By Stewart Room

What Will Be Hot in 2008?

The hottest topic within the UK in 2008 will be informational security. The HMRC data loss case in November has generated massive, worldwide publicity, but there are many other reasons why this will be the number one privacy issue at boardroom level in 2008.

For example, January 2007 saw the imprisonment of journalist Clive Goodman, for phone-tapping privacy offences. February saw the unprecedented fining of the Nationwide by the Financial Services Authority for a laptop theft (£980,000). March saw the Information Commissioner naming and shaming the UK's leading high street banks for security failings. April saw the commissioner commencing a high-profile investigation into data security at Barclays Bank. June saw the first concrete step toward the introduction of custodial penalties for section 55 Data Protection Act "data theft" offences with the introduction of the Criminal Justice and Immigration Bill. July saw the information commissioner warning CEOs to rapidly improve their performance on data security.

At the European level, the European Commission in May took an important step to promote Privacy Enhancing Technologies (PETs), with the publication of its communication to the European Parliament and Council — again with informational security in mind. Similarly, the European Commission has indicated that it prefers the formal introduction of U.S.-style reporting of security breaches legislation for the electronic communications sector in Europe. And, of course, the U.S. preference for reporting of security breaches has filtered into European mass consciousness, with cases like TK Maxx making national headlines. Yes, information security is bound to be the number one hot topic in 2008!

2008 will also see the first attempts toward the filing of privacy class-actions in the UK. Now that data loss has captured the public's imagination, it is only a matter of time before a smart firm of lawyers realises that security breaches can sustain mass litigation.

Another fundamental issue of importance will be the question: Is the Data Protection Act "fit for purpose?" Again, the HMRC case caused Prime Minister Gordon Brown to partially accede to long-standing lobbying by the information commissioner for the introduction of wide-ranging rights of access into data controllers. As a result of the HMRC breach, the commissioner will be given the power to carry out spot checks on public authorities, a massive improvement on the current position which requires the commissioner to obtain a judicial warrant before he can enter premises. The introduction of this spot-checking power will not end the "fit for purpose" debate however. It will spur it on. The commissioner is bound to demand similar powers to access the private sector, powers to levy fines and greater prosecuting powers. Further data security blunders throughout 2008 will keep the "fit for purpose" debate within the headlines.

The "surveillance society" will continue to be a very prominent issue within 2008. Yet again we refer to HMRC, which has shaken the public trust in the government's ability to handle sensitive data. As massive public sector data processing schemes continue in their development, we will have cause to regularly question whether the state is going too far.
The PETs communication mentioned earlier will see further fundamental changes in thinking about privacy and data protection. The validity of core thinking within current law, which is based on geography (Europe good, non-Europe bad) and contract ("gain consent to processing" etc.), will be challenged further by IT solutions and the IT industry. An emerging consensus will be established by which global IT companies will lead the development of data protection — Version 2!

Stewart Room is a Partner in the Privacy and Information Law Group at Field Fisher Waterhouse. He may be reached at stewart.room@ffw.com or at +44 (0)20 7861 4850.


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