GDPR May 25th – Slow Down and Get it RIGHT!

If you hadn’t heard of the GDPR before the last month or so, you have now. You have all received at least one, and more likely dozens of emails from organisations with whom you have had some contact in the past. Most of whom you have probably forgotten about. e.g. I hadn’t used my Garmin account for over a decade but still received an email asking if wanted to ‘opt in’ to continue receiving its “many benefits”.

I wouldn’t mind so much, but every last one of these ‘calls for action’ is utterly, inexcusably, and embarrassingly wrong! Literally, not one that I have received has followed what amounts to a clear instructions from the many qualified sources available (i.e. ICO for the UK, Art. 29 WP for everyone else, numerous law firms etc.) on what to do.

Therefore both of the following are true:

  • The organisations looking for GDPR guidance had no idea what they were asking for from their ‘expert’ help, or whom to ask; and
  • The providers of the guidance had no clue what they were doing

I can also assume that no one in the respective organisations had actually read the GDPR, and the providers of guidance clearly learned just enough to fool all those who have remained clueless. Frankly these people deserve each other.

Here are some of my favourite vendor emails [paraphrased]:

  • “If you don’t respond to this email we will assume you want to keep receiving emails from us.”;
  • “Unless you read and sign our new terms and conditions we will cease all communication.”;
  • “Our database of customers’ email addresses, including yours, will be deleted.”
  • “If you don’t opt in to receive emails relevant to the services we provide you, we’ll stop sending them.”
  • “Our website is not available to any European member state…”

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GDPR: How Will ‘Representatives’ Work?

Even as a data protection novice, the GDPR makes sense to me. I get it. I may be partly wrong in some assumptions, but I am comfortable enough in my understanding of the intent of the Recitals and Articles to ask the right people the right questions.

All, that is, with the exception of Recital 80 / Article 27 – Representatives.

I understand the words, and think I even understand the intent, but I cannot even begin to fathom how it’s actually going to work in the real world. This blog is therefore aimed at those who do. I need your guidance please.

My English translation (i.e. not legalese) of Recital 80 is:

Any controller or processor not established in EU, but who:

1. offers goods or services (regardless of payment acceptance) to data subject in the EU; or
2. monitors the behaviour of data subjects within the boundaries of the EU.

…must designate a representative to act on their behalf who may be addressed by any supervisory authority. Unless the processing:

  • is occasional;
  • does not include processing on a large scale of special categories of personal data;
  • does not include processing of data relating to criminal convictions and offences;
  • is assessed as low risk; or
  • is performed by a public authority or body

The representative must be under a written mandate from the controller or processor to officially act on its behalf, as well as perform its services in full compliance with this Regulation, including cooperating directly with supervisory authorities.

The designated representative is subject to enforcement proceedings, however, the controller or processor is still fully liable as well.

So, if you accept that ‘occasional’ is much the same as ‘not part of an established and ongoing process’, then anyone doing business with the EU on a regular basis is pretty much in scope for the requirement.

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Make Money from GDPR

How to Make Lots of Money From GDPR

If you’re reading this, you likely fall into 1 of 3 camps:

  1. You are horrified at the concept and can’t wait to tear me a new one;
  2. You actually think I may be able to help you make lot of money; or
  3. You know me and realise that the title is nothing but click-bait

If 1., then good for you, I would do the same. If 2., then you’ve come to the wrong place unless you’re prepared to put in significant effort. If 3., then you’re right! 🙂

However, the fact is that there is a lot of money to be made in GDPR, but you only deserve it if you are providing true, long-term, benefit to your clients. Otherwise, kindly stay away. This goes for consultants and product vendors alike; do business with integrity, there’s simply no need to exploit those less knowledgeable. Unfortunately, the vast majority of people with whom I come into contact still haven’t even read it, leaving the door wide open for those intent on exploitation.

So where is this money I’m talking about? Where is it all going to come from? Simple, almost every organisation doing business in, and with the EU will have to make adjustments of some sort.  Some more than others if you’re following the whole Facebook scenario. There are some that think by ‘hiding’ the data overseas that they have avoided the issue, but these people are naive in the extreme.

GDPR, and the many regional variants around the globe represents a fundamental shift in the way the WORLD will be conducting business. This is no longer a matter for ‘corporate responsibility’, this is a law. And while countries like Russia, China and sadly the US may view things very differently …at the moment, the writing is on the wall. Things are changing and they cannot change back.

But back the actual point of this blog…

Take my example, I am [at a stretch] a security ‘professional’, and therefore have a part to play in the implementation and ongoing maintenance of a data protection program. So does HR, and Legal, and Sales, and Marketing, and IT, and Operations, and…  you get the point. You do NOT have to be a data protection expert to play an equal part in a GDPR program. However, you DO have to have at least a foundation in data protection if you want to put your existing skills into the appropriate context/spotlight.

I can help you find your data, and map your data to business processes. I can also help you cover all of Article 32. With my ever expanding foundation in data protection I can now help translate this information to the real experts who make the legal decisions. And because I can somewhat speak their lingo, I can also translate their decisions back to those who not only have to put them into effect, they have to live and breathe them every day performing their actual day jobs. But that’s ALL I can do; i.e. the things I’ve been doing for 20 years but wrapped in a new context. A new language for the same skill-set.

One of the biggest misunderstandings in the whole process is that it’s the data protection experts that have the final say, it’s really not, the individual experts in their fields do. HR, Sales, Marketing, IT, IT Security, you name it will dictate the appropriate solutions in-line with the goals, just as long as those solutions support the defined legal bases. It’s like me telling you to go home. There are many ways to get there, the HOW is up to you, and I have to assume that you know the best way.

Too many people are taking these GDPR foundation and practitioner courses to take advantage of this tremendous opportunity, but instead of using this knowledge to enhance the role they already play, they put themselves in the primary position of data protection experts. You only have to look at their LinkedIn profiles to see this nonsense at play. They have 10 years of experience in security, or IT, or whatever, took the GDPR Practitioner course 6 months ago, now they have “Data Protection” and/or “GDPR” in their Headline.

To make things worse, employers are starting to put GDPR Practitioner as a prerequisite for employment! This is the height of stupidity and no different from requiring Security + certification for a position as CISO. This spectacular ignorance is only making things worse by lending credence to an acronym. There are no shortcuts to the knowledge you need to play an important role in a GDPR implementation, so a 4 day course is the VERY beginning and no more.

By all means, go and get certified, but stick to what you know, THAT’S where the real money is. Try to be something you’re not and you will likely fail. Rightly so. The fact is that the data protection bandwagon has many more years to roll, as not only is May 25th NOT a deadline, but the true nature of GDPR’s impact won’t be felt for some time. Case law / precedent will be slow in maturing with regard representatives, lead supervisory authorities, and a plethora of other things, so no one has missed the opportunity.

Data protection will now be an intrinsic part in almost everyone’s day job, it will be those who can blend the two that will reap the rewards. Don’t be a #gdprcharlatan, because you will be found out …eventually.

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GDPR Step-by-Step - Operationalise

GDPR Compliance Step-by-Step: Part 6 – Operationalise

This is the final part in my GDPR Step-by-Step series, and one that, in my cynicism, I see very few organisations even trying to attempt. I have lost count of the number of companies with whom I have tried to implement a continuous compliance program, only to have them stop once they received their initial ‘certification’. In this respect, GDPR will be no different from something like PCI.

But for GDPR, if you don’t  build the necessary knowledge / processes into everyone’s day jobs, your compliance program will falter. While data protection and privacy are everyone’s responsibility, they cannot, and will not be at the forefront of everyone’s mind as they work through an ordinary day.

There are some who are convinced that you can ‘operationalise’ the entirety of GDPR with ISO 27001. This is, of course, nonsense. However, the concept is perfectly valid in that ISO 27001’s goals are to:

  • Systematically examine the organisation’s information security risks, taking account of the threats, vulnerabilities, and impacts;
  • Design and implement a comprehensive suite of information security controls and/or other forms of risk treatment;
  • Adopt an overarching management process to ensure that the information security controls continue to meet the organisation’s information security needs

So why can’t you just replace “information security controls” with “data protection controls”? Because the entirety of ISO 27001 covers only 1 of 99 Articles in GDPR (Article 32), the rest of the Articles cover aspects of data protection that the ISO standard was never designed to encompass. Nor should it try.

That said, a lot can be learned about how to adopt GDPR’s “appropriate technical and organisational measures” by bridging them with the ISO concepts. As partially demonstrated by this white paper from IAPP and OneTrust; Bridging ISO 27001 to GDPR (my thanks to Gabriel Avigdor for bringing this to my attention).

In the end though, to operationalise GDPR you will be implementing some new concepts [to you anyway], as well as taking existing concepts to a whole new level. Still simple, and still bloody difficult, especially without appropriately qualified expertise.

Things to operationalise:

  1. Senior Leadership Commitment: Leadership commitment to cybersecurity is one thing, but GDPR has the potential to significantly impact the way an organisation performs its core function(s). The commitment from the CEO/BoD has to pay a lot more than lip service, data protection needs to be built into the company’s values and goals. They need to live and breathe this stuff or no-one else will;
  2. Governance: GDPR is the perfect program to put in the hands of governance. What other function in the organisation has both the support from senior management AND representation from all departmental verticals?;
  3. Employee On-Boarding: Lost count of the number of times I’ve harped on about this one. Go here if you want more, just add ‘data protection’ to the list of subjects HR could help address; Human Resources, the Missing Piece From Every Security Program;
  4. Employee Awareness & Training: As stated above, data protection is everyone’s responsibility, so every employee MUST receive training appropriate to their role within the organisation;
    oprovacy law
  5. Policies, Standards & Procedures: Data protection adds a whole raft of ‘paperwork’ to any organisation. Without appropriate document management, these will not keep up with the changing face of privacy law. In this respect, data protection is no difference from cybersecurity, as without your ‘paperwork’ in place you will never be compliant with anything;
  6. Risk Management: This is almost identical to the risk management performed for cybersecurity and IT; 1) measure your risk, 2) determine whether your current controls meet the risk, 3) if yes, do nothing, if no, remediate the gap(s), 4) repeat. Of course there are differences, in that a normal risk assessment will not cover the requirements of a Data Protection Impact Assessment (DPIA), but the process is VERY similar and will likely involve much the same people;
  7. Asset Management: Core to cybersecurity, and core to data protection. You cannot manage what you don’t know you have. However, while cybersecurity cares about the security controls you have in place around the data assets, data protection cares about what you’re doing with the data. This takes asset management to a whole new level, a level you have no hope of achieving if you can’t manage your data life cycle;
  8. Vendor Due Diligence: While you could almost get away from not doing this well for ‘just’ security, under GDPR your third parties must ALL be held to much higher standards. There is little room for error in both contracts and ongoing service monitoring, as you could well end up 100% liable for their failings. Controller/Processor relationships are critical;
  9. Incident Response / Breach Management: Like vendor due diligence, organisations are very lazy about getting incident response right. Not under GDPR, there will be very few excuses supervisory authorities will accept if you cannot, as a controller, report a breach after 72 hours of being notified. You will need a very good REASON;
  10. Record Keeping: Unless your organisation has fewer than 250 employees AND your processing of personal data is ‘occasional’, you will need to keep a record of your processing activities. For most this will be a manual process on a spreadsheet, but that does not mean it should not be assigned ownership and warrant frequent review at senior level.

There are literally dozens of other things that need to be addressed, but I think these are the big ones. It’s actually quite scary how similar these are to security. Which perhaps explains why security people get cornered with this stuff so frequently. But while there are definite similarities, even parallels, the differences are profound and must be addressed by the appropriate skill-set.

If you only get one take-away from this GDPR Step-by-Step series, I hope it’s this; There is nothing new here. In some way, shape, or form, EVERYTHING required of you for GDPR has been done before, and there are a many people out there who have done it.

All you have to do is a little homework…

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GDPR Step-by-Step - Documentation

GDPR Compliance Step-by-Step: Part 5 – Documentation

As a consultant there’s nothing I like more sitting around a table with a bunch of really smart people simplifying complex issues and guiding them towards an appropriate and effective security program.

Then someone has to go spoil the ride by saying; “That sounds great David, when can we expect the report?” [sob] 

‘Documentation’ really should be a 4-letter word.

But with the GDPR, you have no choice. Documentation is your evidence of compliance. Even if you’re lucky enough not to have to maintain ‘records of processing activities’ (see Article 30(5)), you still have to document everything else, even WHY you don’t think you have to maintain records.

The word “appropriate” appears 115 times in the GDPR final text, and “reasonable” a further 23 times. That’s 138 times in one regulation that YOU have to make a determination of whether or not what you’re doing meets the grade. Lawyers can turn to precedent to agree what’s reasonable, where can WE turn to agree not only what’s appropriate, but to justify it?!

Here’s where the concept of Risk Management comes in, because like it or not, you WILL be taking a risk-based approach to GDPR compliance. And the one thing that risk management demands; documentation.

Note: The following is at a very high level, not comprehensive, and not representative of every organisation’s needs.

First, you will need policies. Not just the information security policies that I usually focus on, but policies that cover all relevant aspects of data protection. You will need policies on things like:

  • General Data Protection / Privacy
  • Employee Privacy
  • Third Party / Third Country Transfers
  • Data Subject Rights
  • Engagement of Processors
  • …and so on.

There are [of course] a bunch of vendors out there promising to provide every document you’ll ever need for £XX+VAT. But NONE of these #gdprcharlatans can provide the appropriate context that only comes from working with a person who knows that the Hell they are doing. These cannot just be paperwork, they must reflect your commitment to data protection by design and default, and the way you do business.

Second, you’ll need a documented record of what data you have a what you’re doing with it, but you should have taken care of this in your data discovery and business process mappings performed in Parts 2 and 3 of this series.

Third, all of your lawful bases for processing and corresponding data subject rights determined at Part 4 should be clearly articulated. Each will have its own idiosyncrasies:

  • Consent – corresponding privacy notices in clear and plain language, no ‘bundling’ of conditions etc;
  • Contractual – employee contracts, client contracts, data transfer agreements and so on;
  • Legal – [I’ll let a lawyer supply samples here];
  • Vital Interest – If lives are at stake you’d BETTER have a lawyer helping you out!;
  • Public Interest – Assuming you’re a public body, you should already have appropriate representation; and
  • Legitimate Interest – you will need to be VERY clear on how your ‘commercial’ interests are not “overridden by the interests or fundamental rights and freedoms of the data subject“.

Fourth, you will need to document all of your security controls in place around the personal data, as well as the risk assessment results that show that the controls meet the defined risk(s). Do not even THINK about showing a supervisory authority your PCI Attestation of Compliance, but a properly scoped ISO 27001 certificate would likely go a long way.

Finally, and if applicable, you will need to document your ‘records of processing activities’. Article 30(5) states; “The obligations referred to in paragraphs 1 and 2 shall not apply to an enterprise or an organisation employing fewer than 250 persons unless the processing it carries out is likely to result in a risk to the rights and freedoms of data subjects, the processing is not occasional, or the processing includes special categories of data as referred to in Article 9(1) or personal data relating to criminal convictions and offences referred to in Article 10.

So most of us can probably avoid the ‘high risk’ and ‘special category’ caveats, but ‘not occasional’? While ‘occasional’ is hard to define (like reasonable and appropriate), if you are processing personal data as part of a defined business process, it is unlikely that you will get away with saying “it’s only once a month” (for example).

That said, the requirement for maintaining record are not THAT onerous, unless you have hundreds of separate processes. They should also be made very clear by your supervisory authority. The UK’s ICO for example has even provided two templates, one for controllers and one for processors (near the bottom of the page).

I know this sounds like a lot, but with the exception of the lawful bases and records, you should already have the rest of this. If you don’t, not only will next week’s GDPR Step-by-Step be impossible, so will GDPR compliance.

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