funded with support from the European Commission. The author is solely responsible for this publication (communication) and the Commission accepts no responsibility for any use that may be made of the information contained therein. The objective of this module is to provide an overview of ethics, legislation and privacy issues of big data. Upon completion of this module you will: - Be able to recognize the neccessity of regulating big data - Understand the difference between privacy and data protection - Know how to implement actions of data protection into your own (future) company Duration of the module: approximately 1 – 2 hours Module 5: Legislation
www.smartdata.how This programme has been funded with support from the European Commission. The author is solely responsible for this publication (communication) and the Commission accepts no responsibility for any use that may be made of the information contained therein. – Ethics of Big Data – Aspects of Big Data Ethics 4 Legal Glossary How about Ethics? – The Basics of GDPR – Individual Rights – GDPR Implementation – Privacy vs. Data Protection
to the Internet, more data than ever is being produced, collected and transmitted. Nowadays Big Data is big enough to raise practical rather than merely theoretical concerns about ethics. Big data itself, like all technology, is ethically neutral. The use of big data, however, is not.
to unlock actionable insights across any business, but it also brings with it some concerns about big data ethics that need to be addressed. Because accessing and storing data is so easy, some organizations collect everything and hang on to it forever, since the value of any piece of information is only known when you can connect it with something else that arrives at a future point in time. And it is not just the CIA collecting data like this. Major grocery store chains, investment banks and even the postal services have a predictive analytics function with the sole purpose of collecting and analyzing data in order to predict buyer behavior. QUESTIONS FOR STUDENTS What if all this data collection takes a negative turn? What if, for example, an organization could predict which employees were looking for a new job by using data from social sites, job boards and internal communications systems, and then terminate those employees? Would this use of data be ethical? Smart Data Smart Region | www.smartdata.how ETHICS OF BIG DATA Data can be either useful or perfectly anonymous but never both. Paul Ohm Smart Data Smart Region | www.smartdata.how
Ethics Big data is already outpacing our ability to understand its implications. Businesses are innovating every day, and the pace of big-data growth is practically immeasurable. To provide a framework for dissecting the often nuanced and interrelated aspects of big data ethics, the following key components can help untangle the situation. Identity Privacy Ownership Reputation
„Is online existence identical to offline existence?“ If our historical understanding of what identity means is being transformed by big-data technologies (by providing others an ability to summarize or aggregate various facets of our identity), then understanding our values around the concept itself enhances and expands our ability to determine appropriate and inappropriate action. Big data provides others the ability to quite easily summarize, aggregate, or correlate various aspects of our identity—without our participation or agreement. If big data is evolving the meaning of the concept of identity itself, then big data is also evolving our ethical relationship to the concept the word represents. Which makes it easy to understand the value of explicit dialog and inquiry. The more our actions are fully aligned with the evolution and expansion of identity, the more fully and explicitly we can understand the values motivating them.
„Who should control access to data about you?“ Plenty of people would argue that we have gained a degree of control over how the world perceives us. Political dissidents in Egypt can express their views online in a way that no other medium, technology, or context allows them to speak—or be heard. Victims of abuse or people who suffer from the same disease can share their experiences and gain an invaluable sense of connection and community through the use of ostensibly anonymous online identities. These perspectives, however, motivate the question: have we lost or gained control over our ability to manage how the world perceives us? There are two issues. First, does privacy mean the same thing in both online and offline in the real world? Second, should individuals have a legitimate ability to control data about themselves, and to what degree? Frequently, these discussions boil down to distinctions between offline behavior and online expectations. In the same way that we can ask of others what justification allows them to turn private-by-choice information into public data, we can ask of ourselves: why do we expect the ability to self-select and control which facets we share with the world online to be the same as it is offline? The difference between online and offline expectations regarding the degree of control individuals have over open access to data about themselves is a deeply ethical inquiry. The goal is to understand how to balance the benefits of big-data innovations with the risks inherent in sharing more information more widely.
„What does it mean to own data about ourselves?“ The degree of ownership we hold over specific information about us varies as widely as the distinction between privacy rights and privacy interests. Do we, in the offline world, “own” the facts about our height and weight? Does our existence itself constitute a creative act, over which we have copyright or other rights associated with creation? Does the information about our family history, genetic makeup, and physical description, preference for Coke or Pepsi, or ability to shoot free throws on the basketball court constitute property that we own? Is there any distinction between the ownership qualities of that information? If it does, then how do those offline rights and privileges, sanctified by everything from the Constitution to local, state, and Federal statues, apply to the online presence of that same information? As open data markets grow in size and complexity, open government data becomes increasingly abundant, and companies generate more revenue from the use of personal data, the question of who owns what—and at what point in the data trail—will become a more vocal debate.
„How can we determine what is trustworthy?“ As recently as that New Yorker cartoon (19 years ago), reputation consisted primarily of what people—specifically those who knew and frequently interacted with you—knew and thought about you. Unless we were famous for some other reason, the vast majority of us managed our reputation by acting well (or poorly) in relation to you said about you to the people who they knew—might influence one’s reputation. those directly around us. In some cases, a second- degree perception—that is, what the people who knew One of the biggest changes born from big data is that now the number of people who can form an opinion about what kind of person you are is exponentially larger and farther removed than it was even a few short years ago. And further, your ability to manage or maintain your online reputation is growing farther and farther out of individual control. There are entire companies now whose entire business model is centered on “reputation management”. We simply don’t know how our historical understanding of how to manage our reputation translates to digital behavior. At a minimum, this is sufficient reason alone to suggest further inquiry.
data retained by entities for various purposes. This is beginning to change as awareness of the data privacy debate is increasing. The two trends— increasing popularity of big data and increasing awareness of data privacy— are beginning to come to a head and companies that intend to capitalize on this era of big data need to be conscious about and address these basic ethical concerns. Smart Data Smart Region | www.smartdata.how
Smart Region | www.smartdata.how YES • Privacy relates to the appropriate use and control of data • Data privacy protocols around the world address the control people have over their personal data and how they can protect it from unwanted or harmful uses • It covers issues such as: what type of data will be processed, where will it be held, how long will it be held for • Data protection relates to the confidentiality, availability and integrity of data • It focuses on two main aread – the physical security of premises and the logical security of data and digitized information • It covers issues such as: the confidentiality, integrity and availability of data, the protection of networks, the physical security of sites, equipment, transport and people
called information privacy, is the aspect of information technology that deals with the ability an organization or individual has to determine what data in a computer system can be shared with third parties. Privacy applies whenever the data is: - Collected - Processed - Stored Which relates to a living individual person who can be identified by that data. EU data protection rules mean that your personal data can only be processed in certain situations and under certain conditions, such as: – if you've given your consent (you must be informed that your data is being collected) – if data processing is needed for a contract, for a job application or a loan request – if there is a legal obligation for your data to be processed – if processing is in your 'vital interest', for example if a doctor needs access to your private medical data when you've had an accident – if processing is needed to carry out tasks in the public interest or tasks carried out by government, tax authorities, the police or other public bodies Personal data about your racial or ethnic origin, sexual orientation, political opinions, religious or philosophical beliefs, trade-union membership or health may not be processed except in specific cases (e.g. when you've given explicit consent or when processing is needed for reasons of substantial public interest, on the basis of EU or national law). These rules apply to both public and private bodies. Collection and processing of personal data
is the process of safeguarding important information from corruption, compromise or loss. The importance of data protection increases as the amount of data created and stored continues to grow at unprecedented rates. Data protection applies whenever we deal with 2 types of information: ...is data which relates to a living individual who can be identified: • from that data, or • from that data and other information which is in the possession of the data controller, And includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual. Personaly Identifiable Information ...is PII data, consisting of Information as to: • the racial or ethnic origin of the data subject, • his political opinions, • his religious beliefs or other beliefs of a similar nature, • whether he is a member of a trade union, • his physical or mental health or condition, • his sexual life, • the commission or alleged commission by him of any offence. Sensitive Personal Information PII SPI
more than a collection of data to most of the institutions—and many of the people—with whom we deal. Big data poses enormous challenges for data protection— both by processors and regulators. It simultaneously changes the context and raises the stakes for Data protection. As personal data are universally collected and shared across sectorial and national boundaries, inconsistent data protection laws pose increasing threats to individuals, institutions, and society. Smart Data Smart Region | www.smartdata.how
announced it had been the victim of the biggest data breach in history, likely by “a state-sponsored actor,” in 2014. The attack compromised the real names, email addresses, dates of birth and telephone numbers of 500 million users. The company said the "vast majority" of the passwords involved had been hashed using the robust bcrypt algorithm. Impact: 145 million users compromised Details: The online auction giant eBay reported a cyberattack in May 2014 that it said exposed names, addresses, dates of birth and encrypted passwords of all of its 145 million users. The company said hackers got into the company network using the credentials of three corporate employees, and had complete inside access for 229 days, during which time they were able to make their way to the user database. Impact: Credit/debit card information and/or contact information of up to 110 million people compromised. Details: The breach of Target costumers began before Thanksgiving, but was not discovered until several weeks later. The retail giant initially announced that hackers had gained access through a third-party HVAC vender to its point-of-sale (POS) payment card readers, and had collected about 40 million credit and debit card numbers. With an increasing number of data breaches splashed across front page news, companies have good reason to take security seriously.
laws governing its protection had reached a point where they were a bit like an old operating system. In need of an update or they would have become unfit for purpose. Each country, concerned about citizens’ personal data, big data analytics and security, was attempting to come up with its own legislation to control data. In the European Union companies have to follow the GDPR legislation. Smart Data Smart Region | www.smartdata.how
(GDPR) is a single set of legislation across Europe that gives individuals get better control of their personal data. GDPR What is the GDPR? Why was the GDPR drafted? When will the GDPR apply? Who does the GDPR apply to? When can I process data under the GDPR? What are the consequenc es of not acting by GDPR? THE BASICS OF GDPR
When will the GDPR apply? Who does the GDPR apply to? When can I process data under the GDPR? What are the consequen ces of not acting by GDPR? The EU's General Data Protection Regulation (GDPR) is the result of four years of work by the EU to bring data protection legislation into line with new, previously unforeseen ways that data is now used. Currently, the UK relies on the Data Protection Act 1998, which was enacted following the 1995 EU Data Protection Directive, but this will be superseded by the new legislation. It introduces tougher fines for non-compliance and breaches, and gives people more say over what companies can do with their data. It also makes data protection rules more or less identical throughout the EU. Smart Data Smart Region | www.smartdata.how
When will the GDPR apply? Who does the GDPR apply to? When can I process data under the GDPR? What are the consequen ces of not acting by GDPR? Firstly, the EU wants to give people more control over how their personal data is used, bearing in mind that many companies like Facebook and Google swap access to people's data for use of their services. The current legislation was enacted before the internet and cloud technology created new ways of exploiting data, and the GDPR seeks to address that. By strengthening data protection legislation and introducing tougher enforcement measures, the EU hopes to improve trust in the emerging digital economy. Secondly, the EU wants to give businesses a simpler, clearer legal environment in which to operate, making data protection law identical throughout the single market (the EU estimates this will save businesses a collective €2.3 billion a year). Smart Data Smart Region | www.smartdata.how
When will the GDPR apply? Who does the GDPR apply to? When can I process data under the GDPR? What are the consequen ces of not acting by GDPR? The GDPR will apply in all EU member states from 25 May 2018. Because GDPR is a regulation, not a directive, the UK does not need to draw up new legislation - instead, it will apply automatically. While it came into force on 24 May 2016, after all parts of the EU agreed to the final text, businesses and organisations have until 25 May 2018 until the law actually applies to them. While the overwhelming majority of IT security professionals are aware of GDPR, just under half of them are preparing for its arrival, according to a snap survey of 170 cyber security staff by Imperva. Just 43% are assessing GDPR's impact on their company and changing their practices to stay in step with data protection legislation, Imperva found. While the respondents were mostly US-based, they would still be hit by GDPR if they handle - or contract another firm to handle - EU citizens' personal data. Smart Data Smart Region | www.smartdata.how
When will the GDPR apply? Who does the GDPR apply to? When can I process data under the GDPR? What are the consequen ces of not acting by GDPR? 'Controllers' and 'processors' of data need to abide by the GDPR. A data controller states how and why personal data is processed, while a processor is the party doing the actual processing of the data. So the controller could be any organisation, from a profit-seeking company to a charity or government. A processor could be an IT firm doing the actual data processing. Even if controllers and processors are based outside the EU, the GDPR will still apply to them so long as they're dealing with data belonging to EU residents. It's the controller's responsibility to ensure their processor abides by data protection law and processors must themselves abide by rules to maintain records of their processing activities. If processors are involved in a data breach, they are far more liable under GDPR than they were under the Data Protection Act. Smart Data Smart Region | www.smartdata.how
When will the GDPR apply? Who does the GDPR apply to? When can I process data under the GDPR? What are the consequen ces of not acting by GDPR? Once the legislation comes into effect, controllers must ensure personal data is processed lawfully, transparently, and for a specific purpose. Once that purpose is fulfilled and the data is no longer required, it should be deleted. Smart Data Smart Region | www.smartdata.how
When will the GDPR apply? Who does the GDPR apply to? When can I process data under the GDPR? What are the consequence s of not acting by GDPR? Penalties for violation of record keeping, security, breach notifications and privacy impact assessment are greater of $10 million or 2% of entity‘s global gross revenue. Penalties for violations olegal justification for processing (consent), data subject rights and cross-border data transfers are greater of $20 million or 4% of entity‘s global gross revenue. Smart Data Smart Region | www.smartdata.how
to be given by the individual whose data is held. Concent means „any freely given, specific, informed and unambiguous indication of his or her wishes by which the data subject, either by statement or by a clear affirmative action, signifies agreement to personal data relating to them being processed“. Organisations will need to be able to show how and when consent was obtained. This consent does not need to be explicitly given, it can be implied by the person‘s relationship with the company. However, the data obtained must be for specific, explicit and legitimate purposes. Individuals must be able to withdraw consent at any time and have a right to be forgotten; if their data is no longer required for the reasons for which it was collected, it must be erased.
informed encompasses your obligation to provide ‘fair processing information’, typically through a privacy notice. - It emphasizes the need for transparency over how you use personal data The right of access - Individuals have the right to access their personal data and supplementary information. - The right of access allows individuals to be aware of and verify the lawfulness of the processing. The right to rectification - The GDPR gives individuals the right to have personal data rectified. - Personal data can be rectified if it is inaccurate or incomplete. The right to erase - The right to erasure is also known as ‘the right to be forgotten’. - The broad principle underpinning this right is to enable an individual to request the deletion or removal of personal data where there is no compelling reason for its continued processing. The right to restrict processing - Individuals have a right to ‘block’ or suppress processing of personal data. - When processing is restricted, you are permitted to store the personal data, but not further process it. - You can retain just enough information about the individual to ensure that the restriction is respected in future. The right to data portability - The right to data portability allows individuals to obtain and reuse their personal data for their own purposes across different services. - It allows them to move, copy or transfer personal data easily from one IT environment to another in a safe and secure way, without hindrance to usability. The right to object The right to data portability allows individuals to obtain and reuse their personal data for their own purposes across different services. It allows them to move, copy or transfer personal data easily from one IT environment to another in a safe and secure way, without hindrance to usability. Rights in relation to automated decision making and profiling - The GDPR has provisions on: automated individual decision-making (making a decision solely by automated means without any human involvement);and profiling (automated processing of personal data to evaluate certain things about an individual). - Profiling can be part of an automated decision-making process. Smart Data Smart Region | www.smartdata.how
required to implement appropriate technical and organisational measures in relation to nature, scope, context and purposes of their handling and rocessing of personal data. Data protection safeguards must be designed into products and services from the earliest stages of development. AWARENESS INFORMATION YOU HOLD COMMUNICATING PRIVACY INFORMATION INDIVIDUAL RIGHTS SUBJECT ACCESS REQUESTS LAWFUL BASIS FOR PROCESSING PERSONAL DATA CONSENT CHILDREN DATA BREACHES DATA PROTECTION BY DESIGN AND DATA PROTECTION IMPACT ASSESSMENTS DATA PROTECTION OFFICERS INTERNATIONAL 12 steps you can make in your company to implementate GDPR 1 2 3 4 5 6 7 8 10 9 11 12
key people in your organisation are aware that the law is changing to the GDPR. They need to appreciate the impact this is likely to have and identify areas that could cause compliance problems under the GDPR. It would be useful to start by looking at your organisation’s risk register, if you have one. Implementing the GDPR could have significant resource implications, especially for larger and more complex organisations. You may find compliance difficult if you leave your preparations until the last minute.
you hold, where it came from and who you share it with. You may need to organise an information audit across the organisation or within particular business areas. The GDPR requires you to maintain records of your processing activities. It updates rights for a networked world. For example, if you have inaccurate personal data and have shared this with another organisation, you will have to tell the other organisation about the inaccuracy so it can correct its own records. You won’t be able to do this unless you know what personal data you hold, where it came from and who you share it with. You should document this. Doing this will also help you to comply with the GDPR’s accountability principle, which requires organisations to be able to show how they comply with the data protection principles, for example by having effective policies and procedures in place.
notices and put a plan in place for making any necessary changes in time for GDPR implementation. When you collect personal data you currently have to give people certain information, such as your identity and how you intend to use their information. This is usually done through a privacy notice. Under the GDPR there are some additional things you will have to tell people. For example, you will need to explain your lawful basis for processing the data, your data retention periods and that individuals have a right to complain to the ICO if they think there is a problem with the way you are handling their data. The GDPR requires the information to be provided in concise, easy to understand and clear language
they cover all the rights individuals have, including how you would delete personal data or provide data electronically and in a commonly used format. The GDPR includes the following rights for individuals: - the right to be informed; - the right of access; - the right to rectification; - the right to erasure; - the right to restrict processing; - the right to data portability; - the right to object; and - the right not to be subject to automated decision-making including profiling. You should consider whether you need to revise your procedures and make any changes. You will need to provide the personal data in a structured commonly used and machine readable form and provide the information free of charge.
plan how you will handle requests to take account of the new rules: - In most cases you will not be able to charge for complying with a request. - You will have a month to comply, rather than the current 40 days. - You can refuse or charge for requests that are manifestly unfounded or excessive. - If you refuse a request, you must tell the individual why and that they have the right to complain to the supervisory authority and to a judicial remedy. You must do this without undue delay and at the latest, within one month. If your organisation handles a large number of access requests, consider the logistical implications of having to deal with requests more quickly. You could consider whether it is feasible or desirable to develop systems that allow individuals to access their information easily online.
the lawful basis for your processing activity in the GDPR, document it and update your privacy notice to explain it. Many organisations will not have thought about their lawful basis for processing personal data. Under the current law this does not have many practical implications. However, this will be different under the GDPR because some individuals’ rights will be modified depending on your lawful basis for processing their personal data. The most obvious example is that people will have a stronger right to have their data deleted where you use consent as your lawful basis for processing. You will also have to explain your lawful basis for processing personal data in your privacy notice and when you answer a subject access request. The lawful bases in the GDPR are broadly the same as the conditions for processing in the DPA. It should be possible to review the types of processing activities you carry out and to identify your lawful basis for doing so. You should document your lawful bases in order to help you comply with the GDPR’s ‘accountability’ requirements.
manage consent and whether you need to make any changes. Refresh existing consents now if they don’t meet the GDPR standard. You should read the detailed guidance the ICO has published on consent under the GDPR, and use our consent checklist to review your practices. Consent must be freely given, specific, informed and unambiguous. There must be a positive opt-in – consent cannot be inferred from silence, preticked boxes or inactivity. It must also be separate from other terms and conditions, and you will need to have simple ways for people to withdraw consent. Public authorities and employers will need to take particular care. Consent has to be verifiable and individuals generally have more rights where you rely on consent to process their data. You are not required to automatically ‘repaper’ or refresh all existing DPA consents in preparation for the GDPR. But if you rely on individuals’ consent to process their data, make sure it will meet the GDPR standard on being specific, granular, clear, prominent, opt-in, properly documented and easily withdrawn. If not, alter your consent mechanisms and seek fresh GDPR-compliant consent, or find an alternative to consent.
need to put systems in place to verify individuals’ ages and to obtain parental or guardian consent for any data processing activity. For the first time, the GDPR will bring in special protection for children’s personal data, particularly in the context of commercial internet services such as social networking. If your organisation offers online services (‘information society services’) to children and relies on consent to collect information about them, then you may need a parent or guardian’s consent in order to process their personal data lawfully. The GDPR sets the age when a child can give their own consent to this processing at 16 (although this may be lowered to a minimum of 13 in the UK). If a child is younger then you will need to get consent from a person holding ‘parental responsibility’. This could have significant implications if your organisation offers online services to children and collects their personal data. Remember that consent has to be verifiable and that when collecting children’s data your privacy notice must be written in language that children will understand.
right procedures in place to detect, report and investigate a personal data breach. Some organisations are already required to notify the ICO (and possibly some other bodies) when they suffer a personal data breach. The GDPR introduces a duty on all organisations to report certain types of data breach to the ICO, and in some cases, to individuals. You only have to notify the ICO of a breach where it is likely to result in a risk to the rights and freedoms of individuals – if, for example, it could result in discrimination, damage to reputation, financial loss, loss of confidentiality or any other significant economic or social disadvantage. Where a breach is likely to result in a high risk to the rights and freedoms of individuals, you will also have to notify those concerned directly in most cases. You should put procedures in place to effectively detect, report and investigate a personal data breach. You may wish to assess the types of personal data you hold and document where you would be required to notify the ICO or affected individuals if a breach occurred. Larger organisations will need to develop policies and procedures for managing data breaches. Failure to report a breach when required to do so could result in a fine, as well as a fine for the breach itself.
It has always been good practice to adopt a privacy by design approach and to carry out a Privacy Impact Assessment (PIA) as part of this. However, the GDPR makes privacy by design an express legal requirement, under the term ‘data protection by design and by default’. It also makes PIAs – referred to as ‘Data Protection Impact Assessments’ or DPIAs – mandatory in certain circumstances. A DPIA is required in situations where data processing is likely to result in high risk to individuals, for example: - where a new technology is being deployed; - where a profiling operation is likely to significantly affect individuals; or - where there is processing on a large scale of the special categories of data. If a DPIA indicates that the data processing is high risk, and you cannot sufficiently address those risks, you will be required to consult the ICO to seek its opinion as to whether the processing operation complies with the GDPR. 10
for data protection compliance and assess where this role will sit within your organisation’s structure and governance arrangements. You should consider whether you are required to formally designate a Data Protection Officer (DPO). You must designate a DPO if you are: - a public authority (except for courts acting in their judicial capacity); - an organisation that carries out the regular and systematic monitoring of individuals on a large scale; or - an organisation that carries out the large scale processing of special categories of data, such as health records, or information about criminal convictions. The Article 29 Working Party has produced guidance for organisations on the designation, position and tasks of DPOs. It is most important that someone in your organisation, or an external data protection advisor, takes proper responsibility for your data protection compliance and has the knowledge, support and authority to carry out their role effectively. 11
member state, you should determine your lead data protection supervisory authority and document this. The lead authority is the supervisory authority in the state where your main establishment is. Your main establishment is the location where your central administration in the EU is or else the location where decisions about the purposes and means of processing are taken and implemented. This is only relevant where you carry out cross-border processing – ie you have establishments in more than one EU member state or you have a single establishment in the EU that carries out processing which substantially affects individuals in other EU states. If this applies to your organisation, you should map out where your organisation makes its most significant decisions about its processing activities. This will help to determine your ‘main establishment’ and therefore your lead supervisory authority. 12
crucial for businesses to get a good handle on where their data is, how it’s stored and who has access to it. The GDPR comes at a time when customer expectations have never been higher over the privacy of their data. Putting the power back into the hands of customers can only serve the businesses who rely on them, helping to build a far more positive relationship and engender consumer trust.
who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that person. CONTROLLERS Owners of the data, who are responsible for data protection and make sure processors are compliant. PROCESSORS Work with the data and have to take responsible actions with the data. The relationship between Controllers and Processor must be documented. DATA PROTECTION OFFICERS Public Authorities who have expert knowledge on data protection laws. They deal with a large scale processing of special types of personal data. PROFILING Ay automated processing of personal data to determine certain criteria about a person. BREACH AND NOTIFICATION A breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed. DATA SUBJECT ACCESS REQUESTS The right of the individual to understand what is stored and how it is used.
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