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Your suggestion is the same in essence to what I think Spinvox were doing (so correct there are more serious uses for the technique).

If data controller removes from the data set the identifier which identifies the individual (name/address combo, NI number, whatever) and replaces it with a key code, before then sending it out into the "cloud", the issue from a DPA point of view is whether the data set with key code still renders the individual "identifiable".

In other words you go from [data, identifier] to [data, key code] (with a separate table matching key code to identifier).

The directive says: "whereas, to determine whether a person is identifiable, account should be taken of all the means likely reasonably to be used either by the controller or by any other person to identify the said person" - Recital 26

The DPA has a slightly different formulation in the definition of "personal data" in section 1:  "data which relate to a living individual who can be identified—

.......(b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller"

The UK definition is on the face of it narrower (focussing on information which might come to the controller only, and not "any other person").  But this needs to be construed with the directive, so we should simply ignore the DPA here. 

The Working Party say in WP 136 (in the context of fictional example when the key-coded data is passed to a recipient (in your case, the cloud provider) who does not have the code, but the language is general)

"If the codes used are unique for each specific person, the risk of identification occurs whenever it is possible to get access to the key used for the encryption. Therefore the risks of an external hack, the likelihood that someone within the sender’s organization - despite his professional secrecy - would provide the key and the feasibility of indirect identification are factors to be taken into account to determine whether the persons can be identified taking into account all the means likely reasonably to be used by the controller or any other person, and therefore whether information should be considered as "personal data". If they are, the data protection rules will apply. A different question is that those data protection rules could take into account whether risks for the individuals are reduced, and make processing subject to more or less strict conditions, based on the flexibility allowed by the rules of the Directive." (emphasis in original)

"Encryption" here is shorthand for the key-code/individual mapping data table.  

In short, you need to look into all factors as to whether there might be leakage of the from the agency (or their UK based service provider who undertakes the "encryption").  I would ask your supplier what steps they take to stop the encryption keys leaving the UK and satisfy yourself that they have done all that can sensibly be done (technically, operationally) to ensure the keys don't' leak (in much the same way as you would do diligence under principle 7 for the data itself). 




Renzo Marchini
Dechert LLP
+44 (0) 20 7184 7563 direct
+44 (0) 20 7184 7001 fax
[log in to unmask]
www.dechert.com

-----Original Message-----
From: This list is for those interested in Data Protection issues [mailto:[log in to unmask]] On Behalf Of Paul Ticher
Sent: 24 July 2009 08:47
To: [log in to unmask]
Subject: [data-protection] Pseudonymisation [was Spinvox]

Can I extend the discussion on pseudonymisation.

There are now many on-line applications that store data in 'the cloud' -
somewhere on the internet but without being too specific.  I'm currently
working on a project for a number of voluntary agencies where such a product
is an option under consideration.

However, these agencies exchange personal data with government agencies and
have been told that the data must not leave the UK.

The solution proposed by one supplier is to send the raw data initially to a
location in the UK where it would be pseudonymised before being sent on to
the service provider in the cloud, where it would be stored and processed as
normal.  When required, the data would be sent back to the UK, reunited with
its identifying information, and passed back to the user.

Is this a viable mechanism (a) to meet the government requirement, and (b)
to comply with Data Protection requirements?  What questions should we be
asking of the supplier?

There do not seem to be any current examples of where this approach is in
use by an official or quasi-official body, but the suppliers claim that it
is sound.


Paul Ticher
0116 273 8191
22 Stoughton Drive North, Leicester LE5 5UB


----- Original Message -----
From: "Marchini, Renzo" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Friday, July 24, 2009 8:30 AM
Subject: Re: Spinvox


Tim
You are right that the incorrect register entry is fairly trivial
(albeit the only criminal offence possibly committed!).  Assuming there
is personal data being transferred, they still then need to be a
legitimisation for the transfer, and perhaps there are model contracts
in place (again, fairly trivial to correct, if not yet done).

Then there is the first principle issue of legitimising the processing
by human (irrespective of where the processing takes place).  There is
arguably no consent to that (given its hidden), but perhaps its
necessary for performance of the contract (computers being not very good
at this sort of thing).  So with a proper privacy notice, that too can
be cured.

Yes, a little storm in a teacup.

I for one, however, am interested in views as to whether the technique
of pseudonymisation used here (which will have wider and more serious
uses) is sufficient to disapply the DPA ... anyone?

Renzo.


________________________________

From: This list is for those interested in Data Protection
issues [mailto:[log in to unmask]] On Behalf Of Tim Trent
Sent: 23 July 2009 23:35
To: [log in to unmask]
Subject: Re: [data-protection] Spinvox


I think I may be alone in seeing a load of fuss about nothing.
All they got wrong was a naive notification, wasn't it?  Let's all apply
for the job of Privacy Officer there - it looks like there may be a
vacancy soon!

If you want a giggle at "Tim's Rant" do visit my blog at
http://bit.ly/zR15j where you can giggle all you want.

Or is there more to this that I really can't see (it being a
silly time of day)?  Have I made a real chump of myself for once
(once?)?


--

________________________________


Tim Trent - Consultant
Tel: +44 (0)7710 126618
web: ComplianceAndPrivacy.com - where busy executives go to find
the news first
personal blog: timtrent.blogspot.com/ - news, views, and
opinions
personal website: Tim's Personal Website
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