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DATA-PROTECTION  2004

DATA-PROTECTION 2004

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Subject:

Re: Complaining to the IC and ASA - A Case Study

From:

Ian Welton <[log in to unmask]>

Reply-To:

Ian Welton <[log in to unmask]>

Date:

Mon, 9 Feb 2004 13:50:57 -0000

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (339 lines)

Tim Trent on Monday, February 09, 2004 at 10:02 AM said:-

> It seems to me 
> that it is up to the spammer to prove otherwise.

I do not agree with that opinion.  What happened to innocent until proven
guilty?

Accepting that proving invasions of privacy beyond doubt are particularly
difficult, if not at times (plausible deniability) impossible, achieving
proof  of particular things to a degree of certainty is achievable.  i.e.
your phone number is only associated with one person ergo, it becomes
personal data. Actions/outcomes resulting from the use of that phone number
or associated personal data can be discernable.

The difficulty then becomes identifying if the user of the phone number is
aware that the data is personal, making it processed personal data. (If it
were personal data in all circumstances, people misdialling would commit
breaches of the DPA - clearly a nonsense situation.)  To identify if
processed personal data it would seem to be necessary to look at the
controllers processes quite closely.  E.g. How is the data
collected/compiled. Do they use the necessary opt out process for some of
the telephone numbers and how is the data relating to that process managed?
What wider environmental monitoring do they conduct and how is the material
from that process managed/linked? Do they comply with all the necessary
regulations and what effect do those have?  I am sure the UKICs
investigators will have many such questions they require to answer in any
given investigation - much the same as a DP practitioner analysing a system
for compliance.

Not knowing the detailed data relating to the complaint (including how the
data was collected), which the UKIC has used to come to his conclusions,
makes it more difficult to determine how accurate that conclusion is.  Trust
then comes into the equation, which itself seems to be built by various
environmental and personal factors. (Trust can also be perceived as
accommodating plausible deniability.) If the UKIC has documented the
investigative processes used and given them to the complainant, in the
majority of the cases trust would possibly increase, leaving, provided the
investigation was adequately conducted, mainly accusations of open/covert
manipulation available. Of course in the more difficult cases, the
investigative processes could necessarily become more detailed, which could
in itself eventually resolve the complaint.  But then again perfection
rarely exists.


Ian W 


> -----Original Message-----
> From: This list is for those interested in Data Protection 
> issues [mailto:[log in to unmask]] On Behalf Of Tim Trent
> Sent: Monday, February 09, 2004 10:02 AM
> To: [log in to unmask]
> Subject: Re: Complaining to the IC and ASA - A Case Study
> 
> 
> Now we are getting bogged down.
> 
> Apparently the UKIC has insufficient powers to be able to 
> handle this effectively.  He wanted the ability to injunct 
> against people who were repeated abusers, and parliament 
> would not give them to him.  I am still adding fuel to the 
> UKIC complaint.  They have at least got as far as telling me 
> the name of the company who created the UCE.  "New Media 
> Sports, a UK based company.  It seems that they have no need 
> to notify since they are not associating my phone number with 
> any personal data.  And, of course, a phone number is not 
> personal data.
> 
> But wait!  If my email address identifies me absolutely, 
> surely my mobile phone (individual subscriber) identifies me 
> (with additional information in a similar manner to a photograph).
> 
> I have suggested to the UKIC that the spammer may have culled 
> my NAME and PHONE NUMBER from the public domain, and hence 
> MAY be storing and processing personal data.  It seems to me 
> that it is up to the spammer to prove otherwise.
> 
> What is actually happening is that the UKIC is proving that 
> either his deductions about how his powers may be used is 
> incorrect or that his powers are inadequate.  In either case 
> the public has fewer rights that was previously thought, 
> though this is just my opinion.
> 
> I am BCCing my MP in order that he may see the "trail thus 
> far" of a complaint handled by the UKIC.  I won’t be 
> burdening him with a copy of everything, but he is interested 
> in making the UKIC's complaints handling area more rigorous
> 
> -----Original Message-----
> From: Tim Trent [mailto:[log in to unmask]] 
> Sent: Thursday, February 05, 2004 1:37 PM
> To: 'Tim Trent'
> Subject: RE: [data-protection] Complaining to the IC and ASA 
> - A Case Study
> 
> Now where did I get to?
> 
> Yesterday I received a pointless note from the UKIC (or was it the day
> beforehand) that they were "asking the sender not to be a 
> naughty boy again" or some such banal wording.  I have 
> responded to the UKIC, and can, as I said, send anyone who 
> emails me off list a scanned image of the letter.  My MP is 
> pursuing this further.
> 
> Today I got a message by email from the ASA asking for a copy 
> of the message!  Yes, boys and girls, it took THIS LONG for 
> them to ask me for it. Wisely I had preserved it.  Oddly they 
> also need my mobile number and service provider.  They are 
> encouraging me to TPS register the phone.  So I have.  Only I 
> thought I had already, but one forgets
> 
> The ASA has now cost me 12p to complain vs a letter stamp and 
> envelope to the UKIC.
> 
> Still not heard from ICSTIS.
> 
> Oh the UKIC say that have been able to contact the 
> perpetrator.  ASA say they have not heard back.  Neither has 
> (yet) told me who the perp is.
> 
> 
> Tim Trent - Consultant
> Direct: +44(0)1344 392644 Mobile:+44(0)7710 126618
> email: [log in to unmask]
> <mailto:[log in to unmask]>
> Marketing Improvement Limited, Abbey House, Grenville Place, 
> Bracknell, United Kingdom, RG12 1BP 
> http://www.marketingimprovement.com
> <http://www.marketingimprovement.com> 
> 
>  
> 
> This message is for the intended addressee's use only. It may 
> contain confidential, proprietary or legally privileged 
> information. No confidentiality or privilege is waived or 
> lost by any mis-transmission. If you receive this message in 
> error, please immediately delete it and all copies of it from 
> your system, destroy any hard copies of it and notify the 
> sender. You must not, directly or indirectly, use, disclose, 
> distribute, print, or copy any part of this message if you 
> are not the intended recipient. Any views expressed in this 
> message are those of the individual sender, except where the 
> message states otherwise and the sender is
> authorised to state them to be the views of any such entity.	
> 
> 
> 
> -----Original Message-----
> From: Tim Trent [mailto:[log in to unmask]] 
> Sent: Tuesday, January 13, 2004 11:17 AM
> To: [log in to unmask]
> Subject: RE: [data-protection] Complaining to the IC and ASA 
> - A Case Study
> 
> I also contacted ICSTIS.  I have no idea whether the SMS was 
> lying about 10p for the call, so ICSTIS has the complaint.
> 
> OK, summary of time taken so far:
> 
> ASA:        2 minutes (should have been less, but I sneezed!)
> IC:         45 Minutes, PLUS a stamp or pay to fax
> ICSTIS: 1 minute
> 
> This does not seem to be designed to encourage complaints to 
> the IC so far!
> 
> While on that topic I have also written to my MP, enclosing 
> this trail suggesting that he might wish to ask the UKIC to 
> sharpen up his team's act
> 
> -----Original Message-----
> From: This list is for those interested in Data Protection 
> issues [mailto:[log in to unmask]] On Behalf Of Tim Trent
> Sent: Tuesday, January 13, 2004 10:49 AM
> To: [log in to unmask]
> Subject: Re: [data-protection] Complaining to the IC and ASA 
> - A Case Study
> 
> Got half way through the IC's form when I had an email from 
> an old friend saying "You are probably filling out the wrong form!"
> 
> And they were right!
> 
> So, another tree into the "in" slot in the printer and more 
> printed stuff in the out tray!  This is getting like the 
> Diary of Adrian Mole!
> 
> -----Original Message-----
> From: This list is for those interested in Data Protection 
> issues [mailto:[log in to unmask]] On Behalf Of Tim Trent
> Sent: Tuesday, January 13, 2004 8:55 AM
> To: [log in to unmask]
> Subject: Re: [data-protection] Complaining to the IC and ASA 
> - A Case Study
> 
> This is not easy.  I have the pdf file of the IC's form.  It 
> insists (or seems to) that I contact the Data Controller.  
> Well, I have no idea who that is and no way of doing it 
> without phoning the number, and there is no way I am about to 
> do that!  I will be speaking to ICSTIS as well, I think, though.
> 
> I tried to edit the pdf file because my handwriting is, well, 
> "poor".  So I asked Acrobat (I have a full version) to 
> convert to rtf.  Well, the rtf file is appalling, so I am 
> faced with filling out a form to fax to the IC in pen. And 
> they are faced with having to read it.
> 
> Interestingly, I am now getting angry.  The spammer should be 
> easy to report.  And, by making it difficult to do so, the IC 
> has started to tar his office with the spammer's brush IMHO.  
> Actually IMNSHO (I am, after all, beginning to get angry, and 
> I am sampling this service as a normal member of the public)!
> 
> This means that I will be filling out their form "angry", 
> which is not the best way to fill out any form.  But 
> "grrrrrrrrrrrrrrrr!" anyway.
> 
> -----Original Message-----
> From: This list is for those interested in Data Protection 
> issues [mailto:[log in to unmask]] On Behalf Of Tim Trent
> Sent: Tuesday, January 13, 2004 8:26 AM
> To: [log in to unmask]
> Subject: [data-protection] Complaining to the IC and ASA - A 
> Case Study
> 
> I have at last the opportunity to complain to the ASA and to 
> the IC regarding UCE under 2002/58/EC.
>  
> I received the following message yesterday on my batphone (I 
> am an individual subscriber on my batphone), and have NEVER 
> opted in to receive any text messages from any service, nor 
> do I have even the smallest prior relationship to allow "soft opt in".
>  
> "You are a winner you have been specially selected to receive 
> £1000 cash or a £2000 award.  Speak to a live operator to 
> claim call 08714712377 9am-7pm. Cost 10p."
>  
> I have already lodged the complaint on the ASA's website.  
> That was the easy part.
>  
> I am about to go through the same process on the IC's site to get the
> (presumably) 5 page form to complain.
>  
> Vodafone (I am a voda customer) have an awesome process for 
> stopping spam SMS, and I will be working with them as well, 
> but I am very interested in the IC and ASA elements
>  
> I will keep you all posted with the process
>  
> 
> 
> 
> 
> Tim Trent - Consultant
> Direct: +44(0)1344 392644 Mobile:+44(0)7710 126618
> email: [log in to unmask]
> Marketing Improvement Limited, Abbey House, Grenville Place, 
> Bracknell, United Kingdom, RG12 1BP 
> <http://www.marketingimprovement.com/>
> http://www.marketingimprovement.com
> 
>  
> 
> This message is for the intended addressee's use only. It may 
> contain confidential, proprietary or legally privileged 
> information. No confidentiality or privilege is waived or 
> lost by any mis-transmission. If you receive this message in 
> error, please immediately delete it and all copies of it from 
> your system, destroy any hard copies of it and notify the 
> sender. You must not, directly or indirectly, use, disclose, 
> distribute, print, or copy any part of this message if you 
> are not the intended recipient. Any views expressed in this 
> message are those of the individual sender, except where the 
> message states otherwise and the sender is
> authorised to state them to be the views of any such entity.	
> 
>  
> 
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