Zero Gravity

In March, I received an unsolicited email from a company called Gravicus. It was scaremongering nonsense, touting their data management software via the threat of director liability for data breaches. So far, so what: I get a lot of spammy junk from GDPR people to my 2040 Training email address, but this was to a personal Gmail address that I don’t give out all that often. The email claimed that it had been sent to me because I was “registered on Leadiro”, who I have never heard of. Under PECR, email sent to an address for which I am an individual subscriber can only be sent with consent (or soft opt-in), and given that I had heard of neither Gravicus or Leadiro before the email arrived, they had neither.

I contacted Gravicus to make a subject access request on 20th March, asking how they had obtained my data, what Leadiro had told them and for any other personal data about me that they held. Separately, I contacted Leadiro and asked them why they were selling my data. Leadiro got back to me, and confirmed that they had not supplied my data to Gravicus.

Having had no reply from Gravicus beyond an automated acknowledgement, I emailed them again on April 2nd, asking for confirmation that my request was being dealt with, and also passing on what Leadiro said. A week went by with no acknowledgement, so I wrote to the company’s registered office address and business address, chasing them up.

Gravicus finally reacted on 16th April via a letter from their lawyers, Keystone Law. Keystone admitted on behalf of their clients that the Leadiro story was false, and that my data had been harvested from the “business oriented and professional website” LinkedIn. I apparently connected “voluntarily” with a named Gravicus consultant, who then exported her connections to obtain contact details of “relevant professionals in the sector”. Nearly a month into my request, Gravicus wanted a copy of my passport and utility bill, certified by a lawyer, accountant or similar professional, as well as the £10 fee. I paid the £10 and sent an uncertified copy of my passport. The lawyers still demanded the utility bill as proof of my address, despite the fact that Gravicus’ own version of events shows that they would have nothing to compare it to – they have only ever dealt with me via email or Twitter. In any case, Keystone had already named the individual who harvested my address, so if it was wrong to reply to my subject access request without proof of address, why was it right to give me the name of the consultant? I threatened to complain to the Information Commissioner, and they backed down. I have no doubt that Gravicus took this approach to obstruct my request, which when they had already breached PECR and Data Protection isn’t the best way to resolve a problem.

It is a breach of LinkedIn’s terms and conditions to

  • “Disclose information that you do not have the consent to disclose”
  • “Copy, use, disclose or distribute any information obtained from the Services, whether directly or through third parties (such as search engines), without the consent of LinkedIn”
  • “Use, disclose or distribute any data obtained in violation of this policy”

Harvesting and using email addresses from LinkedIn in breach of their terms and conditions, without transparency and a legal basis is a clear breach of Data Protection. Gravicus did not have my consent, and by misrepresenting the source of my data in the email that they sent me, they blew any chance of relying on legitimate interests. Their use of my data was unlawful. Gravicus’ lawyers claimed that the confusion over where my data came from was understandable because Leadiro was one source that they were using. But that isn’t true. The CEO of Leadiro told me explicitly: “Gravicus are not a Leadiro customer, and have never been a Leadiro customer“. Added to that, sending a marketing email to an individual subscriber without consent is a breach of PECR, and Gravicus knew I was an individual subscriber because their records had my address marked as ‘Personal’.

Despite the fact that Gravicus’ original spam email touted data breaches as being the personal responsibility of directors, one of the shabbiest things about their response is the way they sought to throw their consultant under the bus. They named her straight away, and claimed that the company didn’t know that she was harvesting emails from LinkedIn, even though their lawyers continually stressed that I had voluntarily made my email available to her. In other words, you asked for it, but we didn’t know it was happening. I don’t believe this, but it doesn’t matter whose idea it was. The directors are responsible for what their company does, not some consultant who blocks people on Twitter when they ask awkward questions. Instead of dealing with me like a human being, Gravicus lawyered up and tried to obstruct my subject access request with bogus demands for unnecessary personal data, itself an additional breach of DP law.

This might seem like a lot of fuss for a spam email. But look at what Gravicus is selling as a data processor. Their product works like this: “Tell Osprey your data sources, provide your access credentials and it will connect automatically to analyse your data“. As a data processor, they will have access to a huge amount of sensitive and possibly special categories personal data held by their clients. The GDPR states that data controllers “shall use only processors providing sufficient guarantees to implement appropriate technical and organisational measures in such a manner that processing will meet the requirements of this Regulation and ensure the protection of the rights of the data subject“.

Gravicus harvested my data unlawfully, they gave me false information about where personal data has been obtained from, they demanded excessive personal data when dealing with my subject access request, and they sent me unlawful unsolicited emails in breach of PECR. They claim that they’ve stopped gathering data in this way, but it never should have happened in the first place, and suggests that the directors don’t know what’s going on in their company. In any case, when caught out, they hide behind their lawyers and consultants instead of dealing direct. Any organisation thinking of using them as a data processor should think long and hard about whether Gravicus can offer the kind of guarantees that GDPR requires.

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:

Screen Shot 2018-01-16 at 21.47.35

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:

PUBLIC COURSES!

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: http://2040training.co.uk/gdprcourses/

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.

MORE GUIDES!

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: fundraising@2040training.co.uk

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: councillors@2040training.co.uk

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.

EMPLOY ME!

Seriously, I’m available. More here: www.2040training.co.uk.

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.