors, and controllers. Subjects is fairly clear, it refers to the subjects of the data being gathered and their rights to control that data. Specifically their right to be informed of any data held on request, and their right to have it shown to them or removed on request. Processors and controllers are where some confusion comes in, but are quite simple. The controller is the one who decides what the data is to be used for, while the processor is the one who carries out those uses. For sole traders and other small businesses these are almost certain to be the same people – although there will be cases where they are not (where your business is about providing analytical resource and expertise to third parties, for example).

Contractual Basis for Processing

I’m going to end with this section, for now, as it is the area which seems to raise the most concern. As mentioned if anyone has questions around other areas, please get in touch or comment and I’ll happily expand this series to address them, but this I really wanted to cover.

One of the most common questions I have heard is whether the GDPR will interfere with normal business, in particular starting a new business relationship with someone. Do you need to e-mail them to get informed consent, keep them notified that you’ll be storing their contact details in your address book/CRM, and so on? Marketing is a bigger, separate subject, so if it’s asked about I’ll go into it in a separate post.

Essentially if you are holding and processing someone’s personal data for the purposes of fulfilling an agreed contract and/or agreeing a contract then you have a lawful basis for processing. Contract here refers to any agreement that meets the terms of contract law (not necessarily written down, but means that terms have been offered and accepted, you both intend for the terms to be binding, and there is an element of exchange).

The good news is that this will apply if you are establishing a relationship and contract with a new client. It will also apply if, as part of the contract, they are asking you to process their personal data (i.e. getting a personal document translated to another language). What is important is that when you obtain the data you ensure the client/customer/third party is informed on how you will be using it, why you will be using it, what you will be using it for and how long you intend to keep hold of it.

Basically a lot of the GDPR boils down to being transparent with people about what you are doing with their data, taking responsibility and accountability for data you hold, and acting in a reasonable manner. If you are clear and open with customers about what you will do with their data (and remember, GDPR is opt-in, not opt-out, so the consent must be informed and documented), and keep track of data assets you hold then you should be fine. There’s a lot of use in the legislation about ‘reasonable’ measures, views, expectations and so on. Essentially – if someone contacts you in order to set up a contract and do business with you, particularly if the only personal data you obtain are contact details, you will need to take reasonable security measures to secure those contact details, and not misuse them to send out marketing e-mails without the explicit consent of the data subject.

Treat other’s data as you’d expect a responsible business to treat yours, and you should be fine. If you have questions either around other aspects, or around more practical security matters for a sole trader or small business (encryption, systems to use, what counts as ‘secure’) then please do leave a comment or get in touch directly.

I’ve been advised to add a small note around some specific scenarios:

  • if you are working with a document with a signature, even if there is no other personal data, then once you are finished with the document you should destroy it and/or ensure that the signature is unreadable (there may be reasons to keep the document, in which case it should be fully anonymised if you have no need of the data)
  • if you keep contact details (you do) then you should ensure that people are informed you are keeping them, and make sure they have a way to ask for the data you hold on them, ask for changes, ask for it to be erased, ask you to restrict the purposes you use it for (with contact details this essentially maps to asking for it to be erased I imagine), ask for an electronic copy, and object to you holding it – this is a large area, and I suspect will involve a separate post to cover fully
  • having a password on your computer is not a way to protect your data from theft unless you have also set up encryption, or are storing all data on the cloud rather than the local machine, or other circumstances which may apply – if I get some questions on this then I’ll go into more detail, but it’s fair to say that whole-disk encryption along with a password is a reasonable option, while an unencrypted disk is not