Representative

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

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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.

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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

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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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FUD

Do Not Hire Companies Using GDPR Fines as a Sales Tactic

Taking a week’s break from my Step-by-Step series in order to have one final rant [I promise] about the use of GDPR fines/penalties in marketing material. Hopefully this third attempt will sort the problem out once and for all, I DO have 400 followers after all.

In my business, I am advising everyone who will listen to not do business with ANY organisation using fear, uncertainty and doubt (FUD) as a tactic to sell. If they were offering decent services they would not have to resort to such unprofessional and unethical practices.

If you or your organisation use these tactics then you are everything wrong with the industry and I can only hope you fail. I will using the hashtag #gdprcharlatans to draw attention to more egregious lies. But if you fall for these tactics then frankly you deserve it, because you have not done your homework.

For anyone watching the industry closely, it is clear that GDPR represents a fundamental shift in how data protection is going to be addressed globally. So while the fines/penalties may be a stick to help keep things moving in the right direction, they will NEVER be anything other than “effective, proportionate and dissuasive” (Article 83(1)). This is not a do-it-once compliance project for May 25th, this is slow and steady integration of a human right into the way we do business. Permanently. Fines are not the important part.

I hereby predict that you will never see an organisation go out of business because of a fine, it will be because they were stopped from processing for egregiously breaking the rules. In other words they will deserve it.

Here is my reasoning (borrowed yet again from previous blogs):

  1. The maximum fine for ANY infringement, no matter how egregious, is 4% of the annual revenue from the previous year (in the case of an undertaking), it can be assumed therefore that 4% is what the EU considers the maximum for any fine. Therefore, a fine of €20,000,000 (Art. 83(5)) would be reserved for any individual organisation with revenue over €500,000,000 annually. Yes, that’s 1/2 a BILLION.
    o
  2. It must also follow that if 4% is the maximum, then fines will go down the less egregious the offence. Everything you need to determine the level of ‘egregiousness’ in an offence is contained in the 11 lines of Article 83(2)(a) – (k). With words like ‘intentional’, ‘negligent’, ‘degree’, and ‘manner’, it’s clear that there is a significant amount of information to be taken into account long before a fine is even considered. A fine, IF levied, will be carefully considered and FAIR.
    o
    e.g. For Art. 83(2)(b) – “the intentional or negligent character of the infringement” consider the answers to the following questions:
    o
    * To what degree are the lawful bases for processing for all business processes supported by legal review and approval?
    * Was senior management aware of the organisation’s risk exposure?
    * Did senior management ignore, or actively suppress recommendations to correct processing?
    o
    Would you fine an organisation doing its very best and has established Board-level accountability the same as one that couldn’t care less?
    o
  3. Fines simply don’t fix the cause of the breach, and supervisory authorities KNOW that. For any breach there will be remediation and potentially reparation required, often at significant cost. So unless a breach was truly intentional or negligent, why would a supervisory authority fine an organisation for a mistake as opposed to allowing them to use what money they have left to fix the underlying issues?

To try and put all of this into a more demonstrable format, I have developed a GDPR Fine Calculator designed to do the following:

  1. Determine the level of fine for which you are potentially liable – Art. 83(4) and (5) break down, by reference to 50 other Articles/sub-Articles, which infringements incur which penalties (2% and 4% respectively). Just answer the 50 questions on the ‘Breach Questionnaire’ tab to determine which applies to you (Note: If even 1 answer is 4%, that’s what applies);
    o
  2. Estimate the fine for which you would be liable based on the ‘egregiousness’ of the offence – Whichever fine structure you fall under based on the results of the breach questionnaire, go fill it out. Enter your organisational status (undertaking or not) and your annual revenue (in €), then answer all the questions predicated on the 11 “conditions for imposing administrative fines“.

I think you will find that unless you are unbelievably crap at absolutely everything, your fines should not be anywhere near the infamous €20M mark.

This is not to say you shouldn’t worry about fines, because if you are in fact crap OR you’re still doing absolutely nothing towards GDPR compliance, and you are breached, you will deserve every fine you get.

Please Note: The fine calculator has absolutely nothing to do with any official ‘body’, known fact, or even direct experience, it’s based entirely on my opinion and hopefully a little common sense.

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