achieving gdpr compliance - amazon s3 · trading with the eu will still need to comply with the...

Achieving GDPR complianceLocal Government awareness series in partnership with IT Governance Ltd

Alan Calder and Simon Merrick28th June 2017

Commercial in confidence

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© IT Governance Ltd 2017

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Copyright IT Governance Ltd 2017 – v1.0

Speakers

Founder and Executive Chariman,

IT Governance Ltd

Managing Consultant,

Agilisys

Alan Calder Simon Merrick

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Introduction

• Alan Calder• Founder, IT Governance Ltd• The single source for everything to do with

IT governance, cyber risk management and IT compliance

• IT Governance: An International Guide to Data Security and ISO27001/ISO27002(Open University textbook)

• www.itgovernance.co.uk

http://www.itgovernance.co.uk/

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Introduction

• Simon Merrick • Managing Consultant and GDPR

Practitioner • Broad experience in running

transformational programmes in Central Govt, Local Govt and Health.

• [email protected]• www.agilisys.co.uk

mailto:[email protected]

Agilisys delivers success through innovation, working with customers to transform services that make a difference to millions of people across the UK.

Combining Agilisys’ strong track record of delivering digital transformation services to the public sectorwith IT Governance’ heritage and experience in IT governance, cyber-risk, IT compliance

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https://www.agilisys.co.uk/news/agilisys-announces-new-cyber-security-advisory-service (June 16th)

GDPR compliance is not a tick box exercise

We believe there is a real opportunity for organisations to present themselves on the basis of how they respect the privacy of individuals (ICO, January 2017)

Source: ONS

GDPR impact on processing EU residents’

data

The effect of Brexit on data protection in the UK

Breach notification processes and using third-party providers to manage

GDPR compliance

The pivotal role of the data protection officer (DPO) in

supporting GDPR compliance in local

government

The appropriate resources and tools to address GDPR compliance challenges in local

government

How local government can apply IT Governance’s nine practical steps to

GDPR compliance

GDPR impact on processing EU residents’

data

Euro-vision:The Regulation intends to harmonise data protection legislation across the 28 member states. • Controllers have to demonstrate

accountability.

• Administrative / dissuasive fines have been introduced

• Evidence/proof of compliance is crucial to mitigating fines/risk.

• Some terminology needs court validation

The SticksUKGDPR derogations allow variation between Member States, which means UK law can make some.

Key changes

DPOAppointment of a DPO is mandatory in certain circumstances

Breach reporting and ProcessorsBreach reporting is mandatory in certain circumstances. Data processors now hold responsibility for the personal data they process on behalf of others

Privacy by design Prior consultation is needed wherever processing represents a high risk to data subjects

“If a business can’t show that good data protection is a cornerstone of their practices, they’re leaving themselves open to a fine or other enforcement action that could damage

bank balance or business reputation”, ICO (Jan 2017)

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Material and territorial scope

• Natural persons have rights associated with:– The protection of personal

data.– The protection of the

processing of personal data.– The unrestricted movement of

personal data within the EU.

• In material scope:– Personal data that is

processed wholly or partly by automated means.

– Personal data that is part of a filing system, or intended to be.

– The Regulation applies to controllers and processors in the EU, irrespective of where processing takes place.

Natural person = a living individual

The GDPR also applies to controllers not in the EU

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Entry into force and application

“This Regulation shall be binding in its entirety and directly applicable in all Member States.”

KEY DATES• On 8 April 2016, the European Council adopted the Regulation. • On 14 April 2016, the European Parliament adopted the Regulation• On 4 May 2016, the official text of the Regulation was published in the EU Official Journal in

all the official languages. • The Regulation entered into force on 24 May 2016, and will apply from 25 May 2018.• http://ec.europa.eu/justice/data-protection/reform/index_en.htm

Final text of the Regulation: http://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX%3A32016R0679

http://ec.europa.eu/justice/data-protection/reform/index_en.htm

http://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:32016R0679

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Remedies and liabilities

– Data subjects shall have recourse to judicial remedy where:º In the courts of the Member State where the controller or

processor has an establishment.º In the courts of the Member State where the data subject

habitually resides.

– Any person who has suffered material, or non-material, damage shall have the right to receive compensation from the controller or processor.

– The controller involved in processing shall be liable for damage caused by processing.

Natural persons have rights

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Penalties

– In each case, fines will be effective, proportionate and dissuasive– Fines administrated will take into account technical and

organisational measures implemented.– €10,000,000 or, in the case of an undertaking, up to 2% of the

total worldwide annual turnover of the preceding financial year.

Administrative fines

– €20,000,000 or, in case of an undertaking, up to 4% of the total worldwide annual turnover in the preceding financial year.

Member State may decide to what extent administrative fines may be imposed on public authorities and bodies established in that Member

State. Article 83(7)

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The Rights of data subjects• “The controller shall take appropriate measures to provide any information relating to processing to the data subject in a

concise, transparent, intelligible and easily accessible form, using clear and plain language (Article 11-1).”

• The controller shall facilitate the exercise of data subject rights (Article 11-2). – Rights to:

º Consent º Access º Rectification º Erasureº Restrictionº Objection

º Data portability;º Withdraw consent at any time;º Lodge a complaint with a supervisory

authority;º Be informed of the existence of automated

decision-making, including profiling, as well as the anticipated consequences for the data subject.

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The principle of accountability and what it means

“The controller shall be responsible for, and be able to demonstrate compliance with, paragraph 1 ('accountability').”

Article 5 – principles relating to the processing of personal data

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Lawfulness (Art 5 – 6)

• Personal data must be secured against accidental loss, destruction or damage• Processing must be lawful – which means, inter alia:

– Data subject must give consent for specific purposes– There are specific circumstances where consent is not required

º So that the controller can comply with legal obligations, etc.

• One month to respond to subject access requests – and no charges

• The responsibilities of controllers and processors are clearly distinguished– There are clearly identified obligations– Controllers are responsible for ensuring processors comply with contractual terms for processing information– Processors must operate under a legally binding contract

º And note issues around extra-territoriality

• Public authorities are often exempt from consent rules because they operate in the public interest, etc. This must be documented.

• Public authorities are exempt from some rules about disclosure as long as they are operating in compliance with other relevant Member State law.

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Consent (Art. 7-9)• Consent must be clear and affirmative

– Must be able to demonstrate that consent was given– Silence or inactivity does not constitute consent– Written consent must be clear, intelligible and easily accessible, or it is not binding– Consent can be withdrawn any time, and it must be as easy to withdraw consent as to give it

• Special conditions apply for a child (under 16) giving consent• Explicit consent must be given for processing sensitive personal data

– Race, ethnic origin, political beliefs, etc.– Specific circumstances allow non-consensual processing, e.g. to protect vital interests of the data subject

• Secure against accidental loss, destruction or damage (article 5)

• Public authorities are often exempt from consent rules because they operate in the public interest. Consent must be documented.

• Public authorities are exempt from some rules about disclosure as long as they are operating in compliance with other relevant Member State law.

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Transparency (Art. 12-17)• Any communications with a data subject must be concise, transparent and intelligible• The controller must be transparent in providing information about itself and the purposes of the

processing• The controller must provide the data subject with information about their rights• There are specific provisions (Article 14) covering data not obtained directly from the data

subject• Data subjects have rights to access, rectification, erasure (‘right to be forgotten’), to restriction of

processing, and data portability

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Privacy by design (Art. 25 et seq. )

• Privacy must now be designed into data processing by default• Data protection impact assessments are mandatory (Article 35)

– For technologies and processes that are likely to result in a high risk to rights of data subjects

• Documentary evidence is crucial• Data audits

– The GDPR applies to existing data, as well as future data– Privacy may have to be designed retrospectively– Organisations need to identify what personal data they hold, where and on what grounds they hold it, and how

it is secured in a way that will meet the requirements of the GDPR

Public sector and private sector alike will need to engage with suppliers/partners and examine statements and contracts of work where technology design, build and integration activities have been outsourced.

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Security of Processing

– Pseudonymisation and encryption of personal data

– Measures to ensure the ongoing confidentiality, integrity and availability of systems

– A process for regularly testing, assessing and evaluating the effectiveness of security measures

It is a requirement for data controllers and data processors to implement a level of security appropriate to the risk. This includes

Security measures taken need to comply with the concept of privacy by design.

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Cyber-security assurance

• A GDPR requirement – data controllers must implement “appropriate technical and organisational measures to ensure and to be able to demonstrate that the processing is performed in accordance with this Regulation”.– Must include appropriate data protection policies– Local authorities may use adherence to approved codes of conduct or management system certifications “as

an element by which to demonstrate compliance with their obligations”– ICO and BSI are both developing new GDPR-focused standards

• ISO 27001 already meets the “appropriate technical and organisational measures” requirement

• BS 10012 was developed specifically for the GDPR– It provides assurance to the board that data security is being managed in accordance with the Regulation– It helps manage all information assets and all information security within the organisation – protecting against

all threats

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The effect of Brexit on data protection in the UK

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Brexit and the GDPR

• The GDPR applies to all organisations that process the personal data of EU residents, regardless of where the company is based.

• After Brexit, UK-based organisations trading with the EU will still need to comply with the GDPR.

• The UK may be treated as a ‘third country’ on data protection issues and legislation will be adjudicated against the standards of the GDPR.

• The GDPR takes into account the role of public authorities in non-EU countries when determining an adequacy decision, etc. Article 45(2).

Elizabeth Denham, the Information Commissioner, said: “In a global economy we need consistency of law and standards. The GDPR is a strong law, and

once we are out of Europe, we will still need to be deemed adequate or essentially equivalent. The

fact is, no matter what the future legal relationship between the UK and Europe, personal information

will need to flow. It is fundamental to the digital economy. Whatever data protection law we have post-Brexit, I expect to see organisations taking

responsibility for their actions, no matter how quick the technological change.” Source: ico.org.uk

https://ico.org.uk/about-the-ico/news-and-events/news-and-blogs/2016/09/transparency-trust-and-progressive-data-protection/

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Breach notification processes and using third-party providers to manage

GDPR compliance

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Data Breaches

Definition

• Notify supervisory authority no later than 72 hours after discovery

• Must describe the nature of the breach• No requirement to notify if no risk to rights

and freedoms of natural persons• Failure to report within 72 hours requires

explanation

A 'personal data breach' means 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.

• Notify the data controller of a breach without delay

• All data breaches have to be reported (no exemptions)

• European Data Protection Board (EDPB) to issue clarification with regard to ‘undue delay

Controller obligations Processor obligations

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Data Breaches

Obligation for data controller to communicate a personal data breach to data subjects

• Communicate with data subjects without undue delay if the breach represents a high risk to data subjects' rights

• Communication must be in clear, plain language• Supervisory authority may compel communication with data subject

• Appropriate technical and organisational measures were taken• A high risk to the data subjects will not materialise• Communication with data subjects would involve disproportionate effort

Exemptions

Data protection model under GDPR

The pivotal role of the data protection officer (DPO) in

supporting GDPR compliance in local

government

Data Protection Officer (DPO)(Art. 37 et seq)

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• DPOs are mandatory for processing by public authorities except courts acting in their judicial capacity,

• Public authorities are allowed to share a DPO. Article 37(1a/3).

• It is a protected position, reporting directly to senior management• Appropriately qualified• Consulted in respect of all data processing activities

• Will be a ‘good practice’ appointment outside the mandatory appointments

• Most staff dealing with personal data (e.g. HR, marketing) will need at least basic training

• Staff awareness training also critical (accidental release of personal data could have financially damaging consequences)

www.itgovernance.co.uk/shop/p-1833-certified-eu-general-data-protection-regulation-gdpr-foundation-and-practitioner-combination-online-course.aspx

http://www.itgovernance.co.uk/shop/p-1833-certified-eu-general-data-protection-regulation-gdpr-foundation-and-practitioner-combination-online-course.aspx?utm_source=webinar&utm_medium=presentation&utm_campaign=GDPRWebinars

http://www.itgovernance.co.uk/shop/p-1833-certified-eu-general-data-protection-regulation-gdpr-foundation-and-practitioner-combination-online-course.aspx?utm_source=presentation&utm_medium=Webinar&utm_campaign=GDPRWebinars

• Shared DPOs, especially across local government is a possibility, but must be properly supported.

• The role can be outsourced, but the accountability can’t!

• DPO needs to work hand in hand with the Information Security Manager and Legal, but be clear on responsibility boundaries.

• Be ready to respond to any breach

The DPO in the local authority

• The DPO should be at the heart of the data protection framework, the guide that keeps the organisation true to its customers privacy.

• Ideally should not be 'conflicted' which means Head of IT or Legal is unlikely to be suitable.

• The role needs to be properly supported with resources proportionate to the organisation its risk approach.

• For many authorities, some technology investment will be proportionate to efficiently meet the obligations

The impact on local government and how it can apply IT

Governance’s nine practical steps to GDPR compliance

© Agilisys 2016. Commercial-in-confidence

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Personal data is broadened and includes biometric and genetic data and more obligations for categories of sensitive data

More data to protect, higher level protection for sensitive data, includes data held manually.

Demonstration of compliance of DPPs and greater transparency of personal data held for subjects.

are

Evidence of how DPP compliance is achieved will need to be retained and maintained.

No more reliance by authorities on using ‘legitimate interest’ as reason to process personal data

Are

Authorities will have to look to Article 6(1)(c or e) instead for basis of processing personal data

Consent must be unambiguous as well as freely given, specific and informed.

are

Are

Existing consents may become invalid where used (not always appropriate for LA)

DPP = Data protection principlesArticle 6(1)c “processing is necessary for compliance with a legal obligation” or (e) “processing is necessary for the performance of a task carried out in the public interest or the exercise of official authority. Member states has some powers to adapt the rules in relation to tasks carried out in the public interest or in the exercise of public authority.

Data Protection Act change

Impact on Public Sector

The EU GDPR – the impact on the public sectorTM


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DPP = Data protection principlesArticle 6(1)c “processing is necessary for compliance with a legal obligation” or (e) “processing is necessary for the performance of a task carried out in the public interest or the exercise of official authority. Member states has some powers to adapt the rules in relation to tasks carried out in the public interest or in the exercise of public aurthority.



Privacy notices will need to contain more information than is currently required under the DPA

Privacy notices will need to change and provide information in a user friendly format.

Data controllers won’t need to register with the ICO anymore. But record keeping burden greater.

Keeping evidence of how compliance is achieved will be mandatory – must comply with Article 30

More information included in subject access request, generally no fee to be charged.

More SARs will be received initially. There’s a self service opportunity here too!

More and clearer rights for the you and I, data portability, erasure and stop processing.

Staff training rights and new processes to enable systems to isolate and erase data permanently.

The EU GDPR – the impact on the public sector


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Data breaches will be mandatory to notify the ICO and subject in certain circumstances

Authorities will need to detect, report and investigate data breaches within timescales.

DPO role becomes mandatory for public bodies and in other circumstances.

No real change for authorities that already have this DPO role. DPO role can be shared.

Data protection by design and default becomes mandatory along with risk assessments.

New systems will need to be designed from outset to comply and you need to evidence it.

Maximum fine in the UK is £500K. From May its up to 4% of T/O or to 20M EURO (two tiers).

GDPR is a board room agenda item as risk rises. Rise of the legal ‘Breach chaser”

Data Processors will need to comply with the data protection principles and keep records of compliance and implement (and beable to evidence) appropriate security to their controllers.

Existing contracts with data controllers will need re-negotiated to reflect new obligations and risk allocation. New contracts will need a careful review of risk versus compliance with GDPR. Data processors become exposed to fines and damages.



The small print

The EU GDPR – the impact on the public sector

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Effective and sustainable compliance

Hoping compliance

is good enough already

Departmentalled

DP led Senior Stakeholder

led

Culturally led compliance

Most public sector bodies will be here.“Many Councils have work to do”, ICO (March 2017)

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9 steps to compliance

Hoping compliance

is good enough already

Is not step 1.

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STEP 1: Establish a governance framework • Board/management awareness/identify a sponsor• Risk register• Accountability framework• Review• Set up a programme with objectives to achieve and

maintain compliance

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STEP 2: Appoint and/or train a DPO/SDPO• Establish a project/programme• Provide the DPO with sufficient resources (financial and

staff)• If necessary share one, or bring an external team• Make sure they are ‘apppriately resources’

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STEP 3: Build a data inventory • Identify processors• Identify unlawfully held data• Don’t forget shadow IT• Work with your partners• If appropriate use a data discovery tool• Make sure you build with sustainability in mind – this is the

start of an inventory process not a snapshot.

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STEP 4: Conduct a data flow audit• Your DPO will need a team to help do this• Work with your partners and technology providers• Don’t forget the paper cabinets• Examine asset management• Work with the Information Security Manager to understand

leaky data flows and access controls

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STEP 5: Conduct a compliance gap analysis• Ensure privacy notice and SAR documents and processes

are robust and legal• Create records of processing

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STEP 6: Conduct a DPIA and security gap analysis• Understand circumstances when a DPIA is needed.

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STEP 7: Remediate– Address gap with a Privacy Compliance Framework

º Governance, Risk and Complianceº Personal information management systemº Privacy Principles

– Obtain Cyber Essentials/Ten Steps to Cyber Security/ISO 27001

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STEP 8: Implement a data breach response process– Test it– Simulate it– Rely on it

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STEP 9: Monitor, audit and continually improve

“In an ideal world we wouldn’t need to use those sticks, but policy makers are clear that breaches of personal privacy are a serious matter. Last year we issued more than one million pounds in fines for breaches of the Data Protection Act, so it’s not a power we’re afraid to use.

And our enforcement powers aren’t just for ‘typical’ data breaches, like laptops left on trains or information left open to a cyber attack. The GDPR gives regulators the power to enforce in the context of accountability – data protection by design, failure to conduct a data protection impact assessment, DPOs and documentation. If a business can’t show that good data protection is a cornerstone of their practices, they’re leaving themselves open to a fine or other enforcement action that could damage bank balance or business reputation

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Self help materials

A Pocket guidewww.itgovernance.co.uk/shop/Product/eu-gdpr-a-pocket-guide

Implementation manualwww.itgovernance.co.uk/shop/Product/eu-general-data-protection-regulation-gdpr-an-implementation-and-compliance-guide

Documentation toolkitwww.itgovernance.co.uk/shop/Product/eu-general-data-protection-regulation-gdpr-documentation-toolkit

Compliance gap assessment toolwww.itgovernance.co.uk/shop/Product/eu-gdpr-compliance-gap-assessment-tool

http://www.itgovernance.co.uk/shop/Product/eu-gdpr-a-pocket-guide?utm_source=webinar&utm_medium=presentation&utm_campaign=GDPRWebinars

http://www.itgovernance.co.uk/shop/Product/eu-general-data-protection-regulation-gdpr-an-implementation-and-compliance-guide?utm_source=webinar&utm_medium=presentation&utm_campaign=GDPRWebinars

http://www.itgovernance.co.uk/shop/Product/eu-general-data-protection-regulation-gdpr-documentation-toolkit?utm_source=webinar&utm_medium=presentation&utm_campaign=GDPRWebinars

http://www.itgovernance.co.uk/shop/Product/eu-gdpr-compliance-gap-assessment-tool?utm_source=webinar&utm_medium=presentation&utm_campaign=GDPRWebinars

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TrainingOne-Day accredited Foundation course (classroom, online, distance learning)www.itgovernance.co.uk/shop/Product/certified-eu-general-data-protection-regulation-foundation-gdpr-training-course

Four-Day accredited Practitioner course (classroom, online, distance learning)www.itgovernance.co.uk/shop/Product/certified-eu-general-data-protection-regulation-practitioner-gdpr-training-course

One-Day data protection impact assessment (DPIA) workshop (classroom)www.itgovernance.co.uk/shop/Product/data-protection-impact-assessment-dpia-workshop

http://www.itgovernance.co.uk/shop/Product/certified-eu-general-data-protection-regulation-foundation-gdpr-training-course?utm_source=webinar&utm_medium=presentation&utm_campaign=GDPRWebinars

http://www.itgovernance.co.uk/shop/Product/certified-eu-general-data-protection-regulation-practitioner-gdpr-training-course?utm_source=webinar&utm_medium=presentation&utm_campaign=GDPRWebinars

http://www.itgovernance.co.uk/shop/Product/data-protection-impact-assessment-dpia-workshop?utm_source=webinar&utm_medium=presentation&utm_campaign=GDPRWebinars

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GDPR compliance programme support• Gap analysis• Unless you have a team in place, external experienced support can be valuable and independent means

of assessing the exact standing of your current legal situation, security practices and operating procedures in relation to the DPA or the GDPR.

• Data flow audit• Data mapping involves plotting out all of your data flows, which involves drawing up an extensive

inventory of the data to understand where the data flows from, within and to. This type of analysis is a key requirement of the GDPR.

• Implementing a personal information management system (PIMS)• Establishing a PIMS as part of your overall business management system will ensure that data protection

management is placed within a robust framework, which will be looked upon favourably by the regulator when it comes to DPA compliance.

• Implementing an compliant ISMS with ISO 27001• ISO27001 is an effective foundation in complying with GDPR. It can be daunting, external help can also

help establish an ISO 27001 compliant Information Management Security System quickly and without the hassle, no matter where your authority is located.

• Cyber health check• A cyber Health Check combined with remote vulnerability assessments can be useful in assessing your

cyber risk exposure.

For more information please contact [email protected]

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GDPR support for local government DPOs

For more information please contact [email protected]

• Team DPO• Experienced and accredited consultants, like those from Agilisys and its partner IT Governance

can support your DPO, Information Security Manager and Head of Legal in creating or deploying the policies, processes and technology to achieve a sustainable and compliant environment in which to comply with data protection regulations and laws.

• GDPR Project Management• DPO are data protection specialists and not necessarily programme or project managers. It would

be prudent to align an experienced programme or project manager can make sure everything happens when it should, ideally one who has been through some GDPR training.

Questions?

Third Floor, One Hammersmith BroadwayLondon, W6 9DL

+44 (0)845 450 [email protected]

www.agilisys.co.uk

Agilisys @Agilisys

achieving gdpr compliance - amazon s3 · trading with the eu will still need to comply with the...

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