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?

Advertising standards

This week, the great and the good and some other people descend on Cambridge for the 30th Annual Privacy Laws and Business’ three day Data Protection Conference in Cambridge. It’s a big event, with Data Protection regulators, practitioners and a large collective noun of DP lawyers all milling around St John’s College listening to each other talk. I’ve only been once – no employer I’ve ever worked for wanted to pay, so I ended up pitching PLB a talk about crap Data Protection stories so I could get in for nothing. The cheapest possible ticket is a one day option for charities and the public sector at £437.50 +VAT; for 3 days, that goes up to £1242.50 + VAT, while someone working for a company with more than 500 employees will pay £1775 + VAT, plus more for accommodation or the optional Sunday night dinner. The college bars have extended opening hours in case you have more money to burn.

As PLB’s amusingly vulgar marketing makes clear, this is no dry academic event. For attendees with the requisite funds, the conference is an opportunity to ‘take your place at the privacy top table‘ and enjoy ‘Privileged Access‘ to the various Data Protection regulators in attendance. Emails from PLB promise that DP Authorities such as Helen Dixon from Ireland, Isabelle Falque-Pierrotin from France and our very own Elizabeth Denham will be available for ‘priceless informal one-to-one discussions’ and will be ‘pleased to engage you in discussion‘. Imagine that.

The UK’s Information Commissioner is being particularly accommodating this year. As well as being listed on the conference website as a ‘Supporter’ of this commercial event, the Commissioner herself is giving a talk on Tuesday and chairing another session while no fewer than five ICO staff members will be in attendance (a fact advertised by PLB in the ‘top table’ email). Perhaps most generously of all, Mrs Denham is the star of an advert for the conference, happily plugging the relaxed atmosphere and expert PLB staff while exhorting viewers to attend. And this is where I have a problem.

There’s nothing wrong with the ICO appearing at commercial events like this – big conferences are a legitimate way to make the organisation more visible and get messages out. It’s very different if the ICO is endorsing the event in question. The PLB conference is not a charity or public sector event – it is a commercial conference run for profit. The ICO’s speaking engagement policy says explicitly that ICO officers should avoid accepting invitations where ‘our attendance can be interpreted as ICO endorsement of a commercial organisation over those of competitors‘, and yet Denham has gone further than that, by actively promoting the conference and the expertise of PLB’s staff. The same policy states that the ICO logo must not be displayed when labelled as a ‘supporter’ – which is exactly what PLB are doing with the logo on their website.

I made an FOI request to the ICO about Denham’s appearance in the advert, asking for emails and other correspondence about why she agreed to do it. In the initial response, there was no evidence of an invitation, only emails arranging the filming itself. When I queried this, I was told that the original request was made and agreed to verbally last October, and while there may have been some follow-ups by email shortly thereafter, they will have been deleted because the ICO deletes all emails from everyone’s inbox after six months. So Denham, who famously burnishes her records management credentials, didn’t think it was worth keeping a record of why she had decided to endorse a commercial event, despite breaching her own speaking engagement policy and code of conduct by doing so.

The correspondence I did get was nevertheless illuminating. When I made my request, I used the word ‘advert’ because PLB were describing it as a ‘conference video’ and I wanted to underline what it really was. However, the word ‘advert’ is used routinely by ICO staff in their emails – there is no question that Denham and her staff perceived it as being something else. The content of Denham’s turn came directly from Stewart Dresner, PLB’s Chief Executive. Even specific phrases that she uses (the sickly ‘summer school‘ for example, at which she at least has the decency to laugh while saying) come direct from one of his emails to her. After it was filmed, Denham was keen to check that Dresner thought the video was OK, and he replied with a sentence that should have pulled everyone up short: “I greatly appreciate you taking this step and so effectively endorsing several important features of our conference” (my emphasis). The ICO is an independent regulator; endorsing commercial products or events should be beyond the pale. The ICO’s code of conduct is obviously based on the Civil Service Code, but they have adapted it in a key passage. The Civil Service Code says that officers should not use information they have obtained in the course of their work to favour others, but the ICO goes further:

You should not misuse your official position, or information acquired during the course of your duties, to further your private interests or those of others

If you are a member of the senior management team, or a member of staff who is either working on a contract or dealing with issues which could raise matters of substance, you should ensure that any possible conflicts of interest are identified at an early stage and that appropriate action is taken to resolve them.

 

Senior officers like Robert Parker, the ICO’s head of communications, and Steve Wood, recently appointed Deputy Commissioner after Rob Luke’s mysterious cameo appearance, were involved throughout this correspondence. Even if Denham didn’t think an endorsement could be problematic, her staff should have intervened. Most of the ICO’s senior management were at least copied into the emails I’ve received, and none of them identified a problem in the Commissioner personally endorsing a commercial event in breach of her own policies. There is a telling moment in the correspondence where Dresner complains that PLB were not aware of Denham giving evidence to Parliament. Dresner’s expectation is that PLB will be tipped off about such appearances: “we do suggest that you distinguish between your mass media list, who would receive some media releases, and your specialist media list, who would receive all of them“. It’s clear that Dresner expects special treatment – and why wouldn’t he? The Commissioner herself is advertising his conference.

Nobody at the ICO would ever recommend anything that I did or was involved in because I write stuff like this, so you might think this is all just sour grapes. Given that I don’t think the ICO is an effective regulator, I couldn’t seek their approval even if they would give it but in any case, I don’t want Wilmslow’s endorsement. If I have anything going for me as a itinerant jobbing consultant, it’s that I am independent and I encourage the people I deal with to think and act independently. What’s distasteful about this episode is that the Commissioner, for whom independence isn’t a bonus but a necessity, doesn’t seem to act in the same way. Using the regulator’s name to flog conference places should be inconceivable, and yet this is what Denham has done. However prestigious or expert they may appear, the Information Commissioner should not personally or corporately recommend or endorse commercial products and organisations. This shouldn’t have happened, and it must not happen again.

Analyse This

With no small amount of fanfare, the Information Commissioner Elizabeth Denham recently announced a “formal” investigation into the use of data analytics for political purposes. The use of targeted ads in political campaigns – especially those where the Right triumphed – has been much in the headlines, and the ICO clearly feels the need to react. Denham blogged on her website: “this investigation is a high priority for my office in our work to uphold the rights of individuals and ensure that political campaigners and companies providing services to political parties operate within UK law.”. The investigation was greeted with enthusiasm – the journalist Carole Cadwalladr who has made a lot of the running over analytics in the Observer was supportive and the Data Protection activist Paul-Olivier Dehaye hailed it as ‘very important’.

Saying that Facebook is probably abusing privacy rights (and acting as a conduit for the abuse of privacy rights) is a bit like saying that rain is wet. Some of Cadwalladr’s reports have drawn fascinating (if hotly disputed) links between various right-wing vampires like Nigel Farage, Dominic Cummings and Steve Bannon, and draw interesting (and hotly disputed) links between various Brexit campaigns and the tech firm Cambridge Analytica. Other of her stories are lame; a recent article complained that people Cadwalladr doesn’t approve of are outbidding people she does approve of when buying Facebook ads, which isn’t really news.

Worse than that, another article enthusiastically repeated Stephen Kinnock MP’s calls for an investigation into Tory data use, ignoring the fact that on the same day, Labour was hoovering up emails on its website without a privacy policy (which, like the marketing emails they will inevitably send) is a breach of Data Protection. The article makes the false claim that it is illegal to use data about political opinions without consent. Several people (including the chair of the National Association of Data Protection Officers) pointed this out to Cadwalladr, but the article is uncorrected at the time of writing. If you want to write about political parties and campaigns abusing data protection and privacy and you only acknowledge the dodgy things that one side gets up to, your allegations should not be taken too seriously. Politics is a swamp, and everyone is covered in slime. Given Cadwalladr’s shaky understanding of Data Protection law, it’s not hard to believe that her interest in the topic is mainly motivated by politics, and the ICO needs to be careful not to be sucked in.

It’s odd that allegations made to the ICO about data misuse by Owen Smith and Jeremy Corbyn, or candidates for the UNITE leadership have come to nothing, and yet here we have a formal investigation announced with great flourish into an issue that is largely perceived as affecting the right. I’m left-wing myself, but if Denham is going to take action over the political use of personal data, I expect her to be scrupulously even-handed.

However, I doubt very much whether action on this issue will ever happen. Just after the announcement, I made an FOI request to the Commissioner’s office about the nature of the investigation – how many people were involved and where from, what powers the ICO was using to conduct the investigation, and who the most senior person involved was. What I was trying to find out was simple – is this an investigation likely to lead to guidance or enforcement?

Here is what my FOI revealed (questions in bold, ICO answers below)

1) Under what specific powers is the investigation being carried out?

Initial intelligence gathering would fall under the general duties of the Commissioner to promote good practice (section 51) of the DPA. This may lead to use of investigatory powers and enforcement where necessary, under the provisions set out in Part V of the DPA, as well as the CMP powers at section 55A.  The Commissioner also has powers of entry and inspection under schedule 9 of the DPA.

2) How many members of staff are involved in the investigation?

It’s difficult to give an exact number, the ‘group’ involved will need to be established and documented in terms of reference which will be done shortly. At this stage, from the information we hold, we can say that 16 member of staff have been involved and another 4 members of staff are also expected to be involved as the investigation progresses.

3, 4 and 5-
 
What are the job titles of the staff involved?
What is the name of the most senior person involved in the investigation?
Which department and team do these staff belong to?

Senior Policy Officer – Private Sector Engagement
Group Manager – Private Sector Engagement
Policy Officer – Private Sector Engagement
Lead Communications Officer – Communication Planning
Senior Policy Officer – Public Policy and Parliament
Intelligence and Research Officer – Intelligence Team
Team Manager (Intelligence) – Intelligence Team
Lead Intelligence and research Officer – Intelligence Team
Team Manager – Enforcement (PECR) – Investigations
Group Manager (Public Policy & Parliament) – Public Policy and Parliament
Senior Policy Officer (Public Policy & Parliament) – Public Policy and Parliament
Team Manager (Enforcement Team 2) – Enforcement
Team Manager – Communications – Communications Planning
Head of Corporate Affairs – Communications Planning
Group Manager – Public Sector Engagement – Public Sector Engagement

The most senior person is Steve Wood – Head of International Strategy & Intelligence – International & Intelligence Management

*************************************************************************************

What does this tell us?

The main contributors are Engagement (which is presumably the successor to the old Strategic Liaison department whose chief role was holding hands with stakeholders), and policy (whose main contribution to the debate on big data is this endless and almost unreadable discussion paper). The most senior person involved is Steve Wood, who has an academic background. Of the 16 involved, just two are from Enforcement, outnumbered even by the comms staff. Apologists for Wilmslow will leap on that bit that says “This may lead to use of investigatory powers and enforcement where necessary“, but my response to that is an armpit fart. The ICO is starting from the perspective of promoting good practice run by an academic, which is just about the silliest response to this issue that I can think of.

Some areas that the ICO regulates are prime candidates for guidance. The public sector, charities and regulated industries are likely to be influenced by what the ICO says. Other areas – list broking and compensation claims spring to mind – are immune to policy and guidance, but politics is the best example. Politics is about power – if a party, campaign or individual can take power while breaching DP law, they will. It isn’t that they don’t understand the law, it is that they don’t care. No political party or campaign will be influenced by ICO guidance, and to pretend otherwise is childish. All major political parties (Labour, LibDems, SNP, Tory) have received a PECR Enforcement Notice over automated calls, and yet they flout PECR all the time with emails and yet more calls, as anyone who heard from David Lammy knows only too well. Even when the ICO fined Leave.EU during the referendum, the campaign’s reaction (“Whatever”) could not have been more derisive because they could afford to pay the fine. Either the ICO comes into politics using its powers to the maximum possible extent against everyone (£500,000 penalties, or more useful, enforcement notices that are backed up by prosecution), or they should leave the field.

We already know that the outcome of this investigation will be revealed long after the election is over, when anything that the Commissioner says or does will have no effect on the real world. On the evidence of my FOI, I predict there will be no fines, no enforcement notices, no action. There will be a long, thorough and thoughtful report that nobody in politics will pay attention to, and only people like me will read. The first task of the Supervisory Authority under GDPR is to ‘monitor and enforce’. Long ago, when I worked there, the joke went around the ICO that senior officers operated under the mantra ‘thinking is doing’, as an excuse to avoid taking any action. I don’t care if no senior officer ever actually said this – on big strategic issues, the ICO has always laboured under this approach. Denham’s first big splash was to follow through on charity enforcement when the easy choice was to back down. She deserves praise for that decision. However, If there is an international right-wing conspiracy to hijack democracy across the world, I don’t think a thought symposium is going to save us.

Another fine mess

For those working in Data Protection, there are many interesting things to note about the forthcoming General Data Protection Regulation. There is the clarification of consent, which may send tawdry marketers into a spin. There is the tightening of the rules over criminal records. There is the helpful emphasis on risk. My current favourite thing is a sly anti-establishment streak – here and there, the GDPR returns to the theme of the power imbalance between the data subject and the big public institution, and seeks to even up the score.

For some, however, there is only one thing to talk about. All that matters is the fines. Fines fines fines, all day long. A conference held in London last week was Fine City as far as the tweets were concerned. COMPANIES MIGHT GO BUST, apparently. Meanwhile, the Register breathlessly reheated a press release from cyber security outfit NCC Group, featuring a magical GDPR calculator that claims ICO’s 2016 penalties would have been either £59 million or £69 million under GDPR (the figure is different in the Register’s headline and story, and I can’t be bothered to find the original because it’s all bullshit).

This is my prediction. There will never be a maximum GDPR penalty in the UK. Nobody will ever be fined €20 million (however we calculate it in diminishing Brexit Pounds), or 4% of annual turnover. There will be a mild swelling in the amount of fines, but the dizzy heights so beloved of the phalanx of new GDPR experts (TRANSLATION: people in shiny suits who were in sales and IT in 2015) will never be scaled. It’s a nonsense myth from people with kit to sell. I have something to sell, friends, and I’m not going to sell it like this.

I have no quibble with DP officers and IG managers hurling a blood-curdling depiction of the penalties at senior management when they’re trying to get more / some resources to deal with the GDPR onslaught – I would have done it. There is probably a proper term for the mistake NCC made with their calculation, but I’m calling it the Forgetting The ICO Has To Do It Syndrome. NCC say Pharmacy2U’s penalty would inflate from £130,000 to £4.4 million, ignoring the fact that the decision would not be made by a robot. Pharmacy2U flogged the data of elderly and vulnerable people to dodgy health supplement merchants, and ICO *only* fined them £130,000, despite having a maximum of £500,000. Of course, some penalties have caused genuine pain for cash-strapped public authorities, but when NCC say that their adjusted-for-GDPR Pharmacy2U fine represented “a significant proportion of its revenues and potentially enough to put it out of business“, they’re not adjusting their hot air for reality.

Take the example of a monetary penalty issued by the ICO in March against a barrister. The barrister was involved in proceedings at the Family Court and the Court of Protection, so her files contained sensitive information about children and vulnerable adults. Despite guidance issued by the Law Society in 2013, they were stored unencrypted on her home computer. While upgrading the software on the machine, her husband backed up the files to online storage. Some of the files were indexed by search engines, and were subsequently found by a local authority lawyer.

The ICO fined the barrister £1000, reduced to £800 if they paid on time. I don’t think all barristers are loaded, but most could pay a penalty of £800 without going bankrupt. £800 isn’t remotely enough for a breach as basic and avoidable as this. The aggravating factors are everywhere – the Law Society guidance, the lack of encryption, the fact that the husband had access to the data. If the ICO was capable of issuing a £4.4 million penalty, they’d fine a barrister more than £800 for this mess. And what’s worse, they redacted the barrister’s name from the notice. The ICO offered no explanation for this, so I made an FOI request for the barrister’s name and for information about why the name was redacted.

They refused to give me the name, but disclosed internal correspondence about their decision to redact. There is a lot in the response to be concerned about. For one thing, in refusing to give me the name, the ICO contradicts its own penalty notice. The notice describes an ongoing contravention from 2013 (when the Law Society guidance was issued) to 2016 (when the data was discovered). Nevertheless, the FOI response states that “this data breach was considered a one off error“, and a reference to this characterisation is also made in the notes they disclosed to me.

If it was a one-off error, ICO couldn’t have issued the penalty, because they don’t have the power to fine people for incidents, only for breaches (in this case, the absence of appropriate technical and organisation security measures required by the Seventh Data Protection principle). Given that the notice states explicitly that the breach lasted for years, the ICO’s response isn’t true. It’s bad enough that the ICO is still mixing up incidents and breaches four years after this confusion lost them the Scottish Borders Tribunal appeal, it’s even worse that they seem not to understand the point of fining Data Controllers.

In the notes disclosed to me about the decision to redact the notice, ICO officials discuss the “negative impact” of the fine on the barrister, especially as she is a “professional person who is completely reliant on referrals from external clients“. Despite the Head of Enforcement putting a succinct and pragmatic case for disclosure: “it is easier to explain why we did (proportionate, deterrent effect) rather than why we didn’t“, he is unfortunately persuaded that the most important thing is to “avoid any damage to reputation”. Bizarrely, one person claimed that they could “get the deterrent message across” despite not naming the barrister.

The GDPR requires that fines be “effective, proportionate and dissuasive” – an anonymous £800 fine fails on each point. Anyone who takes their professional obligations seriously needs no horror stories to persuade them. For those who do not, an effective, proportionate and dissuasive penalty is either a stinging fine or naming and shaming. The ICO had no appetite for either option, and effectively let the barrister get away with it. They valued her professional reputation above the privacy of people whose data she put at risk, and future clients who will innocently give their confidential and private information to someone with this shoddy track record.

If the NCC Group, and all the various vendors and GDPR carpetbaggers are to be believed, within a year, the UK will operate under a regime of colossal, multi-million pound fines that will bring errant businesses to their knees. In reality, the ICO cut the fines on charities by 90% to avoid upsetting donors, and rendered their enforcement against an irresponsible data controller pointless for fear of putting her out of business.

These two pictures cannot be reconciled. It is entirely possible for the ICO to put someone out of business – indeed, many recipients of their PECR penalties are forced into liquidation (this may be a ploy to avoid the fines, but nevertheless, the businesses close). But the majority of PECR penalties are issued against businesses operating on the very fringe of legality – they are not mainstream data controllers. They are not nice, professional barristers. They are not the audience for the Great GDPR Fine Hysteria. If the ICO cannot stomach the risk of putting a single barrister out of business pour encourager les autres, it is disingenuous to pretend that they will rain down fire on mainstream data controllers after May 2018. We’ll get more of the same – cautious, reactive, distracted by the incident, and unwilling to take aim at hard targets. Plus ça change.