Last month the Information Commissioner, Christopher Graham, gave an interview to the ISSA, ahead of his address to the ISSA later this week, and looks at how most data breaches start with an employee from within the organisation:
In 2006, the ICO uncovered the organised and illegal trade of confidential personal information in the report, What Price Privacy? How widespread do you believe this problem is today in the UK?
“I’ve described it as a modern scourge. The headlines, both in 2006 and more recently, have all been about the behaviour of the press, but I think it goes much further … Basically we’ve got pretty systematic trashing of our rights under the Data Protection Act. My predecessor, in flagging the blagging, made the case for a much stronger penalty that would act as a deterrent but also send a very strong signal that data protection offences are not a victimless crime. It’s very important now that parliament gets on and activates section 77 of the Criminal Justice & Immigration Act 2008 which allows for the custodial penalty of up to 6 months in a magistrates court and up to 2 years in the crown court, but has not been commenced. It wasn’t commenced because of a stand-off between the politicians and the press. I think we can now get through that, because the terms of the debate have changed a bit. This isn’t something that should wait for the Leveson Inquiry because frankly it isn’t about newspapers – it’s about debt recovery, claims management companies, matrimonial disputes, child custody battles, you name it.”
Yes, I remember when you became Information Commissioner in 2009, at a Parliamentary select Committee you re-iterated the need for a custodial sentence for convictions under section 55 of the Data Protection Act.
“Indeed, I did. I didn’t get very far, though, because basically the politicians and the press had agreed this was going to be a sort of Sword of Damocles hanging over the press and if they misbehaved then it would be activated. I think the whole point was the 2006 report – yes, it talks about the behaviour of the tabloid press because the particular private investigator that the ICO raided, that was his main line of business. But that’s not what all the report was about. The idea that you don’t have to take any action against staff in NHS walk-in centres selling information to claims management companies because of some arcane dispute about investigative journalism is clearly nonsense. I didn’t get very far two years ago but I’m determined to go on pushing. There’s the human factor in all of this. We can have wonderful systems and policies for data protection and data security, but if the men and women on the ground don’t take it seriously and don’t think it matters – none of those systems are going to work. A small fine in a magistrates court is simply not a deterrent. I think understanding that you might go to prison is more like it, but it also enables the courts to look at the whole range of possible penalties which might be somewhere between a small fine and the threat of going to prison or having a community sentence.”
I noticed that in the ICO’s latest annual report – you mentioned the NHS – as an organisation they had the largest number of data breaches
“They are about the largest organisation so I’m not surprised by that – they are quite good at reporting breaches, it’s part of their procedure. I recently met with the chief executive of the National Health Service, Sir David Nicholson. We had a very good, workmanlike discussion. There’s a lot of change in the NHS and that makes for a particularly dangerous time but you’ve got to distinguish between the trucks and the tracks. We’re much better at thinking about the trucks: these are the great security initiatives and projects. The tracks are the routine: the day-to-day. My experience of a lot of organisations, not just the NHS, is that the messages haven’t got down to the grassroots. Data protection is seen as the sole concern of a few geeks, and as a result terrible things happen. People have heard the messages but haven’t internalised them. Every week I’m dealing with laptops going missing, not encrypted; portable devices and papers left on the bus; sensitive files dumped in a skip. In the health service of course by definition the information is almost certainly going to be sensitive information so we’re working very closely with the NHS so that they can get the big things right – summary care records etc, but they can also get the smaller things – which actually aren’t that small – such as persuading the receptionist in the GP surgery you don’t give things out over the phone just because somebody rings you up and sounds persuasive.”
What can be done in the health sector and other sectors to generate a culture where data protection becomes second nature, rather than seen as an annual event, or a burdensome task?
“I think organisations both in the public sector and the private sector have so much at stake in terms of their reputation, which of course in commercial terms you can put a value on, and in the public sector it’s all about the threat of reversing all the work that’s gone into citizen engagement. The fact that it’s a real issue at the top of the organisation means that the message then needs to be taken to the whole organisation: it’s not just something of peripheral concern. Yes, it’s about training, but then it’s about auditing, it’s about going back and making sure people are practising what they know they are supposed to be doing – it’s about mainstreaming the whole thing. It should be absolutely part of the performance review system. We shouldn’t have the situations we’ve had over the past few years or so where people dealing with very sensitive information are treating it in such a cavalier way. Our first civil monetary penalty was imposed on Hertfordshire County Council where they’d faxed highly sensitive court papers in a child welfare case to what they thought was Watford County Court but unfortunately it wasn’t and they’d got the number wrong. You wouldn’t do that if you were thinking about what the material was you were handling, that it was very sensitive, personal information about vulnerable children, so faxing wasn’t a very good idea anyway. You needed to have made sure you had got the right fax number, and that someone was waiting for the fax at the other end and that you didn’t just have finger trouble and were about to send it elsewhere. The civil monetary penalties which we’ve had at [the ICO’s] disposal since April of last year have certainly had a sobering effect and made people sit up and take notice. We’ve only imposed 6 of them – we’re not trigger happy – but it’s certainly made it very real to organisations who have focused on the reputational damage – being hit with a penalty.”
Following the use of social networking sites such as Twitter to reveal the details of super-injunctions earlier this year, the Prime Minister has called for a review of Data Privacy legislation in the UK. Will the ICO be contributing to the work of any new parliamentary committee in shaping any new data privacy legislation?
“Well, the Data Privacy legislation will be reviewed anyway in the context of the European Directive – that’s a process that’s going ahead. The Commissioner Viviane Reding is leading that process and the ICO is very much engaged with our European colleagues in the Article 29 working party – we’ve been inputting into that study. We expect to see a draft of a directive in about November and then the legislative process will follow. In a few years’ time there will be changes to data protection law, because the directive on which it’s based will have changed. We don’t think there is much wrong with the principles, but we’re looking for legislation that is much more modern and realistic in terms of what actually happens in the world of global information exchange.”
The legislation has been behind the technology in terms of usage of it, hasn’t it?
“Absolutely. It’s very important that Brussels produces a legislative proposal which is reasonably future-proof – if you get the principles right then the principles can take the technological changes on board. If you’re overly prescriptive then you’ll come up with something that is highly relevant for 2013 but by the time it comes into law it’s probably outdated because of all of these other developments. The ICO, working with anyone who will listen to us, is stressing the accountability principle – that the legal responsibilities lie with the data controller, and that the role of the data protection authority is to regulate that relationship and intervene as and when necessary on the basis of risk, rather than pretend the data protection authorities can be like some latter day King Canute holding back the waves, and let’s not kid ourselves that no information moves across borders without some tick in the box from the Data Protection Authority. The current Directive, of course, is pre-cloud, but it ought to be clear that’s it’s a very outdated text that doesn’t take into account the realities of the modern world.”
Would you like to see greater powers for the ICO, such as the power to audit an organisation to investigate a serious data breach?
“We gained some extra powers under the Coroner’s & Justice Act, and we have found that doing consensual audits is going really well, more in the public sector than the private sector. We can run the ruler over a company’s compliance which can then be a badge of pride: “we’ve been checked over by the ICO”. There are powers to compulsorily audit government departments. I will go as far and as fast with the existing powers that I’ve got, but if I come to the conclusion that I’m not able to get anywhere- that I can‘t audit organisations – then I will certainly return to the Secretary of State. I can get warrants – I signed a warrant today. It would be more satisfactory to require an audit, probably as part of an undertaking to improve.”
At a recent ISSA chapter meeting, one speaker remarked that social engineering over the phone is often the seed for an attacker that allows them either to guess a password or a weakness in a system or a process to exploit. Many of the data breaches we have touched on this afternoon all start from an internal employee in an organisation. Do you think we are doing enough to educate employees in organisations to create a security culture?
“No I think we’re not and you absolutely put your finger on it when, in relation to this row about hacking, you have to ask the question: ‘how is it possible for the phones to be hacked?’ and the answer is: somebody has blagged, which they shouldn’t have done. That gets us back to section 55 of the Data Protection Act – it’s just too easy to blag and the penalty isn’t very impressive if you get caught. So I believe very strongly we’ve got to push for that [a custodial sentence] and I’m trying to get the politicians to see that this is something we need to do anyway – it’s going to take some time. Frankly we can’t wait [for the Leveson Inquiry] . We’ve got information leaking from databases, every day – and not, as I said earlier, to journalists particularly – because information is valuable and it’s making people a lot of money. That’s the root of our problems – so if we’re concerned about cyber security then getting these basic things right is absolutely essential, and members of staff in all organisations need to see the connection between something which seems to them as a bit naughty, but not terribly bad, and the terrible things that happen as a result.”
Christopher Graham – thank you for your time this afternoon and we look forward to your address at the ISSA next month.
The Information Commissioner, Christopher Graham, was talking to Phil Stewart, Director, External Communications, ISSA UK. Christopher Graham will be addressing the ISSA at their next meeting on 8th September 2011 in London.