The following article was contributed by Tim Turner, trainer & consultant on Data Protection, FOI, PECR and information rights.
“Reports that say that something hasn’t happened are always interesting to me, because as we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns – the ones we don’t know we don’t know.”
Donald Rumsfeld’s comment on the fact that sometimes we don’t know what we don’t know is notorious for its lack of clarity, but it is a very helpful summary of most massive data protection or security incidents. Take the recent TalkTalk debacle, in which the telco’s website was hacked, and a quantity of personal data was accessed and presumably stolen. We don’t actually know much more than that: we don’t know how the hack happened, we don’t know for certain who committed the act, we don’t know how much data has been stolen and most importantly, we definitely don’t know whether any laws have been breached.
There is a lot to keep an eye on. TalkTalk’s hastily assembled FAQs was emphatic that the Data Protection Act has not been breached by this incident, and the company has generally been at pains to hashtag every tweet with #cyberattack, painting itself as the victim. Meanwhile the company’s Chief Executive Dido Harding’s headlong rush into every available TV studio has impressed some with her frank admission that TalkTalk could have done more to protect customer data, but thrown the ‘no breach claim’ into doubt.
Data Protection law is built on eight principles, and the seventh principle requires that organisations put in place “appropriate” levels of technical and organisational security. The fact that whoever hacked the TalkTalk website has committed a crime in doing so does not absolve TalkTalk of responsibility. The 7th principle explicitly requires measures to prevent unauthorised and unlawful processing of personal data, so anyone whose website might be the gateway to personal data has to have proactive protections to repel a hacker. Several companies have already fallen foul of the 7th principle and received substantial monetary penalties after falling victim to hackers, including Sony Playstation Online, the British Pregnancy Advisory Service and the travel company Think W3. In each case, a criminally-motivated hacker was assisted by inadequate security and lack of testing.
All sorts of considerations can increase the burden of security. If an organisation is large and more high-profile, if they hold a large amount of personal data, or if a hack might expose sensitive data that might lead to harm, the measures must be progressively more robust. All three of these factors apply to TalkTalk. Harding has claimed that TalkTalk’s security was “head and shoulders” above that of its competitors, and if that can be proved, TalkTalk are off the hook. But with a Chief Executive who has already admitted that their security might have been found wanting, and the arrest of a 15 year old boy in connection with the hack (putting paid to some of the more lurid theories about some kind of Russian / ISIS / Cyber-Jihadi / SPECTRE agent being the perpetrator), presumably we know for certain that the Information Commissioner will act swiftly and decisively to enforce the law?
Well, not quite. Data Protection does not allow for summary justice. The Information Commissioner needs to prove at least on the balance of probabilities that there were appropriate measures to prevent hacking that TalkTalk should have had in place but didn’t. TalkTalk will have to be able to make their case, and the ICO will have to listen. The DP framework allows for the possibility that TalkTalk can be hacked and yet no breach has occurred – the breach is not the incident, but the absence of measures to prevent it.
The omens are nevertheless not auspicious. As well as Harding’s unwise comments, TalkTalk’s track record is troubling. In 2008, the company received an enforcement notice from the ICO, requiring them to stop such basic errors as customers being able to see each others’ records online. Much more recently, TalkTalk’s security was audited by the ICO, and in a break with the normal practice, TalkTalk refused consent for the executive summary to be published (despite other organisations allowing quite negative summaries to go online).
The most important thing that we do know is that the TalkTalk hack does not just put the company in the frame. The Information Commissioner is better at enforcing on security matters than nearly any other aspect of Data Protection but their appetite for taking on large organisations is inconsistent: there may be £250,000 penalties for Sony, but until recently, only unenforceable undertakings on a largely unrepentant Google. Many activists can recall big Data Protection scandals like press misuse of private data (which the ICO discovered but did not tackle) or secret trials of the Phorm internet tracking software (which some suspect went unpunished because the trails were carried out by BT). If the ICO fails to act, it will need an extremely persuasive justification to calm the outrage that will likely follow, and we simply don’t know if such an explanation exists, whatever the law says.