Catch the Pidgeon

Even before the fundraising sector met its Data Protection nemesis in December, with two charities cruelly hung out on the rack, forbidden ever to raise funds again (CORRECTION: given two of the smallest fines in Data Protection history and not forbidden from doing anything), various blogs, and tweets showed that anguished tin-rattlers were confused about what they were accused of.

A classic of the genre was published just over a week ago by Third Sector, penned by Stephen Pidgeon, a “consultant and teacher” (one assumes modesty prevented the publication from mentioning that until recently he chaired the Institute of Fundraising’s Standards Committee, responsible for the until-recently legally incorrect Code of Fundraising Practice). Pidgeon made a series of assertions in his article, and the most important of them is wrong.

Pidgeon describes profiling as a serendipitous activity – a fundraiser innocently planning some door-drops (not a hint of pestering spam in this charming scenario, nor any resort to a data-mining outfit like Prospecting for Gold) happens to notice that a donor has sold a business, and so decides to add his details to an existing campaign. The scheme is ruined by the ICO who says: “That’s not allowed – it’s against the Data Protection Act without express permission“. As Pidgeon points out, the DPA is much vaguer than that. If the Commissioner had indeed said this, it would be nonsense. The problem is, they didn’t.

Both charity notices set out the ICO’s position on charity profiling – it cannot be secret. The same is true for data sharing and appending new data to records that the subject didn’t provide. Neither notice finds profiling without consent to be a breach. Admittedly, of the Data Protection only offers one other option to justify profiling in these circumstances (legitimate interests), but either Pidgeon doesn’t know what the notice says, or he is deliberately misleading his audience. The word ‘permission’ does not appear in either notice, and the word ‘consent’ isn’t mentioned either.

Pidgeon also asserts that wealth profiling is not confined to charities:

This issue is not confined to charities. Yet, in all the 100-plus ICO adjudications in 2016, I could not find a single commercial firm censured for wealth screening.

To be pedantic, they’re not unenforceable ‘adjudications’, they’re formal legal notices, and if you add up all of the DP and PECR monetary penalty and enforcement notices in 2016, you don’t get to 100. He might be including the undertakings, which could be compared to the blancmange adjudications that charities have grown used to, but they’re irrelevant in a conversation about enforcement. The more important point is that like others, including the fundraising apologist academic Ian McQuillin and the researcher Matt Ide, Pidgeon claims that everyone does wealth screening but only the charities are getting punished for it. The Daily Mail hasn’t exposed Marks and Spencers or Greggs for wealth screening – possibly because they’re good at keeping it secret, but a more likely explanation is that they don’t do it. Until someone in the charity sector shows evidence of another organisation doing secret profiling, it’s just a distraction from the fact that – as Pidgeon claims – most of the charity sector have been doing it unlawfully for years.

Many in the sector also seem persuaded that the ICO action is a weird anti-charity vendetta. MacQuillin’s contributions to the Critical Fundraising Blog pondered the mystifying question of why the data protection regulator has taken action when household name organisations have been exposed for breaching data protection. The ICO takes action for three reasons – an organisation reports itself for something, ICO gets lots of complaints about something, or something makes a big splash in the press. There were thousands of complaints about charity fundraising, but all went to the toothless Fundraising Standards Board, who hardly ever passed them on to ICO. So it was the Daily Mail’s headlines that did the trick – the heartbreaking story of Olive Cooke but more importantly for the ICO’s purposes, the flamboyantly unlawful way in which charities treated Samuel Rae, trading his data relentlessly with anyone who wanted it.

In pursuing his false claim about consent, Pidgeon derisively summarised what charities might have to say to prospective donors: “We want to find out how rich you are; tick here to agree”! As a first draft, this has some merit, but a charity involved in wealth screening should also add ‘We want to know whether you are worth more alive or dead‘. The consent claim is a red herring, but perhaps unwittingly, Pidgeon has hit on the real problem for fundraisers: daylight. The foundation of Data Protection is fairness, and the only way to achieve it, regardless of whether consent is part of the mix, is to tell the subject the purposes for which their data will be used. Stretching the law as far as they can, the ICO has invented the concept of ‘reasonable expectations’. Reasonable expectations doesn’t appear in the Data Protection Act, but the ICO’s idea is that if you are only doing something that the person would expect, you don’t have to spell it out. One might take issue with this because it’s not in the Act, but it’s a sensible idea. The ICO’s emphasis has always been on being transparent over unexpected or objectionable processing.

Tesco’s Clubcard scheme is a useful example. Clubcard is a loyalty scheme, clearly based on profiling. The user knows that when they swipe their card, their purchases are analysed so that tailored offers and vouchers can be provided. Needless to say, Tesco also use the data for their sales and marketing strategy. If you look at the T&Cs for the Clubcard scheme, you will not find references to data sharing with third parties for wealth screening. They don’t need to – they can analyse your purchases instead. The user knows that profiling is inherent to the scheme, and they are not required to participate when shopping at Tesco. I have a Clubcard because I understand the system and I don’t believe that Tesco flogs my data. The profiling is the basis on which the whole thing operates. I have a choice about whether to shop at Tesco, and separately, whether to have a Clubcard when I do.

On the other hand, the RSPCA profiled seven million donors after they donated; presumably the lion’s share of all people who donated to the charity. The RSPCA did not tell people that this was the purpose for which their data will be used, and nobody outside the charity sector was aware of what was happening. Unlike Clubcard, donors could not participate without being screened and analysed by the charity. I have used the wealth-screening example on many of my training courses. The reaction is always surprise, and often revulsion.  Nobody ever leaps to the charity’s defence because secret profiling is a dodgy way to do business.

Pidgeon’s squeamishness about describing the process – the daft example of the story in the newspaper, his emphasis on data being gathered from the public domain – suggests that fundraisers are more ambivalent about their methods than they might like to admit. The existence of five facts in five separate publicly accessible places is different to the combination of those facts in one place, gathered with the intention of tailored marketing. A profile is greater than the sum of its parts, and people should be told that it exists. Pidgeon isn’t alone in his approach – Chris Carnie, the founder of ‘prospect research’ company Factary erroneously characterised myself and others as saying that using public domain data is “an intrusion into an individual’s privacy. That searching for a named individual in Companies House fundamentally affects the rights of that person“. All I said was that such research should be transparent, but this isn’t news that Carnie and his colleagues find palatable. Ide’s company goes as far as to assess the ‘ethical credentials‘ of a donor, which sounds a world away from noticing a story in a paper.

The Daily Mail is a revolting newspaper – the worst combination of small-minded, petty conservatism and curtain-twitching prurience. It is a matter of ongoing annoyance to me that the Mail is one of the very few national news outlets that covers Data Protection issues with any enthusiasm. I really wish the Guardian or the Times had exposed the ghastly exploitation of vulnerable people like Samuel Rae, or their hunger for information about possible donors. I wish Dispatches’ fine work on the shameful state of some fundraising call centres had got more attention. Nevertheless, none of this is the Mail’s fault, and fundraisers’ relentless blame-shifting needs to be called out for the cant that it is. Everyone knows whose fault this is.

The charity and fundraising sector isn’t in a mess over data protection because of the Daily Mail, and it isn’t there because of the Information Commissioner. This problem is the fault of some fundraisers and their agents not obeying the law, and trustees who didn’t ask them enough questions. MacQuillin claims that almost everything that has happened to the fundraising sector over the past two years is because of ‘fake news‘; Olive Cooke’s death wasn’t, her family says, the result of the spam tsunami that charities subjected her to. For one thing, this claim disgracefully ignores Samuel Rae, whose story would have caused the same interest even if it wasn’t the sequel to Olive Cooke. Moreover, it is itself fake news. If some of Pidgeon and MacQuillin’s compadres had done their job with a greater interest in the law, they wouldn’t be here now. This is the second or third time I have written this blog. With 11 more possible fines, and fundraisers still in denial about what they have done, I’ll probably have to write it again before long.

Brand new key

Parents at schools in Suffolk recently received an interesting piece of correspondence about an exciting initiative called ‘Suffolk SAFEKey‘, offered by Suffolk Police. For as little as £1 a month, subscribers to the service receive a special key fob with a reference number on it. Once registered, if the keys are lost, the person can use the reference number to contact Suffolk Police’s commercial partner (Keycare Limited) to get keys and owner reunited, incentivised by a £10 reward.

Alerted to this by a concerned citizen, I made an FOI request to Suffolk Police to find out more about the scheme, the arrangement with Keycare Limited, and how the email came to be sent. Suffolk Police told me that they contacted all 18 secondary schools in the county (by phone, so I don’t know how the request was couched), and of those, 8 forwarded the invitation to join SAFEKey to all parents. The force were unhelpfully vague about who else had been approached. I asked who they had contacted, and their answer conflated those they approached and those they claim had approached them. This means I know that those involved are charities (Suffolk Community Foundation / Age UK), “advocacy groups” (whatever that means), Neighbourhood Watch, the University of Suffolk and “lunch clubs and other such groups”, but I don’t know who contacted who.

On one issue, Suffolk Police were admirably clear. I asked them how they had obtained consent to send the email. This was their reply:

The parentmail service is not controlled by the Constabulary and the information provided is not personal data and as such, there is no requirement for us to obtain consent from those third party recipients.

Regulation 22 of the Privacy and Electronic Communications Regulations 2003 (AKA PECR)  applies to emails and texts, and it is remarkably unambiguous, despite all the dodgy marketers and list brokers who purport not to understand it.

a person shall neither transmit, nor instigate the transmission of, unsolicited communications for the purposes of direct marketing by means of electronic mail unless the recipient of the electronic mail has previously notified the sender that he consents for the time being to such communications being sent by, or at the instigation of, the sender

Suffolk Police instigated the sending of the email to parents by making an unsolicited approach to schools, asking them to send it. The email would not have been sent unless they had asked for it to be sent. Regulation 22 does not require them to be the sender. Should there be any doubt about this, the ICO asked Better Together to sign an undertaking following their misbegotten texts during the Scottish Independence campaign. Better Together used an agency – they never held the data and they didn’t send the texts. This is exactly the same situation. There are only two ways that marketing emails could be sent in this way: either parents would have to give consent direct to Suffolk Police, or give consent to the school to receive marketing from the force. This second possibility is one the ICO is keen to play down, as their Direct Marketing Guidance makes clear:

Indirect consent may therefore be valid if that organisation was specifically named. But if the consent was more general (eg marketing ‘from selected third parties’) this will not demonstrate valid consent to marketing calls, texts or emails.

Of course, as the senders of the emails, the schools have also breached PECR. And taking it one stage further, you could argue that Suffolk Police have also breached the Data Protection Act by processing personal data unfairly and unlawfully. If they don’t have a data processor contract with the schools, they may even have breached the seventh principle.

Many public bodies and charities struggle with PECR because they perceive ‘marketing’ as a purely commercial activity. This means that they think the messages they send are somehow not marketing, and are surprised when PECR bites. Suffolk Police can be under no such illusion. SAFEKey is not a policing activity, it is a wholly commercial venture, with the income split 50/50 between the force and Keycare Ltd. Moreover, there is an argument that the force is exploiting its position as a law enforcement body to promote its commercial activities – it’s unlikely that secondary schools would forward information about double glazing or PPI. The force might want this to seem like an aspect of their crime prevention work, but it isn’t – it’s a purely commercial venture. No public body, but especially not the police, should exploit their position as partners with other, smaller public bodies to plug their commercial activities.

There are other concerns. The force didn’t carry out a Privacy Impact Assessment before launching the SAFEKey scheme, which is surprising, as the project involves the force gathering personal data it does not need to carry out its legal functions, purely for the purpose of a commercial venture, using a variety of unrelated bodies as a conduit for the data and transmitting it to a commercial partner. At the very least, you would expect them to consider the risks. Moreover, although the extract I received from the contract between Keycare and Suffolk Police does make it clear that Keycare cannot use or share the personal data they receive for their own purposes, the security demands made by the police are relentlessly generic.

I don’t think the police should exploit the significant position of trust they enjoy to flog commercial services at all. But even if you disagree, there can be no question than when they do, the police should at all times obey the law. They haven’t done so here, and the ICO should investigate. As I did not receive one of the emails, they would ignore any complaint that I made, but they should intervene to make clear to all public bodies how PECR works.

 

Labour pains

Saving Labour is a new organisation dedicated to replacing Jeremy Corbyn as leader of the Labour Party. It may quickly need to be saved from itself. An extract from a document that appears to be from Saving Labour is being circulated on Twitter by Corbyn supporters, annoyed about what it contains. The documents contains advice on how to obtain personal data of lapsed members who are likely to be anti-Corbyn because they left the party when around the time he became leader. The document then advocates contacting them for support.

Two things: I do not know the provenance of the document, and the allegation that it comes from Saving Labour or Progress may be untrue. This may be the work of a rogue individual, and so Saving Labour may not be responsible. If this is the case, they should make this clear, urgently and ensure that data is not obtained or processed in their name.

Second thing: I am a member of the Labour Party, and I do not support Jeremy Corbyn. I’m not even one of those ‘Corbyn can’t win’ people; if he could win, I wouldn’t want him to. Nevertheless, there is a strong likelihood that the Data Protection Act is being breached, and I think this needs to be addressed.

If Saving Labour (or rogue individuals) are attempting to recruit Labour members back into Labour, then the processing of data is likely to be a breach of Data Protection’s fairness requirements. If Saving Labour are trying to recruit members to Saving Labour’s mailing list or retaining data for its purposes, it’s potentially a lot worse. The most important thing here is that Saving Labour is not a faction of Labour; it is a separate Data Controller with its own Data Protection notification. If Saving Labour are obtaining data or getting others to obtain it on their behalf and for their purposes without Labour’s knowledge, it’s at least a civil breach of Data Protection.

Section 55 of the Data Protection Act makes it a criminal offence to obtain, disclose or procure the disclosure of personal data without the authorisation of the Data Controller. It’s not a criminal offence to obtain and disclose personal data without consent. The crucial element of S55 is the procuring or disclosing personal data without the authorisation of the Data Controller. The Data Controller isn’t an individual person (a common misconception) but it is the organisation as a whole. Nevertheless, if an individual who is clearly entitled to make decisions on the organisation’s behalf approved the disclosure, it’s not a criminal offence. If this data is being obtained and processing on behalf of  Saving Labour, there are specific defences that can be used, but these should be tested.

Of course, if the data has been obtained without Saving Labour’s knowledge and is being used for purposes that have not be authorised by the Labour Party, the individuals responsible for harvesting and processing the data could themselves be potentially in the frame for S55 offence, rather than Saving Labour.

Even if a senior Labour Party official gave explicit approval for someone to harvest personal data and use it, the likelihood of a Data Protection breach is still high. Unless the Labour Party told members that that their data would be shared with another organisation or processed after their membership had lapsed for marketing purposes, then the disclosure / processing would be a breach of the First Data Protection principle, which requires all processing of personal data to be fair. The chief element of fairness is that the person is told about how their data will be processed.

Though it’s possible that Labour told members that their information might be passed to affiliated organisations (which is relevant if Saving Labour receive the information or it is used on their behalf), it’s exceptionally unlikely that Labour would told members that their data would be processed after their membership had lapsed. Regardless of whether Saving Labour receive the data, processing it after the membership has lapsed is likely to breach the First principle unless Labour can demonstrate that members were told explicitly.

Of course, if Labour approved this, then Saving Labour could be considered to be a Data Processor carrying out a recruitment drive on the party’s behalf. If this is the case, unless Saving Labour is covered by a legally binding contract, this is a breach of the Seventh Principle.

It doesn’t end there. The document encourages MPs and councillors to “call” lapsed members to encourage them to join. As I blogged only yesterday, every part of the Data Protection system has made clear that calls made for the purposes of political campaigning are marketing – so if the callers do not screen any telephone numbers against the Telephone Preference Service, it would be a breach of the Privacy and Electronic Communications Regulations. If they send emails or texts without explicit consent from the person, it would be a breach of PECR. It’s extremely hard to imagine that any consent given to the Labour Party could survive a lapsed membership, and Saving Labour would not have that consent in the first place. Let me emphasise for new readers: there is no political exemption from PECR, there is no ‘we can call our members / ex-members’ exemption.

The ICO has already shown itself willing to enforce on political campaigning by issuing Enforcement Notices in the last decade against the SNP, the Labour Party, the Conservatives and the Liberal Democrats, and by issuing a monetary penalty for unsolicited texts against Leave.EU a few months ago, Last year, I blogged wearily about Labour’s idiotic and unfair purge of registered supporters. I and others have constantly pointed out their terrible marketing practices. And here we are again; another mess, another possible misuse of data, and at some point, the ICO dragged into it all over again to sort out another family dispute.

 

Culture, Media and Spam

Most of the news and comment I heard about the Queen’s Speech suggested that it was a hole in the air, with the Government wanting to avoid doing anything of any consequence before the resolution of the EU vote in June. It was a surprise, therefore, to see provisions in the proposed Digital Economy Bill that will change the face of direct marketing.

At the moment, the rules for direct marketing are a mixture of Data Protection (for postal marketing) and PECR (for email & texts, live calls, automated calls and fax). PECR breaks down into subsets, with some forms of marketing requiring consent (email & text, automated calls, fax) and some done without consent and with opt-out (live calls, with the ability to opt-out of all calls via the Telephone Preference Service.

But consider this line from the full version of the Queen’s Speech:

Protection for consumers from spam email and nuisance calls by ensuring consent is obtained for direct marketing, and that the Information Commissioner is empowered to impose fines on those who break the rules.

My first reaction to this was that the Department for Culture, Media and Sport were incompetent: PECR already requires consent for email, and the Information Commissioner already has the power to impose fines for breaches of consent. Whatever else, this is still true, and DCMS should explain why they are announcing things that have been in place since 2003 (consent for email) and 2011 (fines) respectively. Nevertheless, it’s impossible to interpret this sentence as meaning anything other than a change in the rules for live calls. It’s not earth-shattering: it’s only lawful to cold-call people who aren’t on TPS and who haven’t directly opted out, which is probably a minority of the overall population. But nevertheless, the proposal as written abolishes the need for the Telephone Preference Service and inverts current practice.

It certainly has the merit of neatness: PECR would make more sense if all electronic direct marketing had to be opt-in. However, it will have consequences far and wide. There are plenty of lead generators and telemarketing companies who still make cold-calls, and they would be dead in the water. I would shed no tears over this (I think the lead generation and list broking industry is fundamentally unlawful, and most of the folk in the call centres would just end up in hopefully less rancid call centres). However, killing off the telemarketing industry is bold.

It will also create an even more stark contrast with the Fundraising Preference Service, which in its current form allows someone to stop all contact with all charities. It’s not even clear whether a person will technically be able to opt-in to individual charities that they do want to hear from if they’re on the FPS. It would be moronic if this situation wasn’t clarified, but people who do moronic things tend to be good at maintaining their standards. Given that the Digital Economy Bill apparently puts all* electronic marketing on an opt-in basis, charities might legitimately argue that the FPS is unnecessary, and they would have a point.

There are other issues. If all email marketing has to be done on the basis on consent, this also presumably kills off the ‘soft opt-in’. The ‘soft opt-in’ allows a company to send email marketing on an opt-out basis, as long as the email address in question has been obtained in the course of a sale, and as long as the products being marketed are their own, and are similar to the one that was originally purchased. Requiring all email marketing to be done on the basis of consent would remove this option (NB: if you think the absence of an opt-out can be interpreted as consent, you are a moron).

Finally, the proposal doesn’t mention texts, hence my * above. Texts are as much of a nuisance for people as live calls or emails, and have been the subject of routine enforcement action by the Information Commissioner since 2011. PECR treats email and text as the same, so it’s entirely possible that the Government are treating them so. It’s equally possible that this is a back of a fag packet proposal to bulk out a weak bill in a thin speech. One indicator that this might be the case is that the Information Commissioner, explicitly mentioned in the proposal, has not reacted to it in any way. There is no press release, and not a single tweet, despite a run of tweets this week about nuisance calls and other PECR related action. One could be forgiven for thinking that they didn’t know about it (I will be doing an FOI to find out).

You might think that spinning 833 words out of a single sentence is overkill, but on the face of it, the proposed change will have a considerable impact. Like me, I hope you will be watching the progress of the Digital Economy Bill with interest.

Charity letters

I have written a lot recently about the issue of charities and marketing, and especially as I have another post on the boil concerning the same issues, I had intended to keep my head down for a few weeks and talk about something else (or even, as a friend suggested to me today, nothing at all).

However, I have a short update before the next onslaught. A lot has been made about the idea that after the death of Olive Cooke, the Information Commissioner suddenly woke up to the problem of charity marketing, and in the opinion of one charity journalist “moved the goalposts” by requiring charities to change their approach to the TPS in particular, and the Privacy and Electronic Communications Regulations in general. It is to this topic that I intend to return.

Nevertheless, the Information Commissioner, Chris Graham, told the Public Administration and Constitutional Affairs Committee in October that his office had in fact written to 8 major charities, drawing their attention to issues related to PECR and marketing. At least one charity chief executive (Mark Wood of the NSPCC) denied that his charity was among them, but he has now been obliged to reveal that the NSPCC was in fact one of the eight.

At the time, I made an FOI request to the ICO, asking for a copy of the letter and the names of the eight charities. I was intending to sit on the response for another purpose, but the information is clearly destined for the public domain anyway.

The eight charities were: Barnardos, the British Heart Foundation, British Red Cross, Christian Aid, Great Ormond St, Macmillan Cancer, the NSPCC, and Oxfam.

The letter is very straightforward – it does not refer to specific complaints, as complaints were being funnelled towards the Fundraising Standards Board at the time (the same FRSB which now faces abolition). However, the letter clearly draws each charity’s attention to the Information Commissioner’s guidance on Direct Marketing. That guidance is clear, robust, and written in plain English, with none of the hesitancy or fence-sitting that ICO guidance sometimes demonstrates. It is very strong on the need for clear, unambiguous consent. It is explicit that charity’s promotion activities are direct marketing. And one paragraph leaps out at me:

Organisations can make live unsolicited marketing calls, but must not call any number registered with the TPS unless the subscriber (ie the person who gets the telephone bill) has specifically told them that they do not object to their calls. In effect, TPS registration acts as a general opt-out of receiving any marketing calls

If the charities contacted by the Commissioner acted responsibly, they would have immediately sought out the guidance to which the ICO letter referred. It would be remarkable if they did not. If they did, and then did not recognise that the full force of the law did indeed apply to them, it is hard to imagine how. Mr Wood has put his head above the parapet. Oxfam  denied receiving the letter when in front of the Committee (my FOI response confirms that they did). It would be good to hear from the others.