Act Now Training welcomes solicitor and surveillance law expert, Naomi Mathews, to its team of associates. Naomi is a Senior Solicitor and a co-ordinating officer for RIPA at a large local authority in the Midlands. She is also the authority’s Data Protection Officer and Senior Responsible Officer for CCTV.
Naomi has extensive experience in all areas of information compliance and has helped prepare for RIPA inspections both for the Office of Surveillance Commissioners and Investigatory Powers Commissioner’s Office (IPCO). She has worked as a defence solicitor in private practice and as a prosecutor for the local authority in a range of regulatory matters including Trading Standards, Health and Safety and Environmental prosecutions. Naomi has higher rights of audience to present cases in the Crown Court.
Naomi has many years of practical knowledge of RIPA and how to prepare for a successful prosecution/inspection. Her training has been commended by RIPA inspectors and she has also trained nationally. Naomi’s advice has helped Authorising Officers, Senior Responsible Officers and applicants understand the law and practicalities of covert surveillance.
Like our other associates, Susan Wolf and Kate Grimley Evans, Naomi is a fee paid member of the Upper Tribunal assigned to the Administrative Appeals Chamber (Information Rights Jurisdiction and First Tier Tribunal General Regulatory Chamber (Information Rights Jurisdiction).
Ibrahim Hasan, director of Act Now Training, said:
“ I am pleased that Naomi has joined our team. We are impressed with her experience of RIPA and her practical approach to training which focuses on real life scenarios as opposed to just the law and guidance.”
Naomi will be delivering our full range of RIPA workshops as well developing new ones. She is also presenting a series of one hour webinars on RIPA and Social Media. If you would like Naomi to deliver customised in house training for your organisation, please get in touch for a quote.
There is an interesting story this morning on the BBC website about a group of footballers threatening legal action and seeking compensation for the trade in their personal data. The use of data is widespread in every sport. It is not just used by clubs to manage player performance but by others such as betting companies to help them set match odds. Some of the information may be sold by clubs whilst other information may be collected by companies using public sources including the media.
Now 850 players (Ed – I don’t know if Ronaldo is one of them but I could not miss the chance to mention my favourite footballer!), led by former Cardiff City manager Russell Slade, want compensation for the trading of their performance data over the past six years by various companies. They also want an annual fee from the companies for any future use. The data ranges from average goals-per-game for an outfield player to height, weight and passes during a game.
BBC News says that an initial 17 major betting, entertainment and data collection firms have been targeted, but Slade’s Global Sports Data and Technology Group has highlighted more than 150 targets it believes have “misused” data. His legal team claim that the fact players receive no payment for the unlicensed use of their data contravenes the General Data Protection Regulation (GDPR). However, the precise legal basis of their claim is unclear.
In an interview with the BBC, Slade said:
“There are companies that are taking that data and processing that data without the individual consent of that player.”
This suggests a claim for breach of the First Data Protection Principle (Lawfulness and Transparency). However, if the players’ personal data is provided by their clubs e.g., height, weight, performance at training sessions etc. then it may be that players have already consented (and been recompensed for this) as part of their player contract. In any event, Data Protection professionals will know that consent is only one way in which a Data Controller can justify the processing of personal data under Article 6 of GDPR. Article 6(1)(f) allows processing where it:
“is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data… .”
Of course, this requires a balancing exercise considering the interests pursued by the clubs and data companies and the impact on individual players’ privacy. Some would argue that as far as public domain information is concerned, the impact on players’ privacy is minimal. However, “the interests or fundamental rights and freedoms of the data subject’ also include reputational damage, loss of control and financial loss, all of which it could be argued result from the alleged unauthorised use of data.
The BBC article quotes former Wales international Dave Edwards, one of the players behind the move:
“The more I’ve looked into it and you see how our data is used, the amount of channels its passed through, all the different organisations which use it, I feel as a player we should have a say on who is allowed to use it.”
The above seems to suggest that the players’ argument is also about control of their personal data. The GDPR does give players rights over their data which allow them to exercise some element of control including the right to see what data is held about them, to object to its processing and to ask for it to be deleted. It may be that players are exercising or attempting to exercise these rights in order to exert pressure on the companies to compensate them.
Without seeing the paperwork, including the letters before action which have been served on the companies, we can only speculate about the basis of the claim at this stage. Nonetheless, this is an interesting case and one to watch. If the claim is successful, the implications could have far-reaching effects beyond football. Whatever happens it will get data protection being talked about on the terraces!
Ibrahim Hasan, solicitor and director of Act Now Training, has given an interview to BBC Radio 4’s (PM programme) about this story. You can listen again here (from 39) minutes onwards.
Many countries have now been in some form of lockdown for a considerable length of time. As some of the lockdown measures are slowly being eased, one of the possible solutions to prevent a “second wave” is the implementation of temperature checks in shops and workplaces. This involves placing a thermometer on an individual’s forehead. Of course if the temperature is recorded or there is another way the individual can be identified, it will involve processing health data. Care must be taken to consider the GDPR and privacy implications.
Apple reopened stores across Germany on 11th May with extra safety procedures, including temperature checks and social distancing. It is now facing a probe by a regional German data protection regulator into whether its plan to take the temperature of its store customers violates GDPR.
The benefits of temperature check are self-evident. By detecting members of the public or staff who have a high temperature, and not permitting them to enter the store or workplace, staff have less risk of close contact with people who may have COVID 19. Temperature checks are just one small part of stopping the spread of COVID 19 and can be intrusive. What is the lawful basis for processing such data? Art 6(1)(d) of GDPR allows processing where it is:
“…is necessary in order to protect the vital interests of the data subject or of another natural person”
Of course “data concerning health” is also Special Category Data and requires an Article 9 condition to ensure it is lawful. Is a temperature check necessary to comply with employment obligations, for medical diagnosis or for reasons of public health?
All conditions under Article 6 and 9 must satisfy the test of necessity. There are many causes of a high temperature not just COVID 19. There have also been doubts over the accuracy of temperature readings. They take skin temperature, which can vary from core temperature, and do not account for the incubation phase of the disease where people may be asymptomatic.
The Information Commissioner’s Office (ICO) has produced guidance on workplace testing which states:
“Data protection law does not prevent you from taking the necessary steps to keep your staff and the public safe and supported during the present public health emergency.
But it does require you to be responsible with people’s personal data and ensure it is handled with care.”
The ICO suggests that “legitimate interests” or “public task” could be used to justify the processing of personal data as part of a workplace testing regime. The former will require a Legitimate Interests Assessment, where the benefit of the data to the organisation is balanced against the risks to the individual. In terms of Article 9, the ICO suggests the employment condition, supplemented by Schedule 1 of the Data Protection Act 2018. The logic used here is that employment responsibilities extend to compliance wide range of legislation, including health and safety.
More generally, the ICO says that that technology which could be considered privacy intrusive should have a high justification for usage. It should be part of a well thought out plan, which ensures that it is an appropriate means to achieve a justifiable end. alternatives should also have been fully evaluated. The ICO also states:
“If your organisation is going to undertake testing and process health information, then you should conduct a DPIA focussing on the new areas of risk.”
A Data Protection Impact Assessment should map the flow of the data including collection, usage, retention and deletion as well as the associated risks to individuals.
Some companies are even using thermal cameras as part of COVID 19 testing. The Surveillance camera Commissioner (SCC) and the ICO have worked together to update the SCC DPIA template, which is specific to surveillance systems.
As shops begin to open and the world establishes post COVID 19 practices, many employers and retailers will be trying to find their “new normal”. People will also have to decide what they are comfortable with. Temperature should be part of a considered approach evaluating all the regulatory and privacy risks.
Emma Garland is a Data Governance Officer at North Yorkshire County Council and a blogger on information rights. This and other GDPR developments will be covered in our new online GDPR update workshop. Our next online GDPR Practitioner Certificatecourse is fully booked. A few places left on the course starting on 2ndJuly.
The first three blog posts in this series have raised many issues about the proposed NHS COVID19 Contact Tracing App (COVID App) including the incomplete DPIA and lack of human rights compliance. In this final post we discuss concerns about how long the data collected by the app will be held and what it will be used for.
From the DPIA and NHSX communications it appears that the purpose of the COVID App is not just to be part of a contact tracing alert system. The app’s Privacy Notice states:
“The information you provide, (and which will not identify you), may also be used for different purposes that are not directly related to your health and care. These include:
Research into coronavirus
Planning of services/actions in response to coronavirus
Monitoring the progress and development of coronavirus
Any information provided by you and collected about you will not be used for any purpose that is not highlighted above.”
Article 89 of the GDPR allows Data Controllers to process personal data for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, subject to appropriate safeguards set out in Section 19 of the Data Protection Act 2018.
NHSX has said that one of the “appropriate safeguards” to be put in place is anonymisation or de-identification of the users’ data; but only if research purposes can be achieved without the use of personal data. However, even anonymised data can be pieced back together to identify individuals especially where other datasets are matched. The Open Rights Group says:
“Claims such as ‘The App is designed to preserve the anonymity of those who use it’ are inherently misleading, yet the term has been heavily relied upon by the authors of the DPIA. On top of that, many statements leave ambiguities…”
There are also legitimate concerns about “function creep”. What exactly does “research into coronavirus” mean? Matthew Gould, the chief executive of NHSX, told MPs the app will evolve over time:
“We need to level with the public about the fact that when we launch it, it will not be perfect and that, as our understanding of the virus develops, so will the app. We will add features and develop the way it works.”
Whilst speaking to the Science and Technology Committee, Gould stated that “We’ve been clear the data will only ever be used for the NHS.” This does not rule out the possibility of private companies getting this data as NHS Data Processors.
Privacy campaigners are also concerned about the length of time the personal data collected by the app will be held; for both contacts and for people who have coronavirus. The DPIA and Privacy Notice does not specify a data retention period:
“In accordance with the law, personal data will not be kept for longer than is necessary. The exact retention period for data that may be processed relating to COVID-19 for public health reasons has yet to be set (owing to the uncertain nature of COVID-19 and the impact that it may have on the public).
In light of this, we will ensure that the necessity to retain the data will be routinely reviewed by an independent authority (at least every 6 months).”
So, at the time of writing, COVID App users have no idea how long their data will be kept for, nor exactly what for, nor which authority will review it “every six months.” Interestingly the information collected by the wider NHS Test and Trace programme is going to be kept by Public Health England for 20 years. Who is to say this will not be the case for COVID App users’ data?
Interestingly, none of the 15 risks listed in the original DPIA relating to the COVID App trial (see the second blog in this series) include keeping data for longer than necessary or the lawful basis for retaining it past the pandemic, or what it could be used for in future if more personal data is collected in updated versions of the app. As discussed in the third blog in this series, the Joint Human Rights Committee drafted a Bill which required defined purposes and deletion of all of the data at end of the pandemic. The Secretary of State for Health and Social Care, Matt Hancock, quickly rejected this Bill.
The woolly phrase “personal data will not be kept for longer than is necessary” and the fact NHSX admit that the COVID App will evolve in future and may collect more data, gives the Government wriggle room to retain the COVID App users’ data indefinitely and use it for other purposes. Could it be used as part of a government surveillance programme? Both India and China have made downloading their contact tracing app a legal requirement raising concerns of high tech social control.
To use the App or not?
Would we download the COVID App app in its current form? All four blogs in this series show that we are not convinced that it is privacy or data protection compliant. Furthermore, there are worries about the wider NHS’s coronavirus test-and-trace programme. The speed at which it has been set up, concerns raised by people working in it and the fact that no DPIA has been done further undermines confidence in the whole set up. Yesterday we learnt that the Open Rights Group is to challenge the government over amount of data collected and retained by the programme.
Having said all that, we leave it up to readers to decide whether to use the app.
Some privacy experts have been more forthcoming with their views. Phil Booth of @medConfidential calls the Test and Trace programme a “mass data grab” and Paul Bernal, Associate Professor in Law at the University of East Anglia, writes that the Government’s approach – based on secrecy, exceptionalism and deception – means our civic duty may well be to resist the programme actively. Finally if you need a third opinion, Jennifer Arcuri, CEO of Hacker House, has said she would not download the app because “there is no guarantee it’s 100 percent secure or the data is going to be kept secure.” Over to you dear readers!
Will you be downloading the app? Let us know in the comments section below.
Everyone will agree that the government needs to do everything it can to prevent the further spread of the Coronavirus and to “save lives” (except if your name is Dominic Cummings -Ed). However, there is much less consensus about the what it should do, and this can be seen in the current debate about the proposal to roll out a contact tracing system and the NHS COVID App. This is the third in a series of blog posts where we examine the COVID App from different perspectives.
On May 7 2020, the Parliamentary Joint Committee on Human Rights (PJCHR) published its report on the proposed contact tracing system and made a series of important recommendations to address its concerns about the compatibility of the scheme with data protection laws and the Human Rights Act 1998. After waiting for two weeks, the Secretary of State for Health, Matt Hancock, replied to the Committee rejecting its proposals as “unnecessary!” Let us examine those proposals in detail.
The Human Rights Considerations
Section 6 of the Human Rights Act 1998 makes it unlawful for any public authority (that includes the UK government and the NHSX) to act in a way that is incompatible with a Convention right. Article 8(1)of the ECHR states that “Everyone has the right to respect for his private and family life, his home and his correspondence.” This is not an absolute right. Article 8(2) provides that an interference with the right to privacy may be justified if it:
“…is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
However, the government also has an obligation to protect the “right to life” enshrined in Article 2 of the ECHR. This means that if the NHS COVID App really can prevent the spread of the virus and save lives, then this is going to a major consideration in deciding whether the interference with Article 8 is necessary and proportionate.
On 7 May the Parliamentary Joint Committee on Human Rights (PJCHR) published a Report on the NHS COVID App and this provides a very detailed assessment of some of the human rights implications of the “centralised” approach that the NHS has proposed. The overall conclusion of the report is that if the app is effective it could help pave the way out of current lockdown restrictions and help to prevent the spread of Coronavirus. However, it also concludes that the app, in its current form, raises “significant concerns regarding surveillance and the impact on other human rights which must be addressed first.”
How will the COVID Appinterfere with the right to privacy?
At first glance it would appear that the COVID App does not involve the transfer of any personal data. As explained in the first blog in this series, app user will be given a unique ID which will be made up of a set of random numbers and the first half of a person’s post code. The NHS web site suggests that this ‘anonymises’ the information. However, as the Parliamentary Report notes, there are parts of England where less than 10,000 people live in a post code area and as little as 3 or 4 “bits” of other information could be enough to identify individuals. The report also notes that relying upon people self-reporting alone (without requiring conformation that a person has tested positive for COVID 19) may carry the risks of false alerts thereby impacting on other people’s rights if they have to self-isolate unnecessarily.
An interference with a person’s right to privacy under ECHR Article 8 may be justified under Article 8(2) if it is “in accordance with the law” and is “necessary” for the protection of “health” (see above).
To be in accordance with the law, the app must meet the requirements of the General Data Protection Regulation (GDPR) and the Data Protection Act 2018 “http://www. legislation.gov.uk/ukpga/2018/12/contents” (DPA). However, as noted below, the PJCHR believes that the “current data protection framework is contained in a number of different documents and it is nearly impossible for the public to understand what it means for their data which may be collected by the digital contact tracing system”. The Committee’s recommendations in relation to this are considered below.
The remaining human rights consideration is whether the interference with peoples’ private lives is “necessary”. The answer to this depends on whether the use of the app will contribute to reducing the spread of COVID 19 and whether it will save lives.
This in turn depends on whether the app works and on the uptake of the app.
Although it was reported that uptake of the app in the Isle of Wight has exceeded 50% of the population, this falls short of the 60% that the government had previously suggested was necessary for the app to be effective. It is also debatable whether it necessarily follows that the uptake will be the same on the mainland. If the App is not capable of achieving its objective of preventing the spread of the virus, then the interference with peoples’ privacy rights will not be proportionate and will not fulfil the requirement of necessity in Article 8(2).
Although many people will probably download the app without thinking about privacy issues (how often do any of us download apps without checking Privacy Notices?), many others may have some real privacy concerns, particularly after the recent media debates. This has not been helped by reports that Serco (the company contracted to train call centre staff for the contact tracing scheme) has accidentally shared the email addresses of 300 contact tracers. Or by the fact that in other parts of the world there is growing concern about the privacy issues related to the use of contact tracing apps. Uptake of the app may be adversely affected if people lack confidence in the way in which data is being processed and why, and in the light of above they may have concerns about data security.
Consequently, the PJCHR’s report includes a series of recommendations aimed at ensuring that “robust privacy protections” are put in place as these are key to ensuring the effectiveness of the app .
Central to their recommendations was a proposal that the government introduce legislation to provide legal certainty about how personal data will be processed by the COVID App. Although individuals’ data protection rights are protected by the GDPR and DPA 2018 the Committee believes that it is “nearly impossible” for the public to understand what will happen to their data and also that it is necessary to turn government assurances about privacy into statutory obligations. The PJCHR sent a copy of their draft Bill to Secretary of State, Matt Hancock. However, on 21 May Matt Hancock rejected that proposal on the basis that the existing law provides “the necessary powers, duties and protections” and that participation in contact tracing and use of the app is voluntary.
In contrast the Australian government has passed additional new privacy protection legislation specifically aimed at the collection, use and disclosure of its COVID safe app data.
The Committee’s other recommendations are:
The appointment of a Digital Contact Tracing Human Rights Commissioner to oversee the use, effectiveness and privacy protections of the app and any data associated with digital contact tracing. It calls for the Commissioner to have the same powers as the Information Commissioner. It would appear that Matt Hancock has also rejected this proposal on the basis that there is already sufficient governance in place.
Particular safeguards for children under 18 to monitor children’s use, ensure against misuse and allow for interviews with parents where appropriate. It is noticeable that the Committee has set the age at 18.
The app’s contribution to reducing the severity of the lockdown and to helping to prevent the spread of COVID 19 must be demonstrated and improved at regular intervals for the collection of the data to be reasonable. Therefore the Secretary of State for Health must review the operation of the app on a three weekly basis and must report to Parliament every three weeks.
Transparency. In the second of this series of blog posts, we noted some of the issues relating to the publication of the Data Protection Impact Assessment. The PJCHR calls for this to be made public as it is updated.
Time limited. The data associated with the contact tracing app must be permanently deleted when it is no longer required and may not be kept beyond the duration of the health emergency. However these terms may be open to some interpretation.
Matt Hancock has written that he will respond to these other issues “in due course”.
It is unclear what this means, but it does not suggest any immediate response.
The Draft Bill
The PJCHR’s draft bill (rejected by Matt Hancock) proposed a number of important provisions, some of which are set out below.
The Bill specifically limited the purpose of the COVID App to:
Protecting the health of individuals who are or may become infected with Coronavirus; and
Preventing or controlling the spread of Coronavirus (a) preventing the spread of Coronavirus.
Additionally it contained provisions that prohibited the use of centrally held data without specific statutory authorisation; limited the amount of time that data could be held on a smart phone to 28 days followed by automatic deletion unless a person has notified that they have COVID 19 or suspected COVID 19. It also prohibited “data reconstruction” in relation to any centrally held data. The fact that the Bill includes this, seems to suggest an implicit recognition that the Unique IDs are not truly anonymous.
The ‘status’ of the NHS COVID App keeps changing and it still remains to be seen when (and if) it will be rolled out. But the Northern Ireland Assembly has already announced it will be working with the Irish government to produce a coordinated response based on a decentralised model. It is reported to be doing this because of the difficulties and uncertainties surrounding the app, and the human rights issues arising from a centralised app.