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.

Things To Come

The imminent arrival of the #GDPR, as many have already noted, has resulted in a huge amount of speculation, prediction and scaremongering. Stories of massive fines, a torrent of crippling class action lawsuits, 75000 DPO jobs and the emergence of a new volcano in the fields outside Wilmslow* have all captured our attention. Nevertheless, just when I thought I had heard everything, Lawrence Serewicz proved me wrong.

Mr Serewicz issued, with the certainty of an Old Testament prophet, this astounding claim:

Quick #gdpr prediction. By May 2019 the ICO will have issued more, in terms of number of and amount of, “fines” than in the previous years of the MPN era *combined*.

This might be the wildest prediction anyone has made since the GDPR first dropped from the sky (sidenote: feel free to link me to dafter ones). By my quick and dirty calculation, this would mean GDPR fines in excess of £9million and more than 100 fines between May 2018 and May 2019. This isn’t going to happen. Even in a parallel universe where we had a Commissioner who liked taking action, they couldn’t fire out 100 fines in one year. It is inconceivable.

It is probably fair to say that Mr Serewicz and I do not have a relationship marked by mutual respect or affection, but for once, he has inspired me. The idea of predicting what the first year of GDPR will involve is a brilliant one, and I have decided to have a go.

Below are 12 predictions about the first 12 months of GDPR in the UK. For every one that I get wrong, I will donate £20 to the charity Mind. And here’s where you can join in. Look down the list, and see if you disagree. If you spot a prediction that you think will not come true, let me know – in the comments here, on Twitter, via LinkedIn, or via email. If you are right and I am wrong, I will publicly admit that this was the case on this blog. I will celebrate your perspicacity. But if I am right, and you are wrong, you will donate £20 to a charity of your choosing. You don’t have to do anything else and I will not make fun of you. Nobody makes any money except good causes, but imagine me having to grovel and highlight your superior knowledge in print. If three people say I’m going to get one wrong and I don’t, each one makes their donation, but however many people bet against me, if I am wrong, I just pay one £20 per prediction. I will still praise those who get it right.

I will not be a smart-arse about general comments and reactions on social networking sites – if you want to join in, contact me directly and say you want to take up the charity challenge on one of these predictions.

PREDICTION 1

The total amount of GDPR fines (not including PECR and legacy DPA fines) between May 2018 and May 2019 will be less than the total of all DP CMPs up to today’s date.

Yes, this is half of Mr Serewicz’s prediction. Guess what prediction 2 is?

PREDICTION 2

The total amount of GDPR fines (not including PECR and legacy DPA fines)  issued between May 2018 and May 2019 will be less than the total number of all DP CMPs up to today’s date.

PREDICTION 3

There will be less GDPR fines (not including PECR and legacy DPA fines) between May 2018 and May 2019 than between May 2017 and May 2018.

That’s right – I predict the number of fines will decrease in GDPR’s first year of operation.

PREDICTION 4

There will not be a €20 million or UK equivalent fine before the end of May 2019.

I intend no weasel get-outs here – we all know what I mean here. There will not be a maximum possible fine in any circumstances.

PREDICTION 5

There will not be a 4% of annual turnover before the end of May 2019.

As above.

PREDICTION 6

Thinking about the lower level of penalty i.e. under Art 83(4), there will not be a €10 million or UK equivalent fine before the end of May 2019.

PREDICTION 7

Thinking about the lower level of penalty i.e. under Art 83(4), there will not be a 2% of annual turnover or UK equivalent fine before the end of May 2019.

PREDICTION 8

No UK public authority will be fined more than £1 million before the end of May 2019.

PREDICTION 9

No UK company will be fined more than £2 million before the end of May 2019.

I want to be wrong on this one as there will be deserving breaches. I don’t think I will be.

PREDICTION 10

No charity will be fined more than £50,000 before the end of May 2019, unless for a security breach.

PREDICTION 11

No GDPR class action case will have been concluded with a total damages payout of more than £1million before the end of May 2019.

PREDICTION 12

Five of the companies registered on Companies House today with ‘GDPR’ in their name, or a company name whose initials spell ‘G D P R’ will no longer be offering Data Protection services in May 2019.

BONUS ROUND

These ones just for fun as they cannot be measured

  • the number of people describing themselves as ‘Certified GDPR Practitioners’ on LinkedIn will be half what it is now
  • nobody will change their profile to say ‘Certified GDPR Practitioner’ on LinkedIn during May 2019
  • the ICO will still be asking for more staff
  • we will all wonder what all the fuss was about

AND FINALLY: do you have a prediction in the style of those above? If you do, let me know what it is. If I get at least five predictions (and a maximum of 10, I’m not made of money), next month, I will write another blog made of reader suggestions. If this comes off, I will say whether I agree with them or not, and if I disagree with them, it’s another £20 to Mind from me for every one that I get wrong. But contributors must promise that if they get it wrong, they will pay the £20.

This will go wrong in one of two ways. It will capture people’s imagination, and I have given myself a shedload of admin. Or nobody will care, and nobody will join in. But we’ve all read a pile of predictions since all this GDPR nonsense started. Let’s have a bit of fun, and raise a little bit of money for charities at the same time.

 

* In 2017, anything is possible.

Just say no

On Friday December 16th 2016, I had a routine eye test. The optician noticed swelling on the optic discs at the back of my eye, and I was dispatched to the Manchester Eye Hospital to attend their Emergency Eye Clinic. This is basically A&E for eyes, a mix of swollen eyelids, sudden blindness and people who should have just gone to an optician. I arrived at 2.45pm, and fairly quickly, I was put in the ‘people who need to be seen’ pile. However, this meant waiting for the next available doctor, and like any A&E, the wait was long.

At 5.30, having waited in a dull holding area (with the files of other patients unattended and clearly visible), I was seen by a doctor. At this point, I was bored and worried, desperate to go home but desperate to find out what was going on in my head. Swollen discs can mean all sorts of things, you see, but one of the things Google told me that they can mean is Brain Tumour.

The doctor was terrible. He examined my eyes, pulled faces, and asked lots of questions about the medical history of my family without explaining the significance of any of them. In the middle of that barrage of questions was this one: ‘Any history of tumours in your family?’. Of course, having sat there for nearly three hours with only Google Searches That Spell Imminent Death for company, this question fired out of nowhere was just perfect. After the obligatory disappearance act to consult with a more senior doctor, I was told that they wanted to scan my brain in case “God Forbid” there was a tumour in there.

I was shunted back into another holding area, then at around 7pm a very sympathetic nurse inserted a cannula into my arm so that they could put a dye into my bloodstream when scanning me (a process that never actually happened) and explained ‘We’d like to do a CT scan’. She told me where to go, and because I was evidently in a bad place mentally, made clear that if I wanted to go for a walk before the scan, that would be fine. At length (and after it became clear that the people doing the CT scan weren’t actually expecting me), I had the scan. Several hours later, they decided I had high blood pressure and I went home at 10.45pm.

Looking at the whole thing as a Data Protection professional rather than a patient, the thing that leapt out at me at the time were the boxes of paper records left unattended. During the day, the holding area I was sitting in is very busy, with at least one member of staff behind the desk able to prevent access. When I was there on the Friday evening, there were long stretches when I could have got behind the desk and read the files, and nobody would have known. It’s an open question as to whether a patient left alone with unattended medical records is a ‘personal data breach’ that would have to be reported to the Information Commissioner.

In retrospect, there is a more interesting question. Carrying out a CT scan is processing personal data – it involves the creation of a scan of the patient’s brain which is plainly sensitive personal data (under GDPR, special categories data). So, what condition did Manchester Eye Hospital have for processing my personal data, and did they provide me with adequate fair processing?

Here’s the thing: they didn’t have my consent and I suspect they think they did. They probably didn’t have Data Protection Act consent, but they definitely didn’t have GDPR standard consent. I’m sure many readers will disagree. Surely my lying down to have the scan is a “clear affirmative action”, signifying my agreement to the processing?

Well, it’s not that simple. First, there is the lack of fair and transparent processing. I was told why they wanted to do the scan, but I wasn’t told who would get access to it (which in today’s NHS could be Google), how long it would be kept for, what legal basis they were relying on and so on. Even if the DPA doesn’t demand this now, it’s hard to argue that the processing would be fair unless I was told these things. Moreover, without any fair processing, any consent I gave would not be informed and specific.

The second problem is that my consent was not freely given. I was tired after hours of sitting around, I had been given limited information by a doctor with poor communication skills and frankly I was scared that I had a brain tumour. I hadn’t eaten and or drunk very much, and my phone was dead so I couldn’t discuss it with anyone else. I do not believe I had the capacity to freely give my consent to have my brain scanned. At no point did anyone say ‘Do you consent to having your brain scanned?’, it was couched in passive language: we would like to do this, and if I didn’t object, my consent was assumed.

Then there is the power imbalance – people like to talk about ‘Our NHS’ as if we all collectively own it, but that’s bullshit. Surrounded – outnumbered – by doctors and nurses who want to do something, it’s hard to say no. Indeed, I am aware of cases where a person who refuses to do what the doctors want have been sectioned. Admittedly, as a white, middle-aged, middle-class man, I’m probably less likely to be subjected to this, but who knows. What would they have done if I had said no?

In this context, recital 43 of the GDPR is worth reading:

consent should not provide a valid legal ground for the processing of personal data in a specific case where there is a clear imbalance between the data subject and the controller, in particular where the controller is a public authority and it is therefore unlikely that consent was freely given in all the circumstances of that specific situation

I think the power imbalance between the assembled medical staff and me made it impossible for me to say ‘no’, especially when considering the specifics of the situation. I had gone from a routine eye appointment to a request for a brain scan to find out if I had a brain tumour. My ability to make decisions was fried. A few months later, I got up at 7am on a Sunday to drive to Trafford Hospital where some improbably chirpy technicians did an MRI on my head. That interaction was certainly closer to consent than the CT scan, but strictly speaking, nobody asked my consent. It was a lot better, but by no means the only way in which the NHS processes data.

Since my diagnosis of high blood pressure, I have spent an afternoon in a specialist diagnostic ward in one hospital, had the above MRI in another, had separate MRIs and ultrasound scans on my kidneys, a shedload of blood tests and monthly appointments at my GP. My GP aside (who is excellent at explaining everything), the standard of fair processing in all my interactions with the NHS since last December has been lamentable. I don’t know who gets access to my data, I don’t know what for, and nobody has told me how to find out. There may be a privacy notice somewhere on a website but I don’t know where it is and nobody told me how to find it.

I respect and trust my GP. Every nurse I have met, even those briefly sticking a needle in my arm, has been exemplary. The team at the ARMU at Wythenshawe Hospital are superb, both at medicine and communication (in fact, every experience I have had there has been good). But for all the fact that I can be a troll sometimes, I have never caused as much hostility and frustration as when I give my honest opinion about my experiences in the NHS. People are angry with me if I speak my mind. Criticising the NHS is modern-day blasphemy. I’m only writing this blog now because it looks like my eyes are getting better and I probably haven’t got a brain tumour (although the fact that the hospital lost the brain MRI for several months because of the virus infection in May dents my confidence in this). I worry about pointing out the Eye Hospital’s failings because I do have to go back there. Do I want to be treated by people who know that I have criticised them online? This is the power imbalance in a nutshell.

So what’s my point?

The GDPR is built on an improved model of Data Protection – organisations should be transparent, and wherever possible, subjects should be empowered. One of the most important elements in this relationship is the proper treatment of consent. Ironically, given the number of ill-informed articles claiming that GDPR requires consent for data processing, a significant effect of GDPR should be to reduce reliance of consent. Organisations, especially those like the NHS who purport to rely on it, should be much more honest with people. Sometimes you don’t have a choice at all and a thing is going to happen whether you like it or not (HELLO, ROYAL FREE HOSPITAL). Sometimes, there isn’t a real choice – ask me whether I want you to find out whether I have a brain tumour, and honestly, the answer’s no. Rationally, the answer’s probably, ‘OK then’, but it’s not much of a choice and in my case, the question wasn’t even posed.

The NHS is going to breach the GDPR as much in spirit as in practice if it continues in its dubious mantras of implied consent and ‘no decision about me without me’. The fact that a person doesn’t have to be physically forced into the scanner does not mean that they have consented, especially if they haven’t been told clearly and directly how that data will be used. In many situations throughout the NHS, medical professionals think they have consent, tell each other they have consent and they don’t. There are other options in the GDPR, of course, including a rock-solid legal condition for special categories data for the purposes of medical treatment and diagnosis. But many people in the NHS still think consent is their byword and it really isn’t.

For one thing, secondary uses for analysis and research either have to stop, or a much more open and transparent process has to be developed to contact people directly, either to be transparent or, if that’s the basis that being relied on, to seek consent. For all my many scans and blood tests since last December, I have to assume that none of them will ever be used for any purpose other than the direct diagnosis and treatment of my condition because I have never been given a hint that anything else will happen. But is that true?

For another, if the NHS is going to get to grips with GDPR philosophically, it has to be much more honest about the flawed nature of the consent it thinks it’s getting. For years, NHS staff have told me on training courses that a patient rolling up their sleeve is evidence of ‘implied consent’ to take blood (and by further implication, process the data that flows from the test). In fact, what they have at best is inferred consent; and with the power imbalance, possibly not even that.

We know for certain that the Information Commissioner will not tackle this issue because they are terrified of challenging such fundamental issues. Elizabeth Denham’s trumpeting of a slapped-wrist undertaking for the Royal Free Hospital’s misuse of 1.6 million people’s personal data was, at least for me, the final nail in the coffin of her credibility. As a friend of mine said, the chief role of each new Commissioner is make the last one seem better. I am not predicting fines or enforcement of any kind; it won’t happen. But the best thing about the GDPR is its recognition that we are human beings who deserve respect and autonomy. My experience of the NHS in Manchester is far from achieving that.