Year: 2015

Our survey said…

 

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I bought a new car. On delivery day it was in the showroom draped in a royal blue cloth with a sign saying Reserved for Mr Onassis. The salesman before handing me the keys mumbled in an apologetic fashion “The Sales Manager likes to talk to every customer when they take delivery…”

The Sales Manager didn’t waste much time. He said that I’d shortly be receiving a call from a company who surveys new car buyers to find out what they thought of the dealership. Then he slipped in the hard sell. “They’ll ask you to mark us on a scale of 1 to 10. Only 9 and 10 are positive; anything below that is negative.”

The survey duly arrived. I declined to answer even though I was very happy with the car and the dealership.

Days later my bank called me. I was probably going to be asked to rate my bank. From a list of phrases from very displeased to very pleased I had to choose the phrase that best described my experience. “Please be sure to say you’re very pleased with our service. Anything else is considered negative”. Again I declined to do the survey even though my bank is pretty awful.

Last week a hotel that Act Now Training uses did the same thing. Please let us know what you think of our hotel. This time the hotel manager foolishly put his suggestion “Actually it’s a yes/no question; anything under 8 is negative. We need 9s and 10s” in an email. Now we have the evidence that the practice exists. Previously the conspiracy had only survived by word of mouth.

I haven’t answered yet.

What value does a survey have when the surveyees are primed to deliver the response the company wants? Is every survey result is the product of a self selecting group – the group of people who like to give high scores in surveys? Or is there another group like me who never participate in the survey who feel there’s no value in a survey where the traditional Likert scale has been morphed into a 50/50 shot? Most brits are stiff upper lip types who won’t take a survey if their views would have been critical in case someone contacted them afterwards.

Is the information age producing better information or is the value or a survey subjective, objective or merely the result of a carefully orchestrated customer manipulation.

This article already had 12,500 likes before I posted it. Find them on Ebay.

Paul Simpkins is a Director and Trainer at Act Now Training Ltd. He will be delivering the internationally recognized BCS certificate in Data Protection in June. If you are interested in this or any other Act Now training courses on Information governance, please visit our website www.actnow.org.uk

Information, Documents or Both – What is available under FOI?

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It is an oft-repeated phrase that the Freedom of Information Act (FOI) provides a right of access to information but not documents. A recent Court of Appeal decision shows that it is not that straightforward an issue.

Section 1 contains the general right of access and uses the term “request for information.” But what exactly is “information”? Section 84 defines it as “information recorded in any form.” This includes information held on paper, computer, video, audiotapes as well as that contained in manuscript notes. No mention is made of access to the actual documents containing the information. However this does not mean that documents cannot be requested.

A request for a document will generally be a valid request for all of the information contained within that document (including visual format, design, layout etc). In considering whether the public authority has complied with the request, the question is whether all of the information recorded in the document has been provided. It will not be sufficient to rephrase the document or provide an outline or summary of its contents unless the applicant has specifically expressed a preference for a digest or summary under section 11(1)(c).

This matter has now been put beyond doubt by a Court of Appeal decision this week. Judges dismissed an appeal by the Independent Parliamentary Standards Authority (IPSA), the body that oversees MPs’ expenses claims, from a decision of the Upper Tribunal requiring it to release copies of MPs’ invoices and receipts. This is the latest in a serious of appeals by IPSA in an attempt to overturn the original decision of the Information Commissioner.

In April 2013 the First Tier Tribunal (Information Rights), ruled that images of MPs’ expense claim receipts were information to which the FOI applied (IPSA v Information Commissioner (EA/2012/0242)). The background to the request was that, following the MPs’ expenses scandal, the then newly-formed IPSA, decided that it would not routinely publish images of the receipts submitted to IPSA by MPs in support of their expenses claims.  Only text transcribed from the submitted receipts would be published.

A journalist made an FOI request for the actual receipts submitted by a number of MPs. The question arose as to whether images of those receipts held by IPSA contained “information” within the meaning of section 1 of FOI, which was not captured by the transcription process favoured by IPSA. The Tribunal concluded that the definition of information (in this case) included logos, letterheads, handwriting, manuscript comments, and even the layout and style of the requested documents. These were not disclosed to the requestor as a result of providing a transcription, rather than a copy, of the relevant receipts.

Last year the Upper Tribunal’s Judge Williams (in Independent Parliamentary Standards Authority v IC & Leapman [2014] UKUT 33 (AAC)) dismissed the appeal by IPSA. At Paragraph 22 of the judgement he said:

“It is to me also trite to note that the wording on a typical receipt or invoice is only part of what a recipient sees when looking at it. Typically there will be verbal and numerical content to be read and understood, but there will also be visual content to be seen, rather than read, but which may also require to be understood for the recipient to have appreciated the whole of the experience, if I may term it that, communicated by the receipt or invoice.”

In the judge’s view information is more than just the words and figures on a piece of paper. Sometimes the nature of the request will mean that the only way to convey all the information on a document is to disclose the original or at least a copy. He gave the example of Land Registry plans, drawings and photographic evidence of a particular building.

In coming to his decision the judge took note of the Scottish Court of Session decision in Glasgow CC v SIC [2009] CSIH 73 under the Freedom of Information (Scotland) Act 2002 (FOISA). As a general point of principle, the Commissioner and the Tribunal is not bound by Court of Session decisions on FOISA, although they may be considered persuasive where the terms of FOISA mirror the terms of FOI. In the Scottish case the applicant specifically wanted the public authority to provide copies of the documents, although he acknowledged that the same information was available elsewhere. The Court confirmed that FOISA entitles requesters to the information within a document, rather than a copy of the document itself. To the extent that this request was specifically for copies of the documents over and above the information they contained, it was invalid. The Court rejected an argument that the copy documents were “information” distinct from the information contained within them.

Paragraph 45 of the Court of Session judgment states:

“Where the request does not describe the information requested… but refers to a document which may contain the relevant information, it may nonetheless be reasonably clear in the circumstances that it is the information recorded in the document that is relevant.”

However paragraph 48 should be noted:

“The difference between the original and a copy… does not consist in any difference between the information recorded in each document: that information, if the copy is true and accurate, will be identical.” (my emphasis)

To quote one of our FOI trainers (Philip Bradshaw), much will also in practice depend on the wording of the request. Contrast “How much did you spend on pencils?” with “Can I have a copy of your pencil invoices”. You can clearly provide in permanent form all the recorded information within scope of the first request without copies, but not perhaps for the second.

In the IPSA case, the judge ruled that transcriptions of the requested receipts would not be “true and accurate”, as they would not contain all the same information as on the originals e.g. logos, style, layout etc.

This is an interesting decision especially for those public authorities who often insist, when refusing to supply actual documents (such as minutes of meetings) that FOI is about access to information not documents. Sometimes the requestor is interested in the document, which contains the requested information, as it will give a further insight into its background and the thoughts/observations of the producers/subjects of the document.

IPSA has been given time to consider taking the case to the Supreme Court.

Ibrahim Hasan will be discussing this and other recent FOI decisions in the FOI Update workshops which are delivered in one hour online sessions as well as full day face to face sessions.

RIPA and Communications Data: 2014 Annual Report

 

 

Local authorities have powers, under Part I Chapter 2 of the Regulation of Investigatory Powers Act 2000(RIPA), to acquire communications data from Communications Service Providers (CSPs). The definition of “communications data” includes information relating to the use of a communications service (e.g. phone, internet, post) but does not include the contents of the communication itself. It is broadly split into 3 categories: “traffic data” i.e. where a communication was made from, to whom and when; “service data” i.e. the use made of the service by any person e.g. itemised telephone records; “subscriber data” i.e. any other information that is held or obtained by a CSP on a person they provide a service to.

Some public authorities have access to all types of communications data e.g. police, ambulance service, HM Revenues and Customs. Local authorities are restricted to subscriber and service use data and even then only where it is required for the purpose of preventing or detecting crime or preventing disorder. For example, a benefit fraud investigator may be able to obtain an alleged fraudster’s mobile phone bill. As with other RIPA powers, e.g. Directed Surveillance, there are forms to fill out and strict tests of necessity and proportionality to satisfy.

The Prime Minister under Section 57(1) of RIPA 2000 appointed Sir Anthony May in January 2013 as the Interception of Communications Commissioner. His function is to keep under review the interception of communications and the acquisition and disclosure of communications data by intelligence agencies, police forces and other public authorities (including councils). He is required to make an annual report to the Prime Minister with respect to the carrying out of his functions.

In March the Commissioner’s Annual Report, covering the period January to December 2014, was laid before Parliament. (Read the useful summary produced by Big Brother Watch here). Key findings in relation to communications data are set out in the extract below:

RIPA

Despite media headlines, local authorities now make little or no use of these powers. A big reason for this is that, since 1st November 2012, councils have had to obtain Magistrates’ approval for even the simplest communications data applications (e.g. mobile subscriber checks). (Read about the changes in detail here.) Another reason may be that since December last year, the Home Office has required councils to go through the National Anti Fraud Network to access communications data rather than make direct applications to CSPs. This has also made the internal SPoC’s (Single Point of Contact) role redundant.

The Commissioner also has the power to conduct inspections of public authorities using these powers. He still inspects councils despite their infrequent use. A typical inspection may include the following:

  • A review of the action points or recommendations from the previous inspection to check they have been implemented.
  • An audit of the information supplied by the CSPs detailing the requests that public authorities have made for disclosure of data. This information is compared against the applications held by the SPoC (Single Point of Contact) to verify that the necessary approvals were given to acquire the data.
  • Examination of individual applications to assess whether they were necessary in the first instance and then whether the requests met the necessity and proportionality requirements.
  • Scrutinising at least one investigation or operation from start to end to assess whether the communications data strategy and the justifications for acquiring all of the data were proportionate.
  • Examination of the urgent oral approvals to check the process was justified and used appropriately.
  • A review of the errors reported or recorded, including checking that the measures put in place to prevent recurrence are sufficient.

Act Now continues provides in house training on all aspects of covert surveillance under RIPA including accessing communications data. Get in touch for a quote.

Is my PD my PD?

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Myopic readers will have noticed that the selling of spectacles has migrated to the internet. There are many suppliers who will take your order, make up your glasses and post them to you for a very reasonable price. They don’t do eye tests obviously but you can have one done elsewhere and the optician will give you a copy of your prescription which you can take to any other optician including the web. So money savers everywhere will take up this option and consequently will save money on their next pair of specs. They may not hold them in their hands or perch them on their nose until they are finished but they will save money. After sales service is another issue and I have no experience of this.

Er… No.

What high street opticians do is take other measurements when doing the test and use these to tailor the spectacles to each individual. They will have a range of frames for people to try on and they will crucially measure and use your Pupillary Distance when preparing your spectacles. They’ll use expensive accurate machines to do this and it will make better fitting lenses for you.

You can do it yourself with a ruler, a mirror and a large dose of optimism or you can find a friend to help you. Unsurprisingly there are web opticians who will guide you.

But when the optician hands you your prescription as they are required to do they don’t volunteer your Pupillary Distance. Web opticians will suggest you ask for it but intimate that your optician may charge you for a figure fairly close to 63mm. If you’re Mr or Mrs Average this may not be a crucial issue but anyone with a strong prescription may need to have the best data available to make up their new spectacles.

But is your Pupillary Distance your personal data? It certainly relates to you and may even be sensitive data. If it is why can’t you have it without charge? What gives opticians the right to withhold it from you? I’ve squinted at the Opticians Act 1989 and the sight testing regulations 1989 but nowhere does it say what must or must not be done. Can you make a Subject Access request for it? Is the going rate the £10 that Subject Access can cost? Shouldn’t it be free? Or is it not Personal data? Can an optician tell me he holds no personal data on me?

Just because it’s easy to measure it yourself (badly) but hard to measure it accurately (at an optician) and will have a significant impact on your vision does it make it special in any way? You can weigh yourself every morning and know the result without anyone charging you for it.

Other health providers will carry out measurements of various parts of your body (and mind) and will give you the results. What makes Opticians different? Is there a legal power to charge? Or is it protectionism that keeps the high street Opticians trading and holds back the web offshoot?

A trawl through the web shows plenty of blogs and opinions  where optomotrists either label their customers as morons or cheapskates or alternatively (and encouragingly) suggest a small fee for a professional service in the hope they will retain the customer but the issue doesn’t seem easily resolved. More like on a case by case basis (that’s spectacle cases to you…).

Hmmm. If only there was an access mechanism I could use to obtain information from public bodies. Spoiler Alert.

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What about Freedom of information? Surely Opticians involved with General Ophthalmic Services are covered by the Act?

If an Optician fails to answer my SAR on the grounds it isn’t personal data they cannot thereafter cite section 40 (or 38) as a valid exemption. The cost of using FOI might even be lower than the £10 the DPA allows.

My two requests are in. By the very nature of DP & FOI surely one must succeed or maybe I’ll find a philanthropic myopic interested in the topic and he’ll see his way to giving me what I want without a charge.

Watch this space between my eyes.

Keep up to date with the latest DP developments by attending our workshops and online courses.

The @BCS FOI Certificate: A Career Boost

“The course gives you a greater understanding of FOI and EIR, as well as giving you greater confidence in their application. I feel that I can now advise on FOI and EIR with more authority.”
GJ, TFL

“Excellent course materials clearly presented by a very knowledgeable and friendly teacher. Highly recommended for new and experienced FOI officers.” 
LV, Public Health England

“Excellent trainer – fantastic breadth of knowledge and expertise. Would recommend this course to anyone.” 
PG, National Archives

“A perfectly pitched course led by an extremely knowledgeable trainer. Ideal for the novice or practising FOI officer.”
GT, Department of Health

“Thorough training, to the point but not dry.”
PS, Essex CC

“This has been a brilliant course – dynamic and pacey, which is an achievement in itself for such a dry subject.”
SB, Rural Payments Agency

The British Computer Society’s (BCS) Certificate in Freedom of Information (formerly ISEB) is now firmly established as one of the premier qualifications in FOI. It is internationally recognised and increasingly mentioned as a desirable qualification in FOI Officer job vacancies. Sometimes it is even stated as a requirement.

Act Now has been running courses leading to the certificate for many years. Our team of FOI experts have helped to make us one of the most successful companies in this area with a pass rate of over 85%.

Our course is aimed at anyone working in the FOI area, such as information managers, FOI practitioners, information governance officers, data protection officers, press officers and lawyers advising on information law issues. No prior knowledge is assumed although it always helps to have some experience of dealing with FOI requests. Our course runs over several weeks (one day per week) rather than being crammed into a few days. This allows delegates to get to know each other and benefit from their respective experience and knowledge. Often friendships are forged which continue to be of mutual assistance well after the course has ended.

Online Resource Lab

What makes the Act Now BCS FOI course unique is that we have a full online Resource Lab, which compliments the face-to-face teaching and course materials. Delegates can watch over 5 hours of videos on various aspects of the syllabus. Most videos are linked to an online quiz allowing delegates to test their knowledge at the end. There are also many standalone quizzes as well as links to ICO guides and other useful reference documents in the Resource Lab. This means that candidates have a full resource library which they can access at anytime to back up what they learnt on the course or to catch up if they fell asleep in the afternoon after a good lunch! Our courses are at five star (city centre) hotels so the latter is always a possibility.

The Exam!

The course is assessed through a three hour scenario based, closed book written exam which consists of:

  • Part A: 10 multiple choice questions (1 mark each)
  • Part B: 8 compulsory short narrative questions (5 marks each)
  • Part C: 6 questions – a compulsory case study (20 marks each) plus two other essay questions (15 marks each)

The pass mark is 50% (50/100) and the distinction mark is 80% (80/100).

Passing the exam is as much about exam technique as it about knowing the law and how to apply it. Our course (and homework) contains lots of scenario-based exercises which are designed to teach delegates how to answer the key points of a question within the time available in the exam. Each exercise/homework is further discussed in a group setting before a suggested answer is agreed upon.

We also hold a live online revision session, which allows delegates to ask the trainer to go over key areas of the syllabus and/or more sample questions. There is also a test at the end.

How To Pass

Don’t be too worried about the exam. You will be taught by a very experienced trainer who himself has passed the exam with a distinction. But in the end your success will depend on the hard work you are willing to put in. Timely attendance is essential as well as the doing the homework and taking an active part in discussions. We also find that candidates who pass the mock exam pass the real thing. Therefore revision for the mock is essential. Those who learn key facts as they go along rather than cram at the end inevitably tend to do well. (Read our other top tips here.)

A successful FOI candidate and a successful DP candidate have also shared their views on how to get the best out of the course on our blog.

Are you a Freedom of Information (FOI) practitioner wanting to give your career a boost? Or perhaps you are new to FOI wanting to quickly get up to speed with FOI law and practice? Now is the time to think about doing a BCS FOI course. Not only will it give you an in depth knowledge of FOI law and practice, it will allow you to prove your expertise to your colleagues through gaining an internationally recognised qualification. At Act Now we are dedicated to ensuring you get the best training and resources to help you achieve your potential. Don’t just take our word for it though.

Read what our previous delegates have said and one of the tutors. If you are feeling brave, have a go at our online BCS FOI test.

Our next BCS FOI Course starts next month in Manchester.

For Scottish colleagues we run the Act Now FOISA Practitioner Certificate which is endorsed by the Centre for Information Rights based at the University of Dundee.

Section 56 is here! Oh no it isn’t! Oh yes it is!

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Section 56 prevents employers from requiring people to use their subject access rights under the DPA to obtain and then provide certain records, as a condition of employment. It also prevents contracts from requiring certain records as a condition for providing or receiving a service. Section 56 does not, however, prevent such requests where the record is required by law or is justified in the public interest.

Section 56 was due to be commenced on 1 December 2014. Commencement was delayed because of a technical issue encountered when finalising arrangement for introduction. This issue has now been resolved.

Section 56 was commenced on 10 March 2015. There is a SI 2015/312, entitled, ‘The Data Protection Act 1998 (Commencement No. 4) Order 2015′.

It makes it a criminal offence to require an individual to make a subject access request and supply it to a potential employer for the purpose of obtaining or continuing in employment. It also relates to a supplier of goods, facilities and services to the public who require the production of a record to access that service. The ICO webinar suggests insurance might be such a case. They also suggest it applies to volunteers who help your organisation even they may not be in employment.

Most practitioners called it Enforced Subject Access. In November 2014 the ICO ran a webinar outlining what this means and it’s worth look. See the webinar on youtube at https://www.youtube.com/watch?v=zTYBvr-tb5U. It’s 36 minutes long so set aside a lunch hour and buy your sandwich first. It does a good job looking into all the minor points and ends up with a few good examples of how it will be used.

It’s quite a logical and straightforward concept. Why on earth would you require someone to produce their police record to progress their application for employment? Certain jobs with vulnerable people involve disclosures from the Disclosure & Barring Service and Disclosure Scotland is widely used but employers in these area know about this. Making people outside these areas obtain and produce a relevant record is clearly wrong.

There are some defences to a Section 56 charge – the usual suspects of under enactment, rule of law, court and also in the public interest but specifically excludes prevention or detection of crime from the public interest.

Now it’s time to watch the webinar, download the ICO guidance from https://ico.org.uk/for-organisations/enforced-sar/ and wait for the first case involving section 56.

Looking for a DP qualification? The Act Now Data Protection Practitioner Certificate is a practical four day course. The syllabus is endorsed by the Centre for Information Rights based at the University of Winchester. 

Controlling, Lying and Blocking: Ways for the individual to win the privacy arms race?

This is a version of Marion Oswald’s speech at the launch of the Centre for Law & Information Policy at the Institute of Advanced Legal Studies on 24 February 2015.

DPA5My talk is about controlling, lying and blocking. Could these activities enable an individual to win the privacy arms race against the data collection, surveillance, behavioural tracking and profiling abilities of search engines, marketers, social networking sites and others?

When we think about an arms race, we might imagine two sides evenly matched, both equally able to equip themselves with weapons and defences. But when it comes to individuals versus data collectors, the position is considerably unbalanced, the equivalent of a cavalry charge against a tank division.

It’s not however as if the individual is without protections. Let’s take consent, a key principle, as we know, of European data protection law. Consent based on privacy policies is rather discredited as an effective means of enforcing privacy rights over data held by commercial third parties. If I might quote Lillian Edwards, ‘consent is no guarantee of protection on Facebook and its like, because the consent that is given by users is non-negotiable, non-informed, pressurised and illusory.’[i] So what about regulatory enforcement? In the UK, it could be described as mostly polite, in the rest of Europe, sometimes a little more robust. The FTC in the US has had some notable successes with its enforcement action based on unfair practices, with Jessica Rich, Director of the FTC’s Bureau of Consumer Protection, advocating privacy as being part of the ‘bottom line.’[ii] It remains to be seen whether market pressures will drive good faith changes in privacy practices – alternative subscription, advertising-free business models have failed to make much headway in terms of market share. The so-called ‘right-to-be-forgotten’ has been much debated and I would question how much the Google Spain decision[iii] adds to the individual’s armoury, the original publication remaining unaffected. And as for personal data anonymisation, this could be subject of a whole afternoon’s debate in itself!

What can individuals do if they want to take matters into their own hands, and become a ‘privacy vigilante’?[iv] Here are three possibilities: first, personal data stores (or ‘personal information management services’) are said by their promoters to enable individuals to take back control over their personal data and manage their relationship with suppliers. Pentland from MIT describes a PDS as ‘a combination of a computer network that keeps track of user permissions for each piece of personal data, and a legal contract that specifies both what can and can’t be done with the data, and what happens if there is a violation of the permissions.’[v]

Secondly, blocking. Systems could prevent tagging of individuals by third parties and set privacy defaults at the most protective. Lifelogging technologies could prevent the display of any recognisable image unless that individual has given permission.[vi] Individuals could deploy a recently invented Google Glass detector, which impersonates the Wi-fi network, sends a ‘deauthorisation’ command and cuts the headset’s internet connection.[vii]

Finally, obfuscation, by which technology is used to produce false or misleading data in an attempt, as Murray-Rust et al. put it, to ‘cloud’ the lens of the observer.[viii] It’s the technological equivalent of what most of us will have already done online: missing off the first line of our address when we enter our details into an online form; subtly changing our birthday; accidentally/on-purpose giving an incorrect email address in exchange for a money-off voucher. A personal data store could, for instance, be used to add ‘chaff’ (adding multiple data points amongst the real ones), or simulating real behaviour such as going on holiday. Brunton & Nissenbaum describe obfuscation as a ‘viable and reasonable method of last-ditch privacy protection.’[ix] On the face of it, obfuscation may seem to be an attractive alternative approach, providing individuals with a degree of control over how much ‘real’ information is released and some confidence that profiling activities will be hampered.

Are these methods ways for the individual to win the privacy arms race? As things stand, I have my doubts, although that is not to say that a legal and regulatory regime could not be created to support these methods. PDSs raise numerous questions about contract formation, incorporation, offers and counter-offers. Service providers would need to be prepared to change their business models fundamentally if PIMS are to fulfil their potential. In the short term, there appears to be little commercial incentive for them to do so.

In terms of blocking, systems could adopt protective measures but they don’t, because they don’t have to. Google Glass blockers may well fall foul of computer misuse legislation if used by members of the public rather than the network owner. In the UK, there would be a risk of a section 3 offence under the Computer Misuse Act 1990 – an unauthorised act with intent to impair the operation of any computer. Haddadi et al. suggest the ‘continuous broadcast of a Do-Not-Track beacon from smart devices carried by individuals who prefer not to be subjected to image recognition by wearable cameras’ although the success of this would depend on regulatory enforcement and whether device providers received and conformed to such requests.[x] It would be rather ironic, however, if one had to positively broadcast one’s presence to avoid image recognition.

As for obfuscation or lying on the internet, Murray-Rust et al. distinguish between official data, where obfuscation may be a criminal offence, and other data that can be obfuscated ‘without legal consequence.’[xi] The distinction is unlikely to be so clear cut: both on the civil side, and on the criminal side (fraud and computer misuse spring to mind), and this is something that I’ll be writing about in the future.

I would like to finish with this question about privacy vigilantism: by continuing to shift responsibility onto the individual, is this letting society off-the-hook for finding better solutions to privacy concerns?[xii] I think it probably is. Finding better solutions will require even closer interaction between computer scientists, lawyers and policy-makers.

Marion Oswald is a Senior Fellow and Head of the Centre for Information Rights at the University of Winchester (marion.oswald@winchester.ac.uk @_UoWCIR). This article was first published by the Society for Computers & Law and is reproduced with the author’s kind permission.

The 2nd Winchester Conference on Trust, Risk, Information & the Law on 21 April 2015 will be exploring the theme of the privacy arms race. To book, please click here.

[i] Lillian Edwards, Privacy, law, code and social networking sites, in Research Handbook on Governance of the Internet, (2013) Edward Elgar (Cheltenham) Ian Brown (Ed), 309-352, 324-328

[ii] Jessica Rich, Director, Bureau of Consumer Protection, Federal Trade Commission Beyond Cookies: Privacy Lessons for Online Advertising, AdExchanger Industry Preview 2015, January 21, 2015, 4 http://www.ftc.gov/system/files/documents/public_statements/620061/150121beyondcookies.pdf

[iii] Google Spain v AEPD and Mario Costeja Gonzalez (C-131/12), 13 May 2014

[iv] Marion Oswald, Seek, and Ye Shall Not Necessarily Find: The Google Spain Decision, the Surveillant on the Street and Privacy Vigilantism, 99-115, Digital Enlightenment Yearbook 2014 (K. O’Hara et al. (Eds)

[v] A. Pentland, Social Physics: How Good Ideas Spread – The Lessons from a New Science, The Penguin Press, New York, 2014

[vi] C. Gurrin, R. Albatal, H. Joho, K. Ishii, ‘A Privacy by Design Approach to Lifelogging’, Digital Enlightenment Yearbook 2014 (K. O’Hara et al. (Eds), 49-73, 68

[vii] A. Greenberg, Cut Off Glassholes’ Wi-Fi With This Google Glass Detector, Wired, June 3, 2014, http://www.wired.com/2014/06/find-and-ban-glassholes-with-this-artists-google-glass-detector/

[viii] D. Murray-Rust, M. Van Kleek, L. Dragan, N. Shadbolt, Social Palimpsests – Clouding the Lens of the Personal Panopticon, 75-96, 76, Digital Enlightenment Yearbook 2014 (K. O’Hara et al. (Eds)

[ix] Finn Brunton, Helen Nissenbaum, ‘Vernacular resistance to data collection and analysis: A political theory of obfuscation’ First Monday, Volume 16, Number 5, 2 May 2011 http://firstmonday.org/article/view/3493/2955

[x] H. Haddadi, A. Alomainy, I. Brown, Quantified Self and the Privacy Challenge in Wearables, Society for Computers & Law, 5 August 2014 http://www.scl.org/site.aspx?i=ed38111

[xi] nviii,90

[xii] nix

Data Protection, the Law and Social Media: Keeping Your Boat Afloat

 [ File # csp10560861, License # 2907340 ] Licensed through http://www.canstockphoto.com in accordance with the End User License Agreement (http://www.canstockphoto.com/legal.php) (c) Can Stock Photo Inc. / buchachon

Paul Gibbons writes…

Social media have been good for me. Without my FOIMan blog and Twitter feed, I would never have been asked to deliver training for Act Now Training, or indeed offered many of the wonderful opportunities that have come my way in the last few years. I’ve made a whole new career off the back of them. Not only has my profile been raised by my use of these tools, but I’ve been able to learn from a whole range of knowledgeable people online – expanding my awareness and horizons way beyond anything I’d have considered possible just five years ago.

But even if I remove my FOIMan cape for a moment, social media has had a significant impact on me. I keep in touch with old friends via Facebook. My CV is widely available to hundreds of business contacts via LinkedIn. Before I book a holiday or dine out, I check Trip Advisor. If I want to know how decisions are made by my local council or indeed the Ministry of Justice, I can submit an FOI request via WhatDoTheyKnow. With an election on the way I can find out my MP’s voting record by consulting TheyWorkForYou, and perhaps write to them to ask what their position is on a particular issue. If I feel particularly strongly about that issue I might add my details to an online petition. Social media in their many forms pervade our lives. Many of us would be lost without them.

And it’s not just individuals that are becoming reliant on it. These tools provide novel ways to engage with the people who use them. Businesses have not been slow to exploit them for marketing and public relations purposes. Politicians – often accused of being remote from their electorate – have, with varying success, used them to speak directly to parts of that group. Academics conduct surveys, then disseminate their research, both via social media. A recent study found that 40% of students use social media as their primary form of communication with lecturers. Journalists also use it to research and report on stories. No television broadcast is complete these days without a hashtag allowing the viewers to interact. The police have used them to investigate or prosecute criminal acts. Central government encourages civil servants to embrace Twitter as a tool to communicate about public policy and gain insights into people’s reaction to it. Local government too, has found social media a productive way to interact with local citizens. We’re only beginning to see the ways in which social media can benefit our businesses, government, work and lifestyles.

However, as with most things, there are downsides. There are the trolls lurking not under a bridge but under assumed names on Twitter, ready to spread their malice. It’s easy to get carried away and post in haste – repenting at our leisure. Just as social media can make careers and boost reputations, it can destroy them overnight. It empowers individuals, and many companies and public bodies have been keen to use it to give a human face to their corporate image. But those same individuals can use it intentionally or not to disfigure that public face. They can disclose confidential information more easily, expose the business to liability for breach of copyright or defamation, and breach the Data Protection Act by discussing personal matters relating to clients, customers or colleagues.

Don’t believe me? Take the social worker who posted information on Facebook about a child protection court case she was involved in, potentially allowing the family to be identified. Or the companies at the centre of Twitter storms. Or sued for using a photographer’s images without permission. In a recent post on my FOIMan site, I highlighted an academic who posted internal correspondence relating to an FOI request on WhatDoTheyKnow, in the process potentially damaging the institution’s reputation, relationships with their colleagues, and almost certainly causing their employer to breach the Data Protection Act’s first data protection principle (to handle personal data fairly and lawfully) in the process. Even those organisations whose employees should know better have had to take disciplinary action: between 2009 and 2014, 519 disciplinary actions were taken against police officers for social media related transgressions, and the Crown Prosecution Service reported that nine of its staff had been disciplined for similar reasons over that period. Not for nothing has the Ministry of Defence warned its employees that “Loose Tweets Sink Fleets”.

The temptation in the face of this litany of institutional and individual disaster is to adopt the ostrich position. Ban your employees from using social media altogether. Avoid their corporate use. This won’t work. For a start, you will miss out on all the benefits highlighted at the start of this piece and more. But besides, it’s way too late for that. Pandora is not just out of the box but is running the show. You could impose contractual obligations on your staff requiring them not to use social media, or at least not to discuss their work there. If you do though you may find yourself losing staff who choose to work for a more progressive employer. In any case, it may be too late, as the Kent Police and Crime Commissioner discovered when she appointed a 17 year old to the post of Youth Police and Crime Commissioner.

You can’t stop your customers or the public writing about you on social media, but if you’re not using it, you’ll only find out what they’re saying about you too late. You’ll have no way to react to adverse comment online save through the traditional media which may not go to press until your business has collapsed clothed only in the tatters of its reputation.

So if you can’t avoid the risks of social media altogether, what can you do? The next best thing is to mitigate those risks. Like any other tool that you use, you need policies setting out acceptable use. You need to secure your most valuable and sensitive information. You need to raise awareness of your policies and legal restrictions so that your employees understand what they are allowed (or even encouraged) to do using social media, and also what they shouldn’t do – and what the consequences of doing it will be.

Where can you find out more about the risks that social media poses to your organisation? Or indeed the opportunities it offers? What should you include in a social media policy? Do you need to keep records of your social media use, and if so, how?

Well, social media itself will offer many solutions if you’re brave enough to jump in. But if you want a guide, my new training course on Data Protection, the Law & Social Media will provide answers to the questions above, and will point you to resources to help your organisation and its employees use social media effectively whilst avoiding the pitfalls. The course runs for the first time in Manchester on 20 April, and in London on 22 April 2015, and can also be run as an in-house course for your Data Protection, Communications and other staff. Get in touch with Act Now Training now for more details or book through their website.

Revised RIPA Policy and Procedures Toolkit (2015)

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The local authority surveillance regime((under the Regulation of Investigatory Powers Act 2000, (RIPA)) has seen a number of developments in the past few years. These include:

  • Since 1st November 2012, whenever exercising any powers under RIPA (doing Directed Surveillance, deploying a CHIS or accessing Communications Data) councils have had to obtain Magistrates’ approval. Directed Surveillance has also been made the subject of a new Serious Crime Test (Read about the changes in detail here). On the whole the changes are working well.
  • On 10th December 2014 revised versions of two RIPA codes of practice  RIPA codes of practice came into force.
  • More guidance has been published by the Information Commissioner on what to do when covert surveillance is not regulated by RIPA.
  • The Office of Surveillance Commissioners  continues to highlight poor form filling and record  keeping in his annual reports.

Now is the time to revise your RIPA policies and procedures to take account of these developments.

The revised Act Now RIPA procedures and guidance toolkit includes an updated version of our previous RIPA Forms Guidance document, which was bought by over one hundred different organisations. In addition there are detailed guidance notes on deciding when surveillance is caught by RIPA, how to authorise it and what to do about surveillance which is not regulated by RIPA. The toolkit is written in straightforward language (avoiding legal jargon) and includes flowcharts to assist understanding.

The full contents list includes:

Updated – Completing the RIPA Forms

  • Procedure for completing the forms
  • Common mistakes
  • All Directed Surveillance forms with full notes to assist completion
  • All CHIS forms with full notes to assist completion

Seeking Magistrates’ Approval

  • Step by step guide to the process
  • Judicial application/order form with full notes to assist completion

Updated – Undertaking Non RIPA Surveillance

  • When it is appropriate
  • Non – RIPA Surveillance Authorisation Form
  • New Non – RIPA Surveillance Cancellation Form

New – Employee Surveillance Guidance

  • When it is appropriate
  • Complying with the Data Protection Act 1998
  • The latest ICO decision
  • Privacy Impact Assessments

More here: http://www.actnow.org.uk/content/117

The normal price of the toolkit is £199 plus vat for a hard copy and £399 plus vat for an electronic version (plus hard copy) with a licence to make additional hard copies and to upload the toolkit on to an intranet site (for internal use only).

DISCOUNT – If you bought the previous the version on the toolkit you qualify for a 20% discount.

Scottish colleagues can buy the RIP(S)A version of the toolkit here: http://www.actnow.org.uk/content/84

For those of you looking for refresher training in this area, we have a full program of public workshops. We can also bring the training to you for a customised in house training course. Please get in touch for a quote.

Open the Floodgates! Water Companies Subject to EIR

On 23rd February 2015, the Upper Tribunal ruled that water companies are subject to the Environmental Information Regulations 2004 (EIR).

In Fish Legal v Information Commissioner and others [2015] UKUT 0052 (AAC) the Tribunal, applying the previous ruling of the Court of Justice of the European Union (ECJ) from December 2013 (Fish Legal and Emily Shirley v Information Commissioner, United Utilities Water plc, Yorkshire Water Services Ltd, Southern Water Services Ltd), ruled that that water companies are covered by EIR by virtue of their “special powers”. However the Tribunal rejected an argument that they were public authorities by virtue of the fact that they are under the control of other public authorities, such as OFWAT or the Environment Agency.

It’s a complex and the lengthy judgment. Those advising water companies need to read (and re read) all sixty pages. It could have widespread implications for other private organisations that are running public services, such as the electricity, gas, rail and telecommunications industries. However, the Upper Tribunal refused to lay down general principles for when the EIR would apply to such bodies.

It could be that the next round of this lengthy battle will see the parties square up in the Court of Appeal. Then again Thames Water and United Utilities (one of the parties to the appeal) seem to have changed their websites following this ruling to say that they are now covered by EIR and advising what to do to make a request.

The CON29 Drainage and Water Enquiry provides information regarding water and sewerage services for prospective property buyers. This has been a good source of income for the water companies who enjoy an almost monopoly over the information. Could personal search companies now turn their attention to water companies and try to obtain access to this information with a view to providing their own water and drainage search reports? If the battle over Con29 Local Land Charges information held by councils is anything to go by (currently at the ECJ for a preliminary ruling), EIR geeks are in for a treat!

We will be discussing these and other recent EIR developments in our EIR workshops.