An interview with Dr. Alexander Novotny:
The EU General Data Protection Regulation (GDPR) requires organizations to stringently secure personal data. Since penalties under the GDPR loom large, organizations feel uncertain about how to deal with securing personal data processing activities. The Privacy and Sustainable Computing Lab has interviewed the security and privacy expert Dr. Alexander Novotny on how organizations shall address security for processing personal data:
Under the GDPR, organizations using personal data will have stringent obligations to secure the processing of personal data. How can organizations meet this challenge?
Organization’s security obligations while processing personal data are regulated under Article 32 of the EU General Data Protection Regulation. Security is primarily the data controller’s responsibility. The data controller is the organization who determines the purposes and means of the processing of personal data. To ensure appropriate security, controllers and processors of personal data have to take technical and organizational measures, the so called “TOMs”. Which security measures are appropriate depends on the state of the art and the costs of implementation in relation to the risk. Organizations are only required to implement state of the art technology for securing data processing. The implementation of best available security technologies is neither a requirement in most cases, nor putting security technologies in place that are still not market-available or pre-mature. Also the nature, scope and context of data processing need to be taken into account. For processing dozens of IP addresses in an educational context, for example, different protection is adequate than for processing thousands of IP addresses in a healthcare context. For identifying reasonable TOMs, also the purposes of processing and the risks for the rights and freedoms of natural persons need to be considered.
How can the level of risk for the rights and freedom of natural persons be measured?
The GDPR outlines that the likelihood and the severity of the risk are important factors: the wording in Article 32 of the GDPR points to traditional risk appraisal methods based on probability and impact. These methods are commonly used in IT security already today. Many organizations therefore have classification schemes for likelihood and severity. Often, they categorize these two factors into the classes “low”, “medium” and “high”. Little historic experience in terms of likelihood and severity of security incidents is available. Without such experience, it is very difficult to meaningfully apply rational risk scales such as scales based on monetary values. Also, the ENISA recommends a similar qualitative risk assessment method in its 2017 handbook on the security of personal data processing. What data controllers need to keep in mind is especially the risk for the data subject in the first place and not the organization’s own risk. Thus, organizations have to take a different viewpoint, in particular organizations that have done a risk assessment with regard to an ISO 27001 information security management system already. These organizations need to amend the risk assessment by the viewpoint of the data subject.
What are these so-called TOMs?
Examples on technical and organizational measures are given in Article 32 of the GDPR. The regulation names pseudonymization and encryption of personal data as well as the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services. Organizations need the ability to restore the availability and access to the personal data in the event of a physical or technical incident. Also, a process for regularly testing and evaluating the effectiveness of technical and organizational measures is required. Recital 78 of the GDPR refers to additional measures such as internal policies, for instance. What is remarkable here is that TOMs do not only aim to keep personal data confidential and correct. TOMs also target the availability and access to personal data as well as the resilience of IT systems that are used to process personal data. Availability and resilience of IT infrastructure is one of the traditional IT security goals. But from the viewpoint of data protection it has not been given high priority so far. Hence, organizations have to further integrate their data protection efforts with IT security in order to tackle these requirements set out by the GDPR.
How can a controller be sure that the identified and implemented TOMs are actually appropriate?
This is a question that is often asked by organizations complaining that the guidance provided by the GDPR is overly vague and legal certainty is low. With regard to this question of appropriateness a clash of cultures is often witnessed: on the one hand, technicians responsible for the implementation of the TOMs and, on the other hand, lawyers having an eye on GDPR compliance follow different approaches. Technicians are used to predetermined instructions and requirements. They take a very technological viewpoint and often desire that competent authorities issue specific hard facts lists of TOMs. In contrast, lawyers are used to structurally apply legal criteria for appropriateness and adequacy to real world cases. Instead of relying on predetermined lists of TOMs, organizations are now required to think in terms of what is best for the data subjects and for themselves when it comes to data security. Of course, predefined lists and templates of TOMs can be helpful to enlighten the state of the art. But organizations are required to make up their own minds which TOMs are particularly appropriate for them. This is particularly reflected in Article 32 of the GDPR. It states that the nature, scope and context of data processing need to be taken into account to determine appropriate TOMs. To increase legal certainty for organizations, they are well advised to write down their particular approach on the selection of TOMs. If organizations comprehensively document their risk-based reasoning about which TOMs they implement to address the identified risks they will likely be safe in front of the law.
What can we understand under regularly assessing and evaluating the effectiveness of TOMs?
Practically this means that controllers need to operate a data protection management system (DMS). Within the scope of such a DMS, regular audits of the effectiveness of the implemented TOMs need to be conducted. Organizations can integrate the DMS into their existing information security management system. With such integration, they can leverage the continual improvement process that is already in place with established management systems. Also, the DMS supports the required process of regularly testing and evaluating the effectiveness of TOMs.
About the interviewee:
Dr. Alexander Novotny is an information privacy and security specialist. He has been researching on privacy and data protection since the first proposal of the EU commission on the GDPR in 2012. He works as an information security manager for a large international enterprise based in Austria. He holds certification as a data protection officer, is lecturing on IoT security and advising EU-funded research and innovation projects on digital security and privacy.