All over Europe organisations of all sizes are currently scrabbling desperately to get their house in order for 25 May 2018. What happens then? Only the biggest shake-up to Europe’s data protection laws in nearly a generation. The implications are immense, both in terms of the scope of the new regulation and the companies who will now be held liable.
There’s just one problem. The UK’s Snoopers’ Charter, or Investigatory Powers Act. Its enshrining into law of mass surveillance powers could create major problems down the line, possibly putting UK firms at a competitive disadvantage precisely at a time when they need the digital economy most.
What’s the problem?
Let’s start at the beginning. UK firms will have to comply with GDPR, even with Brexit looming. That’s because the extrication of the country from the EU will take at least two years from whenever Article 50 is triggered – presumably in March – and probably much, much longer. And even beyond that, the UK government has said in its Brexit white paper:
“The European Commission is able to recognise data protection standards in third countries as being essentially equivalent to those in the EU, meaning that EU companies are able to transfer data to those countries freely.
As we leave the EU, we will seek to maintain the stability of data transfer between EU Member States and the UK.”
This implies that the UK will broadly speaking harmonise its laws with the GDPR. But the bulk data collection powers granted by the IPA mean the regime is certainly not equivocal to that in Europe. Emily Taylor, CEO of Oxford Innovation Labs and associate fellow of Chatham House, told me that the European Court of Justice (CJEU) shows no signs on shifting its stance on bulk data collection – having recently ruled against the forerunner to the Snoopers’ Charter, DRIPA.
“Other elements of the judgment are likely to cause problems with the Investigatory Powers Act: the CJEU says that targeted data retention may be allowable, but must be restricted solely to fighting serious crime; warrants must be signed off by a court, not a minister; and the data concerned must be retained within the EU. All these will potentially conflict with core elements of the IP Act,” she told me.
If its kept as is, the Act could therefore impact the legality of data transfers between Europe and a newly independent UK, which will be bad news for most firms reliant on a thriving digital economy.
“The impact of conflicts between the GDPR and our Investigatory Powers Act may be to hamper the competitiveness of UK tech, particularly as the GDPR seeks to protect EU citizens’ data wherever it will be processed,” she argued.
Not great for America
This is a hot button issue for Europe In fact it’s the reason why data transfers to the US were put under threat after Safe Harbour was torn down because of fears of US authorities snooping on Europeans’ data. Despite a new agreement – Privacy Shield – being put in place, there could still be bumps in the road ahead.
“Transatlantic data flows will not be legal unless there is a robust framework in place to offer EU citizens’ data equivalent protection to what is enjoyed in the EU,” said Taylor.
“President Trump’s ‘America First’ policy is likely to renew tensions over Privacy Shield – a shaky compromise which was hurriedly reached following the CJEU’s obliteration of its predecessor ‘Safe Harbour’.”
KPMG’s globa privacy advisory lead, Mark Thompson, told me that firms outside of Europe that need to comply with the GDPR are better off keeping data on European citizens inside the EU so as not to fall foul of any changes to data transfer agreements.
“Despite the USA and EU having some cultural alignment, there is potential for significant culture clash between the EU’s view of a fundamental human right to privacy and the US view on what constitutes privacy, which is significantly different,” he added.
We’ll have to wait a while to see what the fallout of all this is. But with the UK government unlikely to countenance any changes to the IPA, there could be some potentially bad news for the country’s digital economy in the next few years if nothing changes.
The idea is to raise awareness among consumers to think twice about leaving a bigger digital footprint online than they already have, and to try and get businesses to take data privacy more seriously.
On both counts it’s a challenging prospect, according to many of the experts I spoke to.
David Gibson, vice president of strategy at Varonis, told me that improving privacy protection all comes down to better monitoring of fraud abuses.
“The proof that traditional methods don’t work is in the increasing frequency and magnitude of data breaches related to unstructured data,” he argued.
“Not only is there more data to worry about, but it’s containing more sensitive and valuable information and it’s getting easier for attackers to exfiltrate that data since it’s typically not monitored. If what you’re trying to steal isn’t being watched, you have a much better chance of getting away.”
Rackspace senior director of legal, Lillian Pang, admitted that firms still don’t prioritise data privacy at a board level, and this needs to change if things are to get better for consumers.
“Only then will firms start taking it seriously and filter down the privacy compliance needs to the ground level of its business. In some respects, you could say that privacy needs to be led from the top level of any business and administered from the ground level,” she told me.
“Many firms pay lip service to the importance of data privacy but few really understand or recognise that a robust data privacy program in a firm solidifies its information security and helps to further safeguard the firm’s business.”
The EU General Data Protection Regulation could be the push that many firms need to start taking the issue seriously, according to Gemalto data protection CTO, Jason Hart.
“The EU Data Protection Regulation is set to be finalised later this year, but companies need to start taking the steps to change how they protect their data now, otherwise they could find themselves subject to compliance penalties, and also put their reputation and consumer confidence at risk,” he warned.
“As the reporting requirements of the new EU regulation make data breaches more visible, we can expect the economic and business consequences of a breach to continue to escalate, so businesses need to start taking steps to ensure they are prepared for when new regulation comes into force.”
So are awareness raising exercises like Data Protection Day even worth the effort? Well the general consensus is that anything like this is probably a bonus, although the jury’s out on how effective it can be.
“Although Data Privacy Day is a great opportunity to raise awareness of the issue, understanding the importance of protecting data needs to be an all year round initiative,” said Hart. “Businesses need to realise the importance of the data they hold in their systems and how the loss of this can impact their customers.”
Data Protection Day (Data Privacy Day in the US) is on 28 January.
It’s widely expected that next week the government will unveil details of its hugely controversial Snoopers’ Charter, aka the Investigatory Powers Bill. To preempt this and in a bid to influence the debate cyber security firm F-Secure and 40 other tech signatories presented an open letter opposing the act.
The bill most controversially is expected to force service providers to allow the authorities to decrypt secret messages if requested to do so in extremis. This is most likely going to come in the form some kind of order effectively banning end-to-end encryption.
I heard from F-Secure security adviser Sean Sullivan on this to find out why the bill is such as bad idea.
To precis what I wrote in this Infosecurity article, his main arguments are that forcing providers to hold the encryption keys will:
- Make them a likely target for hackers, weakening security
- Send the wrong signal out to the world and damage UK businesses selling into a global marketplace
- End up in China or other potentially hostile states a service provider also operates in also requesting these encryption keys – undermining security further
- Be useless, as the bad guys will end up using another platform which can’t be intercepted
I completely agree. Especially with Sullivan’s argument that the providers would become a major target for hackers.
“End-to-end encryption makes good sense and is the future of security,” he told me by email. “Asking us to compromise our product, service, and back end would be foolish – especially considering all of the back end data breach failures that have occurred of late. If we don’t hold the data, we cannot lose control of it. That’s just good security.”
One other point he made was the confusion among politicians about tech terminology as basic as “backdoor” and “encryption”.
“A lot of UK politicians end up putting their foot in their mouth because they don’t properly understand the technology. They try to repeat what their experts have told them, but they get it wrong. UK law enforcement would probably love to backdoor your local device (phone) but that’s a lost cause,” he argued.
“The politicians (who actually know what they’re talking about) really just want back end access. As in, they want a back door in the ‘cloud’. They want to mandate warranted access to data in transit and/or in the back end (rather than data at rest on the device) and fear that apps which offer end-to-end encryption, in which the service provider doesn’t hold any decryption keys, are a threat.”
Let’s see what happens, but given the extremely low technology literacy levels among most politicians I’ve got a bad feeling about this one.