There’s an update to a breach noted yesterday on this blog.
Highland Radio now reports that there were 180 children whose data were on the stolen laptop HSE’s Speech and Language Therapy Service in Donegal.
Even more noteworthy, however, they report that the laptop was “fully encrypted.”
If that’s the case, I am puzzled that the Data Protection Commissioner had ordered HSE to notify parents of the breach. As security professional Brian Honan helpfully points out, Principle 4 of the non-mandatory Personal Data Security Breach Code of Practice reads:
If the data concerned is protected by technological measures such as to make it unintelligible to any person who is not authorised to access it,the data controller may conclude that there is no risk to the data and therefore no need to inform data subjects. Such a conclusion would only be justified where the technological measures (such as encryption) were of a high standard.
So did the DPC direct HSE to disclose because the level of encryption wasn’t of a high standard? Or are government agencies expected to report even if encryption is deployed? If any Irish lawyers would like to jump in and explain, that would be appreciated.
In any event, I am puzzled that HSE didn’t say the laptop was fully encrypted in their notification letter. Surely that would have been somewhat reassuring to parents being notified, even if the encryption level wasn’t sufficient to trigger any safe harbor.
Mandatory breach disclosure is not a requirement in Ireland, unless in certain industries such as telcos. As a result many organisations are not completely familiar with the voluntary code of practise for reporting breaches. So some organisations, especially in the government sector, will report a breach even if the device is encrypted. If you review the Data Protection Commissioner’s Annual Report you will see many reports that are below the minimum requirements set in the Code of Practise. Also each organisation is supposed to keep a record of all breaches whether they are reported or not.
So all the above can lead to some confusion over when, how, and what should be reported resulting from a breach
Thanks so much for de-muddifying (is that a word?) the situation over there. 🙂
no problem, doing the de-modifying is what keeps me in a job 🙂
So here’s your next question, my friend:
If there’s no mandatory breach notification, how can the DPC order any agency to notify? It would seem to me that he could only “strongly recommend.” Even if an entity didn’t disclose, and the DPC opened an investigation, what’s the worst the could happen to HSE in this situation?