Significant data breach at the Federal Court of Australia revealing names of protection visa applicants

March 31, 2020

It was serendipitous that last Wednesday I presented a paper, via Zoom, at a Legalwise Seminar on Data Breaches: How to Respond, Notify and Remedy  given today’s report that there has been a significant data breach by the Federal Court, an agency for the purposes of the Privacy Act 1988.  The, to use the Federal Court’s spokesman’s description, “major systemic failure” involved the searchable database permitting the identity of 400 asylum seekers being disclosable. 

This breach would fall within Part IIIC of the Privacy Act 1988, the mandatory data breach notification regime. Going through the process would require an assessment of the breach, a determination as to whether the breach is likely to cause serious harm and, if so, the means of notifying the affected individuals.  Based on the ABC report of the breach there would be legal and practical issues to address with each step.  As to the assessment process it is concerning that Read the rest of this entry »

Information Commissioner releases report that 537 notifiable data breaches for the last half of 2019 while worldwide the estimate of data records accessed unlawfully in 2019 reached 12.3 billion!

March 15, 2020

At the end of February the Australian Information Commissioner released the Report of Notifiable Data Breaches for the July – December 2019 period.  There were 537 notifications, up from 460 in the previous 6 months and making 997 for the 2019 calendar year. 

As usual health service providers top the list, with 117 notifications, followed by finance with 77 notifications.  Interestingly though less than 10% of notifications there were 40 notifications from the legal/accountancy and management services.  In terms of numbers of individuals affected 132 notifications, about 20%, affected only one person’s personal information but one breach affected more than 10,000,000. The majority of notifications, 309, affected from 2 to 1,000 individuals while 13 notifications covered between 25,000 – 10,000,000. 

Contact information was Read the rest of this entry »

The Australian Information Commissioner commences civil penalty proceedings against Facebook under section 13G of the Privacy Act

March 10, 2020

Yesterday, 9 March 2020, the Australian Information Commissioner commenced proceedings against Facebook in the Federal Court.  The actual citation is Australian Information Commissioner v Facebook Inc & Facbook Ireland Limited (court number NSD 246/2020).

It has taken 2 years for the Information Commissioner to conclude her investigations regarding Facebook’s actions in permitting personal information to be misused through the This is Your Digital Life app which was disclosed to Cambridge Analytica. The UK Information Commissioner resolved its investigation and issued a monetary penalty notice of 500,000 pounds in October 2018.  The US Federal Trade Commission imposed $5 billion penalty for its breach of the previous order in July 2019.

This litigation will be significant as it is the first consideration of the operation of section 13G of the Privacy Act, a civil penalty proceeding for serious or repeated interference with privacy.  Unfortunately the Information Commissioner has not proven to be an adept litigator to date though Facebook’s egregious conduct in permitting its users personal information to be misused is well documented.  What is less clear is how the Commissioner will convince the Court that the statutory limit of $1.7million for an infraction is a limit on each breach.  That will be a significant Read the rest of this entry »

Alinta Energy alleged non compliance with privacy regulations highlights what is all too common with poor regulation

March 2, 2020

Today the 7.30 program and the 9 Fairfax press report on possible non compliance with data storage conditions imposed on Alinta when it was sold to overseas, Chinese, purchasers. The source of the story is damaging internal documents questioning compliance. 

The essence of the story, that Alinta is not complying with its obligations under the Privacy Act regarding data security obligations, is not as exciting as the media outlets suggest.  It collects personal information of 1.1 million customers.  As do many large corporations and agencies.  It may not be properly protecting that data.

Inadequate data security is a problem endemic throughout the business sector.  Because regulation is light touch to the point of no contact compliance is patchy at best.  Some sectors are better than others, with banking, insurance and mining having reasonable structures and better compliance than other sectors because they are more often the targets of hackers and the consequences of a breach are significant.  But for many businesses cyber security is an optional extra.  

What makes the Alinta story notable is that there were strict data security conditions imposed on the purchaser, a Chinese entity, as part of the approval process. There is no culture of privacy protection in China and the Chinese government has a well deserved reputation in getting whatever benefit it can from western businesses, including the use of personal information.  Having access to over a million peoples data can be useful.

A better story would have been Read the rest of this entry »

Report that Australian government releases sensitive health information to the police without warrants

January 29, 2020

It has long been known that the legislation in place to regulate the collection, use and protection of personal information is both porous, with many exceptions, and incomplete, not covering all organisations that collect personal information.

Even with these chronic problems with privacy legislation, the Medical Republic has discovered and reported on a government practice of releasing medical records to police without the need for a warrant or court order.  The process is entirely administrative, without any right of review by the person whose data is being provided to police.  The Guardian has also reported on the issue in Australian government secretly releasing sensitive medical records to police.

I provided comment on this little known scheme, amongst other privacy experts.

This process covering medical records held under the medical benefits and pharmaceutical benefits scheme completely undermines the protections that are supposed to reside in the Privacy Act. It is anachronous that Read the rest of this entry »

California now has comprehensive consumer privacy protection… well at least compared to the rest of the United States. Will it result in changes to Federal Privacy laws?

January 3, 2020

California’s much touted, and feared in some quarters, privacy law is now 2 days old and the West Coast of the USA has not slid into the sea. The Attorney General of California has set out the operation of the California Consumer Protection Act (CCPA) here with a short fact sheet.

It is common practice in the United States for significant law reform to emanate from the States and then for the Federal Government to legislate to cover the field and generally supersede those state laws.  That is particularly the case where the law applies to commerce that crosses state boundaries, clearly a federal law.  Often times that is done to establish uniformity and avoid duplication and efficiency.  Also states tend to be incubators for public policy experimentation.  Successful policies tend to get picked up and adopted federally.  That happened with welfare reform in the 1990s.  That occasionally occurred in Australia however the States are rarely so ambitious these days and are content to have the Commonwealth organise uniformity through the COAG process, amongst other fora.  The problem is that the genius of experimenting with new concepts has been suppressed for the sake of sameness.  In the area of privacy that has resulted in a dismal Federal Act and Read the rest of this entry »

New Years Honours data breach, recipients announced…along with their addresses.

December 30, 2019

The UK practice of announcing the New Years Honours recipients in the period between Christmas and New Years has turned into a disaster this year.  There was no controversy as to who the 1,097 recipients were.  It was just that both the recicpients’ names and addresses were published online.  The addresses included those of senior police officers and celebrities who may enjoy some limelight but are usually wary of divulging where they live.

This is a serious data breach pure and simple.  It happens with depressing frequency and is almost invariably caused by human error.  In my experience it often involves a distracted, poorly trained or overworked (or all three) staff member in the Cabinet Office attaching a PDF to a media release or engaging in a very sloppy cut and paste and sending without reviewing.  This “drag and drop” practice of Read the rest of this entry »

Data breach of personal information of NSW Ambulance officers results in class action and settlement of $275,000

December 25, 2019

The data breach of personal information relating to New South Wales Ambulance officers in 2016 has had its conclusion in the resolution of a class action in the New South Wales Supreme Court earlier this month.  One hundred and six officers will receive a total of $275,000. The breach was egregious, being the workers compensation files of a officers including psychiatric assessments.   It was originally reported in the Sydney Morning Herald in November 2017 in Paramedics launch class action over the sale of their medical records to personal injury solicitors.

It is notable for being the first privacy class action which has been resolved. It highlights the need for employers to be rigorous in controlling access and use of personal information they collect, particularly sensitive information.

The success of the class also highlights what has always been known, there is scope to take action for interferences with privacy.  Notwithstanding Read the rest of this entry »

Medicare details of former Australian Federal Commissioners for sale on dark web..the consequences of data breaches are ongoing

December 18, 2019

On 4 July 2017 the Guardian reported that Medicare card details were being sold on the dark web. As at July 2017 the vendor had sold details of 75 Medicare card details since the previous October.   In May of this year the Guardian reported that Medicare details were still being offered for sale on the darknet.  That should not have been a great surprise.  The personal information available from Medicare details is very valuable in engaging in identity theft and the ability of law enforcement to identify the thieves is often limited.  Even if an identity is established more often than not, by a wide margin, it is almost impossible to arrest that person because he (it is almost always a he) is domiciled in a country with a shaky legal system or with a government which connives in the fraudulent activity.

The ABC reports in Medicare card details of former Australian Federal Police commissioners available on dark web that the personal information of former Australian Federal Police Commissioners, Keelty, Negus and Colman contained in their Medicare details have been sold on the darknet. The fact that the former Commissioners personal information is being sold is no more egregious that the personal information of other individuals.  It is an interesting angle for the story. The key takeaway from the story is Read the rest of this entry »

Reception to Government response to Digital Platforms enquiry is decidedly mixed

December 17, 2019

It was not coincidental that the Government chose a Thursday less than a fortnight before Christmas to release its response to the ACCC’s Digital Platforms Report (my post about the Response is found here).  It does not appear as cynical as releasing it this week when the country is either frantically trying to extract an extra hour in the day to clear the desk to leave for Christmas with a clear(ish) or enjoying Christmas drinks/lunches/what have you’s. So last Thursday was a good day and a great week to release an at best cautious and limited response which could easily be interpreted through more pessimistic lenses to a very thorough and robust report by a highly regarded regulator.  There is a high level of distraction in the press and any negative stories will have a limited run as the lead up to Christmas will stop them gathering steam.

Notwithstanding the distractions the Response has elicited comment.  The media response has been decidedly mixed and generally sceptical with the Oz, with Digital inquiry: Wriggle room in regulating Big Tech, claiming that the response left a weak and insipid outcome for regulation of social media as a distinct prospect.  Given the Australian’s general distrust of regulation it has come out very strongly in favour of real and effective regulation of Google and Facebook (see Google and Facebook can’t be trusted to do right thing).  Hence the disappointment in its reporting, such  on ACCC digital platforms response: government delay as tech giants move on while Chris Merritt in the Oz is positively apoplectic about Read the rest of this entry »