As expected, the Information Commissioner has announced that her office will be running a campaign promoting GDPR rights to members of the public. As anyone could have predicted, some of the excitable GDPR community on LinkedIn are now working themselves up into a lather about the ensuing SARmageddon that will ensue from this development. Previously, the same people were complaining that the ICO hadn’t launched a massive campaign, as if it was the regulator’s duty to whip up the public mood to help them sell their software.
The idea of GDPR prompting an avalanche of Subject Access requests isn’t new – Certified GDPR Practitioners and other salesmen have been confidently predicting it for a while, building the fantasy on rather shaky foundations. One false notion is that GDPR abolishes the fee for SARs and other data protection rights. It does, but many organisations do not charge the fee now so it’s unlikely it will make a difference to the number of requests they receive. Someone I trained this week gets 4000 a year, so the idea that receiving lots of requests will be new to many organisations is either ill-informed nonsense or a sales pitch. It’s only people who have no experience of Data Protection who think that a high volume of requests is novel.
Another claim is the PPI-style onslaught of compensation claims that the SARnami will supposedly serve. The problem with this is the flawed comparison between PPI and Data Protection. I’ve said this dozens of times, and I’ll say it again: PPI was widely and aggressively mis-sold. Most PPI claims were valid, and if the banks / financial institutions fought the claims, they would usually have lost. The process for a DP claim is first, establish that there has been a breach of GDPR / DP; second, establish evidence of some adverse effect; third, sue and hope to persuade a judge that the adverse effect is worth compensation. That’s a tall order.
Of course, many businesses may choose not to contest these claims, and that may fuel SARs and other rights requests. In my opinion, if a business gets bogus DP claims and settles them because it’s easier or cheaper, they’re contributing to an unhealthy culture and making it harder to implement DP sensibly for everyone. It’s instructive to see what happens when claimants actually get into court and what a balls-up they make of it: this should happen more often. If data controllers take a robust approach with cack requests and dare the Commissioner to do something about it, it’s not hard to imagine what would happen (and if you think it’s FINEmageddon, you’re reading the wrong blog, friend).
The worst example of this scaremongering is the SAR as DDoS attack. I remember this bollocks from the days when I worked at the Information Commissioner’s Office and the rumour spread that FOI would be used as a tool to disable public authorities. Admittedly, Walberswick Parish Council was temporarily knocked over by a persistent FOI campaign, but what happens in Parish Councils is not a reliable guide to anywhere except Parish Councils. Now, a variety of IT and risk management companies have returned to the theme. Only this weekend, Matt Hodges-Long was predicting SAR DDoS attacks as soon as May comes. In a coincidence that no screenwriter would accept as plausible, Mr Hodges-Long happens to be CEO of a company that sells risk management software that might help businesses cope with such attacks.
I know, right?
Think for a moment about how a SAR DDoS would work. In Mr Hodges-Long’s scenario, imagine thousands of data subjects deciding to submit a ‘single’ request to a company on the same day. How would this work? Firstly, someone would need to organise it. They would have to find thousands of people with the same grievance against the same organisation. Making a SAR isn’t the same as signing a 38 Degrees petition – you have to contact the data controller directly and ask for your information, so it’s a lot more than just filling in a form. The organiser would either have to coordinate the activity themselves, which would require obtaining proof of consent and proof of ID from every applicant (otherwise they would likely be breaching GDPR themselves), and then send the 1000s of requests, or they would have to issue clear instructions to all of the 1000s of people to ensure that they all did it at the same time.
GDPR requires the data controller to check ID when dealing with a request, so if suddenly 1000s of requests arrive en masse, if the data controller just BCCs them all asking for proof of ID, every single request is automatically invalid. GDPR also allows the data controller either to charge or refuse a request if it is manifestly unfounded or excessive. Imagine the amount of time and organisation it would require to either make all requests on behalf of 1000s of people, or coordinate the making of these requests at the same time on the same day. Imagine doing so in secret, leaving no trace for the data controller to find online. If a request has only been made for the purpose of attacking the organisation, and the controller can show evidence for this, what possible foundation could the request have?
I believe that if a campaigning organisation decided to use SARs as a method of DDoS, the data controller could refuse them all as excessive or unfounded (or both) and dare the Information Commissioner to do anything about it. Bear in mind that this is the same Commissioner who found systematic failure to answer subject access requests in the Ministry of Justice, and gave them almost a year to clear them up. They also sneaked the notice out just before Christmas without a press release, in one of the more shameful episodes of this generally unedifying period for Data Protection. If you think this same regulator is going to take the side of anyone using GDPR rights as way to attack data controllers for the sake of it, you are either an idiot or you’re selling something.
GDPR will change things. There will be more requests of the type we already get, and requests that we don’t currently get. For the mischievous, there is ample scope to use GDPR to take pot-shots at organisations. I’m going to do it myself. But the idea that we’re teetering on the brink of a World War SAR is hype to sell software. Anyone who tries it deserves to get called out and right-thinking people should shun their products in favour of a sensible, measured approach of deleting irrelevant data, improving retention policies, and developing / embedding / sustaining slick and robust rights procedures. Knowing where your data is, who will look for it when asked to and how they will look will pay off much more than a tool that you probably don’t need.