Mistaken Identity

Over the past week, numerous excited stories have covered a talk given by James Pavur, an Oxford University researcher and Rhodes Scholar, at the Blackhat Convention in Las Vegas. With his girlfriend’s consent, Pavur made 150 subject access requests in her name. In what the BBC called a ‘privacy hack’ until they were shamed into changing the headline, some of those that replied failed to carry out some kind of ID check. Pavur’s pitch is that GDPR is inherently flawed, allowing easy access for identity thieves. This idea has already got the IT vendors circling, and outraged GDPR-denier Roslyn Layton used the story to describe GDPR as a “cybersecurity/identity theft nightmare“. Pavur’s slides are available on the Blackhat website, but so is a more detailed whitepaper written by himself and his girlfriend Casey Knerr, and anyone who has pontificated about the pair’s revelations should really take a look at it.

Much has been made of Pavur’s credentials as an Oxford man, but that doesn’t stop the 10 page document containing errors and misconceptions. The authors claim that Marriott and British Airways have already been fined (they haven’t), and that there are only two reasons to refuse a subject access request (ignoring the existence of exemptions in the Data Protection Act 2018). They use ‘information commissioners’ as a term to describe regulators across Europe, and believe that the likely outcome of a controller rejecting a SAR from a suspiciously acting applicant would be ‘prosecution’. In the UK and most if not all EU countries, this is legally impossible. At the end, their standard SAR letter cites the Data Protection Act 1998, despite the fact that in context, any DPA is irrelevant and that particular one was repealed more than a year ago.

Such a list of clangers would be bad (though not necessarily unexpected) in a Register article, but despite presenting their case with a sheen of academic seriousness, Pavur and Knerr have some serious misconceptions about how GDPR works. It supposedly offers “unprecedented control” to the applicant, despite their experiment utilising a right that has existed in the UK since 1984. They claim GDPR represents a “sea change” in the way EU residents can control, restrict and understand the use of their personal information, even though most rights are limited in some way and are rooted firmly in what went before. They claim that “little attention has been paid to the possibility of request abuse”. I’ve been working on Data Protection since the authors were schoolchildren, and I can say for certain that this claim is completely false. SARs being made by third parties, especially with malicious intent, has been a routine concern in the public and private sector for decades. Checking ID is instinctive and routine in many organisations, to the point of being restrictive in some places.

Other assertions suggest a lack of experience of how SARs actually work. Because of the perceived danger of twitchy regulators fining organisations for not immediately answering SARs “it is therefore fairly risky to fail to provide data in response to a SAR, even for a valid purpose”. This year, the ICO has had to enforce on high profile organisations for failing to answer SARs (it didn’t fine any of them), and is itself is happy to refuse SARs it receives from elderly troublemakers. SARs are routinely ignored and refused, but the authors imagine that nobody ever wants to say no for fear of entirely imaginary consequences.

Pavur and Knerr think that panicking controllers will make a mess of the ID check: “we hypothesized that organisations may be tempted to take shortcuts or be distracted by the scope and complexity of the request”. This ignores three factors. First, for many organisations, a SAR is nothing new, and the people dealing with it will have seen hundreds of SARs before. Second, the power advantage is with the controller, often a large organisation ranged against a single applicant (and in the UK, facing a regulator unlikely to act on the basis of one SAR complaint). Third, and most important, they don’t factor in the reality that the ID check takes place *outside* the month. ICO says that until the ID check is made, the request is not valid and the clock is not ticking. A sense of panic when the request arrives – necessary for the authors’ scenario to work – will only be present in those with little experience, and if you’re telling me that people who don’t understand Data Protection tend to cock it up, I have breaking news about where bears shit.

Another unrealistic idea is that by asking whether data has been inadvertently exposed in a breach (a notion written into the template request), the authors make the organisation afraid that the applicant has knowledge of some actual breach. “We hypothesised that such a belief might cause organisations to overlook identity verification abnormalities”. I can’t speak for every organisation, but in my experience, a breach heightens awareness of DP issues. Making the organisation think that the applicant has inside knowledge of a breach will make most people dot every ‘I’ and cross every ‘T’. Equally, by suggesting that ID be checked through the unlikely option of a secure online portal, the authors hope to make the organisation feel they’re running out of options, especially because they think the portal would have to be sourced within a month. Once again, this is the wrong way around. An applicant who wants to have their ID checked via such a method would either get a flat no, or the controller could sort it out first and then have the month to process the request.

A crucial part of the white paper is this statement: “No particularly rigorous methodology was employed to select organisations for this study”. Pavur and Knerr say that the 150 businesses operate mainly in the UK and US, the two countries they’re most familiar with. I’m going to stick my neck out and bet that the majority of the businesses who handed over the data without checking are US-based. Only two of the examples in the paper are definitely UK – a rail operator and a “major UK hotel chain”. Many of the examples are plainly US businesses (they cite them as Fortune 100 companies), and one of the most specific examples of sensitive data that they obtain is a Social Security Number, which must be a US institution of some kind.

If you tell me that a significant number of UK businesses, who have been dealing with SARs since 1984, don’t do proper ID checks, that’s a real concern. If you tell me that it’s mainly US companies, so what? Many US companies reject the application of GDPR out of hand, and I have some sympathy for their position, but it’s ridiculous to expect them to be applying unwelcome foreign legislation effectively. This is the risk that you take when you give your data to a US company that isn’t represented in the UK or EU. Pavur and Knerr haven’t released the names of the organisations that failed to check ID, and until they do, there’s not much in the paper to show that this is a problem in the UK, and a lot to suggest that it’s not.

The potential solutions they come up with are flawed. They say regulators should reassure organisations that they will not be prosecuted if they reject requests without ID, despite no evidence that any regulator says anything different (or indeed, has enforced in such circumstances). Their main recommendation for legislators is recommending that government ID verification schemes should be used by all controllers to check the ID of SAR applicants. It’s true that there is no standardised ID check and controllers will act on a case by case basis, but that’s infinitely preferable to Dominic Cummings’ government knowing every time you exercise your data protection rights.

I have never run a training course that mentions SARs that doesn’t mention checking ID. At least in the UK, a request isn’t seen to be valid unless some form of ID has been presented. In the last month, two different data controllers (the Conservative Party and Trilateral Research) have insisted on seeing a driving license or equivalent before processing my SAR, despite me applying from the email address they have on file. A few US controllers handling SARs in a sloppy manner isn’t a cause for great concern. It certainly doesn’t suggest significant flaws in the way GDPR is drafted.

For all my criticisms of the pair’s approach, they do admit that the white paper was “a cursory assessment”.  I don’t doubt their expertise in security, their good intentions or the truth of their ultimate message: checking ID is essential when dealing with SARs. The problem with the experiment is that it reads like what two clever people reckon subject access is like, rather than how it works in the real world. I’d strongly suggest that if they follow up on this first attempt with a more robust piece of research (which is hinted at in the white paper), they approach the subject with a more realistic and detailed understanding of how Data Protection actually works, and maybe get some advice from people with real SAR experience.

Mates’ Rates

A while ago, I noticed an FOI request sent to the Information Commissioner’s Office on the website What Do They Know? I always keep an eye on requests made to Wilmslow, but this one was especially intriguing. It asked about payments made by ICO to external suppliers and consultants where the work had not been put out to tender. Even the progress of the request became notable because the Information Commissioner was seemingly incapable of answering it. The original request was made on February 26th 2019, and the ICO didn’t answer it until July 9th, more than three months after the legal time limit. Twice, the ICO set itself a deadline by which it would definitely answer the request, and twice it failed to do so. Remember friends, the Information Commissioner is the regulator for FOI. They’re supposed to ensure that other public sector bodies answer their FOI requests, but they’re terrible at answering their own. It’s worth noting Liz Denham was almost certainly aware of the request, as there is specific mention of her private office being involved during the glacial march towards a reply.

SIDENOTE: I made an FOI about enforcement and monetary penalties to the ICO that was due on July 16th. The Senior Information Access Officer handling my request told me that he hoped to provide me with a reply by Friday, and an answer came there none. I wonder if they’ll sit on it like they did here.

Anyway, due to the busiest July I have ever had (take that, haters), I missed the fact that the payments request had finally been answered, apparently in full, with no use of exemptions. At first glance, it’s nothing to get excited about. The total amount is less than £240,000, and though the highest payment made to anyone is £58000, the explanation of why this work was not put out to tender doesn’t sound outrageous:

A project brief was developed and three suppliers were approached for quotes. The requirements were in two parts, the first part was research and the second part was delivery. The second part of the brief was tendered to the supplier who completed the first after the proposed next steps were evaluated by the Board and it was agreed to implement their proposals – meaning they were uniquely placed to deliver the second part.

A couple of items did leap out at me. David Smith is not a unique or distinctive name, but it’s hard to believe that the particular David Smith (DP) Ltd paid £5152 for international engagement isn’t the same David Smith who was until recently Deputy Information Commissioner. Apparently, Smith is “uniquely placed” to deliver international engagement on behalf of the ICO. One would think that the Commissioner’s pan-continental roadshow would provide all the engagement the office could require, but I suppose throwing a few grand in an old friend’s direction isn’t the worst thing the ICO has ever done.

Equally, I doubt the Simon Entwistle who received £5791 is a different Simon Entwistle to the Simon Entwistle who was until recently Deputy Information Commissioner. Apparently, he is uniquely placed to carry out ‘Executive Coaching’. Granted, Entwistle is an old ICO hand, originally appointed by Richard Thomas, but it’s rather odd that having retired, the organisation has to pay him to coach the ICO’s senior people. Elizabeth Denham was paid around £180,000 in 2018 – 2019, and every member of the executive team is within spitting distance of 100K. These are well-paid, experienced people – if they’re in these jobs, that should be because they already have the skills to do these jobs. If they don’t, why were they appointed?

The sum paid to Entwistle for coaching isn’t massive, but it’s not the only one. Two different amounts, totalling £17,968, were paid to a ‘Philip Halkett’ for executive coaching, a role which he was once again “uniquely placed” to carry out. I cannot say for certain who Halkett is, and I am happy to be corrected if I have got it wrong. However, I believe he is a former Deputy Minister in Canada’s Ministry of Forests, and is based in British Columbia, where he describes himself on LinkedIn as ‘semi retired’. There are literally hundreds if not thousands of people offering coaching in the UK, but since Denham became Commissioner, the ICO has paid just shy of £18000 to a man who has no website or company that I can find, whose sole contribution to the internet is a single retweet about Denham, and whose main qualification for the job appears to be that he comes from the same remote corner of Canada as she does.

Halkett isn’t the only Canadian to feel the benefit of the ICO’s munificence. The former Information Commissioner of Canada, Suzanne Legault, is “uniquely placed” to deliver the secretariat for the International Commissioner’s Conference that Denham has been nominated to organise. It’s probably a complete coincidence that Legault is Canadian, and it’s not like organising an international conference isn’t a thing that loads of organisations do all of the time all over the world.

Most intriguing is the work carried out by a British customer service guru, Mark Colgate. Colgate has been paid £20000 to deliver “advice on development of service excellence programme and delivery of training to 500 staff”. If you visit Colgate’s website, you’ll find an uncharismatic man plugging some basic customer service ideas using gratingly clunky acronyms. Colgate sums up his philosophy as ‘Tofu’, which means that he is selling a fundamentally unappetising and artificial concept. I’m joking, ‘Tofu’ means ‘Take Ownership and Follow Up’. Another element of the Colgate Method is FAME, a concept that is so vapid and forced I can’t bear to reproduce it here.

Most regulators do not have customers. In particular, the ICO is not an ombudsman. It is not their job to give complainants redress or resolution. The ICO’s role is to ensure that controllers comply with the law – Article 57 of the GDPR states that the first task of the supervisory authority is to ‘monitor and enforce‘ the regulation. Handling complaints from members of the public is in there, but the public are not the ICO’s customers, any more than controllers are. The aim should not be to give either side what they want, but to ensure that controllers do those things that they are obliged to do, and that individuals’ rights are respected. A ‘customer service’ mentality is at best a distraction, and at worst, risks creating expectations that cannot be met. Many controllers have experience of ICO case officers who keep pushing a dead-end complaint because they clearly don’t want to give an angry or unreasonable complainant an answer they don’t like. If you swap it and make the controllers the customer, it’s at least as bad. The ICO has a long, shabby history of bending over backwards to appease ‘stakeholders’; the aforementioned David Smith was a big fan of describing the ICO as ‘enablers’ of business and innovation, rather than an organisation with a clear mission to enforce some specific laws.

But let’s assume that I’m wrong. Let’s assume that the ICO does need to spend thousands of pounds training its staff on customer service. What exactly is it about Mr Colgate’s brand of bargain basement Dale Carnegie that meant he had to be awarded this work without a tender process? Why, given the plethora of genuine customer service experts in the UK, was Mr Colgate “uniquely placed in respect of experience and expertise” to deliver this work, especially when it is so similar to so many other people? Is there any clue in his CV? Mr Colgate’s current berth as “Professor of Service Excellence” at the Peter B. Gustavson School of Business, which you can find in the fine city of Victoria. In Canada. Specifically, in British Columbia. About a ten minute drive from the Office of the Information and Privacy Commissioner for British Columbia, the last incumbent of which was a certain Elizabeth Denham. Fans of funny coincidences may also care to note that the current incumbent of that office is Mr Michael McAvoy, last seen running the ICO’s investigation into data analytics, a role that I do not believe was advertised externally.

At this point, you might be saying ‘so what’? Denham has thrown some work to her mates both home and abroad: is this so terrible? In my opinion, it really is. A good chunk of my work comprises a single day’s training, and in many cases, the client gets multiple quotes before giving me the work. I simply don’t believe the ICO’s claims that these people are the only possible candidates, especially as there was no competition or objective test. Public money should not be spent on a whim, especially not with the particular flavour of favouritism and self-indulgence that appears to be on show here. Bringing in your Canadian friends to provide luxury services that thousands of people in the UK are well-placed to provide shows lamentably poor judgement.

This is not the first time I have blogged about Denham’s terrible decisions. She did an advert for a commercial company. She enthusiastically endorsed a book she hadn’t read, making claims about the author which were not true. She made misleading claims in the media to get headlines and bragged on TV that she had used powers that actually don’t exist. She announced the Facebook fine prematurely and now faces accusations of bias and procedural unfairness. We haven’t had a decent Commissioner since Elizabeth France, but despite Richard Thomas’ over-caution and Chris Graham’s superficiality, both of them seemed able to do the job without the growing list of howlers for which Denham is responsible. Paradoxically, she is the most respected and popular of all the Commissioner’s incarnations and my complete lack of faith in her judgement makes me the bad guy, as usual. Nevertheless, questions need to be asked about what exactly is going on in Wilmslow, how decisions are being made, and how money is spent. There are a number of well paid non-executive directors on the ICO board; I would be keen to know what they think of all this.

Quis custodiet ipsos custodes, and all that.

A Boy’s Best Friend is his Data

Just over a month ago, I enjoyed a series of bad-tempered Twitter exchanges with Benjamin Falk, Founder and “Chief Talker” of the personal data outfit Yo-Da. Falk has an interesting perspective on Data Protection. Instead of coming to DP through the traditional routes of information management, security, governance or the law, Falk is an ‘information economist’. He doesn’t see the subject as an issue of human rights, instead looking at it through the prism of economics. Because Data Protection is concerned with information, and there are other contexts where information is a commodity traded in a market, Falk has had the revelation that the processing of personal data is just another market, and this is the only way to understand it. Falk perceives this market as a ‘dumpster fire‘, and he alone has the solution. He has founded what he calls the “world’s first Personal Data agency” and hopes to lure people into signing up for an ill-defined service that he asserts will put them in control of their information. Somewhere along the way, money will be made.

Falk has some eye-catching ways to explain the ‘market’ he seeks to disrupt:

personal data is best understood as a newspaper that we publish about ourselves, whether we like it or not“.

Sometimes, he thinks personal data is “a really really boring autobiography, it’s just information about yourself written down somewhere“.

Falk’s view of data subjects is that they are “an author with an information rights management problem

I can imagine that if a person had, say, an AI program and they had to persuade gullible investors to buy into a wheeze that hadn’t really been worked out properly, this kind of eye-catching guff might get them going. However, it’s nonsense. Most personal data isn’t published or created for public consumption like a newspaper (indeed, many people have laboured for years under the misapprehension that personal data in the public domain isn’t personal data at all). Equally, a lot of personal data doesn’t fit Falk’s favourite analogy of a ‘robo-biography‘ because it is generated by people and not machines. You can’t simplify a million different controllers doing things for themselves in a million different ways. It’s complicated.

As Yo-Da’s website says, users will be able to “discover, fetch, control and erase” personal data from “any company operating in Europe”. However, the first thing you see on Yo-Da’s homepage is the following: “who earns from your personal data? everyone but you“. Falk also wants people to monetise their data. There’s not much detail however, making me wonder Falk has got this far by saying ‘AI’ a lot without a clear idea of how that will translate to the power he claims to put in subjects’ hands. After all, in order to work, Yo-Da needs to be able to successfully obtain and amalgamate data held on millions of different systems, in thousands of formats, processed for a host of different reasons by a multitude of businesses as varied as Apple, Tesco, 2040 Training and the Friendly Furry Shop. I’d like to see this in action.

The idea of individuals monetising their data is common to survey platforms like YouGov and CitizenMe, while Paul Olivier-Dehaye has been touting the automation of SARs and other data rights for years. A mock-up of the Yo-Da app shows data obtained from Starbucks (including how many coffees the user has drunk) with a suggestion at the bottom that this data be combined with that information from Transport for London or NHS England. Rather than selling data at scale like most data brokers, Yo-Da seems to encourage subjects to obtain vast quantities of data about themselves (the app shows a user having obtained data from 1200 companies) to create a “rich personal database” which presumably the user will then sell with Yo-Da’s assistance.

Falk’s ambitions are not limited to data monetisation. Yo-da, he claims, will stop subject’s rights from being infringed. The ‘dumpster fire’ of poor data protection practice in the UK is the fault of greedy consultants like me who ensure that our clients don’t actually comply with the law so we can keep charging them. Like Hercules diverting rivers to sluice the Augean stables, Falk’s tweets demonstrated a belief that Yo-Da will wipe Data Protection clean. Solving DP’s many problems is “easy to do“, he says, it’s just that nobody has actually tried (take that, Liz Denham). I don’t see how, but even if you believe that Yo-Da’s data jumble sale could change the face of DP forever, it can surely only do so if millions of people participate. Even if thousands of people sign up, Yo-Da will barely scratch the surface of how much personal data is processed across the UK and the EU. People will still be obliged to provide their data to pay their taxes, claim their benefits, use the NHS, set up a bank account or a mortgage, or be employed. The ability to get a slice of your data (it won’t be all of it) and possibly hawk it to dodgy data brokers (about the only people who I can imagine might buy it) won’t change that, and would do nothing to stop DeepMind, lost discs, the Met Police’s use of facial recognition or hospitals letting TV companies film vulnerable women without consent.

Moreover, just imagine how Yo-Da could go wrong if it actually works. At the moment, the fact that the different aspects of your life are often held in silos is wholly to your advantage from a data protection perspective. Capitalism is trying to connect the various loose ends of your life, but there are limits.  As a middle aged man with middling health, the NHS doesn’t know how often I drink coffee at Starbucks, or how regularly I get the Tube in London rather than using a TfL bike (I would like to confirm to my GP that I never drink coffee in Starbucks and I have only used the Tube once this year on my many visits to the capital). But what else could be added? Could Yo-Da include how many orders from Beers of Europe I make? How often I go to SoLita for a burger? Yo-Da is selling a seductive idea – one might almost paraphrase it as ‘take back control’, but it probably contains the same risk of unintended consequences as that rancid propaganda. Falk positions his company as the saviour of privacy rights, but he’s encouraging people to conspire in their own exploitation by creating an intrusive and potentially prejudicial data cocktail and then flogging it to the highest bidder.

I’m ignoring the practical problem that the key to driving his plan is subject access requests, and SARs rarely provide a seamless, rich repository of information, ready to be amalgamated and exploited. SAR disclosures are often messy and incomplete, a patchwork left behind by the removal of third parties and exempt data, and often delivered in PDFs. Only data supplied direct to the controller by the subject or obtained under observation has to be supplied in a portable form. There are legitimate reasons to refuse requests altogether. Falk has asserted repeatedly that “ownership and rights mean the same thing“, and so subjects own their data, but this won’t be any help to his business model. Subjects own the copy of the data that they receive from their SAR, but that doesn’t give them automatic access to any and all data held. They don’t own the data held by the controller. The promises of control and erasure made on the Yo-Da website are embarrassingly simplistic – you can’t object to a controller processing your data under contract or legal obligation or ask them to erase the data. They can resist an erasure request because they need to establish, exercise or defend a legal claim. Only someone who doesn’t understand how limited the GDPR rights of objection are would make the grandiose claim that “Yo-Da… lets you control who processes your information“. No, it doesn’t. It never will, because the GDPR doesn’t do that.

I think Falk’s claims are hype and his understanding of data protection is fundamentally flawed. Moreover, I don’t trust him. During the period that I spent arguing with the Yo-Da Twitter account, it became clear that I wasn’t just dealing with one person. There were two distinct personalities, inverted versions of the dual identities in Hitchcock’s Psycho. The Norman Bates character – relentlessly polite no matter what the provocation, endlessly ingratiating – is fake, a bot unleashed by Falk to fool people into thinking they’re dealing with a real person. Mrs Bates – the bitter, angry and resentful persona that occasionally lashes out – is real, presumably Falk himself, unable to let the upbeat-to-the-point-of-being-deranged program do all of the talking. Falk called me a jerk for accusing him of being a bot when actually, he was just being “unswervingly polite“. In the end, he had to admit that I was right and that he was using a bot. Ethics is Data Protection’s flavour of the month, and I’m not sure that such duplicitous behaviour will fit in.

Despite the fact that Yo-Da hasn’t launched yet, the website mysteriously features testimonials from happy users, while one of the three case studies highlighting how the service works using happy Yo-Da customers is actually just Falk himself. Falk wants to charge people to use their DP rights. Somewhere in our bickering, either Falk or the bot told me that Yo-Da would be a monthly subscription based on what users can afford, but there’s no hint of that on the website. It’s the same model that Dehaye originally proposed for PersonalData.Io – just as GDPR makes personal data rights free in most cases, in come some chancers hoping to charge you for using them. And I have one last piece of evidence that when it comes to upholding data protection, in giving people “transparency into this secretive ecosystem“, Falk isn’t the champion of data rights he purports to be.

After five days of arguing and provoking whoever / whatever was running the Yo-Da account, on June 4th, I made a subject access request to the company via the Data Protection Officer’s email address on the Yo-Da website (i.e. the specific address they direct you to make SARs to). I explicitly ruled out any personal data processed on the public Twitter account – that is available to me already and besides, I’ve already seen it. I wanted to see any direct messages, emails or other correspondence generated by my spat with Falk and his bot. Of course, there may not be any data at all. It’s quite possible that Falk didn’t talk to anyone about me or what I was saying, but he could have done. Several times, I questioned the fundamentals of Falk’s interpretation and I also asked whether Trilateral Research, the consultancy he has engaged to be Yo-Da’s DPO, agreed with his views. I wouldn’t be surprised if Falk contacted them about what I was saying, or just complained to his colleagues about what a jerk I was.

However you slice it, the deadline for compliance has passed, and Yo-Da has not responded to my request. I have received no data, no confirmation that data is not held, no request for ID, not even an acknowledgement. Nothing, nada, zip. Benjamin Falk proclaims that he seeks to land a knock-out blow for data subjects through the use of the GDPR rights, but the vehicle for this glorious revolution can’t even be arsed to answer a simple SAR. I wondered before why Trilateral wanted to be associated with Falk’s hyperbolic nonsense, but now he has coupled it with contempt for the law he claims to defend, I wonder if they’ll think again? In any case, everyone who receives one of Yo-Da’s SARs when the service launches knows what they can do.

Ignore it, you can.

 

A cure for blindness

The first time I read the GDPR properly, something leapt out at me. For years, the received wisdom about the subject access and other rights provided by the legislation was that they were ‘applicant blind’. You could ask the person for assistance in locating their data, but you could not ask them why they were asking. Even if you knew that the person wanted to wind you up, you had to ignore that. When I got to the GDPR articles about subject rights, it struck me that this was no longer the case.

The relevant text in the final version (Article 12.5) is as follows:

Where requests from a data subject are manifestly unfounded or excessive, in particular because of their repetitive character, the controller may either:

(a)  charge a reasonable fee taking into account the administrative costs of providing the information or communication or taking the action requested; or

(b)  refuse to act on the request

Looking at the foundation, the basis on which the request has been made, opens the door to the applicant’s motive. An unfounded request is one for which there is no legitimate basis, a request which is unwarranted. You cannot come to a conclusion that a request is either ‘unfounded’ and ‘excessive’ in many cases without looking at the person, why they have asked and what they intend to do with the data. The word ‘manifestly’ places a high threshold – it must very obviously be the case that the request is unfounded, but nevertheless, the words are there, and they must be there to allow the controller to refuse in some circumstances. If I’m wrong, tell me what those words are there for.

Believing that GDPR allows controllers to refuse requests because of the motives of the applicant often gets me into disagreements with other DP professionals. Perhaps because the ‘applicant blind’ idea is so basic to some people’s understand of how Data Protection works, or because they disapprove of the idea, a lot of people disagree. Last year, a controversy started when anti-abortion campaigners in Dublin filmed pro-choice demonstrators, and someone on Twitter provided a template SAR request for pro-choice people to use. The idea was to (in one Tweeter’s words) ‘swamp’ the anti-abortion campaign with SAR requests, even to show up and get yourself filmed solely so that you could make a SAR. More recently, pro-Remain campaigners, angry that they are receiving entirely legal election literature from the Brexit Party, suggested making SARs to the party to find out where their data had been sourced from. Virtually every time I pointed out that the data would have come from the electoral register, rendering the SAR pointless, they said they would do it anyway to annoy the Brexit Party and waste their time.

I support the idea of abortion without any hesitation, and I commend those who campaign in favour of the right to abortion. I am also what you might call a Hard Remainer – I wish we weren’t leaving the EU, and when we do, I would support a campaign to go back in on a Full Schengen, Join the Euro platform, partly because I think these things are good on balance, and partly because it would annoy people who voted Leave. Nevertheless, I think the anti-abortion campaign were perfectly within their rights to refuse SARs where they could identify a person’s Twitter comments saying that they intended to do a SAR to waste their time, and if the Brexit Party do the same now, I believe that this would be justified. I think GDPR allows for refusals of requests that are made for reasons other than concerns about personal data.

And if you don’t agree with me, you don’t agree with the Information Commissioner either.

For years, the failed FOI campaigner Alan Dransfield has been sending angry emails and complaints to various people at the Information Commissioner’s Office, usually late at night. I know this because as well as copying in various journalists, news organisations, and politicians, he also includes me. It’s hard to know what Dransfield hopes to achieve with these screeds, which blend an aggressive misreading of how the law works, defamatory accusations against ICO staff and RANDOM words in CAPITALS. Usually these emails come out of nowhere, but his most recent missive was in response to an email from the Information Commissioner, refusing to answer a subject access request he had made to them.

If you ever wanted an extreme case to test the limits of what is acceptable, it’s Dransfield. The ICO’s refusal says that since April 2016, Dransfield has sent them over 120 requests for information under the Data Protection Act 2018 (DPA 2018), the Freedom of Information Act 2000 (FOIA) and Environmental Information Regulations 2004 (EIR). In addition, the email contains this remarkable statement:

since May 2018 we have received in excess of 290 items of correspondence from you. Many of these communications have included unsubstantiated accusations of the ICO’s complicity in various crimes and have targeted members of ICO staff with the intention of causing distress

The ICO refusal points out that having previously refused his FOI and EIR requests as vexatious, they are now no longer even acknowledging them because they are about matters which have been dealt with (something which FOI plainly allows). They then go on to say this:

Your requests for information under Article 15 of the GDPR appear to be similarly motivated. We consider that these requests are not made to legitimately establish what information we hold and how we are handling your personal data, but part of a campaign to challenge the decisions that have already been concluded within due process

As well as copying me into his legally illiterate complaints, Dransfield sometimes emails me direct to call me a dickhead or spew out misogynistic and homophobic abuse, but it’s clear that ICO staff have it much worse than me. He’s a toxic character who thrives on causing discomfort and outrage. You might say that if ‘unfounded’ works on him, it’s only because he’s such an extreme case. But Dransfield is not alone. There are other vexatious, unpleasant people whose SARs will be made in the same vein of perpetuating a complaint or a campaign. Most importantly, look at the basis of the ICO’s refusal: we’re saying no because we don’t think you’re making this request for the right reasons. The ICO believes that an unfounded request is one made for the ‘wrong’ reasons.

Assuming this is correct (and obviously this is a rare case where I think the ICO has got it right), the next question is how far this goes. For years, the UK courts argued that using SARs to pursue litigation was an abuse of process – is that use of a SAR unfounded? I think that weaponised political SARs are unfounded, and even if you disagree, I don’t think you can tell me that it’s impossible. The net result of Dransfield’s adventures in FOI was establishing a principle that has been used to refuse many requests as vexatious – exactly the opposite of what he wanted. His campaign against the Commissioner may, ironically, have the same effect in GDPR.

The ICO rejects SARs they believe have been made for the wrong reasons. If they do this for themselves, there have to be circumstances where they will agree when other controllers do this. Pandora’s Box has been opened. Controllers who are dealing with vexatious applicants or orchestrated campaigns should think very seriously about whether denying a person their subject access right is an acceptable thing to do, but they should do so in the knowledge that the UK’s Data Protection regulator has already done it.

 

Home, James

A few months ago, I wrote a blog about data protection and nonsense, highlighting inaccurate claims made by training companies, marketers and pressure groups. A bad tempered spat ensued in comments on LinkedIn between myself and Russell James, the marketer behind the lobbying attempt to change the ICO’s funding model to include cost recovery. James insisted that it didn’t matter that a letter sent by four MPs to the DCMS asking for the change, apparently at his instigation, contained inaccurate claims (the description of DP breaches as ‘crimes’) and embarrassingly got the name of the Information Commissioner wrong (it’s the Independent Commissioner of Information, according to the distinguished Parliamentarians, or whoever actually wrote it).

I asked James what the Information Commissioner’s Office themselves thought of his plan to allow the ICO to recoup the costs of investigations from those “found guilty of data crimes” (which I think means those who are in the receiving end of enforcement from Wilmslow, although it’s hard to be 100% certain). The idea that someone would persuade MPs to lobby the ICO’s sponsor department to change their funding mechanism without at least the tacit approval of the Commissioner or her staff seemed ridiculous, but the normally prolix Mr James was silent on the matter. So I decided to ask the Information Commissioner.

I made an FOI request including all of the following information:
1) Any recorded information about approaches made by Russell James or others to the ICO about the idea of the ICO adopting a cost-recovery model, including any correspondence with Mr James or his associates.
2) Any responses provided to James or others about the ICO adopting a cost-recovery model.
3) Any correspondence with Tom Tugendhat, Yvette Cooper, Dominic Grieve or Damian Collins, or their staff about the idea of a cost-recovery model, or the letter sent to the DCMS
4) Any internal discussion of the cost-recovery model.
5) Any correspondence, notes of meetings or other records of meetings between Mr James and any ICO member of staff, including the names of the staff. (this was subsequently clarified to cover only the cost recovery model, and not any other correspondence Mr James might have had with the ICO.)

Whatever the ICO made of Mr James’ ambitious plan, I was certain that this request would capture their thoughts. At worst, the ICO might refuse to disclose their internal discussions of the idea, but at least I might get some sense of the extent of them.

The ICO provided me with three paragraphs from a letter sent to them by Mr James around the time the MPs wrote to the DCMS. James told me that ICI letter was written by the office of Tom Tugendhat, but this one was remarkably similar in tone, and had the same lack of understanding of how the Data Protection enforcement regime works. James told the ICO that they were about to “leverage significant revenue“. Greatly increased income for the DCMS via the huge sums GDPR fines paid to them would, James asserted, result in much more cash for Wilmslow. This sounds great, if it wasn’t for the the fact that the ICO hasn’t issued a single penalty under the GDPR yet. More importantly, he is confused about what happens to the penalties, and how the ICO is funded. DP penalties have always been paid into the Treasury’s consolidated fund, bypassing the DCMS altogether. Moreover, the ICO doesn’t receive any funding from the DCMS for its Data Protection work. As this document (freely available on the ICO’s website) states, all the ICO’s DP work is paid for by DP fees collected from Data Controllers, as has been the case for many years. The ICO could do a CNIL-style €50 million penalty every week, and neither they nor the DCMS would see a cent of it.

James also claims in his letter that his campaign has “ministerial support from government officials“; I don’t know if that he’s claiming the support of ministers, or the support of government officials, but the phrase itself sounds like it was written by someone who doesn’t know the difference between the two. I’d ask him which it was, but I sent him a single direct message asking for comments before publishing the last blog I wrote this issue. He ignored me, but later pretended that I had deluged him with many such messages. If Tugendhat hadn’t tweeted the ICI letter, I’d think it was fake.

Whatever the shortcomings of Mr James’ insights into Data Protection (when I told him I was making an FOI about his plan, he thought it was the same as a SAR), his confidence in the success of the James Tax is hard to fault. According to him, it is now “a short time before your department (ICO) will have a more resilient financial footing“. Given this thrilling news, one can only speculate at how excited the fine folk of the ICO would be at the impending cash bonanza.

Alas, apart from a copy of the ICI letter, which the ICO sensibly chose not to provide to me as it was plainly in the public domain, they held no data about the James Tax. None. Nothing. Nada. Indeed, they made a point of telling me: “For clarity, I can confirm that we do not hold any information which falls within the scope of the other parts of your request“.  This means that they did not have any recorded discussions about it, share the letter internally, or even reply to that part of Mr James’ letter. If anyone had anything to say about the James Tax, they didn’t want to write it down.

Mr James has set himself up as the doughty defender of “Liz and the crew” as he once described his surprisingly reticent friends in Wilmslow to me. He has launched a campaign to change the law and roped four two highly respectable MPs in to support it. I think it is reasonable to ask whether someone with such a misbegotten understanding of how Data Protection works is the right person to change it. Given that the ICO has seemingly offered no support, not even a comment on his plan, I assume that they do not welcome the idea. It’s not hard to imagine why – calculating the costs of an investigation is extra work and bureaucracy. Moreover, if the ICO is entitled to claim the costs of victory, surely it should be forced to foot the bill for defeat – every time the ICO’s enforcement team’s investigation results in no action, the ICO should contribute to the time the controller spent in answering the many letters and information notices for which the office is celebrated.

If a case goes to appeal, while the James Tax would presumably allow the costs of going to the Tribunal to be recouped if successful, for fairness’ sake, the same logic must apply the other way around. If the Tribunal vindicates the ICO’s target (and losses at the Tribunal are not unknown, especially in recent times), presumably the ICO would have to pay the legal bills too. There are already financial incentives and advantages for the Commissioner. If the ICO issues a financial penalty, the controller gets a 20% discount if they choose not to appeal. If a controller’s actions are truly misbegotten and they choose to appeal, the Tribunal and the courts above can award costs against the recalcitrant data controller. To change the relationship further in the ICO’s interests should not just be one-way.

If the James Tax includes recouping costs of dealing with appeals (and my arguments with him on LinkedIn suggests that it does), this will also have a negative effect on one of the most important parts of the DP enforcement system. Any controller who has been fined will, according to the James Tax, already face the added cost of the ICO’s investigation. Appealing – already a roll of dice in many cases – will be that much more of a risk. As well as their own costs, controllers will have to factor in the additional ICO tally.

We already have Denham grumbling about appeals, even using a speech by Mark Zuckerberg about possible regulation in the US as an excuse to demand he drops his appeal against the Facebook fine in the UK. James’ ideas might further suppress the possibility of appealing against ICO decisions. For everyone involved in the sector, this would be a disaster. To borrow James’ inaccurate criminal characterisation of DP enforcement, the ICO is already the investigator, prosecutor and judge – I don’t want to strengthen that hand any more. Moreover, in the interview above, Denham signalled disdain for the concerns of ordinary people, stating that they don’t complain about the right things. As part of its analytics investigation, the ICO has enforced on cases where there have been no complaints. Denham’s ICO need to be challenged, and challenged regularly. The tribunals and the courts frequently give detailed and helpful explanations of how the law works – ICO never produced guidance on consent as useful as the Tribunal’s decision in Optical Express, and whether the ICO wins or loses, all sorts of insights are available in Tribunal decisions.

Nobody appeals lightly. Combine Denham’s hostility to challenge with the James Tax, and we might lose vital opportunities for debate and caselaw. You can dismiss this blog as just an opportunity for me to take the piss out of another GDPR certified professional, but James has set himself up as a public campaigner. He wants to change how the ICO is funded and how all controllers are potentially treated. This cannot just pass without scrutiny, especially as he appears to lack both an understanding of the system he wants to change, and the support of the regulator whose powers he wants to alter. If the people arguing for changes don’t even think it’s important what the ICO is called or whether it’s a ‘department’ or not, we should wonder what other important details they have missed.