WHAT ARE THE LEGISLATIVE CHALLENGES IN A GLOBAL ENVIRONMENT?
As a data protection officer across 27 countries, there are individual challenges to overcome when operating in a global environment. When looking globally, there are some practical summaries (e.g., the “practical law” guide in the Data Protection Global Guide). Canada, Russia and the European Union Privacy directive have evolving laws, requiring a professional to adapt to changing legislation. Russian law requires that all Russian citizens registering on a website should have their personal data stored securely within Russia, which may provide challenges for cloud-based HR systems (or any other cloud based-service).
The issue of consent is a focal point of Canada’s Anti-Spam Legislation (CASL) for commercial electronic messages (CEM). A CEM is only implicitly allowed if there is an existing business or non-business relationship, or if the recipients conspicuously publish their electronic contact information or voluntarily disclose it without indicating they don’t want to receive communications. Otherwise, explicit consent is required from the recipient. The business challenge here is maintaining a provable log of consent required to avoid the Canadian $10 million fine. Again, this provides a challenge to cloud-based services.
These are just two examples of recent changes in legislation that require adaptation by organisations.
The biggest change for any organisation processing data of European citizens is the new GDPR, as European legislation is often used as a baseline for implementing privacy regimes globally.
WHAT IS THE BEST STRATEGY TO IMPLEMENT A PRIVACY PROGRAM?
In implementing a privacy program, there are many parallels to the implementation of an information security program. The first phase is the definition of the policy, which provides a mandate and framework of the organisational requirements.
The second phase is understanding where information related to privacy law is processed (processing is any action where the personal data is touched – such as reading, updating, storing, processing, deleting, etc.). We need to understand what personal data is, and we will use GDPR as an example:
Personal data means any information relating to an identified or identifiable natural person (data subject); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
One approach to gain a holistic understanding of how information is processed is to use ISACA’s BMIS (Business Model for Information Security) and the principles of system thinking, emphasising the consideration of people, process, technology and organisation.
The advantage of using BMIS is that it allows direct modelling with the actors in the organisation of data as it flows through an organisation (in this instance, we are constrained to personal data). So through a series of interactive workshops with the organisation, an inventory of the location and use of personal data in the organisation (and third parties where applicable) can be defined.
The final phase is to put the data in a classic risk-versus-impact matrix to make sure adequate controls are in place to protect the data. The controls should be proportional to the risk and the impact if the data were destroyed, lost, altered or accessed in an unauthorized way. Personal data includes name, address, IP addresses, company IDs and biometrics. High risk is defined as data classified as “sensitive” (i.e., political opinions, ethnicity, trade union membership, religious beliefs, genetic or biometric data, health, sex life or orientation, criminal convictions/offenses); additionally, data may be considered sensitive if its improper use will have significant impact on the data subject in particular financial information.
WHAT ARE THE IMPORTANT CHALLENGES OF GDPR ?
Most organisations should already have a framework for the 1995 EU data protection law. The final part of this article will focus on some of the key changes brought about by GDPR beyond current EU data protection law.
Does my organisation have to comply with the new regulation? Yes, if your organisation does either of the following:
- Offers goods or services to EU data subjects
- Monitors EU data subjects’ behaviour
- In the U.K., the ICO will become the supervisory authority (SA).
Not all the changes will be covered, but the most significant ones will be summarised:
- The basic processing principles (fair, lawful, purpose limitation, etc.) remain the same. However, they have added the concepts of:
Transparency (the level of information subjects should be provided with is increased).
Accountability (the ability to demonstrate compliance with the regulation).
- SA powers to enforce the regulation (potentially with unannounced audits).
- Data breaches must be reported to the SA no later than 72 hours upon becoming aware of the breach, where the breach is likely to result in high risk to the rights and freedom of the individual.
- New data subject rights: right to be forgotten, data portability, enhanced subject access (for free).
- Information notices must be provided so that they are easily accessible, transparent notices in clear plain language to consumers.
- The requirement to appoint a Data Privacy Officer if the processing is by a public body or the core business involves systematic monitoring or processing of sensitive personal data of data subjects on a large scale.
- Penalties – failure to comply with data subjects’ rights (erasure, adequate information or subject access rights) can lead to a fine of €20 million or 4 percent of global turnover.
SUFFICIENT CONTROLS ARE CRITICAL
The approach to solving GDPR is to take the same approach as one would for information security, so understand the data assets at risk and make sure sufficient controls are in place to mitigate the risk. The importance of embedding privacy by design is a key approach in organisations implementing GDPR, and demonstrating transparency of how data is used can only be a good thing for the consumer and the organisation.
As technical solutions evolve, such as homomorphic encryption, which is a form of encryption that allows computations to be carried out on ciphertext, services operating on personal data could work on that data without ever exposing it.
The hope of GDPR and future technological advancements is that we progress toward a world where the consumer is fully protected and digital business can thrive automatically.
Next week – Brodies’ Martin Sloan offers the legal perspective