Category: Privacy

A comprehensive Privacy Policy.

DPA11I decided to look at Miley Cyrus’s website. Don’t know why. I just picked a teenage pop singer at random. I found however that I couldn’t just look at her website, I had to register before entering her website. I admit that I’m in socio-economic group A++ and age group 55  to 65 so my next action was probably not typical of a teenage hero-worshipper but I clicked on Privacy Policy to see what would happen if I registered to become a Mileyite.

The privacy policy was in the smallest font I have ever see. It was also in a dusky pink graduated to deep purple background. It was hard work reading it so I right clicked, manipulated it into Arial 14 black and white using a well known word processor and before long I had 6 pages of top quality claptrap. Have a look…

Privacy Policy

This policy is effective as of November 29, 2011, and reflects only non-material changes and clarifications from the previous version.

Please read these terms of use carefully as they contain important information regarding your legal rights, remedies and obligations. these include various limitations and exclusions, and a dispute resolution clause that governs how disputes will be resolved.

This Privacy Policy, effective November 29, 2011, is designed to help you, the user, understand how Ground(ctrl)™ (“us”, “we”, or “our”) collects and then uses the personal information you provide us when signing up as a new “member.” We do this so you can make informed decisions both when deciding whether to become a member and when using this service.

By accessing and/or using this web site, you are (1) becoming a member of the Ground(ctrl)™ social networking community (the “network”) and (2) accepting the practices described in this Privacy Policy.

We would like to thank you for becoming a member of the network—a network that takes each member’s privacy rights seriously. If you have any questions concerning the network’s Privacy Policy, please contact us at the mailing address, telephone number, or email address at the end of this page.

About ground(ctrl)™

Ground(ctrl)™, as a third-party administrator, maintains and administers the network and this web site. The intent of this web site, and other similar sites maintained and administered by us, is to create a social networking community wherein members can communicate with each other as well as interact with and promote their favorite musicians’ careers.

To enhance each member’s social networking experience, we request and display personal information to other members and visitors. This information is necessary to allow members to identify each other, expand their network of friends, promote each member’s favorite musicians through contests and other incentives, and to repay members for their interaction with the network through contests and prizes.

The Information We Collect

When you visit this web site, you provide us with three types of information:

  1. Web site information collected by us through your interaction with this web site;
  2. Personal information you knowingly and voluntarily disclose to us when signing up as a member and through the continued use of this service; and
  3. Personal information you knowingly and voluntarily disclose to use when using this service.

First, when you or any member signs on to this service, we collect your IP address, your browser type, and certain information from your browser using “cookies”. A cookie is a piece of data stored on a computer that is tied to information about the user. You can easily remove or block this cookie using the settings in your browser if you wish to disable this feature. To confirm that you are logged into the service, we use session ID cookies that immediately terminate once you close your browser.

Second, when signing up as a member to this web site, and during membership, we collect several pieces of personal information to enhance the network. This information includes the following:

  • Your first and last name
  • For the purpose of addressing you personally
  • Your email address and encrypted password
  • To provide you with access to your personal account, and to send notifications about activity on the website
  • Street address, city, state, postal code, country
  • To verify billing information for orders you place on the website and/or ship merchandise to you
  • Your location
  • So you may optionally share your geographic location with other members of the website
  • Birth date
  • So that you may optionally share your age with other members of the website
  • AIM, Yahoo screen name, Jabber, ICQ screen names
  • So that you may optionally share your instant message information with other users of the site
  • Flickr user id and Twitter user name
  • So that you may optionally display recent photos and twitter posts on your profile page
  • Links to your third-party sites
  • So that you may optionally share favorite or other personal websites with other members of the site
  • An avatar image
  • So that you may optionally provide a visual representation of yourself next to items you publish on the site

We will not collect any more any information that is necessary for you to participate in the Ground(ctrl)™ social networking community.

Third, when using this service, you may change your member profile, send messages to other members, receive messages from other members, form relationships, view photos, share photos, post blog comments, post links to other web sites (including web sites not controlled by ground(ctrl)™), transmit information through various channels, participate in musician campaigns, earn points toward promotional items, and redeem those points for promotional items (collectively the “User Content”).

Children’s Online Privacy Protection Act Of 1998

This privacy policy is provided in conformity with the Children’s Online Privacy Protection Act of 1998 (“COPPA”). COPPA requires that we notify parents and legal guardians and obtain consent from parents and legal guardians before we collect, use and/or disclose personal information from children under thirteen (13) years of age.

If parents or legal guardians have any questions regarding their child’s use of this web site, they may contact the operator of this website at the following address, phone number or email:

Additional operators maintaining information collected through this website include: Miley Cyrus .

The personal information we collect from children under thirteen (13) years of age, and the manner in which we use such information, is identical to the collection and use of any other member’s information. Please refer to sections entitled “The Information We Collect” and “How We Use the Information” for a detailed discussion of how we collect and use personal information from all members, including children under thirteen (13).

As a means of verifying parental consent, we may require that verification be given to us in one of two ways. First, we may require permission by email from what we are told is the parent’s email address. Thereafter, we will respond to that email address to verify that we have received such permission. Second, we may require that the parent consent by providing us with their full name, a valid credit card number and an expiration date. We will not charge your credit card. We will merely use the information to confirm your consent and once verification is or is not made, we will immediately destroy such information.

We do not require any additional information from children under thirteen (13) other than the minimum amount of information we need in order for the child to participate. Parents may review the personal information we collect on that parent’s child by mailing a request to us at the operator address listed above. The parent, after reviewing such information from us, may have it deleted and/or refuse to allow further collection by sending us an email using the password sent with the physical file that we mail to you. The parent also has the option to agree to the collection and use of the child’s information without consenting to the disclosure of the information to third parties.

Correcting, Updating or Removing Your Information

At any time, members can correct, update, or remove any of their personal information by logging into their account and accessing the “Edit Profile” feature.

How We Use the Information

We collect the personal information listed above so that we can provide you with personalized features and an enhanced and efficient web site experience. We usually retain this information so you can, for example, view messages you have already read or check campaign dates you are already aware of. You understand and acknowledge that copies of your User Content may remain viewable in cached and/or archived pages or if other members have copied and/or stored your User Content, even after your information has been removed.

When you sign up as a member to the network, you create your own profile. Your profile information, including your name and your photo are displayed to other members in the network so that you may interact and communicate with them. On occasion, we may use your name and email address to send you notifications about the network’s new services, promotional items, merchandise, band news, and transactions involving your accumulated points. Generally, you may opt out of such emails by clicking on the “unsubscribe” link in the email. However, the network expressly reserves the right to send you notices about your account even if you opt out of all voluntary email notifications.

Without identifying you as an individual, the network may provide third parties with information contained in your profile for data gathering purposes (ex: gathering data on how many members like both band A and band B so that personalized advertisements, promotions, etc. can be sent to those particular members). We believe that this information gathering allows each member to get the most out of the network’s benefits—e.g., the distribution of band information that, based on your profile, matters to you.

Sharing Your Information with Third Parties

This web site is about sharing information with others of your choosing, and a limited number of third parties, to enhance each member’s promotional and informational-sharing experience. Except as otherwise described in this Privacy Policy, the network does not disclose personal information to any third party unless the network believes that disclosure is necessary to:

  1. Enforce the network’s Terms and Conditions of Use Agreement;
  2. Protect the network’s rights;
  3. Coincide with legal requirements (ex: responding to a subpoena, search warrant, or any other legal process served upon Ground(ctrl)™). We will not reveal information until we have a good faith belief that the law enforcement information and/or private litigant request meets the applicable legal standards;
  4. Protect the safety of it’s members; or
  5. Enhance each member’s promotional and informational-sharing  experience.

The network may provide services jointly with other companies and we may share customer information with that company in connection with your use of that service.

Your name, network names, and profile picture thumbnail will be available in search results across the network and those limited pieces of information may be made available to third party search engines. This is primarily so your friends can find you and send a friend request. People who see your name in searches, however, will not be able to access your profile information unless they have a relationship to you that allows access based on the privacy settings.

Ground(ctrl)™ expressly reserves the right to transfer personal information to a successor in interest that acquires the rights to that information as a result of the sale of Ground(ctrl)™, or the sale of a substantial portion of its assets to that successor in interest.

Third-Party Advertising

Advertising may appear on this web site and may be delivered to members by one of our web advertising partners. Those web advertising partners may download cookies to your computer that allow the ad server to recognize your computer each time they send you an online advertisement. The web advertising partners may also use other technologies such as JavaScript and “web beacons” (also known as “1×1 gifs”) to measure the effectiveness of their ads and to personalize advertising content. As a consequence, ad servers may compile information about where you, or others using your computer, saw their advertisements and determine which ads you, or others using your computer, clicked on. The purpose of this information is to allow an ad network to deliver targeted advertisements that they believe will interest you. This privacy policy covers the use of cookies by our network only and does not cover the use of cookies by any third-party advertiser.

Comments, Blogs, Messages, and Links

Please be aware that whenever you voluntarily post any information as a comment, blog, message, link, photo, video, and/or other information, that information can be accessed by the public and can then be used by those people to send you unsolicited communications. Additionally, if you post a link to your network web site on any third party site, your public profile will be viewable by any third party that clicks on your link. If you do not wish to have your public profile viewable to any third party, you should not post links to your network web site on third party sites.

This web site may contain links to other sites, including links posted by you or other members. We are not responsible for the privacy practices of other web sites. As such, we encourage our members to read the privacy statements of each and every web site they visit after clicking on these third-party links. This Privacy Policy applies solely to the information collected in the use of our network and this web site.

Security

Each member’s account is secured by a member-created password. The network employs reasonable measures to protect member information that is stored within our database, and we restrict the access to member information only to those employees who need access to perform their job functions, such as our customer service personnel and technical staff.

Note: We cannot guarantee the security of each member’s account information as unauthorized entry or use, software or hardware failure, and other uncontrollable factors may compromise the security of each member’s personal information at any time. The network does, however, consider security of each member’s personal information a priority and we take reasonable security steps to protect that information.

Disclaimer of Liability for Unauthorized Viewing of Personal Information

You post User Content, as described above, on this web site at your own risk. Despite our reasonable efforts to keep your User Content inaccessible to those not authorized to view it, be aware that no perfect security measure(s) exist to insure impenetrability. Additionally, we cannot control the actions of other members that you may choose to share your page and User Content with. We are not responsible for the circumvention of any privacy settings or security measures contained in this web site. Consequently, we cannot and do not guarantee that the User Content you provide and/or post on this web site will not be viewed by unauthorized individuals.

Changes in the Privacy Policy’s Terms of Use, Notices and Revisions

We may change this privacy policy from time to time. We reserve the right to change our Privacy Policy and our Terms of Use Agreement at any time. Non-material changes and clarifications will take effect immediately, and material changes will take effect within 30 days of their posting on this site. If we do make changes, we will post those changes and indicate at the top of this page the Privacy Policy’s new effective date.

Through this process, members will always be aware of what information we collect, how we use it, and who we may disclose it to. Each member is bound by any change to this Privacy Policy if he or she uses the site after said changes have been posted. If, however, we change this Privacy Policy so that we are using personal information in a manner materially different from the manner as stated at the time of collection, we will notify the members here, by email, or through notice on our home page.

Your use of this web site and our network, and any disputes arising from it, is subject to this Privacy Policy and our Terms of Use Agreement and all of its dispute resolution provisions including arbitration, limitation on damages and choice of law. We strongly encourage you to refer to this Policy on an ongoing basis so that you understand the most current Privacy Policy terms. Unless stated otherwise, our current Privacy Policy applies to all information that we have about you and your account.

Contacting This Web Site

If you have any questions regarding this Privacy Policy, the practices of this web site, or your dealings with this web site, please contact us at the following mailing address, phone number, or email address:

  • ground(ctrl)
  • 120 K. Street Suite 3rd Floor
  • Sacramento, CA 95814
  • Toll Free: 1 (877) GND-CTRL
  • Phone (916) 443-9202
  • Fax (916) 443-9204

If you’ve read this far well done. You’ve probably decided that One Direction are a safer bet…

Or are they?

Data Protection Update workshop – Analysis of the latest DPA cases, developments and news from the ICO. Our next workshops are in Manchester on the 18th November and in London on the 27th November. If you don’t have time to attend our full day workshops try our DP Update webinar on the 28th November.

The shortest Data Protection Policy in the world?

shortestYoungest son has been looking for work and was interviewed for some warehouse job with a big name in retail and had this thrust under his nose while being interviewed. Luckily the modern scourge of camera phone proved very useful at this point and he showed me this image when he returned home. Is it a Policy? Who is the data controller? Why do applicants have to sign to agree that their application form goes to a prospective employer? Why do they need medical details?  The questions go on and on.  Contradiction in the final paragraph.  And they’ve squeezed all this into just over 50 words. Is it possible to write a Data Protection Policy that will fit into 140 characters? Who writes this stuff?

Use of Social Media in Investigations

canstockphoto10560861All investigators, when tackling rogue traders, fraudsters or errant employees, need to make use of the Internet as an investigatory tool. Unfortunately there is a lack of knowledge of Internet investigation techniques amongst investigators especially those working in the public sector. The Internet can reveal a treasure trove of free information, which can even lead to the perpetrators’ door (literally).

Do you have a smartphone and therefore an on-line account for managing email, contacts and messages? Do you use it for accessing applications such Instagram, Flickr (for storing photographs online) and Facebook?

If these applications are used, without properly controlled account settings, then available on-line (for all to see) is your private information, your photographs and other personal data. Even information that you yourself have not uploaded or stored can be mined for more personal information. You might have had photographs taken by a professional, for example for the sale of a home, or at events or weddings, or even by friends and family. These images are then posted on web sites and/or stored on-line (perhaps on Instagram, and Flickr ) often without your knowledge. The images will retain tagging and geo data used by the photographer to catalogue their albums. This might be your postcode, email address, name, or other identifying information. Someone who knows what to look for and where to look can discover a lot about you!

Worrying! But also very useful if you are investigating an individual for criminal or civil offences (or just disciplinary matters). Here are a few examples where such information was used by investigators to find out about individuals clearly “up to no good.”

Case Study 1 – The Malicious Blogger

A Chief Executive of a public sector organisation received an email containing particularly threatening and abusive language and menacing comments. Enquiries about the routing of the email revealed it had been sent from an Internet café.

Just twenty-five minutes of open source research produced a result. The advanced search facilities within Google, and a couple of search facilities specific to social networking sites, identified the full details of the sender. Step one was to search the email address, which revealed a posting on a blog, which in turn revealed a publicly listed unique user name. This was searched and the user was found on a couple of unpleasant blogs linking with others. This in turn led to another user name which was very close to the individual’s real name. This in turn led to his Facebook account, tagged images, and other unpleasant on-line postings. A few minutes later the home address of the perpetrator together with very current photographs were discovered. He was found to be a professional working for a public authority!

Case Study 2 – The Rogue Employee

An employee was suspected of working on his own business whilst off sick from work. Resource intensive and potentially controversial covert surveillance was one of many options considered. However, from just a mobile number this individual was traced to an EBay account using the EBay advanced search facility. As well as identifying the goods for sale through this business venture, the username for this EBay account was linked to a website with a Twitter account. Tweets by this person revealed the exact times and dates when he was working on his own business. Much of what he was doing was taking place when he was at work. A web of business networking and LinkedIn activity was also unravelled detailing far more than what the investigators had imagined.

These are just a couple of examples of investigations where auditors/investigators benefitted from having a thorough knowledge of online investigation techniques. It doesn’t always work this easily but my new course explains the most effective techniques. I also provide practical guidance on how to capture online evidence to accepted national standards.

Any form of surveillance of individuals raises a lot of legal issues (see Ibrahim Hasan’s recent article on the law of employee surveillance). There are pitfalls especially relating to privacy, Data Protection and RIPA to name a few. This course will also give delegates an opportunity to network with others who face the same challenges.

Steve Morris is an ex police officer and one of our expert RIPA course trainers. Steve’s new E Crime and Social Networking Course is proving very popular amongst auditors and investigators wanting to know how to make best use of the Internet when conducting investigations.

The Law of Employee Surveillance

RIPA4Decreasing public sector budgets and increasingly affordable technology mean that more and more employers are turning to surveillance to catch errant or work shy employees. But this area is a legal minefield. Mistakes can end up with adverse headlines in the media or worse still legal action. In August, West Yorkshire Fire Service was criticized in the papers when a 999 operator, who was on sick leave, found a GPS tracker planted on her car by a private detective hired by her bosses.

A public sector employer wanting to conduct lawful staff surveillance must first ask the question, which legislation applies? If the surveillance involves covert techniques or equipment, it is easy to assume that Part 2 of the Regulation of Investigatory Powers Act 2000 (“RIPA”) applies and that the surveillance must be the subject of an written authorisation by a senior officer and, in the case of a local authority employer, Magistrates’ approval. However, the Investigatory Powers Tribunal has ruled in the past that not all covert surveillance of employees is regulated by RIPA.

In C v The Police and the Secretary of State for the Home Department (14th November 2006, No: IPT/03/32/H), a former police sergeant (C), having retired in 2001, made a claim for a back injury he sustained after tripping on a carpet in a police station. He was awarded damages and an enhanced pension due to the injuries. In 2002, the police instructed a firm of private detectives to observe C to see if he was doing anything that was inconsistent with his claimed injuries. Video footage showed him mowing the lawn. C sued the police claiming that they had carried out Directed Surveillance under RIPA without an authorisation. The Tribunal first had to decide if it had jurisdiction to hear the claim. The case turned on the interpretation of the first limb of the definition of Directed Surveillance i.e. was the surveillance “for the purposes of a specific investigation or a specific operation?”

The Tribunal ruled that this was not the type of surveillance that RIPA was enacted to regulate. It made the distinction between the ordinary functions and the core functions of a public authority:

“The specific core functions and the regulatory powers which go with them are identifiable as distinct from the ordinary functions of public authorities shared by all authorities, such as the employment of staff and the making of contracts. There is no real reason why the performance of the ordinary functions of a public authority should fall within the RIPA regime, which is concerned with the regulation of certain investigatory powers, not with the regulation of employees or of suppliers and service providers.”

The Tribunal also stated that it would not be right to apply RIPA to such surveillance for a number of reasons:

  1. RIPA does not cover all public authorities, and there was no sense in police employee surveillance being conducted on a different legal footing than, for example, the Treasury, which does not have the same surveillance rights under RIPA.
  2. The Tribunal has very restrictive rules about evidence, openness and rights of appeal. The effect of these would lead to unfairness for employees of RIPA authorities when challenging their employers’ surveillance as compared to those who were employed by non RIPA authorities.

This case suggests that, even where employee surveillance is being carried out for the purpose of preventing or detecting crime, the question has to be; is it for a core function linked to one of the authority’s regulatory functions? In the local authority context this would include, amongst others, trading standards, environmental heath and licensing. If the surveillance is not being done for one of these purposes it will not be Directed Surveillance and consequently will not be regulated by RIPA.

Of course just because RIPA may not apply, it does not mean that the employer can do what it likes. Whatever type of surveillance is conducted, the right to privacy, under Article 8 of the European Convention on Human Rights, protects employees within the work environment.  This means that the surveillance must be carried out in a manner that is in accordance with the law and is necessary and proportionate. There have been a number of cases where employers have been criticised by the courts for failing to take account of the human rights issues when doing surveillance of employees e.g. Copland v UK (3rd April 2007 ECHR) concerning communications surveillance and Jones v Warwick University ((2003) 3 All ER 760) concerning a claim for personal injury. Compliance with the Data Protection Act 1998 (DPA) will be evidence that the surveillance has also been done in compliance with Article 8.

All employers, be they public or private sector, have to comply with the DPA when doing surveillance, as they will be gathering and using personal information about living individuals. The Information Commissioner has published the Data Protection Employment Practices Code, which sets out rules to be followed when dealing with employees’ personal data.

Part 3 of the code covers all types of employee surveillance from video monitoring and vehicle tracking to email and Internet surveillance. Indeed those public authorities who are doing surveillance of their employees which now, in the light of the above Tribunal case, cannot be authorised under RIPA also have to pay special attention to the code. Whilst the code is not law, it can be taken into account by the Information Commissioner and the courts in deciding whether the DPA has been complied with.

One of the other main recommendations of the code is that senior management should normally authorise any covert surveillance of employees. They should satisfy themselves that there are grounds for suspecting criminal activity or equivalent malpractice. They should carry out an impact assessment and consider whether the surveillance is necessary and proportionate to what is sought to be achieved i.e. the same considerations that public sector employers subject to RIPA would have to consider when doing a RIPA authorisation. This assessment is best done in writing using a “Non-RIPA” surveillance form (Our RIPA Policy and Procedures Toolkit contains such a form).

If covert surveillance of an employee results in his/her dismissal, the matter will usually end up before the Employment Tribunal in the form of unfair dismissal proceedings. Here the Tribunal will also have to consider whether evidence has been gathered fairly and lawfully. In City And County Of Swansea v Gayle UKEAT 0501_12_1604 (16 April 2013) Swansea Council conducted covert video surveillance on the claimant, when he was for good reason suspected of playing squash during work time, whilst claiming payment for being at work at the time.  The surveillance confirmed he was seen at the sports centre on a succession of Thursdays when he should have been at work.

The Employment Tribunal upheld a claim for unfair dismissal (though awarding nil compensation, for contributory conduct) because of the Tribunal’s distaste for the employer’s use of covert surveillance. Its view was that Article 8 (right to privacy) was engaged and broken in doing so. It took account of the council’s lack of awareness of its obligations under the DPA and the Code.

These views were rejected on appeal to the Employment Appeal Tribunal. The appeal was allowed with a substituted finding that the dismissal was not unfair. The Tribunal did not accept that here there was any breach of Article 8(1) so as to require the Tribunal to consider the requirements of 8(2) at all.  If, however, the Tribunal had done so it would have been bound to consider the legitimate aim which the Council claimed to have.  Here one of two such aims might have been identified.  The first was the prevention of crime, the second the protection of the rights and freedoms of others, the “others” here being the employers whose money was at stake and who had contractual rights in agreement with the claimant that he would behave in a way in which as it happened he did not.

This is an interesting case for employers. Dismissals will not necessarily be unfair when covert surveillance is used as part of the dismissal process. Employees acting fraudulently on employer’s time cannot expect their actions to be kept private from the employer. However, employers would be well advised to tread with caution. Following the correct procedures and being mindful of their obligations under the DPA (as well as Human Rights) will inevitably put an employer in a better position.

Employee surveillance may not always engage RIPA. However data protection and human rights laws will always have to be carefully considered. In cases of surveillance of staff e-mail and internet usage Section 4 of RIPA and the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 will also need to be considered. For more on the latter please see our online training course (Email and Internet Monitoring: How to do it lawfully).

Act Now can help you get to grips with this difficult area. Please see our full program of surveillance law courses which can also be customised and delivered at your premises. If you want a quick update try our forthcoming webinars.

Listen to Ibrahim Hasan’s interview on BBC File on Four on Secrecy and Surveillance: of http://www.bbc.co.uk/programmes/b03bdsyk

Data Sharing Consultation – Do we need new laws?

The Law Commission has opened a consultation on the law around sharing of personal information between public sector organisations. Law Commissioner Frances Patterson QC says:

“It could be that more data sharing would improve public services but, if that is so, we need to understand why data is not being shared.  Is there a good reason to prevent data sharing?  Or is the law an unnecessary obstacle?  Are there other reasons stopping appropriate data sharing?  These are the questions we want to answer in this consultation.”

The legalitiecanstockphoto1632442s of data sharing is a subject which often confuses public sector officials. Local authorities, in particular, are often stumped by the “To Share or Not to Share” question, even if the sharing is for very good reasons (e.g. child protection or crime prevention). In some cases, even internal departments have felt constrained from updating each other about a change of a service user’s address.

More often than not, the Data Protection Act 1998 (DPA) is made the scapegoat for officials’ failure to fully understand the law. It is wrongly perceived as a barrier to data sharing despite offering a range of justifications (e.g. consent, legal obligation, protecting vital interests etc. (Schedule 2)).

Many attempts have been made to resolve this “problem”. In May 2011, the Information Commissioner published a statutory Code of Practice on data sharing. The code explains how the DPA applies to the sharing of personal data both within and outside an organisation. It provides practical advice to the public, private and third sectors, and covers systematic data sharing arrangements as well as one off requests for information. Under Section 52 of the DPA, the code can be used as evidence in any legal proceedings and can be taken into account by the courts and the Commissioner himself when considering any issue.

Despite the clear guidance in the code, the Government has sometimes toyed with the idea of new laws. Last year, according a story in the Guardian newspaper, proposals were to be published by the Cabinet Office minister, Francis Maude, which would make it “easier” for government and public-sector organisations to share confidential information supplied by the public:

“In May, we will publish proposals that will make data sharing easier – and, in particular, we will revisit the recommendations of the Walport-Thomas Review that would make it easier for legitimate requests for data sharing to be agreed with a view to considering their implementation,” said Maude, adding that current barriers between databases made it difficult for public sector workers to access relevant information.

“It’s clearly wrong to have social workers, doctors, dentists, Job Centres, the police all working in isolation on the same problems.”

The Guardian reported that the proposals are expected to include fast-track procedures for ministers to license the sharing of data in areas where it is currently prohibited, subject to privacy safeguards.  I could not find the proposals on the web. Anybody know whether they were ever published?

Confusion around data sharing continues to reign! The tragic case of Daniel Pelka is one example. The recent report into the four-year-old’s death, published by the independent Coventry Safeguarding Children Board identified a number of missed opportunities where professionals across a number of agencies should have done more to protect Daniel. Amongst other things, it concluded that the sharing of information and communications between all agencies was not robust enough.

Ill informed comments about the current law (especially the DPA) do not help. In a recent Daily Telegraph article by Michael Gove, the Education Minister claimed that, whilst tying to understand the underlying causes of child exploitation, he discovered that OFSTED “was prevented by “data protection” rules, “child protection” concerns and other bewildering regulations from sharing that data with us, or even with the police.” There is nothing in the DPA which prevents this. Don’t just take my word for it. Read the Information Commissioner’s riposte to the learned Mr Gove.

Do we really need new laws on data sharing or a better awareness of the existing ones? My view is that the current law is adequate to regulate yet allow responsible data sharing. The DPA and the Data Sharing Code need to be properly understood. They can be a tool allowing responsible data sharing. Most public sector data sharing will be lawful if organisations comply with the Eight Data Protection Principles; particularly the First Principle which requires information to be processed fairly and lawfully. There are also numerous exemptions in the Act including where sharing is required for the purpose of prevention or detection of crime (section 29).

The Law Commission consultation runs until 16 December 2013 and the paper may be accessed at: http://lawcommission.justice.gov.uk/. Responses can be emailed to data.sharing@lawcommission.gsi.gov.uk or sent by post.

More Information: Read our article for a full explanation of the ICO Data Sharing Code or watch this free webinar. We also run full day Multi Agency Information Sharing workshops.

The 2013 Surveillance Commissioner Report – Key Points

RIPA22The Chief Surveillance Commissioner published his 2013 annual report (covering the period from 1st April 2012 to 31st March 2013) on 18th July 2013. It is important reading for those public authorities who conduct surveillance under Part 2 of the Regulation of Investigatory Powers Act 2000 (RIPA).

The report details statistics relating to the use of Part 2 of RIPA by public authorities and information about how the Office of the Surveillance Commissioner (OSC) conducts its oversight role. Non-law enforcement agencies (including councils) authorised Directed Surveillance on 5,827 occasions. This continues a downward trend over the last few years.

The report highlights a number of important issues some of which are listed below:

  • Common errors by RIPA authorities include miscommunication or failure to communicate the details of an authorisation; failure to conduct thorough reviews, renewals or cancellations; ignorance on the part of officers; or poor administration or processes.
  • The Commissioner says that all public authorities have struggled with the use of the Internet for investigations, particularly social networking sites. At paragraph 5.7 he advises caution on conflating the offline word with the online world. There may be cases where RIPA authorisation is required when doing research about a person on the Internet. He goes on to say, “… it is important to bear in mind that it is not always possible to give a definitive answer as to whether a particular activity requires authorisation: facts are infinitely variable. Where there is doubt authorisation is prudent.”  Act Now has developed a course on E-Crime and Social Networking Sites which examines all the relevant RIPA and wider legal issues.
  • Too many tactics requested by investigating officers are unused. Authorising officers and Senior Responsible Officers should monitor whether applicants are lazily requesting tactics out of habit rather than necessity.
  • Too many cancellations provide an insufficient record of surveillance actually conducted and the details of collateral intrusion. Rarely does guidance on the retention or destruction of product go beyond an inadequate reference to policy. It is vital that surveillance product that does not match the objectives stated in the authorisation is not retained on databases.
  • At paragraph 5.5, the Commissioner reiterates his view that RIPA is permissive legislation and there may be occasions where surveillance outside the scope of RIPA may be required. He points to the recent IPT decision in BA and others v Cleveland Police (IPT/11/129/CH). This is in keeping with Ibrahim Hasan’s view as explained on this blog.
  • Where there is an invasion of privacy and RIPA does not apply, due to all conditions not being met, then the Commissioner recommends use of a similar written authorisation mechanism where Article 8 issues (privacy) are considered.
  • The Commissioner also considers the changes, which took effect on  1st November 2012; namely magistrates’ approval for council surveillance and a new six month threshold test for Directed Surveillance.  On the whole they are working well. There were 142 approval requests made to a Magistrate in the reporting period of which only two were rejected.
  • Finally the Commissioner fires a shot across the bows of those authorities who drag their feet in accepting his recommendations. At paragraph 5.18 he says, “I expect the recommendations of my reports to be followed whether or not individual officers agree with them. Continued failure to do so – especially on the ground that current practices have been unchallenged in court proceedings – may result in publication of my guidance or recommendations to a wider audience.”

Now is the time to consider refresher training for RIPA investigators and authorisers. Please see our full program of RIPA Courses which have been revised to take account of all the latest developments. We can also deliver these courses at your premises, tailored to the audience. Finally, if you want to avoid re inventing the wheel, our RIPA Policy and Procedures Toolkit gives you a standard policy as well as forms (with detailed notes to assist completion) for authorising RIPA and non-RIPA surveillance. Over 200 different organisations have bought this document (available on CD as well).

Grandma’s spends

granGrandma had been getting worse day by day. She’s living in her own home with help from various agencies but she’s an easy target. Dementia has been diagnosed. Last year she paid a door to door salesman £1,800 by cheque for an item she didn’t want which was available on ebay for £45. It took a long time for the firm to accept that they had exploited an elderly woman and it took quite a while to get the money back. As a result of that Grandma’s cheque book was confiscated by her granddaughter. Pension was redirected to the bank instead of the Post Office and Grandma was given some spends. Problem solved. She couldn’t spend the not insignificant balance in her bank just the handful of tenners in her purse (and these mostly went on fags and fish & chips).

Then the spends started disappearing. £50 on Monday evening turned into £30 by Wednesday and Grandma complaining that she didn’t have enough. Daughter in law topped Grandma up to £40.  It turned into £10 by Friday and no-one knew where it was going. Grandma and Alzheimers didn’t help. Her short term memory was non existent. She didn’t go out much at all. She didn’t appear to buy much. Rarely did anyone call at the door. Carers & meals on wheels arrived, so did the hairdresser.

Eventually the conclusion was reached that it was either Grandma stashing it away for the future or someone else was involved. To resolve the issue a hidden camera would be installed. After a few quotes we settled on a local man who’d done this many times. 3 motion activated hidden cameras in lounge, kitchen and understairs cupboard. £375 a week. They went in last Monday.

” I can save you £375″ he joked as he twiddled his screwdriver, “It’s always the carer”.

Donning our DP hats for a moment…

  • Who is the data controller?
  • Who are the data subjects?
  • Is notification required?
  • Is there data processor issue?
  • What Schedule 2 or 3 condition justifies the processing?
  • Are the Subject information Provisions relevant?
  • Which exemptions might apply?
  • Is RIPA relevant?
  • Do we need a PIA?

The Security firm didn’t consider any of these questions. They just installed the cameras.

Two hours after installation (but a week later as we trawled through 800 images downloaded to our laptop from the card inside the cameras) we saw on image number 4 someone go into the understairs cupboard with Grandma’s handbag, hang it up on a hook, open it, take some notes from the purse and replace it. The Security man said the evidence was good enough for the police (being well versed in this sort of thing). It happened again on image 43 then again on image 267.

The culprit? It was someone the grand daughter knew well and who had been visiting grandma every day to check she was eating properly, doing odd jobs around the house and generally looking out for a vulnerable old lady. She was being paid for this service but had chosen to take a few pounds every day to boost her income.

The next stage is to confront the person; consider telling the police; consider informing her employer; find a new helper; let grandma know what has been going on and pay the security man who had a part time job as a fortune teller.

It was, as he predicted, the carer.

The school that didn’t learn its lesson.

In 2011 I received a gorgeous CD through the mail from a school. It invited me to send my children (at the time aged 30, 29 and 25) to their school (35 miles away from my house). Read the full story on Act Now website ( a Northern school). I did complain to the ICO but his decision was in favour of the school. This was my conclusion to the affair.

“A school/college with no prior relationship with me buys my name from a list broker as I am apparently rich and with junior age children (wrong on both counts) and then sends me unsolicited marketing material through the post. When I exercise my right to subject access they ignore it for two and a half weeks then fail to give me what I ask for because they don’t know from where they obtained my personal data.

The ICO when asked to look into the case decides the college did nothing wrong.

Moral – keep bad records, mail who you like even those with no relevance to your product, fail to respond to individuals exercising their right to access promptly and you’ll be fine rather than fined. “

I put it down to experience never expecting to hear from the school again but today they emailed me. Despite me reporting them to the ICO and an investigation taking place and their promise to delete my name and address from their database they emailed me with an offer I couldn’t refuse.

I will complain again. This time I have PECR on my side as they have strayed into electronic marketing as well as basic section 11 stuff. The school is also now a serial offender. Will the ICO listen, take action or will I get a similar response 5 months after I complain. See you around Xmas time.

It’s time to name and shame Queen Ethelburgas. Look out for the information notice.

It gets worse.  I chose to report the message as spam as they invited me to. Here’s the screenshot of  their procedure. Only a few errors in spelling and punctuation.

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Disclosure of Staff Names under FOI

Most_Popular_Male_Names

When considering request for information under the Freedom of Information Act 2000(FOI) public authorities often face a dilemma about disclosing names of staff.

Names are generally considered to be personal data, being information relating to living identifiable individuals (as defined by the Data Protection Act 1998 (DPA)). (Although one Information Tribunal (as it was known then) decision, Harcup v Information Commissioner and Yorkshire Forward (EA/2007/0058), ruled they are not. (See episode 11 of my FOI Podcasts for a full discussion of this decision). Therefore the exemption under section 40(2) (third party personal data) will have to be considered.

For this exemption to be engaged a public authority must show that disclosure of the name(s) would breach one of theData Protection Principles. Most cases in this area focus on First Principle and so public authorities have to ask, would disclosure be fair and lawful? They also have to justify the disclosure by reference to one of the conditions in Schedule 2 of the DPA (as well as Schedule 3  in the case of sensitive personal data). In the absence of consent, most authorities end up considering whether disclosure is necessary for the applicant to pursue a legitimate interest and, even if it is, whether the disclosure is unwarranted due to the harm caused to the subject(s) (condition 6 of Schedule 2)?

The seniority of the staff, whose names are being requested, will of course be a key factor in deciding whether disclosure is fair. The first Information Tribunal decision on this issue, back in 2007, (Ministry of Defence v Information Commissioner and Rob Evans (EA/2006/0027)) concerned a request made by a journalist for a staff directory which included the names and contact details of individuals working for the Defence Exports Services Organisation. The MoD refused to disclose the information citing, amongst others, the exemption under section 40(2).

The Tribunal ruled that that the MoD could only withhold names of staff if they are particularly junior (below Civil Service B2 Level), not immediately responsible for the requested information and their name is not already available elsewhere (or would be expected to be through their performing a public-facing duty); or there is a clear and demonstrable threat to that individual’s health and safety if their name is made public.

As is clear from the MoD decision, seniority is just one factor to be taken into account. Public authorities should avoid the blanket non-disclosure of the names of all officers below a certain level of seniority. When it comes to the disclosure of names, what matters is what work the individuals are doing, rather than their seniority or grade. If a person is in a front facing role and his/her name is already in the public domain, then it will be difficult to withhold it.

In 2008 another Tribunal decision (The Department for Business, Enterprise and Regulatory Reform v Information Commissioner and Friend of the Earth (EA/2007/0072) examined whether names of private sector employees attending a meeting should be disclosed as well as those of civil servants. The request was for information about meetings and correspondence between Ministers and senior civil servants in the Department of Business, Enterprise and Regulatory Reform and employees from the Confederation of British Industry. Some of the documents relevant to the request included references to individuals who had attended such meetings as spokespersons or as note takers or bystanders. The Tribunal summarised the position as follows:

a. Senior officials of both the government department and lobbyist attending meetings and communicating with each other can have no expectation of privacy. The officials to whom this principle applies should not be restricted to the senior spokesperson for the organisation. It should also relate to any spokesperson.

b. Recorded comments attributed to such officials at meetings should similarly carry no expectation of privacy.

d. In contrast junior officials, who are not spokespersons for their organisations or merely attend meetings as observers or stand-ins for more senior officials, do have an expectation of privacy. This means that there may be circumstances where junior officials who act as spokespersons for their organisations are unable to rely on an expectation of privacy;

e. The question as to whether a person is acting in a senior or junior capacity or as a spokesperson is one to be determined on the facts of each case.

f. The extent of the disclosure of additional information in relation to a named official will be subject to usual test i.e. is disclosure necessary for the applicant to pursue a legitimate interest, and, even if it is, is the disclosure unwarranted due to the harm caused to the individuals by disclosure? This will largely depend on whether the additional information relates to the person’s business or professional capacity or is of a personal nature unrelated to business.

In January 2011, the First Tier Tribunal (Information Rights) considered disclosure of names in Dun v IC and National Audit Office (EA/2010/0060). The disputed information concerned the NAO’s enquiry into the FCO’s handling of employee grievances of a whistleblowing variety. The Tribunal was clear that no blanket policy should apply, and that fairness depends on the particular responsibilities and information with which the case is concerned. This decision is discussed in detail in episode 21 of my FOI Podcasts.

Where there is a risk to staff safety if their names are disclosed, then the public authority will be right to err on the side of caution. In Wild v IC and Chief Constable of Hampshire Constabulary (EA/2010/0132) the Appellant requested the dates of pre-hunt meetings in the last five years and the names of police officers attending pre-hunt meetings with organisers of the Isle of Wight Hunt. The Police responded, providing dates, but refusing to disclose the names of the officers in attendance.

The Commissioner considered the section 40(2) exemption and concluded that the disclosure would result in a breach of the First Data Protection principle.  He accepted that the disclosure may lead to the harassment of the officers identified and consequently the disclosure would be unfair to those officers. The Tribunal upheld the Commissioner’s decision.

Don’t forget condition 6 of schedule 2 of the DPA. A public authority will have to consider whether disclosure of a name is necessary for the applicant to pursue a legitimate interest, and, even if it is, whether the disclosure is unwarranted due to the harm caused to the individual by the disclosure.

A more recent Tribunal decision (January 2013), McFerran v IC (EA/2012/0030) involved a police search of a property owned by Shropshire County Council. At the police’s request, two junior council officers were present, but they had not been involved in any of the decision-making. The requester wanted the names of the council officers as well as their immediate superior. The council refused, relying on s. 40(2).

The Commissioner ordered disclosure of the name of the more senior officer, but not of the two juniors. The Tribunal agreed with this decision and dismissed the requester’s appeal, observing that:

“although… there is clearly a legitimate public interest in transparency of activity by public authorities, which impinges on the personal freedom of householders, there is insufficient information provided to add significant weight to the general public interest in transparency in public affairs. The Appellant has not satisfied us, either, that his attempts to have the matter investigated are being thwarted by the absence of the names of the individuals in question. If there is sufficient information about the event to interest those responsible for an investigation the absence of names will not deter them.”

This decision illustrates that, when it comes to junior officials, the requestor will have to show that there is legitimate interest in knowing the names of officers where they are junior. A general argument about openness and transparency will not suffice.

In Armit v IC and Home Office (EA/2012/0041) the UKBA redacted the names of the officials in a document entitled ‘Tourist Selection Indicators and Selection Techniques’ which fell within the scope of the request. The Tribunal agreed with this approach, taking account of the requester’s failure to identify a legitimate interest in public disclosure of the names of those officials:

“We do not accept the argument that the officials would not have expected their names within the document to be made public and were not given compelling evidence of this. We were given no information as to their specific grading but they were described in the document as ‘lead contributer’ and ‘lead postholder’. They clearly have some responsibility in relation to the work.  We were given no compelling evidence that disclosing their names would result in victimisation, insult or any form of danger.  However, we do accept that the officials would prefer not to have their names identified and that might in itself represent a certain right and freedom or legitimate interests in itself. In any event, to process personal data, it needs to be necessary to pursue the purposes of legitimate interests pursued by others.  In this case, we do not find that the Appellant has shown any legitimate interest in the names of the officials being disclosed to the public under FOIA. We conclude that the information is therefore exempt from disclosure.”

Another recent Tribunal decision on the disclosure of names is Roberts v IC and Dyfed Powys Police Authority (EA/2012/0032).

The issue of disclosure of names pursuant to an FOI request is a difficult one. As can be seen from this discussion of Tribunal decisions, a number of different factors have to be weighed in the balance. A blanket approach will not work.

Whilst on the subject of names, does an FOI requestor have to give his/her real name? Read the answer here  as well as a really bad joke!

Ibrahim Hasan will be discussing this and other recent FOI decisions in the FOI Update workshop  on 13th March 2013.

Do you want an international recognised qualification in FOI?                           The ISEB Certificate in Freedom of Information  starts in Birmingham on 26th March 2013.

Proposed EU Data Protection Regulation and Research

Man Reading Book and Sitting on Bookshelf in LibraryDavid Erdos believes a bid to tighten European data protection will have a chilling impact on social science and humanities research.  He writes:

Even with the advent of Web 2.0, data protection law is still often seen as technical and only narrowly applicable. Technical abstruseness aside (and data protection’s reputation here is certainly deserved), this understanding could not be more wrong. The existing European data protection framework really is breathtaking in scope. It applies to anything done electronically with any information about an identified or identifiable person – possibly including the dead. According to the European Union, even innocuous details in the public domain are protected (perhaps even the title of an author’s book). Moreover, if the information reveals the particulars of, for example, a person’s ethnic origin, political opinions, religious belief, trade union membership, health or criminality, then it is classed as “sensitive” and subject to even tighter controls. The European data protection framework is not only broad but often onerous. Barring specific exceptions (including a liberal one that can be invoked for journalism, literature and the arts), there is a presumption that individuals will be informed about the processing of data about them and given a right to object, that the processing of “sensitive” personal information will be banned and that no personal information will be transferred outside the European Economic Area without “adequate protection”.

So the popular perception of data protection is woefully inaccurate – which leads to a radical underestimation of the threat these regulations pose to the enjoyment of other fundamental rights and the pursuit of legitimate activities. Nowhere is this more the case than in social science and humanities research. Since the advent of the EU’s framework in the 1990s, researchers have witnessed dramatic restrictions on their freedom to use “sensitive” data and to deploy covert methods. Coupled with the growth of sometimes intrusive “ethical review” policies, the barriers and burdens placed in the way of even ordinary, innocuous, yet socially beneficial research and on researchers have become considerable.

It might have been hoped that the proposed EU Data Protection Regulation would provide an opportunity to reverse this. But if the European Parliament’s recently published draft amendments are anything to go by, the converse is true.

Contunue reading here.

This article was originally published in the 14-20 February 2013 edition of Times Higher Education and is published with the author’s permission. You can also read it on the Constitutional Law website.

The draft EU DP Regulation will be examined in our forthcoming 1 hour Data Protection Update Webinar : http://www.actnow.org.uk/courses/930