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The ICO's Summary Paper on big data and data protection
Feedback on the discussion paper on big data
The UK’s Information Commissioner’s Office (‘ICO’) published a discussion paper on Big Data and Data Protection (the ‘Paper’) in July 2014, which set out their understanding of the data protection issues raised by big data. The objective of the Paper was to dispel the notion that it was not possible to both benefit from big data and comply with data protection laws. In this article, we’ve picked out recurring themes in the responses.
More practical guidance on compliance
An overarching theme from the responses was for the ICO to provide more practical guidance. Respondents asked for more guidance on how to comply with data protection requirements, including on specific technologies. The ICO seems to appreciate that such guidance could be useful, but believes that it may not be the most suitable organisation to provide technical guidance, at least not alone. The ICO stated that industry needs to be involved, for example, by developing standardised categories to inform people about how their data is being used.
Respondents also commented on the difficulty in providing privacy notices and obtaining data subject consent in the context of big data. One respondent even asked for examples of how an organisation could communicate possible future uses of data in a privacy notice. The ICO appreciated this challenge and stated that it will continue to look for innovative ways to provide such notice. Additionally, the ICO has started to review its Privacy Notice Code of Practice and will be focusing more on how companies can be transparent about their uses of data in the big data environment. The review of the Privacy Notice Code of Practice is expected to be completed in June 2015.
Respondents also commented on how the ICO recommends privacy by design but does not provide practical advice as to how to implement it. In its response, the ICO commented that privacy by design involves organisational and technical measures, but conceded that more work is needed to identify exactly what those measures might comprise of. The ICO did say that it would like to continue to work with external experts to develop solutions that meet privacy by design. Another respondent argued for more focus on security and that technical security measures should cover how personal data is stored.
Another practical measure strongly recommended by the ICO to promote compliance is the use of privacy impact assessments (‘PIAs’). Respondents commented that PIAs are a tool to assess the impact and benefits of certain processing activities and should not be used to automatically sanction processing activities. Unsurprisingly, the ICO agreed, which will look to develop more specific guidance on PIAs.
It was suggested that personal data services could assist in helping businesses achieve data protection compliance. The ICO confirmed that it is aware of this development, but needs to see more evidence as to the benefits of personal data services.
A more risk-based approach
The responses seemed to reveal a trend that the ICO should focus more on the impact of analytics on individuals. For example, big data analytics could be used to offer a consumer a product that may appeal to them, which is less sensitive than using analytics to make decisions about applications for life insurance. The responses emphasised the importance of differentiating between levels of impact on individuals. The ICO said that its recommendation to conduct privacy impact assessments should highlight the impact on the individuals and show whether such processing is fair.
Another respondent argued that since website interactions generate large quantities of personal data, businesses should only have to provide data subjects with ‘major items’ of personal data when complying with subject access requests. Fulfilling subject access requests in a big data context will likely be challenging for businesses, but the ICO did not in this instance adopt a particularly business-friendly approach. It stated that subject access requests are a wide-ranging right and should allow data subjects to access all the data held about them.
Respondents also felt that the Paper focused too much on consent as a condition for processing personal data, and not enough on the relevance of the legitimate interests. The ICO’s response to this criticism was that it does accept that this condition applies. It also agrees that since the emphasis is on the organisation to satisfy itself that its legitimate interest does not prejudice the rights of the data subject, this is consistent with organisational accountability.
A respondent suggested that there should be greater emphasis on limiting the amount of data collected as a way of minimising risk associated with big data analytics. The ICO was in favour of this approach as it was in line with its recommendation in the Paper about data minimisation - namely that organisations should not hold data without purpose.
The new General Data Protection Regulation
Many respondents felt that more should have been said about the new General Data Protection Regulation (‘GDPR’) and its implications for big data. The ICO said that it has previously issued commentary on the GDPR and did not want to repeat itself.When the GDPR is approved, the ICO will release guidance on provisions relating to profiling, but said that it is premature at this stage to provide such an analysis.
Following the responses received, the ICO has confirmed that it will reissue the Paper to take into account the feedback. This revised Paper is expected in summer 2015, which may coincide with an agreement on the GDPR within the Council.
This article was first published in June's issue of E-Commerce Law & Policy.