Love.Law.Robots. by Ang Hou Fu

DataProtectionOfficer

Feature image

It’s going to be a busy week! I’ll be attending the conferences below:

Here are the sessions that I am looking forward to:

SCCE Singapore Regional 2022

Of all the conferences, this is probably the one with the most practical topics I can apply to my work. So, although maintaining those Continuing Education Units for my certification is a serious challenge (40 points in 2 years?! Video conference at 1am?! 🤮), membership is still very useful to me.

Compared to last year’s regional, I think this one has far more breadth and indeed some depth into hot topics like ESG and Digital Data Management. Hot favourites like compliance training and supply chain management make an appearance too.

I am particularly curious about the finale: “Are robots running the compliance program?” Automation in compliance is that small victory that I think cash- and human resource-strapped compliance departments should look into. From the handout, the “automation” is Microsoft Power Automate, which while simple to understand and used in many corporate environments, is not as widely applicable compared to something like Zapier. Let’s see what new ideas I will get!

Automate Boring Stuff: Get Python and your Web Browser to download your judgementsThis post is part of a series on my Data Science journey with PDPC Decisions. Check it out for more posts on visualisations, natural languge processing, data extraction and processing! Update 13 June 2020: “At least until the PDPC breaks its website.” How prescient… about three months after I wroteLove.Law.Robots.HoufuIt's always important to automate the boring stuff.

IAPP Asia Privacy Forum

They took a long time to flesh this out — back when I bought the early bird ticket in early June, half of the programme was labelled to be confirmed. I’m glad they managed to flesh this out. It’d be my first IAPP Conference even though I have been a member and am CIPP/A-certified since 2019.

I am a pretty practical person, so I am going to list things that have meaning to me.

  • ” Building Privacy Technology Into Your Privacy Programme ” — Privacy by Design is one of those revolutionary concepts introduced by the GDPR that you probably don’t hear enough about. Privacy engineering has always been very fascinating to me too.
  • “ Towards Innovative and Global Solutions for Trans-Border Flow ” — The biggest challenges in Singapore isn’t really complying with the PDPA here but dealing with the implications of having an open economy. In my context, a regional HQ is a hub for data flows so having an interesting way to handle them will be useful.
  • “ Implementing Privacy in Yet-to-Mature Geographies ” — Related to the previous point, we are in a region where jurisdictions have not had much experience in privacy. Thailand recently made its GDPR-like law effective. Indonesia is still toying with the idea. India’s comprehensive data protection law appears to be trapped in legislative purgatory. Coping strategies will be very appreciated.

Alongside IAPP Asia Privacy Forum, the Singapore PDPC also organise the Singapore version of a conference. Topics seem quite interesting, but given my decreasing focus on data privacy in recent years, I am going to give it a pass.

TechLaw.Fest

It’s my third TechLaw.Fest and my first in person!

Actually. I don't know whether this is an in-person event. Something about the metaverse.

I count myself as a sceptic of the metaverse and was actually profoundly upset that the programme focuses almost entirely on this topic. Compared to last year where there was an even spread, this year looks like an advertorial to convince you that there is something special.

Three Things: TechLawFest 2021I debrief on the TechLawFest in Singapore which ended recently with three key takeaways.Love.Law.Robots.HoufuCompared to last year...

Anyway, I am still sorting out my registration because, frankly, the organisation of this event is messy this year.

I will be hiding out in the Tech Talks section this year. I don’t want to hear a big talk about a fad which no one will care about in a year or two. The metaverse is like cryptocurrency and NFTs; somebody is pouring lots of money into it but nobody honestly has high hopes about it.

Live by the Code… Die by the Code?The excitement about Cryptocurrency and NFTs has turned to panic and loss. Will something different take its place?Love.Law.Robots.HoufuIn an earlier post, I wondered whether the fallout from cryptocurrency will bring forth something good.

Some of the things I wish they covered:

  • The fallout about Crypto Currency and NFTs: This is an awesome topic for litigators and restructuring professionals with all the news going around of bank runs, fraud and corporate dissolutions. To be fair, I have a suspicion that this is going to be covered in “ ** What Happens in the Metaverse Doesn’t Stay in the Metaverse: How Laws Apply Such That In-world Crime Could Mean Real-world Punishment** ” on the Main Stage on 22 July 2022.
  • AI Regulation — I believe there are some major advances in the field (in Europe, I think?) and this is a topic that is getting closer to law and regulation once the technology is more mainstream. The IMDA also released its own AI Governance Testing framework and toolkit in May, so I am surprised nobody wants to talk about it here.
  • I wouldn’t complain about learning more about legal operations. To be fair, “ ** The Virtual Lawyer: How Digitalisation is Changing the Business of Law** ” on the Main Stage on 21 July 2022 seems related. I am going to be rather peeved if it’s about how I can appear as an avatar to my colleagues… as if using Microsoft Teams wasn’t lame enough.

The past two years have forced a reckoning that the brick-and-mortar law office may not be as essential to lawyering as was assumed by many for a long time. In this session, we hear from a range of legal professionals wrestling with digitalisation and the business of law. #tlf22 pic.twitter.com/ShnH1DRCup

— TechLaw.Fest (@TechLawFest) July 13, 2022

Conclusion

There's going to be lots to do, and I am going to practice live tweeting this year so that I would get better at it. Last year, I tried to write a roundup but it was really tiresome, so please follow me on Twitter!

#blog #Compliance #Cryptocurrency #Ethics #Law #News #NFT #PersonalDataProtectionAct #Privacy #Singapore #TechLawFest #TechnologyLaw #IAPP #SCCE #DataProtectionOfficer

Author Portrait Love.Law.Robots. – A blog by Ang Hou Fu

Feature image

Regular readers might have noticed the disappearance of articles relating to the Personal Data Protection Commission’s decisions lately. However, as news of the “largest” data breach in Singapore came out, I decided to look into this area again.

My lack of interest paralleled the changing environment, which allowed me to keep up-to-date on them:

  1. The PDPC removed their RSS feed for the latest updates;
  2. I am not allowed to monitor their website manually; and
  3. The PDPC started issuing shorter summaries of their decisions, which makes their work more opaque and less interesting.

Looking at this area again, I wanted to see whether the insights I gleaned from my earlier data project might hold and what would still be relevant going forward.

Data Science with Judgement Data – My PDPC Decisions JourneyAn interesting experiment to apply what I learnt in Data Science to the area of law.Love.Law.Robots.Houfu

Something big struck, well, actually not much.

Photo by Francesca Saraco / Unsplash

The respondent in the case that had attracted media attention is Reddoorz, which operates a hotel booking platform in the budget hotel space. The cause of the breach is as sad as it is unremarkable — they had left the keys to their production database in the code of a disused but still available version of their mobile app. Using those keys, bad actors probably exfiltrated the data. This is yet another example of how lazy practices in developing apps can translate to real-world harm. They even missed the breach when they tried to perform some pen tests because it was old.

PDPC | Breach of the Protection Obligation by CommeasureBreach of the Protection Obligation by CommeasurePDPC LogoRead the PDPC’s enforcement decision here.

The data breach is the “largest” because it involved nearly 6 million customers. Given that the resident population in Singapore is roughly 5.5 million, this probably includes people from around our region.

The PDPC penalised the respondent with a $74,000 fine. This roughly works out to be about 1 cent per person. Even though this is the “largest” data breach handled under the PDPA, the PDPC did not use its full power to issue a penalty of up to $1 million. Under the latest amendments, which have yet to take effect, the potential might of the PDPC can be even greater than that.

The decision states that the PDPC took into account the COVID-19 situation and its impact on the hospitality industry in reducing the penalty amount. It would have been helpful to know how much this factor had reduced the penalty to have an accurate view of it.

In any case, this is consistent with several PDPC decisions. Using the PDPC’s website’s filters, only three decisions doled out more than $75,000 in penalties, and a further 4 doled out more than $50,000. This is among more than 100 decisions with a financial penalty. Even among the rare few cases, only 1 case exercised more than 25% of the current limit of the penalty. The following case only amounts to $120,000 (a high profile health-related case, too!).

The top of the financial penalty list (As of November 2021). Take note of the financial penalty filters at the bottom left corner.

This suggests that the penalties are, in practice, quite limited. What would it take for the PDPC to penalise an offender? Probably not the number of records breached. Maybe public disquiet?

In a world without data breaches

Throttle Roll - Swap Meat MarketPhoto by Parker Burchfield / Unsplash

While the media focuses on financial penalties, I am not a big fan of them.

While doling out “meaningful” penalties strikes a balance between compliance with the law and business interests, there are limits to this approach. As mentioned above, dealing with a risk of $5,000 fines may not be sufficient for a company to hire a team of specialists or even a professional Data Protection Officer. If a company’s best strategy is not to get caught for a penalty, this does not promote compliance with the law at all.

Unfortunately, we don’t live in a world without data breaches. The decisions, including those mentioned above, are filled with human errors. Waiting to get caught for such mistakes is not a responsible strategy. Luckily, the PDPA doesn’t require the organisation to provide bulletproof security measures, only reasonable ones. Then, the crux is figuring out what the PDPC thinks is enough to be reasonable.

So while all these data protection decisions and financial penalties are interesting in showing how others get it wrong, the real gem for the data protection professional in Singapore is finding someone who got it right.

And here’s the gem: Giordano. Now I am sorry I haven’t bought a shirt from them in decades.

There was a data breach, and the suspect was compromised credentials. However, the perpetrator did not get far:

  • The organisation deployed various endpoint solutions
  • The organisation implemented real-time system monitoring of web traffic abnormalities
  • Data was regularly and automatically backed up and encrypted anyway

Kudos to the IT and data protection team!

Compared to other “Not in Breach” decisions, this decision is the only one I know to directly link to one of the many guides made by the PDPC for organisations. “How to Guard Against Common Types of Data Breaches” makes a headline appearance in the Summary when introducing the reasonable measures that Giordano implemented.

The close reference to the guides signals that organisations following them can have a better chance of being in the “No Breach” category.

An approach that promotes best practices is arguably more beneficial to society than one that penalises others for making a mistake. Reasonable industry practices must include encrypting essential data and other recommendations from the PDPC. It would need leaders like Giordano, an otherwise ordinary clothing apparel store in many shopping malls, to make a difference.

A call from the undertaking

Photo by Nicola Fioravanti / Unsplash

The final case in this post isn’t found in the regular enforcement decisions section of the PDPC’s website — undertakings.

If you view a penalty as recognising a failure of data protection and no breach as an indicator of its success, the undertaking is that weird creature in between. It rewards organisations that have the data protection system for taking the initiative to settle with the PDPC early but recognises that there are still gaps in its implementation.

I was excited about undertakings and called them the “teeth of the accountability principle”. However, I haven’t found much substance in my excitement, and the parallel with US anti-corruption practices appears unfounded.

Between February 2021, when the undertaking procedure was given legislative force, and November 2021, 10 organisations spanning different industries went through this procedure. In the meantime, the PDPC delivered 21 decisions with a financial penalty, direction or warning. I reckon roughly 30% is a good indicator that organisations use this procedure when they can.

My beef is that very little information is provided on these undertakings, which appears even shorter than the summaries of enforcement decisions. With very little information, it isn’t clear why these organisations get undertakings rather than penalties.

Take the instant case in November as an example. Do they have superior data protection structures in their organisations? (The organisation didn’t have any and had to undertake to implement something.) Are they all Data Protection Trust Mark organisations? (Answer: No.) Are they minor breaches? (On the surface, I can’t tell. 2,771 users were affected in this case.)

My hunch is that (like the Guide to Active Enforcement says) these organisations voluntarily notified the PDPC with a remediation plan that the PDPC could accept. This is not as easy as it sounds, as you might probably engage lawyers and other professionals to navigate your way to that remediation plan.

With very little media attention and even a separate section away from the good and the ugly on the PDPC’s website, the undertaking is likely to be practically the best way for organisations to deal with the consequences of a data breach. Whether the balance goes too far in shielding organisations from them remains to be seen.

Conclusion

Having peeked back at this area, I am still not sure I like what I find. There was a time when there was excitement about data protection in Singapore, and becoming a professional was seen as a viable place to find employment. It would be fascinating to see how much this industry develops. If it does or it doesn’t, I believe that the actions and the approach of the PDPC to organisations with data breaches would be a fundamental cause.

Until there is information on how many data protection professionals there are in Singapore and what they are doing, I don’t think you will find many more articles in this area on this blog.

#Privacy #PersonalDataProtectionCommission #PersonalDataProtectionAct #Penalties #Undertakings #Benchmarking #DataBreach #DataProtectionOfficer #Enforcement #Law ##PDPAAmendment2020 #PDPC-Decisions #Singapore #Decisions

Author Portrait Love.Law.Robots. – A blog by Ang Hou Fu

Feature image

This post is part of a series relating to the amendments to the Personal Data Protection Act in Singapore in 2020. Check out the main post for more articles!

When the GDPR made its star turn in 2018, the jaw-dropping penalties drew a lot of attention. Up to €20 million, or up to 4% of the annual worldwide turnover of the preceding financial year, whichever is greater , was at stake. Several companies scrambled to get their houses in order. For the most part, the authorities have followed through. We are expecting more too. Is this the same with the Personal Data Protection Act in Singapore too?

Penalties will increase under the latest PDPA amendments.

The financial penalties under Singapore’s Personal Data Protection Act probably garner the most attention. They are still newsworthy even though they have been issued regularly since 2016. The most famous data breach concerning SingHealth resulted in a total penalty of S$1 million. The maximum penalty of $1 million is not negligible. It’s not hypothetical either.

The newest PDPA amendments will now increase the maximum penalty to up to 10% of an organisation’s annual gross turnover in Singapore. To help imagine what this means: According to Singtel’s Annual Report in 2020, operating revenues for Singapore consumers was S$2.11b. The maximum penalty would be at least S$200m.

Is this the harbinger of doom and gloom for local companies? Will local companies scramble to hire personal data specialists like for the GDPR? Will an army of lawyers be groomed to fine-comb previous PDPC decisions to distinguish their clients' cases? Is my CIPP/A finally worth something?

Penalties imposed under the PDPA appear limited.

Before trying to spend on compliance, savvier companies would want to find out more about how the Personal Data Protection Commission enforces the PDPA. This makes sense. The costs of compliance have to be rational in light of the risks. If the dangers of being susceptible to a financial penalty are valued at $5,000, it makes no sense to hire a professional at $80,000 a year. If liability for data breaches is a unique and rare event, hiring a firm of lawyers to defend you in that event is better than hiring a professional every day to prevent it.

So here is the big question: What’s the risk of being penalised $1 million or gasp(!) at least $200 million?

Unfortunately, one does not need a big data science chart to realise that being penalised $1 million is a rare event. Being penalised $100,000 is also a rare event. Using the filters from the PDPC’s decisions database reveals a total of 2 cases with financial penalties greater than $75,000 since 2016.

Screen capture of filters of PDPC decisions with financial penalties of more than $75000. (As of October 2020)

However, if you insist on having a “big data science chart”, here’s one I created anyway:

Histogram of the number of cases binned on enforcement value.

Notes :

  • I excluded the Singhealth penalties ($750K and $250K) because they were outliers.
  • It’s named “enforcement value” and not “penalty sum” because I considered warnings and directions to have $0 as a financial penalty.

The “big data science chart” tells the same story as the PDPC’s website. Most financial penalties fall within the $0 to $35,000 range, with the mean penalty being less than $10,000. While the PDPC certainly has the power to impose a $1 million penalty, it appears to flex around 1% of its capabilities most of the time.

Past performance does not represent future returns. However, the amendments to the PDPA were not supposed to represent a change to the PDPC’s practices. They are for “flexibility” and to match other areas like the Competition Act. There is very little indication that an increase in the financial cap now means that companies will be liable for more.

Why are the penalties so low?

The decisions cite several factors in determining the amount of penalty – the number of individuals affected, the significance of the data lost and even whether the respondent cooperated with the PDPC.

In Horizon Fast Ferry, the PDPC cited the “ICO Guidance on Monetary Penalties” as a principle in determining monetary penalties:

The Commissioner’s underlying objective in imposing a monetary penalty notice is to promote compliance with the DPA or with PECR. The penalty must be sufficiently meaningful to act both as a sanction and also as a deterrent to prevent non-compliance of similar seriousness in the future by the contravening person and by others.

The key phrase in the quote is “sufficiently meaningful”. Given the PDPC’s desire to promote businesses, the PDPC would not like to kill off a company by imposing a crippling penalty. The penalties serve a signalling purpose. As they continue to attract public attention and encourage companies to comply, penalties are the most effective tool in the PDPC’s arsenal.

However, even if the penalties are “sufficiently meaningful” in an objective sense, they may still be meaningless subjectively. $5,000 might be peanuts to a large business. Some businesses may even treat it as a cost of “innovation”. PDPC decisions are replete with “repeat” offenders. Breaking the PDPA, for example, seems to be a habit for Grab.

While doling out “meaningful” penalties strikes a balance between compliance with the law and business interests, there are limits to this approach. As mentioned above, dealing with a risk of $5,000 fines may not be sufficient for a company to hire a team of specialists or even a professional Data Protection Officer. If a company’s best strategy is not to get caught for a penalty, this does not promote compliance with the law at all.

Moving beyond penalties

I am not a fan of financial penalties. I have always viewed them as a “transaction”, so they never really comply with the spirit of compliance.

Asking companies to comply with directions may be far more punishing than doling out a fine. A law firm might help you negotiate the best directions you can get, but the company has to implement them through its employees. The company will need data protection specialists. This approach is more effective than just essentially issuing a company a ticket.

For this reason, I was pretty excited about the PDPC’s Active Enforcement guidelines. Here’s something to watch out for: a new section on undertakings appeared last month.

Conclusion

Still, I am probably an outlier in this regard. The increased penalty cap has repeatedly featured as one of the most critical changes in the PDPA. Experience does not suggest that a higher cap will change much. Nevertheless, as a signal, the news would probably make management sit up and review their data protection policies. Data Protection Officers should take advantage of the new attention to polish up their data protection policies and practices.

This post is part of a series on my Data Science journey with PDPC Decisions. Check it out for more posts on visualisations, natural languge processing, data extraction and processing!

#Privacy #Singapore ##PDPAAmendment2020 #Compliance #DataBreach #DataProtectionOfficer #Decisions #GDPR #Enforcement #Penalties #PersonalDataProtectionAct #PersonalDataProtectionCommission #Undertakings

Author Portrait Love.Law.Robots. – A blog by Ang Hou Fu