Wednesday, 16 November 2016

Apollo – they can’t still be up to their old tricks?

Two years ago I blogged about an unsettling experience I had with Apollo, a firm that had confused me as to what they were really all about. 

Since then, I’ve had a number of emails from people who have had similar experiences. Today, I’m reprinting (most of) the most recent one – which comments about an organisation called Apollo-Transitions. Surely, this is not the same company as the Apollo company I had encountered?  But, spookily, Apollo Transitions Ltd has a remarkably similar logo to the old Apollo– and the same colour scheme. And, Geoff Russell, the person I met in 2014, is a member of the senior team.

Anyway, here’s the letter:

I have recently moved back to the UK [redacted].

As you did, I received the standard email wanting to organise a meeting with the senior partner etc. Whilst it all seems very odd, having a bit of time on my hands I thought I would go to a few meetings to see what I thought. By nature I'm a suspicious guy and to me this doesn't add up.

Like your experience in London I was very underwhelmed with the offices. A Regus office with no signage for Apollo in Cambourne, Cambridgeshire. 

Meeting the with senior partner was a great boost to my confidence as after a few questions and computer exercises (over the two meetings) I feel like I could head up NASA and solve world peace on the side. Whilst I understand that they are pumping up my ego, which is a great thing for job seekers, it's the little things that nag me.

  • Why no signage?
  • Why doesn't the ISO accreditation check out?
  • Recent company name changes
  • Long list of registered and de registered companies associated.
  • £1000 up front and £2000 paid over two months with no guarantees?
  • Very vague reviews
  • Concrete testimonials
  • Not seeing any other customers coming or going over two meetings.
  • Generic career management options.
  • A lack of contacts of partners and staff on LinkedIn?
  • So many directors/ partners etc
  • Why did the laptop provided have no up arrow key button?
  • The white board having the same writing on it for a week.
  • Taking an important phone call during the meeting to explain how busy things are
  • Keeping me waiting for 5 minutes past the scheduled meeting time with no one leaving
  • A stack of topical books for improvement, job progression.

During the process I was under the impression I would be put in contact with some senior executives and would basically be buying a contact list and referral. When I asked this directly that seems not to be the case?

I find this whole thing very odd. In perspective £3000 for your dream job is probably a good buy but it's a hell of a lot of money for someone to jazz up your cv and say don't fidget during an interview.

If I had a lazy £3000 I would follow this through out of interest but i think the old additive "if it's too good to be true" probably is the one to use in this situation.

As a disclaimer I would love to be completely wrong about his company. I hope they are placing thousands of people in great jobs who are advancing their careers and improving both their and their families lives.

I share these closing sentiments, too.


Wednesday, 9 November 2016

Post the result of the US Presidential election, what hope is there for the Privacy Shield?

In light of the recent US elections, paving the way for a Trump presidency in 2017, why should companies take the risk of adopting the Privacy Shield as a means of legitimising EU/US transfers?

Frankly, I wouldn't bother.

Not until the latest set of legal challenges has been resolved, anyway.


Well, a recent lunch with a chum who is closer to the minds of the policy-making and legal elites within the EU reminded me of the deep cultural divide that exists inside the Brussels bubble. “Fortress Europe” is the phrase that springs to mind, with a deep unwillingness on the part of the European institutions to accept that other views can quite legitimately be held by actors outside that fortress.

I’m a little worried at how quickly the relations are likely to sour between the UK and the European Institutions, post Brexit. I used to predict with confidence that, post Brexit, representatives from the ICO would be invited to observe the meetings of the (by then) European Data Protection Board, the successor to the Article 29 Working Party. And, that the ICO’s sensible and pragmatic advice would continue to be appreciated by the working groups that will be set up by the Board.  But I’m not so confident now.

My chum had an alarming tale to tell about the way the European institutions maneuvered to impede the work of some of the European groups they were involved with – because the project wasn't wholly within the European Commission’s control. Later, I learnt a little more about the basis on which the Commission decided that certain non-EU countries had “adequate” levels of data protection. Enough said. I won’t reveal any more details.

But the impression I was left with was that the European Commission acts when it is politically expedient for it to act. It either leads, or follows, public opinion. In terms of the General Data Protection Regulation, I think its fair to assume that it’s leading public opinion. After 27 years in this game, I still struggle to meet many members of the public who are as obsessed with privacy as those that devised the GDPR. And I’ve met fewer that have the mental capacity to understand such a complicated Regulation.

So, given a US President –elect with an “American First” agenda, what is the likelihood of EU judges agreeing that the Privacy Shield provides adequate protection against whatever today’s American bogyman is? 

Regardless of the comforting words muttered by some of Europe’s elite, congratulating Donald Trump on his achievement, I sense the tectonic plates shifting again, with Fortress Europe building ever stronger protections against those oiks who see themselves at nationalists, rather than Europeans.

I sense that, post Brexit, most European institutions will be giving the Brits the cold shoulder as we try to engage with European businesses – while the Americans will face a much frostier reaction.

And I suspect that one of the battles will rage around the EU–US personal information flows.

I suspect that well intentioned Europeans will redouble their efforts to prevent EU citizen’s personal data being transferred what they perceive to be an evil empire -  despite the heroic efforts by both sides to agree a framework that was more reassuring than Safe Harbor.

And I suspect that the EU courts may find some sympathy with their motives.

So, we are due a fierce fight about the legitimacy of the Privacy Shield. It ain’t court proof, and I’m awaiting with some degree of unease the result of the legal challenges that have already been made, and, no doubt, the result of further legal challenges that will come. 

My advice to data controllers who worry about such issues today is simple: Sit tight, rely on the current European Commission-approved model clauses to legitimize your EU/US data flows, wait for them (in turn) to be denounced by the European courts, and then wait several months before the European Commission decides what form of legalese really does need to be incorporated into the contracts. And then act.

Sunday, 30 October 2016

Post Brexit, what options are available for a GDPR-light Data Protection Act?

Let’s think the unthinkable.

Lets assume that, post Brexit, the British Government has an opportunity to decide how its data protection legislation should reflect the requirements of an aspiring British economy. And let’s assume that the Minister with responsibility for Data Protection asks for options about trimming back those elements of the General Data Protection Regulation that are unduly burdensome and, in practice, actually do very little to safeguard fundamental human rights.

Why might a Minister make such a request?

Just think of the pressures that are likely to face the public purse. Data controllers in the public sector will continue to have significant budgetary pressures over the next decade. So, all statutory obligations that have cost implications will need to be reviewed and justified. Difficult choices will need to be made. Costs that cannot be justified shouldn’t be permitted to continue to be imposed. And if the costs can’t be justified for public sector data controllers, then the same arguments ought to be able to be made with regard to (most) other data controllers.

What options might feature on the Minister’s list?

Hopefully, the following issues will be included:

  • Allow data controllers to levy a (relatively small) Subject Access Fee. In 27 years as a data protection practitioner, I’ve encountered too many situations where the individual had raised a complaint with the data controller, and had invoke the SAR process as a way not of resolving their complaint, but to “get their own back” and unnecessarily tie-up scarce resources. Its been my experience that a small SAR fees deter a good many unmeritorious requests.
  • Examine whether the GDPR right to require a data controller to pass an individual’s personal data directly to another data controller really ought to be a “fundamental” right, and thus within the ambit of the GDPR. Surely it should be up to the discretion of the data controller as to whether they should offer such a service to their customers.
  • Query whether it is necessary for there to be an obligation on certain (or any) organisations to appoint a DPO with the responsibilities that are specified in the GDPR. Why should a DPO, for example, be treated so differently to any other senior employee?
  • Query why fines for non-compliance need be set so high, or the higher rate (4% of global turnover) applicable for breaches of so many Articles of the GDPR , when the lower rate (2%) is arguably just as dissuasive.
  • Examine the mess that the rules on transborder data flows will impose (particularly) on cloud providers, and embark on a more pragmatic, less dogmatic, approach.
  • Query whether Data Protection Impact Assessments are required in so many cases, and whether the DPIA needs to address all the issues set out in the GDPR. Why can’t data controllers take a more pragmatic, risk-based approach be taken?
  • Clarify just what processes data controllers should document in order to demonstrate accountability, so that they aren't led to believing that a huge range of, for example, information flows, must be documented in considerable detail, on pain of a whopping fine from the regulator if they don’t.
  • Query whether individual’s rights really need to be as complicated as they are set out in the GDPR – which provides that their rights will depend, to some extent, on the legal grounds that data controllers rely on for processing personal data. Individuals may rightly feel aggrieved if their “rights” are oversold by people keen to sell the virtues of the GDPR. Individuals have to accept that data controllers have rights too.
  • Query the requirements & logistics for obtaining consent when data relating to children are being processed. Ignore the EU’s lower age limit of 13 and continue to accept that, in Scotland at least, young people can be treated differently to other minors when they reach the age of 12.
  • Query whether it is necessary to explain what an organisation’s “legitimate interests” are, when the legitimate interests condition is being used to process data.

These are all issues that don't really affect an individual's “fundamental” human rights. So, there is the possibility that some – or most- of them could be incorporated into a new Data Protection Act without the UK being accused of denying UK citizens rights that are equivalent to the fundamental human rights that are enjoyed by EU citizens.

“Equivalent” rights should not be taken to mean that a post-Brexit Data Protection Act should offer UK citizens rights that are “identical” to their EU chums. After all, countries like the Faroe Islands, Israel & Canada were awarded “adequacy” status by the European Commission a few years ago – not because their laws were identical to the requirements in the Data Protection Directive, but because it was, on balance, expedient for those countries to be so recognised.


Saturday, 29 October 2016

My 7 top security publications from the ICO

Given what can only be described as an omnishambles of security breaches, is there much more that the ICO can do to warn data controllers of the risks they should take account of?

Probably not.

What might be helpful though, is data controllers refreshing their memories about the guidance which has emerged from the ICO over the past few years.

In terms of the top 7 ICO publications, (virtual) copies of the following guides really ought to be at every DPO’s fingertips: 

7. Guidance on data security breach management (Dec 2012). This very high level, 8-page guide, builds on earlier advice that breaches of non-sensitive personal data relating to more than 1,000 victims should be notified to the ICO, while breaches of sensitive personal data relating to far fewer victims should also be notified.

6. Bring your own device (May 2013). This 13-page document contains advice on what a BYOD policy should contain, what security issues to consider with regard to data storage & transfers, and guidance on monitoring at work.

5. Guidance on the use of cloud computing (Oct 2012) This 23-page guide, evidently about to be revised by the ICO, contains a useful PIA-type check list which covering the issues (in terms of risks, confidentiality, integrity, availability & legal factors) to consider when using a cloud provider.

4. Privacy in mobile apps – guidance for app developers (Dec 2013). This 23-page guide contains some basic security advice, together with useful examples of good and bad practice for app developers.

3. Encryption (Mar 2016) This 35-page guide highlights, through a range of practical scenarios, when different encryption strategies can help provide a greater level of protection.

2. A practical guide to IT security (Jan 2016).  This natty 18-page guide reports on 10 practical ways to secure IT systems. Sections offer high level guidance on the importance of:
  • Assessing the threats
  • Getting in line with Cyber Essentials
  • Securing data on the move & in the office
  • Securing data in the cloud
  • Backing-up data
  • Staff training
  • Monitoring alerts
  • Documenting controls
  • Minimising data
  • Monitoring contractors

However, and by a country mile, top of my list of "must read" ICO security publications is:

1. Protecting personal data in online services: learning from the mistakes of others (May 2014). This 46-page guide focusses on the most common 8 computer security vulnerabilities:
  • Software updates
  • SQL injection
  • Unnecessary services
  • Decommissioning
  • Password storage
  • SSL/TLS configuration
  • Inappropriate locations
  • Default credentials

So there you have it. Security breaches may well occur despite data controllers having taken account of the ICO’s advice – but woe betide a data controller that suffers a security breach because they’ve wilfully disregarded the published advice.

An inability to follow these basic guides will continue to be an aggravating factor that will be taken into account when the Information Commissioner decides what level of Civil Monetary Penalty to impose on a recalcitrant data controller.


Thursday, 5 May 2016

750 days to go before the new data protection rules bite

How often do organisations get 750 days’ notice of new rules that may require them to make huge changes to comply?

Well, it’s happened. The European Commission has just announced that the General Data Protection Regulation, a mighty piece of legislation that took over 4 years to negotiate, will come into force on 25 May 2918.

What will it mean to most organisations?

Potentially, lots.  Unlike Y2K, which passed  (mercifully, on 1 January 2000) without a hitch, the new rules are potentially pretty disruptive. After all, from May 2018, organisations will be under greater obligations provide assurance to their boards, customers and regulators that their data protection processes and procedures are fit for purpose.

For the most serious violations (such as ignoring data subjects' rights) privacy regulators will be able to impose penalties up to €20m or 4 percent of global revenue (whichever is higher). This is a critical change compared to current UK fines, which is a maximum of £500,000.

Other changes include

    Responsibility for data protection. Any organisation that processes or accesses personal data will also be held responsible for its protection, including third parties such as cloud providers. Data processors, (not only data controllers) will be accountable for protecting data.
    Applicability and Extraterritorially. Any organisation that processes personal data on individuals in the EU is in scope. This includes companies that are established outside the EU, even if they have no physical presence in the EU.
    Data protection officer. Many companies will need to designate a DPO.
    Data breach notification. Currently, different countries have different rules on data loss reporting. The GDPR will streamline the process, requiring regulators to be informed within 72 hours.
    Claims and damages. Individuals and some representative organisations will be able to claim damages in certain cases. Litigation can be extremely costly and invariably results in both reputational and financial losses. Reputational damage will be a key consideration in managing the data breaches that will be reported to both regulators and customers.
    Organisations will have to provide much more information to individuals about how their personal information is being processed, their rights and safeguards. These include the right to be forgotten, the right to restrict the processing of their personal data, and the right to data portability.

How can organisations prepare for these changes?

There will be no shortage of advice from the consulting firms that have been waiting a long time for the starting gun to be fired.

But how can they prevent themselves from over-engineering the solution?

As we experienced when the new cookie rules came in, some organisations tried almost too hard to implement the rules. Users were offered a bewildering array of choices about what cookies could be dropped on their device. Now, the general tendency is for organisations simply to say: “We use cookies, get over it. Click for more details.” 

I’ve prepared for these changes by changing my own job. I’m now leading the data protection offering at a major consultancy firm, and able to help clients by offering them support from a wider array of data protection specialists than was previously the case.

Wish me luck in my new role – and don’t hesitate to get in touch if you and/or your organisation need help in developing or implementing an enhanced privacy compliance programme.

Transformation and behavioural change?

Yes we can.

So let’s do it.
If your clients want to know what good data protection practices look like, you know I can help.