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Tag: data-protection

Tea, sex and data

Comparing consent for processing personal data with consent for sexual activity.

Many laws, professional obligations, contracts and standards make reference to “consent” as a basis or requirement for something to be done. As I’ve mentioned before in an earlier post, “consent” is not a tick box or a signature, it is a state of relationship between two (or more) parties.

With this in mind, I’m going to write about something we’re almost all enthusiastic about (sexual activity) and something I’m [also] very enthusiastic about (data protection) in the hope that comparing the two will lead to greater understanding of how to manage consent as a legal basis for processing personal data, while keeping your attention for long enough to explain…

If you haven’t already seen this, it’s an excellent analogy between sexual activity and cups of tea – almost every point made can also be related to processing of data. The main difference here is that a cup of tea is unlikely to have a lasting and damaging effect, whereas both unwanted sexual contact and unfair/unlawful processing of personal data have the potential to cause serious harm to individuals if they occur.*

Before I get into the similarities though, there are two ways in which consent for getting sexy and processing data are totally different.

1. You don’t *have* to get consent for data processing (and shouldn’t try to, if consent is not the appropriate legal basis) but you always need to make sure that your sexual activities are with consenting adults only.

2. Consent for happy fun time can be implied or inferred (carefully). A long-married couple probably don’t need to have a detailed conversation about whether to take advantage of the kids being out that evening – a speculative look in the direction of the bedroom/kitchen/sofa and a twinkle of the eye in response is probably enough to communicate “shall we?” “Yes!” effectively.

No such parallel exists with data processing – either you have an unambiguous and specific response to “can we use your data in this way for this purpose” or you don’t have consent.

Ok, those are the significant differences. So, what are the similarities between consent for sexual activity and consent for data processing?

What it’s for: specifically

Consent is not “one size fits all”, if you consent to A (whether A is a cheeky snog behind the bike sheds, or being profiled on social media in order to be served targeted advertising), that does not mean you have also consented to B (which might be a hand up your shirt – or having your social media data sold to an insurance agency to calculate your risk of having a driving accident). It doesn’t even mean that you have consented to future As (snogs or profiling), especially if those future As might take you by surprise. It certainly doesn’t mean that having consented to A with one party, that anyone else can join in without having to ask permission separately (I’m looking at you, data brokers)

Whether you have it depends on how you get it:

Evidence of consent may be a legal requirement in some scenarios, but that evidence itself is not “consent”, just a record that something was asked for and an affirmation provided.

Obviously, if you have been misled or misinformed as to the activity, not given enough information to make an educated decision or if you don’t really have a choice, then no amount of tickboxes, signatures, “I agree” buttons or recordings will suffice. You have not consented.

Obtaining consent before/during sexual activity doesn’t usually involve either paper or electronic records, although there are apps which purport to fill that……er….niche (I’m in complete agreement with Girl On The Net’s views on these apps, by the way [warning also probably NSFW]). However, asking “would you like me to….” or “how about if we…..” rather than just diving in is the right thing to do and doesn’t have to kill the mood – in fact, that kind of conversation can be quite good fun…..

A positive response is an indication of consent. No response, or a negative response is very very unlikely to be consent. If someone is impaired in some way so they can’t a) understand the decision or b) communicate their decision then they cannot consent. Back off.

Obtaining consent for processing of personal data doesn’t necessarily need to involve tickboxes or signatures although as evidence of consent is a legal requirement, those are some mechanisms you might want to consider using.

What’s important in both circumstances is that you get consent before you start getting jiggy/processing data.

It doesn’t last forever:

Once you have consent, you can do whatever it is you have obtained agreement to do, for as long as that consent was agreed to last. “Yes” can turn to “No” at any time. If you don’t give the other party the freedom to change their mind, then you don’t have valid consent.

Regret does not retrospectively turn a ‘yes’ into a ‘no’. While many of us may have woken up and thought “Oops” when recalling the night before; this does not invalidate any informed, freely-given consent that was provided at the time. The past cannot be undone, only learned from. Likewise, if I give an advertising agency permission to use my photo, while I can tell them to stop using it later, I can’t make them recall every copy of the image that they published while my consent was in place.

Withdrawal or refusal is not an invitation to try to continue:

No means no. End of. Once someone has withdrawn their consent you must stop doing whatever it was you obtained their agreement to do. Pleading, bullying, coercing, forcing – these are violations of consent and could be very serious, both for you and for the person whose preferences you have ignored. Emotional blackmail to get sex is a favourite tactic of hormone-crazed teenage boys and has (superficial) parallels with companies that send emails to opted-out addresses offering incentives to resubscribe. Teenage boys might not realise that what they are doing is wrong (educate them please, parents!) but companies have no excuse whatsoever.

It doesn’t last forever:

“Yes” now does not mean “yes” to every future occurrence. “But you liked sucking my toes last week” does not mean that person wants to suck your toes right now, or at any time in the future. Put your socks back on. Similarly, asking an organisation to send you info about a specific event you’re interested in doesn’t mean they can send you messages about any other event they run.

It’s important to be clear:

Keep checking that ‘no objection’ has not turned into “no”. Consent must be informed to be valid, so if the other party has forgotten what they agreed to then you may not still have their consent – whether that’s the prospect of getting the silk scarves out, or tracking every location they take their phone to.

Proportionality is advised:

Signed agreements are not necessarily appropriate for either sexual activity or data processing (although they are relatively common in relationships that incorporate the exotic end of sexual activities [warning possibly NSFW] where the potential for miscommunication could have serious ramifications). Likewise, a signed declaration of consent to data processing is probably overkill for the majority of scenarios and is likely to increase both your administrative overhead and the annoyance you’re going to cause to the people who’s data you’re wanting to process. However, as with exotic sexual activities; if there is potential for a high impact, especially any kind of harm to the individual from your processing then it’s likely that you will need to make your consent evidence more stringent and robust. (note: if the processing is *required* in order to carry out a contract, then you should not be asking for consent in the first place as it cannot be freely-given separately to the contract agreement itself).

Lastly; don’t be a git:

If you’re looking for ways to evade obtaining proper consent in order to exploit someone then you are a Bad Person. This applies in any context. Even if you don’t see what you’re doing as exploitation, fiddling with either someone’s physical or intangible self has real consequences – it should only happen with care, respect and communication.

So if you are considering processing someone’s personal data, first check the appropriate legal basis. If that’s consent, then ask them for it – being clear about what you want to do and why. Keep a record of their response. Check in with them after a while to make sure it’s still OK. Don’t be sneaky/deceptive/coercive/vague/ask for more than you actually need.

And practice safe sex, mm’kay?

*NB: I am *not* equating data misuse with sexual assault in terms of seriousness! Lives can be ruined by unfair/unlawful/careless data processing (the construction industry blacklist, exposing vulnerable people to their stalkers, medication errors, inaccurate criminal records, credit rating errors….) – these are all Really Bad Things, but nowhere near the horror of being assaulted.

Human Error

To err is human…..to forgive, divine..

…(but to really screw things up, you need a computer….!)

One can’t help noticing a recurring theme in the spate of data breach news reports these days. The phrase “human error” is coming up an awful lot. I’d like to take a closer look at just what that phrase means, and whether it is at all a helpful description at all.

What do you think when you hear that something happened due to a “human error”? Do you think “aww, the poor person that made a mistake; how awful for them, I hope someone gives them a hug, a cup of tea and consolation that humans are fallible frail creatures who can’t be expected to get stuff right all the time” or do you – like me – think to yourself “h’mm, what this means is that something went wrong and that humans were involved. I wonder whether systems, processes and training were designed to robustly identify and mitigate risks, whether management support and provision of resources were adequate and whether this is just a case of someone getting unlucky while dodging around policies in a commonly-accepted and laxly-monitored way”

Premise; I fully believe that the statement “the breach was down to human error” is a total copout.

Why?

Let’s start with “error”. The dictionary definition says:

  1. A mistake
  2. The state or condition of being wrong in conduct or judgement
  3. A measure of the estimated difference between the observed or calculated value of a quantity and its true value

The first definition is probably the one that is called to mind most often when an occurrence is described as an “error”. Mistakes are common and unavoidable, everyone knows that. I believe that the phrase “human error” is used consciously and cynically to create the perception that information incidents are freak occurrences of nature (rather like hiccups or lightning) about which it would be churlish and unkind to take umbrage; and unreasonable to demand better.

But in my humble and personal opinion, (based on nothing more than anecdote and observation) the perception thus created is a false one – in fact, breaches that occur solely as a result of genuine mistakes are rare. Even if a “oops” moment was the tipping-point; the circumstances that allowed the breach to take place are just as significant – and usually indicate a wider systemic failure of risk management which could – and should – have been done better.

Risky behaviour that leads to a breach though, is not usually a sincere mistake – it is either a calculated decision of the odds, a failure to understand the risk or ignorance of the possibility that a risk exists. Risky behaviour is *not* an unavoidable whim of Mother Universe (setting aside the philosophical implications, otherwise we’ll be here all day), but the output of a deliberate act or decision. We should not regard ‘risky behaviour which led to a realisation of the risk and unwanted consequences’ in the same way that we do ‘inadvertent screwup due to human frailty’ and to lump them together under the same heading of “human error” does a disservice to us all, by blurring the lines between what is forgivable and what we should be demanding improvements to.

The human bit

Since we’re not yet at the stage of having autonomous, conscious Artificial Intelligence; it must follow therefore that errors arising from any human endeavour must therefore always be “human errors”. Humans design systems, they deploy them, they use (and misuse) them. Humans are firmly in the driving seat (discounting for the moment that based on the evidence so far, the driver is reckless, probably intoxicated, has no concept of risk management and is probably trying to run over an ex-spouse without making it look obviously like a crime). So; whether an information security or privacy breach is intentional, inadvertent or a state in which someone got caught out doing something dodgy, describing the cause as “human error” is rather tautological and – as I’ve noted above – potentially misleading.

I believe that the phrase “human error” is a technically-accurate but wholly uninformative description of what is much more likely to be better described as human recklessness, human negligence, human short-sightedness, human malice or simple human incompetence. Of course; no organisation is going to hold their hands up in public to any of that, so they deploy meaningless platitudes (such as “we take data protection very seriously – that’s a diatribe for another day!), of which “the breach occurred due to human error” is one.

Take for example, the common ‘puts all addresses in the To: field of an email instead of BCC’ screwup which was the cause of an NHS Trust being issued with a Civil Monetary Penalty after the Dean Street clinic incident in 2015. Maybe the insertion of the email addresses into the wrong field was down to the human operator being distracted, working at breakneck speed to get stuff done, being under stress or simply being blissfully unaware of the requirements of data protection law and email etiquette. But they should not carry all of the culpability for this incident – where was the training? Where were the adequate resources to do all the work that needs to be done in the time available? Most of all, where the hell was the professional bulk-emailing platform which would have obfuscated all recipient emails by default and therefore be a much more suitable mechanism to send out a patient newsletter? (provided of course, that the supplier was carefully chosen, UK-based, tied to appropriate Data Processor contract clauses and monitored for compliance…etc etc). The management would seem to have a lot more to answer for than the individual who sent the email out.

So the next time you read of a data breach, privacy abuse or in fact, any other type of incident at all, and see the phrase “human error”, stop and ask yourself: “What was the error”? Was it lack of appropriate training for staff? Cutting corners to cut costs? Failure to provide the appropriate tools for the job? Mismatch between the outputs demanded and the resources provided to deliver them? None of these are inevitable Acts of Nature, the way that occasional “Oops” moments would be.

And as long as organisations are allowed hide behind the illusion of unavoidability; the less likely they are to tackle the real problems.

StalkerChimps

This morning, I was spending my leisure time researching options for email newsletters. Just to be clear, this isn’t something I would necessarily choose to do for fun, but is linked to my role as Digital Officer for a certain professional association for information rights professionals.

All of the reviews I read seem to hold MailChimp up as cost-effective, easy to use and feature-rich. “Great”, I thought and then the privacy nerd in me started muttering….I wasn’t surprised to see that MailChimp are a US company, as their inability to spell common words such as “realise” and “harbour” had already clued me up to this, but that doesn’t necessarily present an insurmountable data protection problem for a UK organisation looking to use their services (setting aside the current kerfuffle about Safe Harbour/Privacy Seal/NSA etc etc). I thought as a prospective customer of their services, I’d check out the privacy policy (nothing more embarrassing than accidentally using personal data unfairly or unlawfully when you’re acting as a professional organisation for privacy enthusiasts…..).

And I found this:

(for the record; the annotations are mine).

Which basically translates to:

“We are going to follow you all over the web, conducting surveillance on you without telling you and then use what we have discovered to try and predict the best ways to manipulate you in order to make money for our customers, clients and suppliers.”

Oh yeah, and there’s also this: “As you use our Services, you may import into our system personal information you’ve collected from your Subscribers. We have no direct relationship with your Subscribers, and you’re responsible for making sure you have the appropriate permission for us to collect and process information about those individuals. We may transfer personal information to companies that help us provide our Services (“Service Providers.”) All Service Providers enter into a contract with us that protects personal data and restricts their use of any personal data in line with this policy. As part of our Services, we may use and incorporate into features information you’ve provided or we’ve collected about Subscribers as Aggregate Information. We may share this Aggregate Information, including Subscriber email addresses, with third parties in line with the approved uses in Section 6.[screenshot]”

Now, I have most definitely had emails from businesses that I’ve used in the past, which – upon unsubscribing – I have discovered are using MailChimp. No-one has ever told me that when I gave my email address to them, they would pass it on to a US company who would then use it for stalking and profiling me. Well, hur-hur, it’s the Internet, what did I expect?

Wait. Being “on the internet” does not mean “no laws apply”. And in the UK, for UK-registered organisations, the UK Data Protection Act does most certainly apply. You cannot contract out of your organisation’s responsibilities under DPA. Now, for those of you reading this who aren’t DP geeks (Hi, nice to see you, the party’s just getting started!), here’s a breakdown of why I think using MailChimp might be a problem for UK organisations….

The UK Data Protection Act has 8 Principles, the first of which is that “personal data shall be processed fairly and lawfully”. Part of “fair and lawful” is that you must be transparent about your use of personal data, and you mustn’t breach any of the Principles, commit any of the offences or use the data for activity which is otherwise inherenty unlawful (like scams and fraud, for example). One key requirement of being “fair and lawful” is using a Fair Processing Statement (a.k.a “Privacy Notice“) to tell people what you are doing with their data. This needs to include any activity which they wouldn’t reasonably expect – and I would think that having all of your online activity hoovered up and used to work out how best to manipulate you would fit squarely into that category. Or am I just old-fashioned?

Anyway, using MailChimp for email marketing if you don’t tell people what that implies for their privacy? Fail No.1.

Then there’s the small matter of MailChimp’s role in this relationship. Under DPA, we have Data Controllers and Data Processors. For the sake of user-friendliness, let’s call them respectively “Boss” and “Bitch”. The organisation that is the Boss gets to make the decisions about why and how personal data is used. The organisation that is the Bitch can only do what the Boss tells them. The terms of how the Boss-Bitch relationship works needs to be set out in a contract. If the Bitch screws up and breaches privacy law, the Boss takes the flak, so the Boss should put strict limitations on what the Bitch is allowed to do on their behalf.

Now, I haven’t seen the Ts and Cs that MailChimp are using or whether there is any mention of Data Controller/Data Processor relationships but I doubt very much if they could be considered a proper Bitch because they use a lot of subscriber data for their own ends, not just those of the organisation on whose behalf they are sending out emails. So if MailChimp aren’t a Bitch, then they are their own Boss – and so giving personal data to them isn’t the equivalent of using an agency for an in-house operation, it’s actually disclosure of the information to a third party to use for their own purposes (which may not be compatible with the purposes you originally gathered the data for). Now one of the things you’re supposed to tell people in a privacy notice is whether you are going to disclose their data, what for, and to whom. You’re also not supposed to re-purpose it without permission. Oops again (Fail No. 2)

I’m gonna skirt past the 8th Principle (don’t send data overseas without proper protection), because there’s just so much going on at the moment about the implications of sending data to the US, we’ll be here for hours if I get into that. Suffice to say, if the Data Controller (Boss) is a US firm, you have no rights to visibility of your data, control over its accuracy, use, security or anything else (Principles 2-7). None. Kthxbye. That might be fine with you, but unless you are informed upfront, the choice of whether or not to engage with the organisation that’s throwing your data over the pond to be mercilessly exploited, is taken away from you. Not fair. Not lawful. Fail No.3.

Aaaaand finally (for this post, anyway) there’s the PECR problem. Simplified: PECR is the law that regulates email marketing, one of the requirements of which is that marketing by email, SMS and to TPS-registered recipients requires prior consent – i.e., you can’t assume they want to receive it, you must ask permission. It does however contain a kind of loophole where if you have bought goods or services from an organisation, they are allowed to use email marketing to tell you about similar goods and services that you might be interested in (until you tell them to stop, then they can’t any more). This means that where the soft-opt in applies, you can send people email marketing without their prior consent (it’s a bit more complicated to that, but this isn’t a PECR masterclass – more info here if you’re interested)

However, PECR doesn’t cancel out DPA or contradict it, or over-ride it. You must comply with both. And this means that any company relying on the soft-opt-in to send email marketing via MailChimp is almost certainly in breach of the Data Protection Act unless they at the time they collect your email address have very clearly a) stated that they will use it for email marketing purposes and b) obtained your permission to pass it to MailChimp to use for a whole bunch of other stuff. Ever seen anything like that? Nope, me neither. Fail No. 4

So how come this is so widespread and no-one has sounded the alarm. Well, based on my observations, here are some reasons:

  1. No-one reads terms and conditions unless they are corporate lawyers. Even if tTs and Cs were read and alarm bells were rung, chances are that the Marketing department or CEO will have a different idea of risk appetite and insist on going ahead with the shiny (but potentially unlawful) option anyway.
  2. By and large, very few organisations in the UK actually ‘get’ the Data Protection Act and their responsibilities under it. They also don’t really want to pay for DP expertise either, since it will undoubtably open a can of worms that will cost money to fix and cause extra work for everyone. Much easier to take the ostrich approach and rely on the fact that….
  3. …the vast majority of UK citizens don’t understand or care about data protection either. Sometimes there is a gleam of interest when the word “compensation” pops up, but mostly they see it as a hurdle to be sneaked around rather than a leash on a snarling mongoose. Every now and again there is a spurt of outrage as another major breach is uncovered, but these are so common that “breach fatigue” has set in.
  4. Data-trading makes money, and ripping off people’s data/spying on them without giving them a choice/share of the cut/chance to behave differently makes more money than acting fairly and ethically.
  5. Fundamental cultural differences between the US and the EU’s approach to privacy. If you read this blog post by MailChimp’s General Counsel/Chief Privacy Officer, the focus is mostly on data security and disclosure to law enforcement. There’s little about the impact on personal autonomy, freedom of action or principles of fairness that EU privacy law is based on. Perhaps that’s because most of that stuff in in the US Constitution and doesn’t need restating in privacy law. Maybe it’s because the EU has had a different experience of what happens when privacy is eroded. Maybe he ran out of time/steam/coffee before getting into all that.

Anyway, if you got this far, thanks for reading – I hope there’s food for thought there. I’m not advocating that anyone boycott MailChimp or anything like that – but if you’re gonna use them, you should consult a data protection expert to find out how to protect a) your organisation b) your customers and c) the rest of us.

Right, back to web design research it is……

 

How To Not Be An Arse

(a.k.a the futility of compliance-for-the-sake-of-it programmes)

Imagine there was a law* that says “don’t be an arse to other people” which contains a list of 8 general requirements for avoiding arse-ness, including (among others) “be fair”, “be honest”, “don’t be reckless or negligent” and “don’t deny people their rights”.

Then hundreds of thousands of hours, billions of beer tokens and litres of sweat from the brows of assorted lawyers and auditors later; there were produced a number of standards and frameworks, guidance documents and checklists for helping everyone to ensure that whatever they’re doing, they’re avoiding being an arse.

At which point, everyone’s efforts get directed towards finding some technical way to acquire a clean, shiny glowing halo; ticking all of the boxes on the checklists, generating reams of ‘compliance’ paperwork, churning out Arse Avoidance Policies…….but actually ending up as almost *twice* as much of an arse because despite all of the shouting and scribbling and hymn-singing, what they are actually doing on a day to day basis looks remarkably arse-like (despite being called a “Posterior-Located Seating and Excretion Solution”; not the same thing at all) – since as it turns out, arsing around is lucrative and being well-behaved is not so much.

And then the questions is no longer “how do we avoid being arses” or even “what do we need to do to make sure we are not accidentally not arses?” but becomes “what is the bare** minimum we have to do in order not to appear to be arses?”

And that becomes the standard that (nearly) everyone decides to work to, writing long, jargon-filled statements explaining “why we are definitely not arses at all”, insisting that you must all complete a mandatory, dry-as-dust, uninformative half-hour “Anti Arse” e-learning module once a year (and calling it a “training programme” – hah!), hiring armies of lawyers to define the boundaries of “arse” and generally forgetting what it was that the law was trying to achieve in the first place. All of that costs quite a lot of money and – surprise surprise – doesn’t actually fulfill the intent of the law in the first place.

If you have to hide, obfuscate or misdirect from what you are really doing, then it’s quite likely that you are not achieving compliance with the law, no matter how much paperwork you generate or how shiny your halo looks.

It’s quite simple……just don’t be an arse.

 

(*in case you didn’t get it; that would be the Data Protection Act…..)

(**yes I had to get a ‘bare’ reference in there somewhere)

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