Data protection implications of MPs crossing the floor

Douglas Carswell MP is a data controller.

It says so on the Information Commissioner’s register:

carswell

(I hope he remembers to renew the registration when it expires next week  it’s a criminal offence to process personal data as a data controller without a registration, unless you have an exemption).

But, more directly, he is a data controller because as an MP he is a person who determines the purposes for which and the manner in which the personal data of his constituents is processed.  Sensible guidance for MPs is provided by Parliament itself

A Member is the data controller for all personal data that is handled by their office and they have overall responsibility for ensuring that this is done in accordance with the DPA.

I have already written recently raising some concerns about Carswell’s alleged handling of constituents’ personal data. But this week he decided to leave the Conservative Party, resign his seat, and seek re-election as a member of the UKIP party. James Forsyth, in the Daily Mail, talks about the constituency knowledge Carswell will bring to UKIP, and reports that “one senior Ukip figure purrs: ‘The quality of Douglas’s data is amazing'”.

As a data controller an MP must process constituents’ personal data in accordance with the eight data protection principles of the Data Protection Act 1998 (DPA). Failure to do so is a contravention of the data controller’s obligation under section 4(4). Data subjects can bring legal claims for compensation for contravention of that obligation, and for serious contraventions the ICO can take enforcement action, including the serving of monetary penalty notices to a maximum of £500,000.

The second data protection principle requires that

Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes

A person’s political opinions are “sensitive personal data”, afforded even greater protection under the DPA. It is not difficult to understand the historical basis for this, nor, indeed, the current basis for its still being so. Data protection law is in part an expression of and development of rights which were recognised by the drafters of the Universal Declaration of Human Rights and European Convention on Human Rights. Oppression of people on the basis of their politics was and remains distressingly common.

If constituents have given Carswell their details on the basis that it would be processed as part of his constituency work as a Conservative MP they might rightly be aggrieved if that personal data were then used by him in pursuit of his campaign as a UKIP candidate. As Paul Bernal tweeted

If I gave my data to help the Tories and found it was being used to help UKIP I’d be livid
Such use would also potentially be in breach of the first data protection principle, which requires that personal data be processed fairly and lawfully. It would not be fair to share data with a political party or for the purposes of furthering its aim in circumstances where the data subject was not aware of this, and might very reasonably object. And it would not be lawful if the data were, for instance, disclosed to UKIP in breach of confidence.

An interesting twitter discussion took place this morning about whether this apparent use of constituents’ data might even engage the criminal law provisions of the DPA. As well as Carswell, there may be other data controllers involved: if some of the data he was in possession of was for instance, being processed by him on behalf of, say, the Conservative Party itself, then the latter would be data controller. Section 55 of the DPA creates, in terms, an offence of unlawfully disclosing personal data without the consent of the data controller. However, as was agreed on twitter, this would be a complex knot to unpick, and it is unlikely, to say the least, that either the ICO or the CPS would want to pursue the matter.
Notwithstanding this, there are serious questions to be asked about the DPA implications of any MP crossing the floor. The use of personal data is likely to be a key battleground in the forthcoming general election, and throw even sharper focus on European data protection reform. I would argue that this is a subject which the ICO needs to get a grip on, and quickly.

 

UPDATE: Paul Bernal has written a superb piece on the broader ethical issues engaged here.

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Due to data protection, an apology

Earlier today I noticed a tweet from British Airways, in response a query from someone who had apparently tweeted their booking reference number. BA said

Hi…for data protection we must ask you remove the booking ref from your feed. We’ll look into this and get back to you.

I thought it was mildly amusing and irritating that “data protection” was being cited as the reason for the request to delete the tweet. “Data protection” sometimes seems like a catch-all term companies trot out when they’re asked for any sort of information which they’re reluctant to disclose. This time it seemed like BA were extending this to a paternalistic oversight of people’s twitter feeds.

In this instance, though, BA responded politely to my tweet, explaining why they discourage customers from posting booking numbers on social media, and others politely rallied to their cause.

So I’m just posting to say to BA – I’m sorry. I think you’re right to discourage the public posting of private information, and I understand why you sent that tweet. It was puerile of me to pick it up and tweet about it.

But, even though the issue is related to the processing of personal data, I do still think it was a bit silly to use “data protection” to justify your sensible suggestion to a customer to delete one of their tweets.

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Some observations on the MoJ £180,000 data protection “fine”

1. It wasn’t a fine: section 55A of the Data Protection Act 1998 (DPA) gives the Information Commissioner’s Office (ICO) the power to impose a monetary penalty notice (MPN) to a maximum of £500,000 on a data controller which has made a serious contravention of its obligation to comply with the data protection principles, and the contravention was of a kind likely to cause substantial damage or substantial distress (and the data controller knew or should have known about the risk). There is often confusion over the civil and criminal sanctions in the DPA, perhaps not helped by the fact that the main criminal sanction is at section 55, and the main civil sanction at section 55A. However, although the incorrect use of the term “fine” is understandable in some circumstances, I don’t think the ICO themselves should use it.

2. The money goes straight back to the government: this is true – monetary penalties do not get paid to the ICO. Rather, they are paid into the Consolidated Fund – the government’s bank account. While this does have an element of absurdity (and similar complaints are sometimes made when the ICO serves MPNs on other public bodies, such as the NHS, or local authorities) recent research (and personal anecdotal experience) suggests that the MPNs are effective in improving data controller compliance. One wonders if alternative methods, like individual liability for data controller failings (which would require major primary legislation), would have similar effects.

3. The Ministry of Justice funds the ICO: in part, at least. The MoJ funds the ICO for its freedom of information work. Its data protection work comes from the fees data controllers pay the ICO to appear on its register. Nonetheless, penalising the MoJ could be seen as biting the hand that feeds – it is commendable that the ICO is not afraid to do so.

4. The MoJ is data controller for prisoner data within prisons: being the person or persons who determine the purposes for which and the manner in which any personal data are, or are to be, processed. That’s a heck of a lot of highly sensitive personal data to be responsible for. And such responsibility carries potential huge liability for errors.

5. This is not the first MPN the MoJ has received: less than 12 months ago the MoJ received an MPN of £140,000 for a remarkably similar set of events to those which prompted the latest MPN. Both MPNs involved insecure processes to safeguard prisoner databases – in the first an unencrypted database file was emailed to a member of the public, and in the second a hard disk containing a prisoner database, which should have been encrypted but wasn’t, has been lost. As MPNs are often served (as these were) for contraventions of the obligation to have appropriate organisational and technical measures in place to safeguard against loss of data, one might argue that a second such serious contravention might have warranted even more severe sanctions. The ICO even notes that the second contravention was because of a botched attempt to put right what happened in the first, and deems the second contravention “very serious” (as opposed to the first’s “serious”). I am not the only person I have spoken to who is surprised this latest MPN was not higher.

and finally

6. Data security is not just about technology: it’s also about people. In this instance the MoJ, after its first MPN (see above), sent hard drives to all relevant prisons which were capable of holding data in encrypted format.

But they forgot to tell the prison staff to switch encryption on.

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Data Protection Act non-pecuniary damages in the County Court

The Data Protection Act 1998 (DPA) is, as its regulator the Information Commissioner (IC) concedes, “complex and, in places, hard to understand”. Moreover, it has been observed that 

there is…little case law…most damages claims under the DPA go to the County Court, where unless you were in the case it is hard to know that it happened or get hold of a judgment

To which one would add that, as most damages claims go no further than the County Court those cases we do hear about don’t set precedent anyway.

However, thanks to the website LegalBeagles we do now have another judgment which deals with the DPA, and which was handed down in June this year in the County Court at Taunton. In the judgment (.pdf, 12MB), in rather dense prose, Deputy District Judge Stockdale ruled on a money claim against Lloyds Bank for unfair bank charges (the primary claim) and a claim for damages under section 13 of the DPA. Holding that the specific bank charges between 2007 and 2009, for unauthorised overdraft facilities, were indeed unfair (for reasons I am rather ill-equipped to explore), the Judge went on to hold that the referral of a default to credit reference agencies was in breach of the first data protection principle (Schedule One, DPA) which obliged the bank to process the claimant’s personal data fairly (and lawfully). This was because, by reference to the then IC Guidance “Filing of defaults with credit reference agencies”, the relationship between the lender and the individual had not broken down. The guidance said

The term ‘default’, when recorded on a credit reference file should be used to refer to a situation when the lender in a standard business relationship with the individual decides that the relationship has broken down

In this case, as the claimant and the bank, at the time the latter registered the default, had entered into a repayment arrangement (which the claimant was keeping to), it could not be said that the relationship had broken down.

An interesting point about this judgment is that the claimant’s case was bolstered by the fact he could point to a prior assessment opinion by the IC. He had complained about the bank’s actions to the IC, who had determined (in line – although this is unsaid in the judgment – with his duties under section 42 DPA to assess processing) that it was unlikely that the bank had complied with its DPA obligation. This clearly carried weight for the judge (as did the Guidance).

Another interesting point is that, in assessing the remedy for the contravention, the judge followed the (compelling) dicta of Tugendhat J in Vidal -Hall & Ors v Google Inc [2014] EWHC 13 (QB) and awarded compensation  for what was non-pecuniary damage of £1000, in recognition of the trouble to which the claimant had been put in pursuing the matter and bringing the claim. The claimant was also successful in an application under section 14(1) DPA for erasure/destruction of the default on his credit reference files.

Vidal-Hall has not yet come to trial. If, when it does, Tugendhat J’s “preliminary view” that “damage in s.13 does include non-pecuniary damage” is upheld, it could lead to a rush of similar claims being made.

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A fishy way of boosting party membership?

A tweet today referred me to a New Statesman article from October last year which contains what I think are actually quite serious allegations against Tory MP Douglas Carswell (who has today announced his intention to resign his seat and re-stand for UKIP) or, perhaps, against his local party machine. The magazine alleges that

A snout rang with the tale of an Essex man who went along to a Clacton fish-and-chip supper organised by the local MP, Douglas Carswell. The chap paid his £10, enjoyed his cod and then listened to the debate before going home unconvinced by the Tory case on Europe. So imagine his perturbation at a letter from Carswell’s office informing him that his tenner would be converted into membership of the constituency association unless he wrote back renouncing the party. The chap couldn’t be bothered to reply and – hey presto! – an unwanted Tory membership card duly popped through his letter box.

I do not know if if this is true*. I’ve asked Mr Carswell via his twitter account whether it is, but, understandably, he may have more pressing priorities today. He was certainly in the habit of hosting such events, as his personal blog shows.

But if it is true, it raises concerns about the handling of constituents’ personal data. The second principle of the Data Protection Act 1998 (DPA) provides that

Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes

and by section 4(4) of the DPA a data controller (the person or persons who determine the purposes for which and the manner in which any personal data are, or are to be, processed) must comply with the eight data protection principles. Failure to do so renders the data controller liable to private legal action by aggrieved data subjects, as well as regulatory enforcement action by the Information Commissioner (which can consist of monetary penalties to a maximum of £500,000 for especially serious contraventions). Mr Carswell’s entry on the Commissioner’s register confirms he accepts his status as data controller, as does the entry for his local Conservative Constituency Association. Any personal data of a constituent attending fish-and-chip suppers had to processed in accordance with eight principles, and wrongly recording someone as a member of a political party would involve the processing of sensitive personal data (a category which includes information about political allegiance, and which is afforded even higher protection).

And, as well as being in contravention of the second principle, such processing would be in breach of the first, which requires that personal data be processed fairly and lawfully. I’m not going to make a party political point, but as of today, even Mr Carswell might feel that, in broader terms, it would be particularly unfair to wrongly categorise someone as a member of the Tory party.

*If Mr Carswell refutes the allegations in the story I will be very happy to amend this blog post accordingly

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Twitter timeline changes – causing offence?

@jamesrbuk: Well that’s jarring: Twitter just put a tweet into my feed showing a still from the James Foley beheading video, from account I don’t follow

When the Metropolitan Police put out a statement last week suggesting that merely viewing (absent publication, incitement etc) the video of the beheading of James Foley, they were rightly challenged on the basis for this (conclusion, there wasn’t a valid one).

But what about a company which actively, by the coding of its software, communicates stills from the video to unwilling recipients? That seems to be the potential (and actual, in the case of James Ball in the tweet quoted above) effect of recent changes Twitter has made to its user experience. Tweets are now posted to users’ timelines which are not from people followed, nor from followers of people followed

when we identify a Tweet, an account to follow, or other content that’s popular or relevant, we may add it to your timeline. This means you will sometimes see Tweets from accounts you don’t follow. We select each Tweet using a variety of signals, including how popular it is and how people in your network are interacting with it. Our goal is to make your home timeline even more relevant and interesting

I’m not clear on the algorithm that is used to select which unsolicited tweets are posted to a timeline, but the automated nature of it raises issues, I would argue, about Twitter’s responsibility and potential legal liability for the tweets’ appearance, particularly if the tweets are offensive to the recipient.

Section 127 of the Communications Act 2003 says

A person is guilty of an offence if he—

(a)sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or

(b)causes any such message or matter to be so sent.

The infamous case of DPP v Chambers dealt with this provision, and although Paul Chambers was, thankfully, successful in appealing his ridiculous conviction for sending a menacing message, the High Court accepted that a tweet is a message sent by means of a public electronic communications network for the purposes of the Communications Act 2003 (¶25).

A still of the beheading video certainly has the potential to be grossly offensive, and also obscene. The original tweeter might possibly be risking the committing of a criminal offence in originally tweeting it, but what of Twitter, inserting into an unwilling recipient’s timeline?

Similarly, section 2 of the Terrorism Act 2006 creates an offence if a person is reckless at whether the distribution or circulation of a terrorist publication constitutes a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism (it’s possible this is the offence the Met were -oddly – hinting at in their statement).

I’m not a criminal lawyer (I’m not even a lawyer) so I don’t know whether the elements of the offence are made out, nor whether there are jurisdictional or other considerations in play, but it does strike me that the changes Twitter has made have the potential to produce grossly offensive results.

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The Savile Tapes – ICO says request for audio was vexatious

There is no index of character so sure as the voice – Benjamin Disraeli, Tancred

In October 2013 Surrey Police disclosed, in response to a request made under the Freedom of Information Act 2000 (FOIA) the transcripts of police interviews (under caution) of Jimmy Savile. The Information Commissioner’s Office ICO) has now ruled on a related request, which was for the actual audio recordings of the same interview, and, rather surprisingly, the ICO has agreed with the Police that they did not have to comply with the request, on the grounds that it was vexatious.

Until relatively recently it was difficult to rely on section 14(1) of FOIA (“a public authority [need not] comply with a request for information if the request is vexatious”) simply because the costs burden of dealing with it was too great. The ICO’s guidance did advise that one of the factors to bear in mind when considering whether a request was vexatious was “Would complying with the request impose a significant burden in terms of expense and distraction?”, but in general, for a public authority to refuse to comply with a FOIA request because of the costs, it had to be able to claim that the cost of compliance exceeded the appropriate limit (section 12 FOIA). However, a decision of the First-tier Tribunal (FTT) in 2012 appeared to shift the ground somewhat. Although FTTs’ decisions are not precedent, it was notable that a public authority (the IPCC in this case) was said to be entitled to rely on section 14(1) on the basis that

A request may be so grossly oppressive in terms of the resources and time demanded by compliance as to be vexatious, regardless of the intentions or bona fides of the requester. If so, it is not prevented from being vexatious just because the authority could have relied instead on s.12

As the always-excellent Pantopticon blog said at the time

This will be welcomed by those who find themselves unable to rely on section 12 due to the restricted list of activities which can be taken into account for cost purposes

but the context in that particular case meant that, in fact, the intentions and bona fides of the requester were relevant

The present requests were, in our opinion, not just burdensome and harassing but furthermore wholly unreasonable and of very uncertain purpose and dubious value…We are by no means convinced of [the requester's] good faith in making it

In the leading case on section 14(1) – IC v Dransfield [2012] UKUT 440 (AAC) – Wikeley J said that it was helpful, when considering whether a FOIA request is vexatious, to consider four “broad issues or themes”

(1) the burden (on the public authority and its staff); (2) the motive (of the requester); (3) the value or serious purpose (of the request) and (4) any harassment or distress (of and to staff)

but that ultimately, the test amounts to

is the request vexatious in the sense of being a manifestly unjustified, inappropriate or improper use of FOIA?

The ICO’s guidance, amended in light of Dransfield reframes this slightly and says that the

the key question a public authority must ask itself is whether the request is likely to cause a disproportionate or unjustified level of disruption, irritation or distress

The ICO draws on this guidance in the Savile decision, but, notably, appears to give considerable credence to the police’s evidence regarding the disruption – the burden – that redacting the audio of the interviews would cause, but does not appear to have interrogated this assertion in any depth. Moreover, the ICO notes its lack of expert knowledge on the subject of redaction, but nothing (other than, presumably, limited resources) prevented it from consulting an expert. Given that this appears to have been the primary evidence for the finding of vexatiousness (the ICO accepted that the requester’s motives were not intended to cause disruption or harassment) and given that the ICO accepted that there was a “qualitative difference” between the written transcripts and the audio (“The speed, volume, expressiveness and intonation of the actual speech may be considered to shed more light on how Savile responded to what was put to him in the interview”) it is difficult to see how the ICO decided that request could have been vexatious, rather than just of a level of annyoance and disruption it accepts a public authority must absorb. The request, using Wikeley J’s formulation, was not improper, it was not inappropriate – and was it really, therefore, a “manifestly unjustified use of FOIA”?

One hopes the bar of vexatiousness has not been lowered too far.

 

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Filed under Freedom of Information, Information Commissioner, police, vexatiousness

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