Checks and balances

A while ago, I was asked by a prospective client to provide a criminal records check before getting a big piece of work. Given that I wouldn’t be handling any personal data or getting access to children or other vulnerable people, it seemed like overkill. The awkward part of me wanted to suggest that the requirement was close to being an enforced subject access request, which would be a criminal breach of Data Protection law. Enforced subject access requests occur where a person is obliged to provide a data controller with the result of a subject access request for criminal records in return for employment or a service.

Then I looked at the number of days’ work they were offering and the pragmatic part of me kicked in. I don’t have a criminal record, so I applied for and sent them a disclosure certificate saying so. It occurred to me that if I tried to make an issue of principle out of it, it might look like I had something to hide. I imagine it’s a terrible situation to be in if you have got a record and are trying to move on, but to be selfish, I don’t and it seemed odd to create the impression that I might have. And I wanted the work.

Last week, a prosecution by the Information Commissioner against the insurance company Hiscox for the enforced subject access offence collapsed. A customer, Irfan Hussain, was attempting to claim on a £30,000 watch he had lost, and Hiscox wanted to see his criminal record before paying out. He refused, and complained to the ICO. The case collapsed when the unlucky horologist was too unwell to give evidence.

I can’t help thinking that this was an odd choice for a prosecution. Even if Hiscox tried to force their customer to provide his information, was this unreasonable? He had already stated that he had no criminal record (according to the FT), so all Hiscox were apparently asking him to do was prove that what he had said was true in the light of his claim. The means by which they proposed to do it might technically have been an enforced subject access request, but there’s surely a difference between something technically being an offence and it being worth mounting a prosecution on it. The provisions contain a public interest defence, and Hiscox’s public comments after the trial suggest that this was their strategy. I suspect it might have worked. Especially as this seems to be the ICO’s first attempt at an enforced subject access case, was this really the best place to start?

The business of criminal records checks overall works in mysterious ways. Hiscox are reported to have asked Mr Hussain to make a subject access request to the Criminal Records Office, which is run by the National Police Chief’s Council. This is not the same as applying to the Disclosure and Barring Service or Disclosure Scotland for a certificate or a disclosure, but having been through the process, I have to admit that I am somewhat confused at the difference.

To get my disclosure, I made a written application, proved my identity and then paid a fee to receive a copy of personal data that related to me, or confirmation that no such information was held. The basic check comes through faster than a subject access request (about 2 weeks, although mine came in matter of a few days) but it’s also more expensive (£25). In my case, nothing was held but that’s neither here or there. There is statutory provision for access to this information via the Criminal Records Bureau set out in the Police Act 1997, replaced by the Disclosure and Barring Service in 2006 via the Safeguarding Vulnerable Groups Act 2006. Someone is going to tell me that applying for a certificate is different to applying for subject access, but that raises some questions. If Hiscox had told Mr Hussain to apply for a certificate like I did, it’s exactly the same outcome – a person is obliged by a data controller to obtain information about their criminal history and then cough it up – but if it’s not subject access, no prosecution could be possible.

An individual can obtain a basic check that shows their unspent convictions and cautions, both of which are listed as a relevant record in the DPA section that creates enforced subject access. The ICO’s guidance doesn’t explain the position if a person was forced to ask for a basic check. That check might not give everything that a data controller might want, but it’s full information about a person’s recent criminal history. If obliging someone to ask for a basic check isn’t enforced subject access, it’s a loophole. But if a basic check is essentially a subject access request by another name, it shouldn’t be £25 now, and it should be free after May 25th.

It’s clear that the DBS doesn’t think that forcing an individual to ask for a basic check would be enforced subject access or illegal in some other way because their website says this:

You can’t carry out a basic check as an organisation – you must ask the person to request their own basic DBS check. A basic check shows unspent convictions and cautions.

This implies that asking a person to carry out a basic check when you can’t make an application yourself is acceptable, even though these are very likely to be circumstances where a person can’t meaningfully refuse. There are no warnings about compulsion during the application process via the DBS website. So why is a subject access request to ACRO magic, acceptable only when uncontaminated by duress, but a basic check isn’t? The amount of data disclosed isn’t exactly the same, but the outcome – being forced to disclose your criminal history when it might be unnecessary or excessive to do so – might be identical.

It took a long time (from 1998 to 2015) for enforced subject access to be fully enacted. Now it’s in force, the Hiscox case doesn’t give cause for optimism that anything will change. I have doubts about whether it was a good idea to prosecute Hiscox, but I have heard first hand terrible stories over the years about data being demanded when it should not have been. Having used the system, the way in which criminal records are made available gives me little confidence that such unnecessary and unfair demands for personal data are properly prevented. After the failure of the Hiscox case, even if only because of an ill-timed illness, the ICO needs to go in again and draw a line somewhere.

Summit to hide?

On at least three occasions in the past year, a member of staff from the Information Commissioner’s Office has spoken at conferences organised under the banner of GDPR Conference or GDPR Summit. Garreth Cameron has appeared twice, and Lisa Atkinson was at the latest event on October 9th. Nothing odd about this, you would think – the ICO clearly wants to spread its message (such as it is) to a wide audience, and conferences are a way to do it. They should be wary about showing favouritism and they’re not very good at avoiding it – a certain Assistant Commissioner often appears at a certain training company’s courses, and appearing three times at one company’s commercial events comes close to being an endorsement.

But even if such regular support for a conference would otherwise be justified, in this case, I don’t think it is. It’s not easy to find out from the GDPR Summit website who is actually organises the conferences. A little bit of digging suggests that it is a company called Amplified Business Content. Amplified Business Content is also responsible for ‘GDPR Report’, which used to publish articles for free but has now gone to a subscriber model. Having an opaque company structure isn’t compliant with Data Protection because it’s not clear who the Data Controller is. Moreover, some of the material on their website is garbage – they have published quizzes with wrong answers, and harvested information without a privacy policy (though I noticed that after people on Twitter made a fuss of it, they stopped demanding email addresses to get scores on the quiz). Via GDPR Report, the organisation has pumped out reams of vague, badly-written stories including one titled ‘The Data Protection Apocalypse’ that claimed that organisations need consent for all processing – it was so bad that after a morning of criticism via Twitter and other sites, they had to delete it. Worst of all, Amplified Business Content has not notified the ICO under Data Protection – unless they are exempt (which for a conference organisation is hard to believe), this is a criminal offence.

Given that the ICO have given Amplified Business Content so much support, I wondered whether they had done any due diligence on the organisation before agreeing to speak at their events. Under FOI, I asked for the following:

Any information about due diligence carried out by the ICO before accepting invitations to speak at these events, including whether ICO staff checked if the company had a notification, and whether their materials and publications were accurate and reflected the ICO’s approach to the GDPR

Any procedure that requires ICO staff to carry out due diligence before accepting speaking engagements

The answer was that no information was held. The best they could offer was “We apply our speaking engagement policy here when making a decision whether or not to accept a request for a speaker“. Needless to say, the speaking engagement policy does not include any requirement to carry out due diligence. In other words, the fact that Amplified Business Content has not notified and has spread misleading and unhelpful information about a Data Protection apocalypse is irrelevant to Wilmslow. They’re not even expected to check whether the organisation has taken the most basic steps to comply with Data Protection law. This is remarkable, especially at a time when so many dodgy people have flooded into the Data Protection market.

Their answer to the first part of my request was more interesting, and more worrying. I asked for:

All correspondence between the ICO and Amplified Business Content or those purporting to represent GDPR Conference or GDPR Summit or GDPR Summit Europe (or other variations on the theme of GDPR Summit).

I’ve done this before, both with the Privacy Laws and Business Conference (which led to this blog) and True Swift, another organisation for whom the ICO has done several online courses. Both times, the ICO gave me detailed correspondence between themselves and the organisation, which allowed me to see, among other things, Stewart Dresner of PLB complaining that he doesn’t have special access to news about ICO activities. This time, however, the ICO has refused to give me any of the correspondence. The exemption they used is a prohibition on disclosure that applies when organisations supply data to the Commissioner when information “has been obtained by or furnished to the Commissioner under or for the purposes of the Information Acts”. In other words, ICO claims that when arranging their spots at the GDPR events, they were exercising their functions under the Data Protection Act. Needless to say, the refusal doesn’t say which function they were exercising – presumably I am expected to guess. I think the only function that could apply is the duty to promote the following of good practice under Section 51, but the idea that Parliament intended conference arrangements to be secret is a fairly bizarre idea.

Only two possibilities present themselves. The first is that the ICO’s policy is only to release material such as this with the consent of the organisation (which the prohibition allows), so PLB and TrueSwift consented to the disclosure and Amplified Business Content refused, which begs the question of what ABC have to hide. Their internal business arrangements are nobody’s business but theirs, but when dealing with the regulator, they should expect to be more open. I’ve made fun of Dresner following the disclosures, but the emails I received didn’t show him or his company doing anything inappropriate – the only criticism I’ve got is that the ICO should hold all organisations at arms length.

The other possibility is that the ICO is being inconsistent. They didn’t use this exemption before, but there is something awkward or embarrassing about their relationship with ABC that they want to cover up. Either way, it isn’t a good look for the transparency regulator to be hiding information about its dealings with a private company. The prohibition allows data controllers and public authorities being investigated for DP and FOI breaches to provide secret business information to the Commissioner with the confidence that it won’t be disclosed. This is entirely justifiable – otherwise, no organisation would ever give the ICO information they had withheld from an FOI or subject access applicant in case the applicant then tried to use FOI or DP to get it from Wilmslow.

This case is very different. The ICO has scant resources, and yet has regularly provided speakers to a commercial company with a spotty approach to Data Protection and is using the prohibition on disclosure to prevent legitimate scrutiny of their relationship. The prohibition does allow disclosures that are ‘necessary in the public interest’ – given ABC’s dissemination of scaremongering articles and possibly illegitimate non-notification, I am convinced that the public interest does support transparency here. Of course, the ICO might argue that if they disclose, this will deter conference organisers and others from approaching them – but who cares? This is far from a core activity for the Commissioner. If you’re not willing to be open in these circumstances, what has anyone involved in this got to hide?

The Secret Seven

Last year, I wrote about the fact that Councillor Alex Ganotis, Labour leader of Stockport Council is also a group manager at the Information Commissioner’s Office. After an FOI request, the ICO admitted that he managed the teams responsible for complaints about political parties and local councils. At the time, I argued that this was an unacceptable conflict of interest, and something had to be done about it.

In May this year, shortly after being elected as Manchester’s new Mayor, Andy Burnham appointed Cllr Ganotis as his Environmental Tsar. You can watch a video of the announcement here, and ponder such fascinating questions as why Burnham’s nose is so red, or why throughout the first two minutes, the camera keeps cutting to a wide shot that captures Ganotis’ uncomfortable facial expressions while Burnham is talking. The announcement piqued my interest. If he was organising a grand summit of environmental worthies, would Cllr Ganotis really have time to work at the ICO? And if so, what effect would the review into political activities that Elizabeth Denham announced have on his role?

I made an FOI request to the ICO for the following information:

1) In 2016, the ICO confirmed to me that Alex Ganotis was manager of the team that dealt with complaints about councils and political parties, despite being Leader of Stockport Council at the time. Can you confirm whether Mr Ganotis is still a member of ICO staff, and if so, what is his current job, and what arrangements have been made to avoid any potential conflict of interest?

2) What is the current ICO policy and process for dealing with political party affiliations and potential conflicts of interest?

3) In August 2016, the Information Commissioner announced in an interview with the BBC’s Martin Rosenbaum that she had ordered a review of the involvement of ICO staff in political activities. I would like to see any report or findings arising out of the review, or other summary of the review and its findings, and details of any actions that were taken as a result of it.

4) I would like to receive all current declarations made by any member of staff of involvement in political activities

5) What specific measures have been taken in respect of each staff member who has made a declaration to ensure that there is no conflict of interest?

The response made for fascinating reading. For one thing, Cllr Ganotis remains a Group Manager at Wilmslow and although his group no longer deals with political parties, it still covers issues related to all local authorities in the UK except for those in Greater Manchester, Cheshire or Derbyshire. How politicians and others in every council outside the North West feel about complaints about their authorities still being supervised by the Leader of a Labour Council and a close ally of Andy Burnham is hard to judge. They might be thrilled. Maybe the ICO should ask them.

The report I received under item (3) of my request did contain an option to remove Cllr Ganotis from work involving local authorities altogether, but one of the reasons that this option was not recommended was the fact that “it could be seen to question the professionalism of Alex and other members of staff and their ability to apply the law without bias or political influence“. How Cllr Ganotis’ political career could possibly be seen to reflect on other people is beyond me, but it is jarring that a significant factor in the decision to keep him involved in council work might have been the effect on him, rather than the Commissioner’s ability to operate independently. To be blunt, the ICO as a whole is more important.

UPDATE: I have attached the ICO’s report into the conflict of interest here, so readers can judge whether how objective and balanced it is: Commissioner Information Note – Political Activities.pdf

Unless every team in the ICO handles complaints about local authorities (and to lesser extent, government), Cllr Ganotis should have been moved to one that doesn’t. Having decide to pursue a high-profile political career, asking him to make a sacrifice to avoid conflicts of interest and their perception would not be too much. I am surprised that Cllr Ganotis has not requested such a transfer himself. To risk even the perception of influence over decisions about politically-run organisations, and at the same time pursue a high-profile political career suggests either an enormous amount of faith in one’s ability to compartmentalise, or just old fashioned hubris.

The review identified gaps in the ICO’s Political Activities Policy, with recommended “updates” including a stipulation that staff must avoid party political activities which might impair their ability to perform their duties impartially, a requirement to inform the ICO if their activities or areas of responsibility change, and the scope to remove permission to undertake political activities if an individual’s ICO role or political activity changes. Needless to say, this means that none of this existed before.

The rest of the FOI request suggests a continuing unwillingness to face the issue of political involvement. Including Cllr Ganotis, eight staff members have made declarations of involvement in political activities, but the ICO refused to tell me who the other seven are, or what they do, claiming that the data is sensitive personal data. This is true, but it is not automatically a barrier to disclosure. For one thing, the Secret Seven could be asked for consent, and this is not the only route to disclosure.

There is surely a legitimate interest in knowing whether people working for an independent regulator such as the Commissioner have political affiliations, especially when you consider the ICO’s involvement in political matters. Over the past few years, the ICO has fined Leave.EU, David Lammy MP over his London Mayoral Campaign, the Daily Telegraph for its pro-Tory emails during the 2015 election, and in recent months, they took no action against Virgin Trains following Jeremy Corbyn’s antics in a train vestibule. More importantly, the Commissioner herself announced a formal investigation into the use of data analytics for political purposes with no small amount of fanfare, involving 20 staff. The ICO is knee-deep in politics and transparency over the declared political activities of the staff is in the public interest.

As the data is sensitive personal data, legitimate interests would not be enough; a condition must also be met from Schedule 3 of the Data Protection Act as well. One of the conditions is that the Data Subject has put their sensitive data into the public domain. If, for example, a senior ICO staff member was to mention on their LinkedIn page that they were a Councillor for 9 years, the Campaigns and Communications Officer for an MEP for five years, listed the Liberal Democrats as one of their main interests and was recommended for ‘politics’ and ‘political campaigning’ by dozens of people, I think I can argue that at least this one has manifestly made their political views public. The ICO refusal says “our staff do not have a reasonable expectation that their declarations would be disclosed into the public domain“, but the staff member in question was a candidate for the LibDems in the 2015 General Election, so I humbly suggest that the cat is out of the bag. Either this person is one of the seven, and the ICO’s arguments are false, or they haven’t made a declaration, and the ICO’s claim to me that “the review and policies are sufficient to demonstrate that we avoid conflicts in our work” is nonsense. Again, did they consider this before refusing me?

Every national, local, or internal party election or referendum runs on personal data, and personal data is exploited, analysed, shared, lost, stolen and misused in every single one of them. If you can name a major vote in this decade that hasn’t resulted in a DP snarl-up, you’ve a better memory than me. If there is one word that shines through everything the Commissioner sent me on this topic, last time and this time, it’s  complacency. The policies and procedures that existed before and the ones that have replaced them are built on an obvious assumption that a box needs to be ticked. Of course nobody is actually going to do anything untoward, the managers are on top of it, staff will proactively declare any conflicts of interest and besides, we have a procedure. But they thought it was all fine before. If I had not written my blog last summer, Cllr Ganotis would still be responsible for managing complaints involving his council, his party and his opposition.

I don’t think the Commissioner’s Office takes this seriously. I am amazed that Alex Ganotis is still allowed any influence over the ICO’s decisions about local government, regardless of how objective or benign that influence might be. I am appalled that anyone in the ICO’s senior management could think that this is acceptable. Every time the Commissioner acts or doesn’t act on a political issue, do we always need to ask: who was involved? What bias, conscious or unconscious, did they bring to bear? What other interests do they serve? In a world dominated by fake news and internet froth, the ICO’s independence and objectivity should be their highest priority. It isn’t.

Analyse This

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

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

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

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

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

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

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

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

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

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

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

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

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


What does this tell us?

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

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

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

Another fine mess

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

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

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

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

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

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

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

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

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

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

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

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