The Curse of the Padlock

One of the dangers of working in Data Protection is the risk of becoming a pedant. Precision matters; court cases have turned on the meaning of individual words like ‘likely’ and ‘distress’. The legislation is a maze of definitions and concepts that the competent practitioner needs to get to grips with. Lazy thinking can be revealed by an inability to get the details right, so it’s possible to become obsessed with the detail. Even the BCS Data Protection exam has a question which requires you to list the elements of the definition of consent in the right order. It’s easy to lapse into pedantry, to point out every wrongly quoted article, every jumbled phrase.

Nevertheless, getting a simple thing right is often important. GDPR does not cover ‘personal identifiable information’; it covers ‘personal data’ and the definition of the two is not the same. A person who talks about PII in the context of European Data Protection is starting in the wrong place (the US), and can make mistakes as a result. Another error that seems to be creeping in all over the place is more profound, and risks entrenching one of the biggest misconceptions about how data protection works, a misconception many of us have spent years trying to break down.

The problem is the phrase ‘data privacy’.

I see it everywhere – on LinkedIn naturally, in news coverage of the sector, and predictably, the ICO has fallen for it. They describe themselves as “The UK’s independent authority set up to uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals.” Look at the Data Privacy Advisory Service, who summarise their services as “At DPAS we help organisations safeguard the fundamental human right to have data kept private by putting in place the best possible protection to keep it secure. This is delivered in line with the General Data Protection Regulation (GDPR) and The Data Protection Act 2018.”

The idea is nonsense. It doesn’t exist. There is no right to data privacy – there is certainly no fundamental right ‘to have data kept private’. This isn’t a snide dig at someone quoting the wrong article. The concept of ‘data privacy’ is a complete misunderstanding of what Data Protection is for, and everyone who promotes it is actively thwarting the efforts of the rest of us to implement data protection in a practical way.

Article 8 of the European Convention on Human Rights says: ‘Everyone has the right to respect for his private and family life, his home and his correspondence“. This right is not absolute; it can be interfered with (only when necessary) in the interests of “national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others“. The right is not just about data – it certainly can be, as is evidenced by cases where celebrities and others use the privacy right to prevent the use of images that breach their right to privacy. But the right to privacy doesn’t have to be about data at all – you can breach a person’s right to privacy by simply observing them, by being in a place where they expect privacy, or by denying them the opportunity to do something privately. Data doesn’t have to come into it.

Clearly, if you did a Venn diagram, there would be circumstances where privacy and data protection overlap. By following the Data Protection principles when you handle a person’s private correspondence for example, you probably also do what’s necessary to protect their privacy. The same is true for confidentiality – not all confidential data is personal data, but a decent stab at the principles will probably respect both. There is, however, a significant portion of the Venn diagram where Data Protection and Privacy do not meet, and the DP part of that is important.

The notion of ‘Data Privacy’ obscures two vital elements of Data Protection. First, data protection is not only about private data. It is covers all personal data, private, secret, and public. For years, I have been banging my head against the brick wall of ‘it’s not personal data, it’s in the public domain’. Trying to explain to people that data like photographs, email addresses and other publicly available data is still personal data, just available and easier to use than some other data has long been a difficulty. There was a chink of light in Article 14 of the GDPR which clearly states that a person should be informed even when their data is accessed from ‘publicly accessible sources’. This explicit recognition that public data is still personal data is very helpful, but the notion that ‘data protection’ and ‘data privacy’ are interchangeable muddies the waters again.

Second, in related news, GDPR is not about keeping data private; it is about ensuring that personal data processing is properly regulated. For years, Data Protection has been plagued by the padlock. The Information Commissioner used it as a logo (‘but the padlock is unlocked’ is a defence that umpteen different ICO folk have used when I complained about it), and when I did a Google image search for ‘Data Protection’ today, this is the top set of results:

Screenshot 2019-05-26 at 09.17.53

The problem with the Data Protection Padlock is that it presents the legislation as something that locks data up, keeps it away from people. This understanding of data protection leads directly to the belief that disclosure of personal data is inherently problematic and exceptional, and that belief is toxic. I’m not persuaded that Victoria Climbie or Peter Connelly died solely because data about them wasn’t shared, but the pervasive fear of data sharing didn’t help. The GDPR says that ‘the protection of natural persons in relation to the processing of personal data is a fundamental right‘. The word ‘privacy‘ isn’t mentioned anywhere beyond a reference in a footnote to the ePrivacy Directive, and the processing of personal data is firmly put in the context of operating the EU’s internal market: “This regulation is intended to contribute to the accomplishment of an area of freedom, security and justice, and of an economic union“.

You can’t achieve the economic union by locking all the data away, by keeping it private. To characterise data protection law as being about ‘data privacy’ is to misrepresent its purpose completely. European Data Protection is a compromise – trade is underpinned by the use, even the exploitation of personal data, but people have rights, they have control over their data in some (but not all) circumstances, and the legislation built on foundations of transparency and fairness, not privacy. Arguably, the GDPR tries to even up the power imbalance in some circumstances, but it is not designed to lock up data and keep it private.

Of course, some people might be using ‘privacy’ as a synonym for ‘secure’ – the DPAS statement above seems to elide the two. Only a fool would want to play down the importance of security in the context of using any personal data, but the reduction of Data Protection solely to security is as destructive to a proper understanding of it as the privacy / protection mess. We’ve managed to drag Data Protection out of the IT department, and we need to stamp on this idea that security is the exemplar of good DP practice. Your data can be private and secure, but kept for no good reason, for too long, in an inaccurate state, and there could be too much of it.

Some personal data is private and should remain so. In many situations, the processing of personal data without an eye on people’s legitimate expectations of privacy, especially when monitoring, watching or listening to them, is likely to be unfair and so unlawful. There is a strong link between Data Protection and Privacy, and any attempt to divorce them would be stupid. But the use of ‘data privacy’ as a synonym for data protection is misleading and dangerous – it perpetuates a fundamental misreading of what the legislation is for, and makes the lives of everyone trying to make GDPR work effectively a thousands times harder. It’s time to take this nonsense, lock it up and throw away the key.

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.

Bad Policy

On July 19th 2018, Linda McKee made a simple (but admirably polite) FOI request to the Information Commissioner’s Office. McKee asked for a copy of the ICO’s special categories policy document, a requirement of the Data Protection Act 2018 when processing special categories data in certain circumstances. The DPA was passed in early May 2018, but the requirement for special categories policies had been known since the DP Bill was published in September 2017. Policy documents were not required under the previous DP regime, and having run training courses on both the Bill and the Act, I can confirm that many people in the sector were keen to see real life examples of a policy document. McKee’s request made a lot of sense.

On 17 August (maintaining the ICO’s flawless record of replying to FOIs at the last minute), Wilmslow responded. They confirmed that a policy document was held, but as there was a clear intention to publish the policy document in the future, they refused to disclose it. This seemed a bit daft to me; Section 22 of FOI is designed to protect the organisation from early publication of information. The revelation of the ICO’s special categories policy would hardly cause ripples throughout the sector. Staff would not have been diverted from their normal jobs to deal with the torrent of press attention its release would provoke. They should have coughed it up and moved on.

McKee asked for an internal review, and at this point, the Commissioner headed determinedly the wrong way. There is no fixed time limit for an internal review, which is a flaw in the legislation but nevertheless not something that the organisation should exploit, and the ICO dragged it out for MONTHS. I have to be honest, I didn’t really pay attention, aside from using the ICO’s inability to release a relatively simple document as a gag on my DPA courses. Towards the end of 2018, I checked back in on McKee’s woes, to see an interesting suggestion on the What Do They Know thread. It seemed that when the ICO replied in August, the policy hadn’t actually been finalised.

I couldn’t quite believe this, so over Christmas, I made an FOI request to clear the matter up. I asked whether the policy was held in a final approved form when the ICO replied to McKee in August, for any recorded information about whether the ICO should actually have replied that the policy was not held (because it was not finished), and for a summary of why the ICO refused the request.

And here, a brief interlude to consider a section of the FOI Act that has tantalised FOI experts for years without resolution. Section 77 makes it a criminal offence for the organisation to alter, deface, block, erase, destroy or conceal any record held by it with a view to frustrate its disclosure. So if I am working for a public authority and I pretend that a record isn’t held in order to prevent an FOI punter from receiving it, I have committed an offence. If the organisation conspires in this, the organisation can itself be prosecuted by the Commissioner.

Back to my request to the ICO. They replied (once again, remarkably close to the 20 day deadline), and told me two interesting things. First, in answer to my question about whether the policy was held in a final approved form: “The policy was not held in final approved form“. Second, any recorded information about whether any data held constituted the requested information, or whether the ICO should in fact responded that the information was not held: “We do not hold recorded information. As you will be aware the Freedom of Information Act only covers recorded information held by a public authority. However, it may help you to know that there was a verbal discussion in regard to the response to this Freedom of Information request.” So, there was a verbal discussion that people plainly remember, and the ICO thinks it might help me to know this, without even a squeak about what the discussion was about. Thanks, Wilmslow, consider me unenlightened.

I believe that the ICO’s response to McKee’s request is untrue. The correct answer to her request is ‘no information held’, with advice and assistance that the data was in draft. Section 22 applies where the requested information exists but the organisation intends to publish it unchanged in the future; the ICO’s policy wasn’t complete. Look at what McKee asked for all those months ago: she asked for “your Policy designed to show compliance with Schedule 1, Part 4 of DPA 2018“. An incomplete, unapproved policy plainly does not answer the request, and the ICO should have confirmed that. The use of the exemption was a dishonest dodge to avoid admitting the truth.

If the ICO had a policy and pretended that they did not, under Section 77 it would have been a criminal offence for them to conceal its existence once it had been requested. As it happens, the ICO did the opposite – pretending that the information existed and refusing to give it out because it would be published in the future, rather than admitting that several months after the DPA was passed, the policy was not complete. Whoever decided that this was the right approach should think long and hard about a transparency regulator taking such a cynical attitude to legislation they are supposed to uphold and protect.

While QE2 tries to grab the headlines, demanding that FOI be extended to cover new organisations, her own house is far from being in order. The lack of FOI enforcement against recalcitrant and secretive government departments is an ongoing stain on the ICO’s reputation, while the lazy cynicism and lack of frankness over the office’s own activities suggests that the ICO can talk the talk, but walking the walk is beyond them. Regular readers of this blog are probably inured to my lack of faith in House Wycliffe, but for all Denham’s chasing of headlines, day to day experience of how the ICO carries out the most mundane of its functions suggests carelessness and disarray. Rather than trumpeting the press releases about extending FOI to charities and commercial bodies, more people should ask whether the ICO is capable of doing even those tasks it already has.

Live and Let Dai

To say that anything connected with GDPR is the worst example of its kind is a foolhardy business. I’ve read so many terrible articles, LinkedIn posts and Tweets about GDPR, to single any one of them out and say ‘THIS ONE IS THE WORST’ seems pointless. Most of them are bad. However, after watching 33 minutes of waffle, padding and gleefully misinformed bullshit, I am reckless enough to say that the intellectual property lawyer Dai Davis’ talk here is the worst presentation or talk I have seen about the GDPR in any format.

Admittedly, the trainer in me hated it because of the incompetence – Davis has to keep going back to the podium to change slides because he hasn’t brought a remote, and he pads the talk out with protracted questions to the audience that don’t add anything to what he is saying. When someone intelligent-sounding in the audience takes him on by asking a proper question, he runs a mile.

More seriously, a good chunk of the talk is taken up with an attempt to create a formula for how much you should spend on data protection compliance based on the likelihood of being fined. It’s an eye-catching and controversial thing to throw out in a conference, but I don’t believe even Davis knows what point he’s making. Is he really saying that a every organisation should spend a meaningless, averaged-out €2000 to comply with GDPR, or is that just a flourish? Every organisation is different to another, and will have radically different priorities and appetites for risk, so trying to create a standardised methodology is so random and unhelpful, I don’t think it’s a serious point.  Given the number of basic mistakes and baseless assertions he makes in such a short time, however, the only thing I can add to his calculations is that however much you spend on GDPR, you should probably not spend it on advice from him.

I may not have got them all, but here is as full a collection of all the blunders as I could manage:

  • Davis cannot remember how many deputies the Commissioner has, but he knows that it’s between 11 and 13. There are 3 deputies (James Dipple-Johnstone, Paul Arnold and Steve Wood); there have never been more than 3.
  • Davis consistently gets the name of the ICO wrong – it’s almost always the ‘Information Commission Office’, although he varies it at least once with ‘Information Commission Data Protection Officer’ (he wasn’t talking about their DPO). To be charitable, it might be because he’s talking quickly, but the errors are relentless. He clearly thinks that Elizabeth Denham’s job title is ‘ICO’. because he calls her this repeatedly, and talks about what he would do if he was “the ICO“.
  • He asserts that the GDPR is not a ‘step change’ from the old legislation solely because it has lots of words, even though many of those words are very similar to words in the same order in the old version
  • He notes that there has not been a GDPR fine yet. Davis was speaking on May 30th, two days after the first 72 hours to *report* a relevant breach would have elapsed.
  • He asserts several times that in theory “every single breach” has to be reported to the ICO. This is completely false. There is a specific definition of a breach in the GDPR and incidents that do not meet a certain threshold of risk do not have to be reported.
  • He says that telecoms companies had to report breaches to the ICO since 2012. Communications providers have had this duty since 2011, not just telecoms companies.
  • Davis claims that public sector bodies self-report breaches to the ICO because they have no idea about how to take a commercial risk. There is the problem that public sector bodies are not commercial organisations by and large, so that argument makes no sense, but it’s also factually incorrect. To take one example, NHS bodies (the example shouted out by an audience member) have been obliged by the operation of the Information Governance Toolkit to report breaches to the ICO since at least 1st June 2013 (I think it was actually earlier than this, but that’s the one given in a Toolkit document that Davis could have found with a single Google search if facts were something he had any curiosity about).
  • Davis claims that the ICO is not really responsible for prosecutions for S55 offences, despite talking exclusively about prosecutions that the ICO carried out.
  • He includes the prosecutions in his calculations for the risk of being fined by the ICO, seemingly unaware that fines and prosecutions are two entirely distinct activities, with S55 prosecutions being against individuals rather than organisations. Throughout, Davis talks about the ICO enforcing on ‘people’, so I don’t know if he knows that the penalties were issued against data controllers.
  • He says that there were 18000 complaints in 2016 and the ICO has done nothing about nearly all of them. As someone who thinks the ICO is crap, even I have to acknowledge that most of these complaints were resolved informally and the absence of a fine does not mean that nothing happened. In quite a few cases, the complaint would not have been valid, and so no action would be appropriate.
  • He twice says that the maximum penalty for a breach under the DPA 1998 was £5,000,000; it was £500,000.
  • He quotes the head of the ICO’s ‘Breach Notification Division’, which does not exist.
  • He claims that the GDPR contains more loopholes that requires the ICO to hire criminal lawyers. The standard of evidence for a GDPR breach is balance of probabilities, and GDPR removes the requirement to prove damage or distress for a monetary penalty.
  • He says the ICO has 700 staff – they haven’t recruited these staff yet.
  • He tells a story of how he tells his hotel clients (who, if they exist, have my pity) that they cannot claim to be GDPR compliant because they use “mobile telephones” and allow their staff to send text messages. According to Davis, it is impossible to use mobile phones securely.

At the point where Davis says “smart lawyers like me“, my jaw did not drop, it fell off.

Leaving aside how garbled and smug Davis’ performance is, you might wish to charitable and take on his central thesis – that you probably won’t get a GDPR fine. He’s right. There have been relatively few penalties under Data Protection thus far and so the risk of getting one is relatively small. I cannot disagree with this banal point because I have made it myself any times. However, I can’t tell if his conclusion is simply that nobody should bother complying or whether there would have been a ‘however, you should comply because…’ moment, because there isn’t a conclusion. Presumably because he has run out of time, Davis just stops. So what, Dai? What’s your point? What should the audience do with this information? Should they just ignore GDPR?  There’s definitely a sense of this when he says that 10 years from now, the owner of a B&B will not know what GDPR is.

If Davis had the guts or the discipline to get to a conclusion that GDPR doesn’t matter, that would have been something. His contempt for detail would still be an impediment, but ‘Ignore GDPR’ is an assertion worth tackling. I could counter by arguing that the threat of a fine isn’t a good reason to comply, but respecting human dignity and avoiding harm to real people though inaccuracy, intrusion and insecurity is, but Davis never stops circling the airport, so I don’t even know if that’s what he’s saying.

If his contention that organisations don’t have the ability to measure risk effectively and need to get GDPR in perspective, that’s actually a good point, but he makes it so incompetently that again I’m not motivated to take him on. I have grudging sympathy for the idea that reputational damage is an overhyped risk (again, it’s not a point he makes clearly), but I know that many in the Data Protection world would passionately disagree, and I suspect that they could use Facebook’s current woes as evidence that public perception over data misuse isn’t something that boardrooms can ignore.

In the end, I think Davis is a clever man pontificating about a subject he neither cares for or understands, but the danger is that people will watch the talk and be contaminated by it. You could argue that I am making it worse by drawing attention to it solely so I can take the piss. All I can say is, the talk is out there. People will see it. As this is the case, if you find his argument (such as it is) attractive, it’s worth pointing out how sloppy and ill-informed his thinking is. It’s worth asking if this is the ‘Ignore GDPR’ guy, why would you listen to him?

Cop out

On May 3rd 2018, Elizabeth Denham appeared on Channel 4 News as part of her long running commitment to generating headlines. Denham’s track record on the programme is not great – it was on the same programme in March that she adopted the interesting tactic (uniquely, as far as I can see) of informing an organisation in public and in advance that she planned to apply for a warrant to raid them, losing what might be a useful element of surprise in order to look tough in front of Jon Snow.

In the more recent interview, the Commissioner claimed that she had the power to fine directors and had done so. I made an FOI request about this, and the ICO admitted that “we do not have the power to directly fine directors“, directly contradicting what Denham said. You can tell me that ICO has the power to go after directors in limited circumstances that can result in a court issuing a fine and that must be what she meant (ICO did) but that’s not good enough. The DP regulator went on the telly and claimed to have a power she doesn’t have – it’s surely part of Denham’s job to increase understanding of Data Protection, not to muddy the waters.

In the same interview, Denham cheerily announced that she saw herself as a Sheriff of the internet. Arguably, she should be a Mountie but let’s leave that to one side. I assumed that the statement was a throwaway, not a serious statement of how Denham sees herself and her office. I was wrong. There’s a pattern. In a fawning profile by the Observer’s Carole Cadwalladr a few weeks ago, the Commissioner delivered a soundbite that I suspect is intended to epitomise the Denham Era: “Data crimes are real crimes“. And in the recently leaked DCMS Committee report into Fake News, she was at it again:

For the public, we need to be able to understand why an individual sees a certain ad. Why does an individual see a message in their newsfeed that somebody else does not see? We are really the data cops here. We are doing a data audit to be able to understand and to pull back the curtain on the advertising model around political campaigning and election

I think the misleading impression being created here could attract the label ‘fake news’ just as much as any of the internet nonsense Denham and her fanbase are supposedly against. Data crimes are usually not real crimes, and in most cases, the ICO are not the cops. The GDPR doesn’t make anything a criminal offence, and the offences under the Data Protection Act 2018, like those in its predecessor the 1998 Act, are specific. It’s a criminal offence to take, procure or sell personal data without the permission of the data controller; it’s an offence to re-identify depersonalised data (in circumstances so tightly defined I doubt there will be a successful prosecution), and it can be an offence to oblige someone to make a subject access request. Admittedly, the DPA 2018 is stricter in this area – offences under the DPA 1998 were not recordable so you wouldn’t get a criminal record if you committed them, a position that is sensibly reversed in the new version.

However, in some circumstances, the DPA 2018 is less oriented towards offences than the  DPA 1998. A breach of an Enforcement or Information Notice is no longer subject to prosecution, being punishable by a penalty instead. That might result in stricter punishments, but that depends on Wilmslow showing a willingness to use the powers, and in any case, it’s not a criminal sanction. The much-vaunted criminal prosecution of SCL by the Commissioner over David Carroll’s subject access request is doomed in my opinion, but if it goes ahead, it will almost certainly be the last prosecution for a breach of a notice. None of the DP offences are punishable with prison, and for all Denham’s bluster about being a data cop, she never publicly applies the pressure for custodial sentences. For all his faults, her predecessor Christopher Graham never missed an opportunity to do so.

If Facebook willingly shared its customers personal data with Cambridge Analytica, it would not be a criminal offence. If they reused their customers’ data and sold it to list brokers, it would not be a criminal offence. As drafted, the ‘victim’ of most data protection offences would be the data controller, not the person whose data is misappropriated, sold or misused. Denham wants to conjure up images of cops and robbers, but she’s misleading the public. Who knows, maybe she doesn’t want people to realise that the only sanction for the majority of data transgressions are monetary penalty that she has the power to approve. Maybe she means ‘data crimes should be real crimes‘, but if that’s the case, that what she should say instead of giving the wrong impression.

There’s another problem. By setting herself up as the Internet Sheriff, Denham is creating expectations I don’t believe she’s prepared to meet. In all her public appearances, the Commissioner is clearly trying to mark out the internet and new technology as her manor. Supporters like Cadwalladr are only too happy to play along. The Observer piece contains a brief but devastating verdict on thirty or so years of ICO work and four previous Commissioners: “a somewhat dusty regulator dealing in a niche topic“. I’m the last person to defend the ICO, but this writes off Wilmslow’s endeavours on phone hacking, union blacklisting, the lost HMRC data disks and many DP and PECR fines which even I can’t deny have changed behaviour for the better in many sectors. I can’t say that Denham endorses this trashing of her predecessors’ efforts, but she hasn’t repudiated it either. What must her staff think of it?

Strip away the recent headlines for prosecutions and £500,000 fines that haven’t actually happened yet, and Denham’s record is hardly the Data Protection equivalent of Wyatt Earp taking on the Clantons. When dealing with the misuse of 1.6 million people’s data by the Royal Free Hospital and the AI company owned by Google (exactly the kind of tech territory we’re supposed to believe she wants to police), Denham’s ICO asked the Royal Free to sign an undertaking. There is no automatic sanction if they go back on it. Faced with multiple instances of charities profiling potential donors in secret (not a million miles away from the kind of surreptitious data gathering that attracts her current ire), Denham’s response was reportedly to cut the originally proposed fines, such that Oxfam was fined just £6000. Late in 2017, Sheriff Denham issued an enforcement notice against the Ministry of Justice over shameful and long-running subject access backlogs that doubtlessly affected many people in desperate legal circumstances. She gave them eight months to comply and sneaked the notice out on the last working day before Christmas without a press release.

You can tell me that the ICO has consistently issued monetary penalties on Denham’s watch but so did Graham, though the double whammy of £400,000 CMPs on both TalkTalk and Carphone Warehouse weigh against my argument to some extent. But beyond those, Denham has done nothing revolutionary or interesting in enforcement. There has been no action on accuracy or retention, and little on the vital first principle beyond the charity cases that were obviously started under Graham.

Outwardly, Denham seems poised and plausible. Fate has dealt her the biggest data protection story in a decade and some overly sympathetic press coverage, so maybe she’s right to milk it and build up her part. There’s no question that she has a higher public profile than any of the Commissioners who have gone before her, and I know a lot of people in the DP world who think that this is automatically a good thing. I’m not convinced. I think ‘data crimes are real crimes’ could become as unhelpful a distraction as the pervasive ‘GDPR = consent’ myth, and nothing about the past two years convinces me that Denham really has what it takes to round up the internet’s outlaws. As always, I will delighted to be proved wrong; some eyecatching monster scalps is what I have spent years of blogging asking for, and it will make my job easier for the next few years. But unless she really pulls out the big guns, the Commissioner’s legacy may be less Gunfight at the IT Corral, and more Denham’s Last Stand.