February 22, 2023 · 8:24 am

Monitoring of lawyers by the state

In the Commons on Monday Robert Jenrick, minister for immigration, said, in the context of a debate on the implications of the violent disorder outside a hotel providing refuge for asylum seekers, in Knowsley on 10 February, and in answer to a question about why no “small boats bill” has been introduced into Parliament

this is one of the most litigious areas of public life. It is an area where, I am afraid, human rights lawyers abuse and exploit our laws at times, and where the courts have taken an expansive approach in the past. That is why we must get this right, but we will be bringing forward that legislation very soon

When pressed on his reference to abuse of the law by lawyers, and asked “how many solicitors, advocates and barristers have been reported by the Home Office in the last 12 months to the regulatory authorities”, Mr Jenrick replied

We are monitoring the activities, as it so happens, of a small number of legal practitioners, but it is not appropriate for me to discuss that here.

This is a remarkable statement, both in its lack of detail and in its potential effect. The prospect of the monitoring of lawyers by the state carries chilling implications. It may well be that Mr Jenrick had no intention of making what could be interpreted as an oppressive statement, but words are important, and words said in Parliament carry particular weight.

It may also be that the “monitoring” in question consists of legitimate investigation into potential criminality by that “small number” of lawyers, but if that was the case, why not say so?

But “monitoring”, in itself, must be done in accordance with the law. If it is in the context of a criminal investigation, or surveillance, there are specific laws which may apply.

And to the extent that it involves the processing of personal data of the lawyers in question (which, inevitably, it surely must, when one considers that “processing” means, among other things “collection, recording, organisation, structuring or storage” performed on personal data) the monitoring must comply with applicable data protection laws).

As a fundamental general principle, processing of personal data must be transparent (see Articles 5(1)(a), 13 and 14 UK GDPR, or, for law enforcement processing, section 44 of the Data Protection Act 2018 (DPA), or, for Intelligence Services Processing, section 93 of the DPA.

There are qualifications to and exemptions from this general principle, but, in the absence of circumstances providing such an exemption, a data subject (here, the lawyers who are apparently being monitored) should be made aware of the processing. The information they should receive includes, among other things: the identity and the contact details of the person directing the processing; the legal basis and the purposes of the processing, and; the recipients or categories of recipients of the personal data.

We tend to call the notices we receive under these provisions “privacy notices”. Those of us who have practised data protection law for a long time will remember the term “fair processing notice” which is arguably a better term. Whatever one calls them, though, such notices are a bedrock of the law – without being aware of the processing, and the risks, rules, safeguards and rights in relation to it, data subjects cannot properly exercise their rights.

With all that in mind, has the Home Office – or whoever it is who is directing the monitoring of the “small number of lawyers” – informed them that they are being monitored? If not, why not?

Returning to my earlier comments about the oppressiveness of comments to the effect that, or the giving of a perception that, the coercive powers of the state are being deployed against lawyers by monitoring them, one wonders if the Information Commissioner should take steps to investigate the background to Mr Jenrick’s comments.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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February 20, 2023 · 8:40 am

NADPO February webinar

NADPO’s online webinars continue on Tuesday 28th February 2023 at 1.30pm, with the following speakers and topics.

Professor Ross Anderson – ‘Will the online harms bill protect children? Is there a case for breaking encryption?’

Justin Sherman, Duke University Sanford School of Public Policy: “Your Data’s for Sale: The Data Brokerage Ecosystem and Risks to Privacy and Security”

The Zoom link will be sent to NADPO members the day before the webinar.

If you are not a member but would like to “test the water” please contact me at chair at nadpo dot co dot uk – I can normally be persuaded to offer a free place!

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February 12, 2023 · 10:17 am

Who’s yer da? Language misunderstandings in the courts

The stereotype of the out-of-touch judge goes back centuries, and is epitomised by the (probably apocryphal) example in the 1960s of the judge asking plaintively “who are the Beatles?” Often, one suspects, a judge will in fact be asking a question to which she knows the answer, but which she feels would benefit from explanation by counsel, or a witness.

But I noticed an interesting example of what might be a real misunderstanding in a recent judgment on an application to strike out claims arising from publication of a screenshot from Facebook, with associated statements. The claims have been brought in defamation, harassment, data protection and misuse of private information.

The screenshot was of a photograph of the claimant, said to have been taken outside a school, and in one case, posted on Twitter, it was accompanied by words, having the effect of a caption, saying “I see yer Da is doing ‘community watch’ again”.

In respect of the application to strike out the misuse of private information claim, the judge hearing the application had to consider whether the tweet constituted information in which the claimant had a reasonable expectation of privacy. One of the features he took into account was this:

The location was outside the school which the claimant’s daughter attended. The Facebook Post did not say this (because Ms K made clear that she did not know who the claimant was and there is no sign in the photograph of the claimant’s daughter). But that does not change the fact that the claimant was photographed outside his daughter’s school having just done the school run. The expression “yer Da” (part of the caption to the first tweet of the screenshot) suggested, correctly, that he was a parent. [emphasis added]

I do not think this is right. I do not think the expression did, nor was intended to, suggest the claimant was a parent. Those who spend some time on the internet become familiar with its particular idioms, and “yer Da” is one of those. It is not meant to be taken literally nor to suggest someone is a parent. The Urban Dictionary’s definition is on point:

A common meme of the mid-2010s, most popular in the UK, from the Scottish dialect of “your dad”, which involves someone making statements on a news story through the eyes of a stereotypically right-wing, conservative, reactionary middle aged British man, increasingly baffled and angry at the modern world.

It gives a number of example uses which it’s not necessary to quote here, but suffice to say that I suspect the use of “yer Da” was intended to be mockery, but not to suggest the claimant was a parent.

This is not to say that what I see as a misunderstanding by the judge has any real significance to the case (the phrase was by no means the only factor taken into account, in what is a multi-pronged claim arising from a clearly fractious background).

But it does show that language and idioms and the context in which they are used are complex things. The irony is that this is (partly) a libel case, an area of law where the subtleties of meaning can be profoundly relevant.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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February 11, 2023 · 12:07 pm

SNP MP private email hack

UPDATE 13.02.23: it’s been drawn to my attention that Mr McDonald says that his private account is “not used for constituency or parliamentary business” END UPDATE

It was reported last week that the email account of Stewart McDonald, an SNP MP, had been compromised in what he described as a “sophisticated and targeted spear phishing hack”. The BBC appeared to agree with him, describing it as a “highly targeted and sophisticated attack”.

Maybe it was, although surely MPs are told to be wary of unexpected email attachments, and not to put enter system passwords when asked to in palpably suspicious circumstances (McDonald had attempted to open a document apparently sent by a member of his staff, with a military update on Ukraine, and clicking on it brought up a login page for the email account he was using).

But what I haven’t seen raised much in the media is the fact that the account which was compromised appears to have been McDonald’s private email account, and that the offending attachment was sent (or was spoofed to make it look like it was sent) from his staffer’s private email account. The reporting has referred to “personal” email account, from which it is reasonable to infer that these are not official accounts (such as McDonald’s one given on his parliamentary page).

Only last year the Information Commissioner presented a report to Parliament on the use of private communications channels in government. Although the report was prompted by concerns about the use of such private channels within the Department for Health and Social Care, it made clear that it had general application in relation to the “adopting [of] new ways of working without sufficient consideration of the risks and issues they may present for information management”. The report stresses throughout the importance of “maintaining the security of personal and official information” and the risks that private channels present to such security.

Did Mr McDonald and his staff read it? If not, this tweet he made only a couple of years ago is ironic, to say the least.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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February 10, 2023 · 7:32 pm

Campaign for Records – Democracy and Rights in the Digital Age

There’s a piece up on the Mishcon de Reya website about the launch event for this campaign, run jointly by ARA and IRMS, at which I was recently invited to speak:

https://www.mishcon.com/news/jon-baines-speaks-at-parliamentary-event-on-foi-and-records-management

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February 4, 2023 · 9:56 am

Facial recognition in the school canteen

A piece I wrote for the Mishcon de Reya website on the ICO’s recent letter to North Ayrshire Council on the use of facial recognition technology in schools:

https://www.mishcon.com/news/ico-takes-action-on-facial-recognition-in-schools

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January 15, 2023 · 7:29 am

NADPO monthly webinar, 24 January

The next NADPO monthly webinar will be on 24 January, with two excellent speakers and topics

Dr Monica Horten, Open Rights Group – “Everything in moderation: social media surveillance and the Online Safety Bill”

Hassan Khan, Jason Ceci and Jonah Stegman: “No Privacy in the Electronics Repair Industry”.

As always, attendance is free for members, who should note that the start time is 13:30 rather than the usual 12:30.

We generally also have a couple of tickets available for anyone who is thinking of joining NADPO and wants to test the waters, so to speak. Contact me at chair at nadpo dot co dot uk if you’re interested.

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December 18, 2022 · 10:48 am

ICO investigated potential FOI criminal offences by government departments

Under section 77 of the Freedom of Information Act 2000 (FOIA) a person commits a criminal offence if – after someone has made a request for information to a public authority, and would have been entitled to disclosure of that information – he or she

alters, defaces, blocks, erases, destroys or conceals any record held by the public authority, with the intention of preventing the disclosure by that authority of all, or any part, of the information to the communication of which the applicant would have been entitled

This is the only section of FOIA which carries a criminal penalty. It is very rarely invoked: since FOIA commenced in January 2005, there has been just one successful prosecution brought by the Information Commissioner’s Office (ICO) (and, as far as I know, only one other, unsuccessful, prosecution).

One reason for the lack of cases is that the ICO can only bring a prosecution within six months of the offence occurring. This has been identified for many years as an issue which should be addressed (but successive governments have declined to do so).

Nonetheless, a recent FOIA disclosure by the ICO reveals that in the last few years potential section 77 offences by government departments have been investigated. The request, made via the public WhatDoTheyKnow platform, was for information on “all Section 77 investigations carried out regardless of outcome for all Government departments”. In response, the ICO disclosed that

we have opened the following cases with regard to allegations of s77 allegations against Government Departments:
PCB/0013/2018 – MoJ IC/506/2020 – DWP IC/0549/2020 – Cabinet Office INV/0950/2021 – Cabinet Office.

This appears to suggest the existence of four separate investigations. In response to a request for further comment the ICO press office stated to me that none of the cases was still open, but declined to say any more. This seems to confirm that no proceedings were brought as a result of the investigations, but it is not possible to speculate on the reasons why. Nor are details available as to the circumstances under which the investigations were made.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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December 18, 2022 · 8:58 am

Data protection misunderstandings in court

There is something that distinguishes those who have practised data protection law for more than five years and those who have come to it more recently. The former are in possession of a secret. It is this: GDPR did not change the fundamentals of data protection.

Look at the keystones of the law – the data protection principles in Schedule One of the Data Protection Act of 1998 (the prior law) and in Article 5 UK GDPR (the current). They are effectively identical. And in fact, they have barely changed from the principles in the 1984 Data Protection Act, and those in the Council of Europe Data Protection Convention 108 of 1981.

Yet even in the courts one still sees from time to time the misconception that the GDPR rights and obligations were something fundamentally new.

An example is a recent case in the Employment Appeal Tribunal. The details of the case are not important for this post, but what is relevant is that the claimant employee argued that information about his previous employment history at the respondent employer (from 2008-2011) should not have been allowed in evidence. One argument in support of this was that the lengthy retention of this information was in breach of the employer’s data protection obligations (and the claimant had received correspondence from the Information Commissioner’s Office broadly agreeing with this).

But in response to this argument the respondent employer asserted that

Prior to [GDPR coming into effect on 25 May 2018] there was no “right to erase“. Accordingly, the period during which the respondent should arguably have taken steps to delete data was around nine months from this point until 28 February 2019.

This fails to recognise that, even if there was no express right to erasure prior to GDPR (n.b. there was certainly an implied right, as the European Court of Justice found in Google Spain) there was certainly an obligation on a data controller employer not to retain personal data for longer than was necessary (see paragraph 5 Schedule One to the 1998 Act).

The judge, however, accepted the respondent’s argument (although in all fairness to her she does point out that neither party took her to the legislation or the case law):

I accept that the ICO’s reference to retention being likely to breach data protection requirements, was (at its highest) concerned with the nine month period between the GDPR coming into effect and the claimant indicating an intention to commence litigation

That is not what the the quoted correspondence (at paragraph 17) from the ICO said, and it is not a correct statement of the law. If the period of retention of the data was excessive, there is no reason to say it was not in contravention of the prior law, as well as GDPR.

Ultimately, it is doubtful that this would have made much difference. As often in such proceedings, the relevance of the information to the matter was key:

in so far as the Respondent was in breach of data protection law for the nine month period I have referred to, it does not follow from this that the documentation was inadmissible in the [Employment Tribunal] proceedings

But one wonders if the judge might have taken a slightly different view of, instead, she had found that the Respondent was in fact in breach of data protection law for several years (rather than just nine months).

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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November 26, 2022 · 10:59 am

Does DHSC have a compliant ROPA?

Article 30(4) of the UK GDPR requires a controller to make its records of processing activities (ROPA) available to the Information Commissioner (ICO) upon request.

ROPAs are required for most large controllers, and should include at least

  • The name and contact details of the organisation (and where applicable the data protection officer).
  • The purposes of processing.
  • A description of the categories of individuals and categories of personal data.
  • The categories of recipients of personal data.
  • Details of transfers to third countries including documenting the transfer mechanism safeguards in place.
  • Retention schedules.
  • A description of the controller’s technical and organisational security measures.

Ordinarily, in my experience, controllers will maintain a ROPA in one document, or one set of linked documents. This not only enables a controller to comply with Article 30(4), but reflects the fact that a ROPA is not just a compliance obligation, but contributes to and assists the controller in its information governance functions.

This all makes the position of the Department of Health and Social Care (DHSC) rather odd. Because, in response to a Freedom of Information Act (FOIA) request for disclosure of its ROPA, it stated that the request was “vexatious” on the grounds of the time and costs it would have to incur to respond. This was because, as the DHSC subsequently told the ICO when the latter was asked to issue a FOIA decision notice

We hold a collection of documentation across different formats which, when put together, fulfils our obligation under Article 30 of the GDPR to record and document all of our personal data processing activities…[and]…to locate, retrieve and extract all of this documentation would involve a manual trawl of the whole organisation and each document would then need to be reviewed to check for content such as personal data, commercially sensitive data and any other information that would otherwise not be appropriate to place into the public domain

For this reason, the ICO accepted that compliance with the request would be “grossly oppressive” and this, taken with other factors, meant that the FOIA request was indeed vexatious.

The ICO is tasked with regulating both FOIA and data protection law. The decision notice here notes this, and says

the Commissioner feels duty bound to note that, if the DHSC cannot comply with the request because it would impose a grossly oppressive burden to do so, it is unlikely that the DHSC would be able to provide its ROPA to the Commissioner, which is a requirement under Article 30 of the UK GDPR, without that same burden

There’s a big hint here to DHSC that it should adopt a different approach to its ROPA for the future.

But the decision notice does contain some rather strange wording. In the context of the words quoted just above, the ICO says

This decision notice looks at the DHSC’s compliance with FOIA only and the Commissioner cannot order the DHSC to take any action under any other legislation.

It is true that, under his FOIA powers, the ICO cannot order the DHSC to comply with the UK GDPR, but, quite evidently, under his UK GDPR powers, he certainly can: Article 58(2)(d) specifically empowers him to

order the controller…to bring processing operations into compliance with the provisions of this Regulation, where appropriate, in a specified manner and within a specified period

I am not aware of anything in FOIA, or data protection law (or wider regulatory and public law) that prevents the ICO from taking enforcement action under UK GDPR as a result of findings he has made under FOIA. Indeed, it would be rather strange if anything did prevent him from doing so.

So it does seem that the ICO could order DHSC to get its ROPA in order. Maybe the big hint in the FOIA decision notice will have the desired effect. But regulation by means of big hints is perhaps not entirely in compliance with the requirement on the ICO, deriving from the Regulators’ Code, to ensure that its approach to its regulatory activities is transparent.

The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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