Facebook privacy woes continue with the UK information Commissioner

July 11, 2018 |

Another case of compare and contrast between privacy regulators.  In the UK the Information Commissioner’s Office has announced the finding of investigations involving the use of personal information provided to Facebook by Cambridge Analytica.  The size of the breach of the Data Protection Act is enormous involving up to 87 million users worldwide.  The UK Information Commissioner commenced it investigation into Facebook in February.  It now announces its intention to fine Facebook a maximum of £500,000 as well as warning political parties about the misuse of information and prosecutions against a company for failing to comply with an enforcement notice.  The Commissioner’s statement provides:

Information Commissioner Elizabeth Denham has today published a detailed update of her office’s investigation into the use of data analytics in political campaigns.

In March 2017, the ICO began looking into whether personal data had been misused by campaigns on both sides of the referendum on membership of the EU.

In May it launched an investigation that included political parties, data analytics companies and major social media platforms.

Today’s progress report gives details of some of the organisations and individuals under investigation, as well as enforcement actions so far.

This includes the ICO’s intention to fine Facebook a maximum £500,000 for two breaches of the Data Protection Act 1998.

Facebook, with Cambridge Analytica, has been the focus of the investigation since February when evidence emerged that an app had been used to harvest the data of 50 million Facebook users across the world. This is now estimated at 87 million.

The ICO’s investigation concluded that Facebook contravened the law by failing to safeguard people’s information. It also found that the company failed to be transparent about how people’s data was harvested by others.

Facebook has a chance to respond to the Commissioner’s Notice of Intent, after which a final decision will be made.

Other regulatory action set out in the report comprises:

  • warning letters to 11 political parties and notices compelling them to agree to audits of their data protection practices;
  • an Enforcement Notice for SCL Elections Ltd to compel it to deal properly with a subject access request from Professor David Carroll;
  • a criminal prosecution for SCL Elections Ltd for failing to properly deal with the ICO’s Enforcement Notice;
  • an Enforcement Notice for Aggregate IQ to stop processing retained data belonging to UK citizens;
  • a Notice of Intent to take regulatory action against data broker Emma’s Diary (Lifecycle Marketing (Mother and Baby) Ltd); and
  • audits of the main credit reference companies and Cambridge University Psychometric Centre.

Information Commissioner Elizabeth Denham said:

“We are at a crossroads. Trust and confidence in the integrity of our democratic processes risk being disrupted because the average voter has little idea of what is going on behind the scenes.

“New technologies that use data analytics to micro-target people give campaign groups the ability to connect with individual voters. But this cannot be at the expense of transparency, fairness and compliance with the law.

She added:

“Fines and prosecutions punish the bad actors, but my real goal is to effect change and restore trust and confidence in our democratic system.”

A second, partner report, titled Democracy Disrupted? Personal information and political influence, sets out findings and recommendations arising out of the 14-month investigation.

Among the ten recommendations is a call for the Government to introduce a statutory Code of Practice for the use of personal data in political campaigns.

Ms Denham has also called for an ethical pause to allow Government, Parliament, regulators, political parties, online platforms and the public to reflect on their responsibilities in the era of big data before there is a greater expansion in the use of new technologies.

She said:

“People cannot have control over their own data if they don’t know or understand how it is being used. That’s why greater and genuine transparency about the use of data analytics is vital.”

In addition, the ICO commissioned research from the Centre for the Analysis of Social Media at the independent thinktank DEMOS. Its report, also published today, examines current and emerging trends in how data is used in political campaigns, how use of technology is changing and how it may evolve in the next two to five years. 

The investigation, one of the largest of its kind by a Data Protection Authority, remains ongoing. The 40-strong investigation team is pursuing active lines of enquiry and reviewing a considerable amount of material retrieved from servers and equipment.

The interim progress report has been produced to inform the work of the DCMS’s Select Committee into Fake News.

The next phase of the ICO’s work is expected to be concluded by the end of October 2018.

Needless to say this story features prominently by the BBC, the Guardian and the Australian to name but a few.

By contrast the Australian Information Commissioner approach has been wordy but anodyne putting out statements on 20 March and 5 April 2018 being:

In March:

I am aware of the reports that users’ Facebook profile information was acquired and used without authorisation. My Office is making inquiries with Facebook to ascertain whether any personal information of Australians was involved.

I will consider Facebook’s response and whether any further regulatory action is required. The Privacy Act 1988 confers a range of privacy regulatory powers which include powers to investigate an alleged interference with privacy and enforcement powers ranging from less serious to more serious regulatory action, including powers to accept an enforceable undertaking, make a determination, or apply to the court for a civil penalty order for a breach of a civil penalty provision.

In April

Today I have opened a formal investigation into Facebook, following confirmation from Facebook that the information of over 300,000 Australian users may have been acquired and used without authorisation.

The investigation will consider whether Facebook has breached the Privacy Act 1988 (Privacy Act). Given the global nature of this matter, the OAIC will confer with regulatory authorities internationally.

All organisations that are covered by the Privacy Act have obligations in relation to the personal information that they hold. This includes taking reasonable steps to ensure that personal information is held securely, and ensuring that customers are adequately notified about the collection and handling of their personal information.

This is a timely reminder to all organisations of the value of good privacy practice to Australians. Organisations should regularly and proactively assess their information-handling practices to ensure that they are both compliant with privacy laws and in keeping with community expectations.

For the uninitiated the above statements are typical of the Commissioner’s approach, announcing the opening an investigation following by long periods of tumbleweeds down the street.  Eventually there might just be an enforceable undertaking. Maybe.  But the Commissioner takes a long time to get to any decision point.  Sometimes 2 years to complete an investigation.  And the resulting enforcement is weak.  Bromides are the Commissioner’s strong suit.

 

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