Tag: GDPR

I received what, to me, was an interesting question the other day (thank you Gareth), which was [paraphrased]; Does the GDPR’s Right to Erasure (a.k.a. The Right to be Forgotten) include every instance of the data, including those contained in backups?

The short answer is yes, it does, but that is simply not what is going to happen in the real world. I can see three possible arguments organisations could use to avoid making the potentially significant effort of erasing data subjects from backups:

  1. It’s backed up and therefore not processed – this is negated by Article 4, Definitions – (2) “‘processing’ means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;”
    o
  2. Interpretation of the phrase; “…taking account of available technology and the cost of implementation, shall take reasonable steps, including technical measures…” – While this phrase, and several similar equivalents, are not used directly in the context of backups (which doesn’t seem to be addressed at all outside the context of ‘storage periods’) it nevertheless suggests the the GDPR has wiggle room. However, to even think about using this argument, you’d better do a Hell of a lot more to make your argument. The word ‘reasonable’ in lawyers terms is built on precedent, in cybersecurity it’s built on your ability to demonstrate a credible and sustainable security program.
    o
  3. Plead ignorance (i.e. We didn’t know we had it!) – This is no different from; “Sorry officer, I had no idea how fast I was going so the speeding ticket cannot apply!”. If I was the supervisory authority, these are the organisations who would be prevented from processing personal data, and/or receive the biggest fines. Not knowing you even had the data in the first place is either laziness, incompetence, or both.

There will absolutely be scenarios where the cost and level of effort necessary to remove a data subject from every system could rightly be deemed ‘unreasonable’. However, in this scenario, the difference between you saying it’s unreasonable and you demonstrating that it’s unreasonable will directly impact the egregiousness of your offence. And if you accept that the penalties associated with non-compliance with the GDPR will be based on the egregiousness of the offence, it follows that the more you do pro-actively the better off you will be.

From my perspective, the only way to do this is to perform what follows below. While this may seem like a lot, not one of these steps is something you shouldn’t either be doing already, or doing in preparation for May 25th 2018.

How to Justify Non-Compliance with Article 17 (for Backups)

Caveat 1: I am in NO way suggesting that this is ‘officially approved’ mitigation, this is based solely on my experience and a little common sense.

Caveat 2: This assumes that Article 17(3)(a-e) does not apply.

Req. 1: Run a Risk Assessment (RA), a Business Impact Analysis (BIA), and a Privacy Impact Analysis (PIA) – Put simply, you cannot decide whether or not fix the problem until you have run these three fundamentals. The RA and the PIA would be the first things I would ask for if I was an auditor, and the BIA would be the first thing I would ask if I was on the BoD.

Req. 2: Get your Policies, Standards and Procedures in order – These represent your culture, your operational baselines and your corporate knowledge respectively. Unless you know exactly what to do, what NOT to do, how to do what you do, and what you’re doing it with, you cannot demonstrate appropriate controls. Ever.

Req. 3: Education: Unlike PCI, where trying to educate most organisations is utterly pointless, privacy is everyone’s problem. Your entire organisation must be made aware of their responsibilities for the protection of personal data, as well as trained on how to report suspected loss or manipulation. Education is by far the best and cheapest way to reduce risk.

Req. 4: Map business processes and data stores – You must know how data is handled in order to understand how and what get stored at the end of the processing. Also, if you cannot show that your current processes enable the enforcement of future data subject requests, then you will not be able to justify keeping the old stuff. You must stop the bleeding.

Req. 5: Determine if current data stores match data retention policies – Part of Req. 2 includes compiling a record of all data retention justifications and timelines for all data types (most notably ‘special categories’). Should your processes for data storage not include a robust methodology for removing old data this will not look good.

Req. 6: Document your plan to remove data over the course of a specific time frame – Not much point trying to explain why you can’t delete something if you NEVER plan to do so. Even if the plan is over the course of 7 years, have one, as it will likely be a negotiation at this point.

Req. 7: Obtain Board of Director’s acceptance of residual risk – If this issue has not made it to the BoD level, I would have significant reservations as to just how seriously you are taking it. If you get audited by the supervisory authority it will not be the IT admins they are talking to.

Req. 8: Tell the supervisory authority – Wait! What!? TELL the supervisory authority, are you stupid!! Perhaps, and I’m not saying this is the right approach in every scenario, but the GDPR is not there to put you out of business, and supervisory authorities are not dictators. Everyone is in the same boat here, we’re ALL learning, so take advantage of the confusion.

As things stand right now, you’ve already had over a year to fix this issue, and you have just under another year before you are, quite literally, breaking the law. I understand the difficulty, but after May 25th 2018 you still have to explain why you wasted the previous 2 years. Every requirement above fits very neatly into 1 or several of Article 83’s ‘regards’ given to individual circumstances;  Negligence, actions taken, degree or cooperation, even HOW the infringement became known to the supervisory authority, all have bearing. The more you can pre-empt, the less the negative impact.

Finally, if you fall for ambulance chasers, or are terrified of the impact the GDPR will have on your business, you clearly aren’t doing what you should be doing. Bite the bullet, hire a lawyer, and get moving on this.

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How many ‘news’ articles / blogs / ads have you seen with titles like; “You could be fined up to 4% of your global revenue under GDPR!”  a.k.a “Be afraid and give us lots of money you clueless sap.”

I’m seeing it from every online cybersecurity publication, lawyers, cybersecurity vendors / consultants, and increasingly from cyber insurance vendors. I’m even getting spammed from people I KNOW!

It’s more than a little irritating …frankly, it borders on unprofessional.

I can understand lawyers jumping on the bandwagon. The GDPR was written by lawyers, and if you don’t get a lawyer’s input to how GDPR will affect your business, you deserve a 4% fine. Yes, privacy lawyers are expensive, and yes, it’s bloody annoying to spend this money on something that adds absolutely nothing to the bottom line, but do it anyway. At the very least, piggy-back of a business partner that has spoken to a lawyer!

And no, asking your contacts on LinkedIn is not the same thing.

For cyber insurance vendors, I can fully appreciated how tough it’s been to find something to pin a marketing budgets on. Ambivalence towards cybersecurity is legendary. But what I cannot condone is using GDPR’s fine structure to scare organisations into buying a policy that will likely be completely inappropriate. Even choosing the right cyber insurance requires significant due diligence.

As for cybersecurity vendors, I’ve already addressed/redressed them in GDPR and Cybersecurity, a Very Limited Partnership. They simply have no right to bring up a 4% fine in a sales pitch when the maximum fine for data breach is 2%, not 4.

There is a lot more than fines in the GDPR of which you should be aware, but first…

About the Fines…

…borrowing heavily from my previous blog;

It can be assumed that if 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). That 4% is what the EU considers the maximum for a fine to qualify as “effective, proportionate and dissuasive” (per Article 83(1)). Therefore, a fine of €20,000,000 (for example) would be reserved for any organisation with revenue over €1,000,000,000 annually. Yes, that’s 1 BILLION.

It must 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’ is contained in the 11 lines of Article 83(2)(a) – (k). Words like ‘intentional’, ‘negligent’, ‘degree’, and ‘manner’ are bandied around, all of which can be answered by you.

In this spreadsheet, I have taken a stab at adding specific questions to each of the (a) – (k) line items. Answer them all truthfully and you’ll get an indication of what I consider to be an appropriate fine based on your annual revenue: GDPR Fine Worksheet. Note: This is based on data breaches only (2% fine structure), and is not based on anything resembling known fact or precedent.

Frankly, it’s not the fines you should be worrying about, as I get the feeling you have to REALLY screw up before they’ll even be considered in the first place.

Worry about the ‘Corrective Powers’

What no-one seems to be writing about are the other so-called ‘corrective powers’ as detailed in Article 58(2) that each member state’s supervisory body will wield. Some of these are far worse than fines, and from what I know of GDPR, far more likely to be put into effect first.

Article 58(2) starts out very reasonably; 58(2)(a), (b) and (c) are:

(a) to issue warnings to a controller or processor that intended processing operations are likely to infringe provisions of this Regulation; [i.e. be careful]

(b) to issue reprimands to a controller or a processor where processing operations have infringed provisions of this Regulation; [i.e. smack on the wrist]

(c) to order the controller or the processor to comply with the data subject’s requests to exercise his or her rights pursuant to this Regulation; [i.e. now do it properly, we’re watching]

..then it gets a little more punitive in (d) and (e):

(d) to order the controller or processor to bring processing operations into compliance with the provisions of this Regulation, where appropriate, in a specified manner and within a specified period; [i.e. now do it properly, or else]

(e) to order the controller to communicate a personal data breach to the data subject; [i.e. tell everyone with whom you do business that you f*&%ed up]

…then there’s the stuff that could put you out of business (assuming personal data is central to it) from (f)  through (h):

(f) to impose a temporary or definitive limitation including a ban on processing; [i.e. stop everything you’re doing with personal data, now]

(g) to order the rectification or erasure of personal data or restriction of processing pursuant to Articles 16, 17 and 18 and the notification of such actions to recipients to whom the personal data have been disclosed pursuant to Article 17(2) and Article 19; [i.e. you can’t do what you do with personal data the way you were doing it]

(h) to withdraw a certification or to order the certification body to withdraw a certification issued pursuant to Articles 42 and 43, or to order the certification body not to issue certification if the requirements for the certification are not or are no longer met; [i.e. good luck getting anyone in the EU to do business with you]

…and NOW the fines:

(i) to impose an administrative fine pursuant to Article 83, in addition to, or instead of measures referred to in this paragraph, depending on the circumstances of each individual case; [i.e. not only can we stop you doing business, but we can also fine you]

…and finally, back to the potentially out of business:

(j) to order the suspension of data flows to a recipient in a third country or to an international organisation. [i.e. specific to cross-border, but you’re screwed if this is relevant]

Now ask yourself; can a cybersecurity vendor help you in a scenario where the data is safe but you’re just not allowed to use it? Could cyber insurance replace your ENTIRE business and customer base?

Clearly not, so the only people you SHOULD be talking to right now are privacy experts. Not ones who passed a 75 question multiple choice exam to achieve a Certified Information Privacy Professional (CIPP) acronym, and/or the Certified GDPR Practitioner course, a lawyer. And not just any lawyer, a lawyer who specialises in privacy.

I’m not disparaging the CIPP/E or EU GDPR P certifications, they are actually very good foundations for anyone wanting to ask a true expert the right questions. And if, as per Recital 13; “…this Regulation includes a derogation for organisations with fewer than 250 employees with regard to record-keeping.”, you are small enough not to have to worry about recording your processing, maybe someone with these certs is good enough.

It’s up to you, you’re the ones betting your businesses on it.

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If you’re looking for real guidance on GDPR, and surprisingly few of you are, you will likely have seen vendors selling things like; Certified EU General Data Protection Regulation (GDPR) Practitioner, some of whom also promise delegates that they will be “awarded the ISO 17024-accredited EU GDPR Practitioner (EU GDPR P) qualification by IBITGQ”.

Sounds really impressive, right? Unfortunately, it doesn’t mean a damned thing:

While there is absolutely nothing wrong with either ISO 17024 standard or the IBITGQ, when applied appropriately, they have absolutely nothing to do with GDPR certification. The ‘practitioner’ course itself may cover aspects GDPR, but there are no certifications yet available for GDPR, let alone accredited certification bodies who can provide it.

For example, in the UK, the Information Commissioner’s Office (ICO) will be the ‘supervisory authority’ responsible for the:

  1. “...establishment of data protection certification mechanisms and of data protection seals and marks, for the purpose of demonstrating compliance with this Regulation of processing operations by controllers and processors.” – GDPR Final Text, Article 42, Para. 1, and;
    o
  2. “…accreditation of certification bodies as referred to in paragraphs 1 and 2 of this Article [which] shall take place on the basis of criteria approved by the supervisory authority...” – GDPR Final Text, Article 43, Para. 3

In other words, without the ICO there is no GDPR certifications available from anyone for anything. To date the ICO have release nothing on certification / accreditation, not even guidance. Nor have the Article 29 Working Party (Art. 29 WP) to whom the ICO refer.

One of the challenges is that the term ‘certification’ means several things even within the GDPR itself. From the certification of ‘appropriate measures’ between processors and controllers (GDPR Final Text, Recital 76), to the “The adherence of the processor to an approved code of conduct or an approved certification mechanism…” (GDPR Final Text, Recital 81), the nature and extent of these certifications will vary considerably.

What IS out there however are organisations offering GDPR foundation classes. These courses are designed to instruct and inform, not offer useless acronyms. It’s these courses you should be looking into, but like everything else, you must ask the right questions.

For example, if you’re:

  1. a Data Protection Officer (DPO), you will need to know how the GDPR affects your responsibilities and management reporting;
  2. a contracts lawyer, you’ll need to know how all of your vendor AND client contracts will be affected;
  3. an IT manager you’ll want to know how the GDPR will be implemented from an infrastructure perspective; and
  4.  responsible for cybersecurity, how do you demonstrate ‘appropriate measures’?

But worse than vendors trying to provide training certificates are the ones providing GDPR compliance consultancy, or worst yet, software. I can understand privacy experts and lawyers offering these services, but cybersecurity vendors!? Data security is less than 5% of the work organisations will have to perform to bring themselves into compliance with GDPR. Not only that, in the ICO’s Guide to Data Protection they already mention ISO 27001 under Principle 7 – Information Security, so it’s fairly clear against which benchmark security programs will be measured.

GDPR is not an IT problem, it’s certainly not just a data security problem, it is a business problem, and one that will affect every individual in your organisation to a greater or lesser degree. The first step is not to buy the first training course that comes your way, it’s to read the damned thing, then raise the awareness of GDPR to the people whose very arses are on the line. Whether you call them the Senior / Executive Management, the C-Suite, or the Leadership Team makes no difference, the implementation of GDPR starts with those at the top. They are the ones who will be held accountable, so they are the ones who should ensure that everyone has the training and resources they need.

Every new data protection regulation is seen by vendors as a way into your wallets. The GDPR is no different. Do your homework, and ignore any organisation offering services predicated on fear, uncertainty and doubt. Or worse, utter nonsense.

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Ask a lawyer what ‘appropriate’ or ‘reasonable’ means and they’ll come back with something like; “What would be considered fair by a disinterested third party with sufficient knowledge of the facts.”, or “Fair, proper, or moderate under the circumstances.”

Now translate that into what kind of security measures are considered appropriate? How would you justify that what you are doing is reasonable, fair, or proper under the circumstances?

Because that’s what you’ll have to do if things go wrong under GDPR. You’ll have to justify that the measures you took to protect personal data were underpinned by an appropriate program for measuring and treating risk. If your breach was shown to be almost anything other than by a determined attacker, all you’ll have in your defence will be poor excuses. This is no better than negligence.

When you consider that the General Data Protection Regulation (GDPR) – and every other regulatory compliance for the matter – was written mostly by lawyers, should we not be able to work out what ‘appropriate’ means for a security program? After all, lawyers have no problem defining the word ‘reasonable’, they even apply it to their fees!

The good news is that the process is not only well known, it’s simple. It’s called Risk Management, and it’s been around for decades.

Step 1: Complete your Asset Register;

Step 2: Map your assets to your business processes (which should already be mapped to revenue to determine importance);

Step 3: Map your business processes to your business goals;

Step 4: Run a Risk Assessment against all business processes and / or key IT systems;

Step 5: Document the business impact of each risk (mapped against both revenue and business goals);

Step 6: Document Senior Leadership’s risk appetite against each business goal;

Step 7: Perform full analysis of security controls, determine if there are any gaps between the current state and the risk appetite;

Step 8: Fill the gaps (risk treatment);

Step 9: Document everything; and

Step 10: Repeat annually, or prior to any major changes.

Now put yourself in the shoes of an auditor after you have been breached. What are they going to ask you for? What could anyone reasonably expect you to have in place if you were taking your duties seriously?

If I was an auditor I’d ask for 5 things up front, as without them I know there is no way you have an appropriate security program in place:

  1. A mapping of your policies, standard and procedures to whatever security framework you based your security program on;
  2. Your risk management procedure(s), and the results of the last risk assessment conducted;
  3. Your risk register;
  4. Your change control procedure(s); and
  5. Your incident response procedure(s).

At this stage I would care nothing for your technology, or how much you spent on it. A technology purchase outside of a properly defined business need is nothing more than smoke and mirrors. Besides, no regulator has ever tried to qualify how much you spent. It’s up to you to show why you spent what you did.

The thing to bear in mind here is that the validation of ‘appropriateness’ is not a conversation, it’s documentation. It’s not even evidence of the technologies you have running, it’s showing that the technologies you do have meet the risk you have defined. While from a lawyer’s perspective, appropriate is demonstrated by precedent, in cybersecurity, appropriate is demonstrated by the extent and capability of your security program.

Complying with the cybersecurity elements of the GDPR is simple, every step is written down for you somewhere. There are a few things to bear in mind though:

  1. GDPR is 95% about how you get the data, and what you then do with it when you have it. Anything you spend on security should be justified against the business goals, not a compliance requirement;
  2. There is no cyber insurance against loss of reputation, this should not be about the money; and
  3. Any security vendor offering “GDPR Compliance” is at best telling you 5% of the story, at worst, is lying to you.

While I agree it may be difficult to sort through the good advice and the crap when it come to this stuff, there is no excuse for doing nothing. GDPR and every regulation to come will not change the basics, security will be the same regardless.

The issue is not regulation, it’s that organisations still aren’t asking the right questions.

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If a security vendor has ever told you that the GDPR is imposing fines of up to 4% of annual global revenue for data breaches, they are either:

  1. ignorant of the standard; and/or
  2. lying to you.

Being generous, they may not actually know they are lying, the General Data Protection Regulation (GDPR) isn’t exactly easy to decipher, but even a cursory review tells a rather obvious story. I will attempt to address the following assumptions in the course of this blog:

  1. The GDPR is >95% related to enforcing the RIGHT to privacy, not the LOSS of privacy through data breach;
    o
  2. The maximum fines for ANY organisation are 2% of ‘annual turnover’ for even the most egregious loss of data through breach, not 4%; and
    o
  3. Fines are entirely discretionary, and an appropriate security program will significantly reduce any fines levied.

Wait, there are 2 types of privacy!?

Ask a lawyer in the EU what privacy is and s/he’ll likely quote Article 12 of the Universal Declaration of Human Rights: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

From a GDPR perspective, this equates to two of its three fundamental aspects. Grossly simplified these are:

  1. Explicit consent; and
  2. Legitimacy of processing.

In other words, the vast majority of the GDPR is concerned with obtaining explicit consent for the personal data collected, and then ONLY using that data for legitimate purposes in-line with the consent received.

Even when GDPR refers to ‘security’, it is more concerned with these two fundamentals than it is with security of the data itself. That is what they mean by “security of processing“.

However, from a cybersecurity professional’s perspective – and the third fundamental aspect of the GDPR – privacy also involves loss. i.e. The data was stolen during a breach, or somehow manipulated towards nefarious ends. This is a very important part of the GDPR, Hell, it’s a very important part of being in business, but it should never be used to sell you something you don’t need.

Maximum fines?

Of the 778 numbered or lettered lines of text in the GDPR Articles section, there are only 26 that relate directly to data security (or 3.34%). These are contained within Articles 5, 25, 32, 33 and 34.

Per Article 83(4)(a) (a.k.a. ‘2% fines’) – “(a) the obligations of the controller and the processor pursuant to Articles 8, 11, 25 to 39 and 42 and 43;”

While Article 5 is contained within Article 83(5)(a) (a.k.a. ‘4% fines’), all but one line refers to security of processing, not the security of the data.

So, if it can be assumed that if the maximum fine for ANY data breach, no matter how egregious, is 2% of the annual revenue from the previous year (in the case of an undertaking), that 2% is what the EU considers the maximum for a fine to qualify as “effective, proportionate and dissuasive” (per Article 83(1)). Therefore, a fine of €10,000,000 would be reserved for any organisation with revenue over €500,000,000 annually. Fines are never there to put you OUT of business!

It must follow that if 2% is the maximum, then fines will go down the less egregious is your offence. Everything you need to determine the level of ‘egregiousness’ is contained in the 11 lines of Article 83(2)(a) – (k). Words like ‘intentional’, ‘negligent’, ‘degree’, and ‘manner’ are bandied around, all of which can be answered by you.

In this spreadsheet, I have taken a stab at adding specific questions to each of the (a) – (k) line items. Answer them all truthfully and you’ll get an indication of what I consider to be an appropriate fine based on your annual revenue: GDPR Fine Worksheet. Caveat: I am NOT a lawyer, and this is based entirely on my own experience, not anything resembling known fact.

Finally, bear in mind that as per Article 58(2), there are many ‘corrective powers’ that a supervisory authority can resort to long before levying a fine, including simple warnings (Article 58(2)(a)). Fines should be considered as a worst case scenario in their own right, let alone the amount.

Appropriate security program?

There is no such thing as 100% security, so the more you can demonstrate that your security program is appropriate to the levels of risk, fines should be the least of your problems. As long as you have everything from senior leadership buy-in, to incident response, to disaster recovery and breach notification – you know, the basics! – it is not a foregone conclusion that fines will even be considered.

Go here for more on what a security program should look like: What is a Security Program?

In conclusion…

In the UK, if you are an organisation that processes personal data and you were already a) complying with the Data Protection Act (DPA), and b) doing security properly, GDPR compliance would require only relatively minor adjustments. For those that weren’t, you have a lot of work to do now once the supervisory authority has the powers that GDPR bring to bear, and not much time to do it in (May 25, 2018).

That said, don’t do anything for compliance alone. Do it for the business, do it properly, and compliance will fall out the back end. So while it is reprehensible that security vendors are trying to exploit the GDPR for profit, if you fall for it it’s entirely your fault.

By the way, if you’re a business that is predominantly centered around the processing of personal data, the Article 58(2)(f) – “to impose a temporary or definitive limitation including a ban on processing;” can take you offline indefinitely. And yes, you can be fined on top of that.

I hate to say it, but don’t do anything until you’ve spoken to a lawyer.

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