Ransomware attack leads to £98k ICO fine

March 2022

Solicitors firm failed to implement ‘adequate technical and organisational measures’

Are you using Multi-Factor Authentication? Are patch updates installed promptly? Do you encrypt sensitive data?

Reports of cyber security incidents in the UK rose 20% in the last 6 months of 2021.

These figures from the ICO, combined with the heightened threat in the current climate, provide a stark warning to be alert.

The ICO says; “The attacks are becoming increasingly damaging and this trend is likely to continue. Malicious and criminal actors are finding new ways to pressure organisations to pay.”

Against this backdrop the ICO has issued a fine to Solicitors’ firm following a ransomware attack in 2020.

The organisation affected was Tuckers Solicitors LLP (“Tuckers”) which is described on its website as the UK’s leading criminal defence lawyers, specialising in criminal law, civil liberties and regulatory proceedings.

While each organisation will face varying risks, this case highlights some important points for us all.

Here’s a summary of what happened, the key findings and the steps we can all take. For increasing numbers of organisations this case will unfortunately sound all too familiar.

What happened?

On 24 August 2020 Tuckers realised parts of its IT system had become unavailable. Shortly after IT discovered a ransomware note.

  • Within 24 hours it was established the incident was a personal data breach and it was reported to the ICO.
  • The attacker, once inside Tuckers’ network, installed various tools which allowed for the creation of a user account. This account was used to encrypt a significant volume of data on an archive server within the network.
  • The attack led to the encryption of more than 900,000 files of which over 24,000 related to ‘court bundles’.
  • 60 of these bundles were exfiltrated by the attacker and released on the ‘dark web’. These compromised files included both personal data and special category data.
  • The attacker’s actions impacted on the archive server and backups. Processing on other services and systems were not affected.
  • By 7 September 2020, Tuckers updated the ICO to say the servers had been moved to a new environment and the business was operating as normal. The compromised data was effectively permanently lost, however material was still available in management system unaffected by the attack.
  • Tuckers notified all but seven of the parties identifiable within the 60 court bundles which had been released, who they did not have contact details for.

Neither Tuckers, nor third party investigators, were able to determine conclusively how the attacker was able to access the network in the first place. However, evidence was found of a known system vulnerability which could have been used to either access the network or further exploit areas of Tuckers once in side the network.

What data was exfiltrated?

The data released on the ‘dark web’ included:

  • Basic identifiers
  • Health data
  • Economic and financial data
  • Criminal convictions
  • Data revealing racial or ethnic origin

This included medical files, witness statements and alleged crimes. It also related to ongoing criminal court and civil proceedings.

Tuckers explained to the Regulator, based on its understanding, the personal data breach had not had any impact on the conduct or outcome of relevant proceedings.

However, the highly sensitive nature of the data involved increased the risk and potential adverse impact on those affected.

Four key takeaways

The ICO makes it clear in its enforcement notice that primary culpability for the incident rests with the attacker. But clear infringements by Tuckers were found.

The Regulator says a lack of sufficient technical and organisation measures gave the attacker a weakness to exploit.

Takeaways from this case:

1) Multi-Factor Authentication (MFA)

Tuckers’ GDPR and Data Protection Policy required two-factor authentication, where available. It was found that Multi-Factor Authentication (MFA) was not used for its ‘remote access solution’.

The ICO says the use of MFA is a relatively low-cost preventative measure which Tuckers should have implemented.

The Regulator concluded the lack of MFA created a substantial risk of personal data on Tuckers’ systems being exposed to consequences such as this attack.

Takeaway: If you currently don’t use MFA, now would be a good time to implement it.

2) Patch management

The case reveals a high-risk security patch was installed in June 2020, more than FOUR months after its release.

The ICO accepts the attacker could have exploited this vulnerability during the un-patched period.

Considering the highly sensitive nature of the personal data Tuckers were handling, the Regulator concludes they should not have been doing so in an infrastructure containing known critical vulnerabilities. In other words the patch should have been installed much sooner.

Takeaway: Make sure patches are installed promptly, especially where data is sensitive.

3) Encryption

During the investigation Tuckers informed the ICO the firm had not used encryption to protect data on the affected archived server.

While the Regulator accepts this may not have prevented the ransomware attack itself, it believes it would have mitigated some of the risks posed to the affected individuals.

Takeaway: There are free, open-source encryption solutions are available. Alternatively more sophisticated paid for solutions are available for those handling more sensitive data.

Also it’s worth checking you’re adequately protecting archives to the same standard as other systems.

4) Retention

The enforcement notice reveals some ‘court bundles’ affected in the attack were being stored beyond the set 7-year retention period.

Takeaway: This again exposes a common issue for many organisations. Too often data is held longer than is necessary, which can increase the scale & impact of a data breach.

Our comprehensive Data Retention Guidance is packed with useful tools, templates and advice on tackling how long you keep personal data for.

What else can organisations do?

Clearly, we can’t be complacent and shouldn’t cut corners. We need to take all appropriate steps to protect personal data and avoid common pitfalls. Here are some useful resources to help you:

  • Cyber Essentials – The enforcement action notes that prior to the attack Tuckers was aware its security was not at the level of the NCSC Cyber Essentials. In October 2019, it was assessed against the ‘Cyber Essentials’ criteria and failed to meet crucial aspects of its requirements.

Cyber Essentials was launched in 2014 and is an information security assurance scheme operated by the National Cyber Security Centre. It helps to make sure you have the basis controls in place to protect networks/systems from threats.

Cyber Essentials – gain peace of mind with your information security
National Cyber Security Centre

  • ICO Ransomware guidance – The ICO has recently published guidance which covers security policies, access controls, vulnerability management, detection capabilities and much more.
  • DPN Data Breach Guide – Our practical guide covers how to be prepared, how to assess the risk and how to decide whether a breach should be reported or not.

You can read the full details of this case here: ICO Enforcement Action – Tuckers Solicitors LLP

As a data protection consultant since 2015, Philippa advises a broad range of clients and delivers data protection training. She regularly writes GDPR guidance to support privacy teams in their day-to-day work.

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The information provided and opinions expressed in our content represent the views of the Data Protection Network and our contributors. They do not constitute legal advice.

Data Breach Guide

How to handle a data breach

Our practical, easy-to-read guide takes you through how to be prepared for a breach, and how to assess the risks should you suffer a personal data breach.

Data breach guide from the data protection consultancy DPN - Data Protection Network

This data breach guide covers:

  • Common causes of breaches
  • Data incident and breach planning
  • How to assess the risks
  • Breach reporting checklists
  • How technology can help
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The information provided and opinions expressed in our content represent the views of the Data Protection Network and our contributors. They do not constitute legal advice.

Managing data transfers from the UK

February 2022

The new International Data Transfer Agreement (IDTA) and Addendum is a sensible evolution of the old SCCs

International Data Transfers – to recap

Whenever UK-based organisations arrange the transfer of personal data to a third country outside the UK, they need to make sure the transfers are lawful, by confirming the data security and rights of individuals remain protected when data leaves the country.

Since the famous “Schrems II” ruling by the European Court of Justice in 2020, this activity has been thrown into disarray. To remind you, this is the ruling which invalidated the EU-US Privacy Shield and raised concerns about the use of EU Standard Contractual Clauses (SCCs) to protect the data. 

Soon after, the European Commission set to work to update the EU SCCs. These were drafted and enacted fairly swiftly taking effect on 27th June 2021. 

What are the new EU SCCs?

The new EU SCCs were expanded to introduce more flexible scenarios: 

  • SCCs are now modular meaning that they can accommodate different scenarios, where you can pick the parts which relate to your particular situation.
  • The SCCs cover four different transfer scenarios, including processors:
    • Controller to controller
    • Controller to processor
    • Processor to controller
    • Processor to processor
  • More than two parties can accede to the SCCs, meaning additional controllers and processors can be added through the lifetime of the contract. This potentially reduces the administrative burden.

How did this affect the UK? 

On 28th June the UK’s adequacy decision was adopted.  On September 27th 2021, the prior version of the SCCs expired. 

In our webinar last year, it was obvious that everyone was confused. The situation caused by the “Schrems” ruling was compounded by the fact that Brexit had been completed. This meant we could no longer apply the SCCs approved in Europe. The UK needed its own SCCs, but they did not exist. 

The ICO consultation

From August to October 2021, the ICO conducted a consultation to understand how a UK version of these rules should be enacted. Since we had been granted an adequacy agreement by the EU, we all hoped it would be possible to mirror the SCCs arrangements in UK law thus re-instating the means by which we can lawfully export data to places such as the US. 

Anecdotally the resounding view was not to mess with the principles enshrined in the EU SCCs as it would simply add complexity to an already complex situation.

The ICO conclusion

In January, the ICO published the International Data Transfer Agreement (IDTA) and the International Data Transfer Addendum to the EU Commission Standard Contractual Clauses. To the layperson, the EU’s standards have been adopted. 

What’s included in the Agreement and Addendum? 

    1. The International Data Transfer Agreement (IDTA) replaces the old EU SCCs which were relied upon to provide the appropriate safeguards required under the UK GDPR for international data transfers from the UK. There are differences to the new EU SCCs – it is a single all-encompassing agreement that incorporates all the scenarios identified in EU SCCs. One can omit sections and there is no requirement for it to be signed. This is most useful for those creating new data transfer agreements.
    2. The UK Addendum is a far simpler document. It is an addendum to the EU SCCs where references to EU laws are replaced by references to UK laws. It allows businesses to use the EU SCCs for international data transfers from the EU but also from the UK. These are useful for those already using the EU SCCs who want a simple addendum to update the legal context. 

When does this come into force?

The IDTA was laid before Parliament on 2nd February 2022. It comes into force on 21st March if there are no objections. To all intents and purposes, it’s in force now. The Information Commissioner Office (ICO) has stated the IDTA and UK Addendum:

“are immediately of use to organisations transferring personal data outside of the UK, subject to the caveat that they come into force on 21 March 2022 and are awaiting Parliamentary approval“.

What does this all mean?

In practice, UK businesses can breathe a sigh of relief and get on with their lives. There is clarity at last. Existing agreements need to be updated with the UK Addendum and new ones can be put in place with the International Data Transfer Agreement. There will be an administrative burden, but businesses now know what they need to do.  Good sense has prevailed. 

 

Julia is an experienced data protection consultant and has been advising businesses since 2016. She regularly delivers GDPR training as well as developing bespoke GDPR guidance for our clients.

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The information provided and opinions expressed in our content represent the views of the Data Protection Network and our contributors. They do not constitute legal advice.

How to get buy-in for DPIAs

February 2022

How do we get people engaged with Data Protection Impact Assessments?

DPIAs often get a bad rap. Privacy people often say their project managers and team leaders don’t understand and don’t like them.  They’re too onerous, they get started but often linger incomplete.

So, how do you get people in the business to understand and play along?

Let’s be clear – risk assessments (and a DPIA is one of these) can be one of the most useful tools in your data protection toolkit. Used properly, they can really help identify, assess and tackle risks before they even see the light of day.

When should you carry out a DPIA?

Just to recap we know we need to conduct DPIAs where our projects, initiatives, system changes and so on, are likely to represent a high risk to those whose data is involved. Note ‘high risk’. You’ll need to take account of the scope, type and manner of the proposed processing.

It’s not always easy to judge where this threshold falls, so some businesses end up carrying out far more DPIAs than needed, whilst others carry out too few. Fortunately the ICO have given examples of processing ‘likely to result in high risk’ to help you make this call.

Regulated sectors, such as financial services & telecoms, have more to think about and may adopt a cautious approach.

Engage with your teams

First rule of DPIA Club is… we MUST talk about it!

Build relationships with the people who ‘do new stuff’ with your data. The people who run development projects and the key stakeholders – such as heads of the main functions which process personal data across your business, e.g. Marketing, Operations, HR, etc. If you have a Procurement team, then target them too.

Ask what projects they have on the horizon. The aim is to make them aware of DPIA requirements and ask them to give you an early ‘heads up’ if they are looking to onboard a new service provider or indeed use data for an innovative new project.

Let them know tech projects and system migrations almost always involve some kind of personal data processing. They should be mindful of the potential for this to lead to privacy risks.

If they think about data protection from the outset it will save valuable time and money in the long run. Save unwelcome hiccups along the line. Give them examples of how things have gone wrong or could go wrong.

You could raise awareness across the business using your intranet, email reminders, posters, drop-in clinics … what ever it takes to get the message across.

A regular dialogue about upcoming technology projects, or using a DPIA screening form (or for larger businesses a technology ‘gating’ process) are good ways to get a heads up on new projects. These will help to quickly identify if a DPIA is needed or not.

Steve Priestly, Head of Data Protection (UK & MET), Travelex:

‘We place a key focus on highlighting to stakeholders of the benefits of early engagement in the DPIA process. Continual collaboration with your stakeholders is also key, understanding what they are trying to achieve. Lastly, ongoing DPIA education and awareness will help in the long-term to imbed a strong data privacy culture.’  

Use a good DPIA template

In my opinion too many businesses use complex and jargon-filled screening questionnaires and DPIA templates, which many people find hard to understand. They ask questions in ‘GDPR-talk’ which people find hard to grasp & answer and they often don’t really help people to identify what privacy risks actually look like.

Take a look at your DPIA template with fresh eyes. If you don’t like it use a better one, or adapt it to fit your business ways of working.

Be prepared for Agile working

So many development projects are Agile now and this requires adapting your approach. You won’t get all the answers you need at the start. Stay close to the project as it evolves and be ready to roll your DPIA in line with scheduled sprints or scrums, but before data migrates. DPIAs – How to assess projects in an Agile environment

DPIA approaches

It’s a good idea to keep tabs on how many data projects are in progress, how many lead to DPIAs and what the status of these is. This means you will know if you need to drum up more engagement or not.

Here are a couple of examples of the approaches taken by different businesses.

Use of technology tools

Stephen Baigrie, Managing Counsel, IT, Procurement & Privacy at Balfour Beatty:

“At Balfour Beatty we use an online privacy compliance platform to manage DPIAs and to enable early stakeholder engagement. We worked with our Group Data Protection Officer and Information Security team to formulate user-friendly assessment templates.

We use a pre-DPIA screening qualifier to help identify if a full DPIA is required and run a working group with Data Protection, Legal and Information Security stakeholders to track DPIAs and vendor due diligence matters.”

“Where appropriate, we adopt a self-service model for DPIA completion to help improve privacy awareness and seek to be agile by continuously improving and evolving our privacy processes.”

An integral part of the change governance process

Christopher Whitewood (CIPP/E, CIPM) Privacy & Data Protection Officer at Direct Line Group:]

“We have mandated that a risk assessment must be conducted as part of our change governance process. Our DPIA is included as part of a single online risk assessment form which allows for an early risk assessment by Privacy, Security and Business Continuity Teams.”

“A simple approach allows business areas to fill out one form with a layered question set to determine where further investigation is needed. The online form has been adapted to consider any data ethical concerns at an early stage, but also has the added bonus of the scored risk assessment to form the basis to drive assurance activity.”

So to conclude, I hope this has given you some fresh ideas how to engage with your colleagues about DPIAs. Good luck!

After a successful career in publishing Simon moved into data protection consultancy in 2015. Simon advises businesses of all sizes across a wide range of sectors. He held the role of Director of Information Governance at Royal Mail Group in the run up to GDPR enforcement. He regularly delivers data protection courses for clients and the Institute of Data & Marketing (IDM).

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The information provided and opinions expressed in our content represent the views of the Data Protection Network and our contributors. They do not constitute legal advice.

Managing Erasure Requests or DSARs via Third-Party Portals

January 2022

Do organisations have to honour them? Well, it depends…

Over the past few years GDPR, the California Consumer Privacy Act (CCPA) and other privacy regulations have led to specialist companies offering to submit Erasure or Data Subject Access Requests (DSARs) on behalf of consumers.

These online portals say they want to help people exercise their privacy rights, while enabling them to make requests to multiple organisations simultaneously.

Companies on the receiving end of such requests often receive them in volume, and not necessarily from consumers they even know. Requests can quote swathes of legislation, some of which may be relevant, some which won’t apply in your jurisdiction.

If you haven’t had any yet, you may soon. Companies like Mine, Privacy Bee, Delete Me, Revoke and Rightly all offer these services.

They don’t all operate in the same way, so be warned the devil is in the detail.

How third-party portals work

Okay, bear with me, as said there are different approaches. They may use one, or a combination of, the following elements:

  • Offer to simply submit requests on the individual’s behalf, then the consumer engages directly with each organisation
  • Offer people the opportunity to upload their details and proof of ID, so the portal can submit requests on their behalf without the consumer needing to validate their ID each time.
  • Provide a bespoke link which organisations are invited to use to verify ID/authority. (Hmmm, we’re told not to click on links to unknown third parties, right?)
  • Allow consumers to select specific named organisations to submit requests too
  • Make suggestions for which organisations the individual might wish to ‘target’
  • Offer to scan the individual’s email in-box to then make suggestions about which organisations are likely to hold their personal data. (Again, really? Would you knowingly let any third-party scan your in-box?).

Is this a good thing? Does it empower the consumer?

On the surface, this all seems fairly positive for consumers, making it simpler and quicker to exercise their privacy rights.

For organisations, these portals could be seen as providing an easier way of dealing with rights requests in one place. Providing perhaps, a more secure way of sharing personal data, for example in responding to a DSAR.

I would, however, urge anyone using these portals to read the small print, and any organisation in receipt of these requests to do their homework.

Why it’s not all straight-forward

The following tale from one DPO may sound familiar…

We tend to find these requests slightly frustrating and time-consuming. First, we have to log all requests for our audit trails. We cannot simply ignore the requests otherwise this can cause regulatory issues, not to mention if they are genuine requests.

More often than not, they are sent in batches and do not contain the information we require to search and make the correct suppression. Where we do have enough information to conduct searches, we often find the personal details do not exist on our database.

Another concern is whether the requests are actually for meant for us. We recently received a number of requests for a competitor, who was clearly named on the requests. When we tried to contact the portal to explain this issue, we did not get a response and were essentially ignored, which leaves us in a predicament – do we continue with the with the request, was it actually for our organisation or not?

So, there’s a problem. Requests might be submitted on behalf of consumers who organisations have never have engaged with. Requests can arrive with insufficient information. We can’t always verify people’s identity, or the portal’s authority to act on their behalf. In these circumstances, do people genuinely want us to fulfil their Erasure or Access request?

What does the ICO say about third-party portals?

The regulator does reference online portals in is Right of Access guidance. It tells us we should consider the following:

  • Can you verify the identity of the individual?
  • Are you satisfied the third-party has authority to act on their behalf?
  • Can you view the request without having to take proactive steps (e.g. paying a fee or signing up to a service)?

The ICO makes it clear it would not expect organisations to be obliged to take proactive steps to discover whether a DSAR has been made. Nor are you obliged to respond if you’re asked to pay a fee or sign up to a service.

The Regulator says it’s the portal’s responsibility to provide evidence of their authority to act on an individual’s behalf. If we have any concerns, we’re told to contact the individual directly.

If we can’t contact the individual, the guidance tells us we should contact the portal and advise them we will not respond to the request until we have the necessary information and authorisation.

This all takes time…

This is all very well, but for some organisations receiving multiple requests this is incredibly time-consuming.  Some organisations are receiving hundreds of these requests in a single hit, as Chris Field from Harte Hanks explains in – You’ve been SAR-bombed.

In addition, we need to do our research and understand how the portal operates, checking whether we believe they’re bone fide or not.

Another DPO, whose company receives around thirty privacy requests from third-party portals a month says; “Often these tools don’t provide anything more than very scanty info, so they all require responses and requests for more info”. This company takes the following approach; “We deal with the individual if it’s a legitimate contact detail, or we don’t engage.”

It really is a question of how much effort is reasonable and proportionate.

We must respect fundamental privacy rights, understand third-party portals may be trying to support this, but balance this with our duty to safeguard against fraud or mistakes.

As a data protection consultant since 2015, Philippa advises a broad range of clients and delivers data protection training. She regularly writes GDPR guidance to support privacy teams in their day-to-day work.

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The information provided and opinions expressed in our content represent the views of the Data Protection Network and our contributors. They do not constitute legal advice.

How to focus data protection training on specific teams

January 2022

Is your GDPR training giving your teams the specific skills they need for their roles?

In any organisation, your people can be your greatest asset. But also from a compliance point of view, they might be your greatest risk.

We need to support the people who manage personal data in our businesses, to help them understand relevant aspects of the law and how the business expects them to behave.

Organisations are obliged to implement appropriate organisational measures under GDPR – staff awareness and training is a key part of this. I’d argue we should also show them how manage personal data securely, responsibly and ethically.

The good news is the DPN’s Privacy Pulse Report shows the message around training and awareness has landed – with 80% of responders saying their business had delivered data protection training within the last 12 months and a further 13% within 2 years.

But is the quality, depth and relevance of this training good enough? Does the training really help people in their day-to-day roles?

Different jobs require different levels of knowledge. Not everyone needs to know when to conduct a DPIA, not everyone needs to know how to go about this. Clearly some team members need to know more about international transfers, DSARs, processor due diligence and so on.

The Report shows 81% provide generic online GDPR / data protection courses, whilst 61% deliver face-to-face or online training tailored to specific departments or job roles.

Just 20% provide in-depth workshops or masterclasses for key people and 13% provide some other form of training.

It’s clear quite innovative approaches are being taken to get key messages across, such as ‘privacy moments’ (e.g. bite-sized topical themes), regular internal bulletins, drop-in data surgeries or intranet content. The pandemic has to be considered when most training and awareness activity of late has been provided remotely.

What does good training look like?

The ICO Accountability Framework gives some useful checklists covering training expectations (including specialised roles), such as:

  • Detail training and skills requirements in job descriptions.
  • Keep evidence to confirm key roles complete up-to-date and appropriate specialised training and professional development, and are subject to proportionate refresher training.
  • Keep records of the training material provided, as well as details of who receives the training.

Data protection training will have limited value if it’s ‘one-size fits all’ and doesn’t drill down and support teams who need to know more detail for their specific roles.

The application of the core data protection principles will vary enormously – from Marketing to Operations, from HR to a Contact Centre.

For example, marketers usually need to understand more about consent and legitimate interests, the right to opt-out, what the law says about profiling, and so on. Whereas HR teams need to understand how data laws apply to recruitment and the many different data tasks which take place for employment purposes; such as appraisals and development, health & sickness data, diversity, employee communications, payroll… and so on.

Ideally training should be provided separately to different key teams and tailored to provide useful examples, user-journeys or case studies, based on the different privacy aspects people need to consider for their own role.

Focusing on key teams

Naturally this could all become very time consuming and costly, so a pragmatic balance needs be found between benefits and time.

It’s worth thinking about where the biggest risks lie in your business, so you can focus your time and effort on the key teams which have greater exposure to, and influence over data risk. This will clearly differ for each business.

Some may choose to focus on their Sales & Marketing teams. Others may look to their HR teams to cover employee and contractors’ data, and recruitment practices. Whilst others may focus on customer-facing teams or developer teams.

Data Subject Access Requests (DSARs) and other data rights are usually handled by nominated people, who may need specialist in-depth training about how to handle them.

You’ll need decide, if you haven’t already done so, which teams to focus your efforts on.

Remember inductions and refreshers

Many organisations will include generic data protection training as part of a new starter’s induction. If this can be tailored to their role, all the better!

It’s also important to remind people of the principles, or expand on their knowledge. If you haven’t provided any data protection training for a year or two… now would be a good time to consider some refresher courses. Compare this to industry CPD requirements, such as HR or Financial Services which require regular training and refreshers. It’s all part of being able to do your job effectively.

To sum up, making sure people have appropriate skills and knowledge is one of the best ways to reduce the chance of privacy risks being overlooked and coming back to bite you! They say, a chain is only as good as it’s weakest link.

Take the initiative – it’s worth spending the time to pass on your knowledge to others. And just like any successful communication, it’s far more effective when you put your audience front and centre and tailor the message just for them.

After a successful career in publishing Simon moved into data protection consultancy in 2015. Simon advises businesses of all sizes across a wide range of sectors. He held the role of Director of Information Governance at Royal Mail Group in the run up to GDPR enforcement. He regularly delivers data protection courses for clients and the Institute of Data & Marketing (IDM).

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The information provided and opinions expressed in our content represent the views of the Data Protection Network and our contributors. They do not constitute legal advice.

Are Data Subject Access Requests driving you crazy?

January 2022

Complicated. Costly. Time-consuming...

… And driving me crazy. We’ve all heard the dreaded words, right? I’d like a copy of my personal data.

Which led me to think; is the fundamental privacy right of accessing our personal data becoming part of our increasingly litigious culture? The DSAR is now a staple opening shot for law firms handling grievance claims or employment tribunals, looking for potentially incriminating morsels of information.

Of course, this right must be upheld, but is the process fit for purpose? Employee-related requests, in particular, can entail a massive amount of work and the potential for litigation makes them a risky and complex area.

For some organisations, this is water off a duck’s back; they’ve always had access requests, anticipated volume would increase after GDPR, have teams to handle them, invested in tech solutions, have access to lawyers and so on.

Great stuff, but please spare a thought for others.

Plenty of businesses have lower volumes of DSARs. They’re unable to justify, or afford, extra resources. These guys are struggling under a system that assumes one size fits all.

Then there are businesses who’ve never even had a DSAR. For them, just one request can be an administrative hand grenade.

Of course some businesses are guilty of treating employees badly, but I wish things could be different. It’s about getting the balance right, that most elusive of things when creating regulatory regimes. Are the principles behind the DSAR important? Of course. Can the processes be improved? Definitely!

So be warned – here begins a micro-rant on behalf of the smaller guys. I’m feeling their pain.

What’s that sound? It’s wailing and the gnashing of teeth

It’s clear in our Privacy Pulse Report DSARs are a significant challenge facing data protection professionals. One DPO told us;

“Vexatious requests can be very onerous. Controllers need broader scope for rejection and to refine down the scope, plus criteria for when they can charge… In my view, the ICO should focus on helping controllers to manage complex and vexatious DSARs.”

Some access requests are straightforward, especially routine requests where ‘normal’ procedures apply. However, some requests are made by angry customers or disgruntled ex-employees on a mission… and there’s no pleasing them. A troublesome minority appear to be submitting DSARs because they want to cause inconvenience because they’re angry, but don’t go so far as to fall under the ‘manifestly unfounded’ exemption.

Anyhow, for all those of you out there dealing with this stuff, know that I feel your pain. Without any further ado…

My THREE biggest DSAR bugbears (there are others)

Everything!

We’re entitled to a copy of ALL our personal data (to be clear, this doesn’t mean we’re entitled to full documents just because our name happens to appear on them somewhere).

It’s true organisations are allowed to ask for clarification, and the ICO’s Right of Access Guidance, provides some pointers on how to go about this.

Yet that tiny glimmer of hope is soon dashed – we’re told we shouldn’t seek clarification on a blanket basis. We should only seek it if it’s genuinely required AND we process a large amount of information about the individual.

Furthermore; “you cannot force an individual to narrow the scope of their request, as they are still entitled to ask for ‘all the information you hold’ about them.”

Why?

Let’s take the hypothetical (but realistic) case of an ex-employee who believes they’ve been unfairly dismissed. They worked for the company for 10 years, they submit a DSAR but choose not to play along with clarifying their request. They want everything over a decade of employment.

Do they really need this information? Or are they refusing to clarify on purpose? Is this a fair, proportionate ‘discovery process’? As I’ve said before, large organisations may be better placed absorb this, it’s the not-so-big ones who can really feel the pain. And in my experience, much personal data retrieved after hours of painstaking work isn’t relevant or significant at all.

Emails!

I get conflicted with the requirement to search for personal data within email communications and other messaging systems.

On the one hand we have the ICO’s guidance, which to summarise tells us:

  • personal data contained within emails is in scope (albeit I believe GDPR has been interpreted differently by other countries on this point);
  • you don’t have to provide every single email, just because someone’s name and email address appears on it;
  • context is important and we need to provide emails where the content relates to the individual (redacted as necessary).

If you don’t have a handy tech solution, this means trying to develop reasonable processes for retrieving emails, then eliminating those which won’t (or are highly unlikely) to have personal data within the content. This takes a lot of time.

Why am I conflicted? In running a search of your email systems for a person’s name and email address, you’ll inevitably retrieve a lot of personal data relating to others.

They might have written emails about sensitive or confidential matters, now caught within the retrieval process. Such content may then be reviewed by the people tasked with handling the request.

I suspect this process can negatively impact on wider employee privacy. Yes, we’re able to redact third party details, but by searching the emails in the first place, we’re delving into swathes of lots of people’s personal data.

It seems everyone else’s right to privacy is thrown out in the interests of fulfilling one person’s DSAR.

It also makes me wonder; if I write a comment that might be considered disparaging about someone in an email, do I have any right to this remaining private between me and the person I sent it to? (Even if it wasn’t marked confidential or done via official procedure).

I know many DPOs warn their staff not to write anything down, as it could form part of a DSAR. I know others who believe they’re justified in not disclosing personal data about the requester, if found in other people’s communications. Which approach is right?

Time!

Who decided it was a good idea to say DSARs had to be fulfilled within ‘one calendar month’?

It wasn’t! This phrase led to the ICO having to offer this ‘clarification’;

You should calculate the time limit from the day you receive the request, fee or other requested information (whether it is a working day or not) until the corresponding calendar date in the next month.

If this is not possible because the following month is shorter (and there is no corresponding calendar date), the date for response is the last day of the following month.

If the corresponding date falls on a weekend or a public holiday, you have until the next working day to respond.

This means that the exact number of days you have to comply with a request varies, depending on the month in which an individual makes the request.

For practical purposes, if a consistent number of days is required (e.g. for operational or system purposes), it may be helpful to adopt a 28-day period to ensure compliance is always within a calendar month.

I hope you got that.

Wouldn’t it have been easier to have a set number of days? And perhaps more realistic timescale?

Let’s take the hypothetical (but realistic) case; you receive a DSAR on 2nd December. You can’t justify an extension as it isn’t unduly complex.

Yes, I know you’re with me; bank holidays and staff leave suddenly means the deadline is horribly tight.

I wish there was specific number of days to respond. I wish they excluded national bank holidays and I wish there was a reprieve for religious festivals. I know, I’m dreaming.

DSARs and UK data reform

Is the UK Government going to try and address the challenges in their proposal to reform UK data protection law?

The consultation paper makes the right noises about the burden DSARs place on organisations, especially smaller businesses.

Suggestions include introducing a fee regime, similar to that within the Freedom of Information Act. One idea is a cost ceiling, while the threshold for responding could be amended. None of this is without challenges. There’s also a proposal to re-introduce a nominal fee.

On the latter point, GDPR removed the ability to charge a fee. You may recall prior to 2018 organisations could charge individuals £10 for a copy of their personal data.

Many will disagree, but I think the nominal fee is reasonable. I realise it could be seen a barrier to people on lower incomes exercising a fundamental right. However, my thoughts are organisations wouldn’t be forced to charge. It would be their choice. They would also be able to use their discretion by waiving the fee in certain situations.  It makes people stop and think; ‘do I really want this?’

Whatever transpires, I truly hope some practical changes can be made to support small and medium-sized businesses. Balancing those with individual rights isn’t easy, but that’s why our legislators are paid the big bucks.

And here, dear reader, endeth my rant!

As a data protection consultant since 2015, Philippa advises a broad range of clients and delivers data protection training. She regularly writes GDPR guidance to support privacy teams in their day-to-day work.

Copyright DPN
The information provided and opinions expressed in our content represent the views of the Data Protection Network and our contributors. They do not constitute legal advice.

Data breaches: when to notify Regulators and affected individuals

January 2022

European Data Protection Board (EDPB) publishes new case-based guidelines on data breach notifications

As we know, not all personal data breaches need to be reported to Supervisory Authorities, such as the UK’s Information Commissioner’s Office, nor indeed to affected individuals. It all depends on the nature of the incident and risk posed. This can be a tricky decision to make.

What the law says about notifying a data breach

UK GDPR tells us where a breach is unlikely to result in a risk to the rights and freedoms of individuals, it doesn’t need to be reported to the ICO. Furthermore, it tells us we should inform affected individuals only where it is likely to result in a high risk.

Assessing data breach risks

The key then, after establishing an incident involves personal data, is to assess the risk it poses to the people whose details are affected. This can sometimes be complex, and the law gives us a short timescale to make an assessment. As we know, personal data breaches which are likely to represent a risk to individuals need to be reported to the ICO (or other DPA) within 72 hours of becoming aware of the breach.

This leaves many to err on the side of caution; that’s to say they notify for fear of making the wrong decision.

Our Privacy Pulse Survey 2022 provides some interesting insight on the number of breaches organisations are experiencing, the volumes being reported to the ICO, and the numbers communicated to affected individuals.

Case studies to help our risk assessment

Helpfully, the EDPB has published new guidelines which provide some useful example. These are designed to be complementary to the previously published Guidelines on Personal data breach notification.

The types of scenarios covered include:

  • Ransomware
  • Exfiltration of data from websites
  • Data ‘stolen’ by an employee
  • Accidentally sending data to a trusted party
  • Lost or stolen devices and paper documents
  • Errors by postal mail
  • Social engineering

In each case a common scenario is posed, and we are taken through the decision-making process with the following sections:

  • ‘Prior measures and risk assessment’
  • ‘Mitigations and obligations’

It’s stressed the analyses provided relate explicitly to the specific cases under scrutiny. We’re clearly warned if our circumstances differ slightly, the risk posed will also differ.

I have picked out several examples (please note these have been summarised).

Accidental transmission to a trusted party

An insurance agent noticed that – made possible by the faulty settings of an Excel file received by e-mail – he was able to access information related to two dozen customers not belonging to his scope. He is bound by professional secrecy and was the sole recipient of the e-mail. The arrangement between the data controller and the insurance agent obliges the agent to signal a personal data breach without undue delay to the data controller. Therefore, the agent instantly signalled the mistake to the controller, who corrected the file and sent it out again, asking the agent to delete the former message. According to the above-mentioned arrangement the agent has to confirm the deletion in a written statement, which he did. The information gained includes no special categories of personal data, only contact data and data about the insurance itself (insurance type, amount). After analysing the personal data affected by the breach the data controller did not identify any special characteristics on the side of the individuals or the data controller that may affect the level of impact of the breach.

In this case, the combination of a low number of affected individuals, the immediate detection and the measures taken, leads to an assessment of ‘no risk’. In other words no obligation to notify a Supervisory Authority or individuals. The incident should, however, be logged internally.

Stolen device containing unencrypted data

The electronic notebook device of an employee of a service provider company was stolen. The stolen notebook contained names, surnames, sex, addresses and date of births of more than 100,000 customers. Due to the unavailability of the stolen device it was not possible to identify if other categories of personal data were also affected. The access to the notebook’s hard drive was not protected by any password. Personal data could be restored from daily backups available.

This is clearly a case where there’s an obligation to notify the Supervisory Authority and affected individuals. Other examples are given where devices where encrypted, which lead to a differing assessment of the risks posed and notification obligations.

Postal mail error

Two orders for shoes were packed by a retail company. Due to human error two packing bills were mixed up with the result that both products and the relevant packing bills were sent to the wrong person. This means that the two customers got each other’s orders, including the packing bills containing the personal data. After becoming aware of the breach the data controller recalled the orders and sent them to the right recipients. The bills contained the personal data required for a successful delivery (name, address, plus the item purchased and its price).

The EDPB says the controller should provide for a free return of the items and the accompanying bills, and should request the wrong recipients destroy / delete all copies of the bills containing the other person’s personal data.

In this specific set of circumstances, the assessment concludes the risk to be considered low. No special category data or other data is disclosed, which might lead to substantive negative effects on those involved. Therefore no obligation to notify to the Supervisory Authority nor affected individuals. Saying this, communication of the breach cannot be avoided with the individuals involved, as their cooperation is needed to mitigate the risk.

Ransomware attack with proper backup and without exfiltration

The computer systems of a small manufacturing company were exposed to a ransomware attack, and data stored in those systems was encrypted. The data controller used encryption at rest, so all data accessed by the ransomware was stored in encrypted form using a state-of-the-art encryption algorithm. The decryption key was not compromised in the attack, i.e. the attacker could neither access it nor use it indirectly. In consequence, the attacker only had access to encrypted personal data. In particular, neither the email system of the company, nor any client systems used to access it were affected…
…After analysing the logs and the data collected by the detection systems the company has deployed, an internal investigation supported by the external cybersecurity company determined with certainty that the perpetrator only encrypted data, without exfiltrating it.
A backup was readily available, and the data was restored a few hours after the attack took place.

The assessment reached in this scenario is the breach didn’t result in any consequences for the day-to-day operation of the manufacturing company, nor did it have any significant effect on the data subjects. Therefore, no obligation to notify the Supervisory Authority or communicate to individuals. The personal data breach should be internally logged.

There are further ransomware attack examples given, where the circumstances differ and notification would be required.

Our 7 key data breach takeaways

1. Develop a data breach plan and keep it under regular review
2. Assign a suitably knowledgeable data breach team (or have external experts on hand to support when required)
3. Have a methodology for assessing, evaluating and documenting risk (for example using a risk matrix)
4. Maintain a log of all personal data breaches, whether they’re judged notifiable or not
5. Keep a record of any justification for not notifying of a breach
6. Remember, a breach can be notified before all facts are known. A full assessment can run in parallel to notification and subsequent information learnt can be provided to the ICO (or other Supervisory Authority) in phases.
7. Training and awareness focused on data incident identification, expected actions and triage is essential for both controllers and processors.

In summary…

The EDPB case-based guidelines are another helpful tool to support organisations in their handling of data breaches, and factors to consider during the risk assessment process. The ICO also has detailed data breach guidance and has published some useful data breach examples.

As a data protection consultant since 2015, Philippa advises a broad range of clients and delivers data protection training. She regularly writes GDPR guidance to support privacy teams in their day-to-day work.

Copyright DPN
The information provided and opinions expressed in our content represent the views of the Data Protection Network and our contributors. They do not constitute legal advice.

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