Category: Regulatory Compliance

In [X]aaS, The Outsource of Everything I made fun of the trend to “…as a Service.” everything under the sun, and that eventually we would run out of letters. Well, that happened years ago, so we’re now doubling and tripling up on the letters. Data Subject Consent as a Service (DSCaaS) is my latest attempt in a long line of failures to coin an acronym.

It’s every security professional’s dream.

And yes, Privacy Consent as a Service (PCaaS) would have been better, but that was taken by those damned Personal Computers!

Regardless of what it’s called, I believe the service is not only viable, it’s basically a necessity. 99% of organisations simply do not have the skill-sets, knowledge, or technical capability to manage the collection and management of consent. Especially in a fashion that has been vetted by privacy experts and kept up to date with EU-wide precedent.

Not that consent will be an organisation’s first choice for complying with GDPR. Legitimate Interest, contractual language, even binding corporate rules will likely be easier to maintain. But to get any of these to work requires each organisation to hire their own lawyers, and I’m fairly sure a lot of us would rather pay for a technology instead.

One of the first hurdles for any service like this is to explain to organisations that having yourselves the data is not your competitive edge. Making the best use of the data is. The only thing you should really care about is getting what you need out of the data, not what it took to get there, and definitely not where the data is. And let the experts worry about how to do that in line with the GDPR.

It’s like when I ask a room-full of merchants if credit cards are core to their business. 99% of them say yes, when it’s actually being paid that’s core to their business, not how they were paid.

So what does DSCaaS look like?

  1. First, it must clearly be a Cloud-based service with a seamless iFrame-esque integration with your organisation’s webpage. Where you would normally collect the personal information on your webpages, you would simply redirect this collection to a 3rd party provider;
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  2. Depending on the type of information collected and the reason for collection, very simple consent notices can be developed. For e-commerce for example, these consent notices can be pretty much boiler-plated into; payment authorisation, product/service updates, customer service, marketing, etc. For HR, these would be in-line with the individual employment contract and so on. This consent is now tracked by the DSCaaS provider;
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  3. The existing personal data previously collected by the organisation would be normalised/parsed and imported into the service in order to allow for the following:
    1. The removal of the vast majority personal data from an organisation’s systems (using tokenisation and APIs to link existing systems if required);
    2. tracking and collection of consent, plus renewal of consent where necessary;
    3. automated personal data removal/destruction based on data retention policies;
    4. online portal for data subject to change/erase data, or demand processing cessation;
    5. all data controller and processor contracts in place.
      o
  4. DSCaaS provider would need to be able to demonstrate ‘appropriate security measures’ through compliance with (and/or certification to) well-known standard like ISO 27001, ITIL, COBIT, NIST and so on;
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  5.  DSCaaS provider would have existing and robust relationships with supervisory bodies (ICO in the UK for example) to standardise reporting of processing (if required).

Clearly this is oversimplified, but if there’s one thing missing in all of these bandwagon ads for GDPR services it’s the spreading of the cost across multiple parties. Especially as it’s very likely that the millions of smaller organisation cannot afford privacy expertise on an individual basis.

The intent of the GDPR is a good one, and organisations have to understand that the data they are making so much money off does not belong to them. While I have no issue with them doing so – as long as I also benefit – I want complete control over what happens to it. The vast majority of organisations in the UK cannot even comply with the existing DPA, let alone one amended inline with the draft Data Protection Bill. For organisations to ‘comply’ with the intent of the GDPR, they will need help, and that help will not come from cybersecurity organisations, ‘certified’ GDPR practitioners, and not even privacy lawyers. It will come from organisations who combine all of these skills into a service where access to data is appropriately controlled.

Gone are the days when you could do whatever you wanted to profit from personal information. It’s what you do WITH the data that matters, and it’s almost always the best ideas that win out. We all need help doing that appropriately.

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Here we go again. A regulation or standard gets released and suddenly everyone’s an expert, every vendor has a solution or silver-bullet technology, and hundreds upon hundreds of organisations spend a fortune on something they were far better off doing themselves.

It happened with PCI, SoX, and a plethora of other smaller or more region/sector specific regulations, and now it’s happening to GDPR. All because most of us are just too bloody lazy to do a little bit of homework to find a real expert.

Or in a lot of cases, too lazy to even read the damned standard! Yes, it’s dull, but it’s not that difficult to decipher to the point you can ask a few intelligent questions.

But the real problem stems from the fact that most people don’t even know what privacy is. Personally, I am not an expert in privacy, I’m an expert in cybersecurity. If you think those two things are the same, or even very similar, you are already way off the mark. Yes, there is an overlap, but only in so far as a data breach can possibly lead to a loss in privacy.

But that’s the point, it’s only a possibility. Just because someone stole your data, does not mean they’re going to use it against you.

To summarise in a very general way:

Security = Preventing unauthorised ACCESS to your data; and

Privacy = Preventing unauthorised USE of your data.

It’s because this distinction is universally misunderstood, cybersecurity vendors are often the first ones organisations turn to. However, instead of steering these poor deluded fools in the RIGHT direction, vendors sell them what they asked for. What they got, and are still getting, is a fraction of what’s required. 3.34% to be exact.

I’m not saying a security expert cannot be a privacy expert as well. I’m also not saying that every vendor lacks integrity. But I am saying you’re the one blame if you end up with a muppet.

So How DO You Spot the Charlatans

Actually it’s rather easy, they use phrases like:

  • Avoid hefty fines by ensuring you’re GDPR compliant!;
  • Time is running out, save your business!;
  • Ask our security experts how to [enter rest of lie here];
  • They claim that ISO 27001 can cover the entirety of the regulation;
  • Any combination of words that includes “GDPR compliance” or “GDPR certification”;
  • Any sales pitch or article that leads with possible fines (unless it’s to put down those that try).

…or they are:

  • Regular cybersecurity vendors;
  • Any vendor selling ‘GDPR software’;
  • A recent Certified General Data Protection Regulation (GDPR) Practitioner (and has no other privacy experience);
  • Anyone with CISSP, CISA, CISM, CRISC etc. emblazoned on their LinkedIn profiles (and has no other privacy experience);
  • NOT A PRIVACY EXPERT!

Finding a real expert is not that difficult, you just have to look for people who have been doing privacy stuff for a long time. These people do not HAVE to be privacy lawyers, but it certainly helps. And while there will be a whole swarms of scum-bag lawyers chasing the GDPR ambulance, there are a lot of good ones out there anxious to help. My own sister is one.

On the positive side, look for things like this instead. These were bullet points taken from a free seminar that I have actually signed up for:

  • Understand the implications of the GDPR on your business-critical processes;
  • Learn how to prepare for the implementation of the GDPR;
  • Gain invaluable instruction and insight on the regulation and how to comply;
  • Discover the security solutions that can help to mitigate risks and assist in meeting your security obligations under the GDPR

This is the kind of education I can get behind. I really hope it’s not a well disguised sales pitch…

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First: If you think that as a cybersecurity ‘expert’ I know how to run a GDPR project a) you can’t be that familiar with GDPR, and b) you have not read any of my previous blogs.

Second: If you have read my previous blogs and clicked into this blog hoping to get advice on how to run a GDPR project, you weren’t ‘listening’. At most I am a first conversation and a pointer to your next.

Then again, would you be reading this right now if the title was; “GDPR: No Idea What I’m Doing, But Here’s Yet Another Opinion.”?

So like everyone else on this little regulatory bandwagon – with the possible exception of privacy lawyers – all I have are opinions, and what I hope is a little common sense. Here in the UK for example, the GDPR is just an expansion of the Data Protection Act of 1998, which in turn was a consolidation of previous acts, some dating back to 1984. And if that’s not enough, ‘The Guidelines on the Protection of Privacy and Transborder Flows of Personal Data‘ published in 1980 by the Organisation for Economic Co-operation & Development (OECD) contained many of the basic tenets upon which the GDPR is predicated:

  1. Collection Limitation Principle;
  2. Data Quality Principle;
  3. Purpose Specification Principle;
  4. Use Limitation Principle;
  5. Security Safeguards Principle …and so on.

That means privacy lawyers have had 37 years to get good at this stuff and pass it on to all fledgling privacy lawyers. The rest of us may have some knowledge, but this will only ever be enough to overlap with the legal profession. This overlap will then hopefully enable us to translate the lawyer’s legalese into a language relevant to our respective departments. This is actually critical to GDPR implementation as lawyers do NOT have the final say, it will always be a negotiation.

Why is this not enough? Why would any non-lawyer even want the task of applying GDPR’s Recitals and Articles into a business’s specific context? Do you think you’ll make enough money to retire before you’re discovered as an incompetent? I have never seen a clearer case for a team effort.

The GDPR Implementation Team

  1. The Lawyer – For some reason everyone assumes that when I say lawyers should lead the effort, they come back with expressions of horror. “Lawyers can’t project manage!”, “Lawyers can’t operationalise GDPR!” and so on. By lead, I mean setting the goals and objectives. You know, leading, not managing. Only lawyers are truly qualified to provide proper context, so they should make their case first;
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  2. The Salesman – Like it or not, GDPR will have an impact on your business. Leave the sales team out and you have ruined any chance you have of making that impact a positive one;
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  3. The Marketer – As with the salesman, there is no reason that ‘compliance’ with GDPR can’t have a positive impact on an organisation, even its bottom line. The marketing / PR spin is the face of your efforts;
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  4. The People Person – Sounds better than the HR person, but I have never understood why these folks have so little part in projects like this. They are the Keepers of the Culture, use them;
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  5. The Technologist – While there is very little directly related to technology in the GDPR, it’s clear that technology has a huge role to play in its implementation. There is no compliance without the IT team;
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  6. The Project Manager – This one needs no explanation; and
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  7. The Cyber-Peep – Where there is data and technology, there is a need for security wrappers, but this role is no more critical than the others. That’s like saying the wheels are the most important part of a car.

And yes, if there are other departments they should be included too. Privacy cannot be siloed.

What’s missing is something to bring it all together. If only there was an organisational function that took the input from all of these departments and stakeholders and formulated a plan to accomplish the business’s goals! Wait, sounds a lot like Governance, doesn’t it?

It’s already far too late to be proactive, but you have until the 25th of May, 2018 to appear to be proactive. Get your team together and don’t waste this opportunity.

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First, what do I mean by ‘qualified’? – I mean that the only people truly qualified to lead a GDPR project are lawyers (or equivalent!) specialising in privacy. That’s it. This does not preclude non-lawyer privacy experts or lawyers not specialised in privacy, but you get what you pay for.

EVERYONE else only has a part to play. Often a very significant part, but that’s it for them as well. A part.

I’m NOT saying that every single organisation has to make the significant investment in a privacy lawyer to meet the intent of GDPR. I’m saying that the only ones qualified to determine ‘intent’ in your organisation’s specific context, are privacy lawyers. No-one who is an expert in information technology, or cybersecurity, or any other subject is qualified …unless they are also a privacy lawyer.

To even further labour the point, a qualified person is never a Certified EU General Data Protection Regulation Practitioner …unless – you guessed it – they are also a privacy lawyer.

I’ve seen every type of vendor from Cyber Insurance providers, cybersecurity consultants, to single-function technology vendors, make the most ridiculous claims as to their suitability to ‘help’ with GDPR. All to make a bit more money while the GDPR bandwagon is on the roll.

The prize so far goes to a consultant who maintains that the entire GDPR can be ‘operationalized’ under the ISO 27001 standard. Unfortunately this attitude is pervasive, as no organisation seems to want to share the opportunity with appropriate partners. The attitude of ‘land-the-gig-and-we’ll-work-out-how-to-deliver-it-later’ cannot apply here. GDPR is a law, one with significant penalties attached, so unless you really know what you’re doing, stick to what you know. And ONLY what you know.

For example, I can be [very] loosely categorised as a ‘cybersecurity expert’, so that limits my ability to help with GDPR to:

  1. Data Security – As I’ve said a few times now, of the 778 individual lines of the GDPR Articles, only 26 of them are related directly to data security. That’s only 3.34%. Yes, I can help you implement ISO 27001 to cover that 3.34% (a.k.a. “appropriate security and confidentiality”), but if GDPR is the only reason you have to implement ISO, don’t bother, you’ve missed the point;
    o
  2. Secure Technology Implementation – GDPR is not about technology, but the implementation of GDPR will have significant technology implications. From collection of consent (Recital 32), to age identification (Recital 38), to the rights to erasure and rectification (Recital 39), technology will play a big role. All of this technology will require appropriate security wrappers in-line with demonstrable good security practices; and
    o
  3. Governance Design and Implementation – Any organisation that has a Governance function already has a GDPR Implementation Team in place. Since there can be no true Governance without full departmental representation (Technology, Security, Legal, PMO, Sales, Marketing and so on), it follows that the Security team will have full understanding of GDPR’s impact from the Legal team. In turn, Technology and Security will have significant input to Legal’s decisioning, and it’s this ‘negotiation’ under the Governance umbrella that gives GDPR its ‘organisation specific context’.

This should be more than enough for any security consultant, but apparently it’s not enough for some consultants who want to replace Governance all by themselves. But, what’s wrong with partnering up with others to do the parts you absolutely should not touch? Is it not better to be really good at the one thing you do for a living and be part of a team of experts who can cover the other bases?

To put this another way, do you really want to ruin your reputation by lying to your clients now, or be the resource they come to to solve every similar problem from this point forward? Do you want to sell used cars or be a trusted advisor?

GDPR, like security, is not complicated. It’s actually very simple, just BLOODY difficult to implement. There is not one individual who can simplify this for you, not even a privacy lawyer. So if you’re looking to implement GDPR, you can rest assured that anyone who is a) not a privacy lawyer, AND 2) not part of a team of experts with collaborative skill-sets, AND 3) trying to sell you something, should be listened to with caution.

As always, I am not going to lay the blame entirely at vendor’s feet, they too have a business to run. In the end, the only people who get the answers they need on GDPR are the ones asking the right questions.

You MUST do your homework!

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To be very clear from the outset, if you think the PCI DSS is a good ‘stepping stone’ to GDPR, you need to do a lot more homework. Data security represents less than 5% of the entire GDPR, and the PCI DSS is – in my admittedly biased estimation – no more than 33% of a true security program.

I have, for years, railed against the PCI DSS as an inadequate baseline for security, and even the card brands and the SSC have never claimed it be more than what it is; a set of MINIMUM security controls related to the protection of cardholder data. Well, except for this ill-advised and rather naive quote perhaps;

“People come to me and say, ‘How do I achieve GDPR compliance?’… Start with PCI DSS.”

The PCI DSS was written for ONE very specific purpose, and it’s only ego, desperation, or vested interest that would lead people to think it’s anything more.

The reason for this particular blog is reading articles like the two samples below. It’s articles like these that lead organisations who don’t know better [yet] into making bad decisions. They also give cybersecurity professionals a bad name. Well, worse name, unscrupulous QSA companies and greedy product vendors have already caused significant damage.

Article 1, and by far the most egregiously overstated quote [so far] is from an article in SecurityWeek (PCI 3.2 Compliant Organizations Are Likely GDPR Compliant); “Any company that fully and successfully implements PCI DSS 3.2 is likely to be fully GDPR compliant — it’s a case of buy one and get one free.” Given the author’s apparent credentials, he should know better. Since when does the PCI DSS deal with explicit consent, or children’s data, or the right to erasure/correction/objection/portability and so on.

Then, in the very recent article 2; How the PCI DSS can help you meet the requirements of the GDPR – the author states that; “Failure to report breaches attracts fines of up to €10 million or 2% of annual turnover, whichever is higher. Breaches or failure to uphold the sixth data protection principle (maintaining confidentiality and integrity of personal data) can attract fines of up to €20 million or 4% of annual turnover (whichever is higher).”

No part of the above statement is factually correct:

  1. Just because Article 33 – Notification of a personal data breach to the supervisory authority is included in Article 83(4)(a) – General conditions for imposing administrative fines, it does NOT mean that failure to respond in 72 hours will attract a fine. There are many caveats; e.g. Recital 85 states ; “the controller should notify the personal data breach to the supervisory authority without undue delay and, where feasible, not later than 72 hours after having become aware of it (Recital 85)”‘
  2. “sixth data protection principle“? – Nothing to do with confidentiality and integrity, assume author meant the seventh principle (security).
  3. Maximum fines for data breaches are 2% (for an undertaking, a.k.a. a group of companies), not 4%.

The author then goes on to say; “The ICO is also likely to treat inadequate or non-implementation of the PCI DSS as a failure to implement appropriate “technical and organisational measures” to protect personal data…” which is clearly not the case. The ICO has always left loss of cardholder data / PCI up to the card schemes, and have already mentioned ISO 27001 in their “The Guide to Data Protection“.

Every article I have read on how PCI helps with GDPR, is at best, hugely overstated, and at worst, full of self-serving lies. I can fully appreciate the desire for cybersecurity companies (especially QSAs) to branch out from the massively price compressed and ultimately doomed PCI space, but to do so in this manner is unconscionable.

Unfortunately if you are falling for this advice, I can safely assume that you:

  1. have little idea of how limited the PCI DSS is, even as protection for the only form of data to which it’s relevant;
  2. have little idea what the GDPR is trying to achieve if you think a bunch of security controls are that significant a component; and
  3. don’t actually know what an ‘appropriate’ security program should look like.

This is actually not meant as a criticism, these things may not be your job, but if you have any responsibility for GDPR, you absolutely must learn to ask the right questions.  I will finish with some reasoning below, but leave it up to you to work out whose guidance to take.

PCI and GDPR are very far removed from each other.

  1. Data protection Articles are only 3.34% of the Regulation – yes, I actually worked this out on a spreadsheet. That means the GDPR is 96.66% NOT security control relevant. Of course IT and IT security are important and intrinsic to GDPR, but PCI does not cover anything else other than those things.;
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  2. PCI DSS makes no mention of the need for Governance – PCI compliance is almost invariably an IT project, and while this is obviously wrong, does not prevent organisations from achieving compliance. In GDPR, the IT folks have absolutely no idea where to start. Nor should they, IT/IS people aren’t lawyers and they do not control the organisation’s direction, they are business enablers who do as bid by senior management. GDPR requires a team effort from every department, which is exactly what Governance is.;
    o
  3. PCI DSS is about compliance to an already defined standard of security controls, the GDPR requires a demonstration of ‘appropriate security’ measures – For example, what if your annual risk assessment showed that the PCI controls were actually excessive? Could you scale some of them back? No, you can’t. Alternatively, what if your risk assessment showed that they weren’t enough, could your QSA insist that you went above and beyond? Again, no, so what the hell is the point of the risk assessment in PCI?
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  4. Only QSAs that started out as security consultants [not the other way around] have the skill-set to provide any help at all. If they were experts in ISO 27001, CoBIT, NIST etc., then yes, they can help you both define and implement ‘appropriate security’. If all they did was pass the QSA exam, the only guarantee you have is that they can read.
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  5. The PCI DSS can never keep pace with the threat landscape – It’s already way behind, and with its complete inability to change significantly, the DSS can never represent appropriate security. If the DSS did change significantly, both the card brands and the SSC would be lynched. Millions of organisations have spent BILLIONS on PCI, they will simply refuse to start all over again. GDPR on the other hand has no defined controls, it’s up to YOU to show that your controls meet the measured risk.

In the end, the only way PCI can help with GDPR is to use the assigned budget to do security properly. You will never reach GDPR ‘compliance‘ using PCI, but you will achieve both PCI and GDPR compliance on the way to real security.

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