What is Data Protection by Design?
Assess before you process
‘Privacy by design’, or as it’s now known, ‘data protection by design and default’, refers to Article 25 of the UK GDPR. This principle makes it a legal obligation for controllers to implement organisational controls which ensure data protection issues are addressed at the design stage of any project. But what does the regulation mean when it refers to organisational controls? For project managers, marketing teams or product developers, the definition of organisational controls would vary, from anti-virus, to a retention schedule, to pen testing, or more. All of these procedures are compliant with the regulations but they address only part of the process, which is why we should refer to Article 35 - Data Protection Impact Assessment (DPIA) to understand what the most appropriate organisational controls are.
What is a DPIA?
A DPIA is the framework by which you can make sure whatever your business is doing is compliant with the ‘by design and default’ section of the UK GDPR. A DPIA makes you look at each and every element of the project, process or system and analyse the data protection impacts. DPIAs are usually split into two sections.
The first half of the assessment explores some of the key principles of the regulation, where you will outline the process from start to finish, identify under which legal basis you are going to process the personal data you collect, the purpose for collecting, how you will gather consent and how long you will retain the information collected. To complete this section successfully we would recommend you first complete data flow mapping exercise, as it will help you visualise the process and identify key points in the process.
The second half of the assessment will require you to identify the risks associated with the processing. It can help to consult with your DPO and colleagues from other departments to cover all risks.
Once a DPIA is completed it will need to be reviewed by your DPO and the business must make a decision on the risks it has identified. Once the all the identified risks have been assessed and addressed, the DPIA must be signed off by the Senior Information Risk Owner (SIRO), or whoever is responsible for compliance within your organisation. Processing cannot start without sign off from SIRO and risks identified at the design stage will need to be reviewed on regular basis, as they may change over time through the lifecycle of the project.
When should I carry out a DPIA?
The ICO recommends completing a DPIA when there is a big technological change within the organisation or where you will be carrying out systematic and extensive profiling of data subjects, and most certainly where you will be processing special-category data. But DPIA can also be used to review processes you have in place already as a risk assessment tool. It’s also useful as a documented procedure to ensure the purpose for which you initially collected data is still the same. It is important to include DPIA in the project initiation document as this will ensure staff are aware and complete a DPIA at the earliest possible stage. This means that before any new project, process or system is implemented, you need to do a DPIA.
Who is involved in the process?
Project sponsors or managers are responsible for carrying out a DPIA and they usually do this in consultation with other team members involved in the project. The risk section of the assessment would also require input from the IT team to cover information security. Your DPO will be responsible for reviewing the overall assessment to ensure data privacy issues have been addressed appropriately and as they are independent from the project they can highlight areas which may have been overlooked or risks that have not been identified. The SIRO will be responsible for reviewing the risks and along with the DPO will sign off the DPIA before processing can start.
Case Study: Dallas Data Breach
In April 2021 Dallas Police Department undertook a data migration project which resulted in permanent deletion of evidence relating to individual case files containing images, video, audio and notes. The incident happened because IT department failed to follow the proper procedures for data migration. In a scenario like this, carrying out a DPIA would’ve given Dallas Police the opportunity to review the procedures they had in place to ensure they were adequate and easy to understand. It would also have helped them identify what risks were most likely to occur and what were the most appropriate mitigating actions.
- Technology-based changes can have significant impacts to data protection
- Data protection isn’t just a theoretical or paper-based problem: it has real impacts to data subjects
- DPIAs are useful to many organisations in many situations
Key points to remember
- Where you are beginning a project, process or system (or otherwise processing personal data for the first time), you should complete a DPIA to ensure the processing is compliant with the UK GDPR.
- You can also use a DPIA to review existing business operations to ensure compliance with UK GDPR and prevent data breaches By carrying out a DPIA you should also look to complete a data flow mapping exercise which in return will feed into your data processing activities.
- This demonstrates your compliance with Article 30 as well as Article 25
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