Checks and balances

A while ago, I was asked by a prospective client to provide a criminal records check before getting a big piece of work. Given that I wouldn’t be handling any personal data or getting access to children or other vulnerable people, it seemed like overkill. The awkward part of me wanted to suggest that the requirement was close to being an enforced subject access request, which would be a criminal breach of Data Protection law. Enforced subject access requests occur where a person is obliged to provide a data controller with the result of a subject access request for criminal records in return for employment or a service.

Then I looked at the number of days’ work they were offering and the pragmatic part of me kicked in. I don’t have a criminal record, so I applied for and sent them a disclosure certificate saying so. It occurred to me that if I tried to make an issue of principle out of it, it might look like I had something to hide. I imagine it’s a terrible situation to be in if you have got a record and are trying to move on, but to be selfish, I don’t and it seemed odd to create the impression that I might have. And I wanted the work.

Last week, a prosecution by the Information Commissioner against the insurance company Hiscox for the enforced subject access offence collapsed. A customer, Irfan Hussain, was attempting to claim on a £30,000 watch he had lost, and Hiscox wanted to see his criminal record before paying out. He refused, and complained to the ICO. The case collapsed when the unlucky horologist was too unwell to give evidence.

I can’t help thinking that this was an odd choice for a prosecution. Even if Hiscox tried to force their customer to provide his information, was this unreasonable? He had already stated that he had no criminal record (according to the FT), so all Hiscox were apparently asking him to do was prove that what he had said was true in the light of his claim. The means by which they proposed to do it might technically have been an enforced subject access request, but there’s surely a difference between something technically being an offence and it being worth mounting a prosecution on it. The provisions contain a public interest defence, and Hiscox’s public comments after the trial suggest that this was their strategy. I suspect it might have worked. Especially as this seems to be the ICO’s first attempt at an enforced subject access case, was this really the best place to start?

The business of criminal records checks overall works in mysterious ways. Hiscox are reported to have asked Mr Hussain to make a subject access request to the Criminal Records Office, which is run by the National Police Chief’s Council. This is not the same as applying to the Disclosure and Barring Service or Disclosure Scotland for a certificate or a disclosure, but having been through the process, I have to admit that I am somewhat confused at the difference.

To get my disclosure, I made a written application, proved my identity and then paid a fee to receive a copy of personal data that related to me, or confirmation that no such information was held. The basic check comes through faster than a subject access request (about 2 weeks, although mine came in matter of a few days) but it’s also more expensive (£25). In my case, nothing was held but that’s neither here or there. There is statutory provision for access to this information via the Criminal Records Bureau set out in the Police Act 1997, replaced by the Disclosure and Barring Service in 2006 via the Safeguarding Vulnerable Groups Act 2006. Someone is going to tell me that applying for a certificate is different to applying for subject access, but that raises some questions. If Hiscox had told Mr Hussain to apply for a certificate like I did, it’s exactly the same outcome – a person is obliged by a data controller to obtain information about their criminal history and then cough it up – but if it’s not subject access, no prosecution could be possible.

An individual can obtain a basic check that shows their unspent convictions and cautions, both of which are listed as a relevant record in the DPA section that creates enforced subject access. The ICO’s guidance doesn’t explain the position if a person was forced to ask for a basic check. That check might not give everything that a data controller might want, but it’s full information about a person’s recent criminal history. If obliging someone to ask for a basic check isn’t enforced subject access, it’s a loophole. But if a basic check is essentially a subject access request by another name, it shouldn’t be £25 now, and it should be free after May 25th.

It’s clear that the DBS doesn’t think that forcing an individual to ask for a basic check would be enforced subject access or illegal in some other way because their website says this:

You can’t carry out a basic check as an organisation – you must ask the person to request their own basic DBS check. A basic check shows unspent convictions and cautions.

This implies that asking a person to carry out a basic check when you can’t make an application yourself is acceptable, even though these are very likely to be circumstances where a person can’t meaningfully refuse. There are no warnings about compulsion during the application process via the DBS website. So why is a subject access request to ACRO magic, acceptable only when uncontaminated by duress, but a basic check isn’t? The amount of data disclosed isn’t exactly the same, but the outcome – being forced to disclose your criminal history when it might be unnecessary or excessive to do so – might be identical.

It took a long time (from 1998 to 2015) for enforced subject access to be fully enacted. Now it’s in force, the Hiscox case doesn’t give cause for optimism that anything will change. I have doubts about whether it was a good idea to prosecute Hiscox, but I have heard first hand terrible stories over the years about data being demanded when it should not have been. Having used the system, the way in which criminal records are made available gives me little confidence that such unnecessary and unfair demands for personal data are properly prevented. After the failure of the Hiscox case, even if only because of an ill-timed illness, the ICO needs to go in again and draw a line somewhere.

Stinking Badges

The list of things that annoy me about the explosion of hype and bullshit around GDPR is long and boring (NOTE TO SELF: this list should be a blog post of its own). I cannot say that top of the list are those badges that folk give their products, boasting about being “GDPR Ready”, or “GDPR Compliant” when nobody actually knows what being ready or compliant looks like, but they’re top five.

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I was complaining about this on Twitter, and lovely people who enjoy seeing me annoyed started to send me examples of these badges from across the internet. It is via this route that I came to Emailmovers, a data broker who make luxurious claims about their data and its relationship to the GDPR.

Not only do Emailmovers have a badge, they claim to have been working closely with both the Direct Marketing Association and the Information Commissioner’s Office on GDPR issues. Indeed, until someone kicked up a fuss about it, Emailmovers had the Information Commissioner’s logo on their website. The logo has gone now, but if you work out where it was and click, there is an invisible link to the ICO’s website where it used to be.

Emailmovers certainly put up a strong case about the nature of the data they’re selling:

1) We are clear with individuals why we need their data at the point of collection
2) We always use clear and concise language appropriate for our target audience
3) We give individuals control over their data. They are always able to decide whether to share their personal data with us or not
4) Under the GDPR principle accountability, Emailmovers is able to demonstrate that we are compliant. We always record the legal grounds for processing an individual’s personal data

I can’t say that any of this is untrue, although I am sceptical. Generally, I think that the data broking industry is irredeemable, incapable of operating lawfully either now or in the future. The data broker acquires data, accumulates and appends it, and then sells it to clients. This is the opposite of fair. However, and wherever the data was obtained from, whatever transparency or fair processing was given to the subject, it would be vague. It could not say which specific organisations would receive the data, and often, it could not even say which sectors. The data broker does not know – they sell to whoever is buying. This kills consent – which was supposed to be informed and specific since 1995 – and it kills legitimate interest. How can you assess the effect on the subject if you don’t know when obtaining the data what you’re going to do with it? If a data broker obtained individual email data under legitimate interest, they couldn’t sell it on for marketing purposes, because the client will not have consent to send the marketing in question by email.

None of this will stop the data broking industry from carrying on – when some of the biggest brokers are ICO stakeholders whose activities have gone unchecked for decades, it’s hard to imagine that the GDPR will make much of a difference.

Nevertheless, there was one thing about all this that I was able to check. I made an FOI request to the ICO asking about contact that Emailmovers had had with the Commissioner’s Office, particularly with the policy and liaison teams. If Emailmovers really had been working closely with the ICO, there would be evidence of this, right? The ICO’s response was revealing:

There was no direct contact between Emailmovers and our Strategic Liaison/ policy department concerning advice about GDPR.”

Emailmovers had made a couple of enquiries – ICO was too cautious to tell me what they asked, but they supplied the replies which offer no more than a simple (but accurate) explanation that business to business communications are covered by the GDPR, a brief observation that the ePrivacy Regulation is coming but we cannot be sure what it will say, and separately, a straightforward note that even corporate subscribers need fair processing. This is not working closely with the ICO – they asked a couple of questions and got short polite answers. There are no meetings, no detailed correspondence, nothing at all to suggest anything approaching the relationship they boast about here:

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I can honestly say that I am in regular contact with the ICO about a variety of matters. It sounds good, but it’s true only because I nearly gave evidence in one of their prosecutions (they didn’t need me in the end), I make a lot of FOI requests to them, and I tweet at them almost daily.

I don’t accept that making a couple of enquiries equates to working closely with someone. The fact that Emailmovers make this claim on their website, and displayed the ICO logo prominently until recently makes me very uneasy about the other things they say. The GDPR sector is full of bullshit and exaggeration, fake certifications, hokey badges and bluster. As we near the supposed cliff edge of May 25th, we should all take the time to check every claim with great scepticism, and to treat the badge-toting hordes with the same caution that Humphrey Bogart treated a certain bogus Federale:

2040 vision

The turn of the year is always an opportunity to make resolutions in your personal or professional life, but it’s hardly a revelation to observe that such aspirations often evaporate. The easy option presents itself, and the temptation to take it is difficult to resist. For many years, I have claimed to be a “freelancer” but in fact, although I’ve been doing my own thing since 2008, quite a lot of my work has come from Act Now Training. Every year, I tell myself that this is the year that I will cut the apron strings completely and strike out on my own, and every year, I don’t quite get there. I’ve done some fascinating work for a variety of people, but I haven’t found enough of it myself.

2018 was already shaping up to be an interesting year, given that the much-hyped General Data Protection Regulation will finally be enforceable, and we will find out whether the apocalyptic predictions of The Certified will come to pass (SPOILER: they won’t). Reader, that isn’t interesting enough for me. Much as I am grateful to Act Now for offering me my first training course in 2005, and for all the opportunities they’ve given me since, all good things must come to an end. I had to turn down all sorts of opportunities in 2017 because of all the courses I was running, and there are a number of things I’ve always wanted to do, but simply didn’t have the time. So from March 1st, if you want to be trained by me, or use my services, it’s 2040 Training or bust.

A couple of announcements in this context:


I am running some public courses with a practical, procedure based approach in London and Manchester. The first is a ‘GDPR SOS‘ course for those bodies large and small who either haven’t prepared for GDPR’s live incarnation, or don’t know whether they have got what they might need in place. It’s commonplace in the Data Protection world to sneer at those who haven’t thrown themselves into a compliance frenzy, but rather than brag about putting up my daily rate (which some LinkedIn GDPR bods have said they would do in 2018), I thought I would put on a no-nonsense, plain English guide for those who want to get up to speed. The first courses run at the end of March, and you can find out more about them here:

Following on from the SOS course, I hope to be running a detailed practical course on the GDPR rights in April and May, taking into account guidance from the ICO, the Article 29 Working Party, the DP Bill / Act, and of course, the many cases and examples that we’ve already got from 20 years of Data Protection. There will also be a course on PECR and Direct Marketing.

These courses will not be ‘Article or Section X says Y’ but will be based on real-life cases and scenarios. Both, and a range of other options, are of course available in house, and everything else that I can do for you is listed on my website, a link for which is above.


I wrote two free guides in 2017, one on fundraising and Data Protection, the other on choosing a DPO as a service. The feedback on both has generally been very positive, apart from the DPO as a service people who didn’t like reading that experience  is an essential part of being someone’s expert. It is. Live with it.

First, I am updating the fundraising guide to make it solely about GDPR and the DP Bill to the extent that this is possible. I want to complete this soon, so if any fundraisers have any specific questions about GDPR that you’d like to see answered, especially if you read the original and know the kind of questions I featured next time around, let me know but quickly!

Send any questions, as soon as you can, to:

Second, I will be writing a guide for GDPR and Councillors – a simple guide to Data Protection as it relates to the role of a local elected politician. It’s not going to cover what councils do, but the way in which a councillor operates their office, deals with constituents and how they store data. Once again, any questions or concerns about this area from Councillors and those who work for or with them would be very welcome. I hope to get this finished by the end of February, so any questions or comments that you can send before then would be more than welcome.

Send any questions (preferably before 20th Feb) to:

Both the updated Fundraising guide and the Councillor guide will be free and available to download from my website.

After these two are done, I will be working on a number of other guides including the use of violence warning markers under GDPR, and no matter how unpopular this will make me, a free guide for individuals who want to use their Data Protection rights. If you have thoughts or comments about this, please let me know.


Seriously, I’m available. More here:

The Naked Truth

The story of Damian Green’s porn-clogged computer has several facets, with a surprising number of them related to data protection. Whether it was a breach for former Deputy Commissioner Bob Quick to reveal that there was porn on the computer is hard to say for certain – I think Quick has a journalistic defence in revealing hypocrisy given that the Government is current waging a moralistic war on adult websites, but you are welcome to disagree. The fact that Quick has form for revealing information that he shouldn’t have only adds spice to the mix.

The question of why Green’s other accuser Neil Lewis still has his police notebooks raises more serious questions. Did he keep them without authorisation from the Met? If he did, this could be a criminal offence under Data Protection’s Section 55 for which Lewis would be liable. Did the Met Police fail to recover them properly? This would be a serious breach of the seventh data protection principle, for which the Met should expect to answer. In any case, I have to agree with those who say that public servants should respect confidences even after they leave the service. Sensitive material should never be retained by former officers of any organisation. I know my reaction to the story is clouded by the entertaining spectacle of seeing a politician caught with his pants down, or at least, unzipped. The question of how the story came to light needs to be interrogated.

Green’s use of the Shaggy Defence to claim that he knows nothing about the porn begs more questions. If he didn’t download it, this means that someone else did (none of the Tories defending him seem to claim that it doesn’t exist). Part of Green’s outrage when his office was raided in 2008 was the threat to the sanctity of Parliamentary Privilege and the confidentiality due to his constituents. In the light of this, Green needs to explain how it was possible for someone else to download porn onto his computer. The best case scenario for him is that this was the result of malware, rather than someone else being able to log into his computer without his knowledge. Of course, malware infecting an MP’s computer is a story in itself. Regardless of whether this story should be in the public domain, we can’t be expected to ignore it now. As someone who processes highly sensitive data about his constituents (as well as possibly other sensitive information), at some point Green has to explain who had access to his computer and what they were doing downloading porn. Or he has to admit that it was him.

I don’t know what, if anything, Green is guilty of, but his fellow Tory Nadine Dorries’ spectacular contribution on Saturday doesn’t allow for any ambiguity. The MP for Mid Bedfordshire has a habit of deleting tweets when she (or someone else running her account) realises how stupid they make her look, so I have screengrabbed this one and I reproduce it in full here:

My staff log onto my computer on my desk with my login everyday. Including interns on exchange programmes. For the officer on @BBCNews just now to claim that the computer on Greens desk was accessed and therefore it was Green is utterly preposterous !!

UPDATE: There’s more:

All my staff have my login details. A frequent shout when I manage to sit at my desk myself is, ‘what is the password?

ANOTHER UPDATE: Robert Syms MP is at it as well

As a constituency MP, Dorries will be handling sensitive correspondence on a wide variety of matters, and she has publicly confirmed that access to information is open to a wide variety of people, including interns on exchange programmes. To this, there is no defence. The seventh data protection principle states that a data controller must have in place appropriate technical and organisational security measures to prevent “unauthorised or unlawful processing of personal data, and against accidental loss of or destruction of or damage to personal data“. This means a mix of technical measures like passwords and encryption and organisational measures like ensuring that passwords are not shared or written down. Dorries has confirmed she has authorised password sharing in her office – which is bad enough in itself because it means passwords are spoken aloud or written down, greatly increasing the chance of the password being known to someone nefarious. But worse than that, she says specifically that a wide group of people share her login. There is no way of knowing who has accessed what, because even if the intern has done it, it looks like Nadine was the person responsible.

The only way that Dorries has not admitted a clear breach of Data Protection’s security principle is if she (or whoever wrote the tweet) is lying in order to defend Green,  which is quite the stupidest thing I can imagine.

There are several possible breaches here – Quick’s original revelations about Green, Lewis’ retention of his notebooks / the Met’s failure to recover them when he left, Green’s insecure computer equipment and Dorries’ admission of her completely lax security. While Quick and Green’s problems are somewhat murky, Lewis / Met Police and Dorries present much more straightforward issues for the Information Commissioner. Both should be investigated as a matter of urgency.

Given Dorries’ casual admission of the insecure way in which her office operates, a much wider investigation might be required. Elizabeth Denham has put huge resources into investigating the possibility of political use of analytics and big data in an unlawful way, even though it’s hard to imagine anything coming of it. On the other hand, here we have a sitting MP openly admitting that constituents’ data is unsafe – how many more of Dorries’ colleagues operate in a similarly unlawful fashion? I cannot complain to the ICO about these matters, as I am not affected by them. However, the issues are serious, and Wilmslow should step in immediately. A bland press release reminding MPs to process data safely is not good enough; the ICO needs to demonstrate that Data Protection law applies to MPs just as it does to the rest of us.

Summit to hide?

On at least three occasions in the past year, a member of staff from the Information Commissioner’s Office has spoken at conferences organised under the banner of GDPR Conference or GDPR Summit. Garreth Cameron has appeared twice, and Lisa Atkinson was at the latest event on October 9th. Nothing odd about this, you would think – the ICO clearly wants to spread its message (such as it is) to a wide audience, and conferences are a way to do it. They should be wary about showing favouritism and they’re not very good at avoiding it – a certain Assistant Commissioner often appears at a certain training company’s courses, and appearing three times at one company’s commercial events comes close to being an endorsement.

But even if such regular support for a conference would otherwise be justified, in this case, I don’t think it is. It’s not easy to find out from the GDPR Summit website who is actually organises the conferences. A little bit of digging suggests that it is a company called Amplified Business Content. Amplified Business Content is also responsible for ‘GDPR Report’, which used to publish articles for free but has now gone to a subscriber model. Having an opaque company structure isn’t compliant with Data Protection because it’s not clear who the Data Controller is. Moreover, some of the material on their website is garbage – they have published quizzes with wrong answers, and harvested information without a privacy policy (though I noticed that after people on Twitter made a fuss of it, they stopped demanding email addresses to get scores on the quiz). Via GDPR Report, the organisation has pumped out reams of vague, badly-written stories including one titled ‘The Data Protection Apocalypse’ that claimed that organisations need consent for all processing – it was so bad that after a morning of criticism via Twitter and other sites, they had to delete it. Worst of all, Amplified Business Content has not notified the ICO under Data Protection – unless they are exempt (which for a conference organisation is hard to believe), this is a criminal offence.

Given that the ICO have given Amplified Business Content so much support, I wondered whether they had done any due diligence on the organisation before agreeing to speak at their events. Under FOI, I asked for the following:

Any information about due diligence carried out by the ICO before accepting invitations to speak at these events, including whether ICO staff checked if the company had a notification, and whether their materials and publications were accurate and reflected the ICO’s approach to the GDPR

Any procedure that requires ICO staff to carry out due diligence before accepting speaking engagements

The answer was that no information was held. The best they could offer was “We apply our speaking engagement policy here when making a decision whether or not to accept a request for a speaker“. Needless to say, the speaking engagement policy does not include any requirement to carry out due diligence. In other words, the fact that Amplified Business Content has not notified and has spread misleading and unhelpful information about a Data Protection apocalypse is irrelevant to Wilmslow. They’re not even expected to check whether the organisation has taken the most basic steps to comply with Data Protection law. This is remarkable, especially at a time when so many dodgy people have flooded into the Data Protection market.

Their answer to the first part of my request was more interesting, and more worrying. I asked for:

All correspondence between the ICO and Amplified Business Content or those purporting to represent GDPR Conference or GDPR Summit or GDPR Summit Europe (or other variations on the theme of GDPR Summit).

I’ve done this before, both with the Privacy Laws and Business Conference (which led to this blog) and True Swift, another organisation for whom the ICO has done several online courses. Both times, the ICO gave me detailed correspondence between themselves and the organisation, which allowed me to see, among other things, Stewart Dresner of PLB complaining that he doesn’t have special access to news about ICO activities. This time, however, the ICO has refused to give me any of the correspondence. The exemption they used is a prohibition on disclosure that applies when organisations supply data to the Commissioner when information “has been obtained by or furnished to the Commissioner under or for the purposes of the Information Acts”. In other words, ICO claims that when arranging their spots at the GDPR events, they were exercising their functions under the Data Protection Act. Needless to say, the refusal doesn’t say which function they were exercising – presumably I am expected to guess. I think the only function that could apply is the duty to promote the following of good practice under Section 51, but the idea that Parliament intended conference arrangements to be secret is a fairly bizarre idea.

Only two possibilities present themselves. The first is that the ICO’s policy is only to release material such as this with the consent of the organisation (which the prohibition allows), so PLB and TrueSwift consented to the disclosure and Amplified Business Content refused, which begs the question of what ABC have to hide. Their internal business arrangements are nobody’s business but theirs, but when dealing with the regulator, they should expect to be more open. I’ve made fun of Dresner following the disclosures, but the emails I received didn’t show him or his company doing anything inappropriate – the only criticism I’ve got is that the ICO should hold all organisations at arms length.

The other possibility is that the ICO is being inconsistent. They didn’t use this exemption before, but there is something awkward or embarrassing about their relationship with ABC that they want to cover up. Either way, it isn’t a good look for the transparency regulator to be hiding information about its dealings with a private company. The prohibition allows data controllers and public authorities being investigated for DP and FOI breaches to provide secret business information to the Commissioner with the confidence that it won’t be disclosed. This is entirely justifiable – otherwise, no organisation would ever give the ICO information they had withheld from an FOI or subject access applicant in case the applicant then tried to use FOI or DP to get it from Wilmslow.

This case is very different. The ICO has scant resources, and yet has regularly provided speakers to a commercial company with a spotty approach to Data Protection and is using the prohibition on disclosure to prevent legitimate scrutiny of their relationship. The prohibition does allow disclosures that are ‘necessary in the public interest’ – given ABC’s dissemination of scaremongering articles and possibly illegitimate non-notification, I am convinced that the public interest does support transparency here. Of course, the ICO might argue that if they disclose, this will deter conference organisers and others from approaching them – but who cares? This is far from a core activity for the Commissioner. If you’re not willing to be open in these circumstances, what has anyone involved in this got to hide?